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Art. 1169.

Those obliged to deliver or to do something If the law or contract does not state the diligence which
incur in delay from the time the obligee judicially or is to be observed in the performance, that which is expected
extrajudicially demands from them the fulftllment of their of a good father of a family shall be required.47
obligation However, the demand by the creditor shall not be neces- sary in
order that delay may exist: Breach of Obligations. — In general, the breach of an ob- ligation may be either
(1) When the obligation or the law expressly so de- clares; or voluntary or involuntary. It is voluntary if the debtor or obligor in the performance
of his obligation is guilty of
(2) When from the nature and the circumstances of the obligation
it appears that the designation of the time when the thing is to be default (mora), or fraud (dolo), or negligence (culpa), or in any man-
delivered or the service is to be rendered was a controlling motive for the ner contravenes the tenor thereof.48 It is involuntary if he is unable
establishment of the contract; or to comply with his obligation because of an event which cannot be
(3) When demand would be useless, as when the obligor has foreseen, or which, though foreseen, was inevitable.49 In the ftrst he is liable for
rendered it beyond his power to perform. damages, in the second he is not.
Voluntary Breach Through Default or Mora. — The ftrst kind of voluntary breach of
In reciprocal obligations, neither party incurs in delay if the other
does not comply or is not ready to comply in a proper manner with an obligation regulated by the Civil Code is that which takes place by reason of
what is incumbent upon him. From the moment one of the parties default or mora. Default or
fulftlls his obligation, delay by the other begins.43 mora signiftes the idea of delay in the fulftllment of an obligation
Art. 1170. Those who in the performance of their with respect to time.
obligations are guilty of fraud, negligence, or delay, and There are three kinds of default or mora. They are:
those who in any manner contravene the tenor thereof, are liable for (1) Mora solvendi or the delay of the obligor or debtor to perform his obligation.
damages.44 This delay is called mora solvendi ex re when the obligation is an obligation to give
Art. 1171. Responsibility arising from fraud is demand- or mora solvendi ex persona when the obligation is an obligation to do.
able in all obligations. Any waiver of an action for future fraud is void.45 (2) Mora accipiendi or the delay of the obligee or creditor to accept the delivery
of the thing which is the object of the obligation.
Art. 1172. Responsibility arising from negligence in the
performance of every kind of obligation is also demandable, (3) Compensatio morae or the delay of the parties or obligors in reciprocal
but such liability may be regulated by the courts, according to the obligations.50
circumstances.46 There are three requisites which should be present in order
Art. 1173. The fault or negligence of the obligor consists that the obligor or debtor may be considered in default. They are:
in the omission of that diligence which is required by the (1) The obligation is demandable and already liquidated;
nature of the obligation and corresponds with the circum- (2) The obligor or debtor delays performance; and
stances of the persons, of the time and of the place. When
negligence shows bad faith, the provisions of Articles 1171
and 2201, paragraph 2, shall apply.

