Oblicon Chapter+2

8/13/2019 Oblicon Chapter+2

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CHAPTER 2: Nature and Effects of Obligations

Art. 1163. Eer! "erson obliged to gie so#et$ing isalso obliged to ta%e care of it &it$ t$e "ro"erdiligence of a good fat$er of a fa#il!' unless t$e la&or t$e sti"ulation of t$e "arties re(uires anot$erstandard of care. )1*+,a-

3 %inds of "restations in obligations:

To give real (there is some physical

thing which may be the subject of possession,the delivery of which completely discharges theobligation)

To do

Not to do "ersonal (non-fulfillment is

resolved in the end by the payment of anindemnification of damages)

Obligation to do or not to do

Perfection of the obligation devolves upon the

person himself who is boundObligation to gie

Intimately connected with the thing that is the

subject matter of relation

Definition: That which has for its object the

delivery of a thing which the obligor must deliverto the obligee because of whatever right thelatter may have acuired over the same(!aguioa)

Classification:(distinction lies purely and

e"clusively on the &ill of "artiesor under thenor#s of la&)1. "ecific obligation

- an obligation to give a specific or determinatething#specific/determinate thing/ a thing determined individually in such amanner that it cannot be substituted withanother/object is particularly designated or physicallysegregated from all others of the same class$object is a concrete, particulari%ed thing,indicated by its own individuality (&urado)/one that is individuali%ed and can be identifiedor distinguished from others of its 'ind(Tolentino)/e"amples white horse which won the enior*rand +erby in ., amsung */00 *-//01-*-//023P!4/ the very same thing promised must bedelivered by the debtor and he cannot substitutesaid thing with another although the substitute ismore valuable than that agreed upon unless thecreditor agrees to the substitution (5rt6 70/par6)/ 3 accessor! obligations (Note only inspecific obligations) () obligation to ta'e care

of it with the proper diligence of a good father oa family (5rt6/8)$ (7) to deliver the accessionsand accessories although the same may nohave been mentioned (5rt6//)$ (8) to delivethe fruits from the moment the obligation todeliver arises (5rt6/9)

2. 0eneric obligation- has for its object a genus an object that isdetermined only by the class to which it pertains(incertum corpus)- delivery of a thing belonging to a speciestipulated, usually those which are fungible andthose which are determined by amount, numbeor measure- an obligation to give a generic thing*generic/indeterminate thing- the object is one whose determination isconfined to that of its nature : to the genus towhich it pertains (&urado)-one that is indicated only by its 'inds, withoubeing designated and distinguished from othersof the same 'ind (Tolentino)

- e"amples ten white horses, amsung */005cer laptop

2 Pur"oses of obligations to gie: (!aguioa)6 To transfer title (e6g6 contract o

sale or barter)76 To transfer merely possessions

(commodatum;5rt6 88, by the contract of loanone of the parties delivers to another, eithesomething not consumable so that the latter mayuse the same for a certain time and return it, inwhich case the contract is called a commodatum )


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nature of the obligation depending on theplace of the

performance of the obligation

Reason be$ind Art.1163: the obligation to deliver athing would be illusory if the debtor were not also obligedto preserve it6 (Tolentino)Effect of breac$: +ebtor who fails to e"ercise thediligence of a good father of a family in preserving thething can be held liable for damages6 (Tolentino)# Note 5rt6 /8 can be read in conjunction with 5rt6 .86

Art. 116,. T$e creditor $as a rig$t to t$e fruits of t$et$ing fro# t$e ti#e t$e obligation to delier it arises.Ho&eer' $e s$all ac(uire no real rig$t oer it untilt$e sa#e $as been deliered to $i#. )1*+-

0eneral rule: The creditor or obligee, in an

obligation to deliver a determinate thing, is entitled tothe fruits from the time the obligation to deliverarises6

When does the obligation to deliver the thing

and the fruits arise?Obligations arising fromlaw, quasi-contracts,criminal offenses, quasi-delicts

Obligations arising fromcontracts

=rom the time

designated by theprovisions of the !ivil!ode or of special lawscreating or regulatingthem

/ 0eneral rule: from themoment of the perfectionof contract )basis:Art.131-

E4ce"tions to t$e general rule:

1. In case there is a contrary stipulation of theparties with respect to the time when the thing orfruits shall be delivered6

2. If the obligation is subject to a suspensive

condition obligation to deliver the thing aswell as the fruits shall arise only from themoment of the fulfillment of the obligation$otherwise stated, from the moment the conditionhappens (5rt62.)suspensive condition the happening orfulfillment of the condition results in the birth ofthe obligation

3. If the obligation is subject to a suspensive term

or period obligation to deliver arises onlyupon the e"piration of the designated term orperiod

1Art.13: The vendor is bound to deliver the thing sold and itsaccessions and accessories in the condition in which they were uponthe perfection of the contract6

5ll the fruits shall pertain to the vendee from the day onwhich the contract was perfected6

Reason5ustification of t$e article: found in the

corresponding liability of the creditor for any loss thais occasioned to the property, since he bears thesame from the moment of the perfection of thecontract6

