• 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.
 Remedies of creditor in real obligation
1. In a specific real obligation (obligation to deliver determinate
thing), when the debtor fails to comply with his obligation
a. Demand specific performance or fulfilment(if it is still
possible) of the obligation with the right to indemnity for
damages; or
b. Demand rescission or cancellation (in certain cases) of the
obligation also with right to recover damages; or
c. Demand payment of damages only, where it is the only
feasible remedy
 Remedies of creditor in real obligation
2. A generic real obligation(obligation to deliver a generic
thing), on the other hand, can be performed by third
person since the object is expressed only according to its
family or genus.
Where debtor delays or has promised delivery to separate
creditors
• It does not exempt the debtor from the responsibility
(for determinate thing)
• An indeterminate thing cannot be the object of
destruction by a fortuitous event because genus
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. (1097a)
 Meaning of Accessions and accesories
2. Accessions and accessories.
Accession – is the right pertaining to the owner of a
thing over its products and whatever is attached
thereto either naturally or artificially.
Accretion which refers to the gradual and addition of
sediment to the shore by action of water.
Accessories – are those things which are joined
attached to the principal object as ornament or to
render it perfect.
Right of creditor to accessions and accessories
• General rule- all accessions and accessories are
considered included in the obligation to deliver a
determinate thing although they may not have been
mentioned (the accessory follows the principal). There
should be stipulation for non-inclusion.
• Art. 1167. If a person obliged to do
something fails to do it, the same shall be
executed at his cost.
 Obligation of the debtor To Do

Being a personal positive obligation, The creditor has the

right to secure the services of third person to perform the
obligation at the expense of the debtor under the following
instances:

– When the debtor fails to do the obligation;

– When the debtor performs the obligation but contrary to the
tenor; or
– When the obligor poorly performs the obligation.
 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, or by another,
unless personal considerations are involved, at the debtor’s
expense, and
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 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.
 ILLUSTRATIVE CASE:
Facts: A delivered to B, a typewriter repairer, a portable
typewriter for routine cleaning and servicing. B was not able
to finish the job after some time despite repeated reminders
made by A. Finally, B returned the typewriter unrepaired,
some of the parts missing.
A had the typewriter repaired by F Business Machines, and
the repair job cost him P58.75 for labor or service and
P31.10 for the missing parts or a total of P89.85.
The lower court rendered judgment ordering B to pay only
P31.10.
Issue: Is B liable also for P58.75, the cost of the service
expended in the repair?
Held: Yes. B contravened the tenor of his obligation (see
Art. 1170.) because he not only did not repair the typewriter
but returned it “in shambles.” For such contravention, he is
liable under Article 1167 for the cost of executing the
obligation in a proper manner, which in the case should be
the cost of the labor or service expended in its repair,
because the obligation or contract was to repair it.
• ART. 1168. When the obligation consists in not doing,
and the obligor does has been forbidden him, it shall
also be undone at his expense, (1099a)
Remedies of creditor in negative personal obligation

• This is negative personal obligation which is consisting

of an obligation, of not doing something. The debtor
cannot be guilty of delay. If the debtor does what has
been forbidden him to do, the obligee can ask the
debtor to have it undone. If it is impossible to undo
what was done, the remedy of the injured party is for
an action of damages.
 Example
• S sold a land to B. It was stipulated that S would
not construct a fence on a certain portion of his
land adjoining that sold to B. Should S construct a
fence in violation of the agreement, B can have the
fence removed at the expense of S.
 ART. 1169. Those obliged to deliver or to do
something incur in delay from the time the obligee
judicially or extra - judicially demands from them the
fulfillment of their obligation
 Delay ( Mora )
means a legal delay or default and it consists of failure
discharge a duty resulting to one’s own disadvantaged.

The debtor incurred delay if:

The debtor fails to perform his obligation when it falls
due; and
A demand has been made by the creditor judicially or
extra judicially.
Failure of the debtor to comply with such demand
 Kinds of delay –
• Mora solvendi – delay on the part of the debtor.

