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1222 Defenses available to solidary debtor

(1) Defenses derived from the nature of the obligation.


A and B are solidarily liable to C in the amount of P10,000.00. The entire debt of A and B was paid by D. In an action by C
against A, the latter can raise the defense of payment by virtue of which the obligation was extinguished.

A defense derived from the nature of the obligation is a complete defense because it nullifies the obligation or renders it
ineffective. Other examples are fraud, prescription, remission, illegality or absence of consideration, res judicata,7 non-
performance of a suspensive condition, etc.

(2) Defenses personal to, or which pertain to share of, debt or sued.—A solidary debtor, by his own act or inaction, such
as by failing to appeal, may lose the benefit of the provisions of Article 1222. (Quano Arrastre Service, Inc. vs. Aleonar,
202 SCRA 618 [1991].)


(a) If the action by C is against B, and B was insane at the time the obligation was contracted, B can put up the defense of
insanity with respect to the entire obligation. This defense is personal to B alone. It is a complete defense.

Other examples are: incapacity, mistake, violence, minority, etc.

(b) Assume now that the portion of the obligation affecting B is subject to a suspensive condition which has not yet

In this case, the non-fulfillment of the condition is a partial defense as it can be set up by B only with respect to his share.
C can demand from B the portion of the obligation pertaining to A because B is solidarily liable.

(3) Defenses personal to other solidary debtors.


In the two preceding examples, the defense of insanity or non- fulfillment of the suspensive condition is not available to A
as to release him from his liability for his share in the obligation.

In other words, A may avail himself thereof only as regards that part of the debt for which B is liable. Hence, having only a
partial defense, A is still liable for P2,000.00, his share in the obligation. (see Braganza vs. Villa Abrille, 105 Phil. 456


1223 Divisible and Indivisible obligations


(1) D agreed to pay C P2,000.00 in four equal monthly installments. The obligation of D is divisible because it is
capable of partial performance.

But if the agreement is that D will pay C on a certain date the full amount of P2,000.00, the obligation is indivisible
although money is physically divisible because the intention of the parties is that the obligation must be fulfilled
at one time and as a whole (not partially).

The divisibility of an obligation should not, therefore, be confused with the divisibility of the thing which is the object

(2) S obliged himself to deliver to B a specific car on November 15. This obligation is indivisible because it is not capable
of partial performance. The car must be delivered at one time and as a whole.

(3) Suppose the agreement is that S will deliver one-half of the car on November 15 and the other half on November 30.
Of course, it would be inconceivable that B would agree to a partial performance of the obligation, but let us just assume
he did. Will the obligation be divisible or indivisible?

The obligation is still indivisible and S must deliver the whole car on November 15 or November 30. A definite thing like a
car, cannot be severed into parts without altering its essence or destroying its value. It is an essential condition of the
fitness of a thing to be divisible that it is possible, by uniting the diverse portions thereof, to reconstruct it as if existed
before its division. (4 Sanchez Roman 93.)

Kinds of division.

They are:

(1) Qualitative division or one based on quality, not on number or quantity of the things that are the object of the


A and B are heirs of C. They agreed to divide the inheritance as follows: to A — a house and lot and home appliances and
to B — a ricefield, a car and P100,000.00 cash.

(2) Quantitative division or one based on quantity rather than on quality.


In the preceding example, if the inheritance consists only of a ricefield its partition by metes and bounds into two equal
parts is a quantitative division. Another example, is when A and B divide 300 cavans of palay harvested from the ricefield
or the P100,000.00 cash.

(3) Ideal or intellectual division or one which exists only in the minds of the parties.


Suppose the car and the ricefield in the first example, were inherited by both A and B.

As co-owners, their one-half shares in the car are not separable in a material way but only mentally. Similarly, before the
land is actually divided between A and B, they are merely co-owners, and neither one of them can say that he is the
absolute owner of a specific portion thereof.

Art. 1224 DIFFERENT KINDS OF OBLIGATIONS 247 Divisible and Indivisible Obligations

Kinds of indivisibility.

