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oblicon > chapter 2 > Flashcards

chapter 2 Flashcards

1
Q

A thing is specific or determinate particularly designated or physically segregated from others of the same class

A

Specific or determinate thing

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2
Q

A thing is generic or determinate when it refers only to a class or genus

A

Generic or indeterminate thing

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3
Q

Specific thing and generic thing distinguished

A
  1. Determinate thing is identified by its individuality and debtor cannot substitute it without the creditor’s consent.
  2. Generic thing is identified only by its species and debtor can give anything of the same class and the same kind.
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4
Q

Duties of the debtor in obligation to give a determinate thing

A
  1. preserve or take care of the thing
    a. diligence of a good father of a family
    b. another standard care
    c. factors to be considered
    d. reason for debtor’s obligation
  2. deliver the fruits of the thing
  3. deliver the accessions and accessories
  4. deliver the thing itself
  5. answer for damages in case of non-fulfillment or breach
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5
Q

Duties of the debtor in obligation to give a generic thing

A
  1. To deliver a thing which is of the quality intended
  2. To be liable for damages in case of fraud, negligence, or delay
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6
Q

Different kinds of fruits

A
  1. natural fruits
  2. industrial fruits
  3. civil fruits
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7
Q

spontaneous products, and young and products of animals

ex. grass; all trees and plants on lands produced without intervention of human labor

A

natural fruit

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8
Q

produced by lands of any kind through cultivation or labor

ex. sugar cane; vegetable; rice brought about by reason of human labor

A

industrial fruit

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9
Q

derived by virtue of a juridical relation

ex. rents of building, price of leases of lands

A

civil fruit

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10
Q

The right or power of a person (creditor) to demand from another (debtor)

A

personal right

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11
Q

The right or interest of a person over a specific thing (ownership, possession, mortgage)

A

real right

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12
Q

Personal right and real right distinguished

A
  1. In personal right there’s a definite active subject and definite passive subject.
    In real right, there’s only a definite active subject.
  2. A personal right is binding or enforceable only against a particular person.
    Real right is directed against the whole world.
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13
Q

Remedies of creditor in real obligation

A
  1. In a specific real obligation, if in case the debtor fails to comply, the creditor may
    a. demand specific performance or fulfillment (if still possible) with indemnity for damages
    b. demand rescission or cancellation of obligation also with right to recover damagers
    c. demand payment of damages only
  2. A generic real obligation, can be performed by a third person since object is expressed only according to its genus.
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14
Q

fruits of a thing or improvements upon a thing

A

accessions

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15
Q

things joined to or included with the thing for better use or completion

A

accessories

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16
Q

If debtor fails to perform an obligation to do

A

creditor has the right to have the obligation performed by someone else and recover damages

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17
Q

If the obligation is done in contravention or is poorly done

A

creditor may order that it be undone if still possible, and recover damages

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18
Q

Performance by a third person

A
  1. compelling performance by debtor prohibited
  2. indemnification of creditor for damages
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19
Q

aka default or mora, is the failure to perform an obligation on time

A

legal delay

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20
Q

Kinds of delay

A
  1. mora solvendi
  2. mora accipiendi
  3. compensatio morae
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21
Q

delay on the part of the debtor

A

mora solvendi

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22
Q

delay on the part of the creditor

A

mora accipiendi

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23
Q

delay of both debtor and creditor

A

compensatio morae

24
Q

3 conditions before mora solvendi can exist

A
  1. failure to perform obligation on the date agreed upon
  2. demand made by creditor upon the debtor to comply with obligation
  3. failure of debtor to comply with such demand
25
Q

When demand is not necessary to put debtor in delay

A
  1. when the obligation so provides
  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
26
Q

What are the grounds for liability?

