Chapter 2 Nature and Effect of Obligations

ARTICLE 1163 . Every person obliged to give something is also obliged to take care of
it with the proper diligence of a good father of a family , unless the law or the sti pulati on
of the parti es requires another standard of care.

Meaning of Specific or determinate thing.

- Parti cularly designated or physically segregated

- If for example meron serial number yung mga bagay or may identification

Example:

1. The Watch I am wearing.

2. My dog named “Terror”
3. Red Toyota car with Plate No. AAV 344

Meaning of Generic or Indeterminate thing

- A class which cannot be pointed out particularly
- If hindi mo mapoint out alin dun sa mga bagay na yun ang tinutukoy

Example:

1. A police dog.
2. A cavan of rice.

Specific thing and generic thing distinguished

1. A determinate thing is identified by its individuality. The debtor cannot substitute it with
another although the latter is of the same kind and quality without the consent of the creditor.
(Art. 1244)
-kunwari may kinuha ka sakin like rolex na relo na worth (100k) tas yung ibblik ko lng is yung tig
100php (di pwede yun) pero kung may consent sa creditor pwede.

2. A generic thing is identified only by its specie. The debtor can give anything of the same class as it
is of the same kind.
Duties of debtor in obligation to give a determinate thing.
They are:

(1) To preserve or take care of the thing due;

(2) To deliver the fruits of the thing (see Art. 1164.); (fruits of the thing – Natural/industrial and civil
fruits.)

- Example: deliver vegetables (for natural)

(3) To deliver its accessions and accessories (see Art. 1166.);

-Example for Accession – delivery of rents of a building

-Example for Accessory – key of a house

(4) To deliver the thing itself (see Arts. 1163, 1233, 1244; as to kinds of delivery, Arts. 1497 to 1501.);

(5) To answer for damages in case of non-fulfillment or breach. (see Art. 1170.)

Obligation to take care of the thing due.

1. Diligence of a good father - In obligations to give (real obligations), the obligor has the incidental
duty to take care of the thing due with the diligence of a good father of a family pending
delivery. The phrase has been equated with ordinary care or that diligence which an average (a
reasonably prudent) person exercises over his own property.
- Kung paano mo alagaan ang sariling mong pagmamay-ari
2. Another standard of care – law provides a standard of care, said law must prevail. (Kung ano
yung standard na dapat alagaan ang isang bagay dapat yun ang sundin)
- A. In obligations to give (real obligations), the obligor has the incidental duty to take care of
the thing due with the diligence of a good father of a family pending delivery. The phrase
has been equated with ordinary care or that diligence which an average (a reasonably
prudent) person exercises over his own property. (Ang obligasyon ng isang driver/carrier na
ihatid ng safe ang pasahero ay isa sa mga standard care.)
- B. Banks are duty bound to treat the deposit accounts of their depositors with the highest
degree of care where the fiduciary nature of their relationship with their depositors is
concerned.
- C. While parties may agree upon diligence which is more or less than that of a good father of
a family, it is contrary to public policy (see Art. 1306.) to stipulate for absolute exemption
from liability for any fault or negligence. Thus, a stipulation exempting a carrier from liability
for gross negligence is against public policy. (Ang requirement na exempted ang carrier na
maging liable pag naka commit sya ng gross negligence ay against sa public policy.)
 -
3. Factors to be considered. - The diligence required depends upon the nature of the obligation
and corresponds with the circumstances of the person, of the time, and of the place. (Art. 1173.)
It is not necessarily the standard of care one always uses in the protection of his own property.
As a general rule, the debtor is not liable if his failure to preserve the thing is not due to his fault
or negligence but to fortuitous events or force majeure.
Example:
Sumangayon ka na ihahatid mo ang aso kay juan sa susunod na sabado dahil binayaran nya ito.
Ikaw ay karagdagang duty na alagaan ang aso, like pakainin at patulugin sa safe na place. If
napabayaan mo ang aso, liable ka kay Juan para sa “damages” dahil di mo naihatid ang aso sa
tamang condition.

