1458 (Paras)

As to quantity of of object?
Wholesale
Retail
Classification of the kind of sale based on its validity
Valid,Rescissible(1/4 of the value of the object of the
sale by guardians),voidable,unenforcable,vod
Art. 1459. The thing must be licit and the vendor must
have a right to transfer the ownership thereof at the time
it is delivered.
As to legality of the object?
Sale of licit-not outside the commerce of man
Sale of illicit-the resulting sale is void.

Classifications of illicit objects:
Illicit per se-of its nature ex:sale of human flesh
Illicit per accidens-made illegal by provision of law ex
sale of land to alien
Tangible or not?
1.Sale of property(tangible)-chose in possession
2.Sale of a right(cose in action=tangible)-copyright,
trademark or goodwill

Classification of its kind of sale based on the
presence or absence of a condition:
1.Absolute sale(no condition)-obligations of the
parties are demandable being an essential element
of the contract of sale
2.Conditional(pacto de retro, right to repurchase or
redeem, suspensive conditions,sale of future
harvest)
*In the presence or absence of condition limited to
accidental element y? contract of sale may or may
not have conditions

What are natural elements?
1.warranty against eviction(deprivation of prop
bought)
2.warranty against hidden defects
Distinguish from essential element?
Essential element
If you stipulate but
then you cant do it.
Contract is void
Natural element
If there is contrary
stipulation even if it is
an inherent element,
you may dispense with
it

Wholesale or retail?
Wholesale-quantity large, unalatered when resold
Retail(also if sold to tailors)
Characteristics of wholesale?
-quantity is large
-seller habitually engaged in selling a large number
of quantities
-resold, unaltered and for profit
-purchaser has no use of the goods or it is in excess
of his requirement
Sale to the publishing house of recycled paper-retail
sale already altered when sold became a book
Sale to junkshop-either wholesale or retail
Kinds of sale based on the proximate inducement
Sale by description-buyer relying on the sellers
representations or descriptions, He believes that
description tallies with the goods he has seen. Can
be erroneous belief
Sale by sample-the bulk of the goods shall
correspond with the sample in kind, quality and
character. Only the sample is exhibited the bulk not
present
Sale by description and sample-must satisfy both
requirements
Contract of sale valid if given reluctant consent?No
Reluctant consent is not vitiated consent
Can there be a perfected ccontract of sale if seller
fails to aquire ownership of the object of the sale at
the time of its supposed delivery to the buyer?
Yes it is still a perfected contract. Because it
is alredy perfected when there was meeting of the
minds. The ownership is required upon the delivery
If seller fails to deliver the prop at the time of its
supposed delivery, remedy?automatically void?
The contract is not automatically voided. An
action for damages based on breach of warranty
against eviction
What if it is an absolute sale w/o imposed condition
can there be an action for damages? Or there would
be mutual restitution?
May action for damages because warranty
against eviction is a natural element of the contract.
Unless may contrary stipulation. If seller does not
acquire ownership of the property may cause of
action for damages.
Can services be the object of a contract of sale?
No. because there can be no transfer ownership if
the object of the contract of sale is services
Art. 1460. A thing is determinate when it is particularly
designated or physically segregated from all others of the
same class.
The requisite that a thing be determinate is satis ed if
at the time the contract is entered into, the thing is capable
of being made determinate without the necessity of a new
or further agreement between the parties.
Determinate-it is sufficient that it be capable of
being determinate without need of any new
agreement.
-the thing cannot be determinate by the
stipulation of the parties bec. Even if the parties
stipulated that the thing is determinate but it is
not actually determinate under the provision of
the law it cannot be considered determinate
thing therefore it cannot be element or essential
element of a contract of sale
-if the thing cannot be designated or physically
segrageted sufficeient that it is capable of being
determinate w/o new agreement.
There can be a sale of 20 kilos of sugar of a
named quality

*if there is a necessity of making a new
agreement, this constitutes an obstacle to the
perfection of the contract

