3- Oblicon Nature and Effect Flashcards
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.
Art 1163
the exact things that both parties have agreed. Debtor cannot substitute to another without the consent of the creditor. The duties of debtor is to take care of the thing with ordinary care to preserve the things. As general rule the debtor is not liable if his failure to preserve things is due to his negligence but to fortuitous events! Accidental event.
Specific things or determinate things
Particularly designated or physically segregated from all others of the
same class [Art. 1460, Civil Code]; _____________________
Identified by individuality
True or false:
specific things cannot be substituted against the obligee’s will, although the thing may be of the same value as, or more valuable than that which is due [Art.
1244, Civil Code]
True
identified by its specie. The debtor can give anything
to creditor as long as the same kind. The duties of debtor is to deliver a things which the
quality by the parties taking into consideration the purpose of the obligation and
either circumstances. Creditor cannot compel to debtor a high quality to deliver and vice
versa.
Generic things or indeterminate thing
designated only by its class, genus, or species
Object
True of false
Specific things, can be substituted by any of the same class and same kind
False, generic things or indeterminate thing.
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.
Art. 1164
Different kinds of fruits:
- Natural fruits
- Industrial fruits
- Civil fruits
the product of the soil and other product of animal (ex. Grass, trees without the intervention of human labor)
Natural fruits
are the produced by land through the human labor (ex. Sugarcane, corn,
vegetables and rice
Industrial fruits
are those by virtue of a juridical relation (ex. Rents of buildings, price of leases
of lands)
Civil fruits
Two Rights of a Person:
Personal Right
Real Right
is the right/power of a creditor to demand from debtor, a definite passive subject, the fulfillment of the latter’s obligation to give, to do, or not to do.
- Binding or enforceable only against a particular person.
Personal right
the right or the interest of a person over a specific things without definite passive subject against whom the rights may be personally enforced. (Ex. ownership, possession, mortgage)
✓The ownership acquire by delivery, the creditor is not the owner of a specific things until the delivery has been delivered to him.
✓Example of real rights: X is the owner of a parcel of land under Torrens title registered in his name in the Registry of Property. His ownership is a real right directed against everybody. There is no definite passive subject.
Real rights
when what is to be delivered is a determinate thing, the
creditor, in addition to the right granted him by Art. 1170 may compel the
debtor to make the delivery.
If the thing is inderteminate or generic; he may ask that the obligation be
complied with at the expense of the debtor.
If the obligor delays, or has promised to deliver the same thing 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
Art 1165
Remedies of Creditor in real obligations:
Specific Real Obligation
Generic Real Obligation
the creditor may exercise the following rights in case the debtor fails to comply his obligation.
✓ Demand specific performance or fulfillment (if its still possible) of the obligation with a right to indemnity for damages; or
✓ Demand recission or cancellation (in certain cases) of the obligation also with a right to recover damages (Art. 1170)
✓ Demand payment of damages only, where it is the only feasible remedy
Specific real obligation
can be performed by a third person since the object is expressed only according to its family or genus. It is thus, necessary for the creditor to compel the debtor to make the delivery, although he may ask for performance of the obligation.
Generic Real Obligation
The obligation to give a determinate thing includes that of delivering all its accessions and accessories, even though they may not have been mentioned
Art. 1166
are the fruits of a thing or additions to or improvements upon a thing (the principal) Ex. House or trees on a land, rents of a building, air conditioner in a car, profits or dividends accruing from shares of stocks, etc.
Accession
are things joined to or included with the principal things for the latter’s embellishment, better use. (key of a car, frame of a picture, machinery in a factory)
Accessories
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.
Art 1167
Remedies of creditor in positive personal obligations:
- If the debtor fails to comply with his obligations performed by himself, or by another,
unless personal considerations are involved at the debtor’s expense. - If the obligation is done in violation or poorly done, it may be ordered that it be undone it
is still possible to undo what was done. - Performance of a third person. If the debtor fails to comply with his obligations the
creditor may ask third person to do what the debtor cannot 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.
Art. 1168
Remedies of Creditor in negative personal obligation:
✓The remedy of the obligee is the undoing of forbidden things plus damages (Art. 117)
✓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 reason, his remedy is an action for damages caused by the debtor’s violation of his obligation.
Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extra judicially demands from them the fulfillment of their obligations.
Art. 1169
the situation in which something happen later than it should.
Delay
merely the failure to perform an obligation on time.
Ordinary delay
the failure to perform an obligation on time
on which failure constitutes a breach of the obligation.
Legal delay or default
However, the demand by the creditor shall not be necessary in order that delay may exist:
in reciprocal obligations, neither party incurs 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 party begins.
- When the obligation of the law expressly so declares; or
- 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 - When the demand would be useless, as when the obligor has rendered it beyond
his power to perform.
