III. SUBJECT MATTER OF SALE (Arts.
1459 condition may be the object of the contract of
to 1465);
Art. 1459. The thing must be licit and the vendor
must have a right to transfer the ownership
thereof at the time it is delivered. (n)
Art. 1460. A thing is determinate when it is
particularly designated or physical segregated
from all other of the same class.
The requisite that a thing be determinate is
satisfied if at the time the contract is entered
into, the thing is capable of being made
determinate without the necessity of a new or
further agreement between the parties. (n)
Art. 1461. Things having a potential existence
may be the object of the contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition
that the thing will come into existence.
The sale of a vain hope or expectancy is void.
(n)
Art. 1462. The goods which form the subject of
a contract of sale may be either existing goods,
owned or possessed by the seller, or goods to
be manufactured, raised, or acquired by the
seller after the perfection of the contract of sale,
in this Title called "future goods."
There may be a contract of sale of goods, whose
acquisition by the seller depends upon a
contingency which may or may not happen. (n)
Art. 1463. The sole owner of a thing may sell an
undivided interest therein. (n)
Art. 1464. In the case of fungible goods, there
may be a sale of an undivided share of a specific
mass, though the seller purports to sell and the
buyer to buy a definite number, weight or
measure of the goods in the mass, and though
the number, weight or measure of the goods in
the mass is undetermined. By such a sale the
buyer becomes owner in common of such a
share of the mass as the number, weight or
measure bought bears to the number, weight or
measure of the mass. If the mass contains less
than the number, weight or measure bought,
the buyer becomes the owner of the whole mass
and the seller is bound to make good the
deficiency from goods of the same kind and
quality, unless a contrary intent appears. (n)
Art. 1465. Things subject to a resolutory
sale.
A. MUST BE EXISTING, FUTURE OR
CONTIGENT (Arts. 1347, 1348 and 1462)
Art. 1347. All things which are not outside the
commerce of men, including future things, may
be the object of a contract. All rights which are
not intransmissible may also be the object of
contracts.
No contract may be entered into upon future
inheritance except in cases expressly authorized
by law.
All services which are not contrary to law,
morals, good customs, public order or public
policy may likewise be the object of a contract.
(1271a)
Art. 1348. Impossible things or services cannot
be the object of contracts.
Art. 1462. The goods which form the subject of
a contract of sale may be either existing goods,
owned or possessed by the seller, or goods to
be manufactured, raised, or acquired by the
seller after the perfection of the contract of sale,
in this Title called "future goods."
There may be a contract of sale of goods, whose
acquisition by the seller depends upon a
contingency which may or may not happen.
1. The thing must be capable of
existence;
a. Emptio Rei Speratae –
(1461 and 1347);
is a contract of sale of future things which must
be determinate or specific; it won't apply to
things that are generic because generic things
aren't lost under legal fiction. Such a thing
becomes enforceable when the thing in question
appears. If it doesn't appear, the contract either
is extinguished when the time limit expires or it
becomes obvious the event won't happen. The
uncertainty is with regard to the quality and
quantity of the thing.
Art. 1461. Things having a potential existence
may be the object of the contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition
that the thing will come into existence.
The sale of a vain hope or expectancy is void.

