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*
G.R. No. 134219. June 8, 2005.

SPOUSES MARIO AND ELIZABETH TORCUATOR,

petitioners, vs. SPOUSES REMEGIO AND GLORIA
BERNABE and SPOUSES DIOSDADO and LOURDES
SALVADOR, respondents.

Contracts; Sales; Words and Phrases; In a contract of sale,

title passes to the buyer upon delivery of the thing sold, while in a
contract to sell, ownership is reserved in the seller and is not to
pass until the full payment of the purchase price is made.—The
differences between a contract to sell and a contract of sale are
well-settled in jurisprudence. As early as 1951, we held that in a
contract of sale, title passes to the buyer upon delivery of the
thing sold, while in a contract to sell, ownership is reserved in the
seller and is not to pass until the full payment of the purchase
price is made. In the first case, non-payment of the price is a
negative resolutory condition; in the second case, full payment is a
positive suspensive condition. Being contraries, their effect in law
cannot be identical. In the first case, the vendor has lost and
cannot recover the ownership of the land sold until and unless the
contract of sale is itself resolved and set aside. In the second case,
however, the title remains in the vendor if the vendee does not
comply with the condition precedent of making payment at the
time specified in the contract. In other words, in a contract to

_______________

* SECOND DIVISION.

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sell, ownership is retained by the seller and is not to pass to the

buyer until full payment of the price or the fulfillment of some
other conditions either of which is a future and uncertain event
the non-happening of which is not a breach, casual or serious, but
simply an event that prevents the obligation of the vendor to
convey title from acquiring binding force.
Same; Same; Consignation; Mere sending of a letter by the
vendee expressing the intention to pay without the accompanying
payment is not considered a valid tender of payment—
consignation of the amount due in court is essential in order to
extinguish the obligation to pay and oblige the vendor to convey
title; The rule is different in cases which involve an exercise of a
right or privilege, such as in an option contract, legal redemption
or sale with right to repurchase, wherein mere tender of payment
would be sufficient to preserve the right or privilege.—The trial
court correctly noted that petitioners should have consigned the
amount due in court instead of merely sending respondents a
letter expressing interest to push through with the transaction.
Mere sending of a letter by the vendee expressing the intention to
pay without the accompanying payment is not considered a valid
tender of payment. Consignation of the amount due in court is
essential in order to extinguish the obligation to pay and oblige
the vendor to convey title. On this score, even assuming that the
agreement was a contract of sale, respondents may not be
compelled to deliver the property and execute the deed of absolute
sale. In cases such as the one before us, which involve the
performance of an obligation and not merely the exercise of a
privilege or right, payment may be effected not by mere tender
alone but by both tender and consignation. The rule is different in
cases which involve an exercise of a right or privilege, such as in
an option contract, legal redemption or sale with right to
repurchase, wherein mere tender of payment would be sufficient
to preserve the right or privilege. Hence, absent a valid tender of
payment and consignation, petitioners are deemed to have failed
to discharge their obligation to pay.
Same; Same; Statute of Frauds; Words and Phrases; The term
“Statute of Frauds” is descriptive of statutes which require certain
classes of contracts, such as agreements for the sale of real
property, to be in writing, the purpose being to prevent fraud and
perjury in the enforcement of obligations depending for their
evidence on the unassisted memory of witnesses by requiring
certain enumerated contractions and transactions to be evidenced
by a writing signed by the party to be charged; The written note or
memorandum, as contemplated by Article 1403 of the Civil Code,
should embody the essentials of the contract.—The term “Statute
of Frauds” is descriptive of statutes which require certain classes
of contracts, such as agreements