Kinds of Delay / default:
Moral solvendi
Mora accipiendi
Compensation morea
the delay on the part of the debtor to fulfill his
obligation. (to give or to do);
Moral solvendi
the delay on the part of the creditor to accept the
performance of the obligation
Moral accipiendi
the delay of the obligors in reciprocal obligations.
The delay of the obligor cancels the delay of the obligee and vice versa.
The net result is that there is no actionable default on the part of both
parties.
Compensation morea
Requisites of delay by the debtor:
- Failure of the debtor to perform his obligation on the date agreed.
- Demand made by the creditor upon the debtor to comply with his obligation which demand be either judicial or extra judicial.
- Failure of the debtor to comply with such demand. When demand is not necessary to put debtor in delay.
- Delay by the debtor begins only from the moment a demand, judicial or extra judicial for the fulfillment of the obligation is made by the creditor.
Mora solvendi the following are the effects:
a. The debtor is guilty of breach or violation of the obligation
b. He is liable to the creditor for interest (in case of obligations to
pay money) or damages (in other obligations). In the absence of
extra judicial demand, the interest shall commence from the
filing of the complaint; and
c. He is liable even for fortuitous event when the obligation is do
deliver a determinate thing. (Art. 1165, Art. 1170). However, if the
debtor can prove that the loss would have resulted just the
same even if he had not been in default, the court may equitably
mitigate or reduce the damages.
Mora accipiendi the following are the effects:
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 the time of the creditor’s delay;
e. The debtor may release himself from the obligation by the
consignation or deposit in court of the thing or sum due.
—-the delay of the obligor cancels the delay of the obligee and vice versa. Legally speaking, there is no default or delay in the part of both parties
- 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 (Art. 1192) (p. 49-51)
Compensation morae
Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor thereof, are
liable for damages.
Art. 1170
Grounds for Liability:
Fraud (Deceit or dolo)
Negligence (Fault or culpa)
Delay or (mora)
Contravention of the terms of the obligations
deliberate or intentional evasion of the normal fulfillment of an
obligation. As a ground for damages, it implies some kind of malice or dishonesty and
it cannot cover cases of mere mistake and errors of judgment made in good faith. It is
synonymous to bad faith in that it involves a design to mislead or deceive another.
Fraud (Deceit or dolo)
It is voluntary act or omission, there being
no bad faith or malice which prevent the normal fulfillment of an obligation.
It is the failure to exercise that degree of care required by the circumstance.
Negligence (Fault or culpa)
discussed already under 1169
Delay or mora
This is the violation of
the terms and conditions stipulated in the obligation without justifiable
excuse or reason. The contravention must not be due to a fortuitous event
or force majeure (Art. 1174)
Contravention of terms of the obligations
Responsibility arising from fraud is demandable in all obligations.
Any waiver of an action for future fraud is void.
Art. 1171
This provision refers to incidental fraud which is employed in the fulfillment of an
obligation. With respect to all kinds of obligations the court is not given the power
to mitigate or reduce the damages to be awarded. This is because fraud is deemed
serious and evil that it employed to avoid the fulfillment of one’s obligation should
discouraged.
Responsibility arising from fraud demandable
_______________________ as being against the
law and public policy. Note: a contrary rule would encourage the perpetration of fraud
because the obligor knows that even if the should commit fraud, he would not be liable for
it, thus making the obligation illusory (sham, not real)
A waiver of an action for future void (no effect as if there is no waiver)
✓ a past fraud can be the subject of a valid waiver because the waiver can be considered as
an act of generosity and magnanimity on the party who is the victim of the fraud.
✓ The waiver must be expressed in clear language which leaves no doubt as to the intention
of the obligee to give up his right against the obligor.
Waive or action for past fraud valid
Responsibility arising from negligence in the performance of
every kind of obligation is also demandable, but such liability may be regulated by the courts, according to circumstances.
Art. 1172
✓The court may increase or decrease the damages recoverable.
✓When both parties to a contract are negligent in the performance of their
respective obligations, the fault of one may cancel the negligence of the
others.
Responsibility arising from negligence demandable
✓An action for future negligence may be renounced except where the
nature of the obligation requires the exercise of extraordinary diligence
as in the case of common carriers.
✓Where negligence shows bad faith it is considered equivalent to fraud
Validity of waiver of action from negligence
Kinds of negligence according to source of obligation:
Contractual negligence (culpa contractual)
Civil negligence (culpa aquillana)
Criminal negligence (culpa criminal)
This kind of negligence is not a source of obligation. It merely
makes the debtor liable liable for damages in view of his negligence in the fulfillment of pre-existing
obligation.
Contractual negligence (culpa contractual) or negligence in contracts resulting
in their breach.
negligence which by itself is the source of an
obligation between the parties not so related before by any pre-existing
contract. It is called tort of quasi-delict
Civil negligence (culpa aquillana)
negligence resulting in the commission
of crimes.
