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Pure and Conditional Law121
Pure and Conditional Law121
Pure and Conditional Law121
II. DIFFERENT KINDS OF OBLIGATIONS referring to the time of effectivity, we consider it a term or a
period.
a. Pure (1179)
Period defined: it is a future and certain event upon the
ART. 1179. Every obligation whose performance does not arrival of which the obligation subject to it either arises or is
depend upon a future or uncertain event, or upon a past extinguished. It may also be considered as a space of time
event unknown to the parties, is demandable at once. Every which has an influence on obligation as a result of a juridical
obligation which contains a resolutory condition shall also be act and either suspends their demandableness, or produces
demandable, without prejudice to the effects of the their extinguishment.
happening of the event.
If debtor will pay when his means permit him to do so, or There is a condition imposed in its performance.
words of similar import, such as:
Example:
a) “when I can afford” 1. "I will give you my car if you pass the CPA Examination" the
b) “when I am able to” condition here is suspensive. You may not demand the
c) “when I have money” delivery of my car until you pass the CPA Examination
2. "I will let you use my car until you pass the CPA
The obligation is not conditional but with a period. The
Examination" the condition here is resolutory. You may
payment here does not depend upon the will of the debtor –
demand the delivery of the car now but you must return it to
it is only the time when payment is to be made. Since we are
me when you pass the CPA Examination.
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When an obligation is subject (c) There can be no rescission of an obligation that is still
to a suspensive condition, its non-existent, the suspensive condition not having been
birth takes place or its fulfilled.
effectivity commences only if
Note: A distinction must be made between a condition
and when the event that
imposed on the perfection of a contract and that imposed on
constitutes the condition
the performance of an obligation. Failure to comply with the
happens or is fulfilled.
first condition results in the failure of a contract, while failure
to comply with the second (e.g., condition that the seller shall
eject the squatters on the property sold within a certain
If it is the resolutory
If the suspensive condition is period), only gives the other party the option either to refuse
condition that is fulfilled, the
fulfilled, the obligation arises to proceed with the sale or to waive the condition.
obligation is extinguished
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(2) Where S binds himself to sell his land to S if he wins a case (2) Legally impossible conditions. — when they are
which is pending before the Supreme Court. contrary to law, morals, good customs, public order, or public
policy.
(2) When the fulfillment of the condition does not depend
on the will of the obligor, but that on a third person who Effect of impossible conditions.
can in no way be compelled to carry it out, and it is found
by the court that the obligor has done all in his power to Conditional obligation void. — to do an impossible or
comply with his obligation, his part of the contract is illegal thing. Both the obligation and the condition are
deemed complied with and he has a right to demand void. The reason behind the law is that the obligor knows his
performance of the contract by the other party. obligation cannot be fulfilled. He has no intention to
comply with his obligation. In conditional testamentary
Mixed condition. dispositions and in simple and remuneratory donations, the
rule is different.
The obligation is valid if the suspensive condition Example: I’ll give you P10,000 if you will make a dead man
depends partly upon chance and partly upon the will of a alive.
third person.
Conditional obligation valid. — If the condition is
EXAMPLE: Where X, building contractor, obliges himself in negative, that is, not to do an impossible thing or illegal
favor of Y, owner, to repair at X’s expense, any damage to thing, it is disregarded and the obligation is rendered
the building taking place after an earthquake if found by a pure and valid. Both the condition and the obligation are
panel of arbitrators that construction defects contributed in valid. Actually, the condition is always fulfi lled when it is not
any way to the damage. Both conditions must take place in to do an impossible thing so that it is the same as if there
order that X’s obligation will arise. were no condition.
Impossible and Illegal (1183) The negative condition may be not to give an impossible
thing.
ART. 1183. Impossible conditions, those contrary to good
customs or public policy and those prohibited by law shall Example: I will give you P10,000 if you will not kill X.
annul the obligation which depends upon them. If the
obligation is divisible, that part thereof which is not affected Only the affected obligation void. — If the obligation is
by the impossible or unlawful condition shall be valid. The divisible, the part thereof not affected by the impossible
condition not to do an impossible thing shall be considered as condition shall be valid.
not having been agreed upon. EXAMPLE: “I will give you P10,000.00 if you sell my land,
and a car, if you kill Pedro.” The obligation to give
Possible Impossible P10,000.00 is valid but the obligation to give a car is void
One that is capable of because it is dependent upon an impossible condition.