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for the sale of real property, to be in writing. It does not deprive

the parties the right to contract with respect to the matters
therein involved, but merely regulates the formalities of the
contract necessary to render it enforceable. The purpose of the
statute is to prevent fraud and perjury in the enforcement of
obligations depending for their evidence on the unassisted
memory of witnesses by requiring certain enumerated contracts
and transactions to be evidenced by a writing signed by the party
to be charged. The written note or memorandum, as contemplated
by Article 1403 of the Civil Code, should embody the essentials of
the contract.
Same; Same; Same; A party’s acceptance of an agreement
foisted by the other party on the former is deemed to have arisen
from the former’s failure to object to the testimony of the latter on
the matter and in his cross-examination of said party thereon.—
Conformably with Article 1405 of the Civil Code, however,
respondents’ acceptance of the agreement foisted by petitioners on
them is deemed to have arisen from their failure to object to the
testimony of petitioner Mario Torcuator on the matter and their
cross-examination of said petitioner thereon.
Same; Same; Attorneys; It is quite implausible that a lawyer
would not take the precaution of checking the original title of the
property with the Registry of Deeds to ascertain whether there are
annotations therein that would prejudice his position.—Despite
petitioners’ remonstration that the inscriptions on the title are
“hardly legible,” we are inclined to give credence to respondents’
account. It is quite implausible that a lawyer such as petitioner
Mario Torcuator would not take the precaution of checking the
original title of the property with the Registry of Deeds to
ascertain whether there are annotations therein that would
prejudice his position.
Same; In order to declare an agreement void for being
contrary to good customs and morals, it must first be shown that
the object, cause or purpose thereof contravenes the generally
accepted principles of morality which have received some kind of
social and practical confirmation.—In order to declare the
agreement void for being contrary to good customs and morals, it
must first be shown that the object, cause or purpose thereof
contravenes the generally accepted principles of morality which
have received some kind of social and practical confirmation. We
are not inclined to rule that the transaction in this case offended
good customs and morals. It should be emphasized that the
proscription imposed by Ayala Corporation was on the resale of
the property without a residential house having been constructed
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thereon. The condition did not require that the original lot buyer
should himself construct a residential house on the

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property, only that the original buyer may not resell a vacant lot.
In view of our finding that the agreement between the parties was
a mere contract to sell, no violation of the condition may be
inferred from the transaction as no transfer of ownership was
made. In fact, the agreement in this case that petitioners will
construct a residential house on the property in the name of the
Salvadors (who retained ownership of the property until the
fulfillment of the twin conditions of payment and construction of a
residence) was actually in compliance with or obeisance to the
condition.
Same; Taxation; Capital gains taxes are only imposed on
gains presumed to have been realized from sales, exchanges or
dispositions of property.—The issue of whether the agreement
violated the law as it deprived the government of capital gains tax
is wholly irrelevant. Capital gains taxes, after all, are only
imposed on gains presumed to have been realized from sales,
exchanges or dispositions of property. Having declared that the
contract to sell in this case was aborted by petitioners’ failure to
comply with the twin suspensive conditions of full payment and
construction of a residence, the obligation to pay taxes never
arose. Hence, any error the appellate court may have committed
when it passed upon the issue of taxes despite the fact that no
evidence on the matter was pleaded, adduced or proved is rather
innocuous and does not warrant reversal of the decisions under
review.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

          Del Rosario, Mendoza, Tiamson, Gabriel & Pulido
Law Office for petitioners.
          Ariel Salvador H. Magno Law Office for private
respondents.

TINGA, J.:
1
In the instant Petition, spouses
2
Mario and Elizabeth
Torcuator assail the Decision of the Court of Appeals in
C.A.-G.R. CV No.
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_______________

1 Rollo, pp. 13-42; Dated August 6, 1998.

2 Id., at pp. 44-49. The Decision dated January 30, 1998 was penned by
Associate Justice Conrado M. Vasquez, Jr. and concurred in by Associate
Justices Fermin A. Martin, Jr. and Artemio G. Tuquero.