7istinctions bet&een "ersonal and real rig$ts

Personal Rig$t Real Rig$t

power belonging to one

person to demand ofanother, as a definitepassive subject, thefulfillment of aprestation to give, to do,or not to do (Tolentino)

us ad re# right

enforceable onlyagainst a definiteperson or group ofpersons

- power belonging to a

person over a specificthing, without a passivesubject individuallydetermined, against whomsuch right may bepersonally e"ercised

- us in re righenforceable against thewhole world (e6g6 right oownership, possessionusufruct, or easement)

Note:

8efore delier!, the creditor, in obligations to givehas merely a "ersonal rig$t against the debtor : aright to as' for delivery of the thing and the fruitsthereof$ ownership does not pass to the creditor

Once t$e t$ings and fruits deliered' the credito

ac(uires real rig$tover such which is enforceable

against the whole world the creditor only acuiresthe right of ownership over the thing and the fruitsonce they are delivered to him6

Art. 116. 9$en &$at is to be deliered is adeter#inate t$ing' t$e creditor' in addition to t$erig$t granted $i# b! Article 11*' #a! co#"el t$e

debtor to #a%e t$e delier!.

f t$e t$ing is indeter#inate or generic' $e #a! as%t$at t$e obligation be co#"lied &it$ at t$e e4"enseof t$e debtor.

f t$e obligor dela!s' or $as "ro#ised to delier t$esa#e t$ing to t&o or #ore "ersons &$o do not $aet$e sa#e interest' $e s$all be res"onsible for an!fortuitous eent until $e $as effected t$e delier!.

Rig$ts of t$e creditor in deter#inate obligations:

1. To compel specific performance

uch action when the debtor does not complywith what he has promised and the creditodemands that he fulfill the same

The debtor may be compelled to ma'e the

delivery of the very thing agreed upon

!omplemented by Art. 12,, "ar.1which states

that the debtor of a thing cannot co#"el t$ecreditor to receie a different one, althoughthe latter may be of the same value as, or morevaluable than that which is due6

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Implies that its basis is a contractual relation

between plaintiff and defendant (Tolentino)2. To recover damages for breach of the obligation

Rig$ts of t$e creditor in generic obligations:

1. To as' for performance of the obligation

the delivery of a thing belonging to the species

stipulated will be sufficient and hence, it is noabsolutely necessary for the debtor to ma'e thedelivery himself, since the delivery of anything othe same species will fulfill the obligation6 It maybe performed by another, but at the e"pense o

the debtor6 (substitute performance) !reditor can only as' for the delivery of a thing

or object belonging to the class or genusstipulated which must be neither of superior noinferior uality (5rt679/)

2. To as' that the obligation to be complied with at thee"pense of the debtor

The creditor may as' a third person to perform

the obligation and all e"penses incurred shall becharged against him

3. To recover damages for breach of the obligation

Re#edies aailable to

creditor in s"ecificobligation

Re#edies aailable to

creditor in deter#inateobligation

6 to compel specificperformance76 to recover damages forbreach of the obligation

6 to as' for theperformance of theobligation76 to as' that the obligationto be complied with at thee"pense of the debtor86 to recover damages fobreach of the obligation

Note:#>efore the thing to be delivered is separated fromothers of the same 'ind (and therefore the obligationbecomes specific), no accessory obligations arise sincethe thing has not yet been made determinate$ but oncethe determination occurs the rules applicable to specificobligations will immediately follow6 (!aguioa)

;iabilit! for fortuitous eent

a6 The classification of obligations intospecific and generic is of importance in thedetermination of the liability of the debtor fofortuitous event6i6 pecific;the creditors bear theloss and deterioration of the thing throughfortuitous event so long as the debtor is not inmora

ii6 *eneric;the creditor does nobear the loss until the object of the prestation hasbeen individuali%ed or made specific inaccordance with the principle genus perire noncensetur and conseuently, impossibility operformance by fortuitous event is not a possibledefense for the debtor6

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if er! "ersonal / when the ualifications of thedebtor are involved$ the debtor is the only one that mustperform it

if not "ersonal < performance by an agent ispermitted (substitute performance)

Effects of breac$

6 In positive personal obligations to do, if theobligor fails to do that which he has obligatedhimself to do, the obligee can have theobligation performed or e"ecuted at the e"penseof the former6 )Art. 116' "ar.2-

76 In case the debtor should have performed theact agreed upon in contravention of theagreement, or in a manner that is improper orinappropriate, the same thing shall be orderedundone and performed by another at thee"pense of the debtor should he refuse to do itall over again6

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Effects of breac$:6 In case the debtor breaches the obligation, the

same shall be ordered undone at his e"pense6)Art.116>-

76 In those cases where it is not possible to undothe act done either physically or legally, orbecause the rights of third persons are involved,or for some other reason, the only feasibleremedy on the part of the creditor is anindemnification for the damage caused6)Art.11*-

Art. 116+. T$ose obliged to delier or to doso#et$ing incur in dela! fro# t$e ti#e t$e obligee

udiciall! or e4tra/udiciall! de#ands fro# t$e# t$efulfill#ent of t$eir obligation.

