Loss of the Thing Due

Question 1

Define loss of the thing due

Answer 1

In its strict sense, “loss of the thing due” means that the thing which constitutes the object of the obligation perishes, or goesout of the commerce of man, or disappears in such a way that its
existence is unknown or it cannot be recovered. (Art. 1189, No. 2,NCC.) In its broad sense, it means impossibility of compliance with the obligation through any cause. (4 Sanchez Roman 442.) In other words, it is synonymous with what other codes term “impossibility of performance.” This is the sense in which it is understood in Arts. 1262 to 1269 of the NCC.

Question 2

What requisites must concur in order that an obligation shall be extinguished by the loss or destruction of the thing due?

Answer 2

(1) The thing which is lost is determinate.
(2) The thing is lost without any fault of the debtor. If the thing is lost through the fault of the debtor, the obligation is transformed into an obligation to indemnify the obligee or creditor for damages.
(3) The thing is lost before the debtor has incurred in delay

Question 3

What are the exceptions to the requisites of extinguishing obligation through the loss of the thing due?

(Arts. 1174 and 1262, par. 2, NCC.);(Arts. 1174 and 1262, par. 2, NCC.); (Arts. 1174 and 1262, par. 2, NCC.); (Art. 262, par. 1, NCC.); (Art. 1262, par. 1, and Art. 1135, par. 3, NCC.); (Art. 1165, par. 3, NCC.); (Art. 1263, NCC.); (Art. 1268, NCC.)

Answer 3

(1) When by law, the obligor is liable for fortuitous events
(2) When by stipulation, the obligor is liable even for fortuitous events
(3) When the nature of the obligation requires the assumption of risk
(4) When the loss of the thing is due partly to the fault of the debtor
(5) When the loss of the thing occurs after the debtor has incurred in delay
(6) When the debtor promised to deliver the same thing to two or more persons who do not have the same interest
(7) When the obligation is generic
(8) When the debt of a certain and determinate thing proceeds from a criminal offense.

Question 4

In obligations to do, what is the effect if the prestation which constitutes the object of the obligation becomes legally or physically impossible?

Answer 4

(a) In obligations to do, when the prestation which constitutes the object of the obligation becomes legally or physically impossible, the obligor is released, provided that such impossibility
was not due to his fault and that it took place before he has incurred in delay. (Art. 1266, NCC.)
(b) In rare or exceptional cases, the same rule may be applied to obligations not to do, such as when the obligor is compelled
to do that which he had obligated himself to refrain from performing or doing. In such cases, his obligation is extinguished applying the same principle invoked in Art. 1266 of the NCC. (8 Manresa, 5th
Ed., Bk. 1, p. 664.)

Question 5

what does the theory of “rebus sic stantibus” meas

(Naga Telephone Co. vs. CA,
February 24, 1994.)
Art. 1267 of the NCC

Answer 5

the parties stipulate
in the light certain prevailing conditions, and once these conditions
cease to exist the contract also ceases to exist. Considering practical
needs and the demands of equity and good faith, the disappearance
of the basis of the contract gives rise to a right to relief in favor of
the party prejudiced.