Assignment No. 2 PDF

Assignment No. 2 1. Distinguish a specific/determinate thing from a generic/indeterminate thing. ❖ A specific or determinate thing is particularly designated or physically segregated from others of the same class. ❖ A generic or indeterminate thing refers to a class or genus and is not...

Assignment No. 2 1. Distinguish a specific/determinate thing from a generic/indeterminate thing. ❖ A specific or determinate thing is particularly designated or physically segregated from others of the same class. ❖ A generic or indeterminate thing refers to a class or genus and is not identified individually. 2. Can a generic/indeterminate thing perish or be destroyed? ❖ No, a generic thing does not perish (genus nunquam perit). The debtor remains liable to deliver a thing of the same kind. 3. What are the duties of a debtor in an obligation to deliver a specific thing? ❖ To preserve or take care of the thing due; ❖ To deliver the fruits of the thing; ❖ To deliver its accessions and accessories; ❖ To deliver the thing itself; ❖ To answer for damages in case of non-fulfillment or breach. 4. What are accessories and accessions? ❖ Accessions: Fruits, additions, or improvements on a principal thing, like rents or dividends. ❖ Accessories: Things included with the principal for its embellishment or better use, like a key for a house. 5. Define "proper diligence of a good father to a family". ❖ It refers to ordinary care exercised by a reasonably prudent person over their property. 6. What are the duties of a debtor in an obligation to deliver a generic thing? ❖ To deliver a thing which is of the quality intended by the parties taking into consideration the purpose of the obligation and other circumstances. ❖ To be liable for damages in case of fraud, negligence, or delay, in the performance of his obligation, or contravention of the tenor thereof. 7. Enumerate the kinds of fruits under the law. Explain each.  ❖ Natural fruits: Spontaneous products of the soil or animals. ❖ Industrial fruits: Products from cultivation or labor, like crops. ❖ Civil fruits: Income derived from a juridical relation, like rents. 8. When does the obligation to deliver fruits arise? ❖ Generally, the obligation to deliver the thing due and, consequently, the fruits thereof, if any, arises from the time of the perfection of the contract. Perfection in this case refers to the birth of the contract or to the meeting of the minds between the parties. ❖ If the obligation is subject to a suspensive condition or period, it arises upon fulfillment of the condition or arrival of the period. However, the parties may make a stipulation to the contrary as regards the right of the creditor to the fruits of the thing. ❖ In a contract of sale, the obligation arises from the perfection of the contract even if the obligation is subject to a suspensive condition or a suspensive period where the price has been paid. ❖ In obligations to give arising from law, quasi-contracts, delicts, and quasi-delicts, the time of performance is determined by the specific provisions of law applicable. 9. Define personal right and real right. Distinguish personal and real right. ❖ Personal right - is the right or power of a person (creditor) to demand from another (debtor), as a definite passive subject, the fulfillment of the latter’s obligation to give, to do, or not to do. ❖ Real right: is the right or interest of a person over a specific thing (like ownership, possession, mortgage, lease record) without a definite passive subject against whom the right may be personally enforced. While in personal right there is a definite active subject and a definite passive subject, in real right, there is only a definite active subject without any definite passive subject. A personal right is, therefore, binding or enforceable only against a particular person while a real right is directed against the whole world 10. What are the remedies of a creditor in a real obligation? ❖ In a specific real obligation (obligation to deliver a determinate thing), the creditor may exercise the following remedies or rights in case the debtor fails to comply with his obligation: (a) demand specific performance or fulfillment (if it is still possible) of the obligation with a right to indemnity for damages;  (b) demand rescission or cancellation (in certain cases) of the obligation also with a right to recover damages; or (c) demand the payment of damages only where it is the only feasible remedy. ❖ A generic real obligation (obligation to deliver a generic thing), on the other hand, can be performed by a third person since the object is expressed only according to its family or genus. It is thus not necessary for the creditor to compel the debtor to make the delivery although he may ask for performance of the obligation. In any case, the creditor has a right to recover damages under Article 1170 in case of breach of the obligation. 11. What are the remedies of a creditor in a positive personal obligation? ❖ If the debtor fails to comply with his obligation to do, the creditor has the right: (a) to have the obligation performed by himself, or by another unless personal considerations are involved, at the debtor’s expense; and (b) to recover damages. ❖ In case the obligation is done in contravention of the terms of the same or is poorly done, it may be ordered (by the court) that it be undone if it is still possible to undo what was done. 12. What are the remedies of a credit in a negative personal obligation? ❖ In an obligation not to do, the duty of the obligor is to abstain from an act. Here, there is no specific performance. The very obligation is fulfilled in not doing what is forbidden. Hence, in this kind of obligation the debtor cannot be guilty of delay. As a rule, the remedy of the obligee is the undoing of the forbidden thing plus damages. However, if it is not possible to undo what was done, either physically or legally, or because of the rights acquired by third persons who acted in good faith, or for some other reason, his remedy is an action for damages caused by the debtor’s violation of his obligation. 