(MEMORIZATION) OBLIGATIONS 2 **From COMPENSATIO MORAE to Specific Performance.

What are the Kinds of negligence or culpa?

1. Culpa contractual (contractual negligence) - Negligence which results from the breach of contract; 2. Culpa aquiliana (civil negligence or tort or quasi-delict) Acts or omissions that cause damage to another, there being no contractual relation between the parties (NCC, Art. 2176); and 3. Culpa criminal (criminal negligence) - Those which results in the commission of a crime or a delict.

What are the Remedies in connection with specific performance?

1. Exhaustion of the properties of the debtor (not exempt from attachment under the law); 2. Accion subrogatoria (subrogatory action) - An indirect action brought in the name of the debtor by the creditor to enforce the former's rights except: a. Personal rights of the debtor; b. Rights inherent in the person of the debtor; c. Properties exempt from execution. e.g. family home 3. Accion pauliana (rescissory action) - An action to impugn or assail the acts done or contracts entered into by the debtor in fraud of his creditor. NOTE: Resort to the remedies must be in the order stated above (NCC, Art. 1177).

What are the Effects of fortuitous events?

1. On determinate obligation - The obligation is extinguished. 2. On generic obligation - The obligation is not extinguished (genus nun quam peruit - genus never perishes).

What is the Applicability of substitute performance?

1. Positive personal obligation: a. If not purely personal - Substitute performance; the obligation shall be executed at debtor's cost if he fails to do it (NCC, Art. 1167). b. Purely personal - No substitute performance may be demanded because of the personal qualifications taken into consideration. The only remedy is damages. 2. Real obligation: a. Generic thing - Substitute performance; delivery may be made by a person other than the debtor since the object is merely designated by its class or genus. The creditor may ask that the obligation be complied with at the expense of the debtor (NCC, Art. 1165). b. Specific thing - Specific performance may be demanded, that is, the creditor may compel the debtor to make the delivery

What is FORTUITOUS EVENT / CASO FORTUITO?

An occurrence or happening which could not be foreseen, or even if foreseen, is inevitable (NCC, Art. 1174). (2002, 2008 Bar)

What are the Remedies of the defrauded party?

2. Specific performance (NCC, Art. 1233); or 3. Resolution of the contract (Art. 1191); and 4. Damages, in either case.

What is the Test of negligence?

Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. (Picart v. Smith, G.R. No. L-12219, March 15, 1918). NOTE: When negligence is so gross that it amounts to wanton attitude on the part of the debtor or such negligence shows bad faith, the laws in case of fraud shall apply

What is the general rule and its exceptions in Contributory negligence of the creditor?

GR: It reduces or mitigates the damages which he can recover. XPN: If the negligent act or omission of the creditor is the proximate cause of the event which led to the damage or injury complained of, he cannot recover.

How is Liability for loss due to fortuitous event construed generally and its exceptions?

GR: There is no liability for loss in case of fortuitous event. XPNs: (LaNS-PC-BaG) 1. Law; 2. Nature of the obligation requires the assumption of risk; 3. Stipulation; 4. The debtor is guilty of dolo, malice or bad faith, has Promised the same thing to two or more persons who does not have the same interest (NCC, Art. 1165); 5. The debtor Contributed to the loss (Tan v. Inchausti & Co., G.R. No. 6092, March 8, 1912); 6. The possessor is in Bad faith (NCC, Art. 552); or 7. The obligor is Guilty of fraud, negligence or delay or if he contravened the tenor of the obligation (Juan Nakpil v. United Construction Co., Inc. v. CA, G.R. No. L-47851, April 15, 1988)

What is the Effect of non-compliance of both parties in reciprocal obligations?

If neither party complies with his prestation, default of one compensates for the default of the other.

What is the Effect of good faith or bad faith of the obligor?