55
(1) The creditor requires the performance judicially or extra- The result would be different had the creditor made an extrajudicial demand
judicially. (Aerospace Chemical Industries, Inc. vs. CA, 315 SCRA 94.) upon the debtor on October 1, 1978, when the obligation became due and
In the case of Bricktown Devt. Corp. vs. Amor Tierra Devt. Corp., 239 demandable, or soon thereafter. In such case, the legal interest would have to be
SCRA 126 (1994), the Court ruled that a grace period is computed from such date.
not an obligation of the debtor but a right. It must not be likened to an Idem; id. — When demand is not necessary. — However,
obligation the non-payment of which under Art. 1169 would generally still demand by the creditor is not necessary in order that delay may exist in the
require judicial or extrajudicial demand before default can arise. When following cases:
unconditionally conferred, it is effective without further need of demand either
for the payment of the obligation or for honoring the right. (1) When the obligation or the law expressly so declares. 53 Attention must
be called to the fact that what the law means is that the obligation or the law
Idem; Default in positive obligations. — In obligations itself must expressly declare that the demand is not necessary in order that
to give or to do (positive obligations), the obligor or debtor incurs the debtor shall incur in delay. This may be illustrated by the following
in delay from the time the obligee or creditor demands from him examples:
the fulftllment of the obligation.51 This demand may be judicial or
extrajudicial. It is judicial if the creditor ftles a complaint against the debtor for Let us assume that D borrowed P20,000 from C on Dec. 5, 1976. He executed
the fulftllment of the obligation; it is extrajudicial if the creditor demands from the a promissory note promising to pay the indebtedness on Dec. 5, 1978. Upon the
debtor the fulftllment of the obligation either orally or in writing. Whether the arrival of the designated date for payment, is it necessary that C shall make a
demand is judicial or extrajudicial, if the obligor or debtor fails to fulftll or perform demand upon D for payment in order that the latter shall incur in delay?
his Evidently, such a demand is necessary. In order that the exception stated in No.
obligation, he is in mora solvendi, and therefore, liable for damages. The 1 of
signiftcance of this rule may be illustrated by the following problem: the second paragraph of Art. 1169 shall apply, it is indispensable
that the obligation itself must expressly declare that “demand is not
On October 1, 1976, A borrowed P10,000 from B evidenced by a promissory
necessary in order that D shall incur in delay” or that “D shall incur
note whereby he undertook to pay the indebtedness on October 1, 1978. On
in delay if he does not pay the obligation upon the arrival of the designated date
October 1, 1980, B brought an action against A for the payment of the
for payment.’’54
obligation as well as legal interest from the date of maturity by way of damages.
There is no evidence that any demand for payment was ever made prior to the Let us, however, assume that A and B entered into a contract of
presentation of the complaint. From what time shall the legal interest be partnership for the purpose of buying and selling textbooks, with the former as
computed capitalist partner and the latter as industrial partner. It was agreed that A shall
— shall it be computed from October 1, 1978, when the obligation became due contribute P20,000 to the common fund on January 5, 1980. Upon the arrival of
and demandable, or from October 1, 1980, when the complaint was ftled? the designated date for payment, is demand necessary in order that A shall incur
According to the decided cases, the interest shall be computed from October 1, in delay? In this case, such a demand is not necessary in order that A shall incur
1980, when the complaint was ftled, because it was only then that the debtor had in delay. According to Art. 1788 of the Civil Code, where one
incurred in delay.52 of the partners who has undertaken to contribute a sum of money
to the common fund at a specifted date fails to do so, he becomes
a debtor of the partnership not only for the amount which he has

56
promised to contribute but also for interest and damages from the In such case, A will incur in delay without the need of any demand from B.
time he should have complied with his obligation.
Idem; Default in negative obligations. — The obligor can
(2) When from the nature and the circumstances of the not possibly incur in delay in negative obligations (not to do). Ac- cording to
obligation it appears that the designation of the time when the Manresa, these obligations have a peculiarity of their own which the law does not
thing is to be delivered or the service is to be rendered was a show but which is evident from their spe- cial nature. Fulftllment and violation
controlling motive for the establishment of the contract.55 The basis of this are possible, but not default or mora. This peculiarity is what differentiates this
exception is the fact that the designation of the time is of such fundamental class of obligations from positive obligations (to give and to do).59
importance in the fulftllment of the obligation that it would be logical to assume Idem; Default in reciprocal obligations. — Reciprocal obli-
that the intention of the parties was to make fulftllment of the obligation upon gations are those which are created or established at the same time,
the arrival of such designated time an essential part of the contract. In other out of the same cause, and which result in mutual relationships of
words, the time element for the fulftllment of the obligation is of the essence of the creditor and debtor between the parties. These obligations are con- ditional in the
contract. Therefore, it must be established that the designation of the time when sense that fulftllment of an obligation by one party depends upon the fulftllment of
the obligation shall be fulftlled was a controlling motive for the execution of the the obligation by the other. Thus, in a contract of sale of an automobile for
contract. This can be inferred from the nature and circumstances of the P54,000, the vendor is obliged to deliver the automobile to the vendee, while the
obligation.56 Thus, where in the contract of sale entered into between plaintiff vendee is obliged to pay the price of P54,000 to the vendor. It is clear that the
and defendant there is a stipulation that the machinery which is the object of the vendor will not deliver the automobile to the vendee unless the latter will pay the
sale was already on the way from the United States to Manila, but it is price, while the vendee will not pay the price to the vendor unless the latter will
established that it was actually shipped several days after the execution of the deliver the automobile. Hence, in reciprocal ob-
contract and, as a consequence, plaintiff was unable to deliver it within a ligations, the general rule is that fulftllment by both parties should
reasonably short time to the defendant, it was held that the plaintiff has already be simultaneous or at the same time. There are, however, cases in which
incurred in delay since, undoubtedly, the representation that such machinery was different dates for performance or fulftllment of the recipro- cal obligations may
already on the way was one of the determining elements of the contract. be ftxed by the parties, in which case, the rule stated in the ftrst paragraph in
Consequently, the subsequent refusal of the defendant to accept the delivery is Art. 1169 shall apply.60
justifted.57 The rule then is that in reciprocal obligations, one party incurs
(3) When demand would be useless, as when the obligor has in delay from the moment the other party fulftlls his obligation,
rendered it beyond his power to perform.58 Thus, if A, for instance, has promised while he himself does not comply or is not ready to comply in a
to deliver his automobile to B on the 15th day of November, 1980, but a few days proper manner with what is incumbent upon him.61 If neither party complies or
before such date, the automobile was completely destroyed through his fault, is ready to comply with what is incumbent upon him,
and the fact of its destruction was known to B, demand by the latter would be the default of one compensates for the default of the other. In such
useless. case, there can be no legal delay. These rules may be illlustrated by the
following example: A sold his automobile to B for P30,000. They agreed that
delivery and payment shall be made on the 15th

