Art. 1226. In obligations with a penal clause, the penalty shall substitute the indemnity for damages
and the payment of interests in case of noncompliance, if there is no stipulation to the contrary.
Nevertheless, damages shall be paid if the obligor refuses to pay the penalty or is guilty of fraud in the
fulfillment of the obligation.
The penalty may be enforced only when it is demandable in accordance with the provisions of this
Code.
Penal clause is an accessory undertaking to ensure performance of obligation. It is found generally ins
ervice agreements where one is to render a service. The failure thereof would attach a penalty.
Two functions:
1. To provide liquidated damages.
Penal clause is akin to liquidated damages.
2. To strengthen coervice force of obligation with thtethrea tof greater responsibility in the even of
breach
Classifications:
1. Subsidiary or Alternative – substitutes damages suffered by creditor
2. Joint or Cumulative – creditor may have both principal undertaking plus damages. The purpose
is for punishment
Forms of penalty:
1. Monetary
2. Forfeiture which is very common in contract of lease.
3. Abstention – You are forbidden to do something
EX. This is common in construction agreements that in the event of contractor’s failure to finish the
construction within the period stipulated in the agreement, the contractor is liable to pay damages.
Instances where aside from damages, they can be made liable to pay for principal:
1. Refuses to pay penalty
2. Guilty of fraud in the performance of obligation
3. Express stipulation
Art. 1227. The debtor cannot exempt himself from the performance of the obligation by paying the
penalty, save in the case where this right has been expressly reserved for him. Neither can the
creditor demand the fulfillment of the obligation and the satisfaction of the penalty at the same time,
unless this right has been clearly granted him. However, if after the creditor has decided to require
the fulfillment of the obligation, the performance thereof should become impossible without his fault,
the penalty may be enforced.
1
Debtor cannot exempt himself from performing the obligation by paying the penalty unless it has been
expressly reserved. This must be either orally given or in a written form. The same goes with the
creditor.
Art. 1228. Proof of actual damages suffered by the creditor is not necessary in order that the penalty
may be demanded.
No need to prove damages suffered only that the parties are bound to what is stipulated in the
agreement. It is limited to only what is agreed upon and cannot go beyond the agreement.
Art. 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly
or irregularly complied with by the debtor. Even if there has been no performance, the penalty may
also be reduced by the courts if it is iniquitous or unconscionable.
There can be equitable reduction of the penalty if the obligation has been partly complied with.
Partial – extent of performance
Irregular – form of object of obligation
Court can also reduce the penalty even if there is no performance if it is unconscionable. It is only the
courts who will appreciate if the penalty is indeed iniquitous or unconscionable. It is not for the parties
to decide.
Ex. Contract of card holder says that the obligation of payment of amount due is on the first day of the
month, you have to comply with it even if there is no demand. It does away with demand because of the
penalty imposed.
If there is plurality of debtors or creditors, in the absence of agreement, the penalty is joint. But the
parties may agree that the penalty is solidary. If the principal is solidary, the accessory should also be
solidary because it derives its life from the principal undertaking.
Art. 1230. The nullity of the penal clause does not carry with it that of the principal obligation.
The nullity of the principal obligation carries with it that of the penal clause.
The principal does not depend upon the validity of the penal clause. However, if the principal obligation
is void then necessarily the penal clause is void.
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Chapter 4 Extinguishment of Obligations General Provisions
Article 1231. Obligations are extinguished:
(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor and debtor;
(5) By compensation;
(6) By novation.
Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory
condition, and prescription, are governed elsewhere in this Code. (1156a)
What is “Payment”?
Payment, as defined by 1231, does not only refer to the delivery of money, but it would also include the
performance of the obligation, in any other manner.
How does it extinguish obligation?
For Payment to totally extinguish obligation, Art. 1233 requires that it must be rendered completely or
delivered completely by the debtor, subject to the exceptions.
What is “loss of the thing due”?
Loss of the thing due refers to Art. 1189. That would also include impossibility of the obligation because
if the performance becomes impossible, then there is loss of the performance of the obligation.
What is “condonation or remission of the debt”?
This is akin to donation because condonation or remission is basically based on the liberality of the
creditor whereby he would condone the obligation.
3
What is “novation”?
Novation does not extinguish obligation. It is merely a mode for modifying an obligation. While it may be
true that the old obligation is extinguish, however, a new one is created.
What are “other causes” referred to by the article?
Other causes can be Annulment, Rescission, Fulfillment of a resolutory condition, Prescription, and
death.
Annulment only be invoked or instituted by the party who is injured, not the party who caused the
defect. Annullable contracts are defective contracts, valid until annulled for the reason that the capacity
of one of the contracting parties or there is vitiation of consent employed by the contracting party to the
other contracting party.
Rescission would refer to rescission, not under Art. 11911, but refers to Art. 1381 (3) governing those
contracts entered into intended to defraud creditors.
The fulfillment of a resolutory condition because as soon as the resolutory condition is fulfilled, the
obligation is extinguished.
Prescription refers to extinctive prescription.
Death of one of the parties, as a general rule does not extinguish an obligation because if the debtor
dies, the creditor can still run after the estate of the debtor, unless the obligation is purely personal on
the part of one of the parties. I.e. in a contract of agency, as soon as any of the parties in a contract of
agency dies, like the agent, the powers conferred to the agent by the principal cannot be transmitted to
the heirs. That is purely personal on the part of the agent. Likewise, if the principal dies, the powers that
he conferred upon the agent, cannot be transferred by the principal to his heirs. The contract of agency
is only between the agent and the principal.
1
Art 1191 refers to the undoing or unmaking of an obligation. So it is as if there is no obligation entered into by the
parties because they are restored to their status prior to the creation of the obligation.
4
Does change of status extinguish an obligation?
Change of status does not extinguish obligation.
SECTION 1 Payment or Performance
Article 1232. Payment means not only the delivery of money but also the performance, in any other
manner, of an obligation. (n)
Article 1233. A debt shall not be understood to have been paid unless the thing or service in which the
obligation consists has been completely delivered or rendered, as the case may be. (1157)
How does a debt become extinguished?
For a debt to become fully extinguished by reason of payment, the law provides that there has been
complete delivery or rendering the service or the thing that is supposed to be the object or prestation.
Are there any exceptions to this rule?
The exceptions are found in Art. 1234 and 1235.
Article 1234. If the obligation has been substantially performed in good faith, the obligor may recover as
though there had been a strict and complete fulfillment, less damages suffered by the obligee. (n)
This article refers to substantial performance of the debtor in good faith. Thus, the debtor recovers as if
there has been complete fulfillment, less the damages suffered by the creditor.
