Article 1166.

The obligation to given a determinate thing includes that of delivering all it’s accession and
accessories, even though they may not have been mentioned.

Accession-are the fruit of a thing or addition to or improvements upon a thing (the principal)

Example:

Trees on a land, air – conditioner in a car; rent of a building

Accessories – are things joined to or included with the principal thing for the latter embellishment

Example:

key of a house, frame of a picture, bracelet of a watch.

RIGHT OF CREDIT TO ACCESSIONS AND ACCESSORIES

>the general rule is that all accessions and accessories are considered included in the obligation to
deliver a determinate thing although they may not have been mentioned

> This rule is based on the principle of law that the “accessory follows the principal”

> Unless otherwise stipulated, an obligation to deliver the accessions not included the latter.

Article 1167 ( Prestation -To do)

If a person obliged to do something fails to do it, the same shall be executed at his cost.

The same rule shall be observed if he does it in contravention of the tenor of the obligation.
Furthermore, it may be decreed that what has been poorly done be undone.

1. Remedies of the creditor in an obligation to do (positive personal obligation)

a. If the debtor fails to perform the obligation

•To have the obligation be executed at the expense of the debtor. The debtor, however,
cannot be compelled to perform the obligation because this would violate his
constitutional right against involuntary servitude.
•To demand the payment of damages from the debtor. (Art. 1170)

Example:
 C brought his computer to D’s shop for a repair. D told C that the repair would
be completed in 3 days. After 3 days, D has not yet begun repairing the computer.
Eventually, D returned it unrepaired. In this case, C can have the computer repaired by
another computer shop at D’s expense. C can likewise demand the payment of damages.

b. If the debtor performs the obligation but does it in contravention of the tenor thereof,
i.e., not following the specifications or stipulations agreed upon
•To have the obligation be executed at the expense of the debtor.
•To demand the payment of damages from the debtor. (Art. 1170)

Example:
D is obliged to construct a 4-bedroom house for C. D constructs the house but it
consists of only 3 rooms. In this case, C may ask that D follow the specifications agreed
upon and if D refuses, C may have the construction done by another person following
such specifications at D’s expense. C may also demand the payment of damages from D.

c. If the debtor performs the obligation but does it poorly

•To ask that what was done be undone at the debtor’s expense.
•To demand the payment of damages from the debtor. (Art. 1170)

Example:
D agreed to paint C’s house. D painted the house but the painting was unevenly
applied. C may ask D to repaint the house and if D refuses, C can have the repainting
done by another person at D’s expense. C may also demand the payment of damages
from D.

Article 1168 ( Prestation – not to do)

When the obligation consists in not doing, and the obligor does what has been forbidden him, it shall
also be undone at his expense.

1. Remedies of the creditor in obligation not to do (negative personal obligation), if the debtor
does what has been forbidden him

a. To ask that what has been done be undone at debtor’s expense.

b. To demand the payment of damages from the debtor. (Art. 1170)

Example:

D and C are owners of adjoining lots in a certain subdivision whose rules and
regulations provide that residents should not construct between lots a fence higher
 than 2 meters to allow sunlight to pass through. D constructed a fence 4 meters in
height between his lot and that of C thereby making the place of C very dark. In this
case, C may ask that D reduce the height to 2 meters, and if D refuses, C may have
the excess fence be demolished at D’s expense. C may also demand the payment of
damages from D.

ARTICLE 1169. Those obliged to deliver or to do something incur in delay from the time the obligee
judicially or extra-judicially demands from them the fulfilment of their obligation.

However, the demand by the creditor shall not be necessary in order that delay may exist:

(1) When the obligation or the law expressly so declares; or

(2) When from the nature and the circumstances of the obligation it appears that the
designation of the time when the thing is to be delivered or the service is to be rendered was a
controlling motive for the establishment of the contract; or

(3) When demand would be useless, as when the obligor has rendered it beyond his power to
perform.

In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to
comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfi
lls his obligation, delay by the other begins.

DELAY defined;

a. Ordinary Delay – is merely the failure to perform an obligation on time.

b. Legal Delay or default or mora – is the failure to perform an obligation on time which failure,
constitutes a breach of the obligation.

KINDS of Delay (Mora)

1. Mora solvendi (debtor’s part)– or the delay on the part of the debtor to fulfill his obligation (to give
or to do) by reason of a cause imputable to him;

2. Mora accipiendi (creditor’s part)– or the delay on the part of the creditor without justifiable reason
to accept the performance of the obligation; and

3. Compensatio morae (both parties defaulted) – or the delay of the obligors in reciprocal obligations
(like in sale), ie., the delay of the obligor cancels the delay of the obligee, and the vice versa.

REQUISITES of Delay or Default by the debtor

There are three conditions that must be present before mora solvendi can exist or its effects arise:

(1) Failure of the debtor to perform his (positive) obligation on the date agreed upon;

(2) Demand (not mere reminder or notice) made by the creditor upon the debtor to fulfil,
perform, or comply with his obligation which demand, may be either judicial (when a complaint
is filed in court) or extra-judicial (when made outside of court, orally or in writing); and

(3) Failure of the debtor to comply with such demand.

EFFECTS OF DELAY

*Mora Solvendi – the following are the effects:

a. The debtor is guilty of breach of the obligation;

b. He is liable for interest in case of obligations to pay money (Art. 2209) or damages in other
obligations. (Art. 1170.) In the absence of extrajudicial demand, the interest shall commence
from the filing of the complaint; and
 c. He is liable even for a fortuitous event when the obligation is to deliver a determinate thing.
(Art 1165, 1170). However, if the debtor can prove that the loss would have been resulted just
the same even if he had not been in default, the court may equitably mitigate the damages

In an obligation to deliver a generic thing, the debtor is not relieved from liability for loss due to a
fortuitous event. He can still be compelled to deliver a thing of the same kind or held liable for damages.

