Breach of Obligation (Articles 1169 to 1178)

Causes of Non-Performance of Obligations

1. Involuntary – those causes which are independent of the will of the
parties, such as:
a. fortuitous event (unforeseen event that occurs by chance or
accident from natural or manmade forcers); and
b. force majeure (unforeseeable circumstances that prevent someone
from fulfilling a contract)
2. Voluntary – those causes which arise from the will of the parties such
as:
a. Mora or delay;
b. Dolo or fraud;
c. Culpa or negligence; and
d. Contravention of the tenor of the obligation.

Mora or Delay

Kinds of delay or mora

1. Mora solvendi (debtor’s default) – is defined as a delay in the
fulfilment of an obligation by reason of a cause imputable to the
debtor or because of dolo (malice) or culpa (negligence).
Requisites:
a. That the obligation be demandable and liquidated;
b. That the debtor delays performance; and
c. The creditor requires the performance judicially or extrajudicially.

Note: Once the creditor makes a demand, judicially or extrajudicially,

the debtor incurs mora or delay. Hence, absent any demand from the
obligee, the obligor does not incur delay.

Note: Mora may occur in obligations to give and obligations to do but

not in obligations not to do, for the debtor fulfils by not doing what is
forbidden him.

Note: The demand may be in any form, provided it can be proved, and
the proof of the demand will be incumbent upon creditor.

Exceptions to requirement of demand:

a. when the obligation expressly so declares;
b. when the law expressly so declares;
c. when from the nature and the circumstances of the obligation it
appears that the designation of the time when the thing to be delivered
or the service to be rendered was a controlling motive for the
establishment of the contract; or
d. when demand would be useless, as when the obligor has rendered it
beyond his power to perform.
Note: Mere expiration of period, not delay – it is not enough that the law or
the obligation fixes a period for the performance of the latter, if it does not
expressly add that “upon expiration thereof, delay shall commence.

Note: Time is of essence:

Effects of mora solvendi:

 the debtor violates the obligation in point of time if there is mora or
delay. (there is no mora or delay unless there is a demand);
 the debtor becomes liable for damages; (6% per annum – interest)
 the debtor remains liable if the thing was lost after he has incurred in
delay even if the loss was without his fault or by reason of fortuitous
event.

2. Mora accipiendi (creditor’s default) – it relates to delay on the part of

the obligee in accepting the performance of the obligation by the
obligor.
Requisites:
a. An offer of performance by the debtor who has the required
capacity
b. The offer must be complied with prestation as it should be
performed; and
c. The creditor refuses the performance without just cause.
3. Compensation morae – default on the part of both parties because
neither has completed their part in their reciprocal obligation.

Delay in Reciprocal Obligations:

Reciprocal Obligations
- are those which arise from the same cause, and which each party is a
debtor and creditor of the other, such that the obligation of one is
dependent to the obligation of the other.
- They are to be performed simultaneously, so that the performance of
one is conditioned upon the simultaneous fulfilment of the other.
- Hence, the mutual inaction of the parties gives rise to compensation
morae. (Article 1169)

DOLO or FRAUD

 (Articles 1170 and 1171 of the NCC)

 Deliberate and intentional evasion of the normal fulfilment of
obligations;
 It is distinguished from negligence by the presence of deliberate
intent, which is lacking in the latter.

Kinds of Fraud:
  Employed during the birth of perfection of the contract; (may be
either dolo causante and dolo incidente)
 Employed during the performance of an already existing obligation
(Articles 1170 and 1171)

Prohibited Waiver:
- Any waiver of an action for future fraud is void.

CULPA or NEGLIGENCE

Kinds of Culpa:
 Culpa Aquiliana (or culpa extra contractual) – the wrongful negligent
act or omission which creates a vinculum juris (a bond of law) and
gives rise to an obligation between two persons not formally bound by
any other obligations. (governed by Article 2176)
 Culpa Contractual – fault or negligence incident in the performance of
an obligation which already existed, and which increases the liability
from such already existing obligation. (governed by Article 1170 to
1174)

Culpa Aquiliana Culpa Contractual

- Wrongful or negligent act or
omission which creates
vinculum juris and gives rise
to an obligation between two
persons not formally bound by
any other obligation.
- Has as its source the
negligence of the tortfeasor.
- The negligence or fault should
be clearly established because
it is the basis of the action
- Fault or negligence incident in
the performance of an
obligation already existed.
- Premise upon the negligence
in the performance of a
contractual obligation.
- The action can be prosecuted
merely by proving the
existence of the contract and
its breach.

