Chapter 2

Nature and Effect of Obligation

Art. 1163. Every person obliged to give something
is also obliged to take care of it with the proper
diligence of a good father of a family, unless the
law or the stipulation of the parties requires
another standard of care.

This Article deals with the first effect

of an obligation to deliver a
determinate thing (as distinguished from
a generic thing or one of a class)
namely the duty to exercise proper
diligence. Unless diligence is exercised,
there is a danger that the property would be
lost or destroyed, thus rendering illusory
the obligation.

A thing is said to be Specific or Determinate

particularly designated or physically segregated of
the same class.
Ex.
The watch I am wearing
The car sold by X
My dog named terror,
The money I gave you

A thing is Generic or Indeterminate when it

refers only to a class or genus to which it pertains
and cannot be pointed out with particularity.

Ex.

A police dog
A cavan of rice

Specific thing
Identifies by its
individuality.
The debtor cannot
substitute it with
another although the
latter is of the same
kind and quality
without the consent
of the creditor.

Generic thing
Identified ONLY by
its
specie.
The
debtor
can
give
anything of the same
class as long as it is
of the same kind.

extraordinary diligence) said law or

stipulation must prevail.
Diligence Needed
(a) That which is required by the nature of the
obligation and corresponds with the circumstances of
person, time, and place. (Art. 1173, Civil Code). This is
really diligence of a good father of a family.

(b) However, if the law or contract provides for a

different standard of care, said law or stipulation must
prevail. (Art. 1163, Civil Code).
[Example of a case where the law requires extraordinary care
(not merely that of a prudent man):
A common carrier is bound to carry the passengers safely as
far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with a due regard
for all the circumstances. (Art. 1755, Civil Code).]

The parties may agree upon diligence which is

more or less than that of a good father of a
family but it is contrary to public policy to
stipulate for absolute exemption from liability
of the obligor for any fault or negligence on is
part.
c. Factors to be considered
The diligence required necessarily
depends upon the nature of the
obligation and corresponds with the
circumstances of the person, of the
time, and of the place.
It is not necessarily the standard of
care one always uses in the
protection of his property.
General rule:
The debtor is not liable if his failure
to preserve the thing is not due to
his fault or negligence but to
fortuitous events or force majeure.

1. Preserve the thing

In obligation to give (real obligation),
the obligor has the incidental duty to
take care of the thing due with the
diligence of a good father of a family
pending delivery.

d. Reason for debtors obligation.

The debtor must exercise diligence
to insure that the thing to be
delivered would subsist in the same
condition as it was when the
obligation was contracted. Without
the accessory duty to take care of
the thing, the debtor would be afford
being negligent and he would not be
liable even if the property is lost or
destroyed thus rendering illusionary
the obligation to give.

a. Diligence of a good father of a

family ORDINARY CARE
Diligence which an average (reasonably
prudent) person exercise over his own
property.

2. Deliver the fruits of the thing

3. Deliver
the
accession
s
and
accessories
4. Deliver the thing itself
5. Answer for damages in case of nonfulfillment or breach

b. Another standard of care

If the law or the stipulation of the
parties
provides
for
another
standard
of
care
(slight
of

Duties of debtor in obligation to deliver a

generic thing:

Duties of a debtor in Obligation to give a

determinate thing:

1. Deliver a thing which is of the

quality intended by the parties
taking
into
consideration
the
purpose of the obligation and other
circumstances.

done by:

2. To be liable for damages in case of

fraud, negligence or delay, in the
performance of his obligation, or
contravention of the tenor thereof.

2) traditio longa manu (delivery by mere consent

or the pointing out of the object)
(Etymologically, the extending of the hand.)

Art. 1164. The creditor has a right to the fruits of

the thing from the time the obligation to deliver it
arises. However, he shall acquire no real right over
it until the same has been delivered to him.

1) traditio simbolica (symbolical tradition) (as

when
the keys of a bodega are given)

Example: pointing out the car, which is the object of the sale.

