CONSENT PART 1:

Article 1319. Consent is manifested by the meeting of the offer and the acceptance upon the
thing and the cause which are to constitute the contract. The offer must be certain and the
acceptance absolute. A qualified acceptance constitutes a counter-offer.
Acceptance made by letter or telegram does not bind the offerer except from the time it came
to his knowledge. The contract, in such a case, is presumed to have been entered into in the
place where the offer was made. (1262a)
Consent is the meeting of the offer and acceptance upon the thing and the cause which are to
constitute the contract.
- A contract need not be written. It can also be oral. So, signatures of the parties are not
necessary in order to signify consent. As long as the parties agree as to the subject matter
and the cause, there is consent.

- There is consent when there is an OFFER THAT IS CERTAIN and ABSOLUTE ACCEPTANCE of
the offer.

- Offer is the proposal, made by one party to the other, to enter into a certain contract. For
example, A told B, “I am selling this Gucci bag for 50,000. Would you like to buy it?” That
is an offer made by A to B so that they could potentially enter into a contract.

- The offer must be DEFINITE OR CERTAIN. The above example is an offer that is certain
because A made a serious offer to sell to B a particular thing for a specific price. It was not
a mere expression of interest or desire to sell the bag. If A instead said “I think I’m
considering selling this Gucci bag for 50,000.” That is not an offer as it is not definite or
certain. It’s a mere expression of interest to sell the bag. If A said, “I’m selling this Gucci
bag. Would you like to buy it?” That is not a definite offer because there is no price stated.

- Acceptance is the manifestation of assent by the party to whom the offer was made. THE
ACCEPTANCE MUST BE ABSOLUTE. This means that the parties must agree on every point.
The party agreeing to the offer cannot make reservations nor qualified acceptance,
otherwise, that is considered a counter-offer.
 - Continuing the earlier example: Let’s say B said, “okay, I’ll buy it.” That is an acceptance.
IT WAS UNCONDITIONAL. IT WAS ABSOLUTE. IT WAS UNQUALIFIED.

- If B instead said, “Okay I’ll buy that bag for 40,000.” That is NOT an acceptance because B
obviously did not agree with the price as offered by A. What B did is to give a counter-
offer, not an acceptance.

- WHAT IF THE ACCEPTANCE WAS MADE THROUGH A LETTER OR TELEGRAM – WHEN WILL
THE ACCEPTANCE BE EFFECTIVE?
There are TWO THEORIES ABOUT THIS – cognition theory and manifestation theory
1. Cognition theory – the acceptance shall take effect from the time the offeror knew or
gains knowledge of the acceptance
2. Manifestation theory – the acceptance shall take effect once it is manifested by the
offeree

- In the Philippines, we follow the COGNITION THEORY. (See 2nd paragraph of Art. 1319)

ILLUSTRATION:
On Jan 1, A sent a letter to B offering to sell to the latter a particular land for 5 Million.
B received the letter on Jan 4.
B sent a letter of acceptance to A on Jan 5
A received the letter on Jan 10.
When does the acceptance take effect? – JANUARY 10 because that was when A had knowledge
of the letter of acceptance.

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Article 1320. An acceptance may be express or implied. (n)
- There is no fixed form of acceptance. It can be written or oral, in either case the
acceptance is express. It can also be inferred from the act or conduct of the party, in which
case the acceptance is implied.

ILLUSTRATION:
A offered to sell a particular car to B for 100,000. B told A in person that he will buy the car. That
is an express acceptance that is oral.

A offered to sell a particular bag to B for 50,000. B sent a letter to A accepting the offer. This is an
express acceptance that is written.

A, who was out of town, texted his neighbor, B, offering to pay the latter P 1,000 if B cleans his
front yard. B did not reply for hours. B finally replied with photos of him cleaning the front yard.
This is an implied acceptance.

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Article 1321. The person making the offer may fix the time, place, and manner of acceptance,
all of which must be complied with. (n)

- The party who makes the offer can stipulate the terms of acceptance. The other party
must comply to those term. Any “acceptance” which contravenes those terms is
considered a counter-offer,

ILLUSTRATION:
A sent an email to B offering to sell to the latter a particular car for 100,000. In the said letter, A
specified that the acceptance must be made through email to the same email address used by A
to send the offer. It was also stated that B is given 10 days to decide. In this case, if B will accept
the offer, B must comply with the period and manner specified by A. If B communicates the
acceptance through any other means, that it considered a counter-offer.

