jurado - civil code, volume iv - obligations & contracts

8/12/2019 Jurado - Civil Code, Volume IV - Obligations & Contracts

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In the case of Paci c Banking Corp. vs. CA (173 SCRA 102),the Supreme Court reiterated the rule that if the obligation hasno xed period, a party is precluded from enforcing it. Thus, itheld that even the pledge which modi ed the xed period in theoriginal promissory note, did not provide for date of payment ofinstallments, nor of any xed date of maturity of the whole amount ofindebtedness. Accordingly, the date of maturity of the indebtednessshould be determined by the proper court under Art. 1197 of theCivil Code. Hence, the disputed foreclosure and subsequent salewere premature.

It is not, however, necessary that the creditor, in his complaint,must expressly ask the court to x the duration of the term orperiod. Where the essential allegations of the pleadings describe anobligation with an inde nite period, the court can x the duration ofsuch period although the complaint does not ask for such relief. Forthis purpose two ultimate facts should be alleged in the complaint.They are: (1) facts showing that a contract was entered into imposingon one of the parties an obligation in favor of the other; and (2) factsshowing that the performance of the obligation was left to the willof the obligor, or clearly showing or from which an inference can bereasonably drawn that a period was intended. 139

It must also be noted that the action recognized in Art. 1197may also prescribe like any ordinary civil action. Thus, in an actionto ask the court to x the duration of the period for the performanceof an obligation which is evidenced by a promissory note led afterthe lapse of ten years from the time of the execution of the note, itwas held that the action had already prescribed. 140

Idem; Effect of judicial period. Once xed by the courts,the period can no longer be judicially changed. 141 This is so becausefrom the very moment the parties gave their consent to the period xed by the court, said period acquires the nature of a covenant; inother words, it becomes a law governing their contract; consequently,the courts can have no power to change or modify the same. 142

139 Schenker vs. Gemperle, 5 SCRA 1042.140 Gonzales vs. Jose, 66 Phil. 369.141 Art. 1197, par. 3, Civil Code.142 Barretto vs. City of Manila, 11 Phil. 624.

DIFFERENT KINDS OF OBLIGATIONS Art. 1197Obligations with a Period


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Problem M and N were very good friends. N bor-rowed P10,000.00 from M. Because of their close relationship,

the promissory note executed by N provided that he would paythe loan whenever his means permit. Subsequently, M andN quarelled. M now asks you to collect the loan because he isin dire need of money.

What legal action, if any, would you take in behalf of M?(1980 Bar Problem)

Answer M must bring an action against N for thepurpose of asking the court to x the duration of the term orperiod for payment. According to the Civil Code, when the

debtor binds himself to pay when his means permit him to do so,the obligation shall be deemed to be one with a period, subjectto the provisions of Art. 1197. In other words, it shall be subjectto those provisions of the Code with respect to obligations with aterm or period which must be judiciary xed. Thus, in the instantcase, the court shall determine such period as may under thecircumstances have been probably contemplated by the parties.Once determined or xed, it becomes a part of the covenantof the two contracting parties. It can no longer be changed bythem. If the debtor defaults in the payment of the obligation

after the expiration of the period xed by the court, the creditorcan then bring an action against him for collection. Any actionfor collection brought before that would be premature. This iswell-settled.

( Note: The above answer is based on Arts. 1180 and1197 of the Civil Code and on Gonzales vs. Jose, 66 Phil. 369;Concepcion vs. People of the Phil. 74 Phil. 62; Pages vs. Basilan,104 Phil. 882, and others.)

Alternative Answer Normally, before an action for

collection may be maintained by M against N, the formermust rst bring an action against the latter asking the court to x the duration of the term or period of payment. However, anaction combining such action with that of an action for collectionmay be allowed if it can be shown that a separate action forcollection would be a mere formality because no additional proofsother than the admitted facts will be presented and would serveno purpose other than to delay. Here, there is no legal obstacleto such course of action.

( Note: The above alternative answer is based on Borromeovs. Court of Appeals, 47 SCRA 65.

Probably, if we combine the two answers given above, theresult would be a much more impressive answer.)

Art. 1197


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Problem A Corporation, engaged in the sale of subdi-vision residential lots, sold to B a lot of 1,000 square meters.

The contract provides that the corporation should put up an ar-tesian well with tank, within a reasonable time from the datethereof and suf cient for the needs of the buyers. Five yearsthereafter, and no well and tank have been put up by the cor-poration, B sued the corporation for speci c performance. Thecorporation set up a defense that no period having been xed,the court should x the period. Decide with reason. (1982 BarProblem)

Answer The action for speci c performance should bedismissed on the ground that it is premature. It is clear thatthe instant case falls within the purview of obligations with aterm or period which must be judicially xed. Thus, B insteadof bringing an action for speci c performance, should bring anaction asking the court to determine the period within whichA Corporation shall put up the artesian well with tank. Oncethe court has xed the period, then such period as xed by thecourt will become a part of the covenant between the contractingparties. It can no longer be changed by them. If the Corporationdoes not put up the artesian well with tank within the period xed by the court, B can then bring an action for speci cperformance.

Alternative Answer Normally, before an action forspeci c performance may be maintained by B against ACorporation, the former must rst bring an action against thelatter asking the court to x the duration of the term or period toinstall the artesian well with tank. However, an action combiningsuch action with that of an action for speci c performance maybe allowed if it can be shown that a separate action for speci cperformance would be a mere formality because no additionalproofs other than the admitted facts will be presented and wouldserve no purpose other than to delay. Here, there is no obstacleto such cause of action.

( Note: The above answers are based on Art. 1197 of theCivil Code and on decided cases. Either answer should beconsidered correct.)

Art. 1198. The debtor shall lose every right to make useof the period:

(1) When after the obligation has been contracted, hebecomes insolvent, unless he give a guaranty or security forthe debt;



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(2) When he does not furnish to the creditor the guar-anties or securities which he has promised;

(3) When by his own acts he has impaired said guar-anties or securities after their establishment, and whenthrough a fortuitous event they disappear, unless he imme-diately gives new ones equally satisfactory;

(4) When the debtor violates any undertaking, inconsideration of which the creditor agreed to the period;

(5) When the debtor attempts to abscond. 143

Extinguishment of Debtors Right to Period. Accordingto the above article, there are ve different grounds or causes forthe extinguishment of the debtors right to make use of the term orperiod.

With respect to the rst, the word insolvent must not beunderstood in its technical sense so as to require a judicial declarationin accordance with the Insolvency Law; it must be understood inits ordinary or popular sense. Consequently, it includes any case in

which it would not be possible nancially for the debtor to complywith his obligation. This situation is, of course, predicated uponthe proposition that the insolvency of the debtor arose after theconstitution of the obligation. 144 However, if there is a guaranty orsecurity for the debt, the debtor, in spite of his insolvency, does notlose his right to the period.