A
  1. fraud
  2. negligence
  3. delay
  4. contravention of the terms of the obligation
27
Q

deceit or dolo; deliberate or intentional evasion of the normal fulfillment of an obligation

A

fraud

28
Q

dolo incidente; committed in the performance of an obligation already existing because of contract

A

incidental fraud

29
Q

dolo causante; fraud employed in the execution of a contract

A

causal fraud

30
Q

voluntary act of omission which prevents normal fulfillment of an obligation (there being no bad faith or malice)

failure to observe for the protection of the interests of another person

A

negligence

31
Q

violation of terms and conditions stipulated in the obligation without justifiable excuse or reason

A

contravention of the terms of the obligation

32
Q

Fraud and negligence distinguished

A
  1. In fraud, there’s deliberate intention to cause damage.
    In negligence, there’s no such intention.
  2. Waiver of the liability for future fraud is void.
    Such waiver may, in a certain sense, be allowed in negligence.
  3. Fraud must be clearly proved.
    Negligence is presumed from the violation of a contractual obligation.
  4. Liability for fraud cannot be mitigated or reduced.
    Liability for negligence may be reduced.
33
Q

Responsibility arising from negligence

A
  1. discretion of court to fix amount of damages
  2. damages where both parties mutually negligent
34
Q

Kinds of negligence

A
  1. contractual negligence
  2. civil negligence
  3. criminal negligence
35
Q

culpa contractual; negligence in contracts resulting to their breach

A

contractual negligence

36
Q

culpa aquiliana; negligence by which is the source of an obligation between parties not so related before by any pre-existing contract

A

civil negligence

37
Q

culpa criminal; negligence resulting in the commission of a crime

A

criminal negligence

38
Q

Factors to be considered in determining issue of negligence

A
  1. nature of the obligation
  2. circumstances of the person
  3. circumstances of time
  4. circumstances of the place
39
Q

Signify the money compensation awarded to a party for loss or injury

A

Damages

40
Q

any event which cannot be foreseen, or which, though foreseen, is inevitable

A

fortuitous event

41
Q

Fortuitous event distinguished from force majeure

A
  1. acts of man: event independent of the will of the obligor but not of other human wills
    e. war, fire, robbery, murder, insurrection
  2. acts of god: totally independent of the will of every human being
    ex. earthquake, flood, rain, shipwreck, lightning, eruption of volcano
42
Q

Kinds of fortuitous events

A
  1. ordinary fortuitous events
  2. extra-ordinary fortuitous events
43
Q

What are ordinary fortuitous events?

A

common; contracting could reasonably foresee
ex. rain

44
Q

What are extra-ordinary fortuitous events?

A

uncommon; contracting parties could not have reasonably foreseen
ex. earthquake, fire, war, pestilence, unusual flood

45
Q

Requisites of fortuitous event

A
  1. event must be independent of the human will or at least the debtor’s will
  2. event could not be foreseen, or if foreseen, is inevitable
  3. event must be of such a character as to render it impossible for the debtor to comply with his obligation in a normal manner
  4. debtor must be free from any participation in the injury of the creditor, that is, there’s no concurrent negligence on his part
46
Q

Rules as to liability in case of fortuitous event

A
  1. when expressly specified by the law
    a. debtor is guilty of fraud, negligence, delay, or contravention of tenor of obligation
    b. debtor has promised to deliver the same thing to two or more persons
    c. obligation to deliver a specific thing arises from a crime
    d. thing to be delivered is generic
  2. when declared by stipulation
  3. when nature of the obligation requires the assumption of risk
47
Q

a contract whereby one of the parties delivers to another money or other consumable thing, upon the condition that the same amount of the same kind and quality shall be paid

A

mutuum

48
Q

contracting for or receiving interest in excess of the amount allowed by law for the loan or use of money, goods

A

usury

49
Q

Requisites for recovery of interest

A
  1. payment of interest must be expressly stipulated
  2. agreement must be in writing
  3. interest must be lawful
50
Q

interference of a fact not actually known arising from its usual connection with another which is known or proved

A

presumption

51
Q

Two kinds of presumption

A
  1. conclusive presumption
  2. disputable presumption
52
Q

What is conclusive presumption?

A

one which cannot be contradicted

53
Q

What is disputable presumption?

A

can be contradicted or rebutted by presenting proof to the contrary

54
Q

When presumptions in Article 1776 don’t apply

A
  1. with reservation as the interest
  2. receipt without indication of particular installment
  3. receipt for a part of the principal
  4. payment of taxes
  5. non-payment proven
55
Q

Transmissibility of right

A
  1. prohibited by law
  2. prohibited by the stipulation of the parties

oblicon (6 decks)

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