Atty. Uribe Notes

MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

I. OBLIGATIONS

Notes in Civil Law Review 2 A: Yes

20% Midterm 30% quizzes and recitations 50% finals Digest – Sales; starting with Sanchez v. Rigos - 2 quizzes in oblicon - Certification that the digest is complete and is in your own handwriting - from 2 classmates - - cases penned by justice Azcuna - 2 quizzes OBLICON – Tolentino Sales – Baviera Partnership – Bautista Common Law – general and ordinary law of a country/ community; unwritten law founded on memorial usage and natural justice and reason. Passive solidarity – not always one debtor; may/ may have 2 or more debtors/creditors.

Q: Suppose a promissory note was made: 1/2/93 I promise to pay B P1M A Is it civil or natural? A: It may be civil or natural. Civilwithin 10 years prescriptive period; natural-beyond ten years. Q: If it was made beyond the prescriptive period, may it be considered a civil obligation? A: Yes. If prescriptive period was interrupted or if no written demand was made. Only if demanded within the prescriptive period may it be due and demandable. Q: Is consent one of the essential elements of obligations? A: NO. It is true only with contracts. Essential elements of obligation:

When the fulfillment of the condition depends upon the sole will of the debtor, the conditional obligation shall be void – this is true only in resolutory conditions.

1. Active Subject – creditor/obligee Q: Is any kind of person subject to obligation? A: Yes. Not only Natural persons but also juridical entities/persons.

Alternative conditions – simple when choice has already been communicated! If not communicated there is no consent.

2. Prestation – to give, to do, or not to do.

Facultative conditions – is the choice always with the creditor?

Q: Is it a thing? A: No. It is the particular conduct of the debtor.

Obligations:

3. Juridical tie – vinculum juris - that which binds the parties.

Art. 1156. An obligation is a juridical necessity to give, to do or not to do. (n) -

it is a civil obligation because of the phrase juridical necessity.

Q: Does a creditor have a right under natural obligations?

Q: When can there be a tie? What creates a tie? A: when there is an existence of the source of obligation. Sources of Obligation: Art. 1157. Obligations arise from:

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Art. 2167. When through an accident or other cause a person is injured or becomes seriously ill, and he is (2) Contracts; treated or helped while he is not in a condition to give consent to a (3) Quasi-contracts; contract, he shall be liable to pay for the services of the physician or other (4) Acts or omissions punished person aiding him, unless the service by law; and has been rendered out of pure generosity. (5) Quasi-delicts. (1089a) (1) Law;

QUASI CONTRACTS: Kinds: 1.Nominate: a) solutio indebiti b) Negotiorum gestio 2. Innominate – Articles 2164-2175 SECTION 3. - Other Quasi-Contracts Art. 2164. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it out of piety and without intention of being repaid. (1894a) Art. 2165. When funeral expenses are borne by a third person, without the knowledge of those relatives who were obliged to give support to the deceased, said relatives shall reimburse the third person, should the latter claim reimbursement. (1894a) Art. 2166. When the person obliged to support an orphan, or an insane or other indigent person unjustly refuses to give support to the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. The provisions of this article apply when the father or mother of a child under eighteen years of age unjustly refuses to support him.

Art. 2168. When during a fire, flood, storm, or other calamity, property is saved from destruction by another person without the knowledge of the owner, the latter is bound to pay the former just compensation. Art. 2169. When the government, upon the failure of any person to comply with health or safety regulations concerning property, undertakes to do the necessary work, even over his objection, he shall be liable to pay the expenses. Art. 2170. When by accident or other fortuitous event, movables separately pertaining to two or more persons are commingled or confused, the rules on co-ownership shall be applicable. Art. 2171. The rights and obligations of the finder of lost personal property shall be governed by Articles 719 and 720. Art. 2172. The right of every possessor in good faith to reimbursement for necessary and useful expenses is governed by Article 546. Art. 2173. When a third person, without the knowledge of the debtor, pays the debt, the rights of the former are governed by Articles 1236 and 1237. Art. 2174. When in a small community a nationality of the inhabitants of age decide upon a measure for protection against lawlessness, fire, flood, storm

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 or other calamity, any one who A: A must pay the loan to B objects to the plan and refuses to because it was for the benefit of A. contribute to the expenses but is benefited by the project as executed d. If A ratified the acts of B, what shall be liable to pay his share of said will happen? expenses. Art. 2175. Any person who constrained to pay the taxes another shall be entitled reimbursement from the latter.  

certain lawful, unilateral act must concur. For negotiorum gestiothere must be abandonment.

BAR EXAM QUESTION: A bought a pack of cigar worth P225.00. He paid P375.00. What relationship was created? A: Quasi contract; solutio indebiti Q: A had a fishpond. Lawless events forced to go to Manila and then Europe. B, who has in the business of buying and selling fish, realized that it was harvest time, harvested the fish and sold them to X. B borrowed money from Y in order to buy the fingerlings. a. What Juridical relationship was created between A and B? A: Negotiorum gestio b. What juridical relationship was created by A with respect to B and X? A: to remit the sale of fish sold to X c. A with respect to B and Y?

A: A shall be indebted to B

is of to

Q: Is innominate exclusive?

quasi

contract

A: No. Acts or omissions punishable by law.-> crimes and delicts. 

felony is limited only to the RPC.

Requisites for it to arise: There must be a conviction. Proof beyond reasonable doubt. Q: Is there a crime where there is no civil liability? A: Justifying Circumstances. QUASI DELICT: Quasi-delict = culpa aquiliana - it is not culpa extra contractual or torts. Culpa extra contractual includes: 1. contractual 2. Extra contractual – includes other sources under 1157. Pineda would say that torts is not quasi-delict because torts include malicious and negligent acts. Atty. Uribe does not agree with him. Torts is the same as quasi delict. Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 the civil liability arising from c. Service (to do) – negligence under the Penal Code. But damages;involuntary the plaintiff cannot recover damages servitude. twice for the same act or omission of the defendant. (n) Generic – depends on the purpose and circumstances.

Cangco v. Manila Railroad (18 Phil 768) Q: What defenses?

were

the

defendant's

A: plaintiff was negligent; defendant exercised due diligence in selecting its employees. (not a good defense. It is raised only in quasi delict.MRR’s liability was based on contract of carriage.) Q: Was it the negligence of Cangco? A: No. the proximate cause was the bulk of watermelon. It was dimly lighted. There is negligence considering the person, time and place. Gutierrez v. Gutierrez (56 Phil 177) - there were 5 defendants. 3 were held liable. The mother and child were not held liable. Q: A obliged himself the following to B: a. to give a refrigerator, model 123; b. an 18 inch TV set; c. fix piano of B. A failed to perform any. What are the remedies? A: Determine first the nature of the thing to be delivered whether determinate or indeterminate: a. b.

determinate/specific(ref)specific performance plus damages. Generic (TV) – to have another person perform at the expense of the debtor.

July 7, 2007 (7/7/07) Compliance of Obligation; specific obligation of the debtor; different kinds of obligation – joint solidary. July 10 and 28 -make up class Compliance – determine the kind of obligation; determine the purpose. BAR EXAM QUESTION: There was an obligation on the part of A to deliver mangoes on july 1, 2006, 6 months after agreement with B. One month before delivery, A sold to the fruit to X. Can B recover the fruits from X? A: No. B has no real rights over the fruits since it was not delivered to him. KINDS OF OBLIGATIONS AS TO PERFECTION AND EXTINGUISHMENT: Q: promissory note: 1/2/93 I promise to pay B P1M What kind of obligation? A: Pure Obligation 

A

even if suspensive or postestative condition, the debtor may be

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 compelled if of both parties, there may be no there is a pre compulsion. If for the benefit of the existing debtor, creditor may be compelled to condition. accept. Impossible Conditions: Instances for the benefit of the If with a term – shall annul condition debtor: If without a term – it is void 1. on or before If negative impossible – valid 2. Not later than condition 3. within ___ mos.

Art. 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties, the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different. Reciprocal – sale Unilateral – donation Q: A obliged himself to B to deliver a thing on September 2005, after they agreed in January 2003. A however delivered it to in April of 2003. Who has a better right? What about C? A: B has a better right. C will have a better right if he acted in good faith. * with regard to improvements, if voluntarily made by the debtor, no other right than usufructuary. BAR EXAM QUESTION: Q: A borrowed P1M from B payable at the end of the year; A delivered a car as stipulated, B may use the car. On August 1, A offered to pay P1M, can B be compelled to accept P1M? A: It depends on whose benefit the term was constituted. If for the benefit

Q: A borrowed from B P1M, payable at the end of the year. August 1, creditor demanded a mortgage constituted on the house of A. No mortgage was delivered. On Aug.16, can creditor demand? When? A: When he loses the right to make use of the period. If debtor has promised, in this case the debtor did not promise anything. Q: If insolvent, will he lose his right? A: No, if he furnishes a guaranty which is acceptable to the creditor. Q: How will he be insolvent? A: by giving one or more of his property. Q: What if he has no assets? A: third person may guarantee. Art. 1198. The debtor shall lose every right to make use of the period: (1) When after the obligation has been contracted, he becomes insolvent, unless he gives a guaranty or security for the debt; (2) When he does not furnish to the creditor the guaranties or securities which he has promised; (3) When by his own acts he has impaired said guaranties or securities after their establishment, and when through a fortuitous event they

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 disappear, unless he immediately The creditor cannot be compelled to gives new ones equally satisfactory; receive part of one and part of the other undertaking. (1131) (4) When the debtor violates any undertaking, in consideration of which Art. 1200. The right of choice belongs the creditor agreed to the period; to the debtor, unless it has been expressly granted to the creditor. (5) When the debtor attempts to abscond. (1129a) The debtor shall have no right to choose those prestations which are impossible, unlawful or which could not have been the object of the obligation. (1132) Art. 1201. The choice shall produce no effect except from the time it has been communicated. (1133) Lim v. People (133 SCRA 333) -> merely an agent; 1197 is not applicable. Period “as soon as sold” Millares v. Hernando (151 SCRA 484) -> 1197 is not applicable. Art. 1197. If the obligation does not fix a period, but from its nature and the circumstances it can be inferred that a period was intended, the courts may fix the duration thereof. The courts shall also fix the duration of the period when it depends upon the will of the debtor. In every case, the courts shall determine such period as may under the circumstances have been probably contemplated by the parties. Once fixed by the courts, the period cannot be changed by them. (1128a) AS TO PRESTATION:

PLURALITY

Art. 1202. The debtor shall lose the right of choice when among the prestations whereby he is alternatively bound, only one is practicable. (1134) Art. 1203. If through the creditor's acts the debtor cannot make a choice according to the terms of the obligation, the latter may rescind the contract with damages. (n) Art. 1204. The creditor shall have a right to indemnity for damages when, through the fault of the debtor, all the things which are alternatively the object of the obligation have been lost, or the compliance of the obligation has become impossible. The indemnity shall be fixed taking as a basis the value of the last thing which disappeared, or that of the service which last became impossible. Damages other than the value of the last thing or service may also be awarded. (1135a)

OF

SECTION 3. - Alternative Obligations Art. 1199. A person alternatively bound by different prestations shall completely perform one of them.

Art. 1205. When the choice has been expressly given to the creditor, the obligation shall cease to be alternative from the day when the selection has been communicated to the debtor.

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Until then the responsibility of the c) conjunctive – 2 debtor shall be governed by the prestations which following rules: complied with. (1) If one of the things is lost through a fortuitous event, he shall perform the obligation by delivering that which the creditor should choose from among the remainder, or that which remains if only one subsists; (2) If the loss of one of the things occurs through the fault of the debtor, the creditor may claim any of those subsisting, or the price of that which, through the fault of the former, has disappeared, with a right to damages; (3) If all the things are lost through the fault of the debtor, the choice by the creditor shall fall upon the price of any one of them, also with indemnity for damages. The same rules shall be applied to obligations to do or not to do in case one, some or all of the prestations should become impossible. (1136a) Art. 1206. When only one prestation has been agreed upon, but the obligor may render another in substitution, the obligation is called facultative. The loss or deterioration of the thing intended as a substitute, through the negligence of the obligor, does not render him liable. But once the substitution has been made, the obligor is liable for the loss of the substitute on account of his delay, negligence or fraud. (n)

or more shall be

Example: I promise (conjunctive) I promise (alternative) In conjunctive choice is made.

to

to

and

__,__,and

___

__,__,or

___

facultative,

no

In alternative, choice is with debtor unless: Art. 1205. When the choice has been expressly given to the creditor, the obligation shall cease to be alternative from the day when the selection has been communicated to the debtor. * choice must be communicated. (relevant if one of the prestation was lost) 1. if fault of debtor after communication – debtor is liable. 2. if loss happened before communication due to fortuitous event – debtor may still choose from the remaining. IF FAULT WAS DUE TO ONE OF THE PARTIES; MAKE A DISTINCTION, WHO HAS AT FAULT AND WHO HAS THE CHOICE: 1. Choice of debtor; fault of creditor. - debtor may choose from those remaining or debtor may opt to rescind the obligation. 2. Choice of creditor; fault of debtor.

a) alternative b) facultative

- creditor may opt to choose from those remaining or that value of which was lost plus damages.