57
of November, 1980. On that date, A was not ready to deliver the automobile, proposition to evade the normal fulftllment of an obligation.67 This type of
neither was B ready to pay. In such case, neither party has incurred in delay. If fraud, which is present during the performance of
A, however, delivered or was ready to deliver the automobile, but B did not pay an obligation, must not be confused with the causal or incidental
or was not ready to pay, then B is said to have incurred in delay.62 fraud, which is present at the time of the birth of an obligation. Under our legal
Idem; id. — Effect of default. — Once the obligor or debtor has incurred system, fraud in general may be classifted into civil
in delay, he can be held liable by the obligee or creditor for damages. 63 This and criminal fraud. Civil fraud, in turn, may be classifted into the following: first,
liability subsists even if the thing which consti- tutes the object of the obligation the fraud or dolo in the performance of an obligation;68 and second, the fraud or dolo
may have been lost or destroyed through a fortuitous event.64 in the constitution or establishment of
an obligation.69 The two may be distinguished from each other as follows:
If the obligation consists in the payment of a sum of money, and the debtor
incurs in delay, the indemnity for damages, there being (1) The ftrst is present only during the performance of a pre- existing
no stipulation to the contrary, shall be the payment of the interest obligation, while the second is present only at the time of the birth of the
agreed upon, and in the absence of stipulation, the legal interest. 65 Interest due obligation.
shall earn legal interest from the time it is judicially
(2) The ftrst is employed for the purpose of evading the normal fulftllment
demanded, although the obligation may be silent upon this point. 66
of an obligation, while the second is employed for the purpose of securing the
In Malayan Insurance Co., Inc. vs. IAC, 146 SCRA 45, the consent of the other party to enter into the contract.
Supreme Court reiterated the rule that a debtor who is in delay
(default) is liable for damages, in the form of interest. (3) The ftrst results in the nonfulftllment or breach of the
obligation, while the second, if it is the reason for the other party
The Supreme Court ruled in the case of Llorente, Jr. vs. Sandiganbayan, 287 upon whom it is employed for entering into the contract, results in
SCRA 382 (1998) that the provisions under the vitiation of his consent.
Title XV of the Civil Code on Damages govern in determining the
measure of recoverable damages. It is fundamental in the law on (4) The ftrst gives rise to a right of the creditor or obligee to
Damages that one who is injured by a breach of a contract, or by a recover damages from the debtor or obligor, while the second gives
wrongful act or omission, shall have a fair and just compensation rise to a right of the innocent party to ask for the annulment of the
commensurate to the loss sustained as a consequence of the contract if the fraud is causal or to recover damages if it is incidental.
defendant’s act.
Thus, if A engages to tow a launch belonging to B from Iloilo to Manila,
Voluntary Breach Through Fraud or Dolo. — The second kind of using a steamer for that purpose, and on the way the launch is cast adrift and
voluntary breach of an obligation regulated by the Civil Code is that which takes lost, Art. 1170, in relation to Art. 1171, is applicable. B can hold A liable for
place by reason of fraud or dolo. According to Manresa, fraud or dolo consists damages.70 On the other hand, if a certain applicant for an insurance substitutes
in the conscious and intentional another person for himself during the medical examination, it is evident that
there has been causal fraud or dolo causante in securing the consent of the