3) traditio brevi manu (delivery by the short

hand;
that kind of delivery whereby a possessor of a
thing not as an owner, becomes the possessor
as owner)

When Creditor Is Entitled to the Fruits

Example: A is obliged to give B on Dec. 3, 2004,
a particular
parcel of land. (Before Dec. 3, he has no right
whatsoever over the fruits). After Dec. 3, 2004,
B, the creditor is entitled (as of right) to the
fruits. But if the fruits and the land are actually
or constructively delivered only on Dec. 15,
2004, B becomes owner of said fruits and land
only from said date. Between Dec. 3 and Dec.
15, B had only a personal right (enforceable
against A); after Dec. 15, he has a real right
(over the properties), a right that is enforceable
against the whole world.

Personal right
A personal right is
also called jus in
personam or
jus ad rem
A personal right is
power demandable by
one person of another
to give, to do, or
not to do

Real Right
a real right is a jus in
re

a real right is a power

over a specific thing
(like the
right of ownership or
possession) and is
binding on the whole
world

NOTE: In the case of a purchase of land, for example,

before the land is delivered, the proper remedy of the buyer
(since he is not yet the owner) is to compel specifi c
performance and delivery, and not an accion reinvindicatoria
(for the latter remedy presupposes ownership).

Latin Maxim (Re Delivery and Ownership)

Non nudis pactis, sed traditionis dominia rerym
transferantur. (As a consequence of certain
contracts, it is not agreement but tradition or
delivery that transfers ownership).
Kinds of Delivery
Delivery may be either actual or constructive.
(a) Actual delivery (or tradition) where
physically, the
property changes hands.
Example: If A sells B a fountain pen, the giving by A to B of
the fountain pen is actual tradition.

(b) Constructive delivery that where the

physical transfer is implied. This may be

(Example: when a tenant already in possession buys the

house he is renting).

4) traditio constitutum possessorium the

opposite of brevi manu; thus, the delivery
whereby a possessor of a thing as an owner,
retains possession no longer as an owner, but in
some other capacity (like a house owner, who
sells a house, but remains in possession as
tenant of the same house).
5) tradition by the execution of legal forms and
solemnities
(like the execution of a public instrument selling
land).

[NOTE: A sale which is simulated, or even a genuine one,

where there is no delivery of the object, does not transfer
ownership.]

Delivery of Ideal Share

When by virtue of a court judgment, a person is
ordered
to deliver to another the possession of a pro
indiviso or ideal
share of property, owned in common, it is
understood that what is contemplated is
symbolical or constructive delivery, not material
or actual delivery.
When Does the Obligation to Deliver Arise?
ANS.: It depends:
(a) If there is no term or condition, then from the
perfection
of the contract.
(b) If there is a term or a condition, then from
the moment
the term arrives or the condition happens. (See
8 Manresa
44-45).

Different kinds of Fruits.

1. Natural Fruits-Spontaneous products
of the soil, and the young and other
products of animals.
Ex. Grass, all trees and plants on lands produced without
the intervention of human behavior.

2. Industrial fruits- are those products by

land of any kind through cultivation or labor
Ex.
Sugar cane, vegetables, rice and all the products of lands
brought about by reason of human labor.

3. Civil fruits-are those derived by virtue

of a juridical relation.
Ex.
Rents of buildings, price of leases of lands and other
property and the amount of perpetual or life annuities or
other similar income.

Right of the creditor to the fruits:

The creditor is entitled to the fruits of the
thing to be delivered from the time the
obligation to make delivery arises.
-to protect the interest of the obligee should the obligor commit
delay, purposely or otherwise in the fulfillment of his obligation.

When obligation to deliver fruits arises.

1. The obligation to deliver the thing due
and consequently, the fruits thereof, if
any, arises from the time of the
perfection of the contract.
Perfection-the birth of the contract or to the
meeting of the minds between the parties
(Arts. 1305, 1315, 1319)

Binding
or
enforceable
only
against a particular
person.

Directed against the

whole world.

Ownership acquired by delivery

Ownership and other real rights over
property are acquired and transmitted in
consequence if certain contracts by
tradition or delivery.
Ex.

In sale, mere agreement on the term thereof does not effect

transfer of ownership of the thing sold in the absence of
delivery, actual or contractive, of the thing.

Meaning:
He shall acquire no real right over it
until the same has been delivered to
him

-the creditor does not become the owner until the specific thing
has been delivered to him. Hence, when there has been no
delivery yet, the proper court action of the creditor is not one
for recovery of possession and ownership but one for specific
performance or recession of the obligation.