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Facultative vs. Penal clause (there should be non-compliance.) Choice of debtor, first prestations were lost due to his fault, only one is left AS TO THE RIGHTS AND and yet was lost through fortuitous OBLIGATION OF MULTIPLE event. PARTIES: Example:

- debtor can’t be held liable.

SECTION 4. - Joint and Solidary Obligations

In alternative, if all prestations were lost due to the fault of the debtor? ➔ depends on who has the right to choose: 1. if debtor: value of last prestation plus damages. 2. if creditor’s choice: anything of those lost plus damages. In Facultative: involves 2 or more prestations but only one is due. -

if one is lost, depends if there was a communication.

Tolentino: if debtor destroys the substitute, it doesn’t matter. Q: What if debtor refuses to make a choice? A: Creditor file an action in the alternative. Final exams/ asked)

midterms

(might

be

In July 1, 2003, A and B entered into an agreement. When it fell due, B failed to fulfill and was in delay. (Sir said that he is not in delay, because there was no demand.) Q: When can debtor make a choice of the substitution? A: He can make a choice even before it becomes due and demandable.

Art. 1207. The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not imply that each one of the former has a right to demand, or that each one of the latter is bound to render, entire compliance with the prestation. There is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. (1137a) Art. 1208. If from the law, or the nature or the wording of the obligations to which the preceding article refers the contrary does not appear, the credit or debt shall be presumed to be divided into as many shares as there are creditors or debtors, the credits or debts being considered distinct from one another, subject to the Rules of Court governing the multiplicity of suits. (1138a) Art. 1209. If the division is impossible, the right of the creditors may be prejudiced only by their collective acts, and the debt can be enforced only by proceeding against all the debtors. If one of the latter should be insolvent, the others shall not be liable for his share. (1139) Art. 1210. The indivisibility of an obligation does not necessarily give rise to solidarity. Nor does solidarity of itself imply indivisibility. (n) Art. 1211. Solidarity may exist although the creditors and the debtors may not be bound in the same

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 manner and by the same periods and interest for the payment already conditions. (1140) made. If the payment is made before the debt is due, no interest for the intervening period may be demanded. Art. 1212. Each one of the solidary creditors may do whatever may be useful to the others, but not anything When one of the solidary debtors which may be prejudicial to the latter. cannot, because of his insolvency, (1141a) reimburse his share to the debtor paying the obligation, such share shall be borne by all his co-debtors, in Art. 1213. A solidary creditor cannot proportion to the debt of each. assign his rights without the consent (1145a) of the others. (n) Art. 1214. The debtor may pay any one of the solidary creditors; but if any demand, judicial or extrajudicial, has been made by one of them, payment should be made to him. (1142a)

Art. 1218. Payment by a solidary debtor shall not entitle him to reimbursement from his co-debtors if such payment is made after the obligation has prescribed or become illegal. (n)

Art. 1215. Novation, compensation, confusion or remission of the debt, made by any of the solidary creditors or with any of the solidary debtors, shall extinguish the obligation, without prejudice to the provisions of Article 1219.

Art. 1219. The remission made by the creditor of the share which affects one of the solidary debtors does not release the latter from his responsibility towards the co-debtors, in case the debt had been totally paid by anyone of them before the remission was effected. (1146a)

The creditor who may have executed any of these acts, as well as he who collects the debt, shall be liable to the others for the share in the obligation corresponding to them. (1143) Art. 1216. The creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. The demand made against one of them shall not be an obstacle to those which may subsequently be directed against the others, so long as the debt has not been fully collected. (1144a) Art. 1217. Payment made by one of the solidary debtors extinguishes the obligation. If two or more solidary debtors offer to pay, the creditor may choose which offer to accept. He who made the payment may claim from his co-debtors only the share which corresponds to each, with the

Art. 1220. The remission of the whole obligation, obtained by one of the solidary debtors, does not entitle him to reimbursement from his co-debtors. (n) Art. 1221. If the thing has been lost or if the prestation has become impossible without the fault of the solidary debtors, the obligation shall be extinguished. If there was fault on the part of any one of them, all shall be responsible to the creditor, for the price and the payment of damages and interest, without prejudice to their action against the guilty or negligent debtor. If through a fortuitous event, the thing is lost or the performance has become impossible after one of the solidary debtors has incurred in delay through the judicial or extrajudicial demand

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 upon him by the creditor, the “individually and jointly, respectively, provisions of the preceding paragraph collectively and distinctively.” shall apply. (1147a) In promissory note: I promise to pay A Art. 1222. A solidary debtor may, in and B (solidary). actions filed by the creditor, avail himself of all defenses which are We promise to pay. (solidary) derived from the nature of the obligation and of those which are If simple “We” – joint personal to him, or pertain to his own share. With respect to those which Solidary liability examples: personally belong to the others, he may avail himself thereof only as LAW regards that part of the debt for which the latter are responsible. (1148a) Solution indebiti, crimes, negotiorum gestio. In agency read b.solidary on the on the outline, 1823-1824-> tortuous act of one of the parties. 1. Joint obligation 2. Solidary obligation Art. 1823. The partnership is bound to make good the loss: In the exams if A, B and C are debtors and X and Y are creditors, and it (1) Where one partner acting speaks of solidarity, presume solidarity within the scope of his on both sides. apparent authority receives money or property of a third person and misapplies it; and BAR EXAM QUESTION:

(2) Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership. (n)

Q: A and B obliged themselves to deliver 1thousand pesos worth of specific sacks of rice to X and Y. What is the type of obligation? A: It is a joint obligation unless there is a stipulation; the law requires it; the nature of the obligation requires it. Q: B delivered entire 1 thousand pesos to X, can Y compel B to deliver?

Art. 1824. All partners are liable solidarily with the partnership for everything chargeable to the partnership under Articles 1822 and 1823. (n)

A: Yes. Because the obligation is joint. Solidary: 1. Joint and several. 2. jointly and severally.

NATURE OF THE OBLIGATION WHICH REQUIRES SOLIDARITY: Example: 1.

Ronquillo v. CA (132 SCRA 274)

Liability arising from human relations. (torts-2194)

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Art. 2194. The responsibility of two or Active Solidarity: more persons who are liable for quasidelict is solidary. Creditor solidarily bound. X can demand from A = 40; if Y receives 40, 2. Decisions of the Supreme he should give 20 to X. Court which became final. If there is an agreement: X may Liwanag v. WCC demand 45 from A and Y may demand 15 from A. Computations: In a joint obligation if A paid the whole 120, he cannot claim reimbursement Joint obligations from B and C unless he proves that they have been benefited. There was P120 payment to the wrong party. A

X

B C

Y

-> X may demand P60 If X demands from A, A is to pay only P20. Mixed Solidarity X may demand 120 from any of them.

What if there was an agreement? A = ½; B = ¼; C =1/4; X = ¾ ; Y = ¼

Solidary: Q: A demanded payment from X, can Y still collect? A: No. the payment of one debtor extinguishes the obligation. Q: In joint, C became insolvent, how much can X demand from A? A: Still P20. Insolvency shall not increase the debt of joint debtors. Q: if X remitted entire obligation in favor of A, can Y still collect from B and C? A: Yes.

A: If joint- X with respect to A can demand 45;

Q: If solidary, C became insolvent, how much can X demand?

Q: If mixed:

A: 120. The share of 1 solidary debtor shall be shouldered by other solidary debtors.

A: X= 90; Y = 30; X may demand P22.50 from A. Passive solidarity: No agreement – debtors are solidarily bound. X may demand 60 from A. If there is an agreement: X may demand from A- 45, B and C- 22.50.

Q: If A was compelled to pay X, how much can A recover? A: From B=P60 REMISSION IN SOLIDARY:

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Q: X condones share of A and Q: Four medical students rented an demanded payment from B. How apartment. They agreed for the much can B pay? payment of utilities. Before the lease contract ended, 3 of the 4 went back to their country. They have unpaid A: P80 telephone bills worth 100k, can the one left pay only P25? Q: If after condonation C was already insolvent, how much can B recover from A?

A: Having paid 80, B shall recover 20, even if remitted, it does not exempt if one is insolvent. EFFECT OF DISMISSAL OF ACTION Q: X and Y filed a case against A, however it was dismissed. Y filed a case again. Will his action prosper? A: it depends if joint or solidary. Q: If joint: If reason is prescription, Y still files, may it prosper? A: Yes. The debts are separate and distinct in joint. Action shall not inure to X. Q: If the ground is subject to different conditions? A: Yes. The debts are separate and distinct in joint. Action shall not inure to X. Q: If ground prosper?

is

minority. May

it

A: No, it is an absolute defense. Q: If dismissed because contract is void, will it prosper? A: No. Q: if solidary? A: No. The demand of one creditor inures to the benefit of other creditors. BAR EXAMINATION QUESTION:

A: Yes. It is presumed to be a joint obligation as provided in Article 1207. Art. 1207. The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not imply that each one of the former has a right to demand, or that each one of the latter is bound to render, entire compliance with the prestation. There is a solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. (1137a) DISJUNCTIVE 1. A will pay P120 either to X or Y 2. A or B will pay X Q: If X demands payment, A paid Y, can X still demand payment from A? Who has the right to choose? A: Depends on the agreement. Q: What if there is no agreement? A: Tolentino- should be treated like solidary. Payment should be made to the solidary creditor who demanded first. * Sir does not agree! Rules on alternative obligation should govern because under the law solidarity is not presumed hence disjunctive is not one of it. NEXT MEETING TUESDAY! July 24, 2007 BAR EXAM QUESTION:

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Q: Corporation promised to deliver * no need to present proof of damages furniture set to A. they agreed that in as long as there is breach of the case of non compliance, a penalty of obligation. 100 thousand pesos must be paid. The corporation delivered furniture set Q: May the aggrieved party be able to which is different, instead of Narra. compel the other party to pay penalty Buyer is asking for 300 thousand plus performance? pesos as damages and 100 thousand for the penalty. Is this claim tenable? A: The general rule is they may not, however if it is clearly granted, they A: UP Law Center: It is not tenable. may. The penalty is the substitute for damages. Illustration: A construction of a Alternative answer: Yes, he may claim for damages because there was fraud committed. PENAL CLAUSE – provides for greater liability. Robes-Francisco v. CFI 86 SCRA 59

building which has a penalty of 10 thousand pesos per day if not completed on the agreed day, plus performance was agreed upon. Q: Debtor offered his car instead of paying the penalty. May a debtor compel creditor to accept penalty instead of car.

The supreme court ruled that the 4% stipulation is not a penal clause. Even without such stipulation, corporation is still liable to pay 6% based on Article 2209.

A: General rule: No; Exception: Unless expressly reserved.

Art. 2209. If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent per annum. (1108)

A: General Rule: Yes

Bachrach v. Espiritu 52 PHIL 346 Facts: There was a sale of 2 trucks with interest of 12% for the unpaid portion and a penalty of 25%. Held: Parties expressly stipulated the payment of interest hence liable, the penalty was reduced to 10% because there was partial performance; usurious.

Q: If the principal is void, will it follow that the accessory is void?

Exception: if the basis is the nullity of the obligation there can be a penalty. Example:Foreigners who contracted Filipinos usually penalty is provided in case contract is declared void. In this case the nullity of the principal does not affect the penalty. BREACH OF OBLIGATION: Q: Who can be held liable? A: Those who are enumerated in Article 1170; hence, anyone. Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 contravene the tenor thereof, are Art. 1173. The fault or negligence of liable for damages. (1101) the obligor consists in the omission of that diligence which is required by the nature of the obligation and FRAUD: corresponds with the circumstances of the persons, of the time and of the 1. Fraud in contract – art. 1338 place. When negligence shows bad faith, the provisions of Articles 1171 Art. 1338. There is fraud when, and 2201, paragraph 2, shall apply. through insidious words or machinations of one of the contracting If the law or contract does not state parties, the other is induced to enter the diligence which is to be observed into a contract which, without them, in the performance, that which is he would not have agreed to. (1269) expected of a good father of a family shall be required. (1104a) 2. Causal fraud – dolo causante in contracts; voidable. - depends on the circumstances, 3. Incidental fraud – dolo time and place. incidente - Degree of diligence: that of a good father of a family unless Art. 1170. Those who in the the law or the stipulations performance of their obligations are provide otherwise. guilty of fraud, negligence, or delay, and those who in any manner Q: May a waiver of future negligence contravene the tenor thereof, are be considered void. liable for damages. (1101) - if obligation is monetary in character for example, P1M, it is interest by way of damages. Compensatory damages – expressly stipulated in writing.

A: Yes. Gross negligence is equivalent to fraud. Telefast v. Castro 158 SCRA 445 The negligence in this case considered gross in character.

was

DELAY:

Q: Is article 1170 by way of dolo? A: No. Better term is bad faith or malice. The phrase “in any manner” covers not only fraud but also negligence and delay. WAIVER of future fraud is void: -

consider the dated when waiver was made, and date when the fraudulent act happened.

NEGLIGENCE (memorize)

“Mora”; non-fulfillment with respect to time. -

no delay in obligation not to do. (obviously!)

