Part II controlling motive for ordering in a fastfood

restaurant is that the food is expected to be

Problem: A brought his car to a mechanic. The
delivered fast.
mechanic promised to have the job done 5 days
later because the owner said he really needs the car Article 1169. Those obliged to deliver or to do
as it is his means of transportation and he uses it to something incur in delay from the time the obligee
drive his kids. 5 days later, A went back and found judicially or extrajudicially demands from them the
out that the mechanic hasn’t even started his job. fulfillment of their obligation.
The mechanic then said that he’ll do it the next day.
However, the demand by the creditor shall not be
In the night, the car was destroyed due to a flash
necessary in order that delay may exist:
flood. Who is liable for the loss?
(1) When the obligation or the law expressly so declare;
Answer: The mechanic is liable for the loss since he
or
was in delay. Also, waiver of rights should be done
voluntarily and intelligently. A did not voluntarily (2) When from the nature and the circumstances of
waive his right because he did not have a choice as the obligation it appears that the designation of
the job on the car was not yet done. Thus, there was the time when the thing is to be delivered or the
a delay which made the mechanic liable. service is to be rendered was a controlling motive
for the establishment of the contract; or
Modified Problem: Supposing that the time of
delivery is 5 days and after 5 days, the mechanic (3) When demand would be useless, as when the obligor
was not yet done and the owner did not claim. has rendered it beyond his power to perform.
The next day, the car was destroyed by a fortuitous
event. Who is liable for the loss?
CASE [sorry sir did not cite kay he wasn’t sure of
Answer: The mechanic is liable because the
the name]: A ordered boxes which he needed in 30
mechanic already knows that the owner needs the
days so he can use the same for his orange harvest.
car; time is of the essence in the transaction. Thus,
A failed to mention that the boxes were to be used
the mechanic was already in delay because there is
for his harvest which falls on the 30th day. Before
no need for demand since time was time
the 30th day he would be reminding that he needed
controlling motive.
the boxes. The 30th day came and the boxes were
Problem: You went to a fastfood restaurant. The not delivered and the oranges were ruined. Is the
fastfood restaurant said, “Fifteen minutes pa ang vendor liable?
order.” 15 mins passed and your order did not
Answer: No, the vendor is not liable since there
arrive. So, you called the waiter and reminded him
was no demand. Art 1169 (2) [see above] is only
of your order. 30 mins passed and your order still
applicable if such information is available to the
did not arrive. You asked the waiter again about
other party. In this case, the vendor of the boxes
your order. Your order still did not arrive. So you
did not know that time was the controlling motive
left. Was the fastfood restaurant in delay?
of the purchase. Further, the reminder is not a
Answer: Yes, the fastfood restaurant was in delay. demand. Thus, he cannot be held liable.
Art. 1169 (2) states that demand is not needed if
Sir says: Fixing of a period only means the
“When from the nature and the circumstances of
obligation is demandable. Thus, to incur delay
the obligation it appears that the designation of the
there must still be a demand.
time when the thing is to be delivered or the service
is to be rendered was a controlling motive for the Problem: A entered into an agreement which
establishment of the contract.” In this case, the states, “I will pay you 30 days later” and there is no
stipulation as to legal interest. 30 days later, he did
not pay. He paid 1 year later. Is he liable for legal
interest?
Answer: No, fixing of the period means that it is
only demandable. There must still be a demand.
There was no demand in this case, therefore, there
is still no delay.
Modified Problem: Supposing there was a
demand, will he be liable for legal interest? If yes,
how much?
Answer: Yes, he will be liable for legal interest
since he has incurred delay. The amount of interest
would depend upon when the legal interest would
accrue; so if it accrues before the Central Bank
Circular took effect, it is 12%, and if it accrues after
the effectivity it will be 6%.
Sir says: The situation would be different if there
was an express stipulation like, “You pay in 30
days otherwise you will be in default.” Such
express stipulation is absent in the problem above.
Problem: A brought his typewriter to B to have it
repaired. They agreed that they have to change
some parts in the typewriter. The repair will cost
200,000 and the brand new parts will cost 300,000.
When A came back to get it by the time it was due,
it was still not repaired so he said, “I will just get it
after three days.” When A came back on the 3rd
day, the typewriter still wasn’t fixed. So A got the
typewriter and had it fixed by another repairman
and the spare part change will cost him twice as
much. Can he recover from the first repairman?
Answer: Yes. The obligation consists in the