Criminal negligence (culpa criminal)
The fault of negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with
the circumstances of the person, of the time and of the place. When negligence
shows bad faith, the provisions of Articles 1171 and 2201 paragraph 2, shall apply.
Art. 1173
the failure to observe for the protection of the interest of
another person
fault or negligence
Factors to be considered:
- Nature of the obligation
- Circumstances of the person
- Circumstances of time
- Circumstances of place.
The damage for which the obligor who acted in good faith is liable shall be
those that are the natural and probable consequences of the breach of
the obligation and which the parties have foreseen or could have foreseen
at the time the obligation was constituted.
Measure of liability for damage
is the attention and care required of person in a given situation.
Whether or not the negligence of the obligor is excusable on the degree of
diligence required of them.
Diligence
Kinds of diligence required:
- That agreed upon by the parties (verbal/written)
- In the absence of stipulation, that required by law in the particular cases.
- If both the contract and law are silent, then the diligence expected of a
good father of a family.
Except in cases expressly specified by the law or when it is
otherwise declared by stipulation, or when the nature of obligation
requires the assumption of risk, no person shall be responsible for
those events which could not be foreseen or which though
foreseen, were inevitable.
Art. 1174
event which could not be foreseen or which though
foreseen, where inevitable
✓It is an event which is either impossible to foresee or impossible to
avoid.
✓The Essence of a fortuitous event consist of being a happening
independent of the will of the debtor and which happening makes the
normal fulfillment of the obligation impossible.
Fortuitous event
is an event independent of the will of the obligor
but not of other human wills.
Acts of man
those events which are totally independent will of
every human being. Also called force majeure.
Acts of God
Kinds of fortuitous event
1. _____________- those events which are common
2. ________________ - those events are uncommon
and which contracting parties could not have reasonably
foreseen.
Ordinary fortuitous event
Extra ordinary fortuitous events
Requisites of fortuitous event:
- The events must be independent of the human will and at least of the
debtor’s will - The event could not have been foreseen or if foreseen it is inevitable
- The events must be of such a character as to render it impossible for
the debtor to comply with his obligation in a normal manner - The debtor must be free from any participation or the aggravation of,
the injury to the creditor that is there is no concurrent negligence on
his part.
ARTICLE
Rules to liability in case of fortuitous events:
- When expressly specified by law the debtor is guilty of fraud,
negligence or delay or contravention of the tenor of the
obligation the debtor has promised to deliver the same things to
two or more persons who do not have the same interest. The
obligation to deliver a specific things arises. - When declared by stipulation.
- When the nature of the obligation requires the assumption of
risk.
Usurious transactions shall be governed by special
laws
Article 1175
a contract whereby one of the parties delivers to
another, money, or other consumable things, upon condition that
the same amount of the same kind and quality shall be paid.
Simple mutuum
contracting of receiving interest in excess of
the amount allowed by law for the loan or use of money or credits.
Usuary (Excessive)
Requisites for recovery of interest:
- The payment of interest must be expressly stipulated
- The agreement must be in writings
- The interest must be lawful.
The receipt of the principal by creditor, without reservation with
respect to the interest has been paid. The receipt of later installment of a
debt without reservation as to prior installments, shall likewise raise the
presumption that such installments have been paid.
Art. 1176
means the interference of a fact not actually known arising
from its usual connection with another which is proved.
Presumption
two kinds of presumption:
Conclusive presumption
Disputable presumption
one which cannot be contradicted.
(like the presumption that everyone is conclusively presumed to
know the law.
Conclusive presumption
one which can be contradicted or
rebutted by presenting proof to the contrary. (like the
presumption established in Art. 1176)
Disputable presumption
The creditors, after having pursued the property in possession of the
debtor to satisfy their claims may exercise all the rights and brings all the actions
of the latter for the same purpose.
Art. 1177
Remedies available to creditors for the satisfaction of their claims:
- Exact fulfillment (specific performance) with the right to damages
- Pursue the leviable (not exempt from attachment under the law) property of the
debtor. - Exercise all the rights and brings all the actions of the debtor
- Ask the court to rescind or impugn acts or contracts which the debtor may have
done to defraud him when he cannot in any other manner recover his claim.
Subject to the laws, all rights acquired in of an obligation are
transmissible, if there has been no stipulation to the contrary
Art. 1178
Transmissibility of rights:`
All rights acquired by virtue of an obligation are generally transmissible.
1. Prohibited by law- by laws the rights in partnership, agency and
commodatum which are purely personal in character
a. By the contract of partnership
b. By the contract of agency
c. By the contract of commundatum
- Prohibited by stipulations of the parties. When prohibited by
stipulation of the parties like the stipulation that upon death of the
creditor.