With respect to the second, when the debtor does not furnishthe stipulated guaranty or security, it is but logical that he shalllose his right to the term or period. Thus, where the debtor not onlyfailed to register the mortgage over a parcel of land in favor of thecreditor in order to secure the loan, but even mortgaged the sameparcel of land in favor of the Rehabilitation Finance Corporation inorder to secure another loan, it was held that the former obligationbecame pure and without any condition, and consequently, the loanbecame due and immediately demandable. 145

143 Art. 1129, Spanish Civil Code, in modi ed form.144 8 Manresa, 5th Ed., Bk. 1, p. 388.145 Daguhoy Enterprises, Inc. vs. Ponce, 50 Off. Gaz. 5267. To the same effect

Laplana vs. Garchitorena, 48 Phil. 163.

Art. 1198


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With respect to the third, attention must be called to thedifference between the effect of impairment and the effect ofdisappearance as applied to the guaranty or security. The rules maybe restated as follows: (1) If the guaranty or security is impairedthrough the fault of the debtor, he shall lose his right to the bene tof the period; however, if it is impaired without his fault, he shallretain his right. (2) If the guaranty or security disappears throughany cause, even without any fault of the debtor, he shall lose hisright to the bene t of the period. In either case, however, the debtorshall not lose his right to the bene t of the period if he gives a newguaranty or security which is equally satisfactory.

Problem A executed in favor of B a promissory note forP10,000, payable after two years, secured by a mortgage on acertain building valued at P20,000. One year after the executionof the note, the mortgaged building was totally destroyed by a re of accidental origin. Can B demand from A the payment ofthe value of the note immediately after the burning withoutwaiting for the expiration of the term? Reasons. (1932 BarProblem)

Answer Yes, B can demand from A the payment ofthe value of the note immediately after the burning withoutwaiting for the expiration of the term, unless A immediatelygives another security or guaranty which is equally satisfactory.This is clear from the provision of No. 3 of Art. 1198 of the CivilCode which declares that when by his own acts the debtor hasimpaired the guaranty or security, or when through a fortuitousevent the guaranty or security disappears, the debtor shall losethe bene t of the term or period. It must be observed that thereis a difference between the effect of impairment and the effect ofdisappearance as applied to the security or guaranty. The rulesmay be restated as follows: (1) If the guaranty or security isimpaired through the fault of the debtor, he shall lose his rightto the bene t of the period; however, if it is impaired withouthis fault, he shall retain his right. (2) If the guaranty or securitydisappears through any cause, even without any fault of thedebtor, he shall lose his right to the bene t of the period. Ineither case, however, the debtor shall not lose his right to thebene t of the period if he gives a new guaranty or security.

The fourth and fth cases are new provisions. Whether thedebtor violates any undertaking, in consideration of which the credi-tor agreed to the period, or he attempts to abscond, the rule that heshall lose his right to the bene ts of the period is proper.



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Song Fo vs. Oria33 Phil. 3

This is an action commenced by plaintiff to recover thepurchase price of a launch which was sold to the defendant forP16,000 payable in quarterly installments of P1,000 and forwhich the said launch was mortgaged as security. The recordsshow that the launch was delivered to the defendant in Manilabut it was wrecked while enroute to his place of business inSamar. The records also show that no part of the purchase pricehas yet been paid to the plaintiff. The lower court rendered

judgment for P6,000 on the ground that this amount representsthe unpaid installments which are due and demandable underthe contract. The plaintifs, however, contend that the judgmentshould include the whole amount.

Held: Coming now to examine the contentions of theplaintiffs on their appeal, we think that the trial judge erred indeclining to render judgment in their favor for the total amountof the purchase price of the launch. He appears to have reliedupon the provisions of Article 1126 (now Art. 1193) of the CivilCode but to have overlooked the correlated provisions of Article1129 (now Art. 1198) of the same code.

The security for the payment of the purchase price of thelaunch itself having disappeared as a result of the unforeseenevent (vis major) and no other security having been substituted,therefore, the plaintiffs were clearly entitled to recover judgmentnot only for the installments of the indebtedness due under theterms of the contract at the time when they instituted theiraction, but also for all installments which but for the loss of thevessel, had not matured at the time.

Problem A sold his entire interest in 24,000 tons of

iron ore to B for P75,000, P10,000 of which was actually paidupon the signing of the contract. With respect to the balance ofP65,000, it was agreed that it will be paid from the rst amountderived from the sale of the ore. To insure payment thereof, Bdelivered to A a surety bond which provided that the liability ofthe surety liability would automatically expire after the lapse oftwo years. Inasmuch as the ore had not yet been sold and thesurety bond had expired without being renewed and the balancehad not yet been paid in spite of repeated demands, A nallybrought an action against B for the recovery of said balance.B, however, interposed the defense that his obligation to payis conditional and that inasmuch as the condition has not yetbeen ful lled, therefore, it is not yet due and demandable. Isthis defense tenable?

Art. 1198


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Answer This defense is untenable. The sale of the ironore is not a condition precedent to the payment of the balance

but only a suspensive term or period. There is no uncertaintywhatsoever with regard to the fact of payment; what isundetermined is merely the exact date of payment. Normally,therefore, A will have to wait for the actual sale of the iron orebefore he can demand from B for the payment of the unpaidbalance. However, inasmuch as by his own act B has impairedthe guaranty or security after its establishment without givinganother one which is equally satisfactory, it is clear that he hasnow lost the bene t of the term or period. Consequently, thecase now falls squarely within the purview of pars. 2 and 3 of

Art. 1198 of the NCC. (Gaite vs. Fonacier, 112 Phil. 728.)

Section 3. Alternative and FacultativeObligations

Concept. When an obligation comprehends several objectsor prestations it may be either conjunctive or distributive. It isconjunctive when all of the objects or prestations are demandableat the same time; it is distributive when only one is demandable.The latter, in turn, may be either alternative or facultative. It isalternative when it comprehends several objects or prestations whichare due, but it may be complied with by the delivery or performanceof only one of them; it is facultative when it comprehends only oneobject or prestation which is due, but it may be complied with by thedelivery of another object or the performance of another prestationin substitution. 146

It is, therefore, clear that the characteristic feature of an

alternative obligation is that various objects being due, the paymentor performance of one of them, determined by the election which,as a general rule, pertains to the obligor or debtor, is suf cient. 147 The characteristic feature of a facultative obligation, on the otherhand, is that only one object or prestation is due, but the obligor ordebtor may deliver another object or perform another prestation insubstitution. 148

146 8 Manresa, 5th Ed., Bk. 1, p. 393; 3 Castan, 7th Ed., pp. 75-76.147 Ibid.148 Art. 1206, Civil Code.

DIFFERENT KINDS OF OBLIGATIONS Art. 1198 Alternative and Facultative Obligations


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Art. 1199. A person alternatively bound by differentprestations shall completely perform one of them.

The creditor cannot be compelled to receive part of oneand part of the other undertaking. 149

Art. 1200. The right of choice belongs to the debtor, un-less it has been expressly granted to the creditor.

The debtor shall have no right to choose those presta-tions which are impossible, unlawful or which could nothave been the object of the obligation. 150

Right of Choice in Alternative Obligations. In alterna-tive obligations, the general rule is that the right of choice belongs orpertains to the debtor. 151 Thus, where the debtor borrowed a certainamount from the creditor, and in the promissory note which he hadexecuted it is expressly stipulated that he can ful ll his obligationeither by the payment of the amount of the indebtedness or by thedelivery of a house and lot at an appraised valuation, it was heldthat such obligations are alternative in character. 152 Consequently,

upon the maturity of the note, the debtor can comply with the obli-gation by paying the agreed amount or by delivering the house andlot. Under the general rule stated in Art. 1200, he alone has theright to make the choice. Once he has made it, and such choice isduly communicated to the creditor, the obligation becomes simple.