Art. 1461. Things having a potential existence may
the object of the contract of sale.
The efcacy of the sale of a mere hope or
expectancy is deemed subject to the condition that
the thing will into existence.The sale of a vain hope
or expectancy is void.
Validity of the thing having potential existence
Emptio Rei Speratio
-the sale of an
expected thing
-does not materialize
sale is not effective
-future thing
Ex
Emptio Spei
-and the sale of the
hope itself
-it does not matter,
important is that the
hope itself validly
existed
-present thing
Ex lottery

Vain Hope or Expectancy- Void, different from
aleatory contract(element of chance) in this case
none. Ex:losing ticket sa lottery
Validity of the thing to what will it
depend?INTENTION. Future crops
If a contact depends on the potential existence of a
thing but failed no valid contract
If the party merely intends to enter into a contract
valid pa din even If the potential thing did not
existed
Art. 1462. The goods which form the subject of a contract
of sale may be either existing goods, owned or possessed by
the seller, or goods to be manufactured, raised, or acquired
by the seller after the perfection of the contract of sale, in
this Title called future goods.
There may be a contract of sale of goods, whose acquisition
by the seller depends upon a contingency which
may or may not happen.
Kinds of goods?
1.Future goods-manufactured(future airplane),
raised(young animals),
acquired by seller after the perfection of the
contract, acquisition depends upon contingency
a,anyting you promised which you do
not have ownership of yet. May be the subject of
a contract of sale because you can acquire
ownership
b.anything you may acquire after the
perfection of the contract ex you promise to sell
a parcel of land which you do not have
ownership yet. At the time of the perfection of
the contract of sale. If you acquire it
subsequently.
2.Existing goods-owned and possessed by the
seller at the time of the sale
Is that goods money. No. As a legal tender
cannot be subject of goods.

What are the kinds of delivery?
1. Actual - physical delivery to the buyer which
transfer ownership
Transfer of personal property actual
physical transfer of possession

2. Constructive merely symbolic delivery
which also transfers ownership
- i.e. In real property by giving of the title or
execution of the deed of conveyance

What are fungible and non-fungible goods?
Fungible If based on the intention of the
parties, it may be substituted
Non-fungible it cannot be substituted
What are consumable and non-consumable
things?
Consumable by the nature of the object it
cannot
be used w/o being consumed
Non-consumable it can be used even w/o
being consumed
What is the basis of their distinction?
Consumable and nonconsumable

The nature of the thing.

What is the basis of the distinction between a
fungible andnon-fungible?
Intention of the parties
Can a real property be fungible?
A Real property is actually non-consumable but
if it is based on the intention of the parties they
may be considered fungible
Even if the thing is consumable by nature (i.e.
rice, sugar, salt)
if the intention of the parties are for them to be
returned, it is
non-fungible.
i.e. If the intention of the parties is for
exhibition.
What is the rule regarding sale of fungible
goods?
There may be sale of undivided share of
specificmass although the seller purports to sell
and thebuyer
i.e. Buyer wants to buy 100 cavans of rice. The
entire massproduced is 150. 100 cavans should
be owned by the buyerwho purports to buy
specific numbers, weight or measure. Since the
cavans turned out to be more than what the
buyer
wants what will be the resulting ownership of
the entiremass? The seller and the buyer will
both own the 150 cavansin proportion to what
they actually buy and sell. 100 cavanswill be
owned by the buyer the remaining 50 will be
ownedby the seller. The entire mass will be co-
owned by them.
What happens if the entire mass only produced
50 cavans?
It will entirely be owned by the buyer.
What will happen to the remaining 50? Is the
contract validonly w/ respect to 50 cavans
produced?
Yes but the seller is obligated to fulfill the
remainingobligations (remaining 50) because
that is thesubject of the contract of sale.
Distinguish bet. Sale and Agency
1. Seller receives the
purchase
price from the buyer
as owner
2. seller directly
receives thepurchase
price

3. buyer becomes the
owner
of the object upon its
delivery

4. if the goods/object
isdefective the buyer
cannotreturn the
them. His remedyis
damages
Agent receives the
payment
in trust for the seller
with
the obligation to
deliver the
price to the seller
Agent receives the
purchase
price in behalf of the
seller
Even if there is
delivery the
agent does not
acquire
ownership over the
object of
the contract
Agent can return the
goods