Ang accessory obligation/ karagdagang obligasyon mo na alagaan ang aso ay di na kailangan

banggitin sa contrata.

4. Reason for debtor’s obligation. — The debtor must exercise diligence to insure that the thing to
be delivered would subsist in the same condition as it was when the obligation was contracted.
Without the accessory duty to take care of the thing, the debtor would be able to afford being
negligent and he would not be liable even if the property is lost or destroyed, thus rendering
illusory the obligation to give. (8 Manresa 35-37.) (Kung ano yung napagkasunduan nyong
condition ng order dapat yun ang mabibigay.)
- Kung wala kang karagdagang obligasyon sa isang bagay, kahit na maging pabaya ka/mawala
ang bagay nay un di ka magiging liable duon. Kung pinahawak lang sayo ang ice cream pero
unti unti itong natutunaw, kung wala ka naming ibang obligasyon na lumipat sa isang lugar
na malamig, kahit na matunaw ang ice cream di ka magiging liable sa pagka tunaw nito.

Duties of debtor in obligation to deliver a generic thing.

They are:

1. To deliver a thing which is of the quality intended by the parties taking into consideration the
purpose of the obligation and other circumstances (see Art. 1246.); and
2. To be liable for damages in case of fraud, negligence, or delay, in the performance of his
obligation, or contravention of the tenor thereof. (see Art. 1170.)

ART. 1164. The creditor has a right to the fruits of the thing from the time the obligation to deliver it
arises. However, he shall acquire no real right over it until the same has been delivered to him. (1095)

- If the obligation has already been delivered to the debtor/ has already been fulfilled by the
debtor. The creditor doesn’t have any right to “it” anymore.

EXAMPLE: Anne sold her dog to Janine for 15,000 pesos and while in the possession of Anne, the dog
gave birth to a puppy in which Janine is the one entitled to the puppy if Janine has already paid the
amount of 15, 000 pesos to Anne.
Different kinds of fruits:
1) Natural Fruits – are the spontaneous products of the soil, and the young and other products of
animals, e.g., grass; all trees and plants on lands produced without the intervention of human
labor.
2) Industrial Fruits – are those produced by lands of any kind through cultivation or labor, e.g.,
sugar cane; vegetables; rice; and all products of lands brought by reason of human labor.
3) Civil fruits- are those derived by virtue of a juridical relation, e.g., rents of buildings, price of
leases of lands and other property and the amount of perpetual or life annuities or other similar
income.

Right of creditor to the fruits.

- Ownership and other real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of certain contracts, by
tradition.

When obligation to deliver arises.

1. Generally, the obligation to deliver the thing due and, consequently the fruits thereof, if any,
arises from the time of the perfection of the contract. Perfection in this case refers to the birth
of the contract or to the meeting of the minds between the parties.
2. If the obligation is subject to a suspensive condition or period (Arts. 1179, 1189, 1193.), it arises
upon fulfillment of the condition or arrival of the period. However, the parties may make a
stipulation to the contrary as regards the right of the creditor to the fruits of the thing.
3. In a contract of sale, the obligation arises from the perfection of the contract even if the
obligation is subject to a suspensive condition or a suspensive period where the price has been
paid.
4. In obligations to give arising from law, quasi-contracts, delicts, and quasi-delicts, the time of
performance is determined by the specific provisions of law applicable..

Personal Right and real right distinguished.

PERSONAL RIGHT (jus in personam or jus ad rem) is the right or power of a person to demand from
another — to give, to do, or not to do. A personal right is, therefore, binding or enforceable only against
a particular person while a real right is directed against the whole world.