There are, however, two exceptions to the general rule. Theyare: rst, when the right of choice has been expressly granted tothe creditor; 153 and second, when it has been expressly granted toa third person. Although the Code does not expressly recognize thesecond,there is no reason why it should not be allowed, since it is notcontrary to law, morals, good customs, public order or public policy.

Idem; Limitations upon right of choice. The limitationsto the right of choice are given in the second paragraph of Art. 1200.

According to this provision, the debtor cannot choose those prestationsor undertakings which are impossible, unlawful or which could not

149 Art. 1131, Spanish Civil Code.150 Art. 1132, Spanish Civil Code.151 Art. 1200, Civil Code.152 Agoncillo and Marino vs. Javier, 38 Phil. 244.153 Art. 1200, par. 1, Civil Code.

Arts. 1199-1200


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have been the object of the obligation. Prestations which could nothave been the object of the obligation refer to those undertakingswhich are not included among those from which the obligor mayselect, or to those which are not yet due and demandable at thetime the selection is made, or to those which, by reason of accidentor some other cause, have acquired a new character distinct ordifferent from that contemplated by the parties when the obligationwas constituted. 154 It must be noted that what is contemplated bythe provision of the second paragraph of Art. 1200 is a case in whichthe right to choose or select is not lost or extinguished altogether,because there are still other objects or prestations from which thedebtor can choose or select.

Art. 1201. The choice shall produce no effect except fromthe time it has been communicated. 155

When Choice Takes Effect. The rule stated in the abovearticle is applicable whether the right of choice is exercised by thedebtor, or by the creditor, or by a third person. No special form isrequired for the communication or noti cation. Hence, any form maybe employed provided that the other party is properly noti ed of theselection. Nevertheless, considering the fact that the choice shallproduce no effect except from the time the other party is noti edof the selection and the fact that the proof of such noti cation isincumbent upon him who made the selection, it is always muchbetter to make the noti cation either in a notarized document or inany other authentic writing. 156

Can the creditor to whom the selection had been duly

communicated impugn such selection? In other words, before thechoice or selection shall be binding upon the creditor, is it necessarythat he must give his consent thereto? In a certain case, decided bythe Supreme Court, where the alternative obligations of the obligorconsisted of paying the insured value of the house or rebuildingit, and such obligor noti ed the obligee that it shall rebuild thehouse, the court declared that the object of the notice is to givethe creditor or obligee opportunity to express his consent, or to

154 8 Manresa, 5th Ed., Bk. 1, p. 398.155 Art. 1133, Spanish Civil Code.156 8 Manresa, 5th Ed., Bk. 1, p. 399.



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second paragraph of Art. 1200. Under the rst, there is only oneprestation which can be performed; under the second, there are stilltwo or more which can be performed. Under the rst, the obligationis converted into a simple one because the debtor loses his right ofelection; under the second, the obligation is still alternative becausethe debtor can still exercise his right of election.

Art. 1203. If through the creditors acts the debtor cannotmake a choice according to the terms of the obligation, thelatter may rescind the contract with damages. 161

When Choice Is Rendered Impossible. The above articledoes not have any counterpart in the Spanish Civil Code. The rule,however, is logical. Since the debtors right of choice is renderedineffective through the creditors fault, his only possible recoursewill be to bring an action to rescind the contract with damages.

Art. 1204. The creditor shall have a right to indemnityfor damages when, through the fault of the debtor, all the

things which are alternatively the object of the obligationhave been lost, or the compliance of the obligation hasbecome impossible.

The indemnity shall be xed taking as a basis the valueof the last thing which disappeared, or that of the servicewhich last became impossible.

Damages other than the value of the last thing or servicemay also be awarded. 162

Art. 1205. When the choice has been expressly given tothe creditor, the obligation shall cease to be alternative fromthe day when the selection has been communicated to thedebtor.

Until then the responsibility of the debtor shall begoverned by the following rules:

(1) If one of the things is lost through a fortuitous event,he shall perform the obligation by delivering that which the

161 New provision.162 Art. 1135, Spanish Civil Code, in modi ed form.

DIFFERENT KINDS OF OBLIGATIONS Arts. 1203-1205 Alternative and Facultative Obligations


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creditor should choose from among the remainder, or thatwhich remains if one only subsists;

(2) If the loss of one of the things occurs through thefault of the debtor, the creditor may claim any of thosesubsisting, or the price of that which, through the fault ofthe former, has disappeared, with a right to damages;

(3) If all the things are lost through the fault of thedebtor, the choice by the creditor shall fall upon the price ofany one of them, also with indemnity for damages.

The same rules shall be applied to obligations to do ornot to do in case one, some or all of the prestations shouldbecome impossible. 163

Effect of Loss of Objects of Obligation. It is evidentthat Art. 1204 is applicable only to a case where the right of choicebelongs to the debtor, while Art. 1205 is applicable only to a casewhere the right belongs to the creditor. In other words, the rstarticle is the general rule, while the second is the exception.

What is the effect upon the obligation if one or some or all ofthe things or prestations which are alternatively the object of theobligation have been lost or cannot be complied with? The answerto this question must depend upon two factors or circumstances rst, whether the right of choice belongs to the debtor or to thecreditor, and second, whether the loss or impossibility was due to afortuitous event or to the fault of the debtor.

Idem; If right of choice belongs to the debtor. If theright of choice belongs to the debtor and the loss or impossibility isdue to a fortuitous event, then the provisions of Arts. 1174, 1262 and1266 of the Code are applicable. The debtor cannot be held liablefor damages. Consequently, if one of the things is lost or one of theprestations cannot be performed by reason of a fortuitous event,the debtor must still comply with the obligation by delivering orperforming that which he shall choose from among the remainder; ifall of the things, except one, are lost, or all of the prestations, exceptone, cannot be performed by reason of a fortuitous event, the debtormust still comply with his obligation by delivering or performing

163 Art. 1136, Spanish Civil Code, in modi ed form.

Arts. 1203-1205


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that which remains; and if all of the things are lost or all of theprestations cannot be performed by reason of a fortuitous event, thedebtor is released from the obligation.

But if the loss or impossibility is due to the fault of the debtor,then the provisions of Art. 1204 are applicable. Consequently, if allof the things are lost or all of the prestations cannot be performeddue to the fault of the debtor, the creditor shall have a right toindemnity for damages. Such indemnity shall be xed taking as abasis the value of the last thing to be lost or that of the service whichlast became impossible. However, if one, or more, but not all, of the

things are lost or one or some, but not all, of the prestations cannotbe performed due to the fault of the debtor, the creditor cannot holdthe debtor liable for damages. This is so because the debtor can stillcomply with his obligation.

Idem; If right of choice belongs to creditor. If the rightof choice belongs to the creditor and the loss or impossibility is due toa fortuitous event, then the provisions of Arts. 1174, 1262 and 1266,which are reiterated in No. 1 of the second paragraph of Art. 1205,are applicable. The debtor cannot be held liable. Consequently, whathad been stated in the preceding section can also be applied here.