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Arts. 1170-1173 OBLIGATIONS NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

insurance company which will entitle the latter to ask for annulment of the Code is that which takes place by reason of the negligence or culpa
contract.71 of the debtor or obligor. It consists in the omission of that diligence
which is required by the nature of the obligation and corresponds
Idem; Effect of fraud. — If there is a breach or non-fulftll- ment of the
with the circumstances of the persons, of the time and of the place. 75 From this
obligation by reason of fraud or dolo on the part of the obligor or debtor, he can be
deftnition, it is evident that negligence is simply the absence of due care required
held liable for damages. As a ground for damages, malice or dishonesty is
by the nature of the obligation.76 It is a relative or comparative, not an absolute
implied. It cannot cover cas-
es of mistake and errors of judgment made in good faith. Fraud or term, and its application depends upon the situation of the parties and the degree
of care and vigilance which the circumstances reasonably require. Where the
dolo is synonymous to bad faith. (O’leary Macondray & Co., 45 Phil. 812 [1924].)
danger is great, a high degree of care is necessary, and the failure to observe it is a
The liability is expressly recognized by the provisions
of Arts. 1170 and 1171 of the Code. It is also a rule that the liabil- want of ordinary care under the circumstances.77 It is in
each case practically a question of fact whether the proper degree of
ity cannot be waived or renounced. It must be noted, however, that what is
care has been exercised taking into consideration what a reasonable
prohibited is the waiver or renunciation which is made in advance or in
and prudent man would have done under the circumstances. 78 Thus, according
anticipation of the fraud, and not that which is made after the fraud has already
to the second paragraph of Art. 1173, if the law
been committed. In other words, under
or contract does not state the diligence which is to be observed in
Art. 1171, what is prohibited is the renunciation of the action for a
the performance of the obligation, that which is expected of a good
fraud which has not yet been committed.72
father of a family shall be required. Hence, the law has adopted the standard
Thus, waiver for future fraud is contrary to law and public supposed to be supplied by the imaginary conduct of the discreet pater familias
policy. As such, said waiver is void. But waiver for a past fraud is of the Roman Law.79
valid since such waiver can be deemed an act of generosity. Further, what is
It is, therefore, clear that the degree of care that must be observed by the
renounced is the effect of fraud, more particularly the right of the party to
obligor in the performance of his obligation shall
indemnity.
depend not only upon the nature of the obligation, but also upon the
What is the extent of damages which the obligee or creditor can recover from circumstances of persons, time and place. In other words, there are
the obligor or debtor in case of breach or nonfulftllment of the obligation by reason as many degrees of care as there are obligations.
of fraud or dolo? According to the law on
Idem; Kinds of negligence. — Negligence or culpa may be
damages in the Civil Code, it shall comprehend all damages which may be
either civil or criminal. The ftrst is governed by Arts. 1170, 1172,
reasonably attributed to the breach or nonfulftllment of the
obligation, regardless of whether such consequences are natural or 1173, and other provisions of the New Civil Code, while the second is governed
unnatural, probable or improbable, foreseeable or unforeseeable. 73 by Art. 365 of the Revised Penal Code.
In addition to such damages, the obligee or creditor can also recover moral and Civil negligence, in turn, may be either culpa contractual
exemplary damages.74 Moral damages may be recovered or culpa aquiliana (quasi-delicts). Using the general deftnition of negligence
in addition to other damages. (Far East Bank & Trust Co. vs. Court of Appeals, enunciated in Art. 1173 as basis, the ftrst may be deftned as the fault or
59 SCAD 253, 241 SCRA 671 [1995].) negligence of the obligor by virtue of which he is
unable to perform his obligation arising from a pre-existing contract,
Voluntary Breach Through Negligence or Culpa. — The third kind of
voluntary breach of an obligation regulated by the Civil