Art. 1347. All things which are not outside the
commerce of men, including future things, may
be the object of a contract. All rights which are
not intransmissible may also be the object of
contracts.
No contract may be entered into upon future
inheritance except in cases expressly authorized
by law.
All services which are not contrary to law,
morals, good customs, public order or public
policy may likewise be the object of a contract.
b. Emptio Spei (1461);
c.
is the sale of a mere hope (like buying a lottery
ticket.) The sale is effective even if the thing
doesn't appear unless it's a vain hope. The
object is a present thing which is the hope or
expectancy and the uncertainty is with regard
to its existence.
In case of doubt, emptio rei speratae is
presumed.
Art. 1461. Things having a potential existence
may be the object of the contract of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition
that the thing will come into existence.
The sale of a vain hope or expectancy is void.
d. Subject to resolutory
condition (1465);
Art. 1465. Things subject to a resolutory
condition may be the object of the contract of
sale.
CASE: Quijada v. CA, GR. No. 126444,
December 4, 1988;
FACTS:
Plaintiffs-appellees (petitioners) are the children
of the late Trinidad Corvera Vda. de Quijada.
Trinidad was one of the heirs of the late Pedro
Corvera and inherited from the latter the two-
hectare parcel of land. Trinidad Quijada
together with her sisters Leonila Corvera Vda.
de Sequea and Paz Corvera Cabiltes and brother
Epapiadito Corvera executed a conditional deed
of donation of the two-hectare parcel of land wit
the condition being that the parcel of land shall
be used solely and exclusively as part of the
campus of the proposed provincial high school
in Talacogon but Trinidad remained in
possession of the parcel of land despite the
donation.
On July 29, 1962, Trinidad sold one (1) hectare
of the subject parcel of land to defendant-
appellant Regalado Mondejar. Subsequently,
Trinidad verbally sold the remaining one (1)
hectare to defendant-appellant (respondent)
Regalado Mondejar without the benefit of a
written deed of sale and evidenced solely by
receipts of payment.
In 1980, the heirs of Trinidad, who at that time
was already dead, filed a complaint for forcible
entry against defendant-appellant (respondent)
Regalado Mondejar, which complaint was
dismissed. The proposed provincial high school
having failed to materialize, the Sangguniang
Bayan of the municipality of Talacogon enacted
a resolution reverting the two (2) hectares of
land donated back to the donors.
ISSUE:
Whether or not the donated parcel of land will
revert back to the original owner for not
complying the resolutory condition of the
construction of the school.
HELD:
Yes. In this case, that resolutory condition is the
construction of the school. It has been ruled that
when a person donates land to another on the
condition that the latter would build upon the
land a school, the condition imposed is not a
condition precedent or a suspensive condition
but a resolutory one. Thus, at the time of the
sales made in 1962 towards 1968, the alleged
seller (Trinidad) could not have sold the lots
since she had earlier transferred ownership
thereof by virtue of the deed of donation. Only
then – when the non-fulfillment of the
resolutory condition was brought to the donor’s
knowledge – that ownership of the donated
property reverted to the donor as provided in
the automatic reversion clause of the deed of
donation.
In the doctrine of resolutory condition provided
under Article 1181, So long as the resolutory
condition subsists and is capable of fulfillment,
the donation remains effective and the donee
continues to be the owner subject only to the
rights of the donor or his successors-in-interest
under the deed of donation.
The donor may have an inchoate interest in the
donated property during the time that
ownership of the land has not reverted to her.
Such inchoate interest may be the subject of
contracts including a contract of sale. In this
case, however, what the donor sold was the
land itself which she no longer owns. It would
have been different if the donor-seller sold her
interests over the property under the deed of
donation which is subject to the possibility of
reversion of ownership arising from the non-
fulfillment of the resolutory condition.
2. Seller’s obligation to transfer
ownership at the time of delivery
(Arts. 1459, 1462, 1505, 1434 and
1462);
Art. 1459. The thing must be licit and the vendor
must have a right to transfer the ownership
thereof at the time it is delivered.
Art. 1462. The goods which form the subject of
a contract of sale may be either existing goods,
owned or possessed by the seller, or goods to
be manufactured, raised, or acquired by the
seller after the perfection of the contract of sale,
in this Title called "future goods."
There may be a contract of sale of goods, whose
acquisition by the seller depends upon a
contingency which may or may not happen.
Art. 1505. Subject to the provisions of this Title,
where goods are sold by a person who is not the
owner thereof, and who does not sell them
under authority or with the consent of the
owner, the buyer acquires no better title to the
goods than the seller had, unless the owner of
