OBLIGATIONS AND CONTRACTS

ART. 1165

ART. 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. (1096)

A determinate or specific thing is something which is susceptible of particular

designation or specification. (ex.) Mercedez Benz Car Model 2000, Chasis No.
12345678910 with Plate No. BBB 2222.

An indeterminate or generic thing is something which is not particularized or

specified but has reference only to class or genus. (ex) a money, a car etc.

Paragraph 1 does not mean that the creditor can use force or violence upon the
debtor. The creditor must bring the matter to the court and the court and will be the
one to order the delivery. When a debtor does not fulfill his obligation to deliver a
determinate thing the creditor may avail himself of the following actions:

(1.) Complaint for specific performance;

(2.) Complaint fore recission of the obligation;

(3.) Compalint for damages.

An obligation to deliver a determinate thing as a general rule is extinguished if the

thing is lost due to fortuitous events. Whereas an obligation to deliver an
indeterminate or generic thing is not extinguished by fortuitous events.

Genus Nunguam Perit (Genus Never Perishes)

A fortuitous event is an extra ordinary event which cannot be foreseen or which
though foreseen is inevitable. As a general rule no person shall be responsible for
those events which could not be foreseen or which though foreseen were inevitable
except:

1.) In cases expressly specified by law;

2.) When it is stipulated by the parties;

3.) When the nature of the obligation requires assumption of risk.

Article 1165 paragraph 3 is an example of an exception expressly provided by law.

Thus id the debtor is guilty of delay in the performance of his obligation or has
promised to deliver the same thing to two or more persons who do not have
common interest he shall be liable for the loss of the thing by reason of fortuitous
event until he has effected the delivery thereof. Delay in paragraph 3 speaks of
extra ordinary or legal delay and not ordinary delay. Extra ordinary delay is a delay
tantamount to non-fulfillment of obligation and arises after an extrajudicial or
judicial demand had been made upon the debtor.