Art. 1165. When what is to be delivered is a

determinate thing, the creditor, in addition to the
right granted him by Article 1170, may compel the
debtor to make the delivery.

2. If the obligation is subject to suspensive

condition or period, it arises upon the
fulfillment of the condition or arrival
of the term.

If the thing is indeterminate or generic, he may

ask
that the obligation be complied with at the
expense of the debtor.

However, the parties may make a

stipulation to the contrary as regards the
right of the creditor to the fruits of the
thing.

If the obligor delays, or has promised to deliver

the samething to two or more persons who do not
have the same interest, he shall be responsible for
fortuitous event until he has effected the delivery.

3. In a contract of sale, the obligation

arises from the perfection of the
contract even if the obligation is subject
to a suspensive condition or a suspensive
period where the price has been paid.
In a contract of sale all the fruits shall pertain to the
vendee from the day on which the contract was
perfected
-----

Personal right- is the right or power of a

person (creditor) to demand from another
(debtor), as a definite passive subject, the
fulfillment of the latters obligation to give, to
do, or not to do.
Real Right-is the right or interest of a person
over a specific thing (like ownership,
possession, mortgage), without a definite
passive subject against whom the right may
be personally enforced.
Personal right
There is a definite
active subject and a
definite
passive
subject.

Real Right
There is only a
definite
active
subject without any
definite
passive
subject.

Classification of Obligation from the

Viewpoint of Subject Matter
From the viewpoint of the subject matter (or
object) of the
obligation, obligations are divided into:
(a) real obligations (to give):
1) to give a specific thing (set apart from a
class);
2) to give a generic or indeterminate thing (one
of a
class).
(b) personal obligations (to do or not to
do).
Specific or Determinate Things
A thing is said to be specific or determinate
when it is capable of particular designation.
Examples:
(a) this car
(b) the car owned by A on Sept. 12, 2005
(c) the car with plate number 1814 (2005)
(d) this particular picture of Maui in my notebook

Generic or Indeterminate Things

A thing is generic or indeterminate when it refers
only to a class, to a genus, and cannot be
pointed out with particularity.

Examples:
(a) a car
(b) a 2005 BMW automobile
(c) the sum of P5 million
(d) a kilo of sugar

Remedies of the Creditor When the Debtor

Fails to Comply With His Obligation
(a) Demand specific performance (or
compliance) of the obligation.
(This is true whether the obligation be generic or
specific.)
(b) Demand rescission or cancellation (in some
cases).
(c) Demand damages either with or without
either of the first
two, (a) or (b).
(NOTE: If I am entitled to 10 kilos of sugar from A, I can
demand that A obtain the sugar and give me 10 kilos thereof.
This is true even if the obligation here be generic. A cannot
insist on just paying me damages or the monetary value of
the sugar. Upon the other hand, if I desire to, I can just buy
10 kilos of sugar anywhere and charge the expense to A.).
If a partner in a construction enterprise fails to fulfill his
commitments to the partnership, he is required to indemnify
his co-partner for the latters losses, such as the money
invested or spent by the latter.

Effect of Fortuitous Events

Another important difference between a generic
and a
specific obligation is that, a specific
obligation, that is, an obligation to deliver
a specific thing, is, as a rule, extinguished
by a fortuitous event or act of God. Upon
the other hand, generic obligations are
never extinguished by fortuitous events.
Examples:
(a) A is obliged to give B this car. Before delivery, an
earthquake destroys completely the car. The obligation to
deliver is extinguished.
(b) A is obliged to give B a book. Since this is a generic thing,
even if one particular book is lost, other books may take its
place. Hence, the obligation is not extinguished (genus
nunquam perit).