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Article 1322. An offer made through an agent is accepted from the time acceptance is
communicated to him. (n)
If the offer was made through an agent, the acceptance can also be made to the said agent. The
acceptance shall take effect from the time the acceptance is communicated to the agent.
Illustration:
A, through his agent X, sent a letter to B offering to sell to the latter a particular car for 100,000.
B can communicate his acceptance to X.
However, if A personally made the offer, B can only communicate his acceptance to A even if B
knows that X works as A’s agent.

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Article 1323. An offer becomes ineffective upon the death, civil interdiction, insanity, or
insolvency of either party before acceptance is conveyed. (n)

- An offer may be withdrawn before acceptance is conveyed. The offer may also become
ineffective if there is death, insanity, insolvency, or civil interdiction on the part of either
party before acceptance.

ILLUSTRATION:
On Jan 1, A sent a letter to B offering to sell to the latter a particular land for 5 Million.
B received the letter on Jan 4.
B sent a letter of acceptance to A on Jan 5
A went to a business trip on Jan 6
A’s relative received the letter on Jan 10.
Unbeknownst to A’s family, A died in his sleep on Jan 8 in his hotel room.
Is there a contract here? Is there meeting of the minds? If so, when did it take effect?
- NO. There is an INTERVENING EVENT – the death of A which made the offer ineffective.

An intervening event is an event which takes place between the offer and acceptance and making
the offer ineffective. For example: DEATH, CIVIL INTERDICTION, INSANITY, INSOLVENCY OF EITHER
PARTY BEFORE THE ACCEPTANCE WAS CONVEYEDL It could also be the mere WITHDRAWAL OF
THE OFFER
ILLUSTRATION:
On Jan 1, A sent a letter to B offering to sell to the latter a particular land for 5 Million.
B received the letter on Jan 4.
A sent a letter of withdrawal of offer on January 5.
B sent a letter of acceptance to A on Jan 5
B received the letter of withdrawal on Jan 9
A received the letter of acceptance on Jan 10.
- Is there a contract? – No because the offer was withdrawn before A knew of the
acceptance.

ILLUSTRATION:
On Jan 1, A sent a letter to B offering to sell to the latter a particular land for 5 Million.
B received the letter on Jan 4.
A sent a letter of withdrawal of offer on January 5.
B sent a letter of acceptance to A on Jan 5
A received the letter of acceptance on Jan 9
B received the letter of withdrawal on Jan 10.
- Is there a contract? – NO. Again, before A knew of the acceptance, the offer was already
withdrawn. It doesn’t matter that the letter of acceptance was received before B received
the letter of withdrawal. The offer is still considered ineffective since it was withdrawn. It
could be said that the cognition theory applies only to acceptance.

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Article 1324. When the offerer has allowed the offeree a certain period to accept, the offer may
be withdrawn at any time before acceptance by communicating such withdrawal, except when
the option is founded upon a consideration, as something paid or promised. (n)
- This provision speaks of OPTION. An option is the privilege given to the offeree allowing
the latter to accept the offer within a certain period. An option may be for a consideration
or not.
 - An option contract is one that allows a person for a consideration a certain period within
which he may accept the offer. This contract is separate and distinct from the main
contract that will arise upon the acceptance of the offer.
- The option period is the period within which the offeree may accept the offer.
- Option money is the consideration paid for the option. It is NOT considered as partial
payment (as opposed to earnest money which is considered as part of the price and
signifies the perfection of the contract).

- If the option is not founded upon a consideration, or if there is nothing paid in exchange
for the option, the option or the period given to the offeree may be withdrawn before the
acceptance and before the period arrives.

- HOWEVER, if the option is founded upon a consideration, or if a price is paid for the
option, the offer may not be withdrawn before the period arrives.

ILLUSTRATION:
A offered to sell to B a particular land for 5 million. A gave B two weeks to decide whether he will
accept or not. B did not pay anything for the option. A decided to withdraw the offer after one
week so that he can make the same offer to C. Is the withdrawal allowed? – YES. The option is not
founded upon a consideration so the offer may be withdrawn before acceptance and before the
period arrives.

