1. Delfin Tan, Petitioner, v. Erlinda C. Benolirao, Andrew C. Benolirao, Romano C.

Benolirao, Dion C. Benolirao, Sps. Reynaldo Taningco and Norma D. Benolirao,

Evelyn T. Monreal, and Ann Karina Taningco, Respondents, G.R. No. 153820, 16
October 2009.

FACTS:
Spouses Lamberto and Erlinda Benolirao and the Spouses Reynaldo and Norma
Taningco were the co-owners of a parcel of land located in Tagaytay City. On
October 6, 1992, the co-owners executed a Deed of Conditional Sale over the
property in favor of Tan for the price of P1,378,000.00. The deed stated:
a) An initial down-payment of TWO HUNDRED (P200,000.00) THOUSAND PESOS,
upon signing of the contract; then the remaining balance of ONE MILLION
ONE HUNDRED SEVENTY EIGHT THOUSAND (P1,178,000.00) PESOS, shall be
payable within a period of one hundred fifty (150) days from date hereof
without interest;
b) That for any reason, BUYER fails to pay the remaining balance within above
mentioned period, the BUYER shall have a grace period of sixty (60) days
within which to make the payment, provided that there shall be an interest of
15% per annum on the balance amount due from the SELLERS;
c) That should in case (sic) the BUYER fails to comply with the terms and
conditions within the above stated grace period, then the SELLERS shall have
the right to forfeit the down payment, and to rescind this conditional sale
without need of judicial action;
d) That in case, BUYER have complied with the terms and conditions of this
contract, then the SELLERS shall execute and deliver to the BUYER the
appropriate Deed of Absolute Sale;
Tan issued and delivered to the co-owners/vendors check for P200,000 as down
payment for the property, respective receipt issued by vendors.
On November 6, 1992, Lamberto Benolirao died intestate. The heirs of the deceased
executed an extrajudicial settlement of Lambertos estate on January 20, 1993. A
new certificate of title over the property was issued on March 26, 1993 in the names
of the Spouses Reynaldo and Norma Taningco and Erlinda Benolirao and her
children.
As stated in the Deed of Conditional Sale, Tan had until March 15, 1993 to pay the
balance of the purchase price. This period was extended by two months as agreed
by the parties, Tan had until May 15, 1993 to pay the balance. Tan failed to pay and
another extension was granted by the vendors. Tan still failed to pay the remaining
balance due on May 21, 1993. The vendors demanded payment of the balance of
the purchase price within five (5) days from notice; otherwise, they would declare the
rescission of the conditional sale and the forfeiture of his down payment based on
the terms of the contract.
Tan refused to comply with the vendors demand and instead wrote them a letter
dated May 28, 1993 claiming that the annotation on the title constituted an
encumbrance on the property that would prevent the vendors from delivering a
clean title to him. Thus, he alleged that he could no longer be required to pay the
balance of the purchase price and demanded the return of his down payment.
The vendors refused to refund the down payment, Tan, through counsel, sent another
demand letter to the vendors on June 18, 1993. The vendors still refused to heed Tans
demand, prompting Tan to file on June 19, 1993 a complaint with the RTC for specific
performance against the vendors. Tan alleged that there was a novation of the Deed
of Conditional Sale done without his consent since the annotation on the title

created an encumbrance over the property. Tan prayed for the refund of the down
payment and the rescission of the contract.
On August 9, 1993, Tan amended his Complaint, contending that if the respondents
insist on forfeiting the down payment, he would be willing to pay the balance of the
purchase price provided there is reformation of the Deed of Conditional Sale. In the
meantime, Tan caused the annotation on the title of a notice of lis pendens.
On August 21, 1993, the respondents the property to Hector de Guzman (de
Guzman) for P689,000.
The respondents moved for the cancellation of the notice of lis pendens on the
ground that it was inappropriate since the case that Tan filed was a personal action
which did not involve either title to, or possession of, real property. The RTC issued an
order dated October 22, 1993 granting the respondents motion to cancel the lis
pendens annotation on the title.
Meanwhile, based on the Deed of Absolute Sale in his favor, de Guzman registered
the property and TCT No. 28104 was issued in his name. Tan then filed a motion to
carry over the lis pendens annotation to TCT No. 28104 registered in de Guzmans
name, but the RTC denied the motion.
On September 8, 1995, after due proceedings, the RTC rendered judgment ruling that
the respondents forfeiture of Tans down payment was proper in accordance with the
terms and conditions of the contract between the parties.The RTC ordered Tan to pay
the respondents the amount of P30,000.00, plus P1,000.00 per court appearance, as
attorneys fees, and to pay the cost of suit.
On appeal, the CA dismissed the petition and affirmed the ruling of the trial court in
toto. Hence, the petition.
ISSUE: Whether or not the contract between the parties is a contract of sale or a
contract of sale.