Two Instances Where a Fortuitous Event

Does Not Exempt
The 3rd paragraph of Art. 1165 gives two
instances when
a fortuitous event does not excuse compliance:
(a) If the obligor delays (This is really default
or mora.)
(b) if the obligor is guilty of BAD FAITH (for
having promised to deliver the same thing to
two or more persons who do not have the same
interest as when one is not the agent merely
of the other)
(8) Ordinary Delay Distinguished from
Default
Ordinary delay is different from legal delay
(default). The
first is merely non-performance at the stipulated
time; default
is that delay which amounts to a virtual
nonfulfillment of the

obligation. (As a rule, to put a debtor in default,

there must be
a demand for fulfillment, the demand being
either judicial or
extrajudicial.)
Examples
(a) A is obliged to give B his Jaguar car on Dec.
7, 2005. If on
said day, A does not deliver, he is in ordinary
delay (not
default). If on Dec. 8, 2005, an earthquake
destroys the
Jaguar car, A is not liable because the obligation
is extinguished.
(b) If, however, on Dec. 8, demand was made for
delivery, A
would be in legal delay (default) and if later, the
car is
destroyed by a fortuitous event, he would still be
liable
(in that the obligation to deliver the lost specific
thing is
converted into a monetary claim for damages).
(See Art.
1165, Civil Code). However, if the car would
have been
destroyed at any rate even if no demand had
been made,
the amount of damage would be reduced. (Art.
2215, No.
4, Civil Code).

De Leon:
Remedies of Creditor in Real Obligation
1. In a SPECIFIC OBLIGATION (obligation to
deliver a determinate thing), the creditor may
exercise the following remedies or rights in case
the debtor fails to comply with his obligation:
a. Demand
specific
performance
or
fulfillment (if it is still possible) of the
obligation with a right to indemnity for
damages; or
b. Demand rescission or cancellation ( in
certain cases) of the obligation also with a
right to recover damages
c. Demand payment of damages only, where it
is the only feasible remedy.
In an obligation to deliver a determinate thing, the very
nature itself must be delivered. (Art. 1244) Consequently,
only the debtor can comply with the obligation. This is the
reason why the creditor is granted the right to compel the
debtor to make the delivery.
It should be clear, however, that the law does not mean
that the creditor can use force or violence upon the debtor.
The creditor must bring the matter to court and the court
will be the one to order the delivery.

2. A Generic Obligation (obligation to deliver a

generic thing), on the other hand, can be
performed by a third person since the object is
expressed only according to its family or genus. It
is, thus, not necessary for the creditor to compel
the debtor to make the deliver, although he may
ask for performance of the obligation. In any case,
the creditor has the right to recover damages
under article 1170 in case of breach or violation of
the obligation.
The manner of compliance with the obligation to
deliver a generic thing is governed by Article
1246.
Where debtor delays or has promised delivery
to separate creditors.
Paragraph 3 gives two (2) instances when a
fortuitous event does not exempt the debtor from
responsibilities likewise refers to a determinate
thing. An indeterminate thing cannot be the
subject of destruction by a fortuitous event
because gemus nunquam perit (genus never
perishes).

Art. 1166. The obligation to give a determinate

thing includes that of delivering all its accessions
and accessories, even though they may not have
been mentioned.
What the Obligation to Give a Determinate
Thing Includes
Example:
If I am obliged to deliver a particular car, I must
also
give the accessories (like the jack). If I am
obliged to deliver a piece of land, I must give
also the accessions (like a building constructed
thereon). (This is true even if no mention of
them was made in the contract.)
Accessories those joined to or included with
the principal
for the latters better use, perfection, or
enjoyment. (Examples: the keys to a house, the
dishes in a restaurant.)
Accessions additions to or improvements
upon a thing. These include alluvium (soil
gradually deposited by the current of a river on a
river bank) and whatever is built, planted, or
sown on a persons parcel of land.
(NOTE: Even if the windows of a building have
been temporarily removed, they should still be
included.)
Effect of Stipulation
Of course, if there is a stipulation to said effect,
accessions
and accessories do not have to be included.

Accession- are the fruits of a thing or additions to

improvements upon a thing (the principal)
Examples:

House of trees on a land; rents of a building;

airconditioner in a car; profits of dividends accruing from
shares of stocks, etc.
Accessories-are the things joined to or included with the
principal thing for the latters embellishments, better use,
or completion.
Examples:
Key of a house; frame of a picture; bracelet of a watch;
machinery in a factory; bow of a violin.
o

Accessions are not necessary to the principal

thing, the accessory and the principal thing
must be together. Both can exist only in relation
to the principal. Accession is also used in the
sense of a right, i.e. right to the fruits and /or
accessories of a thing.