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36427, which affirmed the trial court’s

3
dismissal of their4
complaint for specific performance, and its Resolution
which denied their motion for reconsideration.
The facts as summarized by the Court of Appeals are as
follows:

The subject of this action is Lot 17, Block 5 of the Ayala Alabang
Village, Muntinlupa, Metro-Manila, with an area of 569 square
meters and covered by TCT No. S-79773. The lower court found
that the above parcel of land was purchased by the spouses
Diosdado and Lourdes Salvador (Salvadors, for short) from the
developers of Ayala Alabang subject, among others, to the
following conditions:—

“It is part of the condition of buying a lot in Ayala Alabang Village (a)
that the lot buyer shall deposit with Ayala Corporation a cash bond
(about P17,000.00 for the Salvadors) which shall be refunded to him if he
builds a residence thereon within two (2) years of purchase, otherwise the
deposit shall be forfeited, (b) architectural plans for any improvement
shall be approved by Ayala Corporation, and (c) no lot may be resold by
the buyer unless a residential house has been constructed thereon (Ayala
Corporation keeps the Torrens Title in their [sic] possession).
(p. 5, RTC Decision)

Evidences on record further reveal that on December 18, 1980,

the Salvadors sold the parcel of land to the spouses Remigio and
Gloria Bernabe (Bernabes, for expediency). Given the above
restrictions, the Salvadors concomitantly executed a special power
of attorney authorizing the Bernabes to construct a residential
house on the lot and to transfer the title of the property in their
names.
The Bernabes, on the other hand, without making any
improvement, contracted to sell the parcel of land to the spouses
Mario and Elizabeth Torcuator (Torcuators, for brevity) sometime
in September of 1986. Then again, confronted by the Ayala
Alabang restrictions, the parties agreed to cause the sale between
the Salvadors and the Bernabes cancelled (Exhibit “D”), in favor
of (a) a new deed of sale from the Salvadors directly to the

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Torcuators; (b) a new Irrevocable Special Power of Attorney

(Exhibit “F”)

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3 Decision, dated August 20, 1991 penned by Judge Salvador P. De Guzman,

Jr., Regional Trial Court, Branch 142, Makati, Metro Manila; id., at pp. 53-61.
4Id., at p. 51; Dated June 15, 1998.

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executed by the Salvadors to the Torcuators in order for the latter

to build a house on the land in question; and (c) an Irrevocable
Special Power of Attorney (Exhibit “E”) from the Salvadors to the
Bernabes authorizing the latter to sell, transfer and convey, with
power of substitution, the subject lot.
The Torcuators thereafter had the plans of their house
prepared and offered to pay the Bernabes for the land upon
delivery of the sale contract. For one reason or another, the deed
of sale was never consummated nor was payment on the said sale
ever effected. Subsequently, the Bernabes sold the subject land to
Leonardo Angeles, a brother-in-law (Exh. “7”). The document
however is not notarized. As a result, the Torcuators commenced
the instant action against the Bernabes and Salvadors for Specific
Performance or Rescission with Damages.
After trial, the court a quo rendered its decision, the decretal
portion reads:—

“From all the foregoing disquisition, especially since the plaintiffs did not
suffer any real damage (by January, 1987 they could have purchased
another lot in Ayala Alabang, and the architectural plans they
commissioned Arch. Selga to prepare could then be used by the
plaintiffs), the complaint filed by the plaintiff spouses is dismissed. Since
the plaintiff acted with sincerity and without delay in asserting what
they believed to be their prerogatives, i.e., without any malice or desire to
take advantage of another, the counter-claim interposed by the Bernabes
against the Torcuator spouses is similarly dismissed.
5

Makati, Metro-Manila, August 20, 1991.

The Court of Appeals dismissed the appeal, ruling that the

sale between the Bernabes and the Torcuators was tainted
with serious irregularities and bad faith. The appellate
court agreed with the trial court’s conclusion that the
parties entered into the contract with the intention of
reneging on the stipulation disallowing the sale or transfer
of vacant lots in Ayala Alabang Village.
It also ruled that the parties deprived the government of
taxes when they made it appear that the property was sold
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directly by the Salvadors to the Torcuators. Since there

were actually two

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5Id., at pp. 44-46.

