ARTICLE 1261
IF THE CONSIGNATION HAVING BEEN MADE, THE CREDITOR SHOULD AUTHORIZE THE
DEBTOR TO WITHDRAW THE SAME, HE SHALL LOSE EVERY REFERENCE WHICH HE MAY HAVE
OVER THE THING. THE CO-DEBTORS, GUARANTORS AND SURETIES SHALL BE RELEASED.
(1181A)
EFFECT OF WITHDRAWAL WITH AUTHORITY OF CREDITOR
Consignation is for benefit or creditor therefore he may authorize debtor to withdraw
deposit after he has accepted the same/after court issued order to cancel obligation
Creditor-debtor relation still remain as they were before acceptance/cancellation
Creditor shall lose every preference have may have over thing; co-debtors,
guarantors, sureties shall be released
Solidary debtor released from solidary liability, not from shares of obligation because
he is still principal debtors (like guarantors, sureties)
EXAMPLE:
D is indebted to C in the sum of P 50,000.00 with G as guarantor. On the due date of
the obligation , D offered payment but C refused to accept the same. So, D made a
consignation. Subsequently, D withdrew the deposit after securing the consent of C.
-Under Article 1261, C shall lose whatever preference he may have over the amount
and G, the guarantor, shall be released.
If, in the example given, D and G are solidarily liable to C, G is released only from his
solidary liability but he is still liable to C for P 25,000.00 , his share in obligation.
ARTICLE 1262
An obligation which consists in the delivery of a determinate thing shall be
extinguished if it should be lost or destroyed without the fault of the debtor, and
before he has incurred in delay.
When by law or stipulation, the obligor is liable even for fortuitous events, the loss of
the thing does not extinguish the obligation, and he shall be responsible for
damages. The same rule applies when the nature of the obligation requires the
assumption of risk. (1182a)
Loss of a determinate thing under Article 1262 (par. 1.) is the equivalent of
impossibility of performance in obligations to do referred to in Article 1266. But
loss of the thing due, as used in Article 1231(1) and the above section, extends to
both obligations to give and obligations to do. When loss of thing will extinguish an
obligation to give
When loss of the thing will extinguish an obligation to give
In order that an obligation to give may be extinguished by the loss of the thing, the
following requisites must be present:
1. The obligation is to deliver a specific or determinate thing
2. The loss of the thing occurs without the fault of the debtor
3. The debtor is not guilty of delay When loss of thing will not extinguish liability
When loss of thing will not extinguish liability
There are cases, however, when the loss of the specific thing even in the absence of
fault and delay will not exempt the debtor from liability. They are:
1. when the law so provides
2. when the stipulation so provides
3. when the nature of the obligation requires the assumption of risk
4. when the obligation to deliver a specific thing arises from a crime
Article 1263
In an obligation to deliver a generic thing, the loss or destruction of anything of the
same kind does not extinguish the obligation. (n)
Effect of loss of a generic thing
The above article is an example of a case where the debtor is liable even for
a fortuitous event because the law says so.
It is based on the principle that a generic thing never perishes (genus
nunquam perit). The debtor can still be compelled to deliver a thing of the same
kind. The creditor, however, cannot demand a thing of superior quality and neither
can the debtor deliver a thing of inferior quality.
Reported by:
Nerille Jan A. Dailo
BSA