Right of creditor to accessories and accessions

General Rule: 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. In order that they will
be excluded, there must be a stipulation to the effect.
Unless otherwise stipulated, an obligation to deliver
the accessions or accessories of a thing does not
include the latter. Thus, a sale of the improvements
(e.g. house) upon a land is not sufficient to convey the
title or any right to the land. But the lease of a
building or house naturally includes the lease of the
lot on which it is constructed for the possession of the
lot implied in the lease of the improvement.

Art. 1167. If a person obliged to do

something fails to do it, the same
shall be executed at his cost.
This 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) Positive Personal Obligations
The first sentence of the Article deals with a
positive personal obligation (TO DO).
(2) Remedies of Creditor if Debtor Fails to
Do
(a) To have the obligation performed (by himself
or by another) at debtors expense (only if
another can do the performance).
(b) Also to obtain damages. (Art. 1170, Civil
Code). (Damages alone cannot substitute for
performance if owners can do it; if purely
personal or special as a painting to be
done by a reputed artist only damages may
be asked,
unless substitution is permitted.)
(NOTE: Specific performance is not a remedy in

personal obligations; otherwise, this may

amount to involuntary servitude, which as a rule
is prohibited under our Constitution.)
[NOTE: A party to an agreement to marry who
backs
out cannot be held liable for the crime of slander
by deed
for then that would be an indirect way of
compelling said
party to go into a marriage without his or her
free consent,
and this would contravene the principle in law
that what
cannot be done directly should NOT be done
indirectly; and
said party therefore has the right to avoid for
himself or
herself the evil of going thru a loveless marriage,
pursuant
to Art. 11, par. 4 of the Revised Penal Code.]
Chavez v. Gonzales
L-27454, Apr. 30, 1970
FACTS: A typewriter owner delivered the same to a
repairman for repairs agreed upon orally. Despite repeated
demands, no work was done thereon. Eventually the
repairman returned the machine, unrepaired and worse,
several parts were missing, thus the description
cannibalized and unrepaired. The owner was then
constrained to have the typewriter repaired in another shop.
Owner now claims damages from the first repairman (for the
cost of the repairs and the cost of the missing parts).
Defendant repairman, however, alleges that owner should
have first filed a petition for the court to fi x the period within
which the job of repairing was to be fi nished.
ISSUES:
(a) Can the defendant be held liable for damages?
(b) How about the failure of the owner to first ask
the court for the fixing of the period?

(a) Yes, the defendant can be held for damages and this
would include the cost of labor and needed materials, as well
as the value of the missing parts. According to Art. 1167
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.
(b) The failure of the owner of the computer notebook to first
ask the court for a fixing of the period within which the
repairs were to be done is of no significance. In view of his
returning of the machine, the time for compliance may be
deemed to have already expired. There is, therefore, no more
period to be fixed, there already being a breach of contract
by non-performance. Said non-performance may be said to
have been impliedly admitted when the notebook was
returned unrepaired and with some of its essential parts
missing.

(3) When a Thing May Be Ordered Undone

(a) if made poorly (Art. 1167) (Here performance
by another
and damages may be demanded).

perform

b. To recover damages
2. In case the obligation is done in
contravention of the terms of the same
or is poorly done, it may be ordered (by
the court upon complaint) that it be
undone if it is still possible to undo what
was done.
Performance by a third person
A personal obligation to do, like a real
obligation to deliver a generic thing,
can be performed by a third person.
While the debtor can be compelled to
make the delivery of a specific thing, a
specific performance cannot be ordered in
a personal obligation to do because this
may amount to involuntary servitude
which, as a rule, is prohibited under our
constitution (Article III, sec 18)
The personal qualifications of the
debtor are the determining motive for
the obligation contracted
i.e. to sing in a night club
The performance of the same by another
would be impossible or would result to be
different that the obligation could not be
considered performed. Hence, the only
feasible remedy of the creditor is
indemnification for damages.
-But where the obligation cam still be
performed at the expense of the debtor
notwithstanding his failure or refusal to do
so, the court is not authorized to merely
grant damages to the creditor.

Negative Personal Obligations

(a) This Article refers to a negative personal
obligation.

Situations contemplated in this article.