ILLUSTRATION:
A offered to sell to B a particular land for 5 million. A also said that in exchange of 2,000, he will
give B the exclusive right to the offer for two weeks. B paid the 2000. A decided to withdraw the
offer after one week so he can make the same offer to C. Is the withdrawal allowed? – NO. The
option is founded upon a consideration so the offer may not be withdrawn before the period
arrives.

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Article 1325. Unless it appears otherwise, business advertisements of things for sale are not
definite offers, but mere invitations to make an offer. (n)
 - As a general rule, the business advertisements in posters, in billboards, newspaper ads, tv
ads, internet ads, etc. are mere invitations to make an offer.
- HOWEVER, if the business advertisement provides a complete information as to the
subject matter and cause then it can be considered a definite offer.

ILLUSTRATION:

A saw a post on twitter by a graphic artist who is accepting commissions.

“Commission open: I am opening my commissions for the month of April for digital art.
➢ Ph only
➢ As low as 500 pesos
➢ Read t&c before transacting
➢ Dm me if interested”

- This is a mere invitation to make an offer. This business advertisement is not specific and
complete enough to be considered an offer.

ILLUSTRATION:

A saw a poster on a wall near his house:

“For sale: 300 sqm lot at #123, 1st Street, Brgy. 1, Sampaloc, Manila.
Price: 2 million
Contact us at 0911 111 1111 or [email protected]”

This is a definite offer. Although it is a business advertisement, the details are specific and
complete enough to make it a definite offer.
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Article 1326. Advertisements for bidders are simply invitations to make proposals, and the
advertiser is not bound to accept the highest or lowest bidder, unless the contrary appears. (n)
 - In advertisements for bidders, the advertiser is merely inviting people to make offers. The
bidder is the one who makes an offer. The advertiser is not bound to accept the highest
offer. The advertiser may accept any offer, unless it was specified that the highest bid shall
be accepted.
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Article 1327. The following cannot give consent to a contract:

(1) Unemancipated minors;

(2) Insane or demented persons, and deaf-mutes who do not know how to write. (1263a)

- As a general rule, legal capacity is presumed. The party who claims or asserts the
incapacity of a party has the burden of proof. This presumption is merely disputable.
- Only parties who are capable of giving consent may enter into a contract. If one of the
parties is incapable of giving consent, the contract is voidable. A voidable contract is a
defective contract which may be annulled.
- Under Art. 1327, unemancipated minors, insane or demented persons, and deaf-mutes
who do not know how to write are incapable of giving consent.
- Unemancipated minors, or simply minors, are children who are less than 18 years old at
the time of contracting.
- The insanity of the party must exist at the time the contract was entered into.
- The deaf-mute must also be incapable of writing in order for them to be incapable of
giving consent. However, a deaf-mute who is able to read but physically unable to write,
for example due to physical disability, is capable of giving consent.
- These persons may enter into a contract through a parent or guardian.

- There are two types of incapacity:

1. Absolute incapacity – the party is not capacitated to give consent in any contract, with
anyone, in whatever capacity, over anything.
The persons in Art. 1327 fall under absolute incapacity.

2. Relative incapacity – certain persons may be prohibited from entering into particular,
but not all types, of contracts.
For example: husbands and wives cannot enter into a contract of sale, unless their
property regime is separation of property, or if they are legally separated.

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Article 1328. Contracts entered into during a lucid interval are valid. Contracts agreed to in a
state of drunkenness or during a hypnotic spell are voidable. (n)
- In case on of the parties is insane but the contract was entered into during a lucid interval,
such contract is valid.
- A lucid interval is a temporary period of sanity of an insane or demented person.
- If the contract was entered into while a party is drunk or under a hypnotic spell, such that
his capacity to discern is impaired, the contract is voidable.

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Article 1329. The incapacity declared in article 1327 is subject to the modifications determined
by law, and is understood to be without prejudice to special disqualifications established in the
laws. (1264)
- If persons incapacitated to enter into a contract actually enter into a contract, it would be
voidable. However, this rule is not absolute. Contracts entered into by incapacitated
persons under Art. 1327 may be valid if the law says so. For example: if a minor or any
incapacitated person buys necessaries such as food, that it valid and the incapacitated
person must pay a reasonable price therefor (Art. 1489).
- Also, the enumeration of incapacitated persons in Art. 1327 is not exclusive. There are
other special disqualifications provided by law.