Effects of delay: 1. If determinate thing to deliver, there was a fortuitous event – the obligor is still liable. BAR EXAM QUESTION: Q: A and B entered into a lease agreement over certain machineries. B

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 was to open a car repair shop. On 3. When period is the controlling February 15, they agreed that the motive. Ex. Wedding. machineries will be leased for one 4. Demand would be useless due month. On March 15, the lessor to the of the debtor. demanded return of the machineries. Because the truck of B had a problem, In reciprocal obligations, neither party the machineries were not returned. Is incurs in delay if the other does not B liable? comply or is not ready to comply in a proper manner with what is incumbent A: No, B is not liable. There were only upon him. From the moment one of 28 days. An agreement of 1 month is the parties fulfills his obligation, delay 30 days. by the other begins. (1100a) *As a rule there has to be a demand.

Reciprocal obligations:

*Demand need not be in writing; It is different from demand to interrupt the prescriptive period.

- arise from the same transaction.

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.

1169 – should apply only if both are already due and demandable upon establishment or at the same time.

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 declare; 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 a controlling 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 1169 – no demand is needed. 1. by law – eg. Payment of tax, agency. 2. Stipulation

Example: Contract of sale.

Agcaoili v. GSIS 165 SCRA 1 -

if both in delay, no right of recission.

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) -

it is the happening of a fortuitous event. It applies to any kind of obligation.

In obligation to give, Article 1262 applies: Art. 1262. An obligation which consists in the delivery of a determinate thing shall be extinguished if it should be lost or destroyed without the fault of the debtor, and before he has incurred in delay.

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 When by law or stipulation, the obligor A. Extra judicial – principal remedy, is liable even for fortuitous events, the expressly granted by law. - 1191. It loss of the thing does not extinguish can be invoked aside from other the obligation, and he shall be remedy. Art.1381 is only a subsidiary responsible for damages. The same remedy. rule applies when the nature of the obligation requires the assumption of Art. 1191. The power to rescind risk. (1182a) obligations is implied in reciprocal ones, in case one of the obligors In Article 1165, even if obligation should not comply with what is became impossible due to Fortuitous incumbent upon him. event, debtor is still liable. The injured party may choose Art. 1165. When what is to be between the fulfillment and the delivered is a determinate thing, the rescission of the obligation, with the creditor, in addition to the right payment of damages in either case. granted him by Article 1170, may He may also seek rescission, even compel the debtor to make the after he has chosen fulfillment, if the delivery. latter should become impossible. If the thing is indeterminate 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 any fortuitous event until he has effected the delivery. (1096) -

promise to deliver to two or more persons, the debtor is still liable. In Napocor v. CA (161 SCRA 344), to be excused there should be no concurring negligence.

The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period. This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 and the Mortgage Law. (1124) Art. 1381. The following contracts are rescissible:

BAR EXAM QUESTION:

(1) Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more than onefourth of the value of the things which are the object thereof;

Q: A ring was delivered to a jewelry shop for cleaning. After a week, the ring was not yet cleaned. Thereafter, the ring was lost due to robbery. Is the jewelry shop liable?

(2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number;

A: Yes. Before the fortuitous event, the jewelry shop was already in delay.

(3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them;

REMEDIES FOR BREACH:

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 (4) Those which refer to things 1. Only those who have complied under litigation if they have with their obligation or at least been entered into by the ready to comply. defendant without the 2. Violation must be knowledge and approval of the substantial/fundamental in litigants or of competent character. judicial authority; There was no showing that Mafran had (5) All other contracts specially exhausted all the remedies available. declared by law to be subject to rescission. (1291a) SC: rescission is under 1191 not 1381. If court declared the act as rescissory, it will retroact from the time notice Q: If obligation becomes impossible, was given to the other party. what is the remedy? Q: Why is there a need to file a rescission with the courts when it can be extrajudicial?

A: Rescission. If already rescinded, he can no longer demand for the fulfillment.

A: Because a party cannot take the law in his own hands especially if there is recovery needed.

Magdalena Estate v. Myrick (71 Phil 344)

UP v. de los Angeles (35 SCRA 102)

Myrick was able to recover because there was no stipulation as to forfeiture.

- there can be unilateral decision provided it is agreed upon.

Other extrajudicial remedies:

BAR EXAMINATION QUESTION

Rights of unpaid seller:

Q: A sold a parcel of land to B for P1M, B paid 100 thousand as down payment. Vendor will be liable for eviction of squatters, balance to be paid 30 days after eviction, if squatters are still there for 6 months buyer should return the money. During the 6th month period, the price of the land was doubled. Seller offered to return the 100 thousand pesos. Buyer refused and offered to pay the balance and asked seller to sign. Seller filed an action for rescission. Is the action proper?

Art. 1526. Subject to the provisions of this Title, notwithstanding that the ownership in the goods may have passed to the buyer, the unpaid seller of goods, as such, has:

A: No. The seller was not the aggrieved party. Rescission as a remedy maybe invoked only by the aggrieved party.

(1) A lien on the goods or right to retain them for the price while he is in possession of them; (2) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them; (3) A right of resale as limited by this Title;

UFC v. CA (33 SCRA 1)

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 (4) A right to rescind the sale pertain to purely personal as likewise limited by this Title. Example: acts of agency. Where the ownership in the goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies a right of withholding delivery similar to and coextensive with his rights of lien and stoppage in transitu where the ownership has passed to the buyer. (n) B. Judicial Remedies: a.) Principal performance

remedies

–

specific

Q: In obligation to do, is substitute performance allowed?

right.

Q: What is the extent of liability? A: 2236, applies to present and future property. Art. 2236. The debtor is liable with all his property, present and future, for the fulfillment of his obligations, subject to the exemptions provided by law. (1911a) -

If a person is judicially declared to be insolvent, when he inherits, the future property is exempt.

If no specific performance, it amounts to involuntary servitude.

Family Home: May be a subject for tax nonpayment, creditors for construction, claim of laborers and mortgagee. (Rules of Court rule 39, sec.13)

Q: If obligation was to obligation was poorly done.

MODES OF EXTINGUISHMENT Article 1231

A: It depends. If personal qualification was stipulated.

do

and

A: 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. (1098)

Art. 1231. Obligations extinguished: (1) By payment performance:

–

are or

(2) By the loss of the thing due: (3) By the condonation remission of the debt;

or

b.) Subsidiary remedies

(4) By the confusion or merger of the rights of creditor and debtor;

1. accion pauliana – to be discussed in rescissible contracts.

(5) By compensation;

2. accion subrogatoria – creditor may be subrogated to the right of the debtor as to 3rd persons. - pertains to obligation to give; monetary obligation. It does not

(6) By novation. Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are

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Atty. Crisostomo Uribe

governed (1156a)

-

elsewhere

in

Notes in Civil Law Review 2 this Code. Q: Fulfillment of resolutory condition in 1231 pertains to?

It presupposes that there is an existing valid obligation.

A: Happening condition. -

Recission – principal remedy is under article 1191. Art. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible. The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period. This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 and the Mortgage Law. (1124) Extinctive prescription – conversion of civil to natural. Q: Are thes modes exclusive? A: No! In Saura v. DBP, there was a mutual dissent. This also considered as a mode. The Supreme Court said that there was a perfected consensual contract of loan. (mutuum) Q: Aside from it, what are the other modes? A: Death - To the extent of personal obligation to do. It does not extinguish property rights. Eg. Agency – death of an agent; Partnership – death of a partner.

of

a

resolutory

will of one of the parties in contracts as a general rule does not extinguish obligation. Exception: contracts involving trust and confidence. Partnership without prejudice to the possible liability of partner causing dissolution.

Q: Is happening of a fortuitous event a mode of extinguishment? A: Fortuitous events are not modes of extinguishment. Only results to loss of the thing due. -

Insolvency per se is not a mode of extinguishment, there must be a judicial declaration.

Q: What about renunciation by the creditor? A: Not necessarily. If it is gratuitous, it would fall under condonation/remission. If for a consideration, it falls under novation. Q: Compromise? A: It may. But it would fall under one of those mentioned by law; common result reduction of obligation which falls under condonation; if it would fall under a totally new obligation, it is novation. 1. PAYMENT -

synonymous with performance. May apply to all kinds of obligation.

Rules: a) As to person who pays.

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 b) As to whom payment is made. how much can Y ask for c) Prestation in obligation. reimbursement? d) Date, time and place. A: Only 80 thousand, that which a) person who pays. redounded to the benefit of A. -

-

Should be called payor, not only debtor, because third persons may pay. Not every person under the NCC can compel a person to pay except those who have an interest and those who by virtue of stipulation.

Eg. A is indebted to B. X is a 3rd person.

Q: If X pays without the knowledge of A, can he compel A to pay? A: No. He is not subrogated to the rights of B, hence he cannot foreclose the mortgage. “consented” – means debtor failed to object at a reasonable time.

Q: Who are those who have interest?

Q: X had agreement with B without knowledge of A, can he recover the payment made?

A: Joint debtors have interest in the fulfillment of the entire obligation, those who are subsidiary liable. (guarantors, mortgagors, pledgors.)

A: As long as payment was without knowledge, third person shall not be subrogated to the rights of the creditor. (1236-1237)

Q: If a third person pays, if he has interest, what happens?

Art. 1236. The creditor is not bound to accept payment or performance by a third person who has no interest in the fulfillment of the obligation, unless there is a stipulation to the contrary.

A: Subrogation. -

-

If X is a guarantor, Y is a mortgagor who secured debt, Y pays, he shall be subrogated to the rights of B and can exercise right of a creditor. if X pays B, obligation of A to B is extinguished but accessory obligations are not extinguished. It subsists that is why X can still foreclose the mortgage.

Q: A is indebted to B. X pays 100 thousand to B for A’s debt. Does A have a right to recover from A and can he have a right of foreclosure? A: It depends. If A consented, he has the right. Q: If before X pays, A partially paid 20 thousand, X paid entire 100 thousand,

Whoever pays for another may demand from the debtor what he has paid, except that if he paid without the knowledge or against the will of the debtor, he can recover only insofar as the payment has been beneficial to the debtor. (1158a) Art. 1237. Whoever pays on behalf of the debtor without the knowledge or against the will of the latter, cannot compel the creditor to subrogate him in his rights, such as those arising from a mortgage, guaranty, or penalty. (1159a) Q: X paid B without any intention of being reimbursed. What if X demanded the return after one week? A: Indirect Donation. As far payment, it is valid and binding.

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as

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 - Payor must have the capacity to A: Obligation is extinguished. alienate the thing or has free disposal. Q: A is indebted to B. However, B dies b.) as to the person to whom payment and is survived by Y. Even if A paid Y, is made. can it be invalidated? - called payee; normally the creditor. CASE: Arañas v. Tutaan -

creditor does not have to be a party. A creditor may be any person who has the right to compel the performance.

Eg. A is indebted to B. But the real payment should be given to Y; even if A pays B, Y can still compel A to pay. -

there is also payment to a person authorize to receive payment; the law may provide. Eg. Payment to a sheriff, executors and administrators.

Q: May payment to a wrong person extinguish obligation? A: Gen. rule: No! Except: 1. if payment redounded to the benefit of B. Otherwise, obligation is not extinguished.

A: Yes. If the payment was not made in good faith, such as when there is a pending action to declare Y incapacitated. Q: A is indebted to B. B assigned the credit to X. May it extinguish the assignment? A: Yes. c.)Prestation in obligation - identity of the obligation; consider the purpose. General Rule: A partial performance is non-compliance. Except: 1. The parties expressly stipulate. - Subject to different terms – integrity of the prestation. Rescission is not a remedy if there is substantial performance.

Q: Who has the burden to prove? Case: JM Tuason v. Javier A: No need to prove if: 1. it was ratified by the creditor; 2. principle of estoppel; 3. if the person to whom payment made acquired rights of creditor after the payment. Q: Are there any more exceptions? A: Yes. If payment was made in good faith to a person in possession of the credit, not a mere possession of the instrument. Q: X (in possession of PN) demanded payment from A when the promissory note became due and demandable, A paid x in good faith.

A obligated himself to deliver 100 sacks to B for 1000 pesos. He only delivered 95. Q: How much can he recover? A: Amount or value delivered, less damages. As to kind of obligation: Q: A is obliged to B. He paid Japanese yen. Is it valid? A: Yes. RA 8183. Payment may be made in any currency as long as

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 stipulated. Before: RA 529-payment 500k compared to the present not in Philippine currency is prohibited. because of devaluation, hence he claimed 2M base on Art.1250. Q: Can creditor be compelled to accept check? Art. 1250. In case an extraordinary inflation or deflation of the currency stipulated should supervene, the value A: No. As stated in New pacific timber of the currency at the time of the v. Señeris. Creditor may refuse to establishment of the obligation shall accept check. be the basis of payment, unless there is an agreement to the contrary. (n) Before: If Manager or Cashier’s check, it is deemed as cash.

Is his contention correct?

