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Baldomero Inciong, Jr. vs.

Court of Appeals

G.R. No. 96405, June 26, 1996

In February 1983, Rene Naybe took out a loan from Philippine Bank of
Communications (PBC) in the amount of P50k. For that he executed a
promissory note in the same amount. Naybe was able to convince Baldomero
Inciong, Jr. and Gregorio Pantanosas to co-sign with him as co-makers. The
promissory note went due and it was left unpaid. PBC demanded payment
from the three but still no payment was made. PBC then sue the three but
PBC later released Pantanosas from its obligations. Naybe left for Saudi
Arabia hence cant be issued summons and the complaint against him was
subsequently dropped. Inciong was left to face the suit. He argued that that
since the complaint against Naybe was dropped, and that Pantanosas was
released from his obligations, he too should have been released.

ISSUE: Whether or not Inciong should be held liable.

HELD: The Supreme Court ruled that Inciong is considering himself as a

guarantor in the promissory note. And he was basing his argument based on
Article 2080 of the Civil Code which provides that guarantors are released
from their obligations if the creditors shall release their debtors. It is to be
noted however that Inciong did not sign the promissory note as a guarantor.
He signed it as a solidary co-maker.

A guarantor who binds himself in solidum with the principal debtor does not
become a solidary co-debtor to all intents and purposes. There is a difference
between a solidary co-debtor and a fiador in solidum (surety). The latter,
outside of the liability he assumes to pay the debt before the property of the
principal debtor has been exhausted, retains all the other rights, actions and
benefits which pertain to him by reason of the fiansa; while a solidary co-
debtor has no other rights than those bestowed upon him.
Because the promissory note involved in this case expressly states that the
three signatories therein are jointly and severally liable, any one, some or all
of them may be proceeded against for the entire obligation. The choice is
left to the solidary creditor (PBC) to determine against whom he will enforce
collection. Consequently, the dismissal of the case against Pontanosas may
not be deemed as having discharged Inciong from liability as well. As regards
Naybe, suffice it to say that the court never acquired jurisdiction over him.
Inciong, therefore, may only have recourse against his co-makers, as
provided by law.

B.E. San Diego, Inc. vs. Rosario T. Alzul

G.R. No. 169501, June 8, 2007


On February 10, 1975, respondent Alzul purchased from petitioner B.E. San
Diego, Inc. four (4) subdivision lots installment under Contract to Sell. On July
25, 1977, respondent signed a Conditional Deed of Assignment and Transfer
of Rights in favour of Wilson P. Yu her rights under the Contract to
Sell. Petitioner was notified of the execution of such deed. Later on, the
Contract to Sell in respondents name was cancelled, and petitioner issued a
new one in favor of Yu. Thereafter, respondent informed petitioner about Yus
failure and refusal to pay the amounts due under the conditional deed. She
also manifested that she would be the one to pay the installments due to
respondent on account of Yus default. On August 25, 1980, respondent
commenced an action for rescission of the conditional deed of assignment
against Yu before the RTC which subsequently caused the annotation of
notices of lis pendens on the titles covering the subject lots. On April 28,
1989, the subject lots were sold to spouses Carlos and Sandra Ventura who
were surprised to find the annotation of lis pendens in their owners
duplicate title. On May 8, 1990, the Ventura spouses filed an action for
Quieting of Title with Prayer for Cancellation of Annotation and Damages
before the RTC. The trial court ruled in favor of the Ventura spouses. On
appeal before the CA, however, the decision was reversed. In an attempt
to comply with the SCs directive, respondent tried to serve payment upon
petitioner but the latter refused to accept payment. Thinking that an action
for consignation alone would not be sufficient, respondent decided to file an
action for consignation and specific performance against petitioner before
the Housing and Land Use Regulatory Board. Aggrieved by the unfavorable
decision, respondent filed a Petition for Review before the HLURBs First
Division. On March 17, 2000, a decision was rendered dismissing the petition
for lack of merit. Respondent then filed an appeal to the Office of the
President. This was, however, dismissed on June 2, 2003 for having been
filed out of time. Respondent Alzul brought before the CA a petition for
certiorari. On February 18, 2005, the CA rendered its assailed Decision
reversing the HLURBs Resolution ordering petitioner to accept payment from
respondent and to issue the corresponding Deed of Sale.


Whether or not respondent Alzul is still entitled to consignation despite the

lapse of the period
Whether or not there was valid consignation


No. The Court ruled that the non-compliance with our June 17, 1996
Resolution is fatal to respondent Alzuls action for consignation and specific
performance. It is clear as day that respondent did not attempt nor pursue
consignation within the 30-day period given to her in accordance with the
prescribed legal procedure. The Court explained that a mere tender of
payment is not enough to extinguish an obligation. In Meat Packing
Corporation of the Philippines v. Sandiganbayan, it distinguished
consignation from tender of payment and reiterated the rule that both must
be validly done in order to effect the extinguishment of the obligation. There
is no dispute that a valid tender of payment had been made by respondent.
Absent however a valid consignation, mere tender will not suffice to
extinguish her obligation and consummate the acquisition of the subject
properties. In St. Dominic Corporation involving the payment of the
installment balance for the purchase of a lot similar to the case at bar, where
a period has been judicially directed to effect the payment, the Court held
that a valid consignation is made when the amount is consigned with the
court within the required period or within a reasonable time thereafter.

No. The Court held that the respondent would not still be accorded relief
assuming arguendo that it complied with the 30 day period or with a
reasonable time thereafter. Consignation is the act of depositing the thing
due with the court or judicial authorities whenever the creditor cannot accept
or refuses to accept payment and it generally requires a prior tender of
payment. It is of no moment if the refusal to accept payment be reasonable
or not. Indeed, consignation is the remedy for an unjust refusal to accept
payment. Art. 1256 of the Civil Code also provides that 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 of the
consignation in other cases. Moreover, in order that consignation may be
effective, the debtor must show that: (1) there was a debt due; (2)
the consignation of the obligation had been made because the creditor to
whom tender of payment was made refused to accept it, or because s/he
was absent or incapacitated, or because several persons claimed to be
entitled to receive the amount due or because the title to the obligation had
been lost; (3) previous notice of the consignation had been given to the
person interested in the performance of the obligation; (4) the amount due
was placed at the disposal of the court; and (5) after the consignation had
been made, the person interested was notified of the action.

In the case at bar, respondent did not comply with the provisions of law
particularly with the fourth and fifth requirements specified above for a valid
consignation. In her complaint for consignation and specific performance,
respondent only prayed that she be allowed to make the consignation
without placing or depositing the amount due at the disposal of the court of
origin. Verily, respondent made no valid consignation.