5
Article 1235. When the obligee accepts the performance, knowing its incompleteness or irregularity,
and without expressing any protest or objection, the obligation is deemed fully complied with. (n)
This article refers to the acceptance of the creditor, partially or irregular performance, despite the
knowledge of such impartial performance or irregularity, without any protest or objection. Thus, the
obligation is deemed to have been fully complied with.
Article 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)
What is the general rule for payments by a third person?
Payments made by a third person to the creditor, shall not compel the creditor to accept such payment.
Does it apply to all third persons?
No, the third person must have no interest in the fulfillment of the obligation.
Who are considered persons in interest?
I.e. If the third person is a co-debtor or a successor-in-interest who pays, then he is not considered to be
a person interested in the fulfillment of the obligation. These are persons interested in the fulfillment of
the obligation.
6
I.e. If the brother of the married debtor pays, the brother who offers to pay is considered to be a
stranger to the obligation. This is because he ceases to be an heir by reason of the marriage. The heir of
the debtor would be the children and the spouse. If the brother offers to pay, the creditor cannot be
compelled to accept payment because he is not a person interested in the fulfillment of the obligation.
If the creditor accepts, then there is extinguished of obligation and the payment is considered to be
valid.
How much is a third person entitled for reimbursement of his payment?
Unless it does not fall under Art. 1238 where the third person does not intend to be reimbursed, it
would depend whether the payment made by the third person is with the consent of the debtor.
Payment of third person without the consent of debtor v. Payment of third person with the consent of
debtor
Without Consent of
The third person who
the debtor, even with pays is only entitled
to so much that has
knowledge
redounded to the
benefit of the debtor.
If the obligation
consists of a sum of
money, secured by a
mortgage or a
penalty,
Without the Consent
of the debtor and the
Creditor accepts
without telling the
third person that
there was already
partial payment;
However the creditor
accepted the whole
The third person who
pays can only
demand from the
debtor so much only
as to the benefit that
has redounded to the
benefit of the debtor.
7
sum of money
Article 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)
To whom can the third person ask for reimbursement?
The third person can run after the creditor for reimbursement because the payment was made without
the debtor’s consent.
Can the third person compel the creditor to subrogate his rights on to him?
Since this obligation has a security, the third person cannot compel the creditor to subrogate him into
his rights, that those arising from pledge, mortgage, guaranty or penalty because it was made without
his consent.
Can there be full reimbursement?
If the debtor consents with his payment, he will be entitled to full reimbursement plus the right to be
subrogated to the rights of the creditor if the debtor fails to pay, he can foreclose the mortgage and sell
the pledge through public auction, demand payment of the penalty as stipulated by the parties.
8
Article 1238. Payment made by a third person who does not intend to be reimbursed by the debtor is
deemed to be a donation, which requires the debtor's consent. But the payment is in any case valid as
to the creditor who has accepted it. (n)
Any form necessary?
If the amount is more than 5,000 pesos, to be a valid, it must be in writing. Also, the acceptance must be
in writing. (Art. 17 of the Civil Code)
Article 1239. In obligations to give, payment made by one who does not have the free disposal of the
thing due and capacity to alienate it shall not be valid, without prejudice to the provisions of article 1427
under the Title on "Natural Obligations." (1160a)
What is the general rule on incapacitated persons?
Payment made by a minor or an incapacitated person shall not be valid.
Are there any exceptions to this rule?
Except in Art. 1427, if the creditor, referring to an incapacitated person who enters into a contract, and
delivers a sum of money or a fungible thing2 and the creditor accepts and consumes the money or the
thing, then it shall be considered and valid.
2
By its very nature it must be consumed
9
Article 1240. Payment shall be made to the person3 in whose favor the obligation has been constituted,
or his successor in interest, or any person authorized to receive it. (1162a)
To whom shall payment be made?
Payment shall be made to the person in whose favor the obligation is constituted because at the time of
the creation of the obligation, the creditor need not be determinate. It is sufficient that he is
determinable, provided that he is determinate at the time of the commencement of the obligation.
I.e. Art. 1242, in possession of the credit and not the evidence of credit; A promissory note payable to
bearer or payable to ‘Cash’
What does ‘any person authorized to receive it’ entail?
It is instructive. In the cases of Allied Banking v. Lim Sio Wan & PNB v. Tan, even if the bank says that the
payment made to Gonzaga is valid, because she presented the Special Power of Attorney or Tan authorized
her to receive the payment, this was not appreciated by the court. In the case of Culaba v. CA, the person
who collected the payment was in uniform, armed with an ID, using the vehicle of the company, issued the
receipt, and yet the court said that there is no payment.
3
Take note that the provision did not say “creditor”
10
Article 1241. Payment to a person who is incapacitated to administer his property shall be valid if he has
kept the thing delivered, or insofar as the payment has been beneficial to him.
Payment made to a third person shall also be valid insofar as it has redounded to the benefit of the
creditor. Such benefit to the creditor need not be proved in the following cases:
(1) If after the payment, the third person acquires the creditor's rights;
(2) If the creditor ratifies the payment to the third person;
(3) If by the creditor's conduct, the debtor has been led to believe that the third person had authority to
receive the payment. (1163a)
What is the rule on payment made to an incapacitated person?
Such payment will only be valid if the incapacitated person has kept the thing or it has redounded to his
benefit.
i.e. Paying the tuition fees or using such payment for his basic necessities
What is the rule on payments made by the debtor to a third person?
It shall only be valid if the debtor is able to prove that the payment made to the third person has
redounded to the benefit of the creditor.
Are there any exceptions?
Debtor does not have to prove that it has redounded to the benefit of the creditor if the following are
present:
(1) If the third person acquires the rights of the creditor; i.e. if he becomes the owner of the thing
(2) If he ratifies the payment
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(3) The application of the principle of estoppel by the creditor's conduct, the debtor was led to believe
that the third person was authorized.
(4) Other instances would refer to Article 1242.
(5) Compensation by the creditor where the he assigns his credit to a third person without informing the
debtor, and still the debtor pays the original creditor;
Article 1242. Payment made in good faith to any person in possession of the credit shall release the
debtor. (1164)
What is considered as an ‘evidence of credit’?
A promissory note, or a check, is an evidence of credit.
When is it considered as ‘the credit itself’ and not mere evidence?
If the promissory note is payable to bearer, or the check is payable to bearer, the credit itself ceases to
be the evidence of credit because if the check is payable to the owner, the only person who can
negotiate it is the person named on the negotiable instrument. If it is pay to cash or pay to bearer,
whoever is in possession of that is presumed to be the owner of the instrument. The presentation of
such in the bank, the bank merely acknowledges that he is the owner.
Article 1243. Payment made to the creditor by the debtor after the latter has been judicially ordered to
retain the debt shall not be valid. (1165)
What is garnishment?
Suppose the parties, despite demands made by the creditor upon the debtor, the debtor cannot fulfill
the obligation. There is no way for him to fulfill such obligation. However, the creditor has knowledge
that the debtor has some deposit to the bank. The creditor obtains an order in the court enjoining the
bank from further releasing funds from the account of the debtor.