Culpa or Negligence
- Omission of the diligence which is required by the nature of the
obligation and corresponds with the circumstances:
a. of the persons;
b. of the time; and
c. of the place.
- It is the failure to observe the protection of the interests of another
person that degree of care, precaution and vigilance (CPV) which the
circumstances justly demand, by reason of which such other person
suffers injury

Test in determining existence of negligence:

“Did the defendant in the performance of the alleged negligent act use
reasonable care and caution which an ordinary person would have used in
the same situation?”

If not, then he is guilty of negligence.

CASO FORTUITO or FORTUITOUS EVENT

 It is an event which could not foreseen, or which, though foreseen, is

inevitable.
 Extraordinary events not foreseeable or avoidable.
 It is therefore not enough that the event should not have been foreseen
or anticipated but it must be one impossible to foresee or to avoid.

Fortuitous Event may either be:

 An act of God; or
 Force Majeure (natural occurrences such as floods or typhoons or an
act of man such as riots, strikes or wars.

Rule: No person shall be responsible for a fortuitous event. Hence, the

obligor, as a rule, is not liable for any loss or deterioration caused by
fortuitous event.

Requisites to exempt the obligor from liability for a breach of obligation by

reason of fortuitous event:
1. The cause of breach of the obligation must be independent of the will
of the debtor;
2. The event must be either unforeseeable or unavoidable;
3. The event must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner; and
4. The debtor must be free from any participation in or aggravation of,
the injury to the creditor.

Note: The burden of proving that the loss was due to a fortuitous event rests
on him who invokes it.

Note: In order for a fortuitous even to exempt one from liability, it is

necessary that one has committed no negligence or misconduct that may
have occasioned the loss.

Note: If the negligence of fault of the obligor coincide with the occurrence
of the fortuitous event, and caused the loss or damage of the aggravation
thereof, the fortuitous event cannot shield the liability for his negligence.

Carnapping
- Per se may not be considered as a fortuitous event.
 - The fact that the thing was unlawfully taken from another’s rightful
possession, does not automatically give rise to a fortuitous event.
- Carnapping does not foreclose the possibility of fault or negligence on
the part of the obligor.

Robbery
- Per se is not a fortuitous event,
- It does not foreclose the possibility of negligence on the party of the
obligor.
- The unforeseen event, the robbery, must take place without any
concurrent fault of the debtor’s part in order to be appreciated as a
fortuitous event under Article 1174 of the NCC

Obligor remains liable for a breach of obligation by reason of a fortuitous

event:
1. When the law expressly so specifies;
2. When it is otherwise declared by the parties; and
3. When the nature of obligation requires the assumption of risks.

Instances where the law expressly provides for liability even in cases of
fortuitous events:
a. The obligor delays or has promised to deliver the same thing to two or
more persons who do not have the same interest;
b. The possessor in bad faith in every case;
c. If the common carrier negligently incurs in delay in transporting the
goods, a natural disaster shall not free such carrier from responsibility;
d. The borrower who uses the thing for a purpose different from the
intended, delays its return, receives the thing under appraisal, lends it
to a third person or saves his property instead of the thing borrowed;
e. The depository who uses the thing without depositor’s permission,
delays its return, or allows others to use it;
f. The negotorium gestor or officious manager who undertakes the risky
transactions, prefers his interest to that of the owner, fails to return the
property after demand by the owner, or assumes management in bad
faith.
g. When the obligation to deliver a determinate thing proceeds from a
criminal offense, unless prior to its loss the person who should receive
it refused acceptance without justification.

PURE, CONDITIONAL and OBLIGATIONS WITH A PERIOD

From the view point of the presence or absence of a condition or term, the
obligations are classified into:
- Pure Obligation – the obligation is not subject to any condition or
term;
- Conditional Obligation – one which is subject to a condition;
 - Obligation with a term or period – those whose effects are
subjected in one way or another to the expiration of said term.

PURE OBLIGATION
- is that which no condition is placed, nor a day fixed for its
compliance.

Effect: If the obligation is pure, it is immediately demandable.

Other obligations which are also demandable at once:

a. Obligations with resolutory conditions; and
b. Obligations with a resolutory term or period.

CONDITIONAL OBLIGATION
- It is an uncertain event which wields an influence on a legal relation.
- It is also defined as every future and uncertain event upon which an
obligation or provision is made to depend.

