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Loss of Thing Due

I. Before perfection

Res Perit Domino

o Seller still owns the thing because there is no delivery or transfer of


ownership yet; hence, seller bears the risk of loss.

II. At perfection

Res Perit Domino

o Art. 1493. If the thing due is lost wholly or partially:

i. Contract is without effect (withdrawal or rescission)


ii. Demand specific performance and pay remaining part (if divisible)

o Seller cannot anymore comply with obligation so buyer cannot


anymore be compelled.

III. After Perfection (Before Delivery)

Res Perit Domino

o Art. 1504 – Par. 3. Where actual delivery delayed, the party in fault is at risk (only
covers goods)

o Art. 1263. Loss of generic things, seller’s obligation is not extinguished

o Art. 1480. Any injury to or benefit from the


thing sold, after the contract has been perfected, from the moment of
the perfection of the contract to the time of delivery, shall be governed
by Articles 1163 to 1165, and 1262.

This rule shall apply to the sale of fungible things, made independently
and for a single price, or without consideration of their weight,
number, or measure.

Should fungible things be sold for a price fixed according to weight,


number, or measure, the risk shall not be imputed to the vendee until
they have been weighed, counted, or measured and delivered, unless
the latter has incurred in delay.

o Art. 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 stipulation of the parties requires another
standard of care.

o 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.

Exception to Res Perit Domino

o Art. 1262. Seller’s obligation is extinguished if:

 Without fault by seller (obligor/ debtor)


 He has not incurred any delay

Buyer’s (creditor/ obligee) obligation to pay is not extinguish because


there was really a cause or consideration at the time the contract was
perfected, the thing purchased still existed.

o Art. 1583. Unless otherwise agreed, the buyer of goods


is not bound to accept delivery thereof by installments.

Where there is a contract of sale of goods to be delivered by stated


installments, which are to be separately paid for, and the seller makes
defective deliveries in respect of one or more installments, or the buyer
neglects or refuses without just cause to take delivery of or pay for one
more installments, it depends in each case on the terms of the contract
and the circumstances of the case, whether the breach of contract is so
material as to justify the injured party in refusing to proceed further
and suing for damages for breach of the entire contract, or whether the
breach is severable, giving rise to a claim for compensation but not to
a right to treat the whole contract as broken.

o Art. 1189. When delivery is suspended because of conditions:

 Extinguished if no fault of seller (debtor)


 If seller’s fault, he must pay damages

o Art. 1269. The obligation having been extinguished by


the loss of the thing, the creditor shall have all the rights of action
which the debtor may have against third persons by reason of the loss.

IV. At Consummation (After Delivery)

Res Perit Domino

a. Art. 1504 – Par. 1.


i. When delivered to buyer or bailee of the buyer, even if ownership
is reserved by seller merely to secure performance by the buyer,
the buyer is at risk.