If the obligor acted in good faith, he is responsible for the natural and probable consequences of the breach of contract and which the parties have reasonably foreseen at the time of the constitution of the obligation. If the obligor is guilty of fraud, bad faith, malice or wanton attitude, he shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation.

What are the remedies in cases of breach of obligation?

In case of breach of obligation, the following are the remedies available: 1. Specific performance, or substituted performance by a third person in case of an obligation to deliver a generic thing, and in obligations to do, unless it is a purely personal act; 2. Rescission (or resolution in reciprocal obligations); 3. Damages, in any case; or 4. Subsidiary remedies of creditors: a. Accion subrogatoria b. Accion pauliana c. Accion directa

What is Substitute performance?

It is a remedy of the creditor in case of non performance by the debtor where another party performs the obligation or the same is performed at the expense of the debtor.

What is Fraud?

It is an intentional evasion of the faithful performance of the obligation (8 Manresa 72). It is incidental fraud or fraud in the performance of the obligation and not the fraud in the execution of the contract or causal fraud. It is the intentional evasion of the normal fulfillment of the obligation (Pineda, 2000).

Main principle in comparison of acts of God and Man.

NOTE: There is no essential difference between fortuitous event and force majuere; they both refer to causes independent of the will of the obligor (Tolentino, 2002).

What constitutes Delay in reciprocal obligations?

One party incurs in delay from the moment the other party fulfills his obligation, while he himself does not comply or is not ready to comply in a proper manner with what is incumbent upon him. Demand is only necessary in order for a party to incur delay when the respective obligations are to be performed on separate dates.

What are Reciprocal Obligations?

Reciprocal obligations are those which arise from the same cause, wherein each party is a debtor and a creditor of the other, such that performance of one is conditioned upon the simultaneous fulfillment of the other from the moment one of the parties fulfills his obligation, delay by the other party begins (ASJ Corporation v. Evangelista, G.R. No. 158086, February 14, 2008).

What are the Requisites of a FORTUITOUS EVENT / CASO FORTUITO?

Requisites: (CODE) 1. Cause of breach is independent of the will of the debtor; 2. The Event is unforeseeable or unavoidable; 3. Occurrence renders it absolutely impossible for the debtor to fulfill his obligation in a normal manner - impossibility must be absolute not partial, otherwise not force majeure; and 4. Debtor is free from any participation in the aggravation of the injury to the creditor. NOTE: The fortuitous event must not only be the proximate cause but it must also be the only and sole cause. Contributory negligence of the debtor renders him liable despite the fortuitous event (Pineda, 2000). If the negligence was the proximate cause, the obligation is not extinguished. It is converted into a monetary obligation for damages.

What is CONTRAVENTION OF TENOR OF OBLIGATION (VIOLATIO)?

The act of contravening the tenor or terms or conditions of the contract is also known as "violatio," i.e. failure of common carrier to take its passenger to their destination safely (Pineda, 2000). Under NCC, Art. 1170, the phrase "in any manner contravene the tenor" of the obligation includes any illicit act which impairs the strict and faithful fulfillment of the obligation, or every kind of defective performance. Such violation of the terms of contract is excused in proper cases by fortuitous events.

What is CULPA OR NEGLIGENCE?

The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and the place. When negligence shows bad faith, the provisions of Art. 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which expected of a good father of a family shall be required (NCC, Art. 1173).

What is meant when there is Difficulty to foresee?

The mere difficulty to foresee the happening is not impossibility to foresee the same (Republic v. Luzon Stevedoring Corp., G.R. No. L-21749, September 29, 1967)

What is Waiver of action arising from future fraud?

With respect to fraud that has already been committed (past fraud), the law does not prohibit renunciation of the action for damages based on the same since such can be deemed an act of generosity. What is renounced is the effect of fraud, particularly the right to indemnity. However, the law prohibits any waiver of an action for future fraud since the same is contrary to law and public policy. Waiver for future fraud is void (NCC, Art. 1171).