Indivisibility and solidarity, concept and distinctions

- The indivisibility of obligation refers to the subject matter of an object not being
susceptible to partial performance. Solidarity, on the other hand, refers to the between the
parties. One therefore, does not empty, or give rise, to the other.

(Art. 1210) Thus, there may be the following obligations:

1. Joint divisible obligation
- When a joint obligation is divisible, each joint obligor is bound to perform, and
each joint obligee is entitled to receive only his portion.
ex. A and B are jointly obliged to C to construct a pavement 2 meters wide and 10
meters long.
2. Joint indivisible obligation
- When a joint obligation is indivisible, joint obligors or obligees are subject to the
rules governing solidary obligors or solidary obligees.
ex. A and B are jointly obliged to give a specific horse to C.
3. Solidary divisible obligation
- If there are two or more debtors in the same obligation, the obligation is said to be
joint liability, because both of the debtors are liable for the fulfillment of the
obligation.
ex. A and B are solidarily liable to pay C ₱10,000.00 in the equal installments.
4. Solidary indivisible obligation
- The creditor can demand the whole, total or complete value of the service to be
rendered from either of his creditors.
ex. A and B are liable to give a specific horse to C.

Divisible and Indivisible obligations

Divisible and indivisible obligations, concept

- A divisible obligation is one capable of partial performance (such as the obligation to
deliver 10 sacks of rice).

The following obligations are deemed divisible ( Art. 1225):

1. When the obligation has for its object the execution of a certain number of days of work
(such as an obligation to work for 1 week).
2. When the obligation has for its object the accomplishment of work by metrical units
(such as the obligation to construct a pavement which is 10 meters long and 2 meters
wide).
3. Analogous things which by their nature are susceptible to partial performance.
 - An indivisible obligation is one not capable of partial performance (such as the obligation
to deliver a specific car).

The following obligations are deemed indivisible (Art 1225):

1. Obligations to give definite things (such the obligation to give a specific horse).
2. Those not susceptible to partial performance (such as the obligation of a singer to sing
one song in a program).
3. Those where the object or service is physically divisible but it is indivisible by provision
of law (such as where the obligation is to pay a sum of money but the law provides that
the sum must be paid in full as in the case of certain taxes).
4. Those where the object or service is physically divisible but it is indivisible by the
intention of the parties. (such as where the obligation is to pay a sum of money but the
parties agreed that the sum must be paid in full).

Obligations with a Penal Clause

Obligation with a penal clause, concept

- An obligation with a penal clause is one which provides for a greater liability on the part
of the debtor in case of non-compliance.
ex. D is obliged to construct a commercial building for C within a period of three months.
The parties agreed that should D fail to finish the construction of the building within the
said period, D shall pay C ₱1,000.00 for every day of delay as penalty.

Function of penal clause

- A penal clause is attached to an obligation in order to ensure performance and has a
double functions:
1. To provide for liquidated damages, and
2. To strengthen the coercive force of the obligation by a threat of greater responsibility in
the event of breach, (Florentino vs. Supervalue, Inc., G, R. No. 172384, September 12,
2007)

Proof not required for actual damages suffered if there is a penalty

- Proof of actual damages suffered by the creditor is not necessary in order that the penalty
may be demanded.

Kinds of penal clause

1. Legal and Conventional
a. legal - Imposed by law.
b. conventional - Imposed by the agreement of the parties.
2. Subsidiary and Joint
a. subsidiary - When only the penalty may be enforced.
 b. joint - when both the obligation and the penalty may be enforced.

Rule in case obligation has a penal clause

General rule: The penalty takes the place of the damages and interest in case of non-compliance.
Exceptions: aside from the penalty, damages and interest may also be demanded:
1. When there is a stipulation to that effect.
- A stipulation for the payment of interest and penalty apart from interest in case of
delay is not contrary to law, morals, good customs or public policy.
2. When the debtor refuses to pay the penalty.
3. When the debtor is guilty of fraud in the performance of the obligation. (Art. 1226)

D is obliged to deliver 10 sacks of rice to C on May 10. The parties agreed that if D falls to
deliver on the due date, he will pay a penalty of ₱500.00.
1. Supposing that D failed to deliver on the due date, maybe just pay the penalty of
₱500.00?
Answer: No, because the debtor cannot exempt himself from the performance of the obligation
by just paying the penalty, except when this right has been expressly reserved for him. (Art.
1227)
2. May C demand the delivery of 10 sacks of rice and the payments of the penalty at the
same time upon default of D?
Answer: No. The creditor cannot demand fulfillment of the obligation and the payment of the
penalty at the same time except when this right has been clearly granted to him, or if after
requiring fulfillment of the obligation, the performance thereof becomes impossible without his
faults, he may also enforce the penalty. (Art. 1227)

When the court may reduce the penalty

1. When the obligation has been partly complied with by the debtor.
2. When the obligation has been irregularly complied with by the debtor.
3. When the penalty is iniquitous or unconscionable even if there has been no performance.
(Art. 1229)

Effect of nullity of principal obligation, penal clause

1. The nullity of the principal obligation carries with it the nullity of the penal clause. This
is so because the penal clause, being just an accessory undertaking, cannot stand by itself.
2. The nullity of the penal clause does not carry with it that of the principal obligation. This
is so because the principal obligation can stand by itself.