One that is not capable of
fulfillment in its nature and
fulfillment in its nature
by law. Only the condition void. — If the obligation is a pre- existing
Such as "if you can swim obligation, and, therefore, does not depend upon the fulfi
across the Pacific Ocean," or llment of the condition which is impossible, for its existence,
due to operation of law, such only the condition is void.
as "if you kill X." In this case, EXAMPLE: D incurred an obligation in the amount of
the obligation and the P10,000.00 in favor of C. If C later agreed to kill X before D
condition are void. pays him, the condition “to kill X” is void but not the pre-
Note: if the condition is not existing obligation of D “to pay C.”
to do an impossible thing, it
shall be deemed as not If the condition is negative, that is, not to do the impossible,
having been agreed upon. just disregard the condition, but the obligation remains.
Thus, the obligation is Example: I will give you P10,000 if you cannot make a circle
immediately demandable. that is at the same time a square.
Example: D is to give C
P50,000 if C does not swim
across the Pacific Ocean. Positive Condition (1184)
Two kinds of impossible conditions. ART. 1184. The condition that some event happen at a
They are: determinate time shall extinguish the obligation as soon as
(1) Physically impossible conditions. — when they, in the the time expires or if it has become indubitable that the event
nature of things, cannot exist or cannot be done; and will not take place
extinguished because
Here, the the istime indicated
obligation Here, thehas alreadybecomes
obligation elapsed.
extinguished as soon as the effective as soon as the time
time expires or it has become indicated has elapsed or it Effect if period of fulfillment is not fixed
indubitable that the event has become evident that the
will not take place. even will not occur. Article 1185, paragraph 2 states that if no time has been fixed,
the condition shall be deemed fulfilled at such time as may
Example: D is to give P50,000 Example: D is to give C have probably been contemplated, bearing in mind the nature
if C will marry X on or before P50,000 if C will not marry X of the obligation. This rule will apply if the period for
June 30, 2016. The obligation on or before June 30, 2016. fulfillment is not stated.
will be extinguished on July The obligation becomes
Negative Condition (1185)
1, 2016 if C has not yet effective on July 1, 2016 if C
married X as of June 30, gas not yet married X as of ART. 1185. The condition that some event will not happen at
2016. June 30,2016. a determinate time shall render the obligation effective
If X dies on June 1, 2016 If X dies on June 1, 2016 from the moment the time indicated has elapsed, or if it has
before C has married her, before C has married her, become evident that the event cannot occur. If no time has
then the obligation is then the obligation becomes been fixed, the condition shall be deemed fulfilled at such
extinguished on such date effective on such date time as may have probably been contemplated, bearing in
because there is no more because there is no more mind the nature of the obligation.
doubt that the marriage will doubt that the marriage will
not take place. not take place. The above provision speaks of a negative condition that an
event will not happen at a determinate time.
The above article refers to a positive (suspensive) condition
— the happening of an event at a determinate time. The The obligation shall become effective and binding:
obligation is extinguished:
(1) from the moment the time indicated has elapsed without
(1) as soon as the time expires without the event taking place; the event taking place; or
or
(2) from the moment it has become evident that the event
(2) as soon as it has become indubitable that the event will cannot occur, although the time indicated has not yet
not take place although the time specifi ed has not yet elapsed. If no time is fixed, the circumstances shall be
expired. considered to determine the intention of the parties. This rule
may also be applied to a positive condition.
EXAMPLE: X obliges himself to give Y P10,000.00 if Y will
marry W before Y reaches the age of 23. (a) X is liable if Y EXAMPLE: X binds himself to give Y P10,000.00 if Y is not yet
marries W before he reaches the age of 23. (b) X is not liable married to W on December 30. (a) X is not liable to Y if Y
if Y marries W at the age of 23 or after he reaches the age of marries W on December 30 or prior thereto. (b) X is liable to Y
23. In this case, the time speci ed, before reaching the age of if on December 30 Y is not married to W or if Y marries W
23, has expired without the condition (marrying W) being after December 30. In the latter case, the condition (not
fulfilled. The obligation is extinguished as soon as Y becomes
marrying W) is fulfilled upon the expiration of the time
23 years old. (c) If Y dies at the age of 22 without having
married W, the obligation is extinguished because it has indicated, which is December 30. (c) Suppose W dies on
become indubitable that the condition will not take place. In November 20 without having been married to Y. The
this case, the obligation of X is deemed extinguished from the obligation is rendered effective because it is certain that the
death of Y, although the time specified (before reaching the condition not to marry W will be fulfilled. In this case, the
age of 23) has not yet expired. obligation becomes effective from the moment of W’s death
on November 20 although the time indicated (December 30)
Effects of positive condition
has not yet elapsed.