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Arts. 1170-1173 OBLIGATIONS obligation of D and of his employer to P and to Y, and the defense available to the employer.
(1977 Bar Problem)

because of the omission of the diligence which is required by the Answer — There are three overlapping sources of the obligation of D and
nature of the obligation and corresponds with the circumstances of his employer. They are:
of the persons, of the time and of the place. The second, on the other hand, may (1) Under the Revised Penal Code: The heirs of P and Y may proceed
be deftned as the fault or negligence of a person, against D and his employer under the Penal Code. In this case, the source of the
who, because of the omission of the diligence which is required by liability of D and of his employer is the crime committed by D (culpa criminal).
the nature of the obligation and which must correspond with the The liability of D is
circumstances of the persons, of the time and of the place, causes direct and primary (Art. 100, RPC); the liability of his employer
is subsidiary (Art. 103, RPC). The latter cannot relieve himself of liability by
damage to another.
proving due diligence of a good father of a family. This is so because of the very
From the above deftnitions, it is clear that whether the negli- nature of his obligation.
gence is culpa contractual or culpa aquiliana, the provision of Art. (2) Under the Civil Code:
1173 of the Civil Code applies. The negligence of the defendant in
both cases is characterized by the omission of that diligence which (a) Heirs of P: The heirs of pedestrian P may proceed against both D
and his employer, or against the latter only. In this case, the source of the
is required by the nature of the obligation and corresponds with the
liability of D and his employer is the quasi-delict (culpa aquiliana) committed
circumstances of the persons, of the time and of the place. The simi- larity, by D (Arts. 2176, 2180, CC). The liability of both is direct and primary. D’s
however, ends there. They are different with respect to an- tecedents and employer can relieve himself of liability by proving due diligence of a good
consequences. They may be distinguished from each other as follows: father of a family in the selection and supervision of his drivers (Art. 2180,
CC).
(1) As regards the character of the negligence of the defendant: In culpa
contractual, the negligence of the defendant is merely an (b) Heirs of Y: On the other hand, the heirs of Y may proceed against
incident in the performance of an obligation; in culpa aquiliana it is D’s employer only. The source of the liability of D’s employer, in this case, is
substantive and independent. the breach of his contract of carriage with Y (culpa contractual). His liability is
direct and primary. He cannot relieve himself of liability by proving due
(2) As regards the relationship of the parties: In the ftrst there is always a diligence of a good father of a family (Art. 1759, CC). This is so because under
pre-existing contractual relation; in the second there may or may not be a pre- our law on common carriers, we do not adhere to the principle of respondeat
existing contractual relation. superior; we adhere to the principle that there is always an implied duty of a
common carrier to carry the passenger safely to his place of destination.
(3) As regards the source of the obligation: In the ftrst the However, although not available as a defense, such proof of due diligence may
source of the obligation of the defendant to pay damages to the serve to mitigate the employer’s liability.
plaintiff is the breach or nonfulftllment of the contract; in the second
the source is the defendant’s negligent act or omission itself. Idem; Negligence distinguished from fraud. — Negligence
or culpa, especially in relation to obligations, signiftes an act or
(4) As regards the proof required for recovery: In the ftrst proof
omission which is voluntary in character by virtue of which another
of the existence of the contract and of its breach or nonfulftllment
person suffers damage or injury due to a failure to observe the
is sufftcient prima facie to warrant a recovery; in the second the
diligence which is required by the nature of the obligation and which
negligence of the defendant must be proved.
must correspond with the circumstances of persons, time and place. It should be
(5) As regards the availability of due diligence as a defense: distinguished from fraud or dolo which is the conscious
In the ftrst proof of diligence in the selection and supervision of and intentional proposition to evade the normal fulftllment of the
employees is not available as a defense; in the second it is.