This article refers to an OBLIGATION TO DO
i.e. to perform an act or render a service.
It contemplates 3 situations:
to

Remedies of creditor in positive personal

obligation.
1. If the debtor fails to comply with his
obligation to do, the creditor has the
right:
a. To have the obligation performed by
himself to or by another, unless
personal consideration are involved
at the debtors expense;

Art. 1168. When the obligation

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

(b) if the obligation is a negative one (provided

the undoing is possible).

1. The debtor fails

obligation to do;

2. The debtor performs an obligation to do

but contrary to the terms thereof
3. The debtor performs an obligation to do
but in poor manner.

an

(b) As a rule, the remedy is the undoing of the

prohibited thing plus damages. (See Art. 1170,
Civil Code).

Remedies
of
creditor
personal obligation

in

negative

In an obligation not to do, the duty of the

obligor is to abstain from an act. There is no
specific performance. The very obligation if
fulfilled in not doing what is forbidden. Hence,
in this kind of obligation the debtor cannot be
guilty of delay.
As a rule, the remedy of the obligee is
the undoing of the forbidden thing plus
damages.
However, if it is not possible to undo what
was done, either physically or legally, or
because of the rights acquired by third
persons who acted in good faith, or for
some other reason, his remedy is an action
for damages caused by the debtors
violation of his obligation.

Art. 1169. Those obliged to deliver or to do

something incur in delay from the time the obligee
judicially or extrajudicially demands from them
the fulfillment 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 acontrolling 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 fulfills his obligation, delay by the other
begins.
Default or Mora
Although Art. 1169 uses the words in delay,
these should
be translated to mean default (MORA).
Necessity in General of Demand
To put a debtor in default, as a rule, DEMAND is
needed.
The demand may be judicial, as when a
complaint for specific performance is filed; or
extrajudicial, without court proceedings.

When Demand Is Not Needed to Put Debtor

in Default
(a) When the law so provides. (Example: Taxes
should be paid within a definite period,
otherwise penalties are imposed
without need of demand for payment.)
(b) When the obligation expressly so provides.
[NOTE: The mere fixing of the period is not
enough;
there must be a provision that if payment is not
made
when due, default or liability for damages or
interests
automatically arises.
(c) When time is of the essence of the contract
(or when the
fixing of the time was the controlling motive for
the establishment of the contract).
Examples: The making of a wedding dress, if the wedding is
scheduled at the time the dress is due; agricultural contracts
where implements are needed at a particular time; the
selling of land with payment at specified time, so
that the seller could pay off certain debts that were due on
said date; money needed to finance mining installations if
said installations had to be made on a certain date.

[NOTE: It is not essential for the contract to

categorically
state that time is of the essence; the intent is
suffi cient as long as this is implied. ]
(d) When demand would be useless, as when the
obligor has
rendered it beyond his power to perform.
(Examples: When
before the maturity, the seller has disposed of it
in favor
of another, or has destroyed the subject matter,
or is hiding.)
(e) When the obligor has expressly
acknowledged that he really is in default (But it
should be noted that his mere asking for
extension of time is not an express
acknowledgment of the existence of default on
his part).
(4) Different Kinds of Mora
(a) mora solvendi (default on the part of the
debtor)
1) mora solvendi ex re (debtors default in real
obligations)
2) mora solvendi ex persona (debtors default in
personal
obligations)
(b) mora accipiendi (default on the part of the
creditor)
(c) compensatio morae (when in a reciprocal
obligation both
parties are in default; here it is as if neither is in
default).
Mora Solvendi

(a) There is no mora solvendi in negative

obligations (one cannot be late in not doing or
giving).
(b) There is no mora in natural obligations.
(c) Requisites for mora solvendi:
1) The obligation must be due, enforceable, and
already
liquidated or determinate in amount. (TS, Mar.
15,
1926).
2) There must be non-performance.
3) There must be a demand, unless the demand
is not
required (as already discussed). (When demand
is
needed, proof of it must be shown by the
creditor).
[NOTE: A mere reminder, like This is to remind you that
your next installment falls due on Jan. 7, 2005, is not a
demand because for all that we know, lateness may still be
tolerated by the creditor.]

