PROBLEM: Who bears the loss: AFTER perfection of the contract and BEFORE

delivery, the subject matter of sale being a specific thing?

SAGOT: The buyer, assuming the seller is (1) not in default and the (2) thing is lost
without his fault.
LAW:
Article 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.
Article 1262. An obligation which consists in the delivery of a determinate thing
shall be extinguished if it should be lost or destroyed without the fault of the debtor,
and before he has incurred in delay.
Article 1538. In case of loss, deterioration or improvement of the thing BEFORE its
delivery, the rules in article 1189 shall be observed, the vendor being considered
the debtor.
Article 1189 (1). If the thing is lost without the fault of the debtor, the obligation
shall be extinguished
General rule: Res perit domino
General rule din: The obligation to deliver a specific thing is extinguished if the thing
is lost or destroyed without the fault of the seller and before he has been in default.
(Not applicable on: delivery of fungibles, generic things, kasi Genus does not
perish.)
Under this rule, which follows the Roman Rule, the risk of the thing sold passes to
the buyer, even though the thing has not yet been delivered to him. Therefore, if a
house (sold) be destroyed wholly or partly by fire the loss falls upon the buyer who
must pay the price, even though he has not received the thing. For the seller is not
liable for anything which happens without his fraud or negligence. But if after the
sale any alluvion has accrued to the land, the benefit goes to the buyer for the
benefit ought to belong to him who has the risk. (Sherman, Inchiridion Romani Juris,
Sec. 296.)
JURISPRUDENCE:
In the case of Roman v. Grimalt (1906), the Court held that the sale was not
perfected as the buyer agreed to buy the vesse, provided that the title was in profer
form. As the vendor failed to perfect his title, the loss was borne by him.
In any event, finding that no sale had been perfected between the parties, Grimalt
held that the articles of the old Civil Code relative to the injury or benefit of the
thing sold after the contract has been perfected and those relative to the
obligations to deliver a specified thing and the extinction of such obligation when
the thing is either lost or destroyed, were not applicable to the case.

From the language of the decision of Grimalt the IMPLICATION was clear under the
old Civil Code: that had the contract been perfected, even without the schooner
being delivered to the buyer to transfer ownership, the buyer would have borne the
risk of loss. This was supported by then Article 1452 of the old Civil Code (now
Article 1480 of the New Civil Code) that any injury to or benefi t from the thing sold,
after the contract has been perfected, from the moment of perfection to the time of
delivery, shall be to the account of the buyer.