Chapter 3

EFFECTS OF THE CONTRACT WHEN

, THE THING SOLD HAS BEEN LOST

m i493. If at the time the contract of eat.

is perfected, the thing which is the object of the
contract has been entirely lost, the contract shall
be without any effect.
But If the thing should haveheen lost In part
only, the vendee may choose between withdraw-
ing from the contract and demanding the remain-
ing part, paying its price in proportion to the to-
tal sum agreed upon.

Effect of loss of thing at the time

of sale.

The loss or injury referred to in this article is one which

has taken place before or at the time the contract of sale is
perfected.It must be distinguished from the loss or injury
mentioned in Articles 1480 and 1504 which nccursaftcr the
contractis perfectedbut prior to the time of delivery.
(1) Thingentirelylost.- Where the thing is entirely lost
at the time of perfection,the contractis inexistentand void
. (Art. 1409[3], Civil Code.) becausethere is no object. (Art.
1318,par. 2, ibid.)
lost.«' If thesubject
(2) Thingonlypartially matterisonly
partiallylost,the vendeemay.electbetweenwithdrawing
from the contractand demandingthe remaining
M
paying its'pmporlmnate price. (Art. 1493, par 2)

EXAMPLE:

5 sold his car to B. Unknown to both of them, the car ha

been totally doctroyed befonethey agreed on the sale. In dag
case, there is no vahd contract of sale for lack of object. S, as
owner,bearsthe loss and B doesnot have to pay for the price
If the car is only partially destroyed, there still remain
of the object.However,sinceit is not of the duracter or in
the condition contemplated by the parties, the buyer may
withdraw from the contract or demand the delivery of the
car,paying its proportionateprice, i.e., the market price in its
damaged state.

When a thing considered lost.

A thing is lostwhen it perishesor goesout of commerce
or disappearsin such a way that its existenceis unknown or
it cannot be recovered. (Art. 1189[2].)
The word "perishes" is sufficiently inclusive as to
cover a case where there has been material deterioration or
complete changein the nature of the thing in such a manner
that it losesits former utility taking into consideration the
time the contract was entered into. (see 10 Mamesa 129.)

Where the parties purport a sale

0'. specific godds, and the goods without the
knowledge of the seller have perished in part or
have wholly or In a material part so deteriorated
in quality as to be substantially changed in char-
acter, the buyer may at his option treat the sale:

(1) As avoided; or
(2) As valid in all of the existing goods or in
so much thereof as have not deteriorated, and as
binding the buyer to pay the agreed price for tho
 goods In which the ownership will pass, If the
sale was divisible.

Effect of loss in case of speciiic goods.

Article 1493 applies to a sale of specific thing. Article
1494,on the other hand, applies only to sales of goods, that
is, the objectof the sale consists of a mass of specific goods"
which means"goods identified and agreedupon at the time
a contract of sale is made. (Art. 1636.)
' Both articles have
actually the same essence providing
two (2) alternative remedies to the buyer in case of deterio-
ration or partial loss of the object prior to the sale.
(1) Sale divisible. The second option is available
only if the sale is divisible. (Art. 1494, par. 2.) A contract is
a divisible when its consideratiori is made up of several parts.
(seeArt. 1420.)When the mnsideration is entire and single,
the contract is indivisible.

(2) Sale indivisible. Suppose the sale is not divisible,

what price is the buyer to pay for the remaining goods if he
elects to continue with the sale? It is believed that the buyer
, should be made to pay only the proportionate price of the -
remaining goods' as provided for in paragraph 2 of the _
precedingarticle.If the saleis indivisible, the objectthereof
may be consideredas a speciiic thing.

EXAMPLE:

Suppose the subject matter sold was 100 cavans of rice

in the warehouseof S at P1,000.00 per cavan or for a total
price of P10000000. If 60 cavans of rice were lost, 8 may,
at his Option,withdraw from the contract without the ob-
ligation to pay for the rice; og demand the delivery of the
40 cavans, but binding him to pay the agreed
' price thereof
which is P4000000.
If the contract is indivisible, that is, the'IOO cavans of rice
were sold for P10000000, Exed without consideration of the
numberof cavans, B should be made to pay only the propor-
'
tionate price of 40 cavans which is also P40,000.00.