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Almocera vs.

Ong mortgage and the eventual sale of the townhouse unit to

546 SCRA 164 a third person.
G.R. No. 170479
February 18, 2008 In their Answer, Almocera and FBMC denied liability
claiming that the foreclosure of the mortgage on the
FACTS: townhouse unit was caused by the failure of Johnny Ong
Johnny Ong tried to acquire from Andre T. Almocera and to pay the balance of the price of said townhouse unit.
First Builder Multi-Purpose Cooperative (FBMC) a
"townhome" in Cebu City. As reflected in a Contract to ISSUES:
Sell, the selling price of the unit was P3,400,000.00 1. WON it was a contract to sell or a contract of sale.
pesos. 2. WON the respondent’s refusal to pay the balance of
the purchase price is justified. -YES
Out of the purchase price, he was able to pay the
amount of P1,060,000.00. HELD:
1. It cannot be disputed that the contract entered into
Prior to the full payment of this amount, Ong claims that by the parties was a contract to sell. In a contract
defendants Andre Almocera and First Builders to sell, ownership is retained by the seller and is not
fraudulently concealed the fact that before and at the to pass to the buyer until full payment of the price.
time of the perfection of the aforesaid contract to sell, the
property was already mortgaged to and encumbered with The contract was denominated as such and it
the Land Bank of the Philippines (LBP). In addition, the contained the provision that the unit shall be
construction of the house has long been delayed and conveyed by way of an Absolute Deed of Sale,
remains unfinished. On March 13, 1999, Lot 4-a together with the attendant documents of Ownership
covering the unit was advertised in a local tabloid for – the Transfer Certificate of Title and Certificate of
public auction for foreclosure of mortgage. It is the Occupancy – and that the balance of the contract
assertion of Ong that had it not for the fraudulent price shall be paid upon the completion and delivery
concealment of the mortgage and encumbrance by of the unit, as well as the acceptance thereof by
defendants, he would have not entered into the contract respondent. All these clearly indicate that ownership
to sell. of the townhouse has not passed to respondent.

On the other hand, defendants assert that on March 20, The unit shall be completed and conveyed by way of
1995, First Builders Multi-purpose Coop. Inc., borrowed an Absolute Deed of Sale together with the attendant
money in the amount of P500,000.00 from Tommy Ong, documents of Ownership in the name of the BUYER
plaintiff’s brother. This amount was used to finance the – the Transfer Certificate of Title and Certificate of
documentation requirements of the LBP for the funding Occupancy within a period of six (6) months from
of the Atrium Town Homes. This loan will be applied in the signing of Contract to Sell.
payment of one (1) town house unit which Tommy Ong
may eventually purchase from the project. When the 2. The respondent is justified in refusing to pay the
project was under way, Tommy Ong wanted to buy balance of the contract price.
another townhouse for his brother, Johnny Ong, plaintiff
herein, which then, the amount of P150,000.00 was From the terms of the contract, it is clear that
given as additional partial payment. petitioner and FBMC had the obligation to complete
the townhouse unit within six months from the
However, the particular unit was not yet identified. It signing of the contract. Upon compliance therewith,
was only on January 10, 1997 that Tommy Ong the obligation of respondent to pay the balance of
identified Unit No. 4 plaintiff’s chosen unit and again P2,400,000.00 arises. Upon payment thereof, the
tendered P350,000.00 as his third partial payment. townhouse shall be delivered and conveyed to
When the contract to sell for Unit 4 was being drafted, respondent upon the execution of the Absolute Deed
Tommy Ong requested that another contract to sell of Sale and other relevant documents.
covering Unit 5 be made so as to give Johnny Ong
another option to choose whichever unit he might decide The evidence adduced shows that petitioner and
to have. When the construction was already in full blast, FBMC failed to fulfill their obligation -- to complete
defendants were informed by Tommy Ong that their final and deliver the townhouse within the six-month
choice was Unit 5. It was only upon knowing that the period. With petitioner and FBMC’s non-fulfillment
defendants will be selling Unit 4 to some other persons of their obligation, respondent refused to pay the
for P4million that plaintiff changed his choice from Unit balance of the contract price. Respondent does not
5 to Unit 4. ask that ownership of the townhouse be transferred
to him, but merely asks that the amount or down
In trying to recover the amount he paid as down payment he had made be returned to him.
payment for the townhouse unit, Johnny Ong filed a
complaint for Damages against Andre T. Almocera and The contract subject of this case contains reciprocal
FBMC alleging that they were guilty of fraudulent obligations which were to be fulfilled by the parties,
concealment and breach of contract when they sold to i.e., to complete and deliver the townhouse within
him a townhouse unit without divulging that the same, six months from the execution of the contract to sell
at the time of the perfection of their contract, was on the part of petitioner and FBMC, and to pay the
already mortgaged with the Land Bank of the Philippines balance of the contract price upon completion and
(LBP), with the latter causing the foreclosure of the delivery of the townhouse on the part of the
In the case at bar, the obligation of petitioner and
FBMC which is to complete and deliver the
townhouse unit within the prescribed period, is
determinative of the respondent’s obligation to pay
the balance of the contract price. With their failure
to fulfill their obligation as stipulated in the contract,
they incurred delay and are liable for damages. They
cannot insist that respondent comply with his
obligation. Where one of the parties to a contract did
not perform the undertaking to which he was bound
by the terms of the agreement to perform, he is not
entitled to insist upon the performance of the other