But if the loss or impossibility is due to the fault of the debtor,then the provisions of Nos. 2 and 3 of the second paragraph of Art.1205 are applicable. Consequently, if all of the things are lost or allof the prestations cannot be performed due to the fault of the debtor,the creditor may claim the price or value of any one of them withindemnity for damages. However, if one or some, but not all, of thethings are lost, or one or some, but not all, of the prestations cannotbe performed due to the fault of the debtor, the creditor may claimany of those subsisting without any liability on the part of the debtorfor damages or the price or value of that, which through the fault ofthe former, was lost or could not be performed, with indemnity, fordamages.

Art. 1206. When only one prestation has been agreedupon, but the obligor may render another in substitution,

the obligation is called facultative. The loss or deterioration of the thing intended as asubstitute, through the negligence of the obligor, does not



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render him liable. But once the substitution has been made,the obligor is liable for the loss of the substitute on accountof his delay, negligence or fraud. 164

Nature of Facultative Obligations. According to theabove article, a facultative obligation is de ned as an obligationwherein only one object or prestation has been agreed upon by theparties to the obligation, but which may be complied with by thedelivery of another object or the performance of another prestationin substitution. It is evident that the characteristic feature of thistype of obligation is that only one object or prestation is due, but if

the obligor fails to deliver such object or to perform such prestation,he can still comply with his obligation by delivering another objector performing another prestation in substitution. Thus, where thedebtor executed a promissory note promising to pay his indebtednessto the creditor at a speci ed date and in case of failure to do so, heshall execute a deed of mortgage over a certain property belongingto him in favor of the creditor, it was held that the obligation isfacultative. 165 Consequently, the provisions of Art. 1206 of the CivilCode may be applied.

Idem; Distinguished from alternative obligations. Facultative obligations may be distinguished from alternative obli-gations in the following ways:

(1) As to objects due: In facultative obligations only one objectis due, while in alternative obligations several objects are due.

(2) As to compliance: Facultative obligations may be compliedwith by the delivery of another object or by the performance ofanother prestation in substitution of that which is due, whilealternative obligations may be complied with by the delivery of oneof the objects or by the performance of one of the prestations whichare alternatively due.

(3) As to choice: In the rst, the right of choice pertains onlyto the debtor, while in the second, the right of choice may pertaineven to the creditor or to a third person.

(4) As to the effect of fortuitous loss: In the rst, the loss orimpossibility of the object or prestation which is due without any

164 New provision.165 Quizana vs. Redugerio, 50 Off. Gaz. 2444.

Art. 1206


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fault of the debtor is suf cient to extinguish the obligation, while inthe second, the loss or impossibility of all of the objects or prestationswhich are due without any fault of the debtor is necessary toextinguish the obligation.

(5) As to effect of culpable loss: In the rst, the culpable lossof the object which the debtor may deliver in substitution before thesubstitution is effected does not give rise to any liability on the partof such debtor; in the second, the culpable loss of any of the objectswhich are alternatively due before the choice is made may give riseto a liability on the part of the debtor.

Idem; When substitution takes effect. Although Art. 1206is silent with respect to the time or moment when the substitutionwill take effect, it is clear that the provision of Art. 1201 can beapplied by analogy. Of course, there is no question that the onlyone who is empowered to make the substitution is the debtor. Inorder that the creditor will be bound by the substitution, however,it is necessary that he must communicate such fact to the saidcreditor. Once the latter has been noti ed of the substitution, thenthe obligation ceases to be facultative; it is nally converted into a

simple obligation to deliver the thing or to perform the prestationwhich has been substituted.

Idem; Effect of loss of substitute. Before the substitutionis made by the obligor, the loss or deterioration of the thing intendedas a substitute, through the negligence of the said obligor, doesnot render him liable. 166 Hence, there seems to be an implicationthat if the loss or deterioration is through the bad faith or fraud ofthe obligor, then he is liable. As a matter of fact, Dean Capistranosays: Whether the debtor is liable in case he acts with bad faith,the Code Commission thought it better to leave to the courtsto decide. However, it may be pointed out that, as a matter ofprinciple, there should always be liability for bad faith. 167 It must,however, be observed that if the debtor can be held liable for theloss or deterioration of the thing intended as a substitute, will thisnot destroy the facultative nature of this type of obligation? It is,therefore, submitted that whatever may be the cause of the lossor deterioration of the thing intended as a substitute, such loss ordeterioration shall not render the debtor liable.

166 Art. 1206, par. 2, Civil Code.167 3 Capistrano, Civil Code, 1950, Ed., p. 135.



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Once the substitution has been made, however, the debtor shallbe liable for the loss or deterioration of the substitute on account ofhis delay, negligence or fraud. 168 This rule is logical because oncethe substitution is made, the obligation is converted into a simpleone with the substituted thing or prestation as the object of theobligation.

Section 4. Joint and Solidary Obligations

Concept. When there is a concurrence of two or more

creditors or of two or more debtors in one and the same obligation,the obligation may be either joint (obligacin mancomunada) orsolidary (obligacin solidaria). A joint obligation may be de ned asan obligation where there is a concurrence of several creditors, orof several debtors, or of several creditors and debtors, by virtue ofwhich each of the creditors has a right to demand, and each of thedebtors is bound to render, compliance with his proportionate part ofthe prestation which constitutes the object of the obligation. In otherwords, each of the creditors is entitled to demand the payment of only

a proportionate part of the credit, while each of the debtors is liablefor the payment of only a proportionate part of the debt. A solidary obligation, on the other hand, may be de ned as an obligation wherethere is a concurrence of several creditors, or of several debtors, orof several creditors and several debtors, by virtue of which each ofthe creditors has a right to demand, and each of the debtors is boundto render, entire compliance with the prestation which constitutesthe object of the obligation. In other words, each of the creditors isentitled to demand the payment of the entire credit, while each of

the debtors is liable for the payment of the entire debt.169

Idem; Comparative jurisprudence. In the case of Jaucian vs. Querol, 170 the Supreme Court had occasion to discuss thecomparative jurisprudence on the subject. According to the Court:

In Spanish law the comprehensive and generic termby which to indicate multiplicity of obligations arising fromplurality of debtors or creditors, is mancomunidad, which termincludes (1) mancomunidad simple or mancomunidad properly

168 Art. 1206, par. 2, Civil Code.169 Art. 1207, Civil Code; 3 Castan, 7th Ed., pp. 65-66.170 38 Phil. 707.

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such and (2) mancomunidad solidaria. In other words, theSpanish system recognizes two species of multiple obligation,

namely, the apportionable joint obligation and the solidary jointobligation. The solidary obligation is, therefore, merely a form of

joint obligation.

The idea of the bene t of division as a feature of simple joint obligation appears to be a peculiar creation of Spanish jurisprudence. No such idea prevailed in the Roman law, and itis not recognized either in the French or in the Italian system.

The conception is a badge of honor to Spanish legislation,honorably shared with the Spanish-American, since French andItalian codes do not recognize the distinction or difference justexpounded between the two sorts of multiple obligation. (Giorgi,Theory of Obligation, Span. Ed., Vol. 1, p. 77).