obligation to do something, and if the obligor fails
to perform it, the obligee may undertake to
perform the obligation himself or have another
person do it at the expense of the obligor.
Follow-up Problem: Can he recover the labor and
the price of the spare parts? Or can he recover the
labor only?
Answer: He can only recover the excess of what he
was supposed to pay the first repairman otherwise,
there will be unjust enrichment.
Question: Can you give an example where demand
is not necessary because the law provides that you
should pay?
Answer: Taxes. Also, Art 1788.
Article 1788. A partner who has undertaken to
contribute a sum of money and fails to do so becomes a
debtor for the interest and damages from the time he
should have complied with his obligation.
The same rule applies to any amount he may have taken
from the partnership coffers, and his liability shall begin
from the time he converted the amount to his own use.
Question: If the lease is for a period and that
period has already expired, can you file for
unlawful detainer even without demand?
Answer: Yes, according to Art. 1669.
Article 1669. If the lease was made for a determinate
time, it ceases upon the day fixed, without the need of a
demand.
Question: What if you did not file a case for
unlawful detainer and you did not demand, is the
lease continuing?
Answer: Yes, if the lessee stayed in the premises for
at least 15 days, there will be an implied lease.
Problem: A and B entered into a contract. A will
deliver his logs in the dock where the ship will pick
it up. The agreement was that B was supposed to
pick up the logs in May and not June because June
was rainy. So they delivered the logs by May but
the ship that was supposed to carry it only got the
logs by June. By this time, the logs have already
dissipated because of the flash floods and the
typhoons. Is the shipping company (I think si B ni)
liable?
Answer: Yes, because the controlling motive for
entering into the agreement is that the logs will be
picked up in May because A knew that it will be
stormy in June and the logs will suffer damage.
Problem: A found a wallet left by a passenger on a
bus whom he knew because cge niya makitan
around Silliman. 30 days later the wallet was stolen
from A. Is A liable to the owner of the wallet?
Answer: Yes, because upon finding it he did not
give it to the owner, so he must shoulder the loss
brought about by the fortuitous event. This is
supported by Art. 1263.
Article 1263. In an obligation to deliver a generic thing,
the loss or destruction of anything of the same kind does
not extinguish the obligation.
Sir Says: This can be qualified qualified this kay ga
wonder siya na since it took him more than 30
days, and kaila siya sa owner maybe theft daw. So
burden japn ni A ag loss according to Art 1268.
Article 1268. When the debt of a thing certain and
determinate proceeds from a criminal offense, the debtor
shall not be exempted from the payment of its price,
whatever may be the cause for the loss, unless the thing
having been offered by him to the person who should
receive it, the latter refused without justification to
accept it.
Question: What are the four requirements for the
extinguishment of the obligation due to fortuitous
event?
Answer: 1) The cause of the unforeseen and
unexpected occurrence, or of the failure of the
debtor to comply with his obligation must be
independent of the human will;
2) It must be impossible to foresee the event which
constitutes the “caso fortuito,”or if it can be
foreseen, it must be impossible to avoid;
3) The occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in
a normal manner; and
4) The obligor must be free from any participation
in the aggravation of the injury resulting to the
creditor. [Aquino, p. 435-436]
Problem: A is a workman in a logging company.
The company had a sawmill along the Pasig River
where the logs were carried by the current bound
with a steal cable. There was a flood in Pasig where
the steel cable was damaged. A was asked by his
supervisor to jump to save the logs. Is the employer
liable for the death of the laborer and can the
widow claim from workmen’s compensation?
Answer: Yes. In this case, the SC overruled the
lower court and decided that there was no gross
negligence on the part of A as he was only obeying
the orders of his supervisor. It’s also not suicide.
Follow-up Question: When is the employer not
liable in workmens’s compensation?
Answer: a) When the injury or death was not work-
related, b) suicide, c) notorious negligence.
Problem: A worker in a sugar plantation was hit by
lightning. Is he employer liable?
Answer: Yes, because the nature of the
employment increased the risk of sustaining the
injury.
Question: The insured person put out an insurance
for his life. What kind of obligation is that?
Answer: One with a period because death is
certain.
Question: What about an accident insurance?
Answer: One with a condition because it is
contingent upon the happening of the accident.
Problem: A sent a package with a statue. A told the
delivery boy to send it to B in apartment 9 when it
should have been addressed to B in apartment 6.
The delivery boy delivered it to C in apartment 9.