Problem — Taxi driver D, driving recklessly, killed pedestrian P and his

60
Arts. 1170-1173 OBLIGATIONS NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

obligation. The distinguishing element, therefore, is the element of intention. If plaintiff also negligent in alighting from the train while it was still moving?
there is intent to cause damage or injury, there is Held: “The test by which to determine whether the passenger has been guilty
dolo; if there is merely abandonment, inattention, carelessness, or of negligence in attempting to alight from a moving railway train, is that of
lack of diligence, there is culpa.80 It must be observed, however, that ordinary or reasonable care. It is to be considered whether an ordinarily prudent
when negligence shows bad faith the rules on fraud or dolo shall govern.81 In other person, of the age, sex and condition of the passenger, would have acted as the
words, when the negligent act or omission of the obligor while performing his passenger acted under the circumstances disclosed by the evidence. This care
obligation is so gross that it amounts to a wanton attitude on his part, the laws has been deftned to be not the care which may or should be used by the prudent
governing the liability of an obligor in case of fraud shall then apply. In such a man generally, but the care which a man of ordinary prudence would use, under
similar circumstances, to avoid injury. (Thompson, Commentaries on Negligence,
case, the boundary line between negligence and fraud practically disappears.
Vol. 3, Sec. 2010.) Or, if we prefer the mode of exposition used by this court in
Idem; Test of negligence. — The test by which we can determine the Picart vs. Smith (37 Phil. Rep. 809), we may say that the test is this: Was there
existence of negligence in a particular case may be stated as follows: Did the anything in the circumstances surrounding the plaintiff at the time he alighted
from the train which would have admonished a person of average prudence that
defendant in doing the alleged negligent
to get off the train under the conditions then existing was dangerous? If so, the
act use the reasonable care and caution which an ordinarily prudent plaintiff should have desisted from alighting; and his failure to so desist was
person would have used in the same situation? If not, then he is guilty of contributory negligence.
negligence. The law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet pater familias of the Roman Law.82 “As the case now before us presents itself, the only fact from which a
conclusion can be drawn to the effect that the plaintiff was guilty of contributory
negligence is that he stepped off the car without being able to discern clearly the
Cangco vs. Manila Railroad Co. condition of the platform and while the train was yet slowly moving. In
38 Phil. 763 considering the situation thus presented, it should not be overlooked that plaintiff
was ignorant of the fact of the obstruction which was caused by the sacks of
The records show that plaintiff, who was a passenger in a train watermelons piled on the platform. The place was dark, or dimly lighted.
belonging to the defendant company, alighted from the said train while it was Furthermore, the plaintiff was possessed of the vigor and agility of young manhood,
still moving before coming to a complete stop. In so alighting, he stepped upon and it was by no means so risky for him to get off while the train was yet moving as
a sack of watermelons and as a result he fell violently on the platform. the same act would have been in an aged or feeble person. In determining the
Because of the violence of his fall, he rolled from the platform and was drawn question of contributory negligence in performing such act — that is to say,
under the moving car, as a result of which his right arm was badly crashed whether the passenger acted prudently or recklessly — the age, sex and physical
and lacerated. In this action for damages commenced by the plaintiff against condition of the passenger are circumstances necessarily affecting the safety of
the defendant company, the former contends that the proximate cause of the the passenger, and should be considered. Women, it has been observed, as a
accident was the negligence of the latter in allowing the sack of watermelons general rule, are less capable than men of alighting with safety under such
to be placed in its platform where passengers may alight, while the latter conditions, as the nature of their wearing apparel obstructs the free movement of
contends that the proximate cause was the negligence of the former in the limbs. Again, it may be noted that the place was perfectly familiar to the
alighting while the train was still moving. Granting that the defendant plaintiff as it was his daily custom to get on and off the train at this station. There
company was negligent in allowing the sack of watermelons to be placed in could, therefore, be no uncertainty in his mind with regard
its platform, was the