RULING: The petition is granted.

The contract between the parties was merely a contract to sell where the vendors
retained title and ownership to the property until Tan had fully paid the purchase
price. Since Tan had no claim of ownership or title to the property yet, he obviously
had no right to ask for the annotation of a lis pendens notice on the title of the
property.
A contract is what the law defines it to be, taking into consideration its essential
elements, and not what the contracting parties call it as stated by Article 1485 of the
Civil Code
The very essence of a contract of sale is the transfer of ownership in exchange for a
price paid or promised.
In contrast, a contract to sell is defined as a bilateral contract whereby the
prospective seller, while expressly reserving the ownership of the property despite
delivery thereof to the prospective buyer, binds himself to sell the property exclusively
to the prospective buyer upon fulfilment of the condition agreed, i.e., full payment of
the purchase price. A contract to sell may not even be considered as a conditional
contract of sale where the seller may likewise reserve title to the property subject of

the sale until the fulfilment of a suspensive condition, because in a conditional

contract of sale, the first element of consent is present, although it is conditioned
upon the happening of a contingent event which may or may not occur.
Jurisprudence has established that where the seller promises to execute a deed of
absolute sale upon the completion by the buyer of the payment of the price, the
contract is only a contract to sell.12 Thus, while the contract is denominated as a
Deed of Conditional Sale, the presence of the above-quoted provision identifies the
contract as being a mere contract to sell.
Contract to sell is not rescinded but terminated
What then happens to the contract?
We have held in numerous cases that the remedy of rescission under Article 1191
cannot apply to mere contracts to sell. We explained the reason for this in Santos v.
Court of Appeals,19 where we said:
[I]n a contract to sell, title remains with the vendor and does not pass on to
the vendee until the purchase price is paid in full. Thus, in a contract to sell,
the payment of the purchase price is a positive suspensive condition. Failure
to pay the price agreed upon is not a mere breach, casual or serious, but a
situation that prevents the obligation of the vendor to convey title from
acquiring an obligatory force. This is entirely different from the situation in a
contract of sale, where non-payment of the price is a negative resolutory
condition. The effects in law are not identical. In a contract of sale, the
vendor has lost ownership of the thing sold and cannot recover it, unless the
contract of sale is rescinded and set aside. In a contract to sell, however, the
vendor remains the owner for as long as the vendee has not complied fully
with the condition of paying the purchase price. If the vendor should eject the
vendee for failure to meet the condition precedent, he is enforcing the
contract and not rescinding it. x x x Article 1592 speaks of non-payment of the
purchase price as a resolutory condition. It does not apply to a contract to
sell. As to Article 1191, it is subordinated to the provisions of Article 1592 when
applied to sales of immovable property. Neither provision is applicable [to a
contract to sell]. [Emphasis supplied.]
We, therefore, hold that the contract to sell was terminated when the vendors could
no longer legally compel Tan to pay the balance of the purchase price as a result of
the legal encumbrance which attached to the title of the property. Since Tans
refusal to pay was due to the supervening event of a legal encumbrance on the
property and not through his own fault or negligence, we find and so hold that the
forfeiture of Tans down payment was clearly unwarranted.
NOTES:
- In an action affecting the title or the right of possession of real property, the
plaintiff and the defendant, when affirmative relief is claimed in his answer,
may record in the office of the registry of deeds of the province in which the
property is situated a notice of the pendency of the action.
- Said notice shall contain the names of the parties and the object of the
action or defense, and a description of the property in that province affected
thereby.
- Only from the time of filing such notice for record shall a purchaser, or
encumbrancer of the property affected thereby, be deemed to have
constructive notice of the pendency of the action, and only of its pendency
against the parties designated by their real names.
- The notice of lis pendens hereinabove mentioned may be cancelled only
upon order of the court, after proper showing that the notice is for the