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Article 1244-1256 1st part- Wala gsend san aka assigned!
[continuation of Art. 1256]
SUBSECTION 3. - Tender of Payment and Consignation
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:
(1) When the creditor is absent or unknown, or does not appear at the place of payment;
(2) When he is incapacitated to receive the payment at the time it is due;
(3) When, without just cause, he refuses to give a receipt;
(4) When two or more persons claim the same right to collect;
(5) When the title of the obligation has been lost. (1176a)
Art. 1257. In order that the consignation of the thing due may release the obligor, it must first
be announced to the persons interested in the fulfillment of the obligation.
The consignation shall be ineffectual if it is not made strictly in consonance with the provisions
which regulate payment. (1177)
Art. 1258. Consignation shall be made by depositing the things due at the disposal of judicial
authority, before whom the tender of payment shall be proved, in a proper case, and the
announcement of the consignation in other cases.
The consignation having been made, the interested parties shall also be notified thereof. (1178)
Art. 1259. The expenses of consignation, when properly made, shall be charged against the
creditor. (1178)
What has been tendered without just cause
It is considered to be a refusal without just cause if what has been tendered is the very thing
due, the obligations are already due and demandable unless the period is for the benefit of the obligor.
Always remember that if the period is for the benefit of the obligor, the obligor can always perform the
obligation even before the arrival of the period and the creditor cannot refuse to accept what has been
tendered because the period is for the benefit of the debtor.
There is a just refusal if the creditor refuses to accept what has been tendered without just
cause. So, the formalities of the consignation shall follow but in order for Article 1256 on tender of
payment and consignation to apply, there are certain requisites that must be complied with:
First of course, is that there must be a debt owing [Art. 1256, par. 1] because without a debt
owing mere tender alone is sufficient, no need of a subsequent consignation. So, the exercise of a right,
13
like the right of repurchase or the right of exercise of legal redemption or the right to exercise a
privilege. An option contract is merely a privilege, it may be denied by the offeror (when we go to article
1324 that is a discussion of an option contract).
As decided by the Supreme Court in the case of ----- v Bernabe, these are examples where mere
tender alone shall protect the interest of the person making the tender without need of any further act
referring to the subsequent act of consignation because according to the court in that case, there is no
debt owing. It is an exercise of a right or an exercise of a privilege.
The second requirement is there must be unjust refusal on the part of the persons interested
in the fulfillment of the obligation to accept the very thing due [Art. 1256].
Third, before consignation is made the debtor has to make a previous notice of that
consignation [Art. 1257]. Otherwise without that previous notice- take note of the provision of the law,
it did not say invalidate, it says ineffectual- it means that without the previous notice the consignation is
considered ineffectual, it is not binding on the creditor. Why? Because if the court finds that
consignation is proper or expenses related to the consignation shall be borne by the creditor. That’s the
reason why there must be that previous notice of the consignation. Thus, that notice is to give the
creditor or the persons interested- it says persons interested in the fulfillment of the obligation- it does
not say creditor because there are other persons interested in the fulfillment of the obligation, it may be
the solidary, mortgagors, guarantors, sureties. So, to give these persons interested in the fulfillment of
the obligation, a chance to withdraw the thing prior to the finding of the court that consignation is
proper.
Fourth, is to consign the very thing due with the proper judicial authorities [Art. 1258]. Thus, in
one case the Supreme court held that the consignation of the rentals due by the lessee to the office of
the civil affairs during martial law is not the consignation contemplated under obligations and contracts
because the office of the civilian affairs is not the judicial authorities within the meaning of the
provisions on the tender of payment and consignation. So, this must be deposited on the proper judicial
authorities.
Then after consigning it, there has to be a subsequent notice [Art. 1258] that persons
interested in the fulfillment of the obligation. Why is there a need to notify again? For the same
purpose, to notify the persons interested in the fulfillment of the obligation that consignation has been
made AND before the court finds that consignation is proper, to withdraw it, because it might be that
the very thing due is fungible and we know that a fungible thing might be perishable. So, while the thing
is still consigned in court and the court finds that consignation is proper, any deterioration on the thing
consigned shall be borne by the creditor. However, if it improves then any improvement shall inure to
the benefit of the creditor.
If the court finds that consignation is proper, when is it deemed to have taken
effect? And what are the effects?
14
It is deemed to have taken effect from the very time the consignation is made, that from the
time that the court declares the consignation is proper and if it produces interest, interest stops not
from the time of the finding by the court that consignation is proper but from the time the very thing
due has been consigned to the court.
Art. 1260. Once the consignation has been duly made, the debtor may ask the judge to order the
cancellation of the obligation.
Before the creditor has accepted the consignation, or before a judicial declaration that the consignation
has been properly made, the debtor may withdraw the thing or the sum deposited, allowing the
obligation to remain in force. (1180)
May the debtor, as a matter of right, withdraw the thing consigned?
Yes, before the court finds the consignation proper or before the creditor accepts because he
can accept the thing consigned without the court finding that consignation is proper. Remember that
there’s the requirement of previous notice to the parties interested in fulfillment of the obligation. But if
there’s already acceptance on the part of the creditor or the court declared that consignation is proper
then he has to consent to the withdrawal because his consent is necessary because he might lose the
preference of credit over the thing consigned such as those arising from mortgage, surety, guaranty or --.
So, what happens to the obligation? The obligation becomes an unsecured simple obligation.
Only there is a revival of the obligation but it is not 100% revival. It already becomes an unsecured
simple obligation, he loses all preference he have over the thing consigned which is different if the
withdrawal is made before the court finds the consignation proper or the creditor and persons
interested in the fulfillment of the obligation accepts the things consigned, because there is a 100%
revival of the obligation.
SECTION 2. - Loss of the Thing Due
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)
Art. 1263. In an obligation to deliver a generic thing, the loss or destruction of anything of the same kind
does not extinguish the obligation. (n)
15
Loss of the thing due
Loss of the thing due when its determinate shall extinguish the obligation subject to the
following exceptions: if the object or prestation is indeterminate or generic even if it is determinate but
(1) the debtor has already incurred in delay he has promised to deliver the same thing to two creditors
who does not have the same interest, (2) if the fortuitous event is coupled with the negligence of the
obligor, (3) if the stipulation of the parties so required, (4) the nature of the obligation requires the
assumption of risk, (5) the law so provides, (6) if it arises from a crime and the object is determinate
regardless of the cause or the loss whether fortuitous, the obligation still subsists unless the person
who is to receive it accepts it without just cause then he is relieved from the obligation
Theft does not extinguish the obligation, it means that there is loss because there is negligence
of the obligor but robbery if there is violence employed upon the person, then robbery can be
considered as a fortuitous event as to relieve the obligor from the obligation.