EXAMPLE:
X is the owner of a parcel of land under a torrens title registered in his name in the Registry of
Property. His ownership is a real right directed against everybody. There is no definite passive subject.
If the land is claimed by Y who takes possession, X has a personal right to recover from Y, as a definite
passive subject, the property.
If the same land is mortgaged by X to Z, the mortgage, if duly registered, is binding against third persons.
A purchaser buys the land subject to the mortgage which is a real right.

REAL RIGHT (jus in re) is a power over a specific thing (like the right of ownership or possession) and is
binding on the whole world.
Ownership acquired by delivery.
Ownership and other real rights over property are acquired and transmitted by law, by donation, by
testate and intestate succession, and in consequence of certain contracts by tradition (Art. 712.) or
delivery. Delivery in sale may be actual or real, constructive or legal, or in any other manner signifying an
agreement that the possession of the thing sold is transferred from the vendor to the vendee.

The meaning of the phrase “he shall acquire no real right over it until the same has been delivered to
him,” is that the creditor does not become the owner until the specific thing has been delivered to him.
Hence, when there has been no delivery yet, the proper action of the creditor is not one for recovery of
possession and ownership but one for specific performance or rescission of the obligation.

- Mapapasayo lang ang right ng isang bagay kung ito ay binigay na sayo.

*NOTE

Contracts only constitute titles or rights to the transfer or acquisition of ownership, while delivery or
tradition is the mode of accomplishing the same. Thus, sale by itself does not transfer or effect
ownership. The most that a sale does is to create the obligation to transfer ownership. It is delivery, as a
consequence of sale, that actually transfers ownership.

ART. 1165. When what is to be delivered is a determinate thing, the creditor, in addition to the
right granted him by Article 1170, may compel the debtor to make the delivery.

If the thing is indeterminate or generic, he may ask that the obligation be complied with at the expense
of the debtor.

If the obligor delays, or has promised to deliver the same thing to two or more persons who do not have
the same interest, he shall be responsible for any fortuitous event until he has effected the delivery.
(1096)

Remedies of creditor in real obligation.

(1) In a specific real obligation (obligation to deliver a determinate thing), the creditor may exercise
the following remedies or rights in case the debtor fails to comply with his obligation:
a. (a) demand specific performance or fulfillment (if it is still possible) of the obligation
with a right to indemnity for damages;
o Pwede ka magdemand sa debtor ng specific action/fulfillment.
EXAMPLE: Sa shopee pwede ka magdemand ng return/exchange sa item na sir
among natanggap.
b. Demand recission or cancellation (in certain cases) of the obligation also with a right to
recover damages.
o Pwede ka magdemand ng recission/cancellation of the obligation.
EXAMPLE: Pagoorder ka ng GRAB, pwede mo itong icancel kung mahigit ilang hours
ka ng nagaantay.
c. Demand the payment of damages only where it is the only feasible remedy.
o Pwede ka magdemand ng bayad
 EXAMPLE: Sa shopee order mo na nasira/di naingatan ng pagdeliver, pwede kang
magparefund.

In an obligation to deliver a determinate thing, the very thing itself must be delivered.

(2) A generic real obligation (obligation to deliver a generic thing), on the other hand, can be
performed by a third person since the object is expressed only according to its family or genus.
It is thus not necessary for the creditor to compel the debtor to make the delivery although he
may ask for performance of the obligation. In any case, the creditor has a right to recover
damages under Article 1170 in case of breach of the obligation.

Where debtor delays or has promised delivery to separate creditors.

Paragraph 3 gives two instances when a fortuitous event does not exempt the debtor from responsibility.
It likewise refers to a determinate thing. An indeterminate thing cannot be the object of destruction by a
fortuitous event because genus nunquam perit (genus never perishes).

ART. 1166. The obligation to give a determinate thing includes that of delivering all its accessions
and accessories, even though they may not have been mentioned. (1097a)

Meaning of accessions and accessories.