Test to determine whether the contract is a
sale or agency
1.acquistion of ownership
2.resulting relationship whether buyer and
seller or principal and agent
a.sale results in a debtor creditor
relationship
b. In an agency is the agent liable to
the seller?no. because he merely acts on
behalf of the seller
SALES2
What is Cession?
Cession- that which consist in the abandonment of
all the property of the debtor for the benefit of his
creditors in order that the latter may apply the
proceeds thereof to the satisfaction of their credits
It is a mode of payment whereby the debtor assigns
his property to his creditors on the matter of which
to acquire the right on the thing and to apply the
proceeds to the debts of the debtor. It is the
assignment of all and not just the sum of the
property of debtor in favour of the creditor not for
thecreditor to acquire ownership of the thing
assigned to them but for them to have the right to
sell them and after the sale the proceeds shall be
applied to the debt andthat is how the debts are
paid. That is cession.
What is the distinction between Cession and Dation
in Payment?
Dation in Payment
-1 creditor
-not all props of the
debtor are conveyed
-solvent or insolvent
-creditor becomes
owner of the thing
conveyed
Cession
-2 or more creditors
-all debtors props are
conveyed
-only when his
insolvent
-creditors do not
become owners of the
thing

How many creditors are there in Dation in payment
and how many creditors are there in Cession?
In dation in payment one creditor is sufficient and in
Cession there must be two or more creditors.
As to the number of property given by the debtor.
We all know that in cession all of the properties
must be assigned and not some of them. In dation in
payment one is enough as long as the value of the
property is sufficient to answer for the debts. The
number of the property will depend on the amount
of the debt. If one property is sufficient to cover the
debt and that is accepted by the creditor then dation
in payment will be completed even if you assign or
give 3 properties should the value will not be
sufficient there can never be dation in payment and
the
creditor will assign and not accept your property.
But the general rule is for as long as it is sufficient
and the same is acceptable to the creditor then one
property is enough. Again as compared in cession all
the property must be ceded or assigned whether or
not it is twice or thrice the value of the debt of the
debtor.
As regards solvency of the debtor whats the rule?
Do they have to know the solvency of the debtor in
dation in payment? How about in cession?
In dation in payment it does not matter whether the
debtor is solvent or insolvent.
In cession the debtor required to be insolvent.
Why require being insolvent in cession?
We are agreeing that you need to be insolvent for
you to have applied or for you to have cession or for
you to abandon all your property and give it to all
your creditors for them to sell it and apply the
proceeds to your debt.
If you are insolvent the presumption is that your
asset is less than your liabilities. If your asset is more
than your liabilities,because after the sale you still
have the remaining balance over the liability, then
you are solvent and if you are not insolvent then it
would not apply cession. You have to take the
consequences of insolvency, your debt to your
creditor share whatever asset you have remain. If
you have asset more than your liability then your
creditor may without abandoning all your property
because if you have abandon your property to your
creditor you have nothing to get back because all the
proceeds will be divided to your creditor depending
on the range of liability or the debts that you owe
your creditor. You have to be insolvent because it is
a requisite for the abandonment of all your property.
The presumption there is you cant claim all of them
o that in order for you to be relieved from liability
you are showing them that you have given them all
your property such that even if it less than the value
of the debt share depending on the debt you owe to
them on a pro rata basis. Thats why you have to be
insolvent first before you can apply cession.
What is the contract to sell?
A contact to sell is a bilateral agreement whereby
the seller while reserving right on ownership to the
property binds himself to sell the property upon
payment of the purchase price by the prospective
buyer so the obligation of the prospective seller is
not to get the transfer of ownership but actually the
obligation to sell because a contract of sale is
different from the contract to sell. Upon compliance
of the prospective buyer of his obligation to pay the
purchase price then the seller now is bound to enter
Into a contract of sale whereby he is required to
transfer ownership. So in a contract to sell the
obligation is actually first to be bound to sell the
object subject of the contract upon payment of the
full purchase price then the seller is now to sell
deliver and transfer ownership.
Art. 1458. By the contract of sale one of the
contracting parties obligates himself to transfer the
ownership and to deliver a determinate thing, and
the other to pay therefor a price certain in money
or its equivalent.
A contract of sale may be absolute or conditional.
(1445a)

Art. 1459. The thing must be licit and the vendor
must have a right to transfer the ownership thereof
at the time it is delivered. (n)

Art. 1460. A thing is determinate when it is
particularly designated or physical segregated from
all other of the same class.