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)
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)
Partial loss (1264)
Who shall determine partial loss? The courts. Whether under the circumstances the partial loss
of the object or the obligation is so important as to extinguish the obligation.
Example, you bought a property at Las Terrazas because of the view it affords you, so you go to
the highest portion of the subdivision and you have the view of Davao Gulf, so you bought the property
because of the view and not because of the property but it is the location of the property (the primary
reason). Suppose Japanese businessmen will now put up a very high rise building and now the view is
obliterated by the tall building, so it is now dependent on whether he bought the property because it is
located at Las Terrazas so there is that particular safety concerns, as it is a gated subdivision then the
presumption is that he is safe but if he bought the property because of the view there is no total loss, it
is merely partial. Let the courts determine unless it is the very reason why the buyer entered into
contract then it can be considered total loss.
So, what presumption shall arise if the thing is lost while it is still in the possession of the
debtor? It is lost because of his negligence or fault (1265). The burden of proof is on the part of the
debtor to prove that the loss is not by reason of his fault. This presumption does not apply in case of
16
earthquake, flood, storm or other natural calamity because these are considered to be fortuitous events
but before the debtor has incurred in delay and the object to deliver is a determinate object.
Art. 1266. The debtor in obligations to do shall also be released when the prestation becomes legally or
physically impossible without the fault of the obligor. (1184a)
Impossibility (1266)
When shall the impossibility occur? It must occur at the time of the performance of the
obligation because if the impossibility occurs at the time of the creation of the obligation, the obligation
is void. If it existed at the time of the creation of the obligation, then there is no obligation to speak of.
So, if it is to be performed at the time of performance the impossibility arises, take note that 1266 only
applies to obligations to do, it does not apply to obligations to give specially to give generic objects, so
this only applies to services.
The impossibility might be deemed by reason of natural impossibility, by its nature becomes
impossible to perform, it might be legal by reason of the law, it might be subjective when you hire the
services of the debtor because he will perform the service himself not taking into account that this can
be done by another person, objective if without considering the person but the act to be performed.
The Gary Valenciano example. It is subjective when you hire Gary himself because he can sing
without taking into account whether he can really sing metal rock (not his forte), so he cannot do that,
he does not have the qualifications for it but because you hired him for what he is regardless of whether
he can do it then that is subjective. But if you hired him because he can sing and you thought that he can
sing metallic rock, it now becomes objective because it is the qualification without going to the person
himself.
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)
Doctrine of Unforeseen Events or rebus sic stantibus (1267)
The general presumption is that parties to an obligation are presumed or assumed unfavorable
developments that would arise by reason of the obligation that they have entered into. So, they cannot
relieve themselves from the obligation if there will be unfavorable developments. Take note that 1267
applies ONLY to services, it does not apply to obligations to give. This would not apply to indebtedness
that would be covered by 1250 on extraordinary inflation or deflation. 1267 is very limited in
application, only to services.
Here, the general principle is when parties enter into an obligation they are presumed or
assumed the unfavorable developments that come with it. But if the supervening event is such that it
17
renders the service manifested beyond the contemplation of the parties, then the court may relieve in
whole or in part, the obligor from performing the obligation but performance must not be impossible
otherwise 1266 will be applied. There is merely difficulty in the performance of the obligation.
1267 does not apply to monetary obligations, this will be governed by 1250 on extraordinary
inflation. This will also not apply to aleatory contracts, example of an aleatory contract are insurance
contracts. Where fulfillment would depend on the happening of the contingency insured against and
highly speculative agreements.
What are the requisites in order for the debtor to invoke 1267 to relieve himself in whole or in
part from the obligation? (1) The event or change in circumstances could not have been foreseen at
the time of the execution of the contract [Magat, Jr v. Court of Appeals]. (2) It makes the performance
of the contract extremely difficult but not impossible, because if it becomes impossible it would be
under 1266. (3) The event must not be due to the act of any of the parties; and (4) the contract must
be for a future prestation.
Article 1268-binasa lang ni maam1269 - The obligation having been extinguished by the loss of the
thing, the creditor shall have all the rights of action which the debtor may have against third persons
by reason of the loss.
This is very common in insurance contracts. You remember the case of Gaisano Cagayan where the
Levi’s demanded payment from the insurance company and the insurance company paid the__ and in
turn the insurance company demanded from Gaisano Cagayan or another example if the vehicle, your
vehicle is hit by another vehicle. Then the third person will report the insurance company to demand
reimbursement from the insurance company from the damages of the accident
Now we go to the Condonation or Remission of the Debt. Condonation or remission is actually akin to a
donation because the cause of consideration is the liberality of the creditor. That is why it’s bilateral
because it requires acceptance but it is not reciprocal because there is no consideration given by reason
of condonation or remission.
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.
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 but if
it is an express condonation or remission the requirement on ordinary obligation must be complied
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with. Now, the requirement is it must observe the formalities of donation is actually for validity because
if you remember in your article 17 of CC forms and solemenities may be 1) for validity, 2) For
enforceability nad 3) for convenience or to affect third persons. Here the requirement if it is the express
remission that it must conform with the formalities of donation is for purposes of validity.
So if what is condoned is money or movable, money is a perfect example of movable object, if the value
thereof exceeds Php 5,000 the law requires for it to become a valid one, this must be in writing and the
acceptance likewise also be in writing.
But if what is condoned or remitted is to deliver and immovable, so it might be a land or a house and lot,
the law requires in order for it to be valid that it must be in a public instrument (the condonation or
remission) and the acceptance of the debtor must be in public instrument. This means it requires the
intervention of the lawyer or a notary public in order for it to become a public document.
And that is what it means by formalities of donation.
Art. 1271 The delivery of a private document evidencing a credit, made voluntarily by the creditor to
the debtor, implies the renunciation of the action which the former had against the latter.
If in order to nullify this waiver it should be claimed to be inofficious, the debtor and his heirs may
uphold it by proving that the delivery of the document was made in virtue of payment of the debt.
IMPLIED CONDONATION OR REMISSION
What does private document mean? So, if there is a promissory note and the parties signed it without
any lawyer this is what you call a private document.
Now suppose the promissory note has three copies. So, you have the original, then you have the
duplicate original and then we have the triplicate original. Now when shall the duplicate or triplicate
become original? If all these are originally signed by the parties. In Transpacific, the Court said that it
must be the original of the original that must be delivered by the creditor to the debtor and delivery
must be voluntary in order to arise the presumption of renunciation or remission of the obligation.
NOTE: Now even if the original is delivered by the creditor to the debtor if is a public document, no
presumption shall arise that there is renunciation or remission or condonation. Why? If it is a public
document it means that there is this authorization made by the lawyer. The lawyer holds one of the
copies and submits it to the clerk of court at the end of the month.