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Arts. 1170-1173 OBLIGATIONS NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

liability of the carrier to an agreed valuation unless the shipper According to an almost uniform weight of authority the ftrst and
declares a higher value and pays a higher rate of freight. second kinds of stipulations are is valid as being contrary to public policy, but
the third is valid and enforceable.”
either to the length of the step which he was required to take or the character
of the platform where he was alighting. Our conclusion is that the conduct of
In the case of Southeastern College, Inc., vs. Court of Appeals, Juanita de
the plaintiff in undertaking to alight while the train was yet slightly under
way was not characterized by imprudence and that, therefore, he was not
Jesus Vda. De Dimaano, et al., (July 10, 1998, 292 SCRA 422), the Supreme
guilty of contributory negligence.” Court observed that at the outset, it bears emphasizing that a person claiming
damages for the negligence of another has the burden of proving the
Idem; Effects of negligence. — If the debtor or obligor existence of fault or
is unable to comply with his obligation because of his fault or negligence causative of his injury or loss. The facts constitutive of negligence
negligence, the creditor or obligee can hold him liable for damages.83 must be afftrmatively established by competent evidence,
This liability subsists even if he has been acquitted in a criminal not merely by presumptions and conclusions without basis in fact. Private
action charging him with a criminal offense based on his negligent respondents, in establishing the culpability of petitioner, merely relied on the
act or omission.84 aforementioned report submitted by a team which made an ocular inspection of
petitioner’s school building after the typhoon. As the term imparts, an ocular
It must be observed, however, that Art. 1172 which enunciates the principle inspection is one that is conducted by means of actual sight or viewing. What is
of the demandability of the responsibility of the obligor in case of negligence is visual to the eye though, is not always reflective of the real cause behind. For
different from Art. 1171 which also enunciates the same principle in case of fraud instance, one who hears a gunshot and then sees a wounded person, cannot
in the sense that in the former, nothing is said with regard to the renunciation always deftnitely conclude that a third person shot the victim. It could have been
or waiver of the action, while in the latter, it is stated that any waiver of an self-inflicted or caused accidentally by a stray bullet. The relationship of cause
action for future fraud is void. Consequently, may an action for negligence be and effect must be clearly shown.
waived? There is no question that if the action is based on a negligent act or
omission which has already happened, the action may be waived since it can also Idem; id. — Regulatory power of the courts. — Under Art.
be done in the case of fraud and negligence is certainly not as serious as fraud. 1172, liability arising from negligence in the performance of every
The question is with respect to an action for future negligence. Can it be waived? kind of obligation may be regulated by the courts. Consequently, the court may
Authorities agree that it can be waived, unless the nature of the obligation and increase or decrease the liability of the party at fault depending upon the
public policy should require extraordinary diligence as in the case of common circumstances of each case. Thus, the court may take into consideration the good
carriers.85 Thus, the Supreme Court in the case of Heacock vs. Macondray & Co.,86 or bad faith of the obligor (defendant) or the conduct of the obligee (plaintiff) when
stated: the damage was incurred.
Idem; id.; id. — Effect of good faith. — If the debtor or obligor has acted
“Three kinds of stipulation have often been made in a bill of lading. The in good faith, he shall be liable only for natural
ftrst is one exempting the carrier from any and
and probable consequences of the breach of the obligation and which
all liability for loss or damage occasioned by its own negligence. The second is
one providing for an unqualifted limitation of such
the parties have foreseen or could have reasonably foreseen at the
liability to an agreed valuation, and the third is one limiting the time the obligation was constituted.87

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Arts. 1170-1173 OBLIGATIONS NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