*Mora Accipiendi – the effect are as follows:

a. The creditor is guilty of breach of obligation;

b. He is liable for damages suffered, if any, by the debtor;

c. He bears the risk of loss of the thing due

d. Where the obligation is to pay money, the debtor is not liable for interest from time of the creditor’s
delay and

e. The debtor may release himself from the obligation by the consignation of the thing or sum due.

*Compensation morae – the delay of the obligor cancels out the effects of the delay of the obligee and
vice versa. The net result is that there is no actionable default on the part of both parties, such that as if
neither one is guilty of delay. If the delay of one party is followed by that of the other, the liability of the
first infractor shall be equitably tempered or balanced by the courts. If it cannot be determined which of
the parties is guilty of delay, the contract shall be deemed extinguished and each shall bear his own
damages.

INSTANCES WHEN THERE IS NO DEFAULT OR MORA SOLVEDI.

a. In negative obligation, because one can never be late in not doing or not giving something.

b. In natural obligation, because the performance is optional or voluntary on the part of the debtor.

RULES ON MORA, DELAY, OR DEFAULT

 a. UNILATERAL OBLIGATIONS : As a rule, “ NO DEMAND – NO DELAY “. Therefore, the mere
expiration of the period fixed by parties is not enough in order that the debtor may incur delay.
There must be judicial or extrajudicial demand made to be made before or simultaneous to the
maturity of the obligation. Failure to demand performance will not make the debtor in default
under the principle of “ NO DEMAND – NO DELAY”.

Exceptions to this rule are:

1. When stipulated by the parties

Example:

D obliges himself to give C a specific car on June 30, 2006 without the need of a demand. If on June 30,
D does not deliver, the next day he is considered in default without the need of a demand.

Let it be noted that it is not enough that there is a specific date for its performance. The obligation must
state expressly that “there is no need for demand”, otherwise he will not be considered in default.

2. By provision of law.

Example:

Article 1788 of the Civil Code – a partner who has undertaken to contribute a sum of money and fails to
do so becomes a debtor for the interest and damages from the time he should have complied with his
obligation without the need of a demand.

3. When time is the essence of the contract.

Example:
D obliges himself to construct in favor of C a one- kilometer Sabo dam in Bacolor, Pampanga, to protect
the property of C against the lahar coming from Mount Pinatubo. If by June of this year D has not yet
started the construction, he can already be declared in default without demand because time is the
essence of the contract.

4. Demand will be useless.

Example:

S and B executed a contract on June 15, 2006 by the terms of which S undertook to sell and B promised
to buy S’s white horse. Delivery of the horse was to be made on December 20, 2006 at which time B
would pay the agreed price of P10,000. On June 30, 2006, S sold and delivered the same white horse
irrevocably to X. In here, S is considered in default after he sold and delivered the horse to X without
demand because the demand to be made by B will be useless, S could no longer perform his obligation
since X after delivery is already the owner.

Illustrative Cases:

1. “D” borrowed P10,000 from “C” on December 1, 2006. He executed a promissory note
promising to pay the indebtedness on December 20, 2006. Upon the arrival of the
designated date for payment, is demand necessary in order that “D” shall incur in delay?

ANSWER:

It is submitted that the answer is yes, and the first exception will not apply. According to jurisprudence
as well as authorities in Civil Law, in order that the first exception as provided for in Article 1169 can be
applied, it is indispensable that the law or the stipulation should expressly add that the obligor shall
incur in delay if he fails to fulfill the obligation upon the arrival of a designated date “without the need of
a demand”, otherwise demand is necessary to declare the debtor in default.

2. “A” and “B” entered into a contract of partnership for the purpose of buying and selling
textbooks, with the former as capitalist partner and the latter as industrial partner. It
was agreed that “A” shall contribute P50,000 to the common fund on January 10, 2006.
 Upon the arrival of the designated date for payment, is demand necessary in order that
“A” shall incur in delay?

ANSWER:

Demand is not necessary in order that “A” shall incur in delay. According to the Civil Code, where one of
the partners who has undertaken to contribute a sum of money to the common fund at a specific date
but fails to do so, he becomes a debtor of the partnership not only for the amount which he has
promised to contribute but also for interest and damages from the time he should have complied with
his obligation without the need of a demand. (Arts. 1786, 1788, Civil Code).

c. Reciprocal obligations: These are obligations arising out of the same cause and are to be fulfilled
at the same time.

Example:

In contracts of sale, when the obligation of the seller and the buyer will take place at the same time.

1. Delay in reciprocal obligations.

From the time one of the parties fulfills his obligation, the other party incurs delay. If neither party
performs his undertaking, neither incurs delay.

Example:

S sold to B a specific car for P10,000. Both parties agreed that the delivery and payment shall take place
on June 30. If on June 30, B is paying S P10,000 and the latter cannot deliver, S is considered in default.
Likewise, if on June 30 S tenders delivery and B cannot pay the price of the sale, the latter is considered
in default.
 2. Effects of Mora

When there is delay, the injured party may ask for damages. But this benefit arising from mora, default
or delay may cease upon.

a. renunciation by the creditor

b. prescription of action

c. extension of time for the fulfillment of the obligation

3. Requisites of Mora Accipiendi

a. Offer of performance by the debtor, and

b. Refusal of the creditor to accept without just cause.

Effects:

a. Creditor shall bear the risk of loss.

b. All expenses for the preservation of the thing after the delay shall be borne by the creditor.

c. Creditor is liable for damages.