Example: I will give you a specific car if you will marry X this
year, 2011. Effects of Negative condition
a. If you marry X on December 20, my obligation is to give Example: I will give you a specific car if you will not marry X
you the car. this year, 2011
b. If on December 20, X died, without marriage, my
a. If on December 20 you marry X, my obligation is
obligation is extinguished because one party is dead.
extinguished because you violated the condition.
Marriage is impossible to take place.
b. If on December 20, X died and no marriage took
c. If the year has ended, no marriage taking place, both
place, my obligation becomes effective (not
parties are alive, just the same my obligation is
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extinguished), because the expected event cannot about selling his land. He induced the bank not to give Y a
occur anymore. loan. Under the above article, the condition is deemed
c. If the year has ended, and no marriage took place, complied with and S is liable to sell his land. S should not be
both parties are still alive, my obligation becomes allowed to profit by his own fault or bad faith.
effective (not extinguished) because the time
indicated has already elapsed. (3) Suppose the inducement made by S was promoted by
some other reason, is there constructive fulfillment? Yes. The
Summary: When an obligation is demandable if the law does not require that S act with malice or fraud as long as
condition is positive his purpose is to prevent the fulfillment of the condition. But
Article 1186 does not apply if the act of the obligor is in the
a. When it becomes indubitable, clear and evident that exercise of a right.
the event will not take place.
b. When the time expires without the event taking (4) X agreed to paint the house of Y for P50,000 after
place. completion. Before X could complete the job, Y hired Z,
another contractor, who finished the painting. The condition
Summary: When an obligation is demandable if the — painting of the house — is deemed fulfilled under Article
condition is negative 1186 and Y’s obligation to pay X P50,000 is converted to a
pure obligation.
a. When the time has elapsed without the prohibited
event taking place. Constructive fulfillment of resolutory condition.
b. When it becomes clear or evident that the prohibited
event cannot occur, although the time indicated has Article 1186 applies also to an obligation subject to a
not yet elapsed. resolutory condition with respect to the debtor who is bound
to return what he has received upon the fulfillment of the
Constructive Fulfillment (1186) condition.
ART. 1186. The condition shall be deemed fulfilled when the EXAMPLE: X obliges himself to allow Y to occupy the former’s
obligor voluntarily prevents its fulfillment. house in Manila as long as X is assigned by their company in
the province. When Y learned that X would be transferred to
Constructive fulfillment of suspensive condition Manila, he was able to induce the president of the company
to assign another person in place of X. The obligation of X is
There are three (3) requisites for the application of this extinguished because the fulfillment of the resolutory
article: condition was voluntarily prevented by Y. Hence, Y must
vacate the house.
(1) The condition is suspensive;
(2) The obligor actually prevents the fulfillment of the
Effect when the debtor voluntarily prevents
condition; and
(3) He acts voluntarily. The law does not require that the fulfillment of the condition
obligor acts with malice or fraud as long as his purpose is
When the debtor voluntarily prevents the fulfillment of the
to prevent the fulfillment of the condition. He should not
condition, the condition is deemed fulfilled. The obligation
be allowed to profit from his own fault or bad faith to
therefore, is effective. This is called constructive or presumed
the prejudice of the obligee. In a reciprocal obligation
fulfillment.
like a contract of sale, both parties are mutually obligors
and also obligees. Requisites of constructive fulfillment
EXAMPLES: a. The fulfillment is prevented by the debtor
b. The prevention is voluntary on the part of the debtor
(1) X agreed to give Y a 5% commission if the latter could sell
Example: D obliges himself to sell his parcel of land to C if C
the former’s land at a certain price. Y found a buyer who
could pass the 2011 CPA Examination. By means of threat or
definitely decided to buy the property upon the terms
intimidation, D prevented C from taking the examination. In
prescribed by X. To evade the payment of the commission
here, even if C did not pass the examination, D is obliged
agreed upon, X himself sold to the buyer the property at a
to sell his land because he voluntarily prevented the
lower price without the aid of Y.
fulfillment of the condition. The logic of the law is that “one
In this case, it can be said that the due performance by Y of must not profit by his own fault.”