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sales, i.e., the first sale between the Salvadors and the
Bernabes and the second between the Bernabes and6
Torcuators, taxes should have been paid for both transfers.
The Court of Appeals denied 7
petitioners’ motion for
reconsideration in its Resolution dated June 15, 1998.
Petitioners then filed the instant petition, averring that
the appellate court erred in dismissing their appeal on the
strength of issues which were neither pleaded nor proved.
The conditions allegedly imposed by Ayala Corporation on
the sale of lots in Ayala Alabang Village were: “(a) that the
lot-buyer shall deposit with Ayala Corporation a cash bond
(about P17,000.00 for the Salvadors) which shall be
refunded to him if he builds a residence thereon within two
(2) years of purchase, otherwise the deposit shall be
forfeited; (b) architectural plans for any improvement shall
be approved by Ayala Corporation; and (c) no lot may be
resold by the buyer unless a residential house has been
constructed thereon (Ayala Corporation
8
keeps the Torrens
title in their (sic) possession.)”
According to petitioners, the stipulation prohibiting the
sale of vacant lots in Ayala Alabang Village, adverted to by
the appellate court in its decision as evidence that the sale
between the Bernabes and the Torcuators was tainted with
serious irregularities, was never presented or offered in
evidence by any of the parties. Without such stipulation
having been presented, marked and offered in evidence, the
trial court and the appellate court should not have
considered the same.
The appellate court allegedly also erred in declaring that
the contract of sale subject of the case is void, as it was
intended to deprive the government of revenue since the
matter of taxes was not even mentioned in the appealed
decision of the trial court.

_______________

6Id., at pp. 44-49.

7Supra, note 4.
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8 CA Records, pp. 36-37. Brief for the Appellants dated August 27,
1992.

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Further, petitioners assert that the contract was a

perfected contract of sale not a mere contract to sell. The
trial court thus erred in declaring that the contract was
void due only to petitioners’ failure to deliver the agreed
consideration. Likewise, the fact that the contract calls for
the payment of the agreed purchase price in United States
Dollars does not result in the contract being void. The most
that could be demanded, in accordance with jurisprudence,
is to pay the obligation in Philippine currency.
Petitioners also dispute the trial court’s finding that
they did not suffer any real damage as a result of the
transaction. On the contrary, they claim that respondents’
refusal to transfer the property caused them actual and
moral damages.
Respondents filed 9their Comment/Opposition (To the
Petition for Certiorari) dated November 4, 1998 countering
that petitioners knew of the condition prohibiting the sale
of vacant lots in Ayala Alabang Village as the same was
annotated on the title of the property which was submitted
and adopted by both parties as their evidence. The fact that
the agreement required petitioners to construct a house in
the name of the Salvadors shows that petitioners
themselves knew of the condition and acknowledged its
validity.
As regards petitioners’ contention that the Court of
Appeals should not have ruled on the matter of taxes due
the government, respondents assert that the appellate
court has the power to review the entire case to determine
the validity of the judgment of the lower court. Thus, it
may review even matters which were not raised on appeal.
Respondents refer to the circumstances surrounding the
transaction as proof that the parties entered into a mere
contract to sell and not a contract of sale. Allegedly, the
memorandum containing the agreement of the parties
merely used the term “offer.” The payment of the purchase
price was ostensibly a condition sine qua non to the
execution of the deed of sale in favor of petitioners,
especially since the Bernabes came to the Philippines with
the express purpose of selling the property and were
leaving for the United

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9 Rollo, pp. 70-83.

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States as soon as they were paid. Moreover, petitioners

were required to construct a residential house on the
property before it could be sold to them in accordance with
the condition imposed by Ayala Corporation.
Further, respondents maintain that the transaction was
not consummated due to the fault of petitioners who failed
not only to prepare the necessary documentation but also
to pay the purchase price for the property. They also argue
that the special power of attorney executed by the
Salvadors in favor of petitioners merely granted the latter
the right to construct a residential house on the property in
the name of the Salvadors. The original document was not
even given to the Torcuators precisely because they have
not paid the purchase price. 10
Petitioners filed a Reply dated January 20, 1999 in
reiteration of their arguments.
11
In the Resolution dated February 10, 1999, the parties
were required to file their respective memoranda. 12
Accordingly, petitioners filed their Memorandum on April
19, 1999. On the other hand, in view of respondents’
disappearance without notice, 13the Court resolved to
dispense with their memorandum.
The trial court denied petitioners’ complaint on three (3)
grounds, namely: (1) the alleged nullity of the contract
between the parties as it violated Ayala Corporation’s
condition that the construction of a house is a prerequisite
to any sale of lots in Ayala Alabang Village; (2) non-
payment of the purchase price; and (3) the nullity of the
contract as it called for payment in United States Dollars.
To these reasons, the Court of Appeals added a fourth basis
for denying petitioners’ appeal and that is the alleged
nullity of the agreement because it deprived the
government of taxes.