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Article 1330. A contract where consent is given through mistake, violence, intimidation, undue
influence, or fraud is voidable. (1265a)

REQUISITES OF VALID CONSENT:

1. It should be intelligent.
2. It should be free or voluntary.
3. It should be spontaneous.
4. In general, it must not be vitiated.

Article 1330 enumerates the vices of consent. These vices make the contract voidable:
1. Mistake
2. Violence
 3. Intimidation
4. Undue influence
5. Fraud
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Article 1331. In order that mistake may invalidate consent, it should refer to the substance of
the thing which is the object of the contract, or to those conditions which have principally
moved one or both parties to enter into the contract.
Mistake as to the identity or qualifications of one of the parties will vitiate consent only when
such identity or qualifications have been the principal cause of the contract.
A simple mistake of account shall give rise to its correction. (1266a)
- Mistake is the false notion of a thing or a fact material to the contract.
- There are two kinds of mistake – mistake of fact and mistake of law.
- As a general rule, only mistake of fact is contemplated by Art. 1331.
- There must be a SUBSTANTIAL mistake of fact, such that the party would not have entered
into the contract if the party knew about the mistake.
- Hence, in order for a contract to be voidable on account of mistake, there must be a
substantial mistake of fact.
- The mistake may be on the part of only one party (unilateral) or both of them (bilateral /
mutual).

- Mistake of fact must pertain to the object, principal conditions, identity or qualifications
of the parties. These mistakes of fact vitiate consent.

- However, error as to solvency of the other party, error as to motive of the party, error as
regards the incidents of a thing or its accidental qualities, simple error of account, among
others, does not vitiate consent.

- Simple errors or mistakes of account does not vitiate consent. The defect is merely in the
computation which can be corrected. However, when the mistake is gross, that is clearly
apparent to a party, the latter cannot avoid liability on the ground of mistake in
computation.

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Article 1332. When one of the parties is unable to read, or if the contract is in a language not
understood by him, and mistake or fraud is alleged, the person enforcing the contract must
show that the terms thereof have been fully explained to the former. (n)
 - There is a presumption that when a party signs a document or a contract, such party
knows and understands its contents. If such party later alleged fraud or mistake, he has
the burden of proving the same since there is a presumption that he knows and
understands the contract.
- However, if one of the parties is unable to read or if the contract is in a language not
understood by him, and such party alleges fraud or mistake, the other party who is
enforcing the contract has the burden of proof that the contract has been fully explained
to the former.

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Article 1333. There is no mistake if the party alleging it knew the doubt, contingency or risk
affecting the object of the contract. (n)

- When a party knew of the doubt, contingency, or risk affecting the object of the contract and
the party still enters into that contract, it is assumed that he is willing to take that risk. He cannot
later claim mistake if the contract turned out to be unfavorable to him.

ILLUSTRATION:
A sold a particular land to B for 5 million. Before the sale, the land was already mortgaged to C
and such mortgage was registered. B knew of the mortgage when he entered into the contract. If
the land was later on foreclosed, B cannot claim mistake because he knew of the risk when he
entered into the contract.

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Article 1334. Mutual error as to the legal effect of an agreement when the real purpose of the
parties is frustrated, may vitiate consent. (n)

- As a general rule, only mistakes of fact vitiate consent.

- Mistake of law is when the mistake arises from ignorance of the law, mistake in the
interpretation of its meaning, or error as to understanding of the legal effects of the
contract. Mistake of law usually does not vitiate consent. However, when there is mutual
mistake as to the legal effect of an agreement and such mistake frustrates the real purpose
of the parties, such mistake of law vitiates consent.
- REQUISITES:
1. There is mutual mistake or error
2. The mistake is on the legal effect of the agreement
3. The mistake frustrates the real purpose of the parties.

- For example, if the written contract says contract of assignment but the real agreement
of the parties is a sale and there is mutual mistake as to the legal effect of the agreement
because they though assignment and sale has the same effect, such mistake of law vitiates
consent.