Petitioner insists there was no delay when the

townhouse unit was not completed within six
months from the signing of the contract inasmuch
as the mere lapse of the stipulated six (6) month
period is not by itself enough to constitute delay on
his part and that of FBMC, since the law requires
that there must either be judicial or extrajudicial
demand to fulfill an obligation so that the obligor
may be declared in default. He argues there was no
evidence introduced showing that a prior demand
was made by respondent before the original action
was instituted in the trial court.

We do not agree.

Demand is not necessary in the instant case.

Demand by the respondent would be useless
because the impossibility of complying with their
(petitioner and FBMC) obligation was due to their
fault. If only they paid their loans with the LBP, the
mortgage on the subject townhouse would not have
been foreclosed and thereafter sold to a third person.
Gaite vs. Fonacier guarantee payment of the P65,000.00, an not only upon
2 SCRA 831 a bond by Fonacier, the Larap Mines & Smelting Co.,
G.R. No. L-11827 and the company's stockholders, but also on one by a
July 31, 1961 surety company; and the fact that appellants did put up
such bonds indicates that they admitted the definite
FACTS: existence of their obligation to pay the balance of
Isabelo Fonacier executed a ‘Deed of Assignment’ in favor P65,000.00.
of Fernando Gaite as his true and lawful attorney-in-fact
so that the latter may enter into a contract for the Assuming that there could be doubt whether by the
exploration and development of the mining claims owned wording of the contract the parties indented a
by Fonacier. Gaite executed a general assignment suspensive condition or a suspensive period (dies ad
conveying the development and exploitation of said quem) for the payment of the P65,000.00, the rules of
mining claims to Larap Iron Mines owned by him. interpretation would incline the scales in favor of "the
greater reciprocity of interests", since sale is essentially
Fonacier decided to revoke the ‘Deed of Assignment’ to onerous. The Civil Code of the Philippines, Article 1378,
which Gaite assented on the condition that Fonacier is paragraph 1, in fine, provides:
to pay him P75,000 for the 24,000 metric tons of iron “If the contract is onerous, the doubt shall be
lodes already extracted and to retain the company name settled in favor of the greatest reciprocity of
Larap Iron MInes. Fonacier already paid P10,000 leaving interests.”
a balance of P65,000 which, as agreed by them, is to be
derived from the local sale of Iron ore made by Larap There can be no question that greater reciprocity obtains
Iron Mines. On December 8, 1954, Fonacier issued a if the buyer' obligation is deemed to be actually existing,
security bond to secure payment of balance with Far with only its maturity (due date) postponed or deferred,
Eastern Surety and Insurance Co. but the surety that if such obligation were viewed as nonexistent or not
provided that liability to the company will only attach binding until the ore was sold.
when there had been actual sale of iron ore by Larap
Iron Mines for an amount of not less than P65,000 and The only rational view that can be taken is that the sale
that the bond will automatically expire on December 8, of the ore to Fonacier was a sale on credit, and not an
1955. aleatory contract where the transferor, Gaite, would
assume the risk of not being paid at all; and that the
No sale of the iron ore was made thereafter. Gaite failed previous sale or shipment of the ore was not a
to pay Fonacier the balance and the surety company suspensive condition for the payment of the balance of
refused to pay contending that the bond expired the agreed price, but was intended merely to fix the
automatically. future date of the payment.

Gaite instituted the present case. Fonacier argued that

the payment of the P65,000 balance was subject to the
condition that it would be paid out of the first sale of the
iron ore by Larap Mines which did not happen.

WON the obligation of Fonacier to pay Gaite the balance
of P65,000 was extinguished because the iron ore was
not sold within a year.

The shipment or local sale of the iron ore is not a
condition precedent (or suspensive) to the payment of
the balance of P65,000.00, but was only a suspensive
period or term. That the sale did not occur within a
period of one year did not extinguish the obligation of
Fonacier to pay Gaite the balance of P65,000 because it
does not seem to be the intention of the parties to the

The Court looked into several circumstances which lead

them to conclude that the sale of the iron ore is but a
suspensive term. First, the words of the contract express
no contingency in the buyer's obligation to pay.

Second, in the usual course of business, an onerous

contract is most likely preferred by the parties in a sale.

Nothing is found in the record to evidence that Gaite

desired or assumed to run the risk of losing his right
over the ore without getting paid for it, or that Fonacier
understood that Gaite assumed any such risk. This is
proved by the fact that Gaite insisted on a bond a to