(1) Accessions are the fruits of, or additions to, or improvements upon, a thing (the principal), e.g.,
house or trees on a land; rents of a building; airconditioner in a car; profits or dividends accruing
from shares of stocks; etc.
(2) Accessories are things joined to, or included with, the principal thing for the latter’s
embellishment, better use, or completion, e.g., key of a house; frame of a picture; bracelet of a
watch; machinery in a factory; bow of a violin.

*Note that while accessions are not necessary to the principal thing, the accessory and the principal
thing must go together but both accessions and accessories can exist only in relation to the
principal.

Right of creditor to accessions and accessories.

The general rule is that all accessions and accessories are considered included in the obligation to deliver
a determinate thing although they may not have been mentioned. This rule is based on the principle of
law that the accessory follows the principal. In order that they will be excluded, there must be a
stipulation to that effect.

- If there is an agreement that accessories and accessions are excluded, that is the only time it
will not be included.
EXAMPLE: Nagrent ka ng building, kasama na sa renta ng building ang lease ng lupa.

Accession as a right.
It may be defined as the right pertaining to the owner of a thing over its products
and whatever is incorporated or attached thereto, either naturally or artificially. Accession includes,
therefore, the right to the fruits and the right to the accessory
ART. 1167. If a person obliged to do something fails to do it, the same shall be executed at his
cost. This same rule shall be observed if he does it in contravention of the tenor of the obligation.
Furthermore, it may be decreed that what has been poorly done be undone. (1098)

Situations contemplated in Article 1167.

Article 1167 refers to an obligation to do, i.e., to perform an act or render a service. It contemplates
three situations: (Article 1167 ay nagsasaad sa obligation na magrender ng serbisyo if di nagampanan ng
taong may obligasyon ang kanyang obligasyon.)

1. The debtor fails to perform an obligation to do; or (Di nya natupad ang obligasyon nya)
2. The debtor performs an obligation to do but contrary to the terms thereof; or (Nagawa nya ang
obligasyon nya pero labag sa napagkasunduan)
3. The debtor performs an obligation to do but in a poor manner. (Nagawa nya ang obligasyon nya
pero hindi maganda.)

Remedies of creditor in positive personal obligation.

(1) If the debtor fails to comply with his obligation to do, the creditor has the right: (If di nacomply
ni debtor ang kanyang obligasyon, ang creditor ay pwedeng ang creditor ang gumawa pero
babayaran sya ng debtor OR si creditor ay may karapatang mabawi ang damages na nagging
resulta ng hindi pagcomply ni debtor)
a. to have the obligation performed by himself, or by another unless personal
considerations are involved, at the debtor’s expense;
b. and to recover damages.
(2) In case the obligation is done in contravention of the terms of the same or is poorly done, it may
be ordered (by the court) that it be undone if it is still possible to undo what was done.
- Pwedeng ma undo kung ang di lang nagawa ng maayos ni debtor ang kanyang obligasyon.

Performance by a third person.

For example:

Si A nagpa repair ng laptop kay B, pero di nagawa ni B na ayusin ang laptop. Sinauli nya ito sa iyo
na sira parin at may gasgas. Pinaayos mo kay C ang laptop, naayos ni C at napalitan ang case ng walang
gasgas. Nakabayad ka ng 10,000 pesos.

Si B ay liable ng magbayad ng 10,000 kasi may obligasyon sya na ayusin ang laptop mo pero
hindi nya nagawa. May gasgas pa ng isauli nya ang laptop. Kung ang obligason/contract nyo ay ayusin
ang laptop liable si B under Article 1170.

ART. 1168. When the obligation consists in not doing, and the obligor does what has been
forbidden him, it shall also be undone at his expense. (1099a)

Remedies of creditor in negative personal obligation.