_______________

10 Id., at pp. 85-99.

11 Id., at p. 104.
12 Id., at pp. 105-169.
13 Id., at p. 209.

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An analysis of the facts obtaining in this case leads us to

affirm the assailed decisions although from a slightly
different but related thrust.
Let us begin by characterizing the agreement entered
into by the parties, i.e., whether the agreement is a
contract to sell as the trial court ruled, or a contract of sale
as petitioners insist.
The differences between a contract to sell and a contract
of sale are well-settled in jurisprudence. As early as 1951,
we held that in a contract of sale, title passes to the buyer
upon delivery of the thing sold, while in a contract to sell,
ownership is reserved in the seller and is not to pass until
the full payment of the purchase price is made. In the first
case, non-payment of the price is a negative resolutory
condition; in the second case, full payment is a positive
suspensive condition. Being contraries, their effect in law
cannot be identical. In the first case, the vendor has lost
and cannot recover the ownership of the land sold until and
unless the contract of sale is itself resolved and set aside.
In the second case, however, the title remains in the vendor
if the vendee does not comply with the condition precedent 14
of making payment at the time specified in the contract.
In other words, in a contract to sell, ownership is
retained by the seller and is not to pass to the buyer until
full payment of the price or the fulfillment of some other
conditions either of which is a future and uncertain event
the non-happening of which is not a breach, casual or
serious, but simply an event that prevents the obligation 15
of
the vendor to convey title from acquiring binding force.
We have carefully examined the agreement between the
parties and are far from persuaded that it was a contract of
sale.

_______________

14 Philippine National Bank v. Court of Appeals, 330 Phil. 1048; 262

SCRA 464 (1996), citing Bowe v. Court of Appeals, 220 SCRA 158 (1993),
Lim v. Court of Appeals, 182 SCRA 564 (1990) and Sing Yee v. Santos, 47
O.G. 6372 (1951). See also San Lorenzo Development Corporation v. Court
of Appeals, G.R. No. 124242, January 21, 2005, 449 SCRA 99.
15 Ibid. citing Jacinto v. Kaparaz, 209 SCRA 246 (1992).

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Firstly, the agreement imposed upon petitioners the

obligation to fully pay the agreed purchase price for the
property. That ownership shall not pass to petitioners until
they have fully paid the price is implicit in the agreement.
Notably, respondent Remigio Bernabe testified, without
objection on the part of petitioners, that he specifically
informed petitioners that the transaction should be
completed, i.e., that he should receive the full payment for
the property, before
16
he left for the United States on
October 14, 1986.
Moreover, the deed of sale would have been issued only
upon full payment of the purchase price, among other
things. Petitioner Mario Torcuator acknowledged this fact
when he testified that the deed of sale and original special
power of attorney were only17 to be delivered upon full
payment of the purchase price.
As correctly observed by the trial court, the Salvadors
did not execute a deed of sale in favor of petitioners, and
instead executed a special power of attorney authorizing
the Bernabes to sell the property on their behalf, in order
to afford the latter a measure of protection that would
guarantee full payment of the purchase price before any
deed of sale in favor of petitioners was executed.
Remarkably, the records are bereft of any indication
that petitioners ever attempted to tender payment or
consign the18
purchase price as required by law. The
Complaint filed by petitioners makes no mention at all of
a tender of payment or consignation having been made,
much less that petitioners are willing and ready to pay the
purchase price. Petitioners’ averments to the effect that
they have sufficient funds to pay for the property and have
even applied for a telegraphic transfer from their bank
account to the Bernabes’ bank account, uncoupled with
actual tender and consignation, are utterly self-serving.
The trial court correctly noted that petitioners should
have consigned the amount due in court instead of merely
sending respondents a letter expressing interest to push
through with the trans-