the goods is by his conduct precluded from
denying the seller's authority to sell.
Nothing in this Title, however, shall affect:
(1) The provisions of any factors' act,
recording laws, or any other provision of
law enabling the apparent owner of
goods to dispose of them as if he were
the true owner thereof;
(2) The validity of any contract of sale
under statutory power of sale or under
the order of a court of competent
jurisdiction;
(3) Purchases made in a merchant's
store, or in fairs, or markets, in
accordance with the Code of Commerce
and special laws.
Cahayag v. Commercial Credit Corporation,
G.R. No. 168078, January 13, 2016;
FACTS:
Petitioner Dulos Realty was the registered
owner of certain residential lots covered by
Transfer Certificate of Title (TCT) Nos. S-39767,
S-39775, S-28335, S-39778 and S-29776,
located at Airmen's Village Subdivision, Pulang
Lupa II, Las Pinas, Metro Manila. Dulos Realty
obtained a loan from respondent CCC in the
amount of P300,000. To secure the loan, the
realty executed a Real Estate Mortgage over the
subject properties in favor of respondent. The
mortgage was duly annotated on the certificates
of title.
Thereafter, CCC on various dates, entered into
contract to sell covering the subject properties
with petitioners. When Dulos Realty defaulted in
payment, CCC initiate an extra judicial
foreclosure proceeding and the auction sale was
held with CCC as the highest bidder. An Affidavit
of Consolidation in favor of respondent CCC was
annotated on the corresponding titles to the
properties. By virtue of the affidavit, the TCT’s
in the name of Dulos Realty were all cancelled
and new TCT’S in the name of CCC were issued
on the same day.
On 10 December 1983, after the consolidation
and cancellation of title, Dulos Realty entered in
to a Deed of Absolute Sale with petitioner
Baldoza over one of the subject properties. On
21 December 1983, respondent CCC, through a
Deed of Absolute Sale, sold to respondent Qua
the same subject properties. The sale was duly
annotated on the corresponding titles to the
properties and the TCT’s in the name of CCC
were accordingly cancelled and new TCTs were
issued in the name of respondent Qua.
Petitioners filed a Complaint against
respondents for the "Annulment of Sheriff's Sale
and Other Documents.
The Complaint alleged that petitioners were
owners of the properties in question by virtue of
Contracts of Sale individually executed in their
favor. Respondents failed to file an answer
within the reglementary period. Subsequently,
they were declared in default. The RTC ruled
that the foreclosure of the mortgage over the
subject lots, as well as the housing units, was
not valid. The CA accordingly reversed and set
aside the RTC Decision, dismissed the case for
lack of merit, and ordered petitioners to
surrender possession of the properties to
respondent Qua.
ISSUE:
Whether or not the contract of sale entered into
by Dulos Realty with petitioner Baldoza is valid.
RULING:
Yes the sale is valid. The Court rules out
ownership as a requirement for the perfection of
a contract of sale. For all that is required is a
meeting of the minds upon the object of the
contract and the price.
The fact that Dulos Realty was no longer the
owner of the real property at the time of the sale
led the CA to declare that the Contract of Sale
was null and void. On this premise, the appellate
court concluded that respondent Qua had a
better title to the property over petitioner
Baldoza. We find no error in the conclusion of
the CA that respondent Qua has a better right
to the property. The problem lies with its
reasoning. We therefore take a different route
to reach the same conclusion.
Undeniably, there is an established rule under
the law on sales that one cannot give what one
does not have (Nemo dat quod non habet). The
CA, however, confuses the application of this
rule with respect to time. It makes the nemo dat
quod non habet rule a requirement for the
perfection of a contract of sale, such that a
violation thereof goes into the validity of the
sale. But the Latin precept has been
jurisprudentially held to apply to a contract of
sale at its consummation stage, and not at the
perfection stage. Cavite Development Bank v.
Spouses Syrus Lim puts nemo dat quod non
habet in its proper place. Initially, the Court
rules out ownership as a requirement for the
perfection of a contract of sale. For all that is
required is a meeting of the minds upon the
object of the contract and the price. The case
then proceeds to give examples of the rule. It
cites Article 1434 of the Civil Code, which
provides that in case the seller does not own the
subject matter of the contract at the time of the
sale, but later acquires title to the thing sold,
ownership shall pass to the buyer. The Court
also refers to the rule as the rationale behind
Article 1462, which deals with sale of "future
goods." Case law also provides that the fact that
the seller is not the owner of the subject matter
of the sale at the time of perfection does not
make the sale void.
Consequently, it was not correct for the CA to
consider the contract of sale void. The CA
erroneously considered lack of ownership on the
part of the seller as having an effect on the
validity of the sale. The sale was very much