• Mora accipiendi – delay on the part of the creditor, like when

the creditor unjustifiably refused to accept payment at the
time it was due, is in delay.

• Compensatio morae – delay both parties in a reciprocal

obligation.
Note: no delay in negative personal obligation
 Effects of delay
• Mora solvendi
– The debtor is guilty of breach or violation of the
obligation.
– Liable to creditor for interest or damages
– Liable even for afortuitous event when the obligstion is to deliver a determinate thing
• Mora accipiendi
– The creditor is guilty of breach or violation of the
obligation.
– He is liable for damages suffered by the debtor
– He bears the risk of loss of the thing due
– Debtor not liable to pay interest from the time of the creditor ‘s delay
– The debtor may release himself from the obligation by the consignation or depsit in court of the thing or sum due
• Compensatio morae
– The delay of the obligor cancels the delay of the obligee or vice versa
 when the demand by the Creditor is not
necessary to place the debtor on delay:
1. When the obligation expressly so provides
2. When the law so provides
3. When time is of the essence
4. When demand would be useless
5. In a reciprocal obligation, from the moment one of the parties fulfills
his obligation, delay to the other begins
ART. 1170. 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.
(1101)
 Sources of liability for damages:

1. Fraud (dolo) – is the intentional deception made by one person

resulting in the injury of another.
The fraud referred to is incidental fraud, that is, fraud incident to the
performance of a pre-existing obligation.

2. Negligence (culpa) – consists in the omission by the obligor 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. (Art. 1173, NCC)
 Sources of liability for damages:

3. Delay (Mora) – like when there has been judicial or extra-judicial

demand and the debtor does not comply his obligation, delay will
occur.

4. In contravention of the tenor of the obligation – refers to the violation

of the terms and conditions or defects in the performance of the
obligation, like when a landlord fails to maintain a legal and peaceful
possession of a tenant being leased by the latter because the
landlord was not the owner and the real owner wants to occupy the
land, there is contravention of the tenor of the obligation.
 Distinguish Fraud (Dolo) from Negligence (culpa)

1. Dolo – there is deliberate intent to cause damage or injury.

Culpa – ther is no deliberate intent to cause damage.

2. Dolo – waiver of liability of future fraud is void.

Culpa – waiver may in some cases be allowed.

3. Dolo – fraud must be clearly proved.

Culpa – presumed from breach of contractual obligation.

4. Dolo – liability cannot mitigated by the courts.

Culpa – may be reduced according to circumstances.
ART. 1171. Responsibility arising from fraud is demandable in
all obligations. Any waiver of an action for future fraud is void.
(1120a)
 Concepts
• Responsibility arising from fraud demandable
• Waiver of action for future fraud void
• Waiver for past fraud valid
• Effects of negligence on the injured party
• ART. 1172. 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
the circumstances. (1130)
 Kinds of Negligence

• Contractual negligence (culpa contractual)

• Civil negligence (culpa aquiliana)
• Criminal negligence (culpa criminal)
 Concepts
• Responsibility arising from negligence demandable
• Validity of waiver of action arising from negligence
ART. 1173. The fault or 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 persons,
of the time and of the place. When negligence shows bad faith,
the provisions of articles 1171 and 2201, paragraph 2, shall apply.

If the law or contract does not state the diligence of which is

to be observed in the performance, that which is expected of a
good father of a family shall be required. (1104a)
 Negligence Defined –

is the failure to observe for the protection of the interests

of another person, that degree of care, precaution and vigilance
which the circumstances justly demand, whereby such other
person suffers injury. (Judge Cooley)
 Factors to be considered
• Nature of the obligation
• Circumstances of the person
• Circumstances of time
• Circumstances of the place
• ART. 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the
nature of the 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
(1105a)
 Fortuitous event
– is an event which cannot be foreseen which though foreseen
is inevitable.