Q: If partly check and partly cash? A: Creditor may refuse. Except if stipulated. In Article 1249, it is extinguished if encashed. Art. 1249. The payment of debts in money shall be made in the currency stipulated, and if it is not possible to deliver such currency, then in the currency which is legal tender in the Philippines. The delivery of promissory notes payable to order, or bills of exchange or other mercantile documents shall produce the effect of payment only when they have been cashed, or when through the fault of the creditor they have been impaired. In the meantime, the action derived from the original obligation shall be held in the abeyance. (1170) Q: If check is stale, will the obligation be extinguished? A: No. Q: When is payment extinguish obligation?

thru

check

A: When it is encashed or through fault of the debtor when it had been impaired. Q: B owes A 1M in 1968. A claimed that in 1968, the value of 1M is only

A: No. As decided in the Philippine Pipe Foundry case, the supreme court said “as far as Philippine experience is concerned, there has never been an extraordinary inflation as experienced by Germany in 1920-1923. Art.1250 may only be invoked if the source is a contract. In Velasco v. Meralco, Article 1250 may not be invoked because the source is a quasi delict.” d.)date, time, place Determinate – place where obligation was constituted. Generic – domicile of the debtor. SPECIAL FORMS OF PAYMENT 1. Payment by Cession and decion en pago. Art. 1255. The debtor may cede or assign his property to his creditors in payment of his debts. This cession, unless there is stipulation to the contrary, shall only release the debtor from responsibility for the net proceeds of the thing assigned. The agreements which, on the effect of the cession, are made between the debtor and his creditors shall be governed by special laws. (1175a)

 conventional assignment  requires consent of both parties.

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 CASE: Filinvest v. Philippine Acetylene As to effect of payment: - no dation en pago, the delivery of the case was not consented General rule: to. Extinguished only - Filinvest was only an agent; as to the extent of there was no transfer of value delivered. ownership. Dacion en pago

Cession

As to transfer of ownership: The delivery results to the transfer of ownership, same is true with application of payment.

No transfer of ownership, creditor only given the power to sell.

General Rule: Extinguish only as to the extent of the proceeds of the sale of creditor.

Exception: Unless there is an express Exception: unless agreement. stipulated upon that anything delivered shall extend the entire obligation.General Rule: governed by law on sales only if the pre- existing obligation is in money. Art. 1245. Dation in payment, whereby property is alienated to the creditor in satisfaction of a debt in money, shall be governed by the law of sales. (n)

-

Q: If A is to deliver a carabao, but instead gave a refrigerator. Is it dacion en pago on sale? A: No. It is novation. The pre-existing obligation is not in money. CASE: Citizens Surety v. CA

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 no dation en pago if at the time 3. Payment by cession: of the transaction there is no obligation. 1255: voluntary assignment requires - All transactions were executed consent of the creditor. within one day. The indemnity agreement that they will be Art. 1255. The debtor may cede or liable upon default on payment assign his property to his creditors in of surety bond, hence no payment of his debts. This cession, obligation yet on that day. unless there is stipulation to the - SC: Dation en pago may contrary, shall only release the debtor pertain to delivery of from responsibility for the net rights/things. proceeds of the thing assigned. The agreements which, on the effect of the 2. Application of payments: cession, are made between the debtor and his creditors shall be governed by special laws. (1175a) Problem: X is the creditor. A owes him, 100k, 50k, 20k and 10k. -

Q: How will the proceeds of the sale be applied?

Rules: 1. debtor ha the right to designate to which payment is to be applied. a.) no partial payment. b.) to that which is due and demandable, except if payment was made for the benefit of the debtor. c.) If the debt is interest bearing. 2.) if debtor fails to designate, the creditor may designate. 3.) if both failed to designate: Note: provision for application payment is not applicable here.

A: 1. based on stipulation. 2. without agreement; rules in concurrence and preference of credits shall be applied. -

4. Tender of consignation: -

of

2. that which is most onerous. 3. Proportionate application (provided, it is of the same nature and burden) – if the debts are of different amounts. Q: How do we determine what is the most onerous? A: There is no hard and fast rule. We must consider factors and circumstances.

debtor must deliver his property to creditor. Resorted to by debtor who is experiencing financial difficulty. payment

and

tender of payment alone shall never extinguish the obligation. Actual offering of the amount or thing.

1256 – the only one scenario when tender of payment should be made, when creditor refuses to accept without just cause. Art. 1256. If the creditor to whom tender of payment has been made refuses without just cause to accept it, the debtor shall be released from responsibility by the consignation of the thing or sum due. Consignation alone shall produce the same effect in the following cases:

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 (1) When the creditor is absent Soco v. militante – 2 notices per or unknown, or does not amount due. appear at the place of payment; Q: When will obligation be extinguished? (2) When he is incapacitated to receive the payment at the A: When creditor accepted, even if time it is due; debtor refuses, may extinguish after consignation, it retroacts from the (3) When, without just cause, time of delivery. he refuses to give a receipt; Q: The obligation was due in January, (4) When two or more persons 1998. There was a tender of payment claim the same right to collect; in January 1, 2000 but was refused. In January 2, 2004, there was consignation. In January 2, 2007 there (5) When the title of the was a court ruling. Is the debtor liable obligation has been lost. to pay interest? (1176a) CASE: Soco v. Militante: Q: When may Tender of payment be made judicial? A: No. Tender of payment by its nature is extra judicial. Illustration: Q: There was a sale with right to repurchase. Seller a retro refuses to accept money, an action was filed. Plaintiff said that he is not obliged because there is no tender of payment required. Is his contention correct? A: Yes. No tender of payment is required. No consignation is required in sale with right to repurchase.

A: Yes. If from January 1998 he was already in delay, up to consignation if court ruled to be valid. If the consignation was ruled by the court to be invalid, the interest must be from January 1998 till court ruled. According to Sir: however, mora accipiendi.-delay of the creditor to accept. Debtor may release himself from the obligation by the consignation of the thing. Q: Can debtor consignated money?

-

-

Q: 2nd notice after consignation is required? A: Yes. Required but it does not need to come from the debtor, it is in the form of summons.

the

A: Yes. If the withdrawal is made before acceptance of creditor and before court ruled on the consignation.

Q: Is notice required by consignation? A: Yes.

withdraw

if creditor accepted and court ruled, no withdrawal. If no ruling yet, it may be withdrawn if creditor accepted. Revival without consent of accessory – creditor is released.

LOSS When not valid?

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 when it goes out of commerce. materials. A filed an action. May court grant the action? Prohibited by law. Impossibility of performance. A: No. Because the event of increase of price is foreseen. 1267 is not Q: To deliver shabu? Is the obligation applicable. extinguished? -

A: No. This is not a valid obligation therefore no extinguishment. Q: If the thing is lost, who has the burden to prove? A: depends on who is in possession of the thing at the time of the loss. However, this rule is not absolute when the loss occurred during the happening of a calamity, like typhoon. Read: Art 1265 and Art 1262. Art. 1265. Whenever the thing is lost in the possession of the debtor, it shall be presumed that the loss was due to his fault, unless there is proof to the contrary, and without prejudice to the provisions of article 1165. This presumption does not apply in case of earthquake, flood, storm, or other natural calamity. (1183a) Art. 1262. An obligation which consists in the delivery of a determinate thing shall be extinguished if it should be lost or destroyed without the fault of the debtor, and before he has incurred in delay. When by law or stipulation, the obligor is liable even for fortuitous events, the loss of the thing does not extinguish the obligation, and he shall be responsible for damages. The same rule applies when the nature of the obligation requires the assumption of risk. (1182a) Q: In an agreement between A and B for construction of house, proceeds shall be equally distributed from the sale. B didn’t give his share in the house because of the high price of

CASE: Occeña v. Jacobsen -

court can’t change agreement of the parties.

1267 – only difficulty not impossibility. Art. 1267. When the service has become so difficult as to be manifestly beyond the contemplation of the parties, the obligor may also be released therefrom, in whole or in part. (n) 1264 – depends on the intention of the parties. Art. 1264. The courts shall determine whether, under the circumstances, the partial loss of the object of the obligation is so important as to extinguish the obligation. (n) CONDONATION OR REMISSION “donation of a credit” 1272 – refers to “private document only” . If public document, it needs many copies. Art. 1270. Condonation or remission is essentially gratuitous, and requires the acceptance by the obligor. It may be made expressly or impliedly. One and the other kind shall be subject to the rules which govern inofficious donations. Express condonation shall, furthermore, comply with the forms of donation. (1187)

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Art. 1271. The delivery of a private CONFUSION OR MERGER OF document evidencing a credit, made RIGHTS voluntarily by the creditor to the debtor, implies the renunciation of the Art. 1275. The obligation is action which the former had against extinguished from the time the the latter. characters of creditor and debtor are merged in the same person. (1192a) If in order to nullify this waiver it should be claimed to be inofficious, Q: May it be made through agreement the debtor and his heirs may uphold it of parties? by proving that the delivery of the document was made in virtue of A: May be. It depends upon the payment of the debt. (1188) intention. Ex. Merger of rights of a Art. 1272. Whenever the private document in which the debt appears is found in the possession of the debtor, it shall be presumed that the creditor delivered it voluntarily, unless the contrary is proved. (1189) Q: X owes A 1M, he lends the same amount to A. Is there condonation? A: Maybe, if payment of interest is remitted. Q: If employment of interest is found in debtor X? Is it condonation? A: No. Q: If employment of interest is found in debtor’s possession, is there necessarily condonation? A: No, may be through other modes, like payment. Q: A is the creditor of 100k to B. X, a third party, pledged his car to B. May the pledged car be used as condonation? A: Determine first the status of X. Whether he is the owner or for what the pledge is for. Then state the accessory v. principal. Not X. Because A and B are the parties in the principal obligation; there is only a presumption of X on part of the accessory obligation of the pledge.

corporation. Q: By operation of law, can there be confusion? A: By succession, creditor died, debtor is son or daughter. Q: debtor died, creditor is an heir, can confusion take place? A: there can acceptance.

be,

when

there

is

Q: A is indebted to B. The debt is secured by a mortgage by M on B. Can there be a confusion of B and M? A: No. Q: If there is an agreement? A: No. It will be subrogation. If B assigned his rights to M, but still obligation is not extinguished. Q: Will confusion extinguishment?

result

in

total

A: No. In cases of joint obligations, in 1277. Art. 1277. Confusion does not extinguish a joint obligation except as regards the share corresponding to the creditor or debtor in whom the two characters concur. (1194)

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Q: In partial compensation, is debt totally extinguished? Q: If 2 or ore persons are debtors and creditors, will there be compensation? A: No. Extinguished as to at least one debt. A: No, the requirements must be complied with. – Art. 1279 Q: In compensation, how many debts are involved? Art. 1279. In order that compensation may be proper, it is necessary: A: 2 or more debts. COMPENSATION

(1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) That the two debts be due; (4) That they be liquidated and demandable; (5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor. (1196) Q: In compensation, is it a reciprocal obligation? A: Not necessarily. Q: When is it a reciprocal obligation? A: Reciprocal obligations arise from a single transaction; contract of sale. Q: What about legal compensation? Will it take place in reciprocal obligations? A: Not necessarily. In reciprocal obligations, there can be none.

Q: Which debts will be extinguished? A: Less onerous amount. Q: A owes B the following, 50k, 100k, 75k, 225k, 100k. B owes A 100k. How many of the debts will be totally extinguished? A: 2 debts of A and debt of B. Q: A paid 100k to B. A has the following debts to B; 50k, 25k, 10k. How many debts are extinguished? A: 3 debts are extinguished. Partial compensation because there is still a balance. Q: How many kinds of compensation are there? A: 4: legal, conventional, facultative, judicial. Q: In some books, there are three; facultative is removed, why? A: It is a conventional.

modification

only

of

Q: What are the other names of compensation? A: set off or counterclaim. Q: Not really the same because? A: Set-off and counterclaim must be invoked in courts of law.

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 legal from A: No. they are not debtors and creditors to each other. The law requires that they are principally bound. A: As to requirements, not the same. In legal, all requirements should be present, in conventional, not CASE: Sycip V. CA necessary that all requirements are present. i.e. different amounts or SC: debtors and creditors should be objects; one debt is not yet due. debtors and creditors in their own rights. Q: Give an example of facultative. CASE: Francia v. IAC A: Support. Invoked by the one who claims for support. SC: There is no compensation when Francia paid real property tax to the Q: A opened a checking account with a LG of Pasay. The national government bank, he borrowed money with the was the one who expropriated. same bank. A failed to pay, Bank invoked compensation. A said that his - compensation takes place if checking account is depositum. Is his debt became due at the same claim tenable? time. Q: What distinguishes conventional?

A: No. In a checking account, the bank is the creditor, A is a debtor governed by mutuum, hence compensation can’t take place.

Q: Monetary debts must arise from contracts?

Q: When is there a deposit?

Q: Are all monetary debts subject to compensation?

A: If the delivery is only for safe keeping.

A: Not necessarily. Eg. Attorneys fees

A: No. Custom duties. (Francia v. IAC)

Q: Other kind of facultative.

CASE: International Corp. Bank v. IAC

A: In case of commodatum, bailor can invoke. In a civil case/penal, invoke by injured party.

Facts: Villanueva applied a loan from ICB for 50M. Only 1M was delivered by the bank. The loan was secured by a mortgage, which is 110 M asset. Villanueva deposited 1M to ICB. He invoked compensation.