13. What is the meaning of delay? What are the kinds of delay? ❖ Delay: Failure to perform on time. Ordinary delay is merely the failure to perform an obligation on time. Legal delay or default or mora is the failure to perform an obligation on time which failure, constitutes a breach of the obligation. ❖ Three kinds of delay are: Mora solvendi or the delay on the part of the debtor to fulfill his obligation (to give or to do) by reason of a cause imputable to him;  Mora accipiendi or the delay on the part of the creditor without justifiable reason to accept the performance of the obligation; Compensatio morae or the delay of the obligors in reciprocal obligations (like in sale), i.e., the delay of the obligor cancels the delay of the obligee, and vice versa. 14. What are the requisites for delay? ❖ failure of the debtor to perform his (positive) obligation on the date agreed upon; ❖ demand (not mere reminder or notice) made by the creditor upon the debtor to fulfill, perform, or comply with his obligation which demand, may be either judicial (when a complaint is filed in court) or extra-judicial (when made outside of court, orally or in writing); ❖ failure of the debtor to comply with such demand. 15. What are the effects of delay? ❖ Mora solvendi. — The following are the effects: (a) the debtor is considered in breach of the obligation, (b) they are liable for interest (in monetary obligations) or damages (in other obligations) from the time of demand or filing of a complaint, and (c) they are responsible even for fortuitous events when the obligation involves delivering a specific thing, unless they prove the loss would have occurred regardless of the delay. The court may reduce damages in such cases. ❖ Mora accipiendi. — The effects are as follows: (a) The creditor is guilty of breach of obligation; (b) He is liable for damages suffered, if any, by the debtor; (c) He bears the risk of loss of the thing due; (d) Where the obligation is to pay money, the debtor is not liable for interest from the time of the creditor’s delay; and (e) The debtor may release himself from the obligation by the consignation of the thing or sum due. ❖ Compensatio morae. — The delay of the obligor cancels out the effects of the delay of the obligee and vice versa. The net result is that there is no actionable default on the part of both parties, such that as if neither one is guilty of delay. 16. When does delay begin? When is demand not necessary for delay to begin?  ❖ The general rule is that delay begins only from the moment the creditor demands, judicially or extrajudicially, the fulfillment of the obligation. The demand for performance marks the time when the obligor incurs mora or delay and is deemed to have violated his obligation. Without such demand, the effect of default will not arise unless any of the exceptions mentioned below is clearly proved. 1) When the obligation so provides. 2) When the law so provides. 3) When time is of the essence. 4) When demand would be useless. 5) When there is performance by a party in reciprocal obligations. 17. Define the following: a. Fraud - Fraud (deceit or dolo) is the deliberate or intentional evasion of the normal fulfillment of an obligation. It involves some kind of malice or dishonesty and it cannot cover cases of mistake and errors of judgment made in good faith. It is synonymous to bad faith in that it involves a design to mislead or deceive another. b. Incidental fraud - refers to incidental fraud (dolo incidente) committed in the performance of an obligation already existing because of contract. c. Causal fraud - It is to be differentiated from causal fraud (dolo causante) or fraud employed in the execution of a contract under Article 1338, which vitiates consent and makes the contract voidable and to incidental fraud under Article 1344 also employed for the purpose of securing the consent of the other party to enter into the contract but such fraud was not the principal inducement to the making of the contract. d. Negligence - Negligence (fault or culpa) is any voluntary act or omission, there being no malice, which prevents the normal fulfillment of an obligation. e. Contravention of the terms of the contract - Contravention of the terms of the obligation is the violation of the terms and conditions stipulated in the obligation. The contravention must not be due to a fortuitous event or force majeure. The unilateral act of terminating a contract without legal justification by a party makes him liable for damages suffered by the other pursuant to Article 1170. 18. Distinguish fraud from negligence. 1) In fraud, there is deliberate intention to cause damage or injury, while in negligence, there is no such intention; 2) Waiver of the liability for future fraud is void, while such waiver may, in a certain sense, be allowed in negligence;  3) Fraud must be clearly proved, mere preponderance of evidence not being sufficient, while negligence is presumed from the breach of a contractual obligation; and 4) Lastly, liability for fraud cannot be mitigated by the courts, while liability for negligence may be reduced according to the circumstances. 