Chapter 2 Duties of debtor in obligation to give or to deliver a specific or determinate

thing (specific real obligation).

NATURE AND EFFECT OF OBLIGATIONS
(1) Preserve the thing: In obligations to give a specific thing or specific real
obligations, the obligor/debtor has the incidental duty to take care of the thing due
with the diligence of a good father of a family pending delivery.
ARTICLE 1163. Every person obliged to give something is also
obliged to take care of it with the proper diligence of a good father of Diligence of a good father of a family has been equated with ordinary care or that
a family, unless the law or the stipulation of the parties requires diligence which an average or a reasonably prudent person would exercise over
another standard of care. (1094a) his own property.
However, if the law or the stipulation of the parties provides for another standard of
Meaning of specific or determinate thing. care, either slight or extraordinary diligence, such law or stipulation must prevail.

The above provision refers to an obligation to give a specific or determinate thing The parties may agree upon diligence which is more or less than that of a good
or a specific real obligation. A thing is said to be specific or determinate if father of a family but it is contrary to public policy to stipulate for absolute
particularly designated or physically segregated to others of the same class. (Art. exemption from liability of the obligor for any fault or negligence on his part. (Arts.
1459, Civil Code) 1173 & 1174, Civil Code)

Example: The diligence required necessarily depends upon the nature of the obligation and
corresponds with the circumstances of the person, of the time, and of the place. It
a) The watch I am wearing is not necessarily the standard of care one always uses in the protection of his
b) My dog named “Pet” property.
c) The red Toyota Fortuner with Plate No. AMU 0406 (2017)
d) P100 bill with serial no. 12345678 The debtor must exercise diligence to ensure that the thing to be delivered would
subsist in the same condition as it was when the obligation was contracted.
Meaning of generic or indeterminate thing. Without the accessory duty to take care of the thing, the debtor would be able to
afford being negligent and he would not be liable even if the property is lost or
A thing is generic or indeterminate when it refers only to a class or genus to destroyed, thus rendering illusory the obligation to give.
which it pertains and cannot be pointed out with particularity.
Example:
Example:
Koko binds himself to deliver a specific horse to Jam on September 27. Pending
a) Gold Casio digital watch delivery of the horse on September 27, Koko has the additional or accessory
b) Red Toyota Fortuner (2017) obligation to take care of the horse with the diligence of a good father of a family,
c) P100 bill like feeding the horse regularly or keeping it in a safe place. Koko must exercise
that diligence which he would exercise over another horse belonging to him.
But Koko cannot relieve himself from liability in case of loss by claiming that he
exercised the same degree of care toward the horse as he would toward his own,
if such care is less than that required by the circumstances. If the horse dies or is
lost or becomes sick as a consequence of Koko’s failure to exercise proper
diligence, he shall be liable to Jam for damages.
The accessory obligation of Koko to take care of the horse is demandable even if
no mention thereof is made in the contract.
(2) Deliver the fruits of the thing. (Art. 1164, Civil Code)
(3) Deliver the accessions and accessories. (Art. 1166, Civil Code) Right of creditor to the fruits.
(4) Deliver the thing itself. (Arts. 1163, 1233 & 1244, Civil Code) The creditor is entitled to the fruits of the thing to be delivered from the time the
obligation to make delivery of the thing arises. The intention of the law is to protect
(5) Answer for damages in case of non-fulfillment or breach. (Art. 1170, Civil the interest of the obligee should the obligor commit delay, purposely or otherwise,
Code) in the fulfillment of his obligation.
When obligation to deliver arises.
Duties of debtor in obligation to give or to deliver a generic or indeterminate Generally, the obligation to deliver the thing due and the fruits thereof, if any,
thing (generic real obligation). arises from the time of the perfection of the contract or to the meeting of the minds
(1) To deliver a thing which is of the quality intended by the parties: However, between the parties. (Arts. 1305, 1315, 1319, Civil Code)
when the quality and circumstances thereof have not been stated, the creditor If the obligation is subject to a suspensive condition or period, it arises upon
cannot demand a thing of superior quality. Neither can the debtor deliver a thing of fulfillment of the condition or arrival of the period. However, the parties may make
inferior quality. The purpose of the obligation and other circumstances shall be a stipulation to the contrary as regards the right of the creditor to the fruits of the
taken into consideration. (Art. 1246, Civil Code) thing.
(2) To be liable for damages: In case of fraud, negligence, or delay in the In a contract of sale, the obligation arises from the perfection of the contract even if
performance of the obligation, or contravention of the tenor or terms thereof. (Art. the obligation is subject to a suspensive condition or a suspensive period where
1170, Civil Code) the price has been paid.
In obligations to give arising from law, quasi-contracts, delicts, and quasi-delicts,
the time of performance is determined by the specific provisions of law applicable.
ARTICLE 1164. The creditor has a right to the fruits of the thing from
the time the obligation to deliver it arises. However, he shall acquire Example:
no real right over it until the same has been delivered to him. (1095)
S sold his horse to B for P15,000.00. No date or condition was stipulated for the
Different kinds of fruits. delivery of the horse. While still in the possession of S, the horse gave birth to a
colt.
(1) Natural fruits: The spontaneous products of the soil, and the young and other
products of animals. Who has the right to the colt?