CASE: PNB v. Acero PNB invoked: No legal compensation, the credit line was used, lawyer of PNB claimed that credit line was shown to Acero. -

SC: Since there was a question on the foreclosure sale, there was no legal compensation.

you don’t prove a fact by showing it to the other party.

Q: A is indebted to B with G as guarantor. Can G invoke compensation?

CASE: Solinap v. del Rosario Facts: The lessee did not pay rentals. He invoked that the lessor had made advancements.

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 SC: No legal compensation because A: 50k. He must ask B for the other alleged debt were being questioned in 50k. the estate proceedings. Q: In the same case, the debt is - no legal compensation if debts demandable on May 1, 2002. The arise from depositum, credit was assigned to on March 1, 2002. May D validly demand it on the commodatum, civil liability arising from crime. same date? Q: A is the creditor of B worth 100k secured by a mortgage. B gave 50k. If there is a partial compensation, will the mortgage be extinguished? A: Not necessarily. It depends which debt is most onerous. Q: If there is total compensation, will the mortgage be extinguished? A: Yes. Mortgage will be extinguished. Q: B is indebted to A for 100k which is interest bearing. B gave 50 k to A. Will there be payment of interest even after payment of compensation? A: Depends. If there is total compensation, no interest will be paid. If partial, depends on whose debt is bigger. Q: Will partial compensation extinguished by prescription?

be

A: Yes. Partial compensation does not toll the running of the period.

A: No. The obligation is not yet due. Q: A owes B 100k due and demandable on May 1, 2003. B assigned it to X on April 1, 2003. A made the following payments to B: 20k-March 1, 2003; 30K-June 1, 2003; 40k-decemeber 1, 2003. On May 1, 2003, how much may X validly demand? A: It depends: If A had knowledge of assignment of X and he consented with reservation, X may claim 90k, if he consented without reservation, 100k. If it was without knowledge of A, X may claim 10k. NOVATION I. II. III.

Subjective/Personal Objective/Real Mixed

Art. 1291. Obligations may be modified by: (1) Changing their object or principal conditions;

ASSIGNMENT OF THE CREDIT

(2) Substituting the person of the debtor;

Q: On January 1, 2002, A owes B 100k. B assigned the credit to C on June 1, 2002. Can C demand payment from A?

(3) Subrogating a third person in the rights of the creditor. (1203.)

A: Determine when the assignment was made; if made after both obligation was due and demandable, there will already be compensation. Q: What if A paid B 50k in May 1, 2002? How much can C claim?

I. Subjective: A. Active – third person is subrogated in the rights of the creditor. B. Passive – substitution of the person of the debtor.

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Atty. Crisostomo Uribe

* other classifications: 1. express or implied.

Notes in Civil Law Review 2 A: 1. Expromission – substitution was made without knowledge or against will of original debtor.

2. extinctive. 3. modificatory. Eg. Prescription Q: In ACTIVE SUBJECTIVE, operative word is subrogated. When does this happen? A: 1. by agreement (express); 2. art. 1302 – legal subrogation. a. Third Party pays creditor without consent of debtor.

2. delegacion – substitution was made with knowledge of debtor. Q: A is indebted to B. A mortgaged to B his property worth 100k. B is indebted to C, 100k also. If A does not pay, can C foreclose the mortgage? A: No. He was not subrogated. DELEGACION – there is already subrogation, therefore, C may foreclose the mortgage. 

b. TP who has an interest pays creditor with or without consent of debtor. c. Creditor of debtor pays creditor of the same debtor. Art. 1302. It is presumed that there is legal subrogation: (1) When a creditor pays another creditor who is preferred, even without the debtor's knowledge; (2) When a third person, not interested in the obligation, pays with the express or tacit approval of the debtor; (3) When, even without the knowledge of the debtor, a person interested in the fulfillment of the obligation pays, without prejudice to the effects of confusion as to the latter's share. (1210a) Q: In PASSIVE SUBJECTIVE, operative word is substitution. When does this happen?



if there is already novation through delegacion, no consent of original debtor is void. If payment consented to by A, no novation, subrogation. (1236-1237)

Art. 1236. The creditor is not bound to accept payment or performance by a third person who has no interest in the fulfillment of the obligation, unless there is a stipulation to the contrary. Whoever pays for another may demand from the debtor what he has paid, except that if he paid without the knowledge or against the will of the debtor, he can recover only insofar as the payment has been beneficial to the debtor. (1158a) Art. 1237. Whoever pays on behalf of the debtor without the knowledge or against the will of the latter, cannot compel the creditor to subrogate him in his rights, such as those arising

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from a mortgage, penalty. (1159a)

Notes in Civil Law Review 2 guaranty, or SC: Even natural obligations may be subject of novation.

Effect of Insolvency of new debtor: -

-

If C becomes insolvent after substitution, A is no longer liable. If C was already insolvent at the time of substitution, A can’t be held liable if no knowledge except if he acted in Bad Faith or such insolvency is of public knowledge.

Q: X is the creditor of A, B and C for 10M. After 3 months, C paid 10M to X without the knowledge of A and B. After 6 months A and B paid 7M to X. May A and B recover the 7M from X? A: if voluntarily given, the creditor can retain. According to sir: It is actually a payment by mistake therefore solution indebiti.

II. Objective 

A. Change in object – no problem, eg. Money to celphone (art.1245) Art. 1245. Dation in payment, whereby property is alienated to the creditor in satisfaction of a debt in money, shall be governed by the law of sales. (n) B. Change in principal obligation:

II. CONTRACTS -

a. express b. implied * if 2 obligations can’t stand together, there is novation, there is incompatibility. * there was novation in FOA and the Villar case. There was a lease contract entered into for 5 years. Another contract was entered into for 10 years. The contention is that the 2nd agreement is void, therefore novation is void. CASE: Ronquillo v. CA Facts: The obligation was due in 1952, In 1967, debtor acknowledge debt and promised to pay. Since it is now transformed to a natural obligation, will the action for novation prosper?

In natural obligations, payor knows he can’t be compelled to pay but nonetheless pays.

while all contracts are agreements, not all agreements are contracts.

Prohibited: -

Auto contracts – contracts himself. article 1491.

a

person

Art. 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another: (1) The guardian, the property of the person or persons who may be under his guardianship; (2) Agents, the property whose administration or sale may have been entrusted to them, unless the consent of the principal has been given;

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 (3) Executors and 1. Autonomy – freedom of administrators, the property of contract/liberty of contract. the estate under administration; Art. 1306. The contracting parties may establish such stipulations, clauses, (4) Public officers and terms and conditions as they may employees, the property of the deem convenient, provided they are State or of any subdivision not contrary to law, morals, good thereof, or of any governmentcustoms, public order, or public policy. owned or controlled (1255a) corporation, or institution, the administration of which has been intrusted to them; this provision shall apply to judges Void waiver: and government experts who, in any manner whatsoever, Example: take part in the sale; (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. (6) Any others specially disqualified by law. (1459a)

a. for agent to waive accounting. b. pactum commisorium c. partnership, exclusive partner from sharing profits – pactum aliena mortgage – pactum aliendro

d. Public policy: CASE: Cui v. Arellano -

CASE: Saura v. Sandico -

ELEMENTS OF A CONTRACT: Natural – implied warranties. Essential – Consideration

Consent,

Accidental – payment (compensatory)

of

Object,

interest.

scholarship in law school must not be contrary to public policy.

-

Escalation clause – ex. Construction contracts. Creditor has right to demand a higher compensation upon the happening of a contingency. Ex. Contract of loan (interest). Acceleration clause – stipulation whereby in an obligation to pay on installment, balance shall automatically become due and demandable when debtor fails to pay.

CHARACTERISTICS:

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Q: Will an escalation clause be valid the parties are bound not only to the when there is no descalation clause? fulfillment of what has been expressly stipulated but also to all the consequences which, according to A: It is relevant only in contracts of their nature, may be in keeping with loan; only effect of circular issued by good faith, usage and law. (1258) the Central Bank provided the escalation clause only happens once a year. Q: When is a contract obligatory? 2. Consensuality:

A: Upon perfection of the contract.

Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (1255a)

Q: When is a contract perfected?

CASE: Republic v. PLDT -

to compel PLDT to enter into inter- connection agreements is actually expropriation.

Validity of contracts of adhesion: CASE: Ong Yu v. CA -

plaintiff bought ticket from PAL, eventually he lost his baggage. In the ticket it contained a waiver of a right.

SC: waiver of a right in a contract of adhesion are not considered gladly by the Supreme Court. 3. Mutuality: compliance.

goes to validity and

Art. 1308. The contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them. (1256a)

A: It depends if it is consensual (concurrence between the offer and acceptance), real (like deposit, pledge, commodatum requires delivery), formal/solemn (requires compliance with certain formalities prescribed by law). 5. Relativity: Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. (1257a)

 termination by mere notice – valid.

General rule: Contracts take effect only between parties, their assigns and heirs.

4.Obligatory:

Exceptions:

Art. 1315. Contracts are perfected by mere consent, and from that moment

1. creation of real rights

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Q: A mortgaged his land to B and CASE: Bonifacio bros. v. Mira eventually A sold it to C. Can C be - enforcement of insurance. bound by the mortgage? A: Yes. 2. Interference by a third party.

Art. 1314. Any third person who induces another to violate his contract shall be liable for damages to the other contracting party. (n) Requisites: -

existence of a valid contract knowledge of contract by third persons interference by third persons without legal justification or excuse.

Q: A has a contract with GMA. Subsequently, A entered a contract with ABS-CBN. A was in bad faith. May ABS CBN be liable? A: No. To be liable there must be malice impugned. Third Party liability does not impugn liability of debtor who violated. 3. Contracts in fraud of creditors: Q: A is the debtor of B. A sold his property to C. May B rescind the contract between A and C? A: Yes. 4. Stipulation pour atrui – stipulation in favor of third persons. It is not the main agreement. CASE: Kaufman v. PNB CASE: Florentino v. Encarnacion -

acceptance may be implied.

CLASSIFICATION OF CONTRACTS: A: Degree of Dependence 1) principal (agency, partnership) 2) accessory (Real Estate Mortgage, Chattel Morgtage, Pledge, Antichresis) example: crop loan scenario

B. As to Perfection 1) Real (Pledge, Commodatum, Mutuum. Deposit) 2) Formal (antichresis; donation) C. Purpose D. As to cause 1) onerous 2) pure beneficience a) gratuitous b) lucrative »liberality id the consideration 3) remuneratory » seller (payment); buyer (deliver) E. Risk of Fulfillment 1) Aleatory » sale of hope – emptio spei » risk of fulfillment » insurance »life annuity 2) commutative F. Name and Designation 1) Nominate 2) innominate G. As to subject matter 1) Things 2) Right 3) Services PAQIII/Oct2007

III. SALES - there must be an agreement to transfer ownership.

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 in conditional sale, there is a Q: A sold goods to B for purpose of reservation of ownership. resale, Y bought goods from X for personal consumption. What law shall Art. 1458. By the contract of sale one govern this contract? of the contracting parties obligates himself to transfer the ownership and A: NCC and Code of Commerce, to deliver a determinate thing, and the A-B commercial sale other to pay therefor a price certain in Y-X civil sale money or its equivalent. »now no distinction, NCC governs Characteristics: 1. principal 2. bilateral-imposes obligations on two parties 3. nominate 4. onerousalways! otherwise donation 5. commutative- emptio spei Subject matter: » things and rights, service is not included As to object: a. movable b. immoxable Concepts involve: a) Recto Law- personal prop by installment b) Maceda- immovable c) double sale d) Statute of Frauds Q: As to WON tangible/intangible? A: corporeal (things); incorporeal (rights) Q: relevant as to what concept?

Q: As to validity? unenforceable,

Q: Conditional sale vs. contract to sell A: In conditional sale, ownership depends on the happening of condition and it take place by operation of law. In contract to sell, ownership passes after full payment passes. There is no automatic transfer, buyer have right to ask execute final deed. Q: A delivered receipt to B “as partial payment to my car”, received by D, balance payable at the end of the month, signed by A. Is this contract pertaining to a contract to sell? A: NO, there is already transfer of ownership, there was no reservation as to ownership. dacion en pago vs. contract of sale »dacion en pago is a mode of extinguishing obli, it is a pecial form of payment; while contract of sale is a source of obli. Q: Kobe & companion B is to buy shoes, B’shoes to be delivered, upon payment, Kobe ordered a particular shoe.

A: delivery

A: void, voidable

A contract of sale may be absolute or conditional. (1445a)

rescissible,

Q: 1458 2nd par: provides for? A: absolute/conditional sale: » In an absolute sale there is an automatic transfer of ownership while

A: Kobe- contract of piece of work B- contract of sale »contract for a piece of work under (Aticle1467) is also called Massachusetts Rule Art. 1467. A contract for the delivery at a certain price of an article which

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 the vendor in the ordinary course of Guardian- absolute his business manufactures or procures Agent- administration/sale for the general market, whether the same is on hand at the time or not, is Q: A inherited property from father to a contract of sale, but if the goods are transfer property; executor to pay to be manufactured specially for the 700k, status? customer and upon his special order, and not for the general market, it is a A: valid; Assignment of rights which A contract for a piece of work. (n) can validly sell, not part of the estate under Y’s administration. Q: A to deliver his car to B, B to give A his watch plus money, 100k. What law should govern? A: 1st. depends on manifest intention of parties. Barter = value of thing given as a part of consideration > money/its equivalent; if value of watch >100k Sale- if same value Q: A granted B exclusive right (right to sell within a specific area) to sell maong pants to Isabela, before B could sell, his store was burned, can B be compelled to pay? A: contract of sale bec. There is a stipulation. B is a distributor/dealer 99.99% » Quiroga vs. Parsons- “will supply the bed and pay price within a certain period”. No obli to remit the price, no stipulation. ELEMENTS OF SALE: 1. Consent 2. Price- consideration as to whom? The seller. Buyer- acquisition of ownership over the thing. 3. Object »Contracts which are void: simulated contract (parties entered) ex. To defraud creditors, property from husband, abroad.