In an obligation not to do, the duty of the obligor is to abstain from an act. Here, there is no specific
performance. The very obligation is fulfilled in not doing what is forbidden. Hence, in this kind of
obligation the debtor cannot be guilty of delay.
EXAMPLE:

Nagbenta si A ng lupa kay B. Napagkasunduan na di pwedeng magtayo ng bakod si A sa kanyang lupa at

sa lupang nabenta kay B. If nagbakod si A, violation na yun sa agreement, pwedeng ipatanggal ni B ang
bakod at pagbayarin si A.

ART. 1169. Those obliged to deliver or to do something incur in delay from the time the obligee
judicially or extra-judicially demands from them the fulfillment of their obligation.

However, the demand by the creditor shall not be necessary in order that delay may exist:

(1) When the obligation or the law expressly so declares; or

(2) When from the nature and the circumstances of the obligation it appears that the designation of the
time 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

(3) When demand would be useless, as when the obligor has rendered it beyond his power to perform.

In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to
comply in a proper manner with what is incumbent upon him. From the moment one of the parties
fulfills his obligation, delay by the other be gins. (1100a)

Meaning of delay.
The word delay, as used in the law, is not to be understood according to its meaning in common
parlance. A distinction, therefore, should be made between ordinary delay and legal delay (default or
mora) in the performance of an obligation.

1. Ordinary delay is merely the failure to perform an obligation on time.

2. Legal delay or default or mora is the failure to perform an obligation on time which failure,
constitutes a breach of the obligation.

Kinds of delay (more)

(1) Mora solvendi or the delay on the part of the debtor to fulfill his obligation (to give or to do) by
reason of a cause imputable to him;
Requisites: (three conditions that must be present before mora solvendi can exist. These
presupposes that the obligations is already due or demandable or liquidated)
a. failure of the debtor to perform his (positive) obligation on the date agreed upon
b. demand (not mere reminder or notice) made by the creditor upon the debtor to fulfill,
perform, or comply with his obligation which demand, may be either judicial (when a
complaint is fi led in court) or extra-judicial (when made outside of court, orally or in
writing); and
c. failure of the debtor to comply with such demand.
(2) Mora accipiendi or the delay on the part of the creditor without justifiable reason to accept the
performance of the obligation; and

(3) Compensatio morae or the delay of the obligors in reciprocal obligations (like in sale), i.e., the delay
of the obligor cancels the delay of the obligee, and vice versa.

Effects of delay.
(1) Mora solvendi. — The following are the effects:
a. The debtor is guilty of breach of the obligation;
b. He is liable for interest in case of obligations to pay money (Art. 2209.) or damages in
other obligations. (Art. 1170.) In the absence of extrajudicial demand, the interest shall
commence from the filing of the complaint; and
c. He is liable even for a fortuitous event when the obligation is to deliver a determinate
thing. (Arts. 1165, 1170.) However, if the debtor can prove that the loss would have
resulted just the same even if he had not been in default, the court may equitably
mitigate the damages.
In an obligation to deliver a generic thing, the debtor is not relieved from liability for loss
due to a fortuitous event. He can still be compelled to deliver a thing of the same kind
(see Art. 1263.) or held liable for damages.
(2) Mora accipiendi. — The effects are as follows:
(a) The creditor is guilty of breach of obligation;
(b) He is liable for damages suffered, if any, by the debtor;
(c) He bears the risk of loss of the thing due (see Art. 1162.);
(d) Where the obligation is to pay money, the debtor is not liable for interest from the time of
the creditor’s delay; and
(e) The debtor may release himself from the obligation by the consignation of the thing or sum
due. (see Art. 1256.)
(3) Compensatio morae. — The delay of the obligor cancels out the effects of the delay of the
obligee and vice versa. The net result is that there is no actionable default on the part of both
parties, such that as if neither one is guilty of delay. If the delay of one party is followed by that
of the other, the liability of the first infractor shall be equitably tempered or balanced by the
courts. If it cannot be determined which of the parties is guilty of delay, the contract shall be
deemed extinguished and each shall bear his own damages.

When demand not necessary to put debtor in delay.