Example: Grass, all trees and plants on lands produced without the intervention of In a contract of sale “all the fruits shall pertain to the vendee from the day on which
human labor. the contract was perfected.” (Art. 1537, 2nd par.) Hence, B is entitled to the colt.
This holds true even if the delivery is subject to a suspensive condition (upon the
(2) Industrial fruits: Those produced by lands of any kind through cultivation or demand of B) or a suspensive period (next month) if B has paid the purchase
labor. price.
Example: Sugar cane; vegetables; rice; and all products of lands brought about by But S has a right to the colt if it was born before the obligation to deliver the horse
reason of human labor. has arisen and B has not yet paid the purchase price. In this case, upon the
fulfillment of the condition or the arrival of the period, S does not have to give the
(3) Civil fruits: Those derived by virtue of a juridical relation.
colt and B is not obliged to pay legal interests on the price since the colt and the
Example: Rents of buildings, prices of leases of lands and other property and the interests are deemed to have been mutually compensated. (Art. 1187, Civil Code)
amount of perpetual or life annuities or other similar income.
Ownership acquired by delivery. ARTICLE 1165. When what is to be delivered is a determinate thing,
the creditor, in addition to the right granted him by Article 1170, may
The meaning of the phrase “he shall acquire no real right over it until the same
has been delivered to him,” is that the creditor does not become the owner until compel the debtor to make the delivery.
the specific thing has been delivered to him. Hence, when there has been no If the thing is indeterminate or generic, he may ask that the
delivery yet, the proper action of the creditor is not one for recovery of possession
obligation be complied with at the expense of the debtor.
and ownership but one for specific performance or rescission of the obligation.
Personal right and real right. 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)
Remedies of creditor in real obligation.
(1) In a specific real obligation (obligation to deliver a determinate thing), the
creditor may exercise the following remedies or rights in case the debtor fails to
comply with his obligation:
a) Demand specific performance or fulfillment of the obligation with a right to
indemnity for damages; or
b) Demand rescission or cancellation of the obligation also with a right to
recover damages; or
c) Demand the payment of damages only where it is the only feasible
remedy.
Note:
In an obligation to deliver a determinate thing, the very thing itself must be
delivered. Consequently, only the debtor can comply with the obligation. This is the
reason why the creditor is granted the right to compel the debtor to make the
delivery.
It should be made clear, however, that the law does not mean that the creditor can
Example: use force or violence upon the debtor. The creditor must bring the matter to court
X is the owner of a parcel of land under a Torrens title registered in his name in the and the court will be the one to order the delivery.
Registry of Property. His ownership is a real right directed against everybody. The rights to demand fulfilment and rescission with damages are alternative, not
There is no definite passive subject. cumulative, meaning, the election of one is a waiver of the right to resort to the
If the land is claimed by Y who takes possession, X has a personal right to recover other. In case of rescission, the parties must return or restore to each other what
from Y, as a definite passive subject, the property. they have received.