4) The demand must be for the obligation that is

due
(and not for another obligation, nor one with a
bigger amount, except in certain instances,
considering all the circumstances).
(d) Effects of Mora Solvendi
1) If the debtor is in default, he may be liable for
interest
or damages.
2) He may also have to bear the risk of loss.
(In both cases, it is, however, essential that his
being in default is attributable to his own fault.)
3) He is liable even for a fortuitous event (Art.
1165, Civil
Code), although damages here may be
mitigated if he can prove that even if he had not
been in default, loss would have occurred just
the same. (Art. 2215, Civil Code).
(e) In a purchase by installments, the contract
may provide
for an acceleration clause (a clause which
would make all
installments due, upon default in one
installment).
Default in the payment of one installment does
not mean default in the whole amount. If there is
an acceleration clause, all that happens will be
that the whole amount becomes due.
And demand is still needed to put the debtor in
default.
Mora Accipiendi
(a) The creditor is guilty of default when he
unjustifiably
refuses to accept payment or performance at the
time said
payment or performance can be done. Some
justifi able
reasons for refusal to accept may be that the

payor has no
legal capacity or that there is an offer to pay an
obligation
other than what has been agreed upon.
(b) If an obligation arises ex delicto (as the result
of a crime),
the debtor-criminal is responsible for loss, even
though this be through a fortuitous event, unless
the creditor is in mora accipiendi. The law says:
When the debt of a thing certain and
determinate
proceeds from a criminal offense, the debtor
shall not be
exempted from 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 should receive it, the
latter refused without justifi cation to accept it.
(Art. 1268, Civil
Code).
[NOTE: What should the criminal do if the creditor
is in mora accipiendi?
ANS.: He must either:
1) consign it in court (expenses chargeable to creditor);
2) or keep it himself (here he should still exercise diligence
and care, but this time, he would not be liable for loss due to
a fortuitous event).
(Loss thru robbery with violence is a fortuitous event
provided that the violence or intimidation was irresistible or
grave.)]

(c) The improper refusal of the lessor (creditor)

to accept the
rents tendered by the lessee places said lessor
in default
(mora) and he must shoulder the subsequent
accidental loss
of the premises leased. The mora accipiendi of
said lessor
is not cured by the lessees failure to make
consignation of
the rejected payments, but the lessee remains
obligated
to pay the amounts he had tendered but did not
deposit
in court.
(7) Reciprocal Obligations
(a) Reciprocal obligations depend upon each
other for performance.
(Example: In a sale the buyer must PAY, and the
seller must DELIVER.)
(b) Here performance may be set on different

dates.
[Example delivery on Dec. 9, 2005; and payment on Dec.
13, 2005. To put the seller in default, demand as a rule must
be made. Delivery, upon the other hand, does not put the
buyer in default, till after demand, unless demand is not
required. This is because, in the example given, different
periods for performance were given.]

(c) If the performance is not set on different

dates, either by
the law, contract, or custom, it is understood
that performance must be simultaneous. Hence,
one party cannot
demand performance by the other, if the former
himself
cannot perform. And when neither has
performed, there
is compensatio morae (default on the part of
both; so it is
as if no one is in default). If one party performs,
and the other does not, the latter would be in
default.
Mariano Rodriguez, et al. v. Porfirio
Belgica, et al.
L-10801, Feb. 28, 1961
FACTS: Rodriguez and Belgica were co-owners of land in the
proportion of 86% and 14%, respectively. Belgicaowed
Rodriguez P30,000. To enable Belgica to pay it, it was
mutually agreed that Rodriguez would grant authority to
Belgica to sell or mortgage within 70 days 36% of the land,
so that Belgica would be able to raise the money for
payment of the loan. Issue: From what time should the 70day period begin to run?
HELD: The period commences from the time Rodriguez
grants said authority to Belgica. For this partakes of a
reciprocal obligation the granting of the authority and the
payment of the loan. Without such authority, it was diffi cult,
if not impossible, for Belgica to obtain the
needed P30,000. This was because he owned only 14% of
the land.

When Damages or Interest May Be Lost

A creditor entitled to damages or interest
because of MORA
may lose the same
(a) If the principal obligation is allowed to lapse
by prescription;
(b) If the damages or interest are allowed to
prescribe;
(c) If the damages or interest are condoned
(waived or remitted).
Some Decided Cases
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