Considered with reference to comparative jurisprudence,liability in solidum appears to be the normal characteristicof the multiple obligation, while the bene t of division in theSpanish system is an illustration of the abnormal, evidentlyresulting from the operation of a positive rule created by thelawgiver. This exceptional feature of the simple joint obligation

in Spanish law dates from an early period; and the rule inquestion is expressed with simplicity and precision in a passagetranscribed into the Novisima Recopilacin follows:

If two persons bind themselves by contract, simply andnot otherwise, to do or accomplish something, it is thereby to beunderstood that each is bound for one-half, unless it is speci edin the contract that each is bound in solidum, or it is agreedamong themselves that they shall be bound in some othermanner, and this notwithstanding any customary law to thecontrary. x x x (Law X, Title I, Book X, Novisima Recopilacin,copied from law promulgated at Madrid in 1488 by Henry IV).

The foregoing exposition of the con ict between the juridical conception of liability incident to the multipleobligation, as embodied respectively in the common law systemand the Spanish Civil Code, prepares us for a few words ofcomment upon the problem of translating the terms whichwe have been considering from English into Spanish or fromSpanish to English.

The Spanish expression to be chosen as the equivalentof the English word joint or jointly must, of course, dependupon the idea to be conveyed; and it must be rememberedthat the matter to be translated may be an enunciation either

DIFFERENT KINDS OF OBLIGATIONS Art. 1206Joint and Solidary Obligations


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of a common law conception or of a civil law idea. In Sharrufvs. Tayabas Land Co. and Ginainati (37 Phil. Rep. 655), a

judge of one of the Courts of First Instance in these Islandsrendered judgment in English declaring the defendants to bejointly liable. It was held that he meant jointly in the senseof mancomunadamente because the obligation upon which the

judgment was based was apportionable under Article 1138 (now Art. 1208) of the Civil Code. This mode of translation does not,however, hold where the word to be translated has reference toa multiple common law obligation, as in Article 698 of the Codeof Civil Procedure. Here it is necessary to render the word jointby the Spanish word solidaria.

In translating the Spanish word mancomunada intoEnglish a similar dif culty is presented. In the PhilippineIslands at least we must probably continue to tolerate theuse of the English word joint as an approximate equivalent,ambiguous as it may be to a reader indoctrinated with the ideasof the common law. The Latin phrase pro rata is a makeshiftthe use of which is not to be commended. The Spanish wordsolidaria is properly rendered in English by the word solidary,though it is not inaccurate here to use the compound expressionjoint and several. The use of the Latin phrase in solidum is alsopermissible. We close these observations with the suggestionthat a person writing in English may at times nd it conduciveto precision to use the expanded expression apportionable jointobligation and solidary joint obligation as conveying the full

juridical sense of obligacin mancomunada and obligacion solidaria, respectively.

Art. 1207. The concurrence of two or more creditors orof two or more debtors in one and the same obligation doesnot imply that each one of the former has a right to demand,or that each one of the latter is bound to render, entirecompliance with the prestation. There is a solidary liabilityonly when the obligation expressly so states, or when thelaw or the nature of the obligation requires solidarity. 171

Nature of Collective Obligations in General. Accordingto the above article, when there is a concurrence of several creditorsor of several debtors or of several creditors and debtors in one and the

same obligation, there is a presumption that the obligation is joint

171 Art. 1137, Spanish Civil Code, in modi ed form.

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and not solidary. Consequently, where the obligation is silent withrespect to the nature or character of the right of the creditors or ofthe liability of the debtors, each of the creditors is entitled to demandonly for the payment of his proportionate share of the credit, whileeach of the debtors can be compelled to pay only his proportionateshare of the debt. 172 Thus, if A, B and C had executed a promissorynote binding themselves to pay an indebtedness of P9,000 to X, Y , and

Z , since the note is silent with respect to the character of the rightof the creditors as well as the liability of the debtors, the obligationis, therefore, presumed to be joint. 173 Upon maturity of the note theonly right of each creditor would be to demand for the payment ofhis proportionate share of the credit, which in this particular caseis presumed to be P3,000. 174 Each debtor, on the other hand, canbe compelled to pay only for his proportionate share of the debt.Therefore, if X , for instance, will proceed against A for payment, theonly amount which he can collect from the latter would be P1,000.Consequently, if he wants to collect his entire proportionate shareof P3,000, he must proceed not only against A, but also against B and C.

Idem; Exceptions. There are, however, three exceptionalcases or instances where collective obligations are solidary and not joint. They are: rst, when the obligation expressly states that thereis solidarity; second, when the law requires solidarity; and third,when the nature of the obligation requires solidarity. 175 In all ofthese cases, each creditor is entitled to demand for the paymentof the entire credit, while each debtor can be compelled to pay forthe entire debt. Thus, if A, B , and C are solidarily bound to pay anindebtedness of P9,000 to X, Y, and Z , anyone of the creditors can

proceed against one, or some, or all of the debtors for the paymentof the entire credit. 176

Before the rst exception can be applied, the solidary characterof the obligation must be made in express terms. 177 It is not, how-

172 Pimentel vs. Gutierrez, 14 Phil. 49; White vs. Enriquez, 15 Phil. 113; Agoncillovs. Javier, 38 Phil. 424; Ramos vs. Gibbon, 67 Phil. 371; Inciong, Jr. vs. Court of Ap-peals, June 26, 1996, 257 SCRA 580.

173 Art. 1297, Civil Code.174 Art. 1208, Civil Code.175 Art. 1207, Civil Code.176 Art. 1216, Civil Code.177 Gonzales vs. La Previsora Filipina, 74 Phil. 165.



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ever, necessary that the agreement shall employ precisely the wordsolidary in order that the obligation will be so; it is enough thatthe agreement will say, for example, that each one of them can beobligated for the aggregate value of the obligation. 178 Thus, wherethe debtors agreed to pay the obligation jointly and severally, 179 or individually and collectively 180 everyone of them can be held re-sponsible for the payment of the entire obligation. Another exampleis where the promissory note expressly states that the three signato-ries therein are jointly and severally liable. Any one, some or all ofthem may be proceeded against for the entire obligation. The choice

is left to the solidary creditor to determine against whom he willenforce collection. (Inciong, Jr. vs. Court of Appeals, June 26, 1996, 257 SCRA 580.)

Examples of the second exception are those provided for in Arts. 927, 1824, 1911, 1915, 2146, 2157, and 2194 of the Civil Code. Another example would be that provided for in Art. 110 of the RevisedPenal Code regarding the liability of principals, accomplices, andaccessories of a felony.