his undertaking, the condition for the payment of the
Retroactivity, as to fruits and interest (1187)
commission, was purposely prevented by X, and is deemed
fulfilled. ART. 1187. The effects of a conditional obligation to give, once
the condition has been fulfilled, shall retroact to the day of
(2) S promised to sell his land to Y if Y would be able to secure
the constitution of the obligation. Nevertheless, when the
a loan from a certain bank. Later on, S changed his mind
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obligation imposes reciprocal prestations upon the parties, 1. Creditor – he may bring the appropriate actions for
the fruits and interests during the pendency of the condition the preservation of his right, such as registering his
shall be deemed to have been mutually compensated. If the claim with the Register of Deeds, if appropriate, to
obligation is unilateral, the debtor shall appropriate the fruits notify all third persons, or asking the debtor to
and interests received, unless from the nature and provide a security if the debtor is about to become
circumstances of the obligation it should be inferred that the insolvent.
intention of the person constituting the same was different. In 2. Debtor – he may recover what he has paid by
obligations to do and not to do, the courts shall determine, in mistake.
each case, the retroactive effect of the condition that has
been complied with. Effects of payment before the condition is
fulfilled
Effect of fulfillment of suspensive condition
a. Payment by mistake – the debtor may recover
General Rule: The effect of the fulfillment of the suspensive under solution indebiti. In addition, he may claim
condition retroacts to the day of the constitution of the the fruits or legal interest if the creditor accepts
obligation. payment in bad faith.
b. Payment of the debtor with knowledge of the
Exceptions: There shall be no retroactive effect with respect condition – if the payment is made with knowledge
to the fruits and interests as follows: of the pendency of the condition, the condition is
deemed waived and the debtor can no longer
1. In reciprocal obligations, the fruits and interests
recover what has been paid.
shall be deemed to have been mutually
compensated, i.e., each party shall keep the fruits
Effect when the debtor voluntarily prevents
and interest received by him prior to the fulfillment
fulfillment of the condition
of the condition.
Example: On May 1, 2011, S agreed to sell his land to B and B The condition is deemed fulfilled if the debtor voluntarily
agreed to pay the price of P50,000 if X finishes his Accounting prevents its fulfillment; hence, the obligation becomes
degree on March 15, 2015. X finished his Accounting degree immediately demandable. Here, there must be an intent on
stipulated. It was as if S was entitled to the price and B to part of the debtor to prevent compliance with the condition
the land beginning on May 1, 2011. However, S shall keep the and actually prevents its fulfillment.
fruits on the land and B the interest on the price during
the pendency of the condition. Example: D promised to give P10,000 to C, a marathon
athlete, if C finishes the race during the athlete meet.
2. In unilateral obligations, the debtor keeps the However, on the eve of the scheduled race, D put a substance
fruits and interests received before the fulfillment on the drink of C who experienced weakening after taking the
of the condition drink, and hence, was not able to join the race. Here, D must
Example: On May 1, 2012, S promised to give B his land if B give P10,000 to C since the condition is deemed fulfilled.
passed the Bar Examination on February 2015. B passed the
Bar Examination as stipulated. It was as if B was entitled to the When resolutory condition is fulfilled (1190)
land beginning on May 1, 2012. However, S will keep the
fruits on the land during the pendency of the condition. ART. 1190. When the conditions have for their purpose the
extinguishment of an obligation to give, the parties upon the
Retroactive effects as to the fruits and interest fulfi llment of said conditions, shall return to each other what
they have received. In case of the loss, deterioration or
a. If unilateral, the debtor as a rule will get the fruits improvement of the thing, the provisions which, with respect
and interest to the debtor, are laid down in the preceding article shall be
b. If reciprocal, the fruits and interest during the applied to the party who is bound to return. As for obligations
pendency of the condition are deemed mutually to do and not to do, the provisions of the second paragraph of
compensated although unequal. Article 1187 shall be observed as regards the effect of the
extinguishment of the obligation.
Payment before the condition is fulfilled (1188)
Effects of fulfillment of resolutory condition.