19. Distinguish waiver for past fraud from waiver for future fraud. ❖ Waiver of action for future fraud void. According to the time of commission, fraud may be past or future. A waiver of an action for future fraud is void (no effect, as if there is no waiver) as being against the law and public policy. A contrary rule would encourage the perpetration of fraud because the obligor knows that even if he should commit fraud he would not be liable for it thus making the obligation illusory. ❖ Waiver of action for past fraud valid. What the law prohibits is waiver anterior to the fraud and to the knowledge thereof by the aggrieved party. A past fraud can be the subject of a valid waiver because the waiver can be considered as an act of generosity and magnanimity on the part of the party who is the victim of the fraud. Here, what is renounced is the effects of the fraud, that is, the right to indemnity of the party entitled thereto. 20. Enumerate the kinds of negligence. 1) Contractual negligence (culpa contractual) or negligence in contracts resulting in their breach Article 1172 refers to “culpa contractual.” This kind of negligence is not a source of obligation. It merely makes the debtor liable for damages in view of his negligence in the fulfillment of a pre-existing obligation resulting in its breach or non-fulfillment. It is a kind of civil negligence if it does not amount to a crime; 2) Civil negligence (culpa aquiliana) or negligence which by itself is the source of an obligation between the parties not formally bound before by any pre-existing contract. It is also called “tort” or “quasidelict.” 3) Criminal negligence (culpa criminal) or negligence resulting in the commission of a crime. The same negligent act causing damages may produce civil liability arising from a crime under Article 100 of the Revised Penal Code (supra.), or create an action for quasi-delict under Article 2176, et seq., of the Civil Code. 21. What is the effect of negligence on the part of the injured party? ❖ To be entitled to damages, the law does not require that the negligence of the defendant should be the sole cause of the damage. There is contributory negligence on the part of the injured party where his conduct has contributed, as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. The defense of contributory negligence of the injured party does not apply in criminal cases where the offense was committed by the accused through reckless imprudence since one cannot allege the  negligence of another (e.g., deceased was driving with an expired license) to evade the effects of his own negligence. 22. What are the factors to consider in determining negligence? (1) Nature of the obligation. — e.g., smoking while carrying materials known to be inflammable constitutes negligence; (2) Circumstances of the person. — e.g., a guard, a man in the prime of life, robust and healthy, sleeping while on duty is guilty of negligence; (3) Circumstances of time. — e.g., driving a car without headlights at night is gross negligence but it does not by itself constitute negligence when driving during the day; and (4) Circumstances of the place. — e.g., driving at 60 kilometers per hour on the highway is permissible but driving at the same rate of speed in Quezon Boulevard, Manila, when traffic is always heavy is gross recklessness. 23. Define diligence. What are the kinds of diligence required? ❖ Diligence is “the attention and care required of a person in a given situation and is the opposite of negligence.’’ Under Article 1173, the following kinds of diligence are required: (1) that agreed upon by the parties, orally or in writing; (2) in the absence of stipulation, that required by law in the particular case (like the extraordinary diligence required of common carriers); and (3) if both the contract and law are silent, then the diligence expected of a good father of a family (par. 2.) or ordinary diligence. Whether or not the negligence of the obligor is excusable will depend on the degree of diligence required of him. Under No (3), for example, the obligor is not liable for damages where his negligence is one which ordinary diligence and prudence could not have guarded against. 24. Define fortuitous event. Define force majeure. ❖ A fortuitous event is an extraordinary event that cannot be foreseen or is inevitable, making it impossible to fulfill an obligation. ❖ Force majeure refers to acts of God or natural accidents (e.g., earthquake, flood) that are beyond human control and thus exempt an obligor from liability. 25. Distinguish fortuitous event from force majeure. (1) Acts of man. — Strictly speaking, fortuitous event is an event independent of the will of the obligor but not of other human wills, e.g., war, fire, robbery, murder, insurrection, etc. (2) Acts of God. — They are those events which are totally independent of the will of every human being, e.g., earthquake, flood, rain, shipwreck, lightning, eruption of volcano, etc. They are also called force majeure. The term generally applies to a natural accident. 26. What are the kinds of fortuitous events? (1) Ordinary fortuitous events or those events which are common and which the contracting parties could reasonably foresee (e.g., rain); and (2) Extraordinary fortuitous events or those events which are uncommon and which the contracting parties could not have reasonably foreseen (e.g., earthquake, fire, war, pestilence, unusual flood). 