So, even if the original of the original is delivered to the debtor, no presumption that there is
renunciation or remission or condonation of the debt because there are still copies of the promissory
note available in the office of the lawyer or in the office of the clerk of court.
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The second paragraph is the defense available to the debtor
Now what if the renunciation or remission is inofficious and this will now be questioned by the heirs of
the creditor (Inofficious – excessive)
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.
Now suppose the promissory note is found in the possession of the debtor and in the back thereof there
is full payment, does there immediately arise the presumption of renunciation? NO. It must have been
signed by the creditor. Unless, there is a receipt attached to it. In the absence of a receipt, there is no
performance of the obligation
The burden of proof is on the part of the creditor.
Art. 1273. The renunciation of the principal debt shall extinguish the accessory obligations; but the
waiver of the latter shall leave the former in force.
Because the life of the accessory obligation is dependent upon the life of the principal obligation but if
what is in the possession of the debtor is the release mortgage no presumption shall arise or that the
obligation had been renounced. But if the principal is renounced then it stands for a reason that the
accessory obligation is also renounced because it is dependent upon the principal obligation.
Art. 1274. It is presumed that the accessory obligation of pledge has been remitted when the thing
pledged, after its delivery to the creditor, is found in the possession of the debtor, or of a third person
who owns the thing.
It is not necessary true that when you pledge a thing, you are the owner thereof. The pawnshop does
not require proof of ownership of the person obtaining a loan secured by a pledge. But if it owned a by a
third person found in the possession of a third person no presumption shall arise that the principal
obligation of loan secured by a pledge is released - only the thing pledged.
Confusion or Merger of Rights
There is also confusion or merger of rights on property of rights. One is the merger on the right of
usufructury (Art 1189). Now what is only transferred in the usufructury is the possession of the thing
that is the object of the usufruct. Ownership is still retained by related owner. It’s called such because
he is deprived of the physical possession. He is only retaining ownership thereof. Suppose the
usufructury acquires the thing in usufruct. That is merger. Now that is not merger or confusion that is
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covered by our discussion. Likewise, in the road right of way, the estate acquiring the dominant estate,
there is also merger because ownership over the two is now conferred to one person.
Art. 1275. The obligation is extinguished from the time the characters of creditor and debtor are
merged in the same person.
Simple explanation: A who borrowed money from B to secure issues a promissory note. B negotiates the
promissory note to C who in turn negotiates that to D and D negotiates the promissory note to A.
In order for confusion or merger to arise, there are 3 requisites that must be complied with
1.) It must take place between the creditor and the principal debtor
(There is no merger if the creditor acquires a thing mortgaged uses as a security in the loan)
2.) It must be the very same thing of obligation that must be involved
3.) Confusion must be total or as regards to the entire obligation except Art. 1277.
Art. 1276. Merger which takes place in the person of the principal debtor or creditor benefits the
guarantors. Confusion which takes place in the person of any of the latter does not extinguish the
obligation.
Confusion which takes place in the person of any of the latter does not extinguish the obligation
because the second requirement or requisite is not complied with.
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.
Compensation
A owes B 1000. B owes A 1000. Instead of paying you just compensate.
May all types of obligation be the subject of compensation? (Whether it is legal, conventional,
facultative or judicial)
-
-
NO, because if one obligation is simple and the other is alternative or facultative. It cannot be the
subject of compensation. Likewise, if one obligation is one with a penal clause and the other is a
simple obligation, there can also be no compensation. If one has a suspensive condition, there can
be no compensation.
What if it is subject to resolutory compensation? Pwede? YES because one of the characteristics of
an obligation with resolutory condition is that it is immediately demandable but not when it is
subject to suspensive condition in order for the obligation to arise. Although the suspensive
condition is not an essential element to the obligation. Nonetheless, the fulfillment thereof would
depend upon the happening of the condition.
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Art. 1278. Compensation shall take place when two persons, in their own right, are creditors and
debtors of each other
Not only creditors and debtors of each other. They must be PRINCIPALLY be bound because if one is
bound as an attorney-in-fact or representative of the other then there can be no compensation. More
so, legal compensation
Art. 1279. In order that compensation may be proper, it is necessary:
(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
4 types of compensation:
1.) Legal
2.) Conventional
3.) Facultative
4.) Judicial
Article 1279 tackles on legal compensation.
When is there legal compensation?
-
As soon as all the requisites mentioned in 1279 then legal compensation shall take effect or take
place by operation of law even if the parties are not aware of it. But for the debtor to claim
compensation, he must set up the taking place of legal compensation. He has to invoke the taking
place of all the requisites in order that legal compensation shall take place.
Another is conventional (compensation) by agreement of the parties. Example of a conventional
compensation is even if the two obligations are not yet due demandable because the period has not yet
arrived but they agreed to compensation. (ARTICLE 1282)
Then we have facultative compensation. Facultative compensation can only be claimed by the one who
has the right to object to the taking place of compensation. So, if X is to deliver to Y a 2017 Montero
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vehicle, Y is to deliver to X a 2015 Montero vehicle. Can there be compensation? Legal, ofcourse not.
But can there be other forms of compensation. Yes – facultative. This can be invoked by the party who
has the right to object to the compensation. Who is that party who has the right to object? Y has the
right to claim compensation because it is he who has the right to object. BAKIT? Because the other
object is more expensive than the other. The one who is to receive the thing of more value or whose
value is superior to that of the other can be the debtor or creditor has the right to claim or invoke
compensation.
Then we have Judicial. Judicial compensation takes place when there is a case. So there is a civil case
filed against X. A filed a civil case against X. Now X filed an Answer. ( A counterclaim comes in the form
of monetary claim for damages) So if the Court finds that A is indeed entitled to whatever he is praying
for at the same time the court finds that X is also entitled to his counterclaim then there can be
compensation in the decision. (ARTICLE 1283)
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
-
This time I disagree with the word consumable. Consumables are those which cannot be used in a
manner appropriate in its nature without being consumed. The more appropriate term in FUNGIBLE
which can be substituted with another of the same class or specie and that is why rice is fungible. It
becomes consumable if you cook it and eat it. It is fungible if you use it in exhibition. Or there is
showcase of different kinds of rice.
Can there be compensation if the object of the obligation is specific or determinate?
-
No because there is only one thing. You cannot substitute. So it cannot be subject of compensation
That the two debts be due okay we’ll continue tomorrow 
XXXXX
(Discussion starts with the second paragraph of Art 1279)
That both debts consist in the sum of money or if the things due are consumables, they be of the same
kind, and also of the same quality if the latter has been stated. There can be no compensation if the
obligation consists in the delivery of a determinate or specific object. This is because there can only be
one specific object it cannot be substituted with another.