Ho&eer' t$e de#and b! t$e creditor s$all not benecessar! in order t$at dela! #a! e4ist:)1- 9$en t$e obligation or t$e la& e4"ressl! sodeclare? or

)2- 9$en fro# t$e nature and t$e circu#stances oft$e obligation it a""ears t$at t$e designation of t$eti#e &$en t$e t$ing is to be deliered or t$e sericeis to be rendered &as a controlling #otie for t$eestablis$#ent of t$e contract? or

)3- 9$en de#and &ould be useless' as &$en t$eobligor $as rendered it be!ond $is "o&er to "erfor#.

n reci"rocal obligations' neit$er "art! incurs indela! if t$e ot$er does not co#"l! or is not read! toco#"l! in a "ro"er #anner &it$ &$at is incu#bentu"on $i#. =ro# t$e #o#ent one of t$e "arties

fulfills $is obligation' dela! b! t$e ot$er begins.)11**a-

=ulfill#ent of t$e obligation

Performance of the obligation or payment,juridically spea'ing, presupposes the e4act andco#"lete e4ecution of t$e "restation on t$e"art of t$e debtor.(!aguioa)

Traditionally, performance or fulfillment of theobligation has been e"pressed in the termApaymentB or Asolutio,B which e"pression hasalso the concept of e"tinction of the juridical

relation6 The !ivil !ode regulates fulfillment or payment

among the models of e"tinguishing obligations

Non/fulfill#ent58reac$ of obligation:

@anner of non/fulfill#ent (!aguioa)1. non/fulfill#ent "ro"erl! s"ea%ing

- causes of non-fulfillment affect the very essence othe obligation thereby rendering it impossible operformance2. defects in non/fulfill#ent

- those which, without fundamentally affecting thetie of law nor rendering the performance thereoimpossible presupposes a defective or an ine"acperformance of what was agreed upon

- e"ample mora or delay : non-fulfillment in poinof time


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Note There can be delay


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o udicial: if the creditor files a complaint against

the debtor for the fulfillment of the obligationo e4traudicial: if the creditor demands from the

debtor the fulfillment of the obligation eitherorally or in writing (&urado)$ sending of a bill ordemand letter (!aguioa)

Notes

5 mere reminder or any act which cannot be

ualified as a demand for payment will not be

considered a demand since the code reuiresthat the tolerance and benevolence of thecreditor has terminated (!astan as cited in!aguioa)

The proof of the demand will be incumbent

upon the creditor (Tolentino)

+emand is generally necessary even if a

periof has been fi"ed in the obligation(Tolentino)

@here there has been an e"trajudicial

demand before action for performance wasfiled, the effects of default arise from the dateof such e"trajudicial demand6 >ut where the

evidence does not disclose any particular dateon which the creditor made e"trajudicialdemand upon the debtor, the payment ofinterest or damages for the default mustcommence from the filing of the complaint6(Tolentino)

The demand must refer to the prestation that

is due and not to another (Tolentino)

When demand is NOT necessary6 when the obligation or the law e"pressly so

declares

the obligation or the law itself must e"pressly

declare that the demand is not necessary in orderthat the debtor shall incur in delay

e"ample in the obligation it is stipulated that, 'Dshall incur in dela! if he does not pa! the obligationupon the arrival of the designated date for pa!ment($

#Notes:

In case of doubt, the doubt should be resolved in

favor of the debtor, because dispensing withdemand is an e"ception to a general rule$ unlessthe e"ception is clearly proved, the general rulemust apply6 (Tolentino)

5ccording to Art.1>> of the !ivil !ode, where

one of the partners who has underta'en tocontribute a sum of money to the common fundat a specified date fails to do so, he becomes adebtor of the partnership not only for the amountwhich he has promised to contribute but also forthe interest and damages from the time heshould have complied with his obligation(&urado)

76 when from the nature and the circumstances othe obligation it appears that the designation ofthe time when the thing is to be delivered or theservice is to be rendered was a controllingmotive for the establishment of the contract

basis: the time element for the fulfillment of theobligation is of the essence of the contract

e"amples () where a building was to becompleted on a certain date because it was to beopened as a school on a fi"ed date$ (7) where goodswere to be delivered on a specified date becausethey were to be loaded on a boat leaving on suchdate

Note It is essential that the debtor has 'nowledge ofthe fi"ing of the date of performance as a controllingmotive on the part of the creditor in order that it canbe said that the debtor has tacitly consented to incurin delay without the necessity of a demand(Tolentino)

86 when demand would be useless, as when the

obligor has rendered it beyond his power toperform

where performance has become impossible eithethrough () some act or fault of the debtor or (7) asthat caused by fortuitous event but the debtor hasbound himself to be liable in cases of such events6

#Note 9th instance when demand is not necessaryaccording to some authors (ac'nowledged by

Tolentino) when the debtor e"pressly recogni%esor ac'nowledges that he has incurred in delayThere must, however, be an e"press recognition ofthe default and not merely reuests for e"tension to

time to perform6

Effects of mora solvendi:6 to indemnify the creditor for damages which his

delay has occasioned in obligations to give andto do (!aguioa)

76 to answer for the loss or deterioration of thething due even if caused by fortuitous even(!aguioa)

86 @hen it has for its object a determinate thingthe delay places the ris's of the thing on thedebtor (Tolentino)

Mora accipiendi

constitutes non-acceptance without reason (!aguioa)

delay in the performance based on the omission bythe creditor of the necessary cooperation, especiallyacceptance on his part (Tolentino)

reuisites (!aguioa)2

%Tolentino version 8 reuisites in order that there be delay on the partof the creditor

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o That there e"ists an obligation which has

already matured and for whose fulfillment an actof cooperation on the part of the creditor isreuired

o That the debtor has performed al that is

incumbent upon him under the obligation andmade tender of payment to the creditor

o That the creditor refused to accept payment or

to cooperate in the fulfillment of the obligation

without any justifiable reason

When does the creditor incur in delay?