valid when the Deed of Absolute Sale between
the parties was executed on 10 December 1983,
even though title to the property had earlier
been consolidated in favor of respondent CCC as
early as 10 November 1983. The fact that Dulos
Realty was no longer the owner of the property
in question at the time of the sale did not affect
the validity of the contract. In this case, the
delivery coincided with the perfection of the
contract.
The Deed of Absolute Sale covering the real
property in favor of petitioner Baldoza was
executed on 10 December 1983. As already
mentioned, Dulos Realty was no longer the
owner of the property on that date. Accordingly,
it could not have validly transferred ownership
of the real property it had sold to petitioner.
Thus, the correct conclusion that should be
made is that while there was a valid sale, there
was no valid transfer of title to Baldoza, since
Dulos Realty was no longer the owner at the
time of the execution of the Deed of Absolute
Sale.
B. MUST BE LICIT (Arts. 1347, 1459 and
1575);
Art. 1347. All things which are not outside the
commerce of men, including future things, may
be the object of a contract. All rights which are
not intransmissible may also be the object of
contracts.
No contract may be entered into upon future
inheritance except in cases expressly authorized
by law.
All services which are not contrary to law,
morals, good customs, public order or public
policy may likewise be the object of a contract.
Art. 1459. The thing must be licit and the vendor
must have a right to transfer the ownership
thereof at the time it is delivered.
Art. 1575. The sale of animals suffering from
contagious diseases shall be void.
A contract of sale of animals shall also be void if
the use or service for which they are acquired
has been stated in the contract, and they are
found to be unfit therefor.
C. MUST BE DETERMINATE OR
DETERMINABLE (1460);
Art. 1460. A thing is determinate when it is
particularly designated or physical segregated
from all other of the same class.
The requisite that a thing be determinate is
satisfied if at the time the contract is entered
into, the thing is capable of being made
determinate without the necessity of a new or
further agreement between the parties.
CASE: Melliza v. City of llo-ilo, 23 S 477
(1968);
Facts:
Juliana Melliza owned properties located in Iloilo
City, three parcels of land known as Lts nos. 2,
5, and 1214. She then donated lot no. 1214 to
the municipality of Iloilo to serve as site for the
municipal hall. However, the donation was
revoked since the lot was inadequate to meet
the requirements of the development plan of the
municipality. Lot 1214 was divided by Certeza
Surveying Co., Inc. into lots 1214-A and 1214-
B an lot 1214-B was then again divided into lots
1214-B-1, 1214-B-2 and 1214-B-3.
Melliza executed an instrument without a clear
caption providing for the absolute sale involving
lot 5, lot 2, and a portion of lot 1214. On January
14, 1938, Melizza sold her remaining interest in
lot 1214 to Remedios Sian Villanueva. n 24
August 1949 the City of Iloilo, which succeeded
to the Municipality of Iloilo, donated the city hall
site together with the building thereon, to the
University of the Philippines (Iloilo branch). On
10 December 1955 Pio Sian Melizza filed an
action in the CFI Iloilo against Iloilo City and the
University of the Philippines for recovery of Lot
1214-B or of its value. After stipulation of facts
and trial, the CFI rendered its decision on 15
August 1957, dismissing the complaint.
Said court ruled that the instrument executed
by Juliana Melliza in favor of Iloilo municipality
included in the conveyance Lot 1214-B, and
thus it held that Iloilo City had the right to
donate Lot 1214-B to UP. Pio Sian Melliza
appealed to the Court of Appeals. On 19 May
1965, the CA affirmed the interpretation of the
CFI that the portion of Lot 1214 sold by Juliana
Melliza was not limited to the 10,788 square
meters specifically mentioned but included
whatever was needed for the construction of
avenues, parks and the city hall site.
Nonetheless, it ordered the remand of the case
for reception of evidence to determine the area
actually taken by Iloilo City for the construction
of avenues, parks and for city hall site. Hence,
the appeal by Pio San Melliza to the Supreme
Court.
Issue:
Whether or not the contract is fulfilled if object
of sale is capable of being made determinate at
the time of the contract
Held:
The requirement of the law that a sale must
have for its object a determinate thing, is
fulfilled as long as, at the time the contract is
entered into, the object of the sale is capable of
being made determinate without the necessity
of a new or further agreement between the
parties (Art. 1273, old Civil Code; Art. 1460,
New Civil Code). The specific mention of some
of the lots plus the statement that the lots
object of the sale are the ones needed for city
hall site; avenues and parks, according to the
Arellano plan, sufficiently provides a basis, as of
the time of the execution of the contract, for
rendering determinate said lots without the
need of a new and further agreement of the
parties.
Heirs of San Andres v. Rodriguez, 332 S
769 (2000);
Facts:
Juan andres was the owner of the lot situated in