27. What are the requisites for a fortuitous event? (1) The event must be independent of the human will or at least of the obligor’s will; (2) The event could not be foreseen (unforeseeable), or if it could be foreseen, must have been impossible to avoid (unavoidable); (3) The event must be of such a character as to render it impossible for the obligor to comply with his obligation in a normal manner; and (4) The obligor must be free from any participation in, or the aggravation of the injury to the obligee. 28. Explain the rules on liability in case of fortuitous event. ❖ When expressly specified by law. — In exceptions (a), (b), and (c) below, the special strictness of the law is justified. (a) The debtor is guilty of fraud, negligence, or delay, or contravention of the tenor of the obligation. (b) The debtor has promised to deliver the same (specific) thing to two or more persons who do not have the same interest for it would be impossible for the debtor to comply with his obligation to two or more creditors even without any fortuitous event taking place. (c) The debt of a thing certain and determinate proceeds from a criminal offense, unless the thing having been offered by the debtor to the person who should receive it, the latter refused without justification to accept it. (d) The thing to be delivered is generic for the debtor can still comply with his obligation by delivering another thing of the same kind in accordance with the principle that “genus never perishes” (genus nunquam perit).  ❖ When declared by stipulation. — The basis for this exception rests upon the freedom of contract. Such a stipulation is usually intended to better protect the interest of the creditor and procure greater diligence on the part of the debtor in the fulfillment of his obligation. But the intention to make the debtor liable even in case of a fortuitous event should be clearly expressed. 29. What is usury? ❖ Usury is contracting for or receiving interest in excess of the amount allowed by law for the loan or use of money, goods, chattels, or credits. 30. What is interest? ❖ Interest refers to the compensation a debtor must pay to a creditor for the use of money or for delaying payment. It can arise when money is borrowed or when a payment is late. There are two types of interest: legal interest, which is set by law when no specific rate is agreed upon, and conventional interest, which is the rate agreed upon by the parties in the contract. Essentially, interest serves as a fee for the use of borrowed money or for overdue payments. 31. Define simple loan or mutuum. ❖ Simple loan or mutuum is a contract whereby one of the parties delivers to another money or other consumable thing, upon the condition that the same amount of the same kind and quality shall be paid. It may be gratuitous or with a stipulation to pay interest. 32. What are the requisites for recovery of interest. ❖ The payment of interest must be expressly stipulated ; ❖ The agreement must be in writing; and ❖ The interest must be lawful. 33. Define presumption. What are the kinds of presumptions? ❖ A presumption is an inference of a fact not actually known based on its usual connection with another fact that is known or proven. The kinds of presumptions are: (1) Conclusive presumption. — one which cannot be contradicted like the presumption that everyone is conclusively presumed to know the law; and (2) Disputable (or rebuttable) presumption. — one which can be contradicted or rebutted by presenting proof to the contrary like the presumption established in Article 1176. 34. What are the four (4) remedies available to a creditor to satisfy his/her claims? ❖ exact fulfillment (specific performance) with the right to damages; ❖ pursue the leviable (not exempt from attachment under the law) property of the debtor; ❖ “after having pursued the property in possession of the debtor,’’ exercise all the rights (like the right to redeem) and bring all the actions of the debtor (like the right to collect from the debtor of his debtor) except those inherent in or personal to the person of the latter (such as the right to vote, to hold office, to receive legal support, to revoke a donation on the ground of ingratitude, etc.); and ❖ ask the court to rescind or impugn acts or contracts which the debtor may have done to defraud him when he cannot in any other manner recover his claim. 35. Are rights transmissible? What are the exceptions? Yes, all rights acquired in virtue of an obligation are generally transmissible. The exceptions to this rule are the following: ❖ Prohibited by law. — When prohibited by law, like the rights in partnership, agency, and commodatum which are purely personal in character. (a) By the contract of partnership, two or more persons bind themselves to contribute money, property or industry to a common fund, with the intention of dividing the profits among themselves. (b) By the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter. (c) By the contract of commodatum, one of the parties delivers to another something not consumable so that the latter may use the same for a certain time and return it. Commodatum is essentially gratuitous. ❖ Prohibited by stipulation of parties. — When prohibited by stipulation of the parties, like the stipulation that upon the death of the creditor, the obligation shall be extinguished or that the creditor cannot assign his credit to another. The stipulation against transmission must not be contrary to public policy. Such stipulation, being contrary to the general rule, should not be easily implied, but must be clearly proved, or at the very least, clearly inferable from the provisions of the contract itself.