If the same land is mortgaged by X to Z, the mortgage, if duly registered, is binding (2) A generic real obligation (obligation to deliver a generic thing), on the other
against third persons. A purchaser buys the land subject to the mortgage which is hand, can be performed by a third person since the object is expressed only
a real right. according to its family or genus. It is not necessary for the creditor to compel the
debtor to make the delivery although he may ask for performance of the obligation.
In any case, the creditor has a right to recover damages under Article 1170 in case
of breach of the obligation.
Where debtor delays or has promised delivery to separate creditors. Example:
Generally, the happening of a fortuitous event will exempt the debtor from The sale of a mobile phone (principal thing) necessarily includes with it the charger
responsibility. Paragraph 3 gives two exceptions to the general rule. Paragraph 3 and the earphones (accessions/accessories), even though they may not have
likewise refers to a determinate thing. An indeterminate thing cannot be the object been mentioned. In order for them to be excluded, there must be a stipulation to
of destruction by a fortuitous event because genus nunquam perit (genus never that effect. On the other hand, the sale of the charger or the earphones alone,
perishes). does not necessarily include the delivery of the mobile phone.

ARTICLE 1166. The obligation to give a determinate thing includes ARTICLE 1167. If a person obliged to do something fails to do it, the
that of delivering all its accessions and accessories, even though same shall be executed at his cost.
they may not have been mentioned. (1097a)
This same rule shall be observed if he does it in contravention
Meaning of accessions and accessories. of the tenor of the obligation. Furthermore, it may be decreed that
(1) Accessions: The fruits of, or additions to, or improvements upon, the principal what has been poorly done be undone. (1098)
thing. Situations contemplated in Article 1167.
Example: House or trees on a land; rents of a building; airconditioner in a car; Article 1167 refers to an obligation to do, i.e., to perform an act or render a
profits or dividends accruing from shares of stocks. service. It contemplates three situations:
(2) Accessories: Things joined to, or included with, the principal thing for the (1) The debtor fails to perform an obligation to do; or
latter’s embellishment, better use, or completion. (2) The debtor performs an obligation to do but contrary to the terms thereof;
Example: Key of a house; frame of a picture; bracelet of a watch; machinery in a or
factory; bow of a violin. (3) The debtor performs an obligation to do but in a poor manner.

Note: Remedies of creditor in positive personal obligation.

While accessions are not necessary to the principal thing, the accessory and the (1) If the debtor fails to comply with his obligation to do, the creditor has the right:
principal thing must go together but both accessions and accessories can exist (a) To have the obligation performed by himself, or by another unless
only in relation to the principal. personal considerations are involved, at the debtor’s expense; and
(b) To recover damages.