liboton, naga city. The sale was evidenced by a
deed of sale. Upon the death of juan andres,
ramon san andres was appointed as
administrator of the estate, and hired geodetic
engineer. Jose panero prepared a consolidated
plan of the estate and also prepared a sketch
plan of the lot sold to respondent. It was found
out that respondent had enlarged the area
which he purchased from juan. The
administrator sent a letter to the respoindent to
vacate the said portion in which the latter
refused to do.
Respondent alleged that apart from the original
lot, which had been sold to him, the latter
likewise sold to him the following day the
remaining portion of the lot. He alleged that the
payment for such would be affected in 5 years
from the eecution of the formal deed of sale
after a survey is conducted. He also alleged that
under the consent of juan, he took possession
of the same and introduced improvements
thereon.
Respondent deposited in court the balance of
the purchase price amounting to P7,035.00 for
the aforesaid 509-square meter lot.
On September 20, 1994, the trial court
rendered judgment in favor of petitioner. It
ruled that there was no contract of sale to speak
of for lack of a valid object because there was
no sufficient indication to identify the property
subject of the sale, hence, the need to execute
a new contract.
Respondent appealed to the Court of Appeals,
which on April 21, 1998 rendered a decision
reversing the decision of the trial court. The
appellate court held that the object of the
contract was determinable, and that there was
a conditional sale with the balance of the
purchase price payable within five years from
the execution of the deed of sale.
Issue: whether or not there was a valid sale.
Held:
Civil Code provides that By the contract of sale
one of the contracting parties obligates himself
to transfer the ownership of and to deliver a
determinate thing, and the other to pay therefor
a price certain in money or its equivalent.
A contract of sale may be absolute or
conditional.
As thus defined, the essential elements of sale
are the following:
a) Consent or meeting of the minds,
that is, consent to transfer ownership in
exchange for the price;
b) Determinate subject matter; and,
c) Price certain in money or its
equivalent.
As shown in the receipt, dated September 29,
1964, the late Juan San Andres received
P500.00 from respondent as "advance payment
for the residential lot adjoining his previously
paid lot on three sides excepting on the
frontage; the agreed purchase price was P15.00
per square meter; and the full amount of the
purchase price was to be based on the results of
a survey and would be due and payable in five
(5) years from the execution of a deed of sale.
Petitioner's contention is without merit.
There is no dispute that respondent purchased
a portion of Lot 1914-B-2 consisting of 345
square meters. This portion is located in the
middle of Lot 1914-B-2, which has a total area
of 854 square meters, and is clearly what was
referred to in the receipt as the "previously paid
lot." Since the lot subsequently sold to
respondent is said to adjoin the "previously paid
lot" on three sides thereof, the subject lot is
capable of being determined without the need
of any new contract. The fact that the exact area
of these adjoining residential lots is subject to
the result of a survey does not detract from the
fact that they are determinate or determinable.
As the Court of Appeals explained:
Concomitantly, the object of the sale is certain
and determinate. Under Article 1460 of the New
Civil Code, a thing sold is determinate if at the
time the contract is entered into, the thing is
capable of being determinate without necessity
of a new or further agreement between the
parties. Here, this definition finds realization.
Thus, all of the essential elements of a contract
of sale are present, i.e., that there was a
meeting of the minds between the parties, by
virtue of which the late Juan San Andres
undertook to transfer ownership of and to
deliver a determinate thing for a price certain in
money. As Art. 1475 of the Civil Code provides:
The contract of sale is perfected at the moment
there is a meeting of minds upon the thing
which is the object of the contract and upon the
price. . . .That the contract of sale is perfected
was confirmed by the former administrator of
the estates, Ramon San Andres, who wrote a
letter to respondent on March 30, 1966 asking
for P300.00 as partial payment for the subject
lot.
As the Court of Appeals observed:
Without any doubt, the receipt profoundly
speaks of a meeting of the mind between San
Andres and Rodriguez for the sale. Evidently,
this is a perfected contract of sale on a deferred
payment of the purchase price. All the pre-
requisite elements for a valid purchase
transaction are present.
There is a need, however, to clarify what the
Court of Appeals said is a conditional contract of
sale. Apparently, the appellate court considered
as a "condition" the stipulation of the parties
that the full consideration, based on a survey of
the lot, would be due and payable within five (5)
years from the execution of a formal deed of
sale. It is evident from the stipulations in the
receipt that the vendor Juan San Andres sold