Kinds of Condition:
a. Suspensive and Resolutory;
 Suspensive – the happening of which gives rise to an
obligation;
 Resolutory – the happening of which extinguishes an obligation
b. Potestative, Casual and Mixed;
 Potestative – the fulfillment depends upon the will of one of the
parties to the juridical relation;
 Casual – the fulfillment depends exclusively upon chance or
other factors (including the will of the third person) and not
upon the will of the parties to the juridical relation.
 Mixed – the fulfillment depends partly upon the will or one of
the parties to the juridical relation and partly upon chance or
other factors (including the will of a third person)
c. Positive and Negative;
 Positive – the condition refers to an act.
 Negative – the condition refers to an omission.
d. Divisible and Indivisible;
 Divisible – if by its nature, by agreement or under the law, it
can be performed in parts;
 Indivisible – if by its nature, by agreement or under the law, it
cannot be performed in parts.
e. Conjunctive and Disjunctive;
 Conjuctive – requires fulfillment of all conditions;
 Disjunctive – requires fulfillment of one condition.
f. Express or Implied;
 Express – the condition is stated;
 Implied – the condition is merely inferred;
 g. Possible or Impossible
 Possible – the fulfillment is possible;
 Impossible – the fulfillment is impossible, either physically or
legally.

POSITIVE AND NEGATIVE

POSITIVE CONDITION – a certain event will happen within a specific

period has the effect of extinguishing the obligation dependent upon such
condition from the moment:
1. Said period lapses without the condition having fulfilled; or
2. When it becomes certain that the event will not take place even before
said period expires.

NEGATIVE CONDIITION – some event will not happen at a determinate

time has the effect of rendering the obligation effective from the moment:
1. The period indicated has elapsed; or
2. If it has become evident that the event cannot occur.

OBLIGATION SUBJECT TO TERM OR PERIOD

Concept of Term or Period – consists in a space of time which having an

influence on obligations as a result of a juridical act, and either suspends
their demandableness or produces their extinguishment.

EFFECTS OF SUSPENSIVE TERM OR PERIOD:

- The obligation may only be demandable upon the arrival of the day
certain fixed for its performance.

EFFECTS OF RESOLUTORY TERM OR PERIOD:

- Obligations with a resolutory term take effect and are demandable at
once but they terminate upon the arrival of the term or period
specified.

DISTINGUISED FROM CONDITION

CONDITION SUBJECT TO TERM OR

PERIOD
In their fulfillment
is an uncertain event is an event which must happen
sooner or later, at a date known
beforehand or at a time which cannot
be determined but must necessary
happen.
As to influence on oblitgation
may cause an obligation to have or Does not go beyond imposing
not to have any effects; or to cause it limitation as to the time on the
to exist or to cease to exist production of the effects and the
efficacy of the obligation.
As to the will of the debtor
if the fulfillment of a condition is left if the designation of the period is left
exclusively upon the will of the to the exclusive will of the debtor,
debtor (and the condition is also the obligation remains valid but it
suspensive in character), the same empowers the ‘court to fix the period
renders the obligation dependent for its performance.
upon it void.

CLASSIFICATIONS OF TERM OR PERIOD:

1. Suspensive term (or ex die)

- is one that must lapse before the performance of the obligation can be
demanded;
- The obligation begins from a day certain, (upon arrival of the period)

2. Resolutory term (or in diem)

- is the period after which the obligation is terminated, that is, the
obligation is valid up to a certain date;
- upon a arrival of the said date, the obligation is terminated.

3. Definite
- refers to a known date or time;

4. Indefinite
- refers to an event which will necessarily happens but the date of its
happening is unknown (death of the person)
5. Legal - period granted by law;
6. Voluntary - period stipulated by the parties;
7. Judicial - period allowed by the Courts
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If the condition is potestative upon the debtor, in other words, if the
fulfillment of that condition is dependent upon the exclusive will of the
debtor, that may affect the validity of the obligations if the condition is at the
same time suspensive.

If the fulfillment of the condition is dependent exclusively upon the will of

the debtor and at the same time that condition is suspensive, the obligation
will become void.

If the condition is potestative upon the debtor but the same time a resolutory,
the obligation is valid.
If the condition is casual whether it is dependent upon chance or dependent
upon the will of the third person, it will not affect the validity of the
obligation. The obligation is valid.

If the condition is mixed, the obligation is valid.