The creditor incurs in delay when the debtor tenderspayment or performance, but the creditor refuses toaccept it without just cause6

Effects of mora accipiendi:6 it e"cludes the mora of the debtor and destroys

the effects of the latter (!aguioa)76 it transfers the ris' to the creditor for fortuitous

events which formerly belonged to the debtor(!aguioa Tolentino)

86 debtor can obtain his freedom from theobligation by the consignation of the thing due,and conseuently, after consignation, hisobligation to pay interest is e"tinguished(!aguioa Tolentino)

96 the responsibility of the debtor for the thing isreduced and limited to fraud and grossnegligence (Tolentino)

H6 all e"penses incurred by the debtor for thepreservation of the thing after the mora shall bechargeable to the creditor (Tolentino)

/6 creditor becomes liable for damages (Tolentino)

ompensatio morae

Reci"rocal obligations < those which are created orestablished at the same time, out of the same cause,and which result in mutual relationships of the creditorand debtor between the parties6- are conditional in the sense that fulfillment of anobligation by one party depends upon the fulfillment ofthe obligation by the other

0eneral rule in reci"rocal obligations: thefulfillment by the parties should be simultaneous6 @hereboth are in default, their respective liability for damagesshall be offset euitably6

When does delay or mora begin?

+elay or mora begins from the moment the otherparty fulfills or tenders fulfillment of his obligation in aproper manner (!aguioa))$ otherwise put,

6 an offer of performance by the debtor who has the reuiredcapacity

76 the offer must be to comply with the prestation as it shouldbe performed

86 the creditor refuses the performance without just cause

delinuency commences when one of thecontracting parties fulfills his obligation and becomesinvested with power to determine the contracbecause of failure on the part of the other to carryout the agreement6 (Tolentino)

!ow is demand made in reciprocalobligations?

+emand is made in only one way and that is byactual performance or tender of performance of theobligation of the party claiming delay or default bythe other6 (!aguioa)

Cessation of Effects of @ora

occurs in the following cases (!aguioa version)() through the will of the creditor as in the cases of

waiver of the payment of the dueindemnification, remission, e"tension of timeand novation$

(7) by concession by the law of a time to fulfill to thedebtor (moratorium)

(8) when the creditor is also guilty of mora, in whichcase, there occurs the neutrali%ation of the mora(compensation morae)

benefits arising from default or delay may ceaseupon (Tolentino version)

() renunciation by the creditora6 e"pressb6 implied : when after the delay has been

incurred, the creditor grants an e"tension of timeto the debtor or agrees to a novation of theobligation

(7) prescription

Art. 11*. T$ose &$o in t$e "erfor#ance of t$eirobligations are guilt! of fraud' negligence' or dela!and t$ose &$o in an! #anner contraene t$e tenort$ereof' are liable for da#ages. )11*1-

enumerated herein are those 'inds of voluntarybreaches of obligation () through fraud$ (7) negligence(8) delay$ (9) contravention of the tenor of the obligation6

0eneral rule: in cases where there is voluntarybreach of obligation, one of the rights of the creditor is toas' for indemnification of damages under this article6

Notes:

A+amagesB as used in the above provisioninclude any and all damages that a human beingmay suffer in any and all manifestations of hislife physical or material, moral or psychologicalmental or spiritual, financial, economic, socialpolitical and religious6 (Tolentino)

&This right is usually resorted to when other rights are not alreadyavailable to the creditor, for instance when a debtor acting incontravention of the tenor of the obligation cannot physically undo whahe has done6

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>reach of contractual obligation entitles the

other party damages even if no penalty for suchbreach is provided in the contract6

The responsibility for damages arising from non-

fulfillment of a contractual obligation cannot bedivided nor can it be e"tended to persons whohave nothing to do with the obligation (Tolentino)

ontravention of the tenor of obligation (also another

'ind of voluntary breach of obligation or partial non-fulfillment of obligation)

5ny illicit act which impairs the strict and faithfulfulfillment of the obligation or every 'ind of defectiveperformance6

e"ample an architect who made plans that containdefects and inadeuacies which led to the collapse ofthe building

Art. 111. Res"onsibilit! arising fro# fraud isde#andable in all obligations. An! &aier of anaction for future fraud is oid. )11*2a-

"raud or #olo

voluntar! e"ecution of a wrongful act, or a willfulomission, nowing and intending the effects whichnaturally and necessarily arise from such act oromission6 (Tolentino)

consists in the conscious and intentional propositionto evade the normal fulfillment of the obligation (&urado)

2 %inds:a. 7eceit1*

- ?"ists in the celebration of contracts

- !an only e"ist in contracts and precedes

or is simultaneous with the celebration of

the contract- Desults in a vitiation of consent and a

possible annulment of the sameb. @alice or bad fait$

- ?"ists in the fulfillment of obligations

- Deuires that there be a pre-e"isting

obligation the fulfillment of which istainted with bad faith or malice

- ince there e"ists already in obligation,

there is no uestion of annulment and theremedy granted by law is indemnificationfor damages