Fortuitous event proper are acts of God such as volcanic

eruption, earthquake, lightning, etc. is now similar with force
majuere or acts of man such as conflagration, war, robbery, etc.
 Fortuitous Event and Force Majeure
• Could be acts of man or acts of God
• Kinds
– Ordinary Fortuitous Event
– Extra-ordinary Fortuitous Event
 Requisite necessary to constitute fortuitous event
• The event must be independent of the human orat least of the
debtor’s will
• The event could not be forseen, or if forseen, is not inevitable
• The event must be of such a charcacter 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 in,or the
aggravation of, the injury to the creditor, that is, there is no
concurrent negligence on his part.
 Concepts
2. As a general rule, no person shall be held responsible for fortuitous events
Exceptions (when the person is responsible despite the fortuitous
even).

a. When the law expressly so provides, such as:

The debtor is guilty of fraud, negligence or in contravention of the tenor of the obligation.
(Art, 1170, NCC)
The debtor has proved to deliver the same thing to two or more persons who do not have
the same interest. ( Art. 1165,NCC )
The thing to delivered is generic.
The debtor is guilty of default or delay. ( Art. 1169,NCC )
The debtor is guilty of concurrent negligence.

b. When declared by stipulation;

• ART. 1175. Usurious transaction shall be governed by special
laws.
 concepts
• Note: C.B. Circular No. 905 suspends the ceilings in the usury law.
Hence, parties can agree as to the rate of interest.
• Simple loan or mutuum- a contract whereby one of the parties delivers
to another, money or othe consumable thing, upon the condition tha
same amount of the same kind and qulity shall be paid. It may be
gratuitous or with a stipulation to pay interest.
 Kinds of interest
1. Conventional*The rate which is agreed upon
by the parties.
2. Legal Interest *The rate which is prescribed
by law.
3. Lawful Interest *The rate which is agreed
upon by the parties but
which rate is within the rate
authorized by law.
4. Usurious Interest *The rate which is in excess of
the maximum rate of interest
 Requisites for recovery of interest
1. The payment of interest must be expressly stipulated
2. The agreement must be in writing
3. The interest must be lawful
ART. 1176. The receipt of the principal by the creditor without
reservation with respect to the interest, shall give rise to the
presumption that said interest has been paid.

The receipt of a later installment of a debt without

reservation as to prior installments, shall likewise raise the
presumption that such installments have been paid. (1110a)
 Presumption
• means “the inference as to the existence of a certain fact
which if not contradicted is considered as true.”
 Two kinds of presumption
1. Conclusive presumption
2. Disputable(or rebuttable) presumption
 When presumptions in article 1176 do not apply

1. With reservation as the interest

2. Receipt without indication of particular installment paid
3. Receipt for a part of the principal
4. Payment of taxes
5. Non-payment proven
• ART. 1177. The creditors, after having pursued the property in
possession of the debtor to satisfy their claims, may exercise
all the rights and bring all the actions of the latter for the
same purpose, save those which are inherent in his person;
they may also impugn the acts which the debtor may have
done to defraud them. (1111)
 Rights of Creditors –

In order to satisfy their claims against the debtor, creditors have the following
successive rights:

1. Exact fulfillment (specific performance) with the right to damages.

2. to levy by attachment and execution upon all the property of the debtor, except
such as are exempt by law from execution;

2. to exercise all the rights and actions of the debtor, except, such as are inherently
personal to him; and

3. to ask for the rescission of the contracts made by the debtor in fraud of their rights.
• ART. 1178. Subject to the laws, all rights acquired in virtue of
an obligation are transmissible, if there has been no
stipulation to the contrary. (1112)
 Transmissibility of rights
1. Prohibited by law
a. By the contract of partnership
b. By the contract of agency
c. By the contract of commodatum
2. Prohibited by the stipulation of the parties