ART. 1188. The creditor may, before the fulfillment of the
condition, bring the appropriate actions for the preservation a. The obligation is extinguished
of his right. The debtor may recover what during the same
time he has paid by mistake in case of a suspensive condition. b. The parties should return or restore to each other
what they have received including the fruits and
interest
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c. The rules in the preceding Article 1189 will apply to Rules on Loss
whoever has got a duty to return in case of loss,
deterioration or improvement of the thing a. Loss without debtor’s fault – obligation is
extinguished
d. If the obligation is to do or not to do, the courts are
given the power to determinate the retroactivity of b. Loss due to debtor’s fault – obligation is to
the fulfillment of the condition as stated in Article pay damages
1187
Rules on Deterioration
Rules on Loss, Deterioration, and Improvement
(1189) a. Without debtor’s fault – impairment shall be borne
by the creditor, debtor is not liable
.ART. 1189 When the conditions have been imposed with the
intention of suspending the effi cacy of an obligation to give, b. Due to debtor’s fault – creditor may choose between
the following rules shall be observed in case of the
improvement, loss or deterioration of the thing during the 1. Rescission plus damages
pendency of the condition:
2. Fulfillment plus damages
(1) If the thing is lost without the fault of the debtor, the
obligation shall be extinguished; Rules on improvement of the thing:
(2) If the thing is lost through the fault of the debtor, he shall a. By nature or by time – it shall inure to the benefit of
be obliged to pay damages; it is understood that the thing is the creditor
lost when it perishes, or goes out of commerce, or disappears
in such a way that its existence is unknown or it cannot be b. At the expense of the debtor – debtor’s right is
recovered; that granted to a usufructuary.
(3) When the thing deteriorates without the fault of the By contract of usufruct, a person has a right to
debtor, the impairment is to be borne by the creditor; enjoy the use and the fruits of the thing
belonging to another
(4) If it deteriorates through the fault of the debtor, the
creditor may choose between the rescission of the obligation Rules in case of loss, etc. of thing during pendency
and its fulfi llment, with indemnity for damages in either case; of suspensive condition.
(5) If the thing is improved by its nature, or by time, the (1) Loss of thing without debtor’s fault. —
improvement shall inure to the benefi t of the creditor;
EXAMPLE: D obliged himself to give C his car worth
(6) If it is improved at the expense of the debtor, he shall have P100,000.00 if C sells D’s property. The car was lost without
no other right than that granted to the usufructuary. the fault of D. The obligation is extinguished and D is not
liable to C even if C sells the property. A person, as a general
Kinds of loss. rule, is not liable for a fortuitous event.
Loss in civil law may be:
(1) Physical loss. — when a thing perishes as when a house is (2) Loss of thing through debtor’s fault. —
burned and reduced to ashes; or
EXAMPLE: In the same example, if the loss occurred because
(2) Legal loss. — when a thing goes out of commerce (e.g., of the negligence of D, C will be entitled to demand damages,
when it is expropriated) or when a thing heretofore legal i.e., P100,000 plus incidental damages, if any.
becomes illegal (e.g., during the Japanese occupation,
American dollars had become impossible since their use was (3)Deterioration of thing without debtor’s fault. — A thing
forbidden by the belligerent occupant); or deteriorates when its value is reduced or impaired with or
without the fault of the debtor.
(3) Civil loss. — when a thing disappears in such a way that its
existence is unknown (e.g., a particular dog has been missing EXAMPLE: If the car figured in an accident, as a result of which
for sometime); or even if known, it cannot be recovered its windshield was broken and some of its paints were
whether as a matter of fact (e.g., a particular ring is dropped scratched away without the fault of D, thereby reducing its
from a ship at sea) or of law (e.g., a property is lost through value to P80,000.00, C will have to suffer the deterioration of
prescription). impairment in the amount of P20,000.00.
EXAMPLE: In this case, C may choose between: (a) Rescission Essential Features
(or cancellation) of the obligation with damages; in the case D
is liable to pay P100,000.00, value of the car before its a. The right to rescind is implied, so there is no need to
deterioration plus incidental damages, if any; or (b) Fulfi stipulate it in the contract.
llment of the obligation also with damages (see Art. 1191.); in
this case, D is bound to C to give the car and pay P20,000.00 b. This right is not automatic or absolute. The injured
plus incidental damages, if any. party should apply to the court for a decree of
rescission.