the residential lot in question to respondent and
undertook to transfer the ownership thereof to
respondent without any qualification,
reservation or condition.
A deed of sale is considered absolute in nature
where there is neither a stipulation in the deed
that title to the property sold is reserved in the
seller until full payment of the price, nor one
giving the vendor the right to unilaterally
resolve the contract the moment the buyer fails
to pay within a fixed period.
Applying these principles to this case, it cannot
be gainsaid that the contract of sale between
the parties is absolute, not conditional. There is
no reservation of ownership nor a stipulation
providing for a unilateral rescission by either
party. In fact, the sale was consummated upon
the delivery of the lot to respondent. 20 Thus,
Art. 1477 provides that the ownership of the
thing sold shall be transferred to the vendee
upon the actual or constructive delivery thereof.
The stipulation that the "payment of the full
consideration based on a survey shall be due
and payable in five (5) years from the execution
of a formal deed of sale" is not a condition which
affects the efficacy of the contract of sale. It
merely provides the manner by which the full
consideration is to be computed and the time
within which the same is to be paid. But it does
not affect in any manner the effectivity of the
contract. Consequently, the contention that the
absence of a formal deed of sale stipulated in
the receipt prevents the happening of a sale has
no merit.
The claim of petitioners that the price of
P7,035.00 is iniquitous is untenable. The
amount is based on the agreement of the
parties as evidenced by the receipt (Exh. 2).
Time and again, we have stressed the rule that
a contract is the law between the parties, and
courts have no choice but to enforce such
contract so long as they are not contrary to law,
morals, good customs or public policy.
Otherwise, court would be interfering with the
freedom of contract of the parties. Simply put,
courts cannot stipulate for the parties nor
amend the latter's agreement, for to do so
would be to alter the real intentions of the
contracting parties when the contrary function
of courts is to give force and effect to the
intentions of the parties.
The decision of the Court of Appeals is
AFFIRMED with the modification that
respondent is ORDERED to reimburse
petitioners for the expenses of the survey.
1. Generic things as objects of sale
(Arts. 1246 and 1409[6]);
Art. 1246. When the obligation consists in the
delivery of an indeterminate or generic thing,
whose quality and circumstances have not been
stated, the creditor cannot demand a thing of
superior quality. Neither can the debtor deliver
a thing of inferior quality. The purpose of the
obligation and other circumstances shall be
taken into consideration.
Art. 1409. The following contracts are inexistent
and void from the beginning:
(6) Those where the intention of the
parties relative to the principal object of
the contract cannot be ascertained;
These contracts cannot be ratified. Neither can
the right to set up the defense of illegality be
waived.
CASE: Yu Tek & co., v. Gonzales, 29 Phil.
384 (1915);
Doctrine:
There is a perfected sale with regard to the
“thing” whenever the article of sale has been
physically segregated from all other articles.
Facts:
Gonzalez received P3,000 from Yu Tek and Co.
and in exchange, the former obligated himself
to deliver 600 piculs of sugar of the first and
second grade, according to the result of the
polarization, within the period of three months.
It was also stipulated that in case Gonzales fails
to deliver, the contract will be rescinded he will
be obligated to return the P3,000 received and
also the sum of P1,200 by way of indemnity for
loss and damages.
Plaintiff proved that no sugar had been
delivered to him under the contract nor had he
been able to recover the P3,000.
Gonzales assumed that the contract was limited
to the sugar he might raise upon his own
plantation; that the contract represented a
perfected sale; and that by failure of his crop he
was relieved from complying with his
undertaking by loss of the thing due.
Issue:
Whether or not there was a perfected contract
of sale
Held:
No. This court has consistently held that there
is a perfected sale with regard to the “thing”
whenever the article of sale has been physically
segregated from all other articles.
In the case at bar, the undertaking of the
defendant was to sell to the plaintiff 600 piculs the buyer becomes the owner of the whole mass
of sugar of the first and second classes. Was this and the seller is bound to make good the
an agreement upon the “thing” which was the deficiency from goods of the same kind and
object of the contract? For the purpose of sale quality, unless a contrary intent appears.
its bulk is weighed, the customary unit of weight
being denominated a “picul.” Now, if called upon
to designate the article sold, it is clear that the
defendant could only say that it was “sugar.” He
could only use this generic name for the thing
sold. There was no “appropriation” of any
particular lot of sugar. Neither party could point
to any specific quantity of sugar and say: “This
is the article which was the subject of our
contract.”