- delay begins only from the moment the creditor demands, judicially or extra-judicially, the
fulfillment of the obligation
- Without such demand, the effect of default will not arise unless any of the exceptions
mentioned below is clearly proved.

1. When the obligation so provides.

Example: When the fixing period of something is not enough.
2. When the law so provides.
3. When time is of the essence.
4. When demand would be useless.
 5. When there is performance by a party in reciprocal obligations.

ART. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor thereof, are liable for damages.
(1101)

Grounds for liability.

1. Fraud (deceit or dolo) – deliberate or intentional evasion of the normal fulfi llment of an
obligation
a. As a ground for damages, it implies some kind of malice or dishonesty and it cannot
cover cases of mistake and errors of judgment made in good faith. It is synonymous to
bad faith in that it involves a design to mislead or deceive another. (To mislead the other
party)
b. Incidental fraud (dolo incidente) committed in the performance of an obligation already
existing because of contract. Causal fraud (dolo causante) a deception used by one
party prior to or simultaneous with the contract, in order to secure the consent of the
other.
c. Civil fraud the fraud is employed for the purpose of evading the normal fulfillment of an
obligation and its existence merely results in breach thereof giving rise to a right by the
innocent party to recover damages. (To evade an obligation)
2. Negligence (Fault or culpa) - It is any voluntary act or omission, there being no malice, which
prevents the normal fulfillment of an obligation.
3. Delay (mora) – delay in the performance of the obligation must be either malicious or negligent.
4. Contravention of the terms of the obligation - violation of the terms and conditions. The
contravention must not be due to a fortuitous even or force majeure.

Recovery of damages for breach of contract or obligation.

Breach of contract – failure to comply with the terms of a contract without justifiable excuse. The
breach may be willful or done unintentionally.

1. Measure of recoverable damages – the one who suffered by breach of a contract shall receive
compensation.
2. Contractual interests of obligee or promisee, remedy serves to preserve – the injured party can
recover which may have been lost or suffered. Interests of the promisee includes:
a. Expectation interest – represents the difference between the value to the promisee of a
promise, which has been performed satisfactorily, and the value to the promisee of a
promise, which has been performed defectively or incompletely.
b. Reliance interest - which is his interest in being reimbursed for loss caused by reliance
on the contract by being put in as good a position as he would have been had the
contract not been made.
c. Restitution interest - which is his interest in having restored to him any benefi t that he
has conferred on the other party.
3. Excuse from ensuing liability
4. Duty of obligee to minimize his damages
Damages recoverable where obligation to pay money.
(1) Penalty interest for delay or non-performance
“If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the
indemnity for damages, there being no stipulation to the contrary shall be the payment of the
interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent
per annum. (1108)”
(2) Rate of the penalty interest.
“The rate of the penalty interest payable shall be that agreed upon. In the absence of stipulation
of a particular rate of penalty interest, then the additional interest shall be at a rate equal to the
regular monetary interest; and if no regular interest had been agreed upon, then the legal
interest shall be paid.”

Fraud and negligence distinguished.

1. In fraud, there is deliberate intention to cause damage or injury, while in negligence, there is no
such intention;
2. Waiver of the liability for future fraud is void (Art. 1171.), while such waiver may, in a certain
sense, be allowed in negligence;
3. Fraud must be clearly proved, mere preponderance of evidence not being sufficient, while
negligence is presumed from the breach of a contractual obligation; and
4. Lastly, liability for fraud cannot be mitigated by the courts, while liability for negligence may be
reduced according to the circumstances.

When negligence equivalent to fraud.

- Where the negligence shows bad faith or is so gross that it amounts to malice or wanton
attitude on the part of the defendant, the rules on fraud shall apply.

Gross Negligence - negligence characterized by want or absence of or failure to exercise even

slight care or diligence, or the entire absence of care, acting or omitting to act on a situation
where there is a duty to act, not inadvertently but willfully and intentionally.