The statute was destroyed in a fortuitous event. Is
C liable?
Answer: Yes, because he failed to refuse the
delivery, knowing that the statue should not have
been delivered to him. [Note: Answer ning Julius
and then move-on dayun si sir so correct siguro.]
Problem: Bailee let his mother who lives with him
use the thing he borrowed. It was destroyed in a
fortuitous event. Is the bailee liable?
Answer: No, because the mother is a member of
the bailee’s household.
Modified Problem: What if it was a deposit?
Answer: There will be liability because the nature
of a deposit is strictly personal and it cannot govern
the other members of the household.
Problem: Bailee borrowed a bicycle and there was
a flashflood and he decided to run and save his
own bicycle. He left the bicycle that he borrowed. Is
he liable?
Answer: Yes, this is according to Art. 1942 (5).
Article 1942. The bailee is liable for the loss of the thing,
even if it should be through a fortuitous event:
(1) If he devotes the thing to any purpose different from
that for which it has been loaned;
(2) If he keeps it longer than the period stipulated, or
after the accomplishment of the use for which the
commodatum has been constituted;
(3) If the thing loaned has been delivered with appraisal
of its value, unless there is a stipulation exempting the
bailee from responsibility in case of a fortuitous event;
(4) If he lends or leases the thing to a third person, who
is not a member of his household;
(5) If, being able to save either the thing borrowed
or his own thing, he chose to save the latter.
Problem: A rented a piece of rural land. He rents
the land for the whole cropping season. Before he
can harvest, he lost all the rice planted to locusts. Is
he liable for rent?
Answer: A is inly liable for reduced rent in
accordance with Art 1680. This is because locusts
are considered an extraordinary fortuitous event
and A lost more than half of the harvest.
Article 1680. The lessee shall have no right to a
reduction of the rent on account of the sterility of the
land leased, or by reason of the loss of fruits due to
ordinary fortuitous events; but he shall have such
right in case of the loss of more than one-half of
the fruits through extraordinary and unforeseen
fortuitous events, save always when there is a
specific stipulation to the contrary.
Extraordinary fortuitous events are understood to
be: fire, war, pestilence, unusual flood, locusts,
earthquake, or others which are uncommon, and
which the contracting parties could not have
reasonably foreseen.
Problem: A promised to deliver the watch to B and
also-- without B’s knowledge-- to C. Before
delivery, the watch was lost by fortuitous event.
Can B or C demand damages?
Answer: Yes, because A promised to deliver it to
two persons. This is supported by Art 1165 (3).
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 compel the debtor to
make the delivery.
If the thing is indeterminate or generic, he may ask that
the obligation be complied with at the expense of the
debtor.
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.
Problem: The officious manager finds a fishing
vessel which was abandoned. He then saves the
thing and uses it not just as a fishing vessel but as
an inter-island passenger vessel. It was destroyed
by fortuitous event. Is the manager liable?
Answer: Yes, according to Art 2147 (1). In this case,
the manager knowingly undertook a risky
operation.
Article 2147. The officious manager shall be liable for
any fortuitous event:
(1) If he undertakes risky operations which the
owner was not accustomed to embark upon;
(2) If he has preferred his own interest to that of the
owner;
(3) If he fails to return the property or business after
demand by the owner;
(4) If he assumed the management in bad faith.
Sir says: That if the boat was not really abandoned,
then the manager will be liable under Art 2147 (4)
[see above] because he assumed the management
in bad faith.
Question: If the thing is lost in the possession of
the debtor, what is the presumption? Is he liable for
the loss?
Answer: Yes, he is liable. According to Art 1265,
the loss is presumed to be the fault of the debtor.
Article 1265. Whenever the thing is lost in the
possession of the debtor, it shall be presumed that the
loss was due to his fault, unless there is proof to the
contrary, and without prejudice to the provisions of
article 1165. This presumption does not apply in case of
earthquake, flood, storm, or other natural calamity.
Problem: The shipper had an agreement with the
common carrier that the goods will be delivered to
the consignee within 30 days. So the carrier left the
port and he expects to land in 15 days. Therefore,
he still has 15 days to deliver. The porters went on
strike so there were no people to unload the cargo.
So the carrier was not able to deliver within 30
days. Is the shipper liable?
Answer: Qualified. If there was already a notice of
strike and they entered into a contract, that can no
longer be a fortuitous event. But if it was a wildcat
strike (i.e., a strike action undertaken by unionized
workers without union leadership's authorization,
support, or approval) then that can be considered a