Absolutely voluntarily wife hide buyer go

relatively simulated- why? To reduce tax liability, circumvent law on legitime SPECIFIC PERSONS PROHIBITED TO ENTER INTO SALE

Q: a sued B for recovery of a parcel of land, hired lawyer, one year after filing, entered into a contract of sale with B involving the land. A: not valid. object of sale is subject to litigation-actually depends. WON the case is still pending. Q: 1491 status of contracts A:GR: voidable Except: agents- subject to ratification Par.1,2,3 voidable- can be ratified »private interests is involved. 4,5,6 void 1,2,3 can be ratified because after lapse of incapacity, another contract maybe entered into Rubias VS. Materia Wolfgang vs. Martinez Art. 1491. The following persons cannot acquire by purchase, even at a public or judicial auction, either in person or through the mediation of another: (1) The guardian, the property of the person or persons who may be under his guardianship; (2) Agents, the property whose administration or sale may have been entrusted to them, unless the consent of the principal has been given; (3) Executors and administrators, the property of the estate under administration;

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Atty. Crisostomo Uribe

Notes in Civil Law Review 2 (4) Public officers and notary public (where pledgor can go to employees, the property of the NP to have the thing sold). State or of any subdivision thereof, or of any governmentArt. 1505. Subject to the provisions of owned or controlled this Title, where goods are sold by a corporation, or institution, the person who is not the owner thereof, administration of which has and who does not sell them under been intrusted to them; this authority or with the consent of the provision shall apply to judges owner, the buyer acquires no better and government experts who, title to the goods than the seller had, in any manner whatsoever, unless the owner of the goods is by take part in the sale; his conduct precluded from denying the seller's authority to sell. (5) Justices, judges, prosecuting attorneys, clerks of Nothing in this Title, however, shall superior and inferior courts, affect: and other officers and employees connected with the (1) The provisions of any administration of justice, the factors' act, recording laws, or property and rights in litigation any other provision of law or levied upon an execution enabling the apparent owner of before the court within whose goods to dispose of them as if jurisdiction or territory they he were the true owner exercise their respective thereof; functions; this prohibition includes the act of acquiring by (2) The validity of any contract assignment and shall apply to of sale under statutory power lawyers, with respect to the of sale or under the order of a property and rights which may court of competent jurisdiction; be the object of any litigation in which they may take part by (3) Purchases made in a virtue of their profession. merchant's store, or in fairs, or markets, in accordance with (6) Any others specially the Code of Commerce and disqualified by law. (1459a) special laws. (n) Q: If both parties are capacitated to give consent, contract of sale valid? A: not necessarily because consent of one might had been vitiated. Q: A person sold a thing to another in representation of another person without authority, status? A: unenforceable Q: can it be valid? A: Yes, in case of statutory power to sell 1505; officious manager, executor

Q: contract of sale involving alien. A: depends; if private agricultural, if he is seller, valid. If he is the buyer, GR: NO. XPN: former natural born citizen. Q: All matters could be a valid subject matter of sale. A: every matter that can be a subject matter of contracts in general can be subject matter of sale (service, things, and rights). Service CAN NOT BE A SUBJECT MATTER OF SALE

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Q: For rights to be a valid subject matter. of sale, what are the A: Sale maybe valid. 1465 » requirements? 1. things (ownership over the thing) »for rights- conclusively presumed to subject to a resolutory condition may be valid be the object of the contract of sale. 2. validity of contract requires A: must be transmissible Consent, Price, Object, the fact that it is present, sale is valid Q: Sale of the right, known as? Art. 1465. Things subject to a A: assignment of rights resolutory condition may be the object of the contract of sale. (n) Q: if deed of assignment A: sale? Not necessarily, if gratuitousdonation, maybe dation in payment, or a security arrangement. Q: rights arising from contracts A: rights and obligations arising from contracts are transmissible XPN: NATURE, STIP, LAW (right in specific partnership property) Q: As to things to be valid subject matter? A: determinate, capable of being determinate example: buying a car in the casa outside commerce of man, corpse Q: Agreement between A&B, A sell palay that will be harvested this November. Q: Status of sale

Q: Who will have a better right? A: GR: A EXCEPT: C was a buyer in GF, no knowledge of right of repurchase and right to repurchase WAS NOT ANNOTATED Q: when is a sale of right perfected? A: upon meeting consensual contract

of

the

minds,

writing

(public

Q: does it bind 3rd person? A: No, unless instrument)

in

Q: if in public instrument, binding already? A: only requirement in real property

A: sale is valid.

Q: deed of sale, no price mentioned, valid?

Q: if no palay is harvested, A is liable

A: sale maybe valid.

A: GR: Yes, liable, if he was at FAULT, except if reason was a FE

Q: agreement A-B specific car, price is 500k yen.

Q: sale of a sweepstakes ticket status?

A: valid, if so stipulated, 1458 “in money”

A: depends, if winning ticket not void

Art. 1458. By the contract of sale one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent.

Q: A sold B land with right of repurchase within one year, 3rd month sold to C. what if on the 6 th month, A offered to repurchase land status of sale

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Art. 1356. Contracts shall be Q: if not in money, valid? obligatory, in whatever form they may have been entered into, provided all A: “its equivalent” the essential requisites for their validity are present. However, when Q: can seller compel of lapad? the law requires that a contract be in some form in order that it may be A: stipulated, RA8183 (currency valid or enforceable, or that a contract stipulated) repealed RA 529 (only in be proved in a certain way, that philippine currency) requirement is absolute and indispensable. In such cases, the right Q: why RA 529-because of dollar of the parties stated in the following reserves problem article cannot be exercised. (1278a) A: at that time, RA 8183, our dollar reserves improved Q: sell specific car, amount of two academic load, 2 semesters status, valid? A: No! Gross inadequacy of price=lesion -does not invalidate contract of sale -guardian ,more than ¼ of value, contract of absentee Q: A & B-price fixed by 3rd person A: void if 3rd person refuse/unwilling to fix the price Q: one peso as value of car A: maybe donation/vitiation of consent Q: parties to option agreement A: promisor, promissee; offeror;offeree optioner,optionee »earnest money depends if perfected as to object,price SOF-goes only to enforceability not validity of sale! 1487=1356

Art. 1487. The expenses for the execution and registration of the sale shall be borne by the vendor, unless there is a stipulation to the contrary. (1455a)

Q: sale of ballpen 2k worth,valid? Enforceable? A: value ‡ worth ‡ price, if sold toobjective : execution of juridical act extinguish legal relationship such as payment

BAR EXAM QUESTION: Q: A entered into a lease contract with B for 3 years. There was a stipulation in the contract that B will have the option to buy the parcel of land leased by him. However, B failed to exercise the option as stipulated in the contract. B still continued paying the rentals and A continues to receive the same. B, now, exercised the option. A refused to sell the land to B. Can A be compelled to sell the land?

-

there must be consent “ agency “ includes instrumentality as government instrumentality.

CASE:Quiroga V. Parsons – exclusive right to sell is an exclusive agency.

Nature of AGENCY vs.

SALE

Consensual

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe Notes in Civil Law Review 2

Nominal

May be Gratuitous *burden: principal *presumption: compensation

X is clothed with full authority to manage restaurant of Y (owner). X purchased some items from Z. X was indebted to Z. Y’s defense is that X was not authorized to purchase. However, X led other people to believe that X has authority such as signing as agent.

Essentially Onerous for

Preparatory contract -a means by which other contracts may enter into. Based on trust and confidence

There’s no transfer of ownership but only transfer of possession.

AGENCY

Person represented capacitated

AGENCY

upon

Extent of control by the Principal over the agent is with the Result only.

By law

vs must

GUARDIANSHIP be

vs

Termination may be by the will of either party  Principal- revocation  Agent- withdrawal

Person represented incapacitated

PARTNERSHIP

II.

I. ACTUAL AGENCY

is

Rallos vs. Yangco A sent a letter to B authorizing C to buy abaca/copra. B transacted with C. Consequently, from Jan. 2, the purchases remained unpaid. B complained to A. A contended that before Jan. 2 he revoked the authorization from C. Therefore, transactions hereafter are not binding upon A. SC-Invoked Article 1873. Revocation is immaterial. C’s transaction has full force and effect in exercising authority until rescission. If C is specially informed of the revocation of the authorization, B shall also be informed in the same manner as C. - JBL REYES: If B had actual knowledge of the revocation, he cannot hold A liable as it would amount to Bad Faith.

It has a separate juridical entity

Q: What if A actually caused a notice of publication? A: Can still be liable pursuant to Article 1873

KINDS of AGECY: I.

SC-Estoppel lies. Y is liable. II. APPARENT/OSTENSIBLE

vs. NEGOTIORUM GESTIO

By agreement

AGENCY

passes

vs. CONTRACT FOR A PIECE OF WORK

Extent of control by the Principal over the agent is with the Result and Manner.

AGENCY

Ownership delivery.

Apparent /Ostensib le Agency by estoppel

Art. 1873. If a person specially informs another or states by public advertisement that he has given a power of attorney to a third person, the latter thereby becomes a duly authorized agent, in the former case with respect to the person who received the special information, and in the latter case with regard to any person.

Mack vs. Cams (?)

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 The power shall continue to be in full A: It depends on the nature of the force until the notice is rescinded in business, if the task is also within the the same manner in which it was nature of the agency, yes. given. (n) Q: A authorized B to sell land of A in Baguio, did not do anything, Is B an agent? A: No. Classifications of Actual Agency Q: How about if A gave the letter to B and B accepted? ❖ as to manner of creation A: There is an implied agency ☞ express – consent of both parties given ☞ implied

CASE: Dela Pena vs. HidalgoAfter the authorization was executed, the agent appointed a substitute. The principal did nothing to repudiate such appointment. SC-There is an Implied agency by the principal’s silence or inaction. The principal is deemed to have accepted the new agency. Agent When the agent is authorized to sell a parcel of land and he just stared at the ceiling, he is NOT deemed to have given his consent. However, if the agent accepted a special power of attorney and he did nothing, it depends upon the kind of business as to consider it as an implied agency, with the agent giving his consent. If the principal and agent are engaged in the same business, there is an implied agency whereby the agent is deemed to have given his consent. Q: Mere silence of agent deem accepted agency? A: not necessarily »If parties are in the same place, no problem, stipulation on the SPA governs Q: if not in the same place such as when using the telegram, if did not reply deem accepted? -

❖ As to consideration or compensation ☞ Onerous- presumption is for consideration. ☞ Gratuitous- liability is mitigated in the part of the agent. BAR EXAM QUESTION: Contract of Agency as to scope of authority 1. Acts of administration 2. Acts of strict dominion Q: In the sale of Rolex, the agent has no SPA, with the act bind the principal? A: No. Any act of strict dominion requires an SPA. As to form: 1. Oral 2.Writing 1. Oral 2.Writing 2.Writing Q: Why is the form of agency peculiar? A: Because it involves two contracts, the agency itself and the contract to be contracted by the agent.

Q: Principal was in the hospital and executed a GPA with the following: contact of lease of a parcel of land with a term contract of lease with no agreement as to term and payment contract of sale for a three times higher than the land A: Discuss the status: Depends on the power given, GPA was only given » unenforceable if not in a public instrument » valid and binding if merely acts of administration » sale is void under 1874 ; SELLING IS AN ACT OF STRICT DOMINION

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe Notes in Civil Law Review 2

Q : A is represented by B. There is a lease for 5 years and such lease was not put into writing. A: First, determine the object. If it is personal, SPA is not required. If it is an immovable, it depends on B’s capacity in the contract of Lease. Q: 3rd person is the lessee and the principal is the lessor, SPA is needed. However, if the principal is the lessee, authority of A must be in writing in order for it to bind B? A: Not necessarily. For lease to be in writing or not, the provisions on Statute of Frauds must find application.

X mailed a letter to Y giving him the authority to sell a parcel of land. So Y sold the same to a third person. The letter is sufficient to bind X. » In a SPA, the only requirement must be in writing , need not be notarized Essential Elements 1. consent of the parties 2. object 3. act within the scope 4. act in representation of principal » 3 and 4 are not necessary to the validity of the contract but these are the obligations of the agent. Absence of these, Agency remains valid. 3 and 4 are the TWIN REQTS. How to know whether it is within or in excess of authority? •

Consider the SPA.

