SECTION 2- LOSS OF THE THING DUE
SUBJECTIVE IMPOSSIBILITY on the part of
- LOSS is not limited to obligation to give but
extends to those which are personal, embracing
all causes which may render impossible
performance of the prestation. This is
designation as IMPOSSIBILITY OF
PERFORMANCE.
- IMPOSSIBILITY OF PERFORMANCE must
be subsequent to the execution of the contract in
order to extinguish the obligation. If the
impossibility already existed when the contract
was made, the result is NOT extinguishment but
INEFFICACY of the obligation under ARTS.
1348 & 1493
ARTICLE 1262
WHEN A THING IS CONSIDERED LOST
- It is understood that the thing is considered lost
when it perishes or goes out of commerce or
disappears in such a way that its existence is
unknown or it cannot be recovered.
- Loss of a determinate thing under Art. 1262
(par.1) is the equivalent of impossibility of
performance in obligations to do referred to in
art. 1266 but the loss of the thing due as used
in 1231(1) and the above section subtitle,
extends to BOTH obli to give and to do.
- Aside from the destruction of the thing due,
loss would mean its disappearance by loss, theft
or robbery; its NON-EXISTENCE in the hands
of the obligor when, thru any cause, the
FULFILLMENT OF THE OBLI IS
IMPOSSIBLE.
- In an obli to deliver a determinate object,
where there is no physical or legal loss, but the
thing belongs to another, the performance by the
debtor of the obli undoubtedly becomes
impossible. This would not have happened if the
thing had belonged to the debtor at the time the
obligation was constituted.
- Therefore, this is a case of an ORIGINAL
the debtor and the failure of performance is
imputable to himself. The debtor must
indemnify the creditor for damages suffered.
- If the creditor acquired the thing by gratuitous
title, such as by donation or inheritance, he is
entitled to the value thereof. But if he acquired it
by Onerous title, he is entitled to the price he
paid for it.
- The happening of a fortuitous event in itself
does not necessarily extinguish an obligation to
deliver a determinate thing. An obli consisting in
the delivery of a specified thing shall be
extinguished when the said thing shall be lost or
destroyed without the fault of the obligor and
before he is in default.
- In the absence of law or stipulation to the
contrary, impossibility of performance, without
the negligence of the parties, prevents the
enforcement of an obli.
- If the thing has been lost thru robbery with
violence, the debtor must show that he could not
resist with violence.
- if the lost is thru theft, the debtor is considered
negligent in having placed the thing within the
reach of the thieves and not in a secure or safe
place. Debtor will be LIABLE for damages.
- the extinguishment of the obli due to LOSS of
the thing or impossibility of performance affect
BOTH debtor and creditor.
- entire juridical relation is extinguished, so that
if the creditor has himself an obli, this is
likewise extinguished. The debtor must return to
the creditor whatever the latter may have already
delivered by reason of the obligation. This is a
logical consequence of the PRINCIPLE: RES
PERIT DOMINO recognized in this code.
*GENERAL RULE: loss of the determinate
object by fortuitous event extinguishes the
obligation.
*EXCEPTION: the debtor who is unable to
perform becomes liable for damages in the ff.
cases:
1) when the law expressly provides that the
debtor shall be liable even if the loss is due to
fortuitous event
2) When by express stipulation, the obligor is
made liable even if loss occurs thru fortuitous
event
3) When the nature of the obli requires the
assumption of risk (art. 1174)
4) when the fault or negligence of the debtor
concurs with the fortuitous event in causing the
loss
5) when the loss occurs after the debtor has
incurred in delay (art. 1165)
6) when the debtor has promised to deliver the
same thing to 2 or more different parties
7) when the obligation to deliver a determinate
object arises from a criminal act (art. 1268)
*In order that an obli 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
ART. 1263
EFFECT OF LOSS OF A GENERIC THING
- this 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 superior quality and neither can the
debtor deliver a thing of inferior quality.
DETERMINATE THING a concrete
particularized object, indicated by its own
individuality.
GENERIC THING- is one whose determination
is confined to that of its nature, to the genus to
which it pertains, such as a horse or a chair
- the loss of the determinate object without the
fault of the debtor extinguishes the obligation to
give but the obligation is NOT extinguished if
the object is INDETERMINATE or GENERIC.
*Genus nunquam perit (genus never perishes);
but when all the things of the kind stipulated
disappear or perishes, the obli to deliver a
generic object is extinguished. Thus, when the
manufacture of a particular kind of merchandise
is discontinued, there may be impossibility of
performance.
* This RULE has an XPN in what is known in
GERMAN LAW as DELIMITED GENERIC
OBLIGATIONS.
* DELIMITED GENERIC OBLIGATIONS
when there is a limitation of the generic object
to a particular existing mass or a particular
group of things, the obli is extinguished by the
loss of the particular mass or group of limited
quantity from which the prestation has to be
taken or by the impossibility of getting from it
the things for the prestation
ART. 1264
EFFECT OF PARTIAL LOSS OF A SPECIFIC
THING
- There is a PARTIAL LOSS when only a
portion of the thing is lost or destroyed or when
it suffers depreciation or deterioration.
- PARTIAL LOSS is the equivalent of difficulty to 2 or more persons who do not have the same
of performance in obligations to do. interest.
- COURT will decide whether the partial loss is
such as to be equivalent to a complete or total
WHEN PRESUMPTION NOT APPLICABLE
loss.
- In case of natural calamities, the presumption
- the rule given in this article is based in the
of fault does not apply.
ASSUMPTION that the PARTIAL LOSS is not
imputable to the fault or negligence of the debtor - lack of fault on the part of the debtors more
BUT to fortuitous events or circumstances likely. So it is unjust to presume negligence on
beyond his control. his part.
- Ordinarily, such partial loss does not
extinguish obligation. The thing should be
delivered to the creditor in its impaired
condition without any liability for damages on
the part of the debtor.
- if portion that is lost is of such an extent or
nature that the obli would not have been
constituted without it, then obli is extinguished.
- the intention of the parties is the
CONTROLLING FACTOR IN THE
SOLUTION of each case of partial loss.

ART. 1265
PRESUMPTION OF FAULT IN CASE OF
LOSS OF THING IN POSSESSION OF
DEBTOR
- The burden of explaining the loss of a thing in
the possession of the debtor rests upon the latter.
- presumption of fault whenever the thing to be
delivered is lost in the possession of the debtor.
- presumption is reasonable because the debtor
who has the custody and care of the thing can
easily explain the circumstances of the loss.
- creditor has no duty to show that the debtor
was at fault.
- under the 3rd par. of 1165, the obligor who is
not at fault is still liable in case he is guilty of
delay or has promised to deliver the same thing