We conclude that the contract in the case at bar

was merely an executory agreement; a promise
of sale and not a sale. There was no perfected
sale.

2. Undivided Interest (1463,

1464);

Art. 1463. The sole owner of a thing may sell an

undivided interest therein. (n)

Art. 1464. In the case of fungible goods, there

may be a sale of an undivided share of a specific
mass, though the seller purports to sell and the
buyer to buy a definite number, weight or
measure of the goods in the mass, and though
the number, weight or measure of the goods in
the mass is undetermined. By such a sale the
buyer becomes owner in common of such a
share of the mass as the number, weight or
measure bought bears to the number, weight or
measure of the mass. If the mass contains less
than the number, weight or measure bought,
the buyer becomes the owner of the whole mass
and the seller is bound to make good the
deficiency from goods of the same kind and
quality, unless a contrary intent appears.

3. Undivided Share in a mass of

fungible goods may be object of
sale. (Art. 1464);

Art. 1464. In the case of fungible goods, there

may be a sale of an undivided share of a specific
mass, though the seller purports to sell and the
buyer to buy a definite number, weight or
measure of the goods in the mass, and though
the number, weight or measure of the goods in
the mass is undetermined. By such a sale the
buyer becomes owner in common of such a
share of the mass as the number, weight or
measure bought bears to the number, weight or
measure of the mass. If the mass contains less
than the number, weight or measure bought,