They are:

(1) Legal indivisibility.—whereas specific provision of law declares as indivisible, obligations which, by their nature, are
divisible (Art. 1225, par. 3.);

(2) Conventional indivisibility. — where the will of the parties makes as indivisible, obligations which, by their nature, are
divisible (Ibid.); and

(3) Natural indivisibility. — where the nature of the object or prestation does not admit of division, e.g., to give a particular
car, to sing a song, etc. (Ibid., par. 1.)

1224 Joint indivisible obligation


A and B undertook to deliver to C a valuable painting displayed for sale. The painting was valued at $100. At the
maturity date of the obligation, A was ready with his $50 but B could not produce his share. Hence, they failed to comply
with their joint indivisible obligation to deliver the painting to C. The obligation to deliver the painting is converted into
money obligation, meaning, A and B will be liable to pay C $100. A is liable to pay C the amount of $50. But, he is not
liable for the share of B. On the other hand, B is now indebted to C in the sum of $50. Damages may be imposed against
B the erring debtor if warranted by the circumstances. 

Based on the same facts but with the modification that A and B are solidarily (not jointly) liable to deliver the painting to
C, A can be made liable for the entire monetary obligation of $100 without prejudice to his right to go after B for the latter’s
share in the obligation in the amount of $50. 

Obligations deemed indivisible
(1) Obligations to give definite things (par. 1.). — EXAMPLES:

To give a particular electric fan; to deliver a specific car. Here, the obligation is indivisible because of the nature of the
subject matter.

(2) Obligations which are not susceptible of partial performance (Ibid.). —


To sing a song; to dance the “tinikling.”

Here, the obligation is indivisible by reason of its purpose which requires the performance of all the parts.

Is the obligation still indivisible, if there are more than one participant? The obligation becomes divisible as far as the
participants are concerned because it is capable of partial performance.

(3) Obligations provided by law to be indivisible even if thing or service is physically divisible (par. 3.). —


Under the law, taxes should be paid within a definite period. Although money is physically divisible, the amount of tax
payable must be delivered in toto, not partially.

(4) Obligations intended by the parties to be indivisible even if thing or service is physically divisible (par. 3.). —


The obligation of D to give P1,000.00 to C on a certain date. Money is physically divisible but the clear intention here is for
D to deliver P1,000.00 at one time and as a whole.

Suppose there are two debtors, D and E, is the obligation still indivisible? The obligation becomes divisible as far as D
and E are concerned because the delivery of P1,000.00 can be done in parts, e.g., P500.00 by D and P500.00 by E.
However, as far as C is concerned, the obligation remains indivisible because its performance cannot be done in parts.

Obligations deemed divisible

(1) Obligations which have for their object the execution of a certain number of days of work (par. 1.). —


The obligation of X to paint the house of Y, the painting to be finished in 10 days. Here, the obligation need not be fulfilled
at one time.

(2) Obligations which have for their object the accomplishment of work by metrical units (Ibid.). —


The obligation of X to make a table, 3 feet wide and 5 feet long; the obligation of X and Y to deliver 20 cubic meters of
But the obligation of X alone to deliver 20 cubic meters of sand is indivisible.

(3) Obligations which by their nature are susceptible of partial performance (Ibid.). —


The obligation of X to teach “Obligations and Contracts” for one year in a university; the obligation of Y to render 3 song
numbers in a program; the obligation of Z to pay a debt of P12,000.00 in 12 monthly installments of P1,000.00 (see
Soriano vs. Montes, 1 SCRA 366 [1961].) but each prestation to pay P1,000.00 is indivisible as it is to be delivered at one
time and in its totality.

Divisibility or indivisibility in obligations not to do.

In negative obligations not to do, the character of the prestation in each particular case shall determine their divisibility or
indivisibility. (Ibid.)


(1) Indivisible obligation. — X obliged himself to Y not to sell cigarettes in his store for one year. Here, the obligation
should be fulfilled continuously during a certain period.

Art. 1225 DIFFERENT KINDS OF OBLIGATIONS 251 Divisible and Indivisible Obligations

(2) Divisible obligation. — If the obligation of X is not to sell cigarettes in his stores only during Sundays and holidays, the
obligation is divisible because the forbearance is not continuous.