Right of creditor to accessions and accessories. (2) In case the obligation is done in contravention of the terms of the same or is
poorly done, it may be ordered (by the court) that it be undone if it is still possible
The general rule is that all accessions and accessories are considered included in to undo what was done.
the obligation to deliver a determinate thing although they may not have been
mentioned. This rule is based on the principle of law that the accessory follows the
principal.
In order that they will be excluded, there must be a stipulation to that effect. Unless
otherwise stipulated, an obligation to deliver the accessions or accessories of a
thing does not include the latter.
Performance by a third person. ARTICLE 1168. When the obligation consists in not doing, and the
obligor does what has been forbidden him, it shall also be undone at
A personal obligation to do, like a real obligation to deliver a generic thing, can be
performed by a third person. While the debtor can be compelled to make the his expense. (1099a)
delivery of a specific thing, a specific performance cannot be ordered in a Remedies of creditor in negative personal obligation.
personal obligation to do because this may amount to involuntary servitude
which, as a rule, is prohibited under our Constitution. (Art. III, Sec. 18[2], 1987 In an obligation not to do, the duty of the obligor is to abstain from an act. Here,
Constitution) there is no specific performance. The very obligation is fulfilled in not doing what
is forbidden. Hence, in this kind of obligation, the debtor cannot be guilty of
Where, however, the personal qualifications of the debtor are the determining delay. (Art. 1169.)
motive for the obligation contracted (e.g., to sing in a night club), the
performance of the same by another would be impossible or would result to be so As a rule, the remedy of the obligee is the undoing of the forbidden thing plus
different that the obligation could not be considered performed. Hence, the only damages. However, if it is not possible to undo what was done, either physically or
feasible remedy of the creditor is indemnification for damages. But where the legally, or because of the rights acquired by third persons who acted in good faith,
obligation can still be performed at the expense of the debtor notwithstanding his or for some other reason, his remedy is an action for damages caused by the
failure or refusal to do so, the court is not authorized to merely grant damages to debtor’s violation of his obligation.
the creditor.
Example:
Example:
S sold a land to B. It was stipulated that S would not construct a fence on a certain
(a) Hermes binds himself to assemble a vintage bicycle for Jinkee. It was portion of his land adjoining that sold to B. Should S construct a fence in violation
stipulated that the bicycle shall be painted all gold. of the agreement, B can have the fence removed at the expense of S plus
payment of damages.
If Hermes failed to assemble the bicycle, Jinkee may ask Agot to assemble one at
the expense of Hermes.
(b) Suppose Hermes did assemble the bicycle but he painted it all white. ARTICLE 1169. Those obliged to deliver or to do something incur in
In this situation, Jinkee may ask to have it done according to the specification. If delay from the time the obligee judicially or extra-judicially demands
Hermes refuses, the obligation may be performed by Agot at the expense of from them the fulfillment of their obligation.
Hermes.
However, the demand by the creditor shall not be necessary in order
(c) If Hermes did assemble the bicycle and painted it with gold but it was poorly that delay may exist:
done, Jinkee may ask Hermes that it be undone, or in case of Hermes’ refusal, she
may ask Agot to paint it at the expense of Hermes. (1) When the obligation or the law expressly so declares; or
(2) When from the nature and the circumstances of the obligation
In no case, however, can Hermes be compelled against his will to comply with his it appears that the designation of the time when the thing is to
obligation should he refuse to do so. be delivered or the service is to be rendered was a controlling
(d) If Regine binds herself to sing the national anthem in the morning show of ABS motive for the establishment of the contract; or
and she fails to comply with her obligation, the performance of the same by (3) When demand would be useless, as when the obligor has
another (like Moira) would be impossible or would result to be so different that the rendered it beyond his power to perform.
obligation could not be considered performed.
In reciprocal obligations, neither party incurs in delay if the other
Here, the personal qualification of Regine is the determining motive for the does not comply or is not ready to comply in a proper manner with
contract. In this case, the only practical remedy of ABS is indemnification for what is incumbent upon him. From the moment one of the parties
damages. fulfills his obligation, delay by the other begins. (1100a)
Meaning of delay. Example:
The word delay, as used in the law, is not to be understood according to its S obliged himself to deliver to B a specific refrigerator on December 10. If S does
meaning in common parlance. A distinction, therefore, should be made between not deliver the refrigerator on December 10, he is only in ordinary delay in the
ordinary delay and legal delay (default or mora) in the performance of an absence of any demand from B although a period has been fixed for the fulfillment
obligation. of the obligation. The law presumes that B is giving S an extension of time within
which to deliver the refrigerator. Hence, there is no breach of the obligation and S
 Ordinary delay is merely the failure to perform an obligation on time. is not liable for damages.
 Legal delay or default or mora is the failure to perform an obligation on
time which failure, constitutes a breach of the obligation. If a demand is made upon S by B on December 15 and S fails to deliver the
refrigerator, S is considered in default only from the date.
Kinds of delay or default (mora).
Effects of delay.
(a) Mora solvendi: The delay on the part of the debtor to fulfill his obligation by
reason of a cause imputable to him; (1) Mora solvendi. The following are the effects:

(b) Mora accipiendi: The delay on the part of the creditor without justifiable (a) The debtor is guilty of breach of the obligation;
reason to accept the performance of the obligation; and (b) He is liable for interest in case of obligations to pay money or damages in
other obligations. In the absence of extrajudicial demand, the interest shall
(c) Compensatio morae: The delay of the obligors in reciprocal obligations (like in commence from the filing of the complaint; and
sale), i.e., the delay of the obligor cancels the delay of the obligee, and vice versa. (c) He is liable even for a fortuitous event when the obligation is to deliver a
As a result, there is no actionable default on the part of both parties. determinate thing. However, if the debtor can prove that the loss would
have resulted just the same even if he had not been in default, the court
No delay in negative personal obligation.
may equitably mitigate the damages.
In an obligation not to do, non-fulfillment may take place but delay is impossible for
In an obligation to deliver a generic thing, the debtor is not relieved from liability for
the debtor fulfills by not doing what has been forbidden him.
loss due to a fortuitous event. He can still be compelled to deliver a thing of the
Requisites of delay or default by the debtor. same kind or held liable for damages.