BAR EXAMINATION QUESTION

CASE: Linan

Q: The deceased principal authorized the agent to dispose of his land. The heirs of the principal, however, sold the 12 hectares to B. The agent sold the same land to C. Who has the better right?

-

A: It depends on the authority of the agent. If it is not in writing, the contract of sale is void. Thus, C has a better right.

Rely on the provisions of law- the authority to manage the restaurant includes the authority to buy the equipments.

Q: If it is in writing, the authority of the agent is extinguished. B has a better right?

Art. 1882. The limits of the agent's authority shall not be considered exceeded should it have been performed in a manner more advantageous to the principal than that specified by him. (1715)

A: Not necessarily. If the agent has no knowledge of the death of the principal and C is in good faith, C being the 1 st registrant, therefore, C has a better right. »Notarization or recording in a public instrument is not a requirement. CASE:Jimenez-

Whether or not the agent is authorized to sell a parcel of land.

Justice Perfecto: under the SPA, he has no authority. Good faith is not within the scope.

Article 1882- Considered within if it is to the advantage of the Principal. CASE:Insular Drug-

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 attorney with respect to the business The agent’s authority to collect money in which he is habitually engaged as does not include encashing or an agent, and he did not reply to the endorsing of check. letter or telegram. (n) Municipality of Ilo-ilo vs. Evangelista »The authority to hire a lawyer includes authority to pay said lawyer. »If the agent’s authority to borrow money and mortgage, he cannot use it to satisfy his own debts. Q: A authorized B to borrow money from any bank, agent borrowed money in his name to buy land, defaulted, can bank go after the principal A: No. Third person may have recourse against principal except if it was property of principal which was involve Q: SPA may be oral? A: NO! It is a written authorization as the following provision provides: 1871 “delivers” 1872 “transmit” 1900 1902 “presentation”

Art. 1871. Between persons who are present, the acceptance of the agency may also be implied if the principal delivers his power of attorney to the agent and the latter receives it without any objection. (n) Art. 1872. Between persons who are absent, the acceptance of the agency cannot be implied from the silence of the agent, except: (1) When the principal transmits his power of attorney to the agent, who receives it without any objection; (2) When the principal entrusts to him by letter or telegram a power of

Art. 1900. So far as third persons are concerned, an act is deemed to have been performed within the scope of the agent's authority, if such act is within the terms of the power of attorney, as written, even if the agent has in fact exceeded the limits of his authority according to an understanding between the principal and the agent. (n) Art. 1902. A third person with whom the agent wishes to contract on behalf of the principal may require the presentation of the power of attorney, or the instructions as regards the agency. Private or secret orders and instructions of the principal do not prejudice third persons who have relied upon the power of attorney or instructions shown them. (n) Rights Agent

and

Obligations

of

the

❖ His main obligation is to CARRY OUT THE AGENCY. ❖ If the principal died… GR: The agency is extinguished. EXC: If it will endanger the Agency, the latter shall be continued Ex: X sold the car to Y with the breaks in a defective condition and without the principal’s knowledge, Y bought the car. Therefore, the principal incurred loss/damage. (Art. 1888- An agent shall not carry out an agency if its execution would manifestly result in loss or damage to the principal.)

Art. 1888. An agent shall not carry out an agency if its execution would

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 manifestly result in loss or damage to Case Law the principal. (n) Q: P authorized A too sell his house and A introduced prospective buyer. The buyer gave him 1K. P terminated rd the authority of the agent and the Liability of Agents to 3 persons: agent went to RD and found out that a Personally bound himself sale was consummated. A demanded Acted negligently commission, can the case prosper? Acted outside the scope of his authority SC: No. Failure of agent to deliver to ❑ Even if the agent acted principal even not owing to him the 1k outside the scope of his given by the buyer constitute a authority, the agent is NOT forfeiture of agent’s right to liable if: commission The principal ratified the agent’s acts Case Law: The 3rd person was Q: Agent to collect P800 he was able informed by the agent to collect only P500 and deducted 20% that he acted outside as commission. The 3rd person was SC: The act of the agent constitutes aware thereof estafa. CASE:Domingo vs. DomingoBAR EXAM QUESTION: Whatever commission is received by Q: A authorized B to sell property in the agent as a consequence of his Cebu, B appointed a subagent. Can B agency, albeit the absence of appoint a subagent? knowledge of the principal of the UPLAW Center: agreement between the 3rd person and the agent, the latter shall give to the A: Yes, under 1892 if it was not principal whatever he received. prohibited. The agent is not the insurer of the » Sir said with due respect to the UP principal’s success in business. law Center, the answer is erroneous. Subagent – does not take the GR: The agent cannot sell the goods relationship of B as agent; assistant on credit. agent EXC: Without consent of the principal, the sale is not void but the Art. 1892. The agent may appoint a principal holds him liable as sale in substitute if the principal has not cash basis. prohibited him from doing so; but he shall be responsible for the acts of the Q: When can agent be held liable? substitute: A: When he bound himself. (1) When he was not given the Exception: power to appoint one; 1. When the principal ratified 2. When 3rd person informed that agent is acting beyond the scope of his authority 3. When agent informed 3rd person such as when he promise to secure ratification and was not able to

(2) When he was given such power, but without designating the person, and the person appointed was notoriously incompetent or insolvent. All acts of the substitute appointed against the prohibition of the principal shall be void. (1721)

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe Notes in Civil Law Review 2

Substitute – “kapalit niya” Article 1892 shall apply » if principal was informed of the substitute Article 1892 shall not apply Modes of (EDWARD)

Extinguishment

E- expiration of the period D- death W- withdrawal A. accomplishment R- revocation D- dissolution of entity » not exclusive, Article 1231 also applies ❖ Other modes may apply to agency. BAR EXAM QUESTION

effect despite the death of the principal. ☞ Effect of death of the principal If without knowledge and the agent is in good faith, the agency is extinguished but the act of registration in good faith even after the death of the principal is valid as the law says so. On Revocation ☞ May be made anytime; at will ☞ Q: If there’s a period, will the revocation before the stipulated period hold the principal liable? A: NO.

Q: X authorized Y to sell a pendant with diamond. The pendant was robbed. X sued Y. Y’s defense is robbery. A: Austria Case -

Robbery is a fortuitous event.

-

The perpetrators need convicted of robbery.

not

be

-

For a fortuitous event to be a valid defense, there must be no concurrent event.

-

However, if it happened today, Agent is considered to be negligent. If it happened in the 60’s, the agent is not liable.

-

The SC held that the agent is liable because there’s negligence.

❖ On Death Effect of death of the agent ❑ It will absolutely extinguish the agency. If the agency is for the benefit of a 3rd person, the agency will continue to be in full force and

CASE:Barreto Agency is based on trust and confidence therefore, the principal can revoke anytime. P can only be held liable for damages if he acted in bad faith. CASE: Collongco A authorized B to sell the land for 100M. B did not remit the 100M. What was agreed was that B will be the agent of A in subdividing the land and constituting the house. The proceeds will go to A as payment. The authority granted was for 10 yrs. On the 5th yr., A revoked the authority given to B. Was the revocation valid? SC: NO. The agency is was coupled with interest and as such, it cannot be validly revoked after the interest ceases; means of fulfilling interest must be different from the commissioner given; very interest that an agent is claiming should be stated at the SPA without prejudice to his liability if revocation was done in bad faith

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 BAR QUESTION: A and B put up a car repair shop. A contributed money while B contributed his services. A likewise put up a VI. PARTNERSHIP coffee shop on the left side of the car repair shop. B likewise engaged in another business of his own. Are they legally allowed BAR EXAM: to venture into such businesses? A used all his savings to put up a restaurant, B gave A 4k as financial ANSWER: A under the facts can engage in assistance in exchange of 20% profits, 22 such services since he is only a capitalist years after B filed action demanding profits. partner. As to B, since he is an industrial A denied and invoked prescription. partner, he is prohibited from engaging in A: UP Law Center – Contract of Partneship any kind of business without the consent of exists because they contributed to a the other partners. common fund plus there was a stipulation as to profit. » Partnership may be constituted in any »Sir said, no contract of partnership exists. other form. – Article 1172 There was no agreement to contribute to a common fund, only financial assistance. Q: How about 3rd person who contracted Pvt/101707

Q: Partnership vs. Co-ownership A: Contract of partnership is created by mere agreement while co-ownership is created by operation of law. Essential Element: » object is to engage in a lawful activity  General Partnership and Limited Partnership (relevant only in Limited Partnership) Q: Can the spouses enter into a limited partnership and engage in real estate business A: Yes, prohibition is only on universal partnership Q: Can two corporations organize a general partnership, can a corporation enter into a partnership? A: No! Corporation and partnership may organize a joint venture but they cannot enter into partnership contract » Sir said that Corporation can enter into a contract of partnership if there was an express grant of power in its articles of incorporation. (Tecson vs. Bolaños) Q: What is the effect of illegality of contract? Can a partner recover what he had given if cause was illegal? A: Yes, because it will result in unjust enrichment. Q; How about if both was in pari delicto? A: If there was repudiation before there was any damage, the court is in its discretion to allow recovery

with Partnership with unlawful object, can recover? A: Yes, as long as no knowledge of the illegality 

When one or more parties contribute an immoveable If there is no inventory – VOID; If there is an inventory, but not put in

writing 

If such partnership is not put into public instrument -> it will not affect the validity of the partnership agreement, though it may affect the greater efficacy or the enforceability of the contract. Case: Hernandez v. Angeles

» Form is not necessary for the validity, maybe necessary for enforceability »ENTITY THEORY/LEGAL PERSON THEORY means that a partnership has a juridical personality separate and distinct from the partners 

A general partner can be an industrial partner.  Can a partner be both capitalist and industrial partner at the same time? YES  Can a limited partner be both an industrial and a capitalist partner at the same time? NO CLASSIFICATION OF PARTNERSHIP:

BOGS QUITAIN; TERE MORALES; PAULETTE TONGCUA; TINO OCCIANO; BUDS OCCIANO

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 I. As to Object: » in having a substitute, must be with the a) present property knowledge of the principal. (De la Peña vs. b) profits Hidalgo) II. a) General » all general partners b) Limited » one or more general and one or more limited partner; a Proportional Application of Debts: limited partner (has no right to partake in the  One obtaining is a managing management partner; Commercial Partnership » governed by  Both debts are due and Code of Commerce demandable; III. As to term:  If the partner receipted the a) maybe for a particular amount in the name of the undertaking (Ortega vs. CA) partnership  estoppel Admission of a new partner  agency »If given a question concerning  If the debt is more onerous the liability of a newly-admitted partner for a partnership obligation, ask, “when was the Property Rights of a Partner partnership obligation incurred? Was it incurred PRIOR TO /  see the 3 major AFTER the new partner’s classification of the admission to the partnership? property rights of partners Q: ABC partnership admitted D as new  plus right to formal partner. The ABC partnership incurred the accounting following liabilities. ABC- 100; X- 30K, A plus the right to the 50k. What is the liability of D as a new access of partnership partner? If A is a managing partner. book A: GR: up to capital contribution only unless he bound himself to be solidarily liable  Rights in specific NOTA BENE: application of proportionate partnership property = a sharing: partner is co-owner with his a) if A is a general partner partners of specific b) both debts are due and partnership property; see demandable 1811 = co-ownership sui c) receipt was given in generis. the name of the  Cf. co-ownership in partnership partnership law and cod) payment should be ownership in property law. applied to the most In the former, a co-owner onerous may sell his share even LIMITED PARTNER IS LIABLE WHEN: without the knowledge and a) he participated in the consent of the other comanagement owners, whereas, in b) if surname appears in the partnership law, such would partnership name except; not be allowed. a) already existing surname  Interest in partnership = b) if also the surname of a pertains to the share in general partnership profits and surplus. c) if at the same time general or limited partner » Article 1892 subagent is not equivalent to substitute

Sharing of the Partners in the Profits and in the Losses

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe



 

Notes in Civil Law Review 2 ANSWER: The secretary’s appointment will if there is a STIPULATION (except bind the partnership. As to the accountant, it when there is a stipulation where should be resolved as to the partnership one or more of the parties shall be having the controlling interest, such excluded from the profits, the controlling interest being dependent on the stipulation shall be VOID) aggregate capital contributions of those who if there is NO STIPULATION , appointed vis-à-vis those who opposed. sharing shall be in proportion to the capital contributions. What about the Industrial Partner? => give him the value of his service;  MANAGEMENT ARRANGEMENTS the balance of which should be  One managing partner distributes to the capitalist partners in proportion to their capital  Solidary management contributions.  Joint Management  Partner as Agent

BAR QUESTION: A, B, and C entered into a partnership. Agreed to Php360 share profits equally. C assigned his interest in the partnership to X. Therefore, X demanded share in the profits and management. Are these demands of X legally justifiable? ANSWER: As to the management, an assignee cannot participate in the management, not even right to access… As to the share in the profits, an assignee has the right to receive the profits the assignor would have received. As to interest, a partner may assign however limited only to the receipt of such amount and nothing more. Therefore, to receive PHp 120k (360/3)

BAR QUESTION: W (industrial partner), X (industrial partner), Y (P 50 K) and Z (P 20 K) entered into a partnership agreement. W and X will act as managing partners. Thereafter, two persons were appointed:. W and X appointed the SECRETARY, one of the two persons appointed. Y and Z however opposed such appointment. The ACCOUNTANT, the other person named, was appointed by W and Z, whose appointment was however opposed by X and Y. Whose appointment will bind the Partnership?