_______________

16 TSN, June 22, 1989, pp. 24-26.

17 TSN, November 8, 1988, p. 81.
18 RTC Records, pp. 1-5.

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action. Mere sending of a letter by the vendee expressing

the intention to pay without the accompanying payment is
not considered a valid tender of payment. Consignation of
the amount due in court is essential in order to extinguish 19
the obligation to pay and oblige the vendor to convey title.
On this score, even assuming that the agreement was a
contract of sale, respondents may not be compelled to
deliver the property and execute the deed of absolute sale.
In cases such as the one before us, which involve the
performance of an obligation and not merely the exercise of
a privilege or right, payment may be effected not by mere
tender alone but by both tender and consignation. The rule
is different in cases which involve an exercise of a right or
privilege, such as in an option contract, legal redemption or
sale with right to repurchase, wherein mere tender of
payment 20would be sufficient to preserve the right or
privilege. Hence, absent a valid tender of payment and
consignation, petitioners are deemed to have failed to
discharge their obligation to pay.
Secondly, the parties clearly intended the construction of
a residential house on the property as another suspensive
condition which had to be fulfilled. Ayala Corporation
retained title to the property and the Salvador spouses
were precluded from selling it unless a residence had been
constructed thereon. The Ayala stipulation was a
pervasive, albeit unwritten, condition in light of which the
transaction in this case was negotiated. The parties
undoubtedly understood that they had to contend with the
Ayala stipulation which is why they resorted to the
execution of a special power of attorney authorizing
petitioners to construct a residential building on the
property in the name of the Salvadors. Had the agreement
been a contract of sale as petitioners would impress upon
the Court, the special power of attorney would have been
entirely un-

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19 San Lorenzo Development Corporation v. Court of Appeals, G.R. No.

124242, January 21, 2005, 449 SCRA 99, citing Vda. de Zulueta, et al. v.
Octaviano, 205 Phil. 247; 121 SCRA 314 (1983).
20 Adelfa Properties, Inc. v. Court of Appeals, 310 Phil. 623; 240 SCRA
565 (1995).

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necessary as petitioners would have had the right 21

to
compel the Salvadors to transfer ownership to them.
Thirdly, there was neither actual nor constructive
delivery of the property to petitioners. Apart from the fact
that no public document evidencing the sale was executed,
which would have been considered equivalent to delivery,
petitioners did not take actual, physical possession of the
property. The special power of attorney, which petitioners
count on as evidence that they took possession of the
property, can by no means be interpreted as delivery or
conveyance of ownership over the property. Taken by itself,
in fact, the special power of attorney can be interpreted as
tied up with any number of property arrangements, such as
a contract of lease or a joint venture. That is why
respondents, especially the Salvadors, never intended to
deliver the title to petitioners and conformably with that
they executed only a special power of attorney. Indeed,
continuously looming large as an essentiality in their
judgment to dispose of their valuable property is the prior
or contemporaneous receipt of the commensurate price
therefor.
This brings us to the application of the Statute of
Frauds. Article 1403 of the Civil Code provides:

Art. 1403. The following contracts are unenforceable unless they

are ratified:
...
(2) Those that do not comply with the Statute of Frauds as set
forth in this number. In the following cases an agreement
hereafter made shall be unenforceable by action, unless the same,
or some note or memorandum thereof, be in writing, and
subscribed by the party charged, or by his agent; evidence,
therefore, of the agreement cannot be received without the
writing, or a secondary evidence of its contents:
...
(e) An agreement for the leasing for a longer period than one
year, or for the sale of real property or an interest therein;
....

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21 Supra note 15.

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The term “Statute of Frauds” is descriptive of statutes

which require certain classes of contracts, such as
agreements for the sale of real property, to be in writing. It
does not deprive the parties the right to contract with
respect to the matters therein involved, but merely
regulates the formalities of the contract necessary to
render it enforceable. The purpose of the statute is to