The requisite that a thing be determinate is
satisfied if at the time the contract is entered into,
the thing is capable of being made determinate
without the necessity of a new or further
agreement between the parties. (n)

Art. 1461. Things having a potential existence may
be the object of the contract of sale.

The efficacy of the sale of a mere hope or
expectancy is deemed subject to the condition that
the thing will come into existence.

The sale of a vain hope or expectancy is void. (n)

Art. 1462. The goods which form the subject of a
contract of sale may be either existing goods,
owned or possessed by the seller, or goods to be
manufactured, raised, or acquired by the seller
after the perfection of the contract of sale, in this
Title called "future goods."

There may be a contract of sale of goods, whose
acquisition by the seller depends upon a
contingency which may or may not happen. (n)

Art. 1463. The sole owner of a thing may sell an
undivided interest therein. (n)

Art. 1464. In the case of fungible goods, there may
be a sale of an undivided share of a specific mass,
though the seller purports to sell and the buyer to
buy a definite number, weight or measure of the
goods in the mass, and though the number, weight
or measure of the goods in the mass is
undetermined. By such a sale the buyer becomes
owner in common of such a share of the mass as
the number, weight or measure bought bears to
the number, weight or measure of the mass. If the
mass contains less than the number, weight or
measure bought, the buyer becomes the owner of
the whole mass and the seller is bound to make
good the deficiency from goods of the same kind
and quality, unless a contrary intent appears. (n)

Art. 1465. Things subject to a resolutory condition
may be the object of the contract of sale. (n)

Art. 1466. In construing a contract containing
provisions characteristic of both the contract of sale
and of the contract of agency to sell, the essential
clauses of the whole instrument shall be
considered. (n)

Art. 1467. A contract for the delivery at a certain
price of an article which the vendor in the ordinary
course of his business manufactures or procures for
the general market, whether the same is on hand at
the time or not, is a contract of sale, but if the
goods are to be manufactured specially for the
customer and upon his special order, and not for
the general market, it is a contract for a piece of
work. (n)

Art. 1468. If the consideration of the contract
consists partly in money, and partly in another
thing, the transaction shall be characterized by the
manifest intention of the parties. If such intention
does not clearly appear, it shall be considered a
barter if the value of the thing given as a part of the
consideration exceeds the amount of the money or
its equivalent; otherwise, it is a sale. (1446a)

Art. 1469. In order that the price may be considered
certain, it shall be sufficient that it be so with
reference to another thing certain, or that the
determination thereof be left to the judgment of a
special person or persons.

Should such person or persons be unable or
unwilling to fix it, the contract shall be
inefficacious, unless the parties subsequently agree
upon the price.

If the third person or persons acted in bad faith or
by mistake, the courts may fix the price.

Where such third person or persons are prevented
from fixing the price or terms by fault of the seller
or the buyer, the party not in fault may have such
remedies against the party in fault as are allowed
the seller or the buyer, as the case may be. (1447a)

Art. 1470. Gross inadequacy of price does not affect
a contract of sale, except as it may indicate a defect
in the consent, or that the parties really intended a
donation or some other act or contract. (n)

Art. 1471. If the price is simulated, the sale is void,
but the act may be shown to have been in reality a
donation, or some other act or contract. (n)

Art. 1472. The price of securities, grain, liquids, and
other things shall also be considered certain, when
the price fixed is that which the thing sold would
have on a definite day, or in a particular exchange
or market, or when an amount is fixed above or
below the price on such day, or in such exchange or
market, provided said amount be certain.