There are three conditions that must be present before mora solvendi can exist or (2) Mora accipiendi. The effects are as follows:
its effects arise:
(a) The creditor is guilty of breach of obligation;
(1) Failure of the debtor to perform his (positive) obligation on the date agreed (b) He is liable for damages suffered, if any, by the debtor;
upon; (c) He bears the risk of loss of the thing due;
(d) Where the obligation is to pay money, the debtor is not liable for interest
(2) Demand (not mere reminder or notice) made by the creditor upon the debtor to (e) The debtor may release himself from the obligation by the consignation of
fulfill, perform, or comply with his obligation which demand, may be either judicial the thing or sum due.
(when a complaint is fi led in court) or extra-judicial (when made outside of court,
orally or in writing); and (3) Compensatio morae. The delay of the obligor cancels out the effects of the
delay of the obligee and vice versa. The net result is that there is no actionable
(3) Failure of the debtor to comply with such demand. default on the part of both parties, such that as if neither one is guilty of delay.
The above presupposes that the obligation is already due or demandable and If the delay of one party is followed by that of the other, the liability of the first
liquidated. There is no delay if the obligation is not yet due or demandable. infractor shall be equitably tempered or balanced by the courts. If it cannot be
The creditor has the burden of proving that demand has been made. It is determined which of the parties is guilty of delay, the contract shall be deemed
incumbent upon the debtor to prove that the delay was not caused by his fault to extinguished and each shall bear his own damages. (Art. 1192, Civil Code)
relieve himself from liability.
When demand not necessary to put debtor in delay. (3) When time is of the essence.
General Rule: When the time of delivery is not fixed or is stated in general and indefinite terms,
time is not of the essence of the contract. In such cases, the delivery must be
Delay begins only from the moment the creditor demands, judicially or made within a reasonable time, in the absence of anything to show that an
extrajudicially, the fulfillment of the obligation. The demand for performance marks immediate delivery was intended.
the time when the obligor incurs mora or delay and is deemed to have violated his
obligation. Without such demand, the effect of default will not arise unless any of Example:
the exceptions mentioned below is clearly proved.
The delivery of balloons on a particular date when a children’s party will be held;
Exceptions: the making of a wedding dress where the wedding is scheduled at a certain time;
payment of money at a particular time so that the creditor could pay off certain
(1) When the obligation so provides. debts due on the same date; the delivery of a car to be used in a trip at a particular
The obligation must expressly so declare that demand is not necessary or must time; etc.
use words to that effect, as for instance, “without the need of any demand”, “the In all the foregoing cases, the debtor is fully aware that the performance of the
debtor will be in default” or “I will be liable for damages”. The mere fixing of the obligation after the designated time would no longer benefit the creditor.
period is not enough. The arrival of the period merely makes the obligation
demandable. Before its arrival, the creditor cannot demand performance. (4) When demand would be useless.
Example: Example:
(a) D promised to pay C the sum of P20,000 on or before November 30 S obliged himself to deliver a specific horse to B on December 5. Through S’s
without the need of any demand. Therefore, if D fails to pay on November negligence or deliberate act, or by reason of fortuitous event for which S has
30, he is automatically in default. In this case, the parties stipulate to expressly bound himself responsible, the horse died on December 2.
dispense with the demand.
(b) The contract of loan between D and C provides that failure of D to pay any Under this situation, any demand for the delivery of the horse on December 5
installment therein stipulated would mature the entire obligation. It does would be useless as S has made it impossible for him to perform his obligation.
not state that in such an event, D shall thereafter be in default. Demand is also unnecessary where it is apparent that it would be unavailing, as
Demand is still necessary to hold D in default upon failure to pay any such where there has been a prior absolute refusal by S or S has manifested an
installments. He is not liable for interest for default for the whole debt except from intention not to comply with his obligation.
the time that judicial or extrajudicial demand for payment is made upon him. (5) When there is performance by a party in reciprocal obligations.
(2) When the law so provides. In case of reciprocal obligations, the performance of one is conditioned upon the
Examples: simultaneous fulfillment on the part of the other. So neither party incurs in delay if
the other does not comply or is not ready to comply in a proper manner with what
(a) Under the law, taxes should be paid on or before a specific date; is incumbent upon him. This is compensation morae.
otherwise, penalties and surcharges are imposed without the need of
demand for payment by the government. From the moment a party in reciprocal obligations fulfils or is ready to fulfill his
(b) The partner is liable for the fruits of the thing he may have promised to obligation, delay by the other begins.
contribute to the partnership from the time they should have been Where the parties fix a period for the performance of their reciprocal obligations,
delivered without the need of any demand. (Art. 1786, Civil Code) neither party can demand performance nor incur in delay before the expiration of
the period. The parties may provide different dates for performance of their
respective obligations.
ARTICLE 1170. Those who in the performance of their obligations are (2) Negligence (fault or culpa): It is any voluntary act or omission, there being no
guilty of fraud, negligence, or delay, and those who in any manner malice, which prevents the normal fulfillment of an obligation.
contravene the tenor thereof, are liable for damages. (1101) (3) Delay (mora): This has already been discussed under Article 1169 which
Grounds for liability. determines the commencement of delay.