Note: That condition which is potestative upon the debtor and at the same
time that condition is suspensive, that is the only time the obligation will
become void. In all other situations, the validity of the obligation will not be
affected.

Ex. A condition which is mixed, partly upon the will of the debtor and partly
upon chance. I will give you a cellphone if it will rain tomorrow and at the
time it is raining, I will kiss you. That is the condition. That is a condition
which is mixed, partly dependent upon chance and partly dependent upon
the will of the debtor. Umulan kinabukas, natupad na yung partly upon
chance but he did not kiss you. In that situation the debtor can easily prevent
the fulfillment of the condition. Kaya nga naging void yung potestative
condition sole dependent upon the debtor and at the same time the condition
is supensive, it is because the debtor can easily frustrate the fulfillment of
the condition. The obligation itself is nugatory. Parang ginawa ka lang
tanga. Kaya ang sabi ng batas, void iyan.

But that condition which is partly dependent upon the will of the debtor and
partly upon chance which is a mixed condition, that is a valid one.
The condition which is partly upon chance is fulfilled, it happened, eh
hawak ni debtor yung part which is dependent upon him, this is the time you
will apply the principle provided for in Article 1186. (we can apply this
where the condition is mixed) DOCTRINE OF CONSTRUCTIVE
FULFILLMENT OF SUSPENSIVE CONDITIONS

IMPOSSIBLE CONDITIONS
- As to the effect of impossible condition, a condition is considered
impossible if it is either physically or legally impossible to be
fulfilled.

The impossibility referred to by law is either physical or legal. Both

are covered by the term impossible condition.

Ex. I will give you a book, if the sun will rise in the south tomorrow.
So, the condition there is impossible.

In determining the effects of impossible condition (take note, where is

that impossible condition attached) If the impossible condition is
attached to a simple or remuneratory donation under Art. 727 of the
Civil Code will simply disregard the impossible condition and that
will not affect the validity of the donation.
 Likewise, if the impossible condition is attached to a provision in the
will, under our law on wills and successions, the effect of an
impossible condition if it is attached to a provision in the will simply
disregard the provision and that will not affect the validity of the
testamentary provision. The testamentary provision remains to be
valid. You will simply disregard the impossible condition.

But if the impossible condition is attached to an ordinary obligation

which is not a donation and not a testamentary provision, the effect of
that impossible condition is that it will invalidate the obligation. The
obligation will become void pursuant to Art. 1183

ALTERNATIVE OBLIGATION and FACULTATIVE OBLIGATIONS

This time, the classification of the obligation is from the point of view of the
number of prestations involved in a particular obligation.

The concept of alternative and facultative obligations will come into

existence if there will be plurality of prestations involved in one and the
same obligation.

If there are several (2 or more) prestations that are to be fulfilled, that are
involved in one obligation, the obligation is classified either as conjunctive
or distributive Obligations.

Conjunctive obligation
- In a conjunctive obligation there are several prestations (walang
problema) because in a conjunctive obligation, before the obligation
of the debtor is considered to have been extinguished, he is required to
perform all prestations.

Ex. There are three prestations involved, nonetheless the debtor is

required to fulfill all three prestations before his obligation can be
considered extinguished. This will not create any problem.

But if there will be several prestations involved in one obligation, for

example there are five prestations involved but the debtor is required
to perform only one or some but not all obligations, this time
magkakaroon tayo ng mga katanungan, magkakaroon tayo ng mga
problema if the debtor is not required to perform all.

Ano yung mga tanong na iyon?

1. Which of the 5 prestations is her required to perform in order for
his obligation to be extinguished?
2. Who has the right of choice, the debtor or the creditor?

So, the concept of alternative obligation is that there are several prestations
involved in one and the same obligation but the debtor is not required to
perform all of them before his obligation is considered extinguished. He is
required to perform only one or two or some but not all. That is the concept
of an alternative obligation.

In an alternative obligations, there will be several questions that will be

raised. 1. Who has the right to choose, who has the right of choice, who the
right to choose which prestation is to be performed before the obligation of
the debtor is considered extinguished. (G.R. in alternative obligation, the
right of choice belongs to the debtor but that right of choice can be given to
the creditor by way of agreement.)

In an alternative obligations, since the debtor is not required to perform all

but he may be required to perform only one of several prestations and that
will be sufficient for his obligation to be extinguish, what will be the effect
of a loss of one or some or all of the prestations in alternative obligation?

What will be the legal consequences?