fortuitous event in which there can be no liability
because that is out of the shipper’s control.
Sir Says: This is a variation of a bar problem in
which the strike was due to the employer’s non-
payment of overtime. In that case, that cannot be
considered a fortuitous event because that was due
to the employer’s fault. The employee in that case is
liable.
Problem: A went to the furniture shop and said he
wants to buy furniture made out of kamagong
(Note: I searched, and apparently this is like some
expensive wood). The furniture maker said they
had kamagong furniture and sold the same to A. A
later found out that the furniture was not made of
kamagong because it started to crack. Can A have it
annulled or only ask for damages?
Answer: He can have it annulled according to Art
1390 because the buyer was induced into entering
into the contract. A wouldn’t have bought the
furniture if it weren’t for the furniture maker’s
assurances that the same was kamagong. (Note:
This is dolo causante)
Article 1390. The following contracts are voidable or
annullable, even though there may have been no damage
to the contracting parties:
(1) Those where one of the parties is incapable of giving
consent to a contract;
(2) Those where the consent is vitiated by mistake,
violence, intimidation, undue influence or fraud.
These contracts are binding, unless they are annulled by
a proper action in court. They are susceptible of
ratification.
Modified Problem: What if the situation was, A
asked if the furniture was made of kamagong and
it really was. But what was sent to him was one
that wasn’t made of kamagong?
Answer: A has the option to rescind the contract
according to 1191. In this case, there was fraud in
the performance of the obligation since the Modified Problem: Supposing that what was
furniture maker sent him the furniture that was not agreed upon was a dresser made of kamagong with
made of kamagong. (Note: This is dolo incidente) 3 drawers. What was delivered was a kamagong
dresser with only 2 drawers. Was there a
Article 1191. The power to rescind obligations is
substantial breach? Can he have it rescinded?
implied in reciprocal ones, in case one of the obligors
should not comply with what is incumbent upon him. Answer: No. Art 1191[see previous problem] must
be read in accordance with Art 1234. In order to
The injured party may choose between the fulfillment
rescind, there must have been substantial breach. In
and the rescission of the obligation, with the payment of
this case, there was no substantial breach.
damages in either case. He may also seek rescission, even
after he has chosen fulfillment, if the latter should Article 1234. If the obligation has been substantially
become impossible. performed in good faith, the obligor may recover as
though there had been a strict and complete fulfillment,
The court shall decree the rescission claimed, unless
less damages suffered by the obligee.
there be just cause authorizing the fixing of a period.
Penalty Interest Monetary Interest
This is understood to be without prejudice to the rights
Article 1229. The judge Article 1413. Interest
of third persons who have acquired the thing, in
shall equitably reduce paid in excess of the
accordance with articles 1385 and 1388 and the the penalty when the interest allowed by the
Mortgage Law. principal obligation has usury laws may be
been partly or recovered by the debtor,
Sir Says: Be careful, the above problem talks of irregularly complied with interest thereon
rescinded (note: Tolentino said the term should be with by the debtor. Even from the date of the
“resolution” but sir says rescinded is okay as long if there has been no payment.
as you qualify) under Art 1191 which is different performance, the
from rescissible CONTRACTS under Art 1381. penalty may also be
reduced by the courts if
Article 1381. The following contracts are rescissible: it is iniquitous or
unconscionable.
(1) Those which are entered into by guardians whenever For the delay For the use
the wards whom they represent suffer lesion by more Can be equitably If void because it is
than one-fourth of the value of the things which are the reduced contrary to law, then
object thereof; you pay the legal
interest which is in
(2) Those agreed upon in representation of absentees, if excess of the allowed by
the latter suffer the lesion stated in the preceding law
number; If there is a monetary
interest stipulated by
(3) Those undertaken in fraud of creditors when the the parties, and that is
latter cannot in any other manner collect the claims due the only interest
them; imposed, jurisprudence
dictates that it should
(4) Those which refer to things under litigation if they not exceed 36%. If more
have been entered into by the defendant without the than 36%, it can be
reduced to legal interest.
knowledge and approval of the litigants or of competent
judicial authority;
If in addition to
(5) All other contracts specially declared by law to be monetary interest, there
is also a penalty interest
subject to rescission.
stipulated then you can
 impose up to 36% Modified Problem: Supposing that the creditor
because that is in does not accept the 50,000. Is he in mora
addition. accipiendi?