ART. 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an
action for future fraud is void. (1102a)

Responsibility arising from fraud demandable.

- Responsibility arising from fraud can be demanded with respect to all kinds of obligation
and unlike in the case of responsibility arising from negligence (Art. 1172.), the court is not
given the power to mitigate or reduce the damages to be awarded. This is so because fraud
is deemed serious and evil that its employment to avoid the fulfillment of one’s obligation
should be discourage

Waiver of action for future fraud void

- A waiver of an action for future fraud is void (no effect, as if there is no waiver) as being
against the law and public policy.
Waiver of action for past fraud valid.
- A past fraud can be the subject of a valid waiver because the waiver can be considered as an
act of generosity and magnanimity on the part of the party who is the victim of the fraud

ART. 1172. Responsibility arising from negligence in the performance of every kind of obligation is
also demandable, but such liability may be regulated by the courts, according to the circumstances.
(1103)

Responsibility arising from negligence demandable.

1. The debtor is also liable for damages resulting from his negligence or culpa. The damages
inflicted by being negligent is being measured because negligence is not as serious as fraud and
there is no bad faith or deliberate intention to cause injury or damage. The courts may increase
the damage.
2. When both parties to a transaction are mutually negligent in the performance of their
obligations, the fault of one cancels the negligence of the other.

Validity of waiver of action arising from negligence.

1. An action for future negligence may be renounced except if yung obligasyon mo ay dapat extra
careful or kung yung obligasyon mo ay nagsasaad duon na kailangang maging extra careful ka,
for e.g. yung mga carriers (Jeepney/taxi/bus/airplane)
2. Where negligence is gross or shows bad faith, equivalent na sya ng fraud. So no waiver for this.

Kinds of negligence according to source of obligation.

Culpa or negligence

1. Contractual negligence (culpa contractual) – is not a source of obligation. Makes the debtor
liable for damages in view of his negligence in the fulfillment of a pre-existing obligation
resulting in its breach or non-fulfillment.
2. Civil negligence (culpa aquiliana) – source of an obligation between parties not formally bound
before by any pre-existing contract. It is also called quasi-delict.
3. Criminal negligence (culpa criminal) – negligence resulting in the commission of a crime.

Importance of distinction between culpa aquiliana and contractual culpa.

Liability arises from culpa aquiliana – an employer may excuse himself and prove that he exercised “all
the diligence of a good father of a family to prevent the damage.”

If liability arises from culpa contractual – can’t excuse himself and use the defense stated above though
they may lessen the damages.

Effect of negligence on the part of the injured party.

In other words, to be entitled to damages, the law does not require that the negligence of the defendant
should be the sole cause of the damage.

Presumption of contractual negligence.

1. In an action for quasi-delict or tort, the negligence or fault should be clearly established because
it is the basis of the action, whereas in a breach of contract, the action can be pursued by
 proving the existence of the contract, and the fact that the obligor failed to comply with the
same.
2. When the action is based on a contract of carriage, and the carrier failed to transport the
passenger, fault or negligence is presumed. It is the obligation of the carrier to transport its
passengers or goods safely.
a. The driver’s negligence is the carrier’s. The moment a passenger dies or is injured the
common carrier is presumed to have been at fault or to have acted negligently and can
only be voided by evidence that showed he exercised diligence.
b. The driver is not solidarily liable with the carrier. The carrier is responsible to the
passenger.

ART. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons,
of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171
and 2201, paragraph 2, shall apply.

If the law or contract does not state the diligence which is to be observed in the performance, that
which is expected of a good father of a family shall be required. (1104a)

1. Fault – omission of diligence which is required by the nature of the obligation

2. Negligence is conduct that creates undue risk or harm to another. It is failure to observe that
degree of care.

Test for determining whether a person is negligent.

1. Reasonable care and caution expected of an ordinary prudent person.
2. No hard and fast rule for measuring degree of care.