Вы находитесь на странице: 1из 3

a. If you are the lawyer of demi, how will you counter the suit?

b. If you are the lawyer of Polly, what action will you file in behalf of Polly?

1. Demi borrowed 500K from Polly payable when able
2. Four years had lapse from the grant of loan
3. Demi has yet to pay Polly despite the latter’s demand
4. Polly filed a collection suit against Demi

Art. 1197. If the obligation does not fix a period, but from its nature and the
circumstances it can be inferred that a period was intended, the courts may fix
the duration thereof.

The courts shall also fi x the duration of the period when it depends upon the
will of the debtor.

In every case the courts shall determine such period as may under the
circumstances have been probably contemplated by the parties. Once fixed by
the courts, the period cannot be changed by them.

(a) When the duration depends upon the will of the debtor.
1) “when my means permit me to do so” (Art. 1180, Civil
2) “I’ll pay you little by little” (Seone v. Franco, 24 Phil.
3) “as soon as possible” (Gonzales v. Jose, 38 O.G. 1751;
66 Phil. 369)
4) “as soon as I have money” (Patente v. Omega, GR L-
4433, May 29, 1953)
5) “in partial payments” (Levy Hermanos v. Paterno, 18
Phil. 353)
6) When the debtor is “in a position to discharge his
obligation.” (See Luding Hahn v. Lazatin, et al., L-
11346, 11549, Jun. 30, 1959).

When although the obligation does not fi x a period, it can

be inferred that a period was intended.

An obligation with an indefinite period, such as

when the time for the payment of a subscription of
shares of stocks has not been fi xed. As a matter of
fact in a case like this, the obligation must generally
be immediately fulfi lled, giving the debtor only such
time as might reasonably be necessary for its actual
fulfi llment. (Schenker v. Gemperle, L-16499, Aug. 31,

The Action to Bring Under This Article

The only action which the creditor can bring upon an obligation
that does not fi x a term, but where a term was indeed
intended, is to ask the court to fi x the period within which the
debtor must pay for the simple reason that the fulfi llment of the
obligation itself cannot be demanded until after the court has
fi xed the period for its compliance. (Vda. de Ungson v. Lopez,
[C.A.] GR L-10180-R, Mar. 10, 1954, 50 O.G. 4298). The Court
may fi x the period, even if this has not been specifi cally asked,
so long as the prayer, for example, asks for “such other and
further relief as to the court may appear just and equitable.”
(Paul Schenker v. William F. Gemperle, L-16499, Aug. 31, 1962).

And ordinarily specifi c performance cannot be demanded at the

same time that the court is asked to fi x the period (Concepcion v.
People, 74 Phil. 62, decided, Aug. 1943), such action for specifi c
performance being premature. (Eleizegui v. Lawn Tennis Club,
2 Phil. 309). In a case, however, the Supreme Court has ruled
that in exceptional instances, as when a prior and separate action
would be a mere formality and serve no other purpose but
delay, there is no necessity of such prior action. (Tiglao, et al. v.
MRR Co., infra.)

Query: Within What Period Must the Action to Fix the

Period Be Brought?
ANS.: Within the proper prescriptive period for specifi c performance
if a period had been originally fi xed, but to be counted
from the perfection of the contract. This is because the right
exists by operation of law from the moment of such agreement.
Extrajudicial demand is not therefore essential for the creation
of the cause of action to have the period fi xed. (Calero v. Carrion,
et al., L-13246, Mar. 30, 1960).
(NOTE: In this case, the court said that the prescriptive
period is 10 years.)
Example: D wrote a promissory note in C’s favor promising
payment “little by little.” Within 10 years from the date the
written contract was perfected, C must bring the action to fi x
the term. If the period lapses, the right to have the court fi x the
term is considered to have prescribed. (See Gonzales v. Jose, 66
Phil. 369).

(6) How the Court Fixes the Period

The Court determines the period by considering the time
probably contemplated by the parties. (Art. 1197). Once the period
is fi xed by the courts, the period becomes part of the contract,
thus the courts cannot change it. (Ibid.). The same is true if
the period is fi xed in a compromise agreement approved by the
Court. This is because the compromise agreement acquires the
same force and effect as the decision. (Deudor v. J.M. Tuason
& Co., Inc., L-13768, May 30, 1961). The parties may of course
change the period by mutual agreement, or may even disregard
the same (See Barretto v. City of Manila, 11 Phil. 624) in which
case, the obligation becomes a pure one, and demandable at
once. (See Art. 1197).