Examples of the third exception are obligations arising fromcriminal offenses and torts. The responsibility of two or morepersons guilty of a criminal offense or liable for a tort is solidary.This is so because of the very nature of the obligation itself. It mustbe noted, however, that under Art. 110 of the Revised Penal Code, itis expressly stated that the responsibility of principals, accomplices,and accessories, each within their respective class, is solidary, andunder Art. 2194 of the Civil Code, it is also expressly stated thatthe responsibility of two or more persons liable for a quasi-delict issolidary. Apparently, the obligations comprehended by the exceptionon which we are commenting are also included within the scope ofthe second exception. There are, however, some torts which cannotbe classi ed as quasi-delicts because the element of negligencedoes not enter as an essential requisite, such as interferences withhuman relations, nuisances, infringements of copyrights, patent ortrademark, unfair competition and several others. Responsibility of

joint tortfeasors in such cases is solidary because the nature of the

178 Ysmael & Co. vs. Salinas and Delgado, 73 Phil. 601.179 Parot vs. Gemora, 7 Phil. 24.180 Oriental Commercial Co. vs. La Fuente, CA, 38 Off. Gaz. 947.

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obligation requires it. Thus, in a certain case, the Supreme Courtdeclared:

It may be stated as a general rule that joint tortfeasorsare all the persons who command, instigate, promote, encourage,advise, countenance, cooperate in, aid or abet the commission ofa tort, or who approve of it after it is done for their bene t. Theyare each liable as principals to the same extent and in the samemanner as if they had performed the wrongful act themselves.Joint tortfeasors are jointly and severally liable for the tortwhich they commit. The person injured may sue all of them orany number less than all. Each is liable for the whole damage. Itis no defense for one sued alone, that the others who participatedin the wrongful act are not joined with him as defendants; noris it any excuse for him that his participation in the tort wasinsigni cant as compared with that of the others. 181

Art. 1208. If from the law, or the nature of the wordingof the obligations to which the preceding article refers thecontrary does not appear, the credit or debt shall be presumedto be divided into as many equal shares as there are creditorsor debtors, the credits or debts being considered distinctfrom one another, subject to the Rules of Court governingthe multiplicity of suits. 182

Joint Divisible Obligations. The most fundamental effectof joint divisible obligations is that each creditor can demand onlyfor the payment of his proportionate share of the credit, while eachdebtor can be held liable only for the payment of his proportionateshare of the debt. 183 As a corollary to this rule, the credit or debtshall be presumed, in the absence of any law or stipulation to thecontrary, to be divided into as many shares as there are creditorsand debtors, the credits or debts being considered distinct fromone another, subject to the Rules of Court governing multiplicity ofsuits. 184 From these rules which are expressly declared by the Code, itnecessarily follows that a joint creditor cannot act in representation

181 Worcester vs. Ocampo, 22 Phil. 42. To the same effect: Verzosa vs. Lim, 45Phil. 416; Torebillas vs. Soques, CA, 46 Off. Gaz. 5618; Padilla vs. Hipomia, CA, G.R.No. 4272-R, Feb. 17, 1951.

182 Art. 1138, Spanish Civil Code, in modi ed form.183 Art. 1207, Civil Code.184 Art. 1208, Civil Code.



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of the others; neither can a joint debtor be compelled to answer forthe liability of the others. Consequently, if there is a breach of theobligation by reason of the act of one of the debtors, the damagesdue to its breach must be borne by him alone. 185 Similarly, if thereis any defense which is purely personal to one of the debtors, healone can avail himself of such defense. 186 Thus, it has been heldthat payment or acknowledgment by one of the joint debtors willnot stop the running of the period of prescription as to the others. 187 This doctrine is in conformity with the opinion of Manresa to theeffect that one of the necessary consequences of the rule stated inwhat is now Art. 1208 of the Civil Code is that the interruption ofprescription by the claim of a creditor addressed to a single debtoror by an acknowledgment made by one of the debtors in favor of oneor more of the creditors is not to be understood as prejudicial to or infavor of the other debtors or creditors. 188

Problem No. 1 . A, B , and C executed a promissory notebinding themselves to pay P9,000 to X, Y , and Z . The note is nowdue and demandable.

(a) Can the creditors proceed against A alone forpayment of the entire obligation? Why?

(b) Can X alone proceed against A, B and C for paymentof the entire obligation? Why?

(c) Suppose that X proceeds against A alone forpayment, how much can he collect? Why?

(d) Suppose that C is insolvent, can A and B be heldliable for his share in the obligations? Why?

(e) Suppose that the obligation was about to prescribe,but X wrote a letter to A demanding for payment of the entiredebt, will this have the effect of interrupting the running of theperiod of prescription? Why?

Answer (a) The creditors cannot proceed against A alonefor the payment of the entire obligation. Since the promissorynote is silent with respect to the right of the creditors as well asthe liability of the debtors, the obligation is, therefore, presumed

185 Mollers Ltd. vs. Sarile, 97 Phil. 985.186 8 Manresa, 5th Ed., Bk. 1, p. 425.187 Agoncillo vs. Javier, 38 Phil. 424.188 8 Manresa 182, cited in Agoncillo vs. Javier, 38 Phil. 424.

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to be joint (Art. 1207, CC). Consequently, the only right of suchcreditors if they proceed against A alone for payment would be

to collect from him P3,000, which is his proportionate share inthe obligation. (Ibid.) Once the amount is collected, it will thenbe divided equally among X, Y and Z . This is so because, underthe law, in the absence of any legal provision or stipulation ofthe parties to the contrary, the credit or debt shall be presumedto be divided into as many equal shares as there are creditorsor debtors, the creditors or debts being considered distinct fromone another (Art. 1208, CC).

(b) X alone cannot proceed against A, B and C for thepayment of the entire obligation for the same reason stated inthe previous paragraph. The most that he will be able to collectfrom the three debtors will be his proportionate share in theobligation which is P3,000 (Arts. 1207, 1208, CC). As far as thedebtors are concerned, because of the principle that in jointobligations the credit or debt shall be presumed to be dividedinto as many equal shares as there are creditors or debtors, thecredits or debts being considered distinct from one another (Art.1208, CC), the liability of each will be only with respect to hisshare in the P9,000. Consequently, X can collect only P1,000from A, P1,000 from B , and P1,000 from C.

(c) If X proceeds against A alone for payment, the mostthat he will be able to collect will be only P1,000. The reason hasalready been stated in the previous paragraph.

(d) If C is insolvent, his co-debtors cannot be held liablefor his share in the obligations. This necessarily follows fromthe principle that in joint obligation, the credit or debt shallbe presumed to be divided into as many equal shares as thereare creditors or debtors, the credits or debts being considered

distinct from one another (Art. 1208, CC). (e) The demand made by X upon A, for the purposeof interrupting the running of the period of prescription, shallprejudice the latter only, but not the other debtors. Consequently,if after ten years, X, Y and Z should bring an action against A,

B and C to collect the debt, the defense of prescription would beabsolute insofar as B and C are concerned, but partial insofar as

A is concerned. In other words, A can still be compelled to payP1,000 to X . The reason for this is the fact that the principle ofmutual agency is not applicable in joint obligations. (Agoncillovs. Javier, 38 Phil. 424.)

Problem No. 2. X, Y and Z owe A and B P12,000 in a joint obligation. How many obligations exist in this case, who



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are the parties in each obligation and for how much? Why?(1971 Bar Problem)

Answer There are six obligations in the above case. Theparties and the amount of each obligation are:

(1) X as debtor for P2,000 in favor of A as creditor;

(2) X as debtor for P2,000 in favor of B as creditor;

(3) Y as debtor for P2,000 in favor of A as creditor;

(4) Y as debtor for P2,000 in favor of B as creditor;

(5) Z as debtor for P2,000 in favor of A as creditor;

(6) Z as debtor for P2,000 in favor of B as creditor.