1'This type of fraud is that which is contemplated in Art.133>whichstipulates AThere is fraud when, through insidious words ormachinations of one of the contracting parties, the other is induced toenter into a contract which, without them, he would not have agreedto6B (Janresa as cited in Tolentino)

+eceit is referred to by &urado as causal or incidental fraud(dolocausante or dolo incidente

7istinctions bet&een t$e deceit and #alice:

7eceit @alices to time ?"ists ahead of the

contractualobligation, or at thebirth of theobligation

Present only duringthe performance oa pre-e"istingobligation

s to purpose ecuring the

consent of the otherparty to enter intothe contract

?vading the norma

fulfi llment of anobligation

s to result Eitiation of consentof the party uponwhom it isemployed forentering into thecontract

Non-fulfillment obreach of theobligation

s to rights thatarise

*ives rise to a rightof the innocentparty to as' for theannulment of thecontract if the fraudis causal or to

recover damages ifit is incidental

*ives rise to a righof the creditor oobligee to recovedamages from thedebtor or obligor

What type of fraud is contemplated under$rt%&&'&?

The fraud referred to in this article is #alice or badfait$.

@alice or bad fait$

any voluntary and willful act or omission whichprevents the normal reali%ation of the prestation'nowing and intending the effects which naturally andnecessarily arise from such act6 (Tolentino)

Janresa deliberate and intentional purpose to evadethe normal compliance of an obligation (as cited in!aguioa)

!astan an act or omission which with awareness andwill to produce an anti-judicial result, prevents the normacompliance of an obligation (as cited in !aguioa)

2 essential ele#ents: (!aguioa)i6 Intellectual awareness (conciencia)ii6 @ill (desire to violate a right of credit, AvoluntadB)

(s the intention of the violator determined b! the motivewhich impelled him to commit the act essential formalice or bad faith+

Jodern doctrine says that the motive or intention isirrelevant in civil law6 5s +ia% Pairo says, there is adistinction between a debtor in good faith and a debtorbecause of dolo which conseuently ma'es the latter adebtor in bad faith6 =or malice or bad faith to e"ist, it issufficient to infringe voluntarily the obligation which fallsover the debtor consciously, or with his awareness(!aguioa)

11In other words, the intention or motive of a debtor in malice is alwaysirrelevant6 It always implies some 'ind of malice or dishonesty6 5s

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Res"onsibilit! for #alice or bad fait$:

=or the conseuences of his malicious

act, the debtor is liable not only for the resultsintended but also for their natural and probableconseuences even though they havenCt beenforeseen by the debtor or they e"ceeded itsintention

This responsibility for malice or bad faith

is demandable in all 'inds of obligations but it isnecessary that it must be proved and not simplypresumed and results in an aggravation of thedamages that are recoverable

9aier of action for #alice or bad

fait$o if in advance, i6e6 a waiver for a fraud which

has not yet been committed void$prohibited because it is against law and publicpolicy

o if past, i6e6 a waiver for a fraud already

committed valid$ is deemed an act ofgenerosity on the part of the creditor

Art. 112. Res"onsibilit! arising fro# negligence int$e "erfor#ance of eer! %ind of obligation is alsode#andable' but suc$ liabilit! #a! be regulated b!t$e courts' according to t$e circu#stances. )11*3-

Cul"a or fault or negligence

consists in the omission of that diligence which isreuired by the nature of the obligation and correspondswith the circumstances of the persons, of the time and ofthe place )Art. 113-

omission of that diligence reuired in social relations

which if observed would have prevented the contraryand undesired result (!aguioa)

simply the absence of due care reuired by the natureof the obligation (&urado)

Binds5classes:12

a$ ccording to formi6 Culpa in faciendo (positive act)ii6 Culpa in non faciendo (omission)

b$ ccording to degree of culpa / diligence

i6 Culpa lata (grave which is the omission ofthe most minimum diligence)

ii6 Culpa leve (omission of the diligence of an

ordinary layman or bonus pater familias)

such, it cannot cover cases of mista'e and errors of judgment made ingood faith6 (Tolentino &urado) The element of intent, and not thedegree of actual harm done is the test6 (Tolentino)12This classification is patterned after !aguioaCs613 The !ivil !ode follows the modern tendency admitting of nodegrees of culpa but sets up a standard of diligence in that of a goodfather of a family, saving agreement to the contrary, and leaving it tothe courts either to moderate or aggravate the responsibility of aperson guilty of culpa depending on the circumstances

iii6 Culpa levissima (omission of thema"imum diligence of a very careful man)

c$.ost important classification

i$ ulpa contractual

fault or negligence in the performance of a pre-e"isting contractual obligation resulting in a breachof obligation (!aguioa Tolentino)

fault or negligence of the obligor by virtue owhich he is unable to perform his obligation arisingfrom a pre-e"isting contract because of theomission of the diligence which is reuired by thenature of the obligation and corresponds with thecircumstances of the persons, of the time and ofthe place (&urado)

ii$ ulpa e)tra*contractual ora+uiliana

failure to observe the care reuired by law withrespect to other persons not connected bycontract or of any juridical relation whatsoevesave the generic one which is common to all menof not damaging another (!aguioa)

fault or negligence of a person, who, becauseof the omission of the diligence which is reuiredby the nature of the obligation and which muscorrespond with the circumstances of the personsof the time and of the place, causes damage toanother6 (&urado)

fault or negligence which constitutes anindependent source of obligation between partiesnot previously bound6 (Tolentino)