purpose of molesting the adverse party, or that it is not necessary to protect

the rights of the party who caused it to be recorded.
The litigation subject of the notice of lis pendens must directly involve a
specific property which is necessarily affected by the judgment

The settled rule is that the aim and object of an action determine its
character. Whether a proceeding is in rem, or in personam, or quasi in rem for
that matter, is determined by its nature and purpose, and by these only.
A proceeding in personam is a proceeding to enforce personal rights and
obligations brought against the person and is based on the jurisdiction of the
person, although it may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose of it in
accordance with the mandate of the court.
The purpose of a proceeding in personam is to impose, through the judgment
of a court, some responsibility or liability directly upon the person of the
defendant.
Of this character are suits to compel a defendant to specifically perform
some act or actions to fasten a pecuniary liability on him.

IMPORTANT:
- A Section 4, Rule 74 annotation is an encumbrance on the propert
- While Tan admits that he refused to pay the balance of the purchase price,
he claims that he had valid reason to do so the sudden appearance of an
annotation on the title pursuant to Section 4, Rule 74 of the Rules, which Tan
considered an encumbrance on the property.
- We find Tans argument meritorious.
- The annotation placed on TCT No. 27335, the new title issued to reflect the
extrajudicial partition of Lamberto Benoliraos estate among his heirs, states:x x
x any liability to credirots (sic), excluded heirs and other persons having right
to the property, for a period of two (2) years, with respect only to the share of
Erlinda, Andrew, Romano and Dion, all surnamed Benolirao
- This annotation was placed on the title pursuant to Section 4, Rule 74 of the
Rules, which reads: Sec. 4. Liability of distributees and estate. - If it shall appear
at any time within two (2) years after the settlement and distribution of an
estate in accordance with the provisions of either of the first two sections of
this rule, that an heir or other person has been unduly deprived of his lawful
participation in the estate, such heir or such other person may compel the
settlement of the estate in the courts in the manner hereinafter provided for
the purpose of satisfying such lawful participation. And if within the same time
of two (2) years, it shall appear that there are debts outstanding against the
estate which have not been paid, or that an heir or other person has been
unduly deprived of his lawful participation payable in money, the court having
jurisdiction of the estate may, by order for that purpose, after hearing, settle
the amount of such debts or lawful participation and order how much and in
what manner each distributee shall contribute in the payment thereof, and
may issue execution, if circumstances require, against the bond provided in
the preceding section or against the real estate belonging to the deceased,
or both. Such bond and such real estate shall remain charged with a liability
to creditors, heirs, or other persons for the full period of two (2) years after such
distribution, notwithstanding any transfers of real estate that may have been
made.
- Vda. de Francisco v. Carreon:And Section 4, Rule 74 xxx expressly authorizes
the court to give to every heir his lawful participation in the real estate
"notwithstanding any transfers of such real estate" and to "issue execution"
thereon. All this implies that, when within the amendatory period the realty

has been alienated, the court in re-dividing it among the heirs has the
authority to direct cancellation of such alienation in the same estate
proceedings, whenever it becomes necessary to do so. To require the
institution of a separate action for such annulment would run counter to the
letter of the above rule and the spirit of these summary settlements.
By the time Tans obligation to pay the balance of the purchase price arose
on May 21, 1993 (on account of the extensions granted by the respondents),
a new certificate of title covering the property had already been issued on
March 26, 1993, which contained the encumbrance on the property; the
encumbrance would remain so attached until the expiration of the two-year
period.
Clearly, at this time, the vendors could no longer compel Tan to pay the
balance of the purchase since considering they themselves could not fulfill
their obligation to transfer a clean title over the property to Tan.