- In case of loss of one or some or all of the prestations in alternative
obligation, the answer to that question will depend on two things:
1. Who has the right of choice; and
2. What was the reason for the lost?

RIGHT OF CHOICE BELONG TO THE DEBTOR

- This is alternative obligations. There are five several prestations
available. The right of choice belongs to the debtor. But what if all
will be lost by reason of fortuitous event, what will be the legal
consequence. The debtor’s obligation will be extinguish because the
general rule is that no person should be responsible for a fortuitous
event unless the law or the agreement or the stipulations of the parties
provide otherwise.
- What if all the prestations will loss by reason of the creditor’s fault?
The right of choice belongs to the debtor and all of the prestations will
loss by reason of the creditor’s fault, what will happen? The debtor
cannot anymore choose, cannot exercised his right of choice because
all the prestations were lost by reason of the creditor’s fault. This will
be tantamount to – there is extinguishment of obligation referred to as
lost without the debtor’s fault and if the debtor has not incurred delay,
the result of that is the extinguishment of the obligation.

But if all of the prestations will be lost by reason of the debtor’s fault,
but the right of choice belongs to him, is the obligation extinguished?
OF COURSE NOT. He was the one responsible for the loss of all of
the pretations. So what will be the remedy of the creditor? The
creditor is entitled to recover the value of the prestation which was the
last to disappear.
 The right of choice is still belong to the debtor but only one or some
were lost but not all (may natira pang isa), what will be the
consequence?
- Take note that since the right of choice belongs to the debtor , siya
ang puwedeng mamili, pwede niyang piliin which that remains, so,
the obligation is converted into a simple or performing that situation
which subsists.

What if not all were lost (may dalawang natira) what will be the
effect?
- The debtor can still choose among the remaining.

RIGHT OF CHOICE BELONG TO THE CREDITOR

- The creditor was responsible for the loss of the prestations – This will
result to the extinguishment of the obligation if it was the creditor who
was responsible for the loss of all.
- If all of the prestations will lost by reason of fortuitous event, same
effect, the obligation of the debtor is extinguished.
- But if all of the prestations will be lost by reason of the debtor’s fault,
what will be the consequence? The creditor can recover the price of
value of any of the prestations which was lost by reason of the
debtor’s fault.
- Let us assume this time that not all but only one or some were lost (isa
na lang ang natira) the others were lost by reason of the creditor’s
fault, he will have to choose the remaining. So the obligation will
now be converted into simple obligation of performing that which is
still subsisting.
- Isa na lang ang natira by reason of the debtor’s fault, this time and
nakawala ng iba ay si debtor, is the creditor limited to that which is
subsiting? NO, he could have chosen the others. The creditor may
choose either any of the prestations which was lost plus he may
recover damages from the debtor. But of course, the creditor may
choose the fulfillment of that prestation which is still subsisting. But
kung ito ang pipiliin niya, he cannot recover damages from the debtor.

Let me go back to the situation where the RIGHT OF CHOICE BELONGS

TO THE DEBTOR.
-if the right of choice belongs to the debtor and there are five available
prestations:
1. the others were lost by reason of the creditor’s fault (isa na lang ang
natira) is the debtor limited to this if the others were lost by reason of the
creditor’s fault o kaya dalawa ang natira the others were lost by reason of the
creditor’s fault, is the debtor limited to choose from among the remaining?
The answer is NO, pursuant to our law, if the right of choice of the debtor
can no longer be exercised by him for reasons attributable to the creditor
because the creditor was responsible for the loss of the other prestations, the
law gives the debtor either a RIGHT TO RECEIVE THE CONTRACT
PLUS DAMAGES or TO CHOOSE FROM THE REMAINING.
Of course, in ALTERNATIVE OBLIGATION the creditor or the debtor
cannot choose partly from one of the prestations and partly from another.
Hindi puwede.

In an alternative obligation, when does the choice become effective? Take

note that importante yung choice because once the choice has been made,
the obligation is limited to that of performing that prestation which has been
chosen. So the obligation will sees to be alternative. It will become a
simple one of performing that prestation which was chosen.

But the question is “when will the choice become effective”?

- The choice will become effective from the moment that it has been
duly communicated to the other party. So if the right of choice
belongs to the debtor, the choice by the debtor will only become
effective binding upon the creditor form the moment that the creditor
has gained knowledge of that choice and vice versa.

