Rules in Case of Loss Before Creditor Has Made Choice

a. When a thing is lost through a fortuitous event

Ex.: S obliged himself to deliver to B item 1, or item 2, or item 3, or item 4. If
item 1 is lost through a fortuitous event, B can choose from among the
remainder or that which remains if three of the items are lost.
b. When a thing is lost through debtor’s fault
Ex.: If the loss of item 1 occurs thru the fault of S, B may claim item 2 or item
3 or item 4 with a right to damages or the price of item 1 also with a right
to damages.
c. When all the things are lost through debtor’s fault
Ex.: If all the items are lost through the fault of S, then B can demand the
payment of the price of any one of them with a right to indemnify for
damages.
d. When all the things are lost through a fortuitous event
Ex.: The obligation of S shall be extinguished if all the items which are
alternatively the object of the obligation are lost through a fortuitous event.
Facultative obligation – one where only one prestation has been
agreed upon but the obligor may render
another in substitution.
Ex.: I will give you my piano but I may give you my TV set as a
substitute.
Effect of loss
a. Before substitution – If the principal thing is lost through a
fortuitous event, the obligation is extinguished; otherwise, the debtor
is liable for damages.
The loss of the thing intended as a substitute with or without the fault of the
debtor does not render him liable.
The reason is that the thing intended as a substitute is not due.
Ex.: S will give B item 1 or if S wants, item 2. If:
•   Item 1 is lost through a fortuitous event – the obligation of S is
extinguished.
•  Item 1 is lost through the fault of S – S is liable for damages.
• Item 2 is lost with or w/o the fault of S – S is still liable to deliver item
1
• b. After substitution
• – If the principal thing is lost, the debtor is not liable whatever may
be the cause of the loss, because it is no longer due.
• If the substitute is lost, the liability of the debtor depends upon whether
or not the loss is due to his fault.
 Ex.: based on the preceding example, if:
• Item 1 is lost with or without the fault of S – S is not liable for its
loss since his obligation is to deliver item 2.
• Item 2 is lost through a fortuitous event – the obligation of S is
extinguished.
• Item 2 is lost through the fault of S – S is liable for damages.
• Alternative and facultative obligations distinguished
• a. Number of prestations
• – In the first, several prestations are due but
compliance with one is sufficient, while in the
second, only one prestation is due although the
debtor is allowed to substitute it.
•  b. Right of choice – In the first, the right of choice may be given to the
creditor or third person, while in the second, the right to make the
substitution is given only to the debtor.
• c. Loss through a fortuitous event – In the first, the loss of one or more of
the alternatives through a fortuitous event does not extinguish the
obligation, while in the second, the loss of the thing due
extinguishes the obligation.
• d. Loss through fault of debtor – In the first, the loss of one of the
alternatives through the fault of the debtor does not render him liable,
while in the second, the loss of the thing due through his fault makes him
liable. In the first, where the choice belongs to the creditor, the loss of one
alternative through the fault of the debtor gives rise to liability, while in the
second, the loss of the substitute before the substitution through the fault
of the debtor does not render him liable.