That the two debts be due. When shall a debt be considered to be due? is it required that both debts
are incurred at the same time? And due and demandable at the same time? In order for it to be
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considered that debts are due. ANSWER: NO. it is sufficient that at one time, all the requisites of Art
1279 are present AT ONE TIME. Or all the requisites under 1279 have concurred, even if subsequently
one of the obligations have already prescribed. So, legal compensation shall take place, nonetheless
despite of the prescription of one of the two obligations.
That they be liquidated and demandable. This means enforceable through court action. There can be a
due debt if it still unliquidated and it is not yet considered demandable. Although there is an exception
that there can be partial performance with respect to the obligation that is already liquidated. Example:
the principal will always be liquidated.
That over either of them there be any retention or controversy commenced by third persons and
communicated in due time to the debtor. Example of controversy is the notice of garnishment coming
from the court but the notice must be communicated in due time. And due time, according to the
Supreme Court, in case of PNB vs UY, means at any time or period before legal compensation had taken
place. Because legal compensation takes place by operation of law even if the parties are not aware that
legal compensation hand taken place. So the period before legal compensation had taken place.
Debts that are not yet due and cannot be the subject of compensation: if it is with a period and the
period has not yet arrived. In the subject the suspensive condition is merely an accessory element of an
obligation but nonetheless the obligation will not arise if the suspensive condition is not fulfilled. And
when the obligation will be sued upon like natural obligation, this cannot be the subject of legal
compensation. This is because they are not falling under the third requisites that they debts be due
If the period is designated it is presumed to be for the benefit of both the creditor and the debtor. Now
what if the obligation does not state a period? Then the presumption is that is for the benefit of the
creditor and the debtor. When should the obligation become due? when the creditor is interested in the
interest and the debtor is given time to comply with the obligation so the answer is 12 months- this will
be the presumption.
Example:
A obtained a loan from B due and demandable on December 1, 2001. On March 25, 2002, B obtained a
loan from A. B made an oral demand upon A on December 1, 2010. No performance was made, on
January 5, 2012, B made another demand from A. A claimed prescription. Is A correct?
ANSWER:
Here, at one time all the debts have become due and demandable.
Loan of A from B- demandable on December 1, 2001
Loan of B from A- because of the absence of the period it is presumed to have become demandable in
2003 (12 months presumption)
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At one time. Even if the debt had already prescribed at the time the demand was made, if the requisites
under Art 1279 have concurred at one time then legal compensation shall take place by operation of
law. Although this must be set up by the person claiming compensation. It is the law that provides that if
all the requisites have concurred then legal compensation shall take place.
(this is still based on the preceding example)
Sometime December 30, 2011, C notified A of his claim against B. Does C’s claim prevent legal
compensation from taking palce?
ANSWER:
No, because the notice was not communicated in due time. At the time the communication was made,
legal compensation had already taken place. Because due time, according to the Supreme Court, at any
time before the requisites in Art 1279 have concurred. Here, it already concurred because both
obligations are due and demandable. Therefore, C can no longer recover the credit of B due from A.
(for as long as any of the requisites have not been complied with, there is no communication in due
time, because this presumed to be due and demandable in 2003, the communication made by C in 2002
is a valid way of preventing legal compensation from taking place. Kasi that time, hindi pa sya due
(referring to the utang of B to A))
Take Note: “tingnan nyo lang ang dates because that would matter”
Article 1280 notwithstanding the provisions of the preceding article, the guarantor may set up
compensation as regards what the creditor may owe the principal debtor.
REASON: if compensation is set up then they will be relieved from their guarantee or surety or
mortgage. It will be beneficial to the guarantor, to the surety or to the mortgagor.
Article 1281 Compensation may be total or partial. When the two debts are of the same amount, there is
total compensation
Article 1282 The parties may agree upon the compensation of debts which are not yet due.
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This speaks of conventional or voluntary compensation by the agreement of the parties. So even if the
obligations are not yet due and demandable, compensation shall take place and it will extinguish the
obligations as to the concurrent amounts or the total extinguishment of the obligation.
Article 1283 if one of the parties to a suit over an obligation has a claim for damages against the other,
the former may set it off by proving his right to said damages and the amount thereof.
This speaks of judicial compensation. When there is a civil case filed by one party against the other sets
up in the answer by way of counterclaim and the decision of the court would say that there can be
compensation, we call that Judicial Compensation.
Is it required that at the time of the filing of the answer that the counterclaim is already due and
demandable? Or it has matured? Matured, meaning it is already due and demandable.
(Answer is the pleading that the respondent will file if there is a complaint against him. This is for civil
cases, in criminal cases we call them counter affidavit)
EXAMPLE:
A filed a case against B. B filed an answer with a counterclaim received by the court on January 2, 2016.
The claim for monetary obligation is due on December 1, 2016.
Here, at the time of the filing of the answer the monetary claim by B against A is not yet due because it
still to be due on December 1, 2016. This was filed on January 1, 2016. So, it still maturing. But we know
that cases will take years, so even if it still maturing pwede pa ring iclaim yan for purposes of
compensation.
It is sufficient that there is a counterclaim and it need not be liquidated provided that it becomes mature
and demandable at the time the decision has been rendered by the court.
Article 1284 When one or both debts are rescissible or voidable, they may be compensated against
each other before they are judicially rescinded or avoided.
Now can you set up compensation on rescissible and voidable contacts? Rescissible contracts here refer
to rescssible contracts under Article 1381.
Rescissible contracts are actually valid contracts but has to be rescinded by reason of economic or
pecuniary injury caused to one of the parties to a third person. But prior to the rescission, it can be set
up for compensation.
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Likewise, remember that voidable contracts are valid contracts. What makes the contract voidable
would be the defect present in the contract on any of the following grounds:
1. Incapacity of one of the contracting parties (would refer to the minority or mental incapacity
but not physical)
2. Vitiation of consent
Article 1285 The debtor who has consented to the assignment of rights made by a creditor in favor of a
third person, cannot set up against the assignee the compensation which would pertain to him against
the assignor, unless the assignor was notified by the debtor at the time he gave his consent, that he
reserved his right to the compensation.
If the creditor communicated the cession to him but the debtor did not consent thereto, the latter may
set up the compensation of debts previous to the cession, but not of subsequent ones.
If the assignment is made without the knowledge of the debtor, he may set up the compensation of all
credits prior to the same and also later ones until he had knowledge of the assignment.
Three (3) situations will arise under Art 1285:
1. a.) with consent but without reservation- here, the debtor who consented to the assignment
without reservation could no longer invoke compensation for all debts that have already matured,
meaning, debts that are already due.
b.) with consent and with reservation- but if he consents with reservation then he can invoke
compensation for all debts that have matured
2.
with knowledge but without consent- he can invoke compensation for all debts that have matured
3. without knowledge- all debts that have matured and even maturing provided that it matured at the
time the assignment came to the knowledge of the debtor
4.
