March 2, 2023 Civ Rev

Novation

2 kinds of Novation (Broadest sense)

1. extinctive - old obligation is terminated by the creation of new obligation that takes place of the
former
2. modicatory (partial obligation) - or imperfect novation - old obligation subsist to the extent it
remains compatible with the amendatatory agreement

Extinctive muna pag usapan

Requirements in extinctive novation.

1. There must be a previous valid obligation

2. the parties concerned must agree to a new contract
3. the old contract must be extingished
4. there must be a valid new contract

1st requisite: includes a voidable obligation. Basta di void contract, it is valid

natural obligation, why will it be subject to novation?

to convert it to civil obligation

2nd requisite

what if may new party sa 2nd contract, may extinctive novation ba?

GR: the parties in old must be the same sa new

EXC: conventional subrogation - aside sa orig parties may additional parties dito
sino sya? new creditor

3rd requisite

extinguishment either me express or implied novation

implied pag incompatible

what kind of incompatible?
total incompability

a new contract must be totally incompatible with the old contract

4th requisite
if void ang new contract, effect?

GR: orig contract subsist

Exc. agreement that orig extinguished
ano mode of extinguishment if not novation?
inter mutual agreement

condonation - act of liberality by which the o0bligee renounces the enforcement of obligation
(pagpapatawad)
compensation - offsetting

Article 1291
1st par
objective novation or real novation - there is a change in object, cause and principal, if di to ang
nabado di sya extinctive kundi modificatory

example
babaguhin ang mode of payment. extinctive or modicatory?

2nd par
subjective or personal
1. substitutution of the person of the debtor -
Indispensable requirement: consent of the creditor and the new debtor
not indispensable: old debtor

2 ways

delegacion - debtor consent is required because he is the one who offered the novation

expromision - debtor consent not required - new debtor offer himself to be the debtor

The credtor’s consent may be given expressly or impliedly

example of implied consent:

zethta borroed from pnb and his loan was mortgaged. during the existence of mortgage, the land was
sold to aquino. there entered into conract of deed of sale with assumption of mortgage. then pnb
received. months after si aquino na nagbabayad ng monthly amortization for years. after a year
tumigil si alonzo sa pagbabayad thus default. pnb now sinisingil si zetha sa entire obligation. sabi ni
zetha he is already released from obli because pnb consented in the substitution of the person of the
debtor.

may novation b to?

“acceptance of payment coming from the person who is being offered as substitiute is not implied
consent
why?

Implied novation happens when there is inconsistency on the old obligations

acceptance by the bank of the contract with assumtption of mortgage is not implied consent

in determining whether creditor consented or not

the mere fact that he accepted payments from substitute is not giving consent because he is
allowed to accept payments from anyone based on law
Bago ka mag object sa proposal, kinilala mo yung substituti

Objection is on the proposal not onjection of the substituyion - may implied consent

According to jurisprudence, in order to have a novation by way of substitution of the person of the
debtor, the important requirement is there must be a clear agreement for the release of old debtor
and the new debtor take place????? pede implied to.

meron ba situation that the old debtor is not actually release from the obligation even if there is new
one?

In expromision, the old debtor is always release from the obligation. It cannot be revived

In delgacion, the debtor is not actually release, it can be revived???

dahil sa katangahan

Subrogation - transfer of the rights of one person to another

how subrogation may take place? how?

1. by agreement of the parties or conventional subrogation

2. by operation of law - legal subrogation subrigation

what are the 2 kinds of subrogation

1. legal subrogation - takes place by operation of law

can it be presumed?
GR: it is not presumed
Exc: page 167
1. when the creditor pays another who is preferred, even without the debtor’s knowledge

there are 2 creditors, and one creditor pay another who is preferred
ano ang binayaran ni not preferred to the preferred? babayaran ni 1 st yung utang ni debtor kay
preferred creditor kasi purpose ni 1st para sya na lang sa babayaran ni debtor

to simplify a has debt to b and c. B paid the debt of a to c, thus it is only b who is the debtor of A/
the 1st wll pay the credit of the preferred
can the preferred creditor can be compelled to accept payment of non preferred?

2. when a 3rd person, not interested in the obligation, pays with the express or tacit approval of the
debtor

ano requirement kapag payment from third person in order to be legally subrogated?
debtor’s consent

if the 3rd person has interest, need ba ng debtor’s consent

so long as the payment come from interested 3 rd person, debtor consent is not necessary for legal
subrogation to take place

if the transfer of the creditor’s right is by virtue of contract, what are the ways that it can be done?

1. conventional subrogation - tripartite agreement

who are the parties:
orig credi
debtor
new creditor

thus debtor consent is necessary because he is a party, otherwise the contract is not perfected.

old obligation extinguished, new obligation arises

2. assignment of credit - 2 parties only

who are the parties?
assignor or the creditor
assignee - third person

is debtor a party?
no thus his consent is not necessary

pwede ba si debtor ang assignee?

Obligation is not extinguished

how to determine if it is conventional or assignment of credit?

if there is a transfer or right - assignment of credit

and if there is a transfer of right and it will not be valid without consent of debtor - conventional

what if the debtor did not give consent?

walang perfected conventional pero that contract has consent of creditor and 3 rd person, can we treat
it into to assigment of credit? No

if the contract is intended to be conventional, and di nakuha consent ni debtor walang conventional
subro and does not also tantamount to assignment of credit. there is no transfer of rights