FACULTATIVE OBLIGATION
- In a FACULTATIVE OBLIGATION is a situation where there is only
one prestation which is due but in a FACULTATIVE OBLIGATION
the debtor has the right to perform a substitute prestation in lieu of the
original one.

Ano ang pinagkaiba ng FACULTATIVE FROM ORDINARY

OBLIGATION?
- Magiging Facultaive lang ang obligation if the parties agreed that the
debtor can offer a substitute prestation otherwise it is a Simple
Ordinary Obligation of performing that prestation which is due.

WHO HAS THE RIGHT OF CHOICE IN A FACULTATIVE

OBLIGATION?
- The debtor always.
- It is always the debtor who has the right to choose kung anong
ipeperform niya whether the original or the substitute.
- The right of choice cannot be given to the creditor because that will
not anymore be a facultative obligation that will destroy the character
of the obligation being a facultative one.

WHEN WILL THE CHOICE OF THE DEBTOR BECOME EFFECTIVE

AND WHAT WILL BE THE EFFECT OF THE LOST OF EITHER THE
ORIGINAL PRESTATION WHICH IS DUE OR THE SUBSTITUTE
PRESTATION?
- In a Facultative Obligation, the choice will become effective form the
moment that the creditor has gained knowledge of the choice that was
made by the debtor.
 - If the debtor is intending to perform the original prestation, is the
debtor required to notify the creditor that he will be performing the
original prestation?
The answer is NO. Hindi na kailangan. Why? Because this is due.
So, kailangan lang ang notice in facultative obligation if the debtor is
intending to perform a substitute prestation in lieu of the original

WHAT WILL BE THE EFFECT OF THE LOST of the SUBSTITUTE

PRESTATION?
- The lost of a substitute prestation for whatever reason will nor have
any bearing. It will not produce any effect. WHY? Because that is not
what is due. What is due is the original one.
- And mahalagang malaman natin is the REASON FOR THE LOST OF
THE ORIGINAL PRESTATION
- But is the substitute prestation is no longer a substitute prestation
because it is now what is due (Bakit? Because the debtor already
communicated to the creditor that he will be performing the substitute
prestation and the creditor was made aware of it, this is no longer a
substitute prestation. It will become what is due and the lost of that
prestation will now become material.

B-R-E-A-K 15 Minute-Break

JOINT and SOLIDARY OBLIGATION

- The concept of Joint and Solidary Obligation will only come into play
in case of plurality of subjects. (Automatic iyon kapag nakita ninyong
there are two (2) or more debtors or creditors or two (2) or more
debtors and creditors, automatic the concept of Joint and Solidary
Obligation will come into play.
- So, the basis of the classification is the number of subjects.
- So from the point of view of the number of subjects in case of
plurality of the subjects whether on the side of the debtor or on the
side of the creditor or both, the obligation is either JOINT or
SOLIDARY.
- When we talk of Joint and Solidary, we are referring to one and the
same obligation but there are several subjects.

JOINT OBLIGATION
- In a Joint Obligation, the credits and the debts are to be apportioned
proportionately.
- Each of the debtors or each of the creditors is liable only for a portion
of the indebtedness on the side of the joint creditors. Each of the
creditors is only entitled to a portion of the credit. That is the concept
of joint obligation.

SOLIDARY OBLIGATION
 - In solidary obligation, each one of the debtors is obliged, can be made
to pay the entire obligation while each one of the solidary creditors is
entitled to collect the entire credit.

IN CASE OF PLURALITY OF SUBJECTS, WHAT IS THE NATURE OF

THE OBLIGATION , IS IT JOINT OR SOLIDARY?
- There is a presumption in law in favor of the existence of a JOINT
OBLIGATION. So kapag nakita ninyong maraming subjects, the
Law presumes that the obligation is joint rather than solidary.

SOLIDARITY CAN ONLY EXIST IN THREE (3) SITUATIONS:

1. When the law so provides for solidarity;
2. When the stipulation or agreements of the parties provides for
solidarity;
3. In the absence of law or agreement of the parties, when the nature of
obligation requires solidarity.

Those are the only situations where solidarity will exist. Otherwise, the law
presumes that the obligation is JOINT. Again in a JOINT OBLIGATION,
each one of the debtor is liable only for a portion of the entire indebtedness
and each one of the creditors is entitled to collect only a portion of the credit.

The important principle that you must not forget in a JOINT Obligation is
that in a JOINT OBLIGATION, the share of each of the debtors in the
indebtedness or the shares of the creditors in the credit is distinct and
separate from the others. There will be legal consequences flowing of out
that principle.