7istinctions bet&een cul"a contractual and cul"aa(uiliana:

,-.$ ONT/$T,$- ,-.$ $0,1-1$N$

There is pre-e"isting

contractual relation

None6

The negligence of thedefendant is merely anincident in the performanceof an obligation

The negligence involved issubstantive andindependent6

ource of liability;breachor non-fulfillment of thecontract

ource of liability;negligent act or omissionitself

There is presumption ofnegligence from thebreach of the contract

Plaintiff must prove thee"istence of negligence

The master cannot e"empthimself by proving due

diligence in the selectionand supervision ofemployee

The master is free fromliability upon proof of such

diligence

+amages may be claimedonly by the parties, theirheirs and privies

5 stranger may claimdamages such as therelatives and dependents

Negligence referred to in Negligence referred to in

145ccording to &urado, negligence may either be criminal or civil6!ulpa auiliana and culpa contractual are the two 'inds of civilnegligence6

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Art.113 Art. 2161

Negligence distinguis$ed fro# fraud

There is #alice or dolo when there is

non-fulfillment due to a cause of which thedebtor is aware$ there is actual 'nowledge

There is cul"a when there is non-

fulfillment due to a cause which the debtor

could or ought to have foreseen$ there ispossibility of 'nowledge

There is fortuitous eent when there is

non-fulfillment for causes which the debtorcould not foresee and could not haveavoided$ there is total absence orpossibility of 'nowledge

7istinguis$ing ele#ent of fraud fro#

negligence: INT?NTIKT, if the negligent act or omissionof the obligee or creditor was apro"imate causeof the event which led to the damage or injury

complained of, he cannot recover$ (&urado)

Art. 113. T$e fault or negligence of t$e obligoconsists in t$e o#ission of t$at diligence &$ic$ isre(uired b! t$e nature of t$e obligation and

1#Art. 22*1' "ar.2: In case of fraud, bad faith, malice or wantonattitude, the obligor shall be responsible for all damages which may bereasonably attributed to the non-performance of the obligation6

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corres"onds &it$ t$e circu#stances of t$e "ersons'of t$e ti#e and of t$e "lace. 9$en negligence s$o&sbad fait$' t$e "roisions of Articles 111 and 22*1'"aragra"$ 2' s$all a""l!.

f t$e la& or contract does not state t$e diligence&$ic$ is to be obsered in t$e "erfor#ance' t$at&$ic$ is e4"ected of a good fat$er of a fa#il! s$allbe re(uired. )11*,a-

0eneral degree of diligence re(uired:

@hen neither the law nor the obligation itself statesthe degree of diligence reuired of the obligor or debtorin the performance or fulfillment of the obligation, thestandard diligence reuired is Athat which would beobserved by a good fat$er of a fa#il!.

E4ce"tions:1. when the parties stipulated another degree of

diligence reuired2. when the law reuires a higher degree of diligence

- e"ample common carriers )Art.133' "ar.1-.

Dgood fat$er of a fa#il! #bonos paterfamilias)

a person of ordinary or average diligence

Notes fro# class:3 (uantu# of diligence:6 e"traordinary diligence76 diligence of a good father of a family (+


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assu#"tion of ris%' no "erson s$all be res"onsiblefor t$ose eents &$ic$ could not be foreseen' or&$ic$' t$oug$ foreseen' &ere ineitable. )11*a-

"ortuitous Event

an event which could not be foreseen, or which,though foreseen, was inevitable6

includes unavoidable accidents, even if there hasbeen an intervention of human element, provided fault ornegligence cannot be imputed to the debtor6 (Tolentino)

Negative +ef that incident not imputable to the debtorwhich impedes the e"act fulfillment of the obligation6(!aguioa)

Positive +ef event not imputable to the debtor whichis unforeseen or although foreseen is inevitable andwhich renders impossible to e"act fulfillment of theobligation (!aguioa)

may be

s to causea6 fortuitous event proper

: or that which is caused by an Aact of *odB: e"amples earthua'es, floods, storms,epidemics, fires, etc6

b$ force ma0eure: where there is human intervention-- e"amples armed invasion, attac' by robbers,attac' by bandits#Note ?ssentially, there is N< substantial differencebetween the two, they both refer to an event orcause which is independent of the will of the obligor6

s to foreseeabilit!4

a$ ordinar! fortuitous event- refers to an event which usually happens

or which could have been reasonablyforeseen

- e"ample tropical storms, floods

b$ e"traordinar! fortuitous event- refers to an event which does not usually

happen and which could not have beenreasonably foreseen

- e"amples fire, war, pestilence, unusual

flood (


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the creditor and the creditor refused to acceptthe same without justifiable cause6 )Art. 126>-21

Notes:

In order that a fortuitous event may e"empt a person

from liability, it is necessary that he be free from anyprevious negligence or misconduct by reason ofwhich the loss may have been occasioned6(outheastern !ollege Inc6 vs6 !5)? otherwise put,the fortuitous event must not onl! be the pro"imatecause of the loss or destruction, but that it must bethe 6O78 cause$