The above answers are clearly deducible from Art. 1208of the Civil Code which declares that if the obligation is joint,the credit or debt shall be presumed to be divided into as manyequal shares as there are creditors or debtors, the credits ordebts being considered as distinct from one another, subjectto the Rules of Court governing the multiplicity of suits. Takethe credit of P12,000 for instance. Since there are two creditorsthere will also be two credits of P6,000 for each creditor. In thecase of the debt of P12,000, since there are three debtors therewill also be three debts of P4,000 against each debtor. Now, asfar as A, the rst creditor, is concerned, if he wants to collect hiscredit of P6,000, he must proceed against all the debtors. Thushe will be able to collect P2,000 from X , P2,000 from Y , anotherP2,000 from Z . The same is true in the case of B, the secondcreditor.

Art. 1209. If the division is impossible, the right of thecreditors may be prejudiced only by their collective acts, andthe debt can be enforced only by proceeding against all thedebtors. If one of the latter should be insolvent, the othersshall not be liable for his share. 189

Joint Indivisible Obligations. A joint indivisibleobligation is in a sense somewhat midway between the joint andthe solidary obligation, although it still retains the two fundamentalcharacteristics of the former rst , that no creditor can act in

representation of the others, and second , that no debtor can be

189 Art. 1139, Spanish Civil Code.

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compelled to answer for the liability of the others. However, unlike joint divisible and solidary obligations, in this type of obligation,which is joint with respect to the parties and indivisible with respectto the ful llment of the obligation, the following characteristics arealso present:

(1) If there are two or more debtors, the ful llment of orcompliance with the obligation requires the concurrence of all of thedebtors, although each for his own share. 190 Consequently, accordingto the Code, the obligation can be enforced only by proceeding againstall of the debtors. 191 Thus, if A, B , and C obligated themselves to

deliver jointly a certain horse to X , since the obligation is both jointand indivisible, X can compel its ful llment only by proceedingagainst A, B and C.

(2) If there are two or more creditors, the concurrence orcollective act of all the creditors, although each for his own share,is also necessary for the enforcement of the obligation. This is sobecause the obligation is joint, and therefore, a creditor cannot act inrepresentation of the others, and it is also indivisible, and therefore,not susceptible of partial ful llment. It must be noted, however,that, unlike the case of the debtors, the Code is silent with respectto this point, although Art. 1209 states that the creditors may beprejudiced only by their collective acts.

Idem; Effect of breach. Since in a joint indivisible obli-gation, compliance can only be enforced by proceeding against allof the debtors, it necessarily follows that if one of the joint debtorsfails to comply with his undertaking, the obligation can no longerbe ful lled or performed. Consequently, it is converted into one of

indemnity for damages. However, the debtors who may have beenready to ful ll or perform what was incumbent upon them shall notcontribute to the indemnity beyond the corresponding portion of theprice of the thing or of the value of the service in which the obliga-tion consists. 192

Idem; Effect of insolvency of a debtor. If one of the jointdebtors should be insolvent, the others shall not be liable for his

190 Manresa, 5th Ed., Bk. 1, pp. 422, 466.191 Art. 1209, Civil Code.192 Art. 1224, Civil Code.



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share. 193 This rule is, of course, logical because to hold otherwisewould destroy the joint character of the obligation.

The different effects of a joint indivisible obligation withrespect to the debtors may be illustrated by this example: A, B , andC, partners in business, bind themselves jointly to deliver a certainrace horse, worth P300,000, to X at the end of January, 1980. X can compel the performance of the obligation only by proceedingagainst all of the obligors or debtors. 194 However, if any one of thedebtors, let us say, A, cannot or refuses to comply with his share inthe undertaking, the obligation is converted into one of indemnity

for damages.195

A shall be liable to X for his corresponding share ofthe price of the horse plus damages, while B and C shall be liableonly for their corresponding shares of the price without damages. 196 If B is insolvent, the others shall not be liable for the payment of hisshare. 197 The right of X as against B will, therefore, be the same asthe right of a creditor against an insolvent debtor.

Idem; Interruption of period of prescription. If thereare two or more creditors or debtors, will the claim of a creditoraddressed to a single debtor or the acknowledgment made by one ofthe debtors in favor of one or more of the creditors be suf cient tointerrupt the period of prescription? According to one view, since Art.1209 merely provides that the right of the creditors may be prejudicedonly by their collective acts, it can, therefore, be inferred that shouldthe act of a joint creditor be per se bene cial to the others, as forinstance the interruption of the period of prescription, the act of onewould be suf cient. 198 According to another view, the act of a jointcreditor which would ordinarily interrupt the period of prescriptionwould not be valid because the indivisible character of the obligationrequires collective action of the creditors to be effective. If a writtendemand is made by one creditor only, the debtor upon whom thedemand is made cannot pay to him alone; payment must be made toall. Hence, the act of one alone is ineffective. 199 It is submitted thatthe latter view is more logical.

193 Art. 1209, Civil Code.194 Ibid.195 Art. 1224, Civil Code.196 Ibid.197 Art. 1209, Civil Code.198 8 Manresa, 5th Ed., Bk. 1, pp. 446-467.199 4 Tolentino, Civil Code, 1956, pp. 213-214, citing De Buen and others.

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Art. 1210. The indivisibility of an obligation does notnecessarily give rise to solidarity. Nor does solidarity ofitself imply indivisibility. 200

Indivisibility and Solidarity. The rule stated in the abovearticle is logical. Indivisibility and solidarity are not identical. Theymay be distinguished from each other in the following ways:

(1) As to nature: Indivisibility refers to the prestation whichconstitutes the object of the obligation, while solidarity refers to thelegal tie or vinculum, and consequently, to the subjects or parties ofthe obligation.

(2) As to requisites: Plurality of subjects is not required inindivisibility, while it is indispensable in solidarity.

(3) As to effect of breach: In indivisible obligations, when theobligation is converted into one of indemnity for damages becauseof breach, indivisibility of the obligation is terminated; in solidaryobligations, when there is liability on the part of the debtors becauseof breach, the solidarity among the debtors remains. 201

Art. 1211. Solidarity may exist although the creditorsand the debtors may not be bound in the same manner andby the same periods and conditions. 202

Kinds of Solidarity. Solidarity may be active (amongcreditors), passive (among debtors), or mixed (among creditors anddebtors). 203 Solidarity of creditors (active solidarity) may be de nedas a tie or vinculum existing among several creditors of one and

the same obligation by virtue of which each of them, in relationto his co-creditors, possesses the character of creditor only withrespect to his share in the obligation, but in relation to the commondebtor or debtors, represents all of the other creditors. Solidarityof debtors (passive solidarity), on the other hand, may be de nedas a tie or vinculum existing among several debtors of one and thesame obligation by virtue of which each of them, in relation to hisco-debtors, possesses the character of debtor only with respect to his

200 New provision.201 8 Manresa, 5th Ed., Bk. 1, p. 469.202 Art. 1140, Spanish Code.203 4 Sanchez Roman 50; Giorgi, Teoria de las Obligaciones, Vol. 1, p. 89.