RIGHTS/ OBLIGATIONS OF PARTNERS 

To make good his promise to contribute MONEY PROPERTY INDUSTRY  If money = equally, unless there is a stipulation  If in default, he is a debtor of the partnership plus interest plus damages (i= 12%)  If property = ask what was actually contributed. Was it the property itself or the use of such property. If property itself => transfer ownership plus obligation to warrant in case of eviction. If thing was lost before delivery, the partner bears the loss, RES PERIT DOMINO. See Exceptions (1) FUNGIBLE (2) FOR SALE (3) WITH APPRAISAL.  Partnership bears the loss if possession is with partnership already.  If services, SPECIFIC PERFORMANCE WOULD NOT LIE. Remedy is to demand the value of service plus damages incurred by partnership PROPERTY RIGHTS: 1) specific partnership property » a partners is a co-owner as to his co-parners not partnership;l co-ownership is sui generis 2) interest 3) participate Q: Can a creditor of a co-owner levy such interest of a co-owner in a partnership land

BOGS QUITAIN; TERE MORALES; PAULETTE TONGCUA; TINO OCCIANO; BUDS OCCIANO

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 A: Yes, but he cannot do so if indebted to DISSOLUTION: partnership » change in relation where partner ceases to be associated in carrying on the business of Q: W and X are managing partners, Y-50k, partnership Z-20k. W and X were appointed as »marriage of partners not a ground secretary by 2 persons, opposed to by Y and Z; accountant appointed by W and Z but Entry of a new Partner opposed by X and Y A: In the 1st case, YZ has no right to oppose.  General Rule: It will In the second case, controlling partners dissolve the partnership shall prevail based on capital contribution.  Exceptions: Appointment shall not be valid having a) act is necessary to wing opposed by Y who has controlling interest. up partnership affairs This case is called subsidiary management b) CAUSES OF DISSOLUTION 1) extrajudicial FIDUCIARY OBLIGATIONS; Honesty and a) voluntary » No. 1 & 2 of Article Good faith starts during the negotiation 1830 stage. Obligation would continue not only up b) involuntary » No. 3-7 to dissolution but also until termination. 2) judicial Article 1831 Q: A B C assigned whole interest to X REMEDIES OF A NON-DEFAULTING against the will of A & B and decided to PARTNER dissolve the partnership, X filed for a dissolution, which dissolution will be valid?  Specific performance A: That made by A & B is valid. X was mere  Dissolution assignee, no legal interest to file dissolution for he is not by law a partner.  RESCISSION IS NOT A REMEDY AS TO DISTRIBUTION: »As to stipulation, if it excludes a partner, stipulation is void not the partnership. Share in the Losses: 1. determine agreement Q: if one partner is excluded valid? A: depends: if capitalist, stipulation is void; if industrial partner was excluded – valid among partners but void as to third persons. –Article 1816 2. if no stipulation to losses, use stipulation on the sharing of profits 3. no stipulation at all = share in their capital contribution

DEATH OF A PARTNER: » if general, partnership is not extinguished if biz nis continued or not stated due to unanimous consent. EFFECT of DISSOLUTION: » termination of authority of partners.

LIABILITY AS TO: Contractual Obiligation = joint Joint and solidarily 1822 & 1823 – tortious/ wrongful acts of partners Q: Bought set of SCRA in the account of the partnership, can partnership be liable? A: It depends if the act is for the apparent carrying of the usual business of partnership. Q: Can partnership be liable even if not related to the business? A: Yes, if such party was not authorized

LIABILITY OF SUBSTITUTE

NOT GIVEN POWER TO APPOINT

BOGS QUITAIN; TERE MORALES; PAULETTE TONGCUA; TINO OCCIANO; BUDS OCCIANO

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe Notes in Civil Law Review 2

All acts of the substitute appointed against the prohibition of the principal shall be void

LIABLE if substitute acted outside the scope of authority or there is bad faith or negligence on the part of the substitute

Loan  consider first the kind whether mutuum or commodatum  mutuum or simple loanthe agreement between the parties to constitute a loan is already a binding agreement, however, unless it is delivered there is no perfected contract of loan yet.  If the contract of loan is not yet perfected, cannot be revoked  In mutuum, if without express stipulation, contract is compensatory  case: Rep vs Bagtas

NOT LIABLE if the substitute acted within the scope of authorization representation of the principal and acted with due diligence and in good faith » the agent is not an insurer of the success of the business of the principal

EFFECTS OF APPOINMENT OF SUBSTITUTE/LIABILITY IN DAMAGE TO PRINCIPAL GIVEN POWER TO APPOINT

Designated

Not designated

Not liable unless he knew that the designated person is notoriously incompetent or already insolvent

Agent shall be responsible for the acts of the substitute if substitute is notoriously incompetent or insolvent





VII. CREDIT TRANSACTIONS  not the same as bailment  not all credit transactions are bailment  in bailment, there has to be a delivery (deposit, loan, mutuum, commodatum)  in some credit transactions, delivery is not necessary (guaranty, mortgage)  sale may be a credit transaction of the sale is on credit  not all credit transactions are contracts (judicial deposits, legal deposits)

 





case: Soccoro- What is the effect of a declaration that the interest is unconscionable? Still liable to pay interest but at the legal rate in a contract of commodatum, the bailor need not be the owner because there is no transfer of ownership in mutuum, lender has to be the owner precarium, a special form of commodatum wherein the bailor may demand the thing at will (1947) RA 8183 all monetary obligations shall be settled in Philippine currency which is the legal tender. However, parties may agree that the obligation be settled in other currencies thing pledged must be delivered to the creditor unlike in chattel mortgage and real estate mortgage

BOGS QUITAIN; TERE MORALES; PAULETTE TONGCUA; TINO OCCIANO; BUDS OCCIANO

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe

Notes in Civil Law Review 2 Deposit debtor  essentially gratuitous,  surety- insures the unless stipulated otherwise solvency of the debt  irregular deposits- a depositary has the right to Pledge/ Mortgage use the thing  in deposit, object cannot  free disposition refer to future thing means that the because it requires delivery mortgagor should be capacitated  characteristics  pledge may be perfected even if a) principal delivery is merely b) real constructive c) gratuitous or onerous  liability of the pledgor  kinds of deposit or mortgagor is only up to the value of the a) judicial pledged/ mortgaged b) extra-judicial property. Nawala na sa kanya yung property, i. Conventional / voluntary kaya tama na yun unless ii. Necessary expressly stipulated iii. Legal otherwise  creditor cannot recover if property is covered by Recto Law Guaranty  no right of redemption in chattel  covered by the mortgage and pledge Statute of Frauds 1. Personal- personal commitment to answer for the debt, default of another 2. Real – guarantor delivers collateral a. pledge b. chattel mortgage c. real estate mortgage d. antichresis     

continuing guaranty – Art. 2053 the only parties in guaranty are the creditor and the debtor sub guarantorbenefit of excussion co-guarantor- benefit of division guarantor- insures the solvency of the

TABLE 1

PLEDGE

All are accessory contracts A pledge or mortgage cannot exist without a valid obligation

Real Article 1316, Article 2093)

Unilateral

But a promise to constitute a pledge gives rise to a personal action between the parties; public interest.

BOGS QUITAIN; TERE MORALES; PAULETTE TONGCUA; TINO OCCIANO; BUDS OCCIANO

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe Notes in Civil Law Review 2 unilateral

CHATTEL MORTGAGE

Nevertheless, a pledgor or mortgagor maybe constituted to guarantee the performance of a voidable/ unenforceable contract. It may guarantee a natural obligation

REAL ESTATE MORTGAGE » maybe foreclosed even if only written in a private instrument

Solemn or Formal (De leon) CM Registration is indepensable. If not recorded, binding on the parties. Promise to constitute mortgage. Affidavit of GF to binf 3rd parties. If not executed, mortgage may still bind third persons if the latter had knowledge of the promise to constitute mortgage

Solemn. (Vitug) Must be recorded, if not binding to parties. promise» personal/action

BILATERAL ANTICHRESIS

A conditional obligation may also be secured.

Solemn. Amount of principal and interest must be in writing, if not void.

TABLE 2

BOGS QUITAIN; TERE MORALES; PAULETTE TONGCUA; TINO OCCIANO; BUDS OCCIANO

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe Notes in Civil Law Review 2

KINDS

PLEDGE

RIGHT TO USE

RIGHT TO APPROPRIATE (PACTUM COMMISORIUM)

INDIVISIBILITY

NONE, unless 1. authorized 2. necessary for the preservation of the thing

Creditor cannot appropriate. Any stipulation to the contrary is null and void.

Pledgor or Mortgagor is indivisible, eventhough debt may be divided among the successors-ininterest of the debtor/ creditor.

CHATTEL MORTGAGE

Not applicable unless stipulated

REAL ESTATE MORTGAGE

Not applicable unless stipulated

ANTICHRESIS

Only right to receive fruits unless stipulated.

However, in pledge, if at the first auction the thing sold, a 2nd one with the same formalities shall be held, but there is no sale either. Creditor may appropriate but the shall acquit the entire claim. Encashment of a deposit certificate given as security. » not postdated check (Chua vs. CA, Sept. 26, 1989)

EXCEPT: Where several things are given in a pledge or mortgage, each one of them guarantees only a determinate portion of the credit. Right of Extinguishment. Indivisibility is not affected by the fact that the debtors are not solidarily liable.

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TABLE 3: RIGHTS OF MORTGAGOR KINDS

PLEDGE

CHATTEL MORTGAGE

RIGHT OF SALE/ FORECLOSURE

RIGHT TO BID

RIGHT TO RECOVER DEFICIENCY

SPECIFIC PERFORMANCE

Article 2112 The creditor to whom the credit has not been satisfied in due time pledged may proceed before a NP. X x x

YES. Provided he is the not the only bidder. Article 2113

VOLUNTARY: None even if there’s stipulation. Article 2112, Article 2115

YES, but pledged deemed abandoned.

1. Judicial Foreclosure Sec.13 Article 1508

LEGAL: YES

YES. Except on installment.

YES, but chattel mortgage deemed abandone

YES. Rules of Court on Foreclosure.

YES, but security deemed abandoned.

2. Extrajudicial Foreclosure Sec. 14 Article 1508

REAL ESTATE MORTGAGE

ANTICHRESIS

1. Judicial (Rule 68 of the Rules of Court) 2. Extrajudicial Foreclosure Act. 3135

TABLE 4: RIGHTS OF PLEDGOR

KINDS

RIGHT TO ALIENATE

RIGHT TO BID

RIGHT TO RECOVER EXCESS

EQUITY OF REDEMPTION

PLEDGE ARTICLE 2097 YES! ARTICLE 2108 YES ARTICLE 2113 VOLUNTARY: NONE: ARTICLE 2115 LEGAL: YES, ARTICLE 2121 NONE

CHATTEL MORTGAGE Sale valid and buyer may acquire ownership but if not consented to by mortgagee, mortgagor is criminally liable. (Art. 319 RPC) YES. Act 1528 Equity of redemption within 90 days from order of foreclosure. After foreclosure no right of redemption. Equity of redemption within 90 days from foreclosure. After foreclosure no right of redemption. Except foreclosure of real property by banking institution and in extrajudicial foreclosure of real property—full amount of purchase price within 1 year REAL ESTATE MORTGAGE Article 2130 A stipulation forbidding the owner from alienating the immovable mortgaged shall be void. YES (Rules of Court on Foreclosures)

ANTICHRESIS

Same as above, Article 2130.

YES. Article 2137, Rules on Foreclosures

VII. TORTS » there is no need for a pre-existing contract Q: Why file for action for quasi-delict? A: Claim for moral damages which has many grounds Essential Elements: I. Act or Omission there being fault/negligence » negligent act, even acts punished by law Dulay vs. CA » Quasi-delict is not limited to negligent acts, even a malicious or intentional act may be the basis of a quasi delict. Article 2177 » acts punished by law maybe the basis, the only exception is that there be no double recovery Q: May an action for quasi-delict subsist with a criminal case? A: Yes, they are distinct from each other

Q: Driver in a acquitted in a criminal case, heirs filed civil case for quasi-delict, may action prosper? A: Yes, in quasi delict mere preponderance of evi is enough II. DAMAGES » any hurt or harm inflicted Q: What will be the degree of diligence required? A: That of a good father of a family or that which the law provides Extraordinary » common carrier, doctors, banks Q: Who has the burden of proof? A: plaintiff III. CAUSAL CONNECTION BETWEEN ACT OR OMISSION AND DAMAGE

- end-

Share niyo to! To God be the glory

MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe notes Civil Law Review 2

Bogs Quitain; Tere Morales; Paulette Tongcua; Tino Occiano; Budz Occiano

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MOTO-Q NOTES Morales, Occiano, Tongcua, Occiano, Quitain

Atty. Crisostomo Uribe notes Civil Law Review 2

Bogs Quitain; Tere Morales; Paulette Tongcua; Tino Occiano; Budz Occiano

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