Idem; id.; id. — Effect of bad faith. — If the negligence of the obligor broke, the car canted, the rails slid off and caught the plaintiff, breaking his leg,
shows bad faith, then, by express provision of Art. 1173, which was afterwards amputated at about the knee. The cause of the sagging of
the provisions of Arts. 1171 and 2201, par. 2, shall apply. It is in this case that the the track is admitted to be the dislodging of the crosspiece under the stringer by
boundary line, at least with regard to effects, between negligence and fraud the water of the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the sand. No effort
disappears altogether. Hence, the obligor
was made to repair the injury at the time of the occurrence. According to the
can be held responsible for all damages which may be reasonably
plaintiff’s witnesses, a depression of the track was apparent to the eye, and a
attributed to the nonperformance of the obligation. 88 Furthermore, any waiver or fellow workman of the plaintiff swears that the day before the accident he called the
renunciation which is made in anticipation of such liability is null and void.89 attention of the foreman to it and asked him to have it repaired. It is also admitted
Idem; id.; id. — Effect of contributory negligence. — If there was that there was a prohibition imposed by the defendant company against walking
by the side of the car and that the plaintiff was walking by the side of the car
contributory negligence of the obligee or creditor, the effect is to reduce or
when the rails slid off. The question now is — what effect is to be given to such act
mitigate the damages which he can recover from the obligor or debtor as a result of contributory negligence?
of the breach of the obligation. This doctrine has always been consistently upheld
by the Supreme Court.90 Attention, however, must be called to the fact that if Held: “Difftculty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the accident. The test is
the
simple. Distinction must be
negligent act or omission of the obligee concurred with the negligent made between the accident and the injury, between the event
act or omission of the obligor in causing the injury complained of, itself, without which there could have been no accident, and
in other words, if the negligent act or omission of the obligee was those acts of the victim not entering into it, but contributing
a proximate cause of the event which led to the damage or injury to his own proper hurt. For instance, the cause of the accident under review was
complained of, he cannot recover. It is, therefore, of the utmost importance to the displacement of the crosspiece or the failure to replace it. This produced the
determine whether the negligence of the obligee or creditor was a proximate event giving occasion for damages that is the sinking of the track and the sliding of
cause of the accident or event which led to the injury or merely contributory to his the iron rails. To this event, the act of the plaintiff in walking by
own injury. The test is given in the following case: the side of the car did not contribute although it was an element of the damage
which came to himself. Had the crosspiece been out of place wholly or partly
through his act or omission of duty, that would have been one of the determining
causes of the event or accident, for which he would have been responsible. Where
Rakes vs. Atlantic Gulf and Paciftc Co.
he contributes to the principal occurrence, as one of its determining factors, he
7 Phil. 359
cannot recover. Where, in conjunction with the occurrence, he contributes only to
This is an action to recover damages. The plaintiff, one of a gang of his own injury, he may recover the amount that the defendant responsible for the
eight Negro laborers in the employment of the defendant, was at work event should pay for such injury, less a sum deemed a suitable equivalent for his
transporting rails from a barge in the harbor to the company’s yard near the own imprudence.
Malecon in Manila. The rails lay upon two crosspieces secured to the cars, but “Accepting, though with some hesitation, the judgment of the trial court,
without sidepieces or guards to prevent them from slipping off. At a certain ftxing the damage incurred by the plaintiff at 5,000 pesos, the equivalent of
spot at or near the water’s edge the track sagged, the tie 2,500 dollars, United States money, we deduct therefrom 2,500 pesos, the amount
fairly attributed to his negligence, and direct judgment to be entered in favor of
the plaintiff for the resulting sum of 2,500 pesos, with

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Art. 1174 OBLIGATIONS

costs to both instances and ten days thereafter let the case be remanded to the
court below for proper action.”

Idem; id.; id. — Other circumstances. — Besides the


circumstances referred to in the preceding sections, the courts may
also equitably mitigate the damages in the following instances:
(1) Where the plaintiff himself has contravened the terms of
the contract;
(2) Where the plaintiff has derived some beneftt as a result of the contract;
(4) and
(3) In cases where exemplary damages are to be awarded,
where the Where
defendant
the acted upon have
loss would the advice of counsel;
resulted in any event;
(5) Where upon the ftling of the action, the defendant has
done his best to lessen the plaintiff’s loss or injury. 91
Voluntary Breach Through Contravention of Tenor of
Obligation. — Under Art. 1170 of the Civil Code, not only debtors guilty of
fraud, negligence or default in the performance of obligations are decreed
liable; in general, every debtor who fails
in the performance of his obligations is bound to indemnify the
creditor for the damages caused thereby. The phrase “in any manner contravene
the tenor” of the obligation includes not only any illicit act which impairs the
strict and faithful fulftllment of the obligation, but also every kind of defective
performance.92

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