ALMOCERA v.

ONG (townhouse)
When demand is useless
In the case of Almocera, there was a townhouse in Cebu which Ong (creditor) tried to
purchase from Almocera and First Builders (debtors). The contract they entered into
was a contract to sell whereby the developer/seller would transfer ownership to the
buyer in exchange with payment of price in accordance to a certain schedule. Prior to
the perfection of the contract, Almocera mortgaged and foreclosed the land to Land
Bank and it was claimed by Ong that it was fraudulently concealed from him. Had he
known that the townhouse was already mortgaged and foreclosed, he would not have
bought the townhouse in the first place.
Ong is now asking for reimbursement from the developers and for the resolution of
the contract claiming that they were delayed in the performance of their obligation to
deliver the townhouse more than 6 months after the contract to sell. However, the
Almocera and and First Building denied such liability for Ong also failed to exercise
his right to demand the delivery of the townhouse.
Eventually, the townhouse was auctioned off and was sold to X.
So were the developers/sellers ind fault when they failed to deliver?
YES. They were in default
Was there a need to demand?
NO. There was no need to demand. There was no need to make a demand because
according to paragraph 3 of Art 1169 of the Civil Code, there is no need to make a
demand:
3. when demand would be useless, as when the obligor has rendered it
beyond his power to perform.
The obligor or the developer could no longer perform their obligation because the
townhouse in question was no longer in their possession. Hence, demand would be
useless. However, the seller can always repurchase the property upon demand of the
buyer so theoretically the buyer can just make the demand and the sellers could have
repurchased the property from X. Demand would not have been useless in this case.
So how is demand really useless in this case? Is it really useless?
NO. The obligation could have been complied with by the sellers. The sellers could
go to X, repurchase the property, and sell it to buyer. So, it is still possible. Demand is
not really useless. What disabled the sellers from fulfilling their obligation is when the
buyers did not demand the fulfillments of the said obligation. Again, according to
paragraphs 3 of Article 1169 of the Civil Code, there is no need to make a demand:
3.when demand would be useless, as when the obligor has rendered it beyond his
power to perform.
Beyond the debtor’s power to perform. It is still within the power of the sellers
in this case. The sellers could repurchase and sell to the buyer. So in that case,
demand is not useless. Demand is a useful information towards the sellers to decide
whether to repurchase. So it should not be an exception.