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ARTICLE 1166. ARTICLE 1167.

The obligation to give a determinate thing includes that
of delivering all its accessions and accessories, even If a person obliged to do something fails to do it, the
though they may not have been mentioned. same shall be executed at his cost. This same rule shall
be observed if he does it in contravention of the tenor of
ACCESSION – are the fruits of a thing or addition to or the obligation. Furthermore, it may be decreed that what
improvements upon a thing has been poorly done be undone.
(the principal) ex. Trees on a land; air-
conditioner in a car; rent of a building REMEDIES OF CREDITOR IN POSITIVE PERSONAL
ACCESSORIES – are things joined to or included with OBLIGATION
the principal thing for the 1. If the debtor fails to comply with his obligation to
latter embellishment ex. Key of a do, the creditor has the right to have the obligation
house, frame of a picture; bracelet of a watch. performed by himself, or by another, unless personal
considerations involved at the debtor expense to
RIGHT OF CREDITOR TO ACCESSIONS AND recover damages
ACCESSORIES 2. In case the obligation is done in contravention of
> the general rule is that all accessions and accessories the terms of the same or is poorly done, it may be
are considered included in the obligation to deliver a ordered that it be undone if it is still possible to undo
determinate thing although they may not have been what was done
mentioned
> this rule is based on the principle of law that the
“accessory follows the principal”
> unless otherwise stipulated, an obligation to deliver
the accessions or accessories of a thing does not
include the latter.
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PERFORMANCE BY A THIRD PERSON ARTICLE 1169.

> a personal obligation to do, like a real obligation to
deliver a generic thing, can be performed by a third Those obliged to deliver or to do something incur in delay
person. from the time the obligee judicially or extra-judicially
> while the debtor can be compelled to make the demands from them the fulfillment of their obligation.
delivery of a specific thing, a specific
performance cannot be ordered in personal obligation to However, the demand by the creditor shall not be
do because this may amount to involuntary servitude necessary in order that delay may exist:
> where however, the personal qualification of the (1) When the obligation or the law expressly so
debtor is the determining motive for the obligation declare; or
contracted (ex.to sing in a night club), the performance (2) When from the nature and the circumstances of
of the same by another would be impossible, hence, the the obligation it appears that the designation of the time
only remedy is indemnification for damages when the thing is to be delivered or the service is to be
rendered was a controlling motive for the establishment
of the contract; or
ARTICLE 1168.
(3) When demand would be useless, as when the
When the obligation consists in not doing, and the obligor obligor has rendered it beyond his power to perform.
does what has been forbidden him, it shall also be In reciprocal obligations, neither party incurs in delay if
undone at his expense. the other does not comply or is not ready to comply in a
proper manner with what is incumbent upon him. From
REMEDIES OF CREDITOR IN NEGATIVE PERSONAL
the moment one of the parties fulfills his obligation,
OBLIGATION
delay by the other begins.
> in an obligation not to do, the duty of the obligor is to
abstain from an act
DELAY
> as a rule, the remedy of the obligee is the undoing of 1. ORDINARY DELAY
the forbidden thing plus damages. However, if it is not > is merely the failure to perform an
possible to undo what was done, his remedy is an obligation on time
action for damages caused by the debtor’s violation of 2. LEGAL DELAY or DEFAULT or MORA
his obligation > is the failure to perform an obligation on
time which failure constitutes a breach of
the obligation
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KINDS OF DELAY or DEFAULT ARTICLE 1170.

Those who in the performance of their obligations are
MORA SOLVENDI – or the delay on the part of the guilty of fraud, negligence, or delay, and those who in
debtor to fulfill his obligation any manner contravene the tenor thereof, are liable for
MORA ACCIPIENDI – or the delay on the part of the damages.
creditor to accept the performance of the obligation
COMPENSATIO MORAE – or the delay of the GROUNDS FOR LIABILITY
obligors in reciprocal obligations. The delay of the > which may entitle the injured party to damages
obligor cancels the delay of the obligee and vice
versa. There is no actionable default on the part of Fraud (deceit or dolo) – deliberate or intentional
both parties evasion of the normal fulfillment of an obligation
NO DELAY IN NEGATIVE PERSONAL OBLIGATION Negligence (fault or culpa) – any voluntary act or
> in an obligation not to do, non-fulfillment omission, there being no bad faith or malice, which
may take place, but delay is impossible for the debtor prevents the normal fulfillment of an obligation
fulfills by not doing what has been forbiden him. Delay (mora)
Contravention of the terms of the obligation – violation
REQUISITES OF DELAY OR DEFAULT BY THE
of the terms and condition stipulated in the obligation.
DEBTOR
1. Failure of the debtor to perform his (positive) FRAUD vs. NEGLIGENCE
obligation on the date agreed upon -In fraud, there is deliberate intention to cause damage
2. Demand (not mere reminder or notice) made by the or injury, while in negligence, there is no such intention
creditor upon the debtor with his obligation, either -Waiver of the liability for future fraud is void, while
judicial or extra-judicial such waiver may be allowed in
3. Failure of the debtor to comply with such demand. negligence
-Fraud must be clearly proved, while negligence is
presumed from violation of a contractual obligation
-Liability for fraud cannot mitigated or reduced by courts,
while liability of negligence may be reduced by the court
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ARTICLE 1171. ARTICLE 1172.