Art. 11. surious transactions s$all be goernedb! s"ecial la&s. )n-

sur! contracting for or receiving something ine"cess of the amount allowed by law for the loan orforbearance of money, goods or chattels$ the ta'ing ofmore interest for the use of money, goods or chattels orcredit than the law allows6

The special laws referred to are the Ksury Faw(5ct6 No6 7/HH) and the different laws amending it6Ksury Faw provided for a legal rate interest of /Mper annum and a contractual rate not e"ceeding7M per annum if the loan is secured by a dulyregistered real estate, and 9M if not so secured6

Ksury Faw was repealed during the martial lawperiod, leaving parties free to stipulate higherrates6

There is now no longer any ceiling in interest rateson loans pursuant to !entral >an' !ircular No6

779 issued last +ec6, 276

Art. 116. T$e recei"t of t$e "rinci"al b! t$e creditor&it$out reseration &it$ res"ect to t$e interest' s$allgie rise to t$e "resu#"tion t$at said interest $asbeen "aid.

T$e recei"t of a later install#ent of a debt &it$outreseration as to "rior install#ents' s$all li%e&iseraise t$e "resu#"tion t$at suc$ install#ents $aebeen "aid. )111*a-

The presumptions enunciated in the above provision arerebuttable and not conclusive

2 "resu#"tions sti"ulated b! Art.116:

21Art. 126>: A@hen the debt of a thing certain and determinateproceeds from a criminal offense, the debtor shall not be e"emptedfrom the payment of its price, whatever may be the cause for the loss,unless the thing having been offered by him to the person who shouldreceive it, the latter refused without justification to accept it6B

Par. 1 If the debtor is issued a receipt by the creditoand on the face of the receipt it is shown that theprincipal has been paid without any reservation withrespect to the interest, there arises a disputablepresumption that the interest has also been paid6

9asis: If a debt produces interest, payment of theprincipal shall not be deemed to have been made untithe interests have been covered6 )Art. 123-

Par. 2 If the debtor is issued a receipt by the creditoac'nowledging payment of a latter installment of aspecified debt without any reservation with respect toprior installments, there also arises a disputablepresumption that such prior installments have alreadybeen paid6 (This rule is in conformity with the rule statedin Dule 8, ec6H, subsec6 (i) of the New Dules o!ourt6)77

Esto""el (Art. 1,31, !ivil !ode) : a condition or stateby virtue of which an admission or representation isrendered conclusive upon the person ma'ing it andcannot be denied or disproved as against the person

relying thereon678

Art. 11. T$e creditors' after $aing "ursued t$e"ro"ert! in "ossession of t$e debtor to satisf! t$eirclai#s' #a! e4ercise all t$e rig$ts and bring all t$eactions of t$e latter for t$e sa#e "ur"ose' saet$ose &$ic$ are in$erent in $is "erson? t$e! #a!also i#"ugn t$e acts &$ic$ t$e debtor #a! $aedone to defraud t$e#. )1111-

2 distinct as"ects5ele#ents of an obligation(!aguioa)

+ebtor

*uarantyresponsibility duty of the debtor toanswer for his obligation with his entire patrimony

Rig$ts of creditors in satisf!ing t$eir clai#s againstt$e debtor:

#) to lev! b! attachment and e"ecution upon all thepropert! of the debtor, e"cept such as aree"empt b! law from e"ecution

e"hausting the property in possession of thedebtor

=or the fulfillment of the obligation of the debtorresponds with all his property present and future6

5ll the property of the debtor is answerable for theobligation not only those properties e"isting at thetime of birth of the obligation but also all those which

22abi ni &urado23Dationale?stoppel applies perhaps because when one alreadybenefited from a certain act, he is already precluded to uestion thesame6 (Not so sure of this)

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later on become or form part of the patrimony of thedebtor6

in conformity with Art. 2236 of the !ivil !odewhich states that the debtor is liable with all hisproperty, present and future for the fulfillment of hisobligations subject to the e"emptions provided bylaw6

#) to e"ercise all the rights and actions of thedebtor, e"cept such as are inherentl! personalto him

creditor being subrogated to all of the rights andactions of the debtor save those which are inherentin his person

subrogatory action

5ubrogatory action

the remedy granted by law to creditors who cannot inany other way recover their credit to e"ercise the rightsand actions not used by the debtor and which are notinherent in his person6 (!aguioa)

the action which the creditor may e"ercise in theplace of his negligent debtor in order to preserve orrecover the patrimony of the debtor the product of suchaction, and then obtain therefrom the satisfaction of hisown credit (Tolentino)

C$aracteristic: indirect ; independent O3 becausethe creditor cannot in his own name file the action but inthe name of the debtor

Re(uisites5Conditions:

The creditor has a right of credit against the

debtor although at the moment it is notliuidated

The credit must be due and demandable

=ailure of the debtor to collect, or inaction of the

debtor, whether the same be willful or negligent Insufficiency of the assets in the hands of the

debtor although the creditor need not bring aseparate action to show this e"haustion orinsolvency of the debtor but he can prove thesame in the very action to e"ercise thesubrogatory action