Ex. If only one of the joint debtors was the recipient of a demand but the
other joint debtor did not receive any demand coming from the creditor, only
the recipient of the demand will be in default or in delay. The other will not
be in default or in delay because again the share of the debtor who was the
recipient of the demand is distinct and separate from the shares of the others.

Likewise in case of insolvency of one of the joint debtors, that will not affect
the liability of the other joint debtors because the share of the insolvent
debtor is distinct and separate from the shares of the others joint creditors.

On the matter of prescription, if one of the joint debts had already

prescribed, that will not have any bearing upon the shares of the other
debtors whose debts have not yet prescribed because again the share of each
one of them is distinct and separate from the others.

In a JOINT OBLIGATION how do we distribute, how do we apportion the

indebtedness of the credit?
- The law presumes that the shares each of the debtors or each of the
creditors is equal unless there is proof to the contrary.
CONCEPT OF SOLIDARY OBLIGATION

- Again, solidarity can only exist:

a. if the law so provides;
b. if the agreement so provides; or
c. when the nature of obligation requires solidarity.

- In SOLIDARY OBLIGATION, if the debtors are solidary each one of

them is liable to pay the entire indebtedness; on the part of the
solidary creditors, each of the solidary creditors has the right or
demand the entire credit.

There are situations provided in our Civil Code where the obligation is
characterized/classified by law as SOLIDARY. Agreement of the parties
is one of the reasons for SOLIDARITY, stipulations of the parties.

WORDS THAT WILL INDICATE THE EXISTENCE OF

SOLIDARITY:
1. Joint and Several;
2. Jointly and Severally;
3. In solidum;
4. Individually and Collectively;

(If these words are used in the agreement, these words are indicative of the
existence of SOLIDARITY)

What if the Promissory Note will read as:

“I, promise to pay the sum of P900,000 to the creditor X on such and such a
day and followed by several signatures of the several makers of the
promissory note”, signed by A, B, and C. What will be the nature of B and
C? Sabi ng Negotiable Instrument Law, if the pronoun I is used in a
promissory note followed by several signatures of several co-makers, the
obligation of several co-makers will not become SOLIDARY instead of
being JOINT.

If the pronoun to be used will be “WE”, promise to pay the some of

P900,000 signed by A, B and C. What will be the nature of the obligation?
- The law presumes that the obligation is simply joint.

PASSIVE SOLIDARITY - SOLIDARITY may exist only on the side of

the debtors while the creditors are SOLIDARY.

ACTIVE SOLIDARITY - Solidarity exist only on the said of the

creditors and the debtors are not solidary.

MIXED SOLIDARITY - If the Solidarity Exists on both, the sides of the

debtor and the creditor.
 PASSIVE SOLIDARITY
- is that which exist only among the debtors.
- only the debtors are insolidum.
- the solidarity exists only among the debtors while the creditors are
merely joint creditors.

DISTUINGUISH CHARACTERISTICS OF PASSIVE SOLIDARITY

May any of the solidary debtors be considered as a representative of the

others?

Is there a mutual agency that exists among the debtors in passive solidarity?

The answer is NONE. (Do not forget that) There is no case of mutual
agency among the solidary debtors. That is applicable only in case of
ACTIVE SOLIDARITY. Walang ganyan sa PASSIVE.

Among the SOLIDARY DEBTORS there is no mutual agency. Each one of

them does not represent the entire. Each one of them is not to be considered
as an agent representative of the others.

What exist in PASSIVE SOLIDARITY is simply a case of MUTUAL

GUARANTEE that each one of them guarantees the payment of the shares
of the others.

The distinguishing characteristic of PASSIVE SOLIDARITY is mutual

guarantee and not mutual agency.

So in PASSIVE SOLIDARITY, each one of the solidary debtors guarantees

the payment of the shares of the others. Such that each one of them can be
made to pay the entire.

Again what exists among them is simply a case of MUTUAL

GUARANTEE.

So if the debtors are Solidary Debtors, each one of them, the creditor can
choose from any one of them, any one of them can be made to pay the entire
obligation.

In case of Passive Solidarity there are 3 available defenses available on the

part of the Solidary Debtors:

1. that defense which is based on the nature of the obligation itself;

2. that defense which is personal to a solidary debtor; and
3. that defense which is personal to the others.
that defense which is based on the nature of the obligation itself;

example:
a. if the defense is that the obligation itself is void;
b. if the defense is the obligation is unenforceable;
that is a defense which is based on the nature of obligation
itself.