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share in the obligation, but in relation to the common creditor orcreditors, represents all of the other debtors. 204

Idem; Effect of active solidarity in general. Themost fundamental effect of active solidarity is the creation of arelationship of mutual agency among the solidary creditors byvirtue of which each creditor is empowered to exercise against thedebtor or debtors not only the rights which correspond to him, butalso all the rights which correspond to the other creditors, with theconsequent obligation to render an accounting of his acts to suchcreditors. In the words of Manresa:

The essence of solidarity among the creditors consists ofthe power of each to claim and exercise the rights of all, with theconsequent obligation to pay to each what properly correspondsto him upon the exercise of said rights. There is, therefore, equalmutual representation from which none can be excluded withoutdestroying the solidary character of the obligation. Hence, theessential feature of this obligation is that of mutual agencyamong the active subjects of the obligation, who are empoweredto exercise not only their own rights, but also that of the others,

against any debtor or debtors, with the consequent obligation torender an accounting of his acts to the other creditors. 205

It is this relationship of mutual agency which is the basis of thedifferent rules stated in Arts. 1212 to 1215 of the Code.

Idem; Effect of passive solidarity in general. In passivesolidarity, each solidary debtor, insofar as the creditor or creditorsare concerned, is the debtor of the entire amount; however, withrespect to his co-debtors, he is a debtor only to the extent of his sharein the obligation. 206 Hence, the most fundamental effect of solidarityamong the debtors is the liability of each debtor for the paymentof the entire obligation, with the consequent right to demandreimbursement from the others for their corresponding shares oncepayment has been made.

Idem; id. Distinguished from suretyship . Passive sol-idarity must be distinguished from solidary guaranty (suretyship).

204 Giorgi, Teoria de las Obligaciones, Vol. 1, pp. 90, 115.205 8 Manresa, 5th Ed., Bk. 1, pp. 431-432.206 3 Castan, 7th Ed., p. 73.

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According to the second paragraph of Art. 2047 of the Code, a soli-dary guarantor or surety ( ador in solidum) is a person who bindshimself solidarily with the principal debtor. Hence, it is evident thata solidary debtor and a surety are similar in the sense that they areboth solidarily liable to the creditor for the payment of the entireobligation. Strictly speaking, however, they may be distinguishedfrom each other as follows:

(1) A solidary debtor, unlike a surety, is liable not only forthe payment of the debt of another, but also for the payment of adebt which is properly his own;

(2) If a solidary debtor pays the entire amount of theobligation, he has a right to demand reimbursement from his co-debtors of the shares which correspond to them in the obligation,whereas if a surety pays the entire amount of the obligation, he hasa right to demand reimbursement from the principal debtor of theentire amount that he has paid; and

(3) The rights of a solidary debtor are more limited than thoseof a surety. Thus, in passive solidarity an extension of time granted

by the creditor to one of the solidary debtors for the payment of theobligation without the knowledge or consent of the other solidarydebtors would not have the effect of releasing the latter from theirobligation, 207 but in suretyship such an extension granted to theprincipal debtor would release the surety from the obligation. 208

While a guarantor may bind himself solidarily with the principaldebtor, the liability of a guarantor is different from that of a solidarydebtor. Thus, Tolentino explains guarantor is different from that ofa solidary debtor. Thus, Tolentino explains: A guarantor who bindshimself in solidum with the principal debtor under the provisionsof the second paragraph does not become a solidary co-debtor toall intents and purposes. There is a difference between a solidaryco-debtor and a ador in solidum (surety). The latter, outside ofthe liability he assumes to pay the debt before the property of theprincipal debtor has been exhausted, retains all the other rights,actions and bene ts which pertain to him by reason of the ansa;while a solidary co-debtor has no other rights than those bestowed

207 Inchausti & Co. vs. Yulo, 34 Phil. 978.208 Villa vs. Garcia Bosque, 49 Phil. 126; Stevenson vs. Climaco, CA 36 Off. Gaz.

1571.

DIFFERENT KINDS OF OBLIGATIONS Arts. 1210-1211Joint and Solidary Obligations


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OBLIGATIONS

upon him in Section 4, Chapter 3, Title I, Book IV of the Civil Code.(Inciong, Jr. vs. Court of Appeals, June 26, 1996, 257 SCRA 580).

Idem; Effect of varied conditions or periods. Thevinculum or bond which binds the creditors and the debtors insolidary obligations may be either uniform or varied, dependingupon whether they are bound in the same manner and by the sameconditions or periods or not. 209 Consequently, the relationship ofsolidarity is not destroyed by the fact that the obligation of one debtoris conditional, the obligation of another is with a term or period,and the obligation of a third is pure. Neither is the character of

solidarity destroyed if the debtors are bound by different conditionsor by different periods. A creditor in such cases, can still commencean action against anyone of the debtors for compliance with theentire obligation minus the portion or share which corresponds tothe debtor affected by the condition or period. 210 Thus, if A, B, and C borrowed P60,000 from X binding themselves jointly and severallyto pay the entire obligation, but in the promissory note executedby them there is a stipulation that in the case of A, the obligationshall become due and demandable on June 15, 1972; in the case of

B , it shall become due and demandable on June 15, 1974; and in thecase of C, it shall become due and demandable on June 15, 1976,and subsequently, immediately, after June 15, 1972, X brought anaction for collection of the entire obligation against A alone becauseof the latters failure to pay despite repeated demands, will theaction prosper? Undoubtedly, the obligation here is solidary. This isclear from the provision of Art. 1211 of the Civil Code. However, insolidary obligations of this type, the right of the creditor is limitedto the recovery of the share owed by the debtor whose obligation has

already matured leaving in suspense his right to recover the sharescorresponding to the other debtors whose obligations have not yetmatured. This restriction does not destroy the solidary characterof the obligation, because, ultimately, he can still compel one andthe same debtor, if that is his wish, to pay the entire obligation.Therefore, in the instant case, X can collect only P20,000 from A,which is the latters share in the obligation. He shall have to wait forJune 15, 1974, when Bs obligation shall have matured, and for June15, 1976, when Cs obligation shall have also matured. On June 15,

209 4 Sanchez Roman 50.210 Inchausti & Co. vs. Yulo, 34 Phil. 978.

Arts. 1210-1211


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1974, he can collect P20,000 from either A or B . On June 15, 1976,he can again collect another P20,000 from either A or B or C.

Inchausti & Co., vs. Yulo34 Phil. 978

On August 12, 1909, six brothers and sisters, defendantamong them, executed an instrument admitting their solidaryindebtedness to the plaintiff for P253,446.42, at 10% interest

per annum , payable in ve annual installments, the rstinstallment to be paid on June 13, 1910. Because of default in

the payment of the rst installment, plaintiff, in accordancewith the acceleration clause expressly agreed upon, brought thisaction on March 27, 1911, against Gregorio Yulo for the paymentof the entire indebtedness plus interests. Subsequently, on May12, 1911, three of the debtors, Francisco, Manuel and Carmen,entered into an agreement with plaintiff, evidenced by a notarialinstrument, by virtue of which the amount of the indebtednesswas reduced to P225,00

jurado - civil code, volume iv - obligations & contracts

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