Responsibility arising from fraud is demandable in all Responsibility arising from negligence in the performance
obligations. Any waiver of an action for future fraud is of every kind of obligation is also demandable, but such
void. liability may be regulated by the courts, according to the
circumstances.
RESPONSIBILITY ARISING FROM FRAUD
DEMANDABLE
> this provision refers to incidental fraud which is
employed in the fulfillment of an obligation. This is RESPONSIBILITY ARISING FROM NEGLIGENCE
because fraud is deemed serious and evil that its DEMANDABLE
employment to avoid the fulfillment of one’s obligation
should be Discouraged. > in the performance of every kind of obligation, the
debtor is also liable for damages resulting from his
WAIVER OF ACTION FOR FUTURE FRAUD IS VOID negligence.
> according to the time of commission, fraud may be
> the courts however are given wide discretion in fixing
past or future. A waiver of an action for future fraud as
the measure of damages
being against the law and public
> a contrary rule would encourage the perpetration of
VALIDITY OF WAIVER OF ACTION ARISING FROM
fraud
NEGLIGENCE
WAIVER OF ACTION FOR PAST FRAUD IS VALID >An action for future negligence may be renounced
except where the nature of obligation requires the
> because the waiver can be considered as an act of
exercise of extraordinary diligence as in the case of
generosity and magnanimity on the part of the party
common carrier.
who is the victim of the Fraud.
>Where the negligence shows bad faith, it is considered
equivalent to fraud
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KINDS OF NEGLIGENCE ACCORDING TO SOURCE ARTICLE 1173.

OF OBLIGATION
The fault or negligence of the obligor consists in the
1. Contractual negligence (culpa contractual) omission of that diligence which is required by the
– negligence in contracts resulting in their breach nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the
2. Civil negligence (culpa aquilina) place. When negligence shows bad faith, the provisions
- which by itself is the source of an obligation between of Articles 1171 and 2201, paragraph 2, shall apply.
the parties not so related before by any pre-existing
If the law or contract does not state the diligence which
contract
is to be observed in the performance, that which is
expected of a good father of a family shall be required.
3. Criminal negligence (culpa criminal)
- or negligence resulting in the commission of a crime
NEGLIGENCE
> is the failure to observe for the protection of the
interest of another person, that degree of care,
EFFECT OF NEGLIGENCE ON THE PART OF THE
precaution and vigilance which the circumstances justly
INJURED PARTY
demand, whereby such other person suffers injury.
> when the plaintiff’s own negligence was the
FACTORS TO BE CONSIDRED IN NEGLIGENCE
immediate and proximate cause of his injury, he
cannot recover damages. 1. Nature of obligation
> but if his negligence was only contributory, the - smoking while carrying inflammable materials
immediate and proximate cause of the injury being constitute negligence
the defendant’s lack of due care, the plaintiff may 2. Circumstances of the person
recover damages, but the court shall mitigate the - a guard sleeping while on duty is negligence
damages to be awarded 3. Circumstances of time
- driving a car without headlights at night is gross
negligence but not during the day
4. Circumstances of the place
- driving at 100 km per hour on the super highway is
permissible but not in Makati
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KINDS OF DILIGENCE REQUIRED REQUISITES OF A FORTUITOUS EVENT

1. That agreed upon by the parties, oral or written 1. The event must be independent of the human will
2. In the absence of stipulation, that required by the or at least of the debtor’s will
law in the particular case 2. The event could not be foreseen, or if foreseen is
3. If both contract and law are silent, then the diligence inevitable
of a good father a family 3. The event must be of such a character as to
render it impossible for the debtor to comply with his
obligation
4. The debtor must be free from any participation
ARTICLE 1174.
RULES AS TO LIABILITY IN CASE OF A
Except in cases expressly specified by the law, or when it FORTUITOUS EVENT
is otherwise declared by stipulation, or when the nature of > general rule: a person is not as a rule, responsible for
the obligation requires the assumption of risk, no person loss or damages caused to another resulting from the
shall be responsible for those events which could not be non-performance of his obligation due to fortuitous
foreseen, or which, though foreseen, were inevitable. event, except the following

FORTUITOUS EVENT (FE) 1. The debtor is guilty of fraud, negligence or delay or

> is any event which cannot be foreseen, or which contravention of the tenor of obligation
though foreseen, is inevitable. > is an event which 2. The debtor has promised to deliver the same
either impossible to foresee or impossible to avoid (specific) to two or more person who do not have
the same interest
KINDS OF FORTUITOUS EVENT 3. The obligation to deliver a specific thing arises from
a crime
1. ORDINARY FE – or those events which are common 4. The thing to be delivered is generic
and which the contracting parties could reasonably
foresee
2. EXTRA-ORDINARY FE – those events which are
uncommon and which the contracting parties could
not have reasonably foreseen
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ARTICLE 1175.

Usurious transactions shall be governed by special

laws.

SIMPLE LOAN or MUTUUM

> is a contract whereby one of the parties delivers to
another, money or other consumable thing, upon
condition that the same amount or the same kind and
quality shall be paid.
> it may be gratuitous or with stipulation to pay
interest

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

REQUISITES FOR THE RECOVERY OF INTEREST

1. The payment of interest must be expressly stipulated
2. The agreement must be in writing
3. Interest must be lawful