What is the effect of that kind of defense?

- That is a complete defense that is available for the entire indebtedness
and available to each of the solidary debtors. Each one of them can
avail of that defense as a complete defense for the entire obligation.

that defense which is personal to a solidary debtor.

- pwede niyang sabihin “I am not liable to pay the entire indebtedness”
Bakit? I was mentally insane when the debt was contracted.

What is the effect of that defense?

- That is a complete defense but only on the part of the solidary debtor
who put up that defense. So that is a kind of defense which is
personal to the solidary debtor invoking it.

But there is another kind of defense which is personal to a debtor and yet the
effect of that will be limited only to his share. Ano iyon?
When the share of the solidary debtor is subject to a condition or a term and
that condition has not yet been fulfilled or the term has not yet arrived.

What will be the effect of that deffense?

- That defense is not complete. That is only a partial defense that will
be available only for his portion of the indebtedness.

that defense which is personal to the others.

- Kapag sisingilin ka, sasabihing depensa, hindi ako magbabayad ng
share ni “A”. Bakit? Siraulo si “A”. “A” was mentally insane when
the debt was congtracted.
- I will not pay the share of “A”. Bakit? The share of “A” is subject to
a condition which is not yet fulfilled.
- I will not pay the share of “A” because the share of “A” is subject to a
suspensive term which has not yet arrived.
So that is a kind of defense that is also available among the Solidary
Debtors.
What is the effect of that defense?
- That defense is only partial.
- That is only applicable only to the share of the debtor who can
personally invoked that kind of defense.

ACTIVE SOLIDARITY
- Solidarity which exits among the creditors.
What is the distinguishing characteristic of Active Solidarity?
- In active Solidarity, the distinguishing characteristic is the existence
of MUTUAL AGENCY or MUTUAL REPRESENTATION existing
among the solidary creditors.
- We can accurately say that in Active Solidarity each one of the
creditors can represent all of them.
- Each one of them can be considered as an agent for the others.

In PASSIVE SOLIDARITY walang mutual agency, walang mutual

representation. What exists is simply a case of MUTUAL GUARANTEE.
That each one of the guarantees the payment of the entire.

Whereas in ACTIVE SOLIDARITY what actually exists is a case of

MUTUAL AGENCY or MUTUAL REPRESENTATION.

But take note: The Agency is supposed to be only for the benefit of the
solidarity, only for the benefit of all but not to the prejudice of the Solidarity.
So, each one of them can act, can be a representative, can be an agent for the
others so long as it will benefit the others but not, that mutual agency does
not exist if the act will be prejudicial to the others. That is provided for in
1212.

But there is another provision in 1215 that Innovation compensation

condonation effected by one of the solidary creditors will extinguish the
indebtedness. Isn’t it that the most prejudicial act that a solidary creditor
may do is to extinguish the debtors indebtedness. That is the most
prejudicial act that a solidary creditor may do but nonetheless sabi ng 1215,
the debtors obligations is extinguish.

Hindi ba inconsistent ang 1215 with the provision of 1212?

- There is no inconsistency sa dalawang provisions na iyan because
those two provisions are directed to two 2 different kind of
relationships:
- 1212 – that is directed, that is addressed that will only govern the
relationship existing among the creditors themselves. Among them,
they may only execute acts which are beneficial but not those which
are prejudicial.
- 1215 – it is a provisions that governs a different kinds of relationship.
- It seeks to govern the relationship existing among the creditors viz a
viz their debtors.
- If one of the solidary creditors will condone the entire indebtedness of
the debtors. That will be a valid act in so far as the debtors are
concerned as provided for in 1215. So that will extinguish the debtors
indebtedness.

But in so as the creditors are concerned, if we will look at it from the point
of view only of the relationship existing among the creditors, that act is not
valid among them. Each one of the creditors can go after the erring creditor
for their respective shares.

As I have said earlier, in PASSIVE SOLIDARITY, each one of the debtors

can be made to pay the entire. So puwedeng mamily si creditor kung sino
ang hahabulin niya. On the side of solidary creditors, each one of them can
demand, has the right to demand the payment of the entire credit. That is the
GENERAL RULE.

Except kung papasok yung principle provided for in 1214 and what is that?
- If there has been a demand made by one of the solidary creditors
addressed to one of the solidary debtors.2.55.37