The right and actions are not purely personal or

inherent in the person of the debtor

rig$ts t$at are "urel!"ersonal or in$erent of t$e debtor:o right to e"istence (support)

o rights or relations of a public character

o rights of an honorary charactero rights consisting of powers which have not

been used, including (a) power toadminister$ (b) power to carry out anagency or deposit$ (c) power to accept anoffer for a contract

o non-patrimonial

rights79

o patrimonial

rights not subject to e"ecution7H

o patrimonial

rights inherent in the person of thedebtor7/

Ot$er actions t$at cannot be subect of a

subrogator! action: Jere options and powers o

the debtor such as the power to e"ercise legaredemption or to revo'e a stipulationpour autri

Properties e"empt from

e"ecution such as those mentioned in section7, Dule 8 of the New Dules of !ourt, thefamily home, etc6

Effects of subrogator! action

The creditor may e"ercise the subrogatory

action in behalf of the debtor not only up to theamount of his credit but in its totality6 Loweverthe e"cess over and above the credit or the

damage must be returned to the debtor The bringing of the action does not entitle the

creditor to preference$ hence, any other creditormay avail of himself of the credit collectede"cept when the suing creditor attaches thedebtorCs credit or the judgment that is obtained6

The debtor of the debtor, may avail himself of al

defenses available against the creditor6

Note: The law in certain cases gives to the creditor adirect action, an action by the creditor in his own namebut directed against the name of his debtor6 (!aguioa)?"amples

- action of the lessor directly against the sublessee- action of the laborers of the independent contractoragainst the owner- action of the vendor a retro against the transferees othe property made by the vendee- action of the creditor to utili%e the defense oprescription although waived by the debtor either tacitlyor e"pressly6

#) to as for the rescission of the contracts madeb! the debtor in fraud of their rights

to impugn all of the acts which the debtor may

have done to defraud the creditor accion pauliana or action to declare absolutesimulation of transfer

24?6g6 action to establish the debtorCs status as a legitimateillegitimatechild, action for legal separation or annulment of marriage25?6g6 right to a government gratuity or pension2#?6g6 right to revo'e a donation by reason of ingratitude, right todemand the e"clusion of an unworthy heir

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Note:5ccion subrogatoria and accion pauliana are'nown as acts of preserving the patrimony of thedebtor since the guaranty of the obligation with thepatrimony of the debtor may be rendered uselesssimply by omission or inaction on the part of thedebtor by failing to collect his credits or by positiveacts, such as by fraudulently transferring hisproperty to other persons6 (!aguioa)

Rescissor! action )action "auliana-

a remedy granted by law to creditors who cannot inany other way recover their credit to impugn (rescindthe acts which the debtor may have done to defraudthem (!aguioa)

refers to the right available to the creditor by virtue owhich he can secure the rescission of any act of thedebtor which is in fraud and to the prejudice of his rightsas a creditor6 (&urado)

c$aracter: subsidiar!

"rinci"le fro# &$ic$ itFs based: the property of thedebtor, whether present or future, stands as a guarantyfor the payment of the obligation or credit

can only be availed of in the absence of any otherlegal remedy to obtain reparation for the injury6

re(uisites:

There e"ists a credit in favor of the plaintiff

The debtor has performed an act or contracsubseuently which is beneficial to a thirdperson giving him an economic advantage

The creditor is prejudiced by the disposition infavor of the third person and that the rescission

of the same would benefit the creditor The creditor has no other legal remedy to obtain

payment of his credit

The act impugned is fraudulent although saidfraudulent intent may be presumed in certaincases

The one who acuired the property was incomplicity with the fraudulent intent or bad faithof the debtor6

effects: The fraudulent transaction is rescinded and

conseuently it obliges him who has acuired thething to return the same

If the third person who acuired acted in bad faiththat is, the 'nowledge of the fraud, and he cannoreturn for any reason the things alienated, as foe"ample, when the same are in the hands legallyof third persons who did not act in bad faith, he isobliged to indemnify the creditors for the damagewhich the alienation may have caused them6

The action can only lie as far as the credit of the

plaintiff-creditor and conseuently only thosealienations necessary to satisfy his credit6

7istinctions bet&een subrogator! and rescissor!actions

Rescissor! ubrogator!The credit must e"istbefore the fraudulentact6

The credit need not e"isbefore the action6

In onerous contracts,fraudulent intent isnecessary although thesame may bepresumed6

Jalice or fraudulent intent onthe part of the debtor is nonecessary6

Just be brought within Las no prescriptive period

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9 yrs from discovery

$ction to declare absolute simulation of transfer

a remedy available on the part of the creditoragainst the debtor who, 'nowing that he cannot payhis debt, or not wishing to pay his debt and notwishing his property to answer for the debt, willsimulate a fictitious transfer to a third person in orderto have the property beyond the reach of the

creditors6

7istinctions bet&een rescissor! action andaction to declare absolute si#ulation of transfer

Rescissor! Action Action to declareine4istent a fictitioustransfer of "ro"ert!)absolute si#ulation-

The alienation by thedebtor is real and notfictitious

The alienation is fictitiousand apparent

=raud actual orpresumed must e"ist6

Not necessary

5ction is subsidiary 5ction is principal

. ubect to t$e la&s' all rig$ts ac(uired inirtue of an obligation are trans#issible' if t$ere $asbeen no sti"ulation to t$e contrar!. )1112-

0eneral rule:

Oblicon Chapter+2

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Transcript of Oblicon Chapter+2