Obligations “to do” and “not to do” are generally indivisible. Obligations “to do” stated in paragraph 2 of Article 1225 are

1226 Obligations with a penal clause

 1. In a contract for the sale of a subdivision lot, there was a stipulation that the buyer would complete a
house within a year on the said lot, otherwise, the buyer will pay the sum of 100 pesos to the seller. As the buyer failed to
construct 50% of the proposed house, within the period stipulated, the penalty is demandable. However, there being
partial performance, the obligation of the debtor may be mitigated.

2. A penalty of 15% interest on the unpaid installment is a valid penal clause.

3. Imposition of attorney’s fees in case of breach is a valid penal clause. 

4. A stipulation that an employee shall be liable to his employer for damages if he would engage in any business similar to
that conducted by the employer is a valid penal clause. 

1227 Exception to the purpose of the penal clause

Par. 1 Gen rule: A promised to B to deliver a car, in case he will not be able to deliver, A would pay B penalty of 100,000
pesos. A cannot just pay the penalty of 100,000 as substitute for performance.
Exception: when it is expressly stipulated that debtor may substitute payment of penalty to the principal obligation.

Par 2 In the same example, if A delivered the car after he had incurred delay and B accepted the car. B may not demand
the penalty unless it is clearly stipulated in the contract.

Par 3. If B decided that A should deliver the car, and the delivery of such car becomes impossible without A’s fault, the
penalty of paying 100,000 may be enforced.

1228 Proof of actual damages not necessary **wala ako mahanap na example, sorry 
In an obligation with a penal clause all that the creditor has to prove, to enforce the penalty, is the violation of the
obligation by the debtor. One of the reasons of fixing the penalty is to avoid such necessity and other difficulties involved
in litigations
1229 when penalty may be reduced

first: when the principal obligation has been partly or irregularly complied with by the debtor

example: A promised B to construct a house within 1 year for 1,000,000 pesos. The contract stipulates a penalty of
500,000 in case of noncompliance. After a year, A practically completed the construction of the house except for the
installation of a window. There is partial fulfillment. Penalty may be reduced to the value or extent of damage suffered.

Second: penalty is unconscionable

A obtained a loan of 10,000 pesos from B with 50% interest per month. Penalty is unconscionable.

Example: S agreed to sell a car to B. It is provided in their agreement that in case of default, S will deliver a prohibited
drug as penalty. Here, the obligation to sell the car is valid but the penalty is void.

S agreed to sell to B a prohibited drug. In case of non-fulfillment, S shall pay B 10,000 as penalty. The nullity of the
principal obligation carries with it that of penal clause although it is valid.

1231 modes of extinguishing obligations

**no examples here.. sorry

(1) By payment or performance;

(2) By the loss of the thing due;

(3) By the condonation or remission of the debt;

(4) By the confusion or merger of the rights of creditor and debtor;

(5) By compensation;

(6) By novation

1232 meaning of payment

example: to deliver the sum of money, to give a certain thing (car, house, land etc.), to do an act, or not to do act

1233 when debt is considered paid

Example: 1.) S promises to deliver 10 sacks of rice to B. S delivered only 5 sacks. There is no payment as there is no
complete fulfillment of the obligation.
2.) D promised to pay 10,000 pesos. D only gives 9,000 to C. Obligation not considered paid as there is no complete

1234 substantial performance in good faith

EXAMPLE: S obliged himself to sell 1,000 bags of cement to B for a certain price. However, despite diligent efforts on his
part, S was able to deliver only 950 bags because of cement shortage. Take note that S wants to comply with his
obligation to deliver the entire 1,000 bags but he could not do so for reasons beyond his control.

Under Article 1234, S can recover as though there had been complete delivery less the price of the 50 bags. In other
words, B cannot require S to deliver first the remaining 50 bags as a condition to his liability for the price. He must pay for
the 950 bags and enforce his right to damages for failure of S to deliver the difference. It is incumbent upon S, however, to
explain satisfactorily his failure to make complete delivery.

1235 completeness by estoppel

Example: Owner accepted and occupied a newly constructed house without protest. This would amount to an
acknowledgement of the performance of the work by the contractor. He is also estopped from setting up the claim that the
material used in the construction of said house was not in accordance with the plans and specifications.