1223.

DIVISIBLE OBLIGATION - an object in which performance or delivery

is capable of partial fulfillment.
Obligation to deliver 100 sacks of rice or a particular type
INDIVISIBLE OBLIGATION object which its delivery and
performance is not capable of partial fulfillment.
Obligation to deliver a particular computer set
To determine whether it is divisible or indivisible, look at the intention
of the parties. Even though the object or service may be physically
divisible, it is indivisible if so provided by law or intended by the
parties. If the object is not physically divisible or the service is not
susceptible to partial performance, the obligation is always
indivisible, the intention of the parties to the contrary notwithstanding.
(Rule is absolute)
An obligation is presumed indivisible where the only one creditor and
only one debtor.
If a thing could be divided into parts and as divided, its value is
impaired disproportionately, that thing is INDIVISIBLE.
Kinds of Division
+ Qualitative division based on quality, not on number or quantity of
the things w/c are the object of the obligation. Ex: inheritance of heirs
+ Quantitative division based on quantity rather than on quality
Ex. Cavans of palay, 10000 cash
+Ideal or intellectual which exists in the minds of the parties
Ex. Co-ownership
Kinds of indivisibility
+ Legal indivisibility specifiygc provision of law declares as
indivisible
+ Conventional will of the parties makes a indivisible
+ Natural nature of the object or prestation does not admit of
division
1224.

JOINT INDIVISIBLE OBLIGATION the object is indivisible but the

liability of the parties is joint.
The unfulfilled undertaking (duty) is converted into a
monetary obligation which is no divisible.
The guilty debtor is liable for damages.
1225.

The following are considered INDIVISIBLE obligations:

1. Obligation to give definite things (ex: specific house)
2. Obligations which are not susceptible of partial
performance (ex: sing a song; dance)
3. Even though the object or service may be physically
divisible, it is indivisible if:
a. the law so provides (ex: taxes)
b. when the parties intended it to be indivisible (ex:
to give 1000 on a certain date)
The following obligations are deemed DIVISIBLE:
1. When the object of the obligation is the execution of a
certain number of days of work (ex: paint a house)
2. When the object of the obligation is the accomplishment of
work measured in units (make a table)
3. When the object of the obligation is susceptible of partial
compliance (ex: to teach)

4.

When the object of the obligation is such that the debtor is

required to pay in installments
--- Obligation to do and not to do are generally indivisible.
Indivisible (not to do) continuous (ex. Not sell cigarettes for a year)
Divisible (not) forbearance is not continuous (not sell on holidays)
If the contract is divisible, and a part of it is illegal, the illegal
part is void, and the rest shall be valid and enforceable.
If the contract is indivisible, and a part of it is illegal, the
entire contract is void.
Partial performance of an indivisible obligation is tantamount
to non-performance.
1226.

Principal obligation can stand by itself and does not depend for its
validity and existence upon another obligation
Accessory obligation attached to a principal obligation, cannot
stand alone
Obligation w/ a penal clause w/c contains an accessory undertaking
to pay a previously stipulated indemnity in case of breach.
PENAL CLAUSE - this is an accessory obligation attached to the
principal obligation, which imposes an additional liability in case of
breach of the principal obligation.
Purposes
- to insure performance by creating an effective deterrent against
breach. (general purpose) **reparation
- to substitute a penalty for the indemnity for damages and the
payment of interest in case of non-compliance. **punishment
^^Penal clause constitutes an obligation although accessory;
condition does not. Penal clause may become demandable in default
of the unperformed obligation and sometimes jointly with it; condition
is never demandable.
Legal penal clause provided by law
Conventional penal clause by stipulation of parties
Compensatory penal clause penal takes place of damages
Punitive penal clause imposed merely as punishment for breach
Subsidiary or alternative penal clause only the penalty can be
enforced
Joint or cumulative penal clause both the principal and penal
clause can be enforced
GR: penalty takes the place of the indemnity for damages and the
payment of interests in case of non-compliance
It pushes the debtor to perform his obligation faithfully and
without delay within the period agreed upon, or else, he
suffers a fixed civil penalty without need of proving the
damages of the other party.
The penalty imposable is a substitute for the indemnity for:
a. damages
b. payment of interest in case of breach of obligation
unless the contrary is stipulated!
EXCEPTIONS additional damages may be recovered from the
following acts:
1. If the debtor refuses to pay the penalty
2. If the debtor is guilty of fraud in the fulfillment of
the obligation
3. If there is express stipulation that the other
damages or interests are demandable to the
penalty in the penal clause

 The mere non-fulfillment of the principal obligation entitles

the creditor to the extent of penalty stipulated. Creditor may
enforce the penalty whether he suffered damages or not.
The purpose of the penalty clause is precisely to avoid
proving damages.

Penalty may be enforced only when it is demandable, only if there is

a breach of the obligation and not contrary to law, etc. If the
obligation cant be fulfilled due to a fortuitous event, the penalty is not
demandable.

1227.

GR: the debtor cannot just pay the penalty instead of performing the
obligation.
If the debtor is allowed to pay the penalty this would in effect make
the obligation an alternative one.
The debtor can exempt himself from non-fulfillment of the obligation
only when this right has been expressly reserved for him.
A debtor cannot evade from payment of his principal
obligation by choosing to pay the penalty stipulated, except
when the debtor is EXPRESSLY granted with the right to
substitute the penalty for the principal obligation. an
obligation with penalty clause cannot be turned to facultative
obligation unless expressly stipulated in the contract.
GR: The creditor cannot demand the stipulated fulfillment of the
principal obligation and the penalty at the same time
1. Where there is performance once the obligation is fulfilled, there
is no need for demanding the penalty except when the creditor was
clearly given the right. GR: penal clause is subsidiary and not joint.
2. Where there is no performance the creditor may ask for the
penalty or require specific performance. Remedies are alternative,
not cumulative nor successive. If there was fraud on debtor, creditor
may recover the penalty as well as damages for non-fulfillment.
---when the creditor has demanded fulfillment of the obligation but
cannot be fulfilled due to the
a. debtors fault creditor may demand for
penalty
b. creditors fault he cannot claim the penalty
c. fortuitous event principal obligation and
penalty are extinguished
Debtor has the right to pay penalty in lieu of performance only when
this right has been expressly reserved for him.
For creditor, he has the right to demand performance and payment of
penalty jointly when this right has been clearly granted him.
1228.

As long as the agreement or contract is breached. There is

violation by the debtor.

1229.

JUDICIAL REDUCTION OF PENALTY

1. Principal obligation partly complied with by the debtor
(but not in indivisible obligation, because it is tantamount to
non-compliance)
2. Principal obligation complied not in accordance with the
tenor of the agreement
3. Penalty iniquitous or unconscionable
Judges power to reduce penalties are limited to private
contracts.
INIQUITOUS OR UNCONSCIONABLE when it is revolting to the
conscience or common sense; grossly disproportionate to the
damages suffered.
PENALTY NOT ENFORCEABLE:
1. Impossible performance of principal obligation
due to fortuitous events
2. Creditor prevented the debtor from fulfilling the
obligation
3. Penalty is contrary to good morals or good
customs
4. Both parties are guilty of breach of contract
5. Breach of contract by the creditor
6. None of the parties committed any willful or
culpable violation of the agreement
1230. The nullity of the penal clause does not carry with it that
of the principal obligation.
The nullity of the principal obligation carries with it that of the
penal clause.
Because the penal clause is only an accessory to the
principal obligation, it cannot exist alone.
If the penal clause is void, the principal obligation remains
enforceable.