Simultaneous assignment and notice to the debtor (not covered by 1285)- the debtor may invoke
compensation for all debts that have matured
[Continuation of Article 1285]
We will apply the provisions of 1254 respecting application of payments because it is also
applicable in compensation. That if there are several debts, the provisions of application of
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payments shall apply. So if it earns interest payment should be first made for the interest. If
they are of the same nature and burden, proportionately. But otherwise, it should be to the
most onerous. That is how it is under Articles 1253 and 1254 on application of payments.
Example:
Debtor D obtained from Creditor C the
following:
A Series:
Due:
A1. P100k secured by a
December 15,
mortgage with interestof
2015
6% per annum
A2. P500k secured by
March 1, 2016
antichresis with interest of
12% per annum
Debtor C obtained from Creditor D the
following:
B series:
Due:
B1. P100k with interest of January 1, 2016
12% per annum
B2. P200k secured by a
Real Estate Mortgage
January 15, 2017
A3. P75k simple interest
(6% per annum)
A4. P300k
B3. P75k
March 25, 2016
B4. P100k with penalty of
0.001% for every day of
delay
November 1,
2016
September 8,
2016
January 1, 2017
[Note: I used codes A1 to 4 and B1 to 4 so it’s easier to follow]
Ano ang simple interest? What would be the interest rate if it is simple? 6% pursuant to the
decision of the court in the case of Nacar v. Gallery. So simple interest rate is 6%. If such stated
“simple interest” is only 6%.
1. Additional information: C assigned his credit to X on November 25, 2016.
C assigns credit to X on November 25, 2016. So 3 situations.
a. If D consents to the assignment, there can be no more compensation for all debts that
are already due.
He consents with reservation. What can be the subject of compensation? All debts are
that already due from the time of the assignment November 25, 2016 ano na yung nag
due? A1, A2, A3. You should correlate that here (B series), meron ba dito? B1, B3, B4.
Except for B2. Due na sya lahat as of this (Nov. 25, 2016).
b. If it is with knowledge but without consent. Is there a debt here that is maturing at the
time? A4, maturing. That cannot be the subject of compensation at the time that the
assignment was made.
c. If it is made without the knowledge. All debts that have matured and still maturing until
the assignment came into the knowledge of the debtor.
d. Let’s add a twist: D knew of the assignment on January 2, 2017. So what is maturing? B2
and A4. Can there be compensation? No, because this (B2) is still to mature. Ito lang
(A4) ang nag mature at the time that the assignment came into the knowledge. So D
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cannot claim compensation with respect to B2 because that one is still to mature. In
fact, when it came to his knowledge, it is still to mature. This one (A4) at the time of the
assignment this is supposed to be maturing. And it matured at the time the assignment
came into his knowledge.
2. Additional information: X informed D of his claim against C on December 15, 2016.
There was this notice made by X upon D that he has a claim against C on December 15, 2016. So
what would be the effect of that notice? Let’s go back legal compensation. That’s the fourth –
that over neither of them there be any controversy communicated in due time [Note: it is
actually the 5th requirement of Art. 1279]. So what is due time? As defined by the Supreme
Court in the case of Philippine National Bank Madecor v. Uy – at any time before the requisites
of legal compensation have concurred.
So going back to that, let’s apply legal compensation. Ano yung pwede i-claim ni X with respect
to the credit of C? Ang closest nito is this one. Do you agree? Yes, December 15 (2015) and
January 1, 2016. So at the time the communication was made on December 15, 2016, this (B1)
can be the subject already of legal compensation. What about this one (B3)? And this one (B4)?
Yes, pwede pa nya i-claim because it (B3 & B4) had already matured. So ito (B2) nalang ang maclaim ni X from C that would prevent compensation, the P200k because it was communicated in
due time respecting his debt.
3. We have to determine now, for the purpose of compensation (disregard the additional
information given in number 2), it says that the provisions on application of payment shall
apply. Article 1253 provides that debts that produces interest, interest shall first be covered.
And 1254 provides that if they be of the same kind of burden, proportionately, otherwise to the
most onerous. Here which is the most onerous? B4, because of the penalty, because it is for
every day of delay and it is due November 2016.
Order of the least to most onerous (B series):
i. B3, because it is a simple obligation without any interest.
ii. B2, this is the less burdensome because there is no interest, it is just secured by a real
estate mortgage.
iii. B1
iv. B4, because of the penalty, because it is for every day of delay and it is due November
2016.
Order of the least to most onerous (A series):
i. A4, and likewise the latest of the obligations. So D can forget about the P300k.
ii. A3, because this merely bears 6%.
iii. A2, antichresis is actually a form of security whereby the debtor delivers an immovable,
or any property for that matter, and the creditor shall apply the fruits thereof, the net
fruits or net proceeds, to the interest if owing, otherwise to the principal. So hindi sya
stagnant, for as long as this will earn then the interest will be fully satisfied. If it is in
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iv.
excess, it will be applied to the principal. So this is the second least burdensome. Kasi
moving sya e.
A1, whereas this one still produces interest. Aside from the fact that it is secured by a
mortgage, it earns interest.
This is how you should try to apply the rules of compensation.
You might ask, what if the amount is not sufficient to cover the principal? Then I said apply that
to the interest first. If all earns interest, then apply mo lang sa interest because the amount will
be insufficient to cover the principal. Note: That will not come out in your exam.
Art. 1286. Compensation takes place by operation of law, even though the debts may be
payable at different places, but there shall be an indemnity for expenses of exchange or
transportation to the place of payment. (1199a)
Art. 1287. Compensation shall not be proper when one of the debts arises from a depositum or
from the obligations of a depositary or of a bailee in commodatum.
Neither can compensation be set up against a creditor who has a claim for support due by
gratuitous title, without prejudice to the provisions of paragraph 2 of Article 301. (1200a)
Art. 1288. Neither shall there be compensation if one of the debts consists in civil liability
arising from a penal offense. (n)
This (Art. 1286) in relation to Art. 1251 whereby the parties have agreed as to the place of
payment. Their payment should be made in the place agreed upon. Expenses related thereto
shall be borne by the debtor, unless there is a stipulation to the contrary. But nonetheless, legal
compensation shall take place. Take note that legal compensation takes place by operation of
law, even if the parties are not aware of it.
(Art. 1287 – 1288) What are those that cannot be the subject of compensation?
1. Contract of deposit
The depositary cannot claim compensation.
Who is the depositary in a contract of deposit? [Read example below.]
A contract of deposit is actually for safekeeping. It might be onerous or gratuitous
depending on how the parties would agree to it.