Article 1170 gives the four grounds for liability which may entitle the injured party to (4) Contravention of the terms of the obligation: This is the violation of the
damages for all kinds of obligations regardless of their source, mentioned in Article terms and conditions stipulated in the obligation. The contravention must not be
1157. It contemplates that the obligation was eventually performed but the obligor due to a fortuitous event or force majeure. (Art. 1174, Civil Code)
is guilty of breach thereof. Here, the breach of the obligation is voluntary; in Article
1174, it is involuntary.
Fraud and negligence distinguished.
(1) Fraud (deceit or dolo): As used in Article 1170, it is the deliberate or
intentional evasion of the normal fulfillment of an obligation. Bad faith and fraud are
allegations of a fact that demand clear and convincing proof. It is good faith, not
bad faith, which is presumed.
As a ground for damages, it implies some kind of malice or dishonesty and it
cannot cover cases of mistake and errors of judgment made in good faith. It is
synonymous to bad faith in that it involves a design to mislead or deceive another.
Article 1170 refers to incidental fraud (dolo incidente) committed in the
performance of an obligation already existing because of contract. It is to be
differentiated from causal fraud (dolo causante) or fraud employed in the
execution of a contract under Article 1338, which vitiates consent and makes the
contract voidable.
Example:
(a) Bigasan obliged himself to deliver to Mayora 20 CAVANS of Dinorado rice.
However, Bigasan delivered 20 CAVANS of NFA rice knowing that it is of
cheaper price. Bigasan is guilty of incidental fraud and the remedy of
Mayora is to claim damages to Bigasan.
(b) If Mayora bought the 20 CAVANS of rice on the false representation of They are similar in that both are voluntary, that is, they are committed with volition
Bigasan that the rice is Dinorado, the latter knowing it to be an NFA rice, but in fraud, a party, by his voluntary execution of a wrongful act, or a willful
the fraud committed by Bigasan is causal fraud. Had Mayora known that omission, knows and intends the effects which naturally and necessarily arise from
the rice is NFA, she would not have purchased the same to Bigasan. such act or omission which deliberate intent is lacking in negligence.
Without the fraud, B would not have given her consent to the contract.
Mayora has the right to have the contract annulled or set it aside on the When negligence equivalent to fraud.
ground of causal fraud. (Arts. 1390 & 1391, Civil Code) Where the negligence shows bad faith or is so gross that it amounts to malice or
In the first situation, the remedy of B is not annulment of the contract of sale which wanton attitude on the part of the defendant, the rules on fraud shall apply. In such
is not affected by the incidental fraud but to claim damages. If the fraud employed case, no more distinction exists between the two at least as to effects.
by S to get B’s consent was not the principal inducement that led B to enter into Gross negligence is negligence characterized by want or absence of or failure to
the contract, the fraud is also incidental under Article 1344 and it will likewise give exercise even slight care or diligence, or the entire absence of care, acting or
rise only to an action for damages. (Art. 1344, par. 2, Civil Code) omitting to act on a situation where there is a duty to act, not inadvertently but
willfully and intentionally.