Answer: No, because the creditor cannot be

*Note: Ako rang gi-arrange into a table ag compelled to receive the partial payment of 50,000.
discussion sa comparison ni Sir kay katag kayo.
And ingon pd siya na ag mga commentaries don’t Modified Problem: Supposing that the creditor
really make a distinction between the two. accepts the 50,000. Where do you apply it?

Problem: A, the debtor, is in possession of the non- Answer: To the interest.

negotiable promissory note. What is the
Problem: A has to pay rent for the months of
presumption? Is the debtor liable?
January, February, and March. But he did not pay
Answer: The debtor is no longer liable because the rentals for said months. The rent is 10,000. When he
presumption is that the creditor has renounced the paid 10,000 a receipt dated April was given to him
debt. This is in accordance with Arts 1271 and 1272. which states, “Payment for one month rent.” Does
this mean that the rent for January, February and
Article 1271. The delivery of a private document
March have been paid?
evidencing a credit, made voluntarily by the creditor to
the debtor, implies the renunciation of the action which Answer: No, because the receipt says that the
the former had against the latter. payment is for one month rental with April only
being the date. It would have been different if the
If in order to nullify this waiver it should be claimed to
receipt states that, “This is payment for the month
be inofficious, the debtor and his heirs may uphold it by
of April”; had this been the case then the payment
proving that the delivery of the document was made in
for the previous months could be deemed to have
virtue of payment of the debt.
been paid.
Article 1272. Whenever the private document in which
the debt appears is found in the possession of the debtor,
it shall be presumed that the creditor delivered it
voluntarily, unless the contrary is proved.

Problem: A owes 100,000 with interest of 10% per

annum. When due, he was issued a receipt for
100,000. What is the presumption?

Answer: The presumption is that the debt has been

paid provided that there was no reservation in the
receipt.

Modified Problem: Supposing A paid only 50,000.

What is the presumption?

Answer: According to Art 1253 the presumption is

that the 50,000 should first cover the interest.

Article 1253. If the debt produces interest, payment of

the principal shall not be deemed to have been made until
the interests have been covered.