Suppose it is onerous, meaning that really is his kind of business, he would receive
things for safekeeping. There is an equivalent consideration. For instance, if the
depositary has a claim against the depositor and what was deposited by the depositor is
a mountain bike the value of which is more or less equivalent to the claim of the
depositary. When the depositor would now go back to claim what he had deposited, the
depositary cannot claim compensation, the law prohibits it. His claim again the
depositor has to be ventilated and served, it might be through the court or he have to
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make another demand. But not forfeiting the thing deposited because he has a claim
against the depositor.
2. Contract of commodatum
The bailee – is the borrower
The bailor – is the lender
The bailee who borrows, say the mountain bike, cannot appropriate the mountain bike
because he has a claim against the bailor. The law also prohibits that, so there can be no
compensation.
3. Provisions of the family code on support
That even if support given is in excess what the obligee is entitled, it cannot be set off or
made the subject of compensation. Support cannot be the subject of compensation.
What can only be the subject of compensation would be support in arrears because the
claim of the person entitled to receive support is already liquidated, demandable, due.
But not the present support and future support, with more reason respecting future
support.
4. The State
Can there be compensation if you are to pay taxes in excess of what you are supposed
to pay? No, there can be no compensation. Otherwise compensation will be allowed,
taxes, fees like levy, duties, and similar forced contributions cannot be the subject of
compensation. (Otherwise, your president cannot travel to Russia in April. If you do not
pay your taxes, he cannot go there.)
When can there be compensation against the state? What have you learned in your
Constitutional law? If the state has descended into the level of private entity. It entered
into a contractual relation there can be compensation. But as a general rule, no.
5. Under Article 1288 Civil liability arising from criminal offense
Likewise, there can be no compensation under Art. 1288. But this can be a subject of
facultative compensation. Who can claim? The offended party because it is the offended
party who has the right to object. The offended party can claim compensation.
Art. 1289. If a person should have against him several debts which are susceptible of
compensation, the rules on the application of payments shall apply to the order of the
compensation. (1201)
Ito na yung ginamit natin. The rules on the application of payments shall apply to the order of
the compensation.
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Art. 1290. When all the requisites mentioned in Article 1279 are present, compensation takes
effect by operation of law, and extinguishes both debts to the concurrent amount, even though
the creditors and debtors are not aware of the compensation. (1202a)
Is merely what I have told you before that legal compensation takes place by operation of law
and extinguish both debts to the concurrent amount even though the creditors and debtors are
not aware of the compensation. But this must be set up, this must be claimed and of course
subject to proof that at one time all the requisites have concurred and precisely there is now
extinguishment of their concurrent amounts. Because this is merely a mode of extinguishing an
obligation, compensation will likewise be renounced by one of the parties.
What are examples of renunciation of compensation?
1. Art. 1285 consents to the assignment without reservation, so there is renunciation of
compensation.
2. The debtor pays the creditor voluntarily despite the fact that he can invoke
compensation. That is express renunciation.
Let’s go to Novation.
Art. 1291. Obligations may be modified by:
(1) Changing their object or principal conditions;
(2) Substituting the person of the debtor;
(3) Subrogating a third person in the rights of the creditor. (1203)
Novation actually is not a form of extinguishing and obligation. Precisely Art. 1291 provides
“obligations may be modified by”, because it may be true that an obligation is extinguished,
however a new one is created.
1. A. Changing their object
Perfect example of this is Art. 1245 on dation in payment or dacion en pago. Where the
original obligation consists of a sum of money but at the time of the performance the
debtor offers a thing in lieu of the money and the creditor accepts. Because in all cases
involving novation, it is necessary and mandatory that the consent of the creditor must
be obtained. Not necessarily with the debtor.
B. Principal conditions
Example of principal conditions:
a. Like from a contract of lease to a contract of sale because what is changed is the
condition from merely that of having physical possession over the thing leased, what
is transferred is ownership and physical possession, not necessarily physical
possession because it might be constitutum possessorium. Principal conditions, from
a contract of lease to a contract of sale because in a contract of lease, the lessee
merely has physical possession of the thing leased but once there is a contract of
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sale the principal conditions are changed entirely, physical possession and
ownership is transferred now to the lessee.
b. Without any contractual relation in negotiorum gestio to a contract of agency. You
remember the officious manager who manages the property of another without
being authorized, the term I used is “buot-buot”. And then the owner authorizes
now the officious manager, it is changed from one without any contractual relation
to that of a principal and agent. They are now governed by the contract of agency.
2. Substituting the person of the debtor
A. Expromision
Where the original debtor is not even aware, has no knowledge, or did not consent to
the substitution of the person of the debtor. A 3rd person proposes, the creditor accepts
and the previous obligor is already relieved from his obligation.
B. Delegacion
The old debtor proposes that here is a third person who wants to substitute me as
debtor and the creditor accepts. This time it is the original debtor himself who would
offer a third person to substitute him.
3. Subrogating a third person in the rights of the creditor which would be:
a. Conventional – by the agreement of the parties
b. Legal subrogration – under Art. 1302
Novation is never presumed this must be:
a. expressly upon by the parties or if it’s is
b. implied, it must be such that the old and the new obligation must be incompatible in all
material points that both contracts cannot stand together [refer to Art. 1292]. A perfect
example is lease and sale. They are so incompatible; one is possession the other is
ownership.
c. Modificatory - But if it merely change some of the stipulation in the contract or in the
agreement or in the obligation it might only be what you call as modificatory obligation,
not extinctive.
d. Extinctive novation – is one that would create a new obligation in lieu of a previous
obligation.
Requisites for extinctive novation:
i. A previous valid obligation
ii. The agreement of the parties to the new obligation
iii. Extinguishment of the old obligation
iv. Creation of a new valid obligation
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If it merely changes the terms of the agreement, would there be novation? Like extending the
term of the payment? No, these are what you call as modificatory novation because it affects
only performance, no extinguishment of the original obligation.
Surrender of evidence of credit, would it not result to a presumption of remission or
condonation? No such presumption shall arise based on novation because the original
obligation subsists. It merely becomes an unsecured obligation, so it is merely modificatory.
From mortgage to antichresis? Yes, in mortgage the mortgagee does not acquire physical
possession and likewise there is no payment, the obligation subsists. It’s just like you surrender
the mortgage. Whereas in antichresis, the creditor enters the property and there is now
fulfillment of the obligation based on the stipulation of the parties, so there really is a novation.
Art. 1292. In order that an obligation may be extinguished by another which substitute the
same, it is imperative that it be so declared in unequivocal terms, or that the old and the new
obligations be on every point incompatible with each other. (1204)
I’ve discussed that already.
It is imperative that it be so declared in unequivocal terms – meaning the extinguishment of the
old obligation must be in unequivocal terms. If it merely restructures the terms of the payment,
there is no novation. Or you extend the term, the acceptance of partial payments likewise will
not result to novation [i.e. not extinctive novation but only modificatory].
Article 1293-1304- Wala gisend san aka assigned!
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