(5) Improvement of thing by nature or by time. — A thing is
improved when its value is increased or enhanced by nature c. The court is given discretionary power to fix a period,
or by time or at the expense of the debtor or creditor. (see instead of rescinding the obligation especially if the
Art. 1187.) breach is slight or casual. Neither will rescission take
place if the object is in the possession of a third
EXAMPLE: Suppose the market value of the car increased, person who acted in good faith.
who gets the benefit? The improvement shall inure to the
benefit of C. Inasmuch as C would suffer in case of Effect
deterioration of the car through a fortuitous event, it is but
fair that he should be compensated in case of improvement of If the contract is rescinded, the obligatory relations of the
the car instead. parties are extinguished, as if no relation had ever been
created. The extinction is retroactive. The rescission is
(6) Improvement of thing at expense of debtor. — equivalent to invalidating and unmaking the judicial tie,
leaving things in their own statues before the celebration of
EXAMPLE: During the pendency of the condition, D had the the contract.
car painted and its seat cover changed at his expense. In this
case, D will have the right granted to a usufructuary with Breach of obligations by both parties (1192)
respect to improvements made on the thing held in
usufruct.6 ART. 1192. In case both parties have committed a breach of
the obligation, the liability of the first infractor shall be
Rescission in Reciprocal Obligations (1191) equitably tempered by the courts. If it cannot be determined
which of the parties fi rst violated the contract, the same shall
ART. 1191. The power to rescind obligations is implied in be deemed extinguished, and each shall bear his own
reciprocal ones, in case one of the obligors should not comply damages.
with what is incumbent upon him. The injured party may
choose between the fulfi llment and the rescission of the The liability of the first infractor or violator must be equitably
obligation, with the payment of damages tempered by the court because the other party is likewise
guilty of violating his obligation. Be it noted that their
This remedy in case of breach of obligation should not be corresponding obligations remain to subsist.
confused with rescission in Article 1281, et seq. Under the
former provision, a distinction existed between rescission and If it cannot be determined which of the parties first violated
resolution. In either case, He may also seek rescission, even the contract
after he has chosen fulfillment, if the latter should become
impossible. The court shall decree the rescission claimed, The obligation of the parties is extinguished, and each shall
unless there be just cause authorizing the fixing of a period. bear his own damages. The principle is “to each his own”
This is understood to be without prejudice to the rights of
third persons who have acquired the thing, in accordance Where both parties guilty of breach
with Articles 1385 and 1388 and the Mortgage Law.
The above article contemplates two situations.
Concept of rescission as used in this article
(1) First infractor known. — One party violated his obligation;
The power to rescind means the right to cancel or to resolve subsequently, the other also violated his part of the
the contract in case of non-fulfillment of the obligation on the obligation. In this case, the liability of the first infractor should
part of one of them. be equitably reduced.18 Thus, where a bank failed to release
the entire approved loan (P80,000), but the borrower also
This is not the rescission referred to in Article 1380, which failed to pay the partial loan release (P17,000) he received
involves damage or lesion, or injury to the economic interest after it fell due, both are in default and their respective
of a person. The rescission contemplated by this article is the liability for damages shall be offset equitably, exclusive of the
breach of faith committed by the person who is supposed to interest due on the overdue loan portion (P17,000) since the
comply with the obligation. borrower derived benefit for its use.
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Classification of Conditions
(2) First infractor cannot be determined. — One party
Suspensive. — the
violated his obligation followed by the other, but it cannot
happening of which gives
be determined which of them was the first infractor. The rule
rise to the obligation.
is that the contract shall be deemed extinguished and each
As to effect Resolutory. — the
shall bear his own damages. This means that the contract shall
happening of which
not be enforced. In effect, the court shall not provide remedy
extinguishes the obligation.
to either of the parties, who must suffer the damages
allegedly sustained by them. “The above rules are deemed
Express. — the condition is
just. The fi rst one is fair to both parties because the
clearly stated; and
second infractor also derived, or thought he would derive,
As to form Implied. — the condition is
some advantage by his own act or neglect. The second rule is
merely inferred.
likewise just because it is presumed that both at about the
same time tried to reap some benefi t.” It has been held that
when both parties to a transaction are mutually negligent in Possible. — the condition is
the performance of their obligations, the fault of one cancels capable of fulfi llment, legally
the negligence of the other and their rights and obligations and physically; and
may be determined equitably under the law proscribing unjust As to possibility.
enrichment. Under Article 1192, “the liability of the fi rst Impossible. — the condition
infractor shall be equitably tempered by the courts’’ but it is is not capable of fulfi llment,
for the courts, in the exercise of their sound discretion, to legally or physically.
decide what is equitable under the circumstances.19 In other
words, the mitigation of the damages to be awarded to the Potestative. — the condition
second infractor is subject to the discretion of the court, depends upon the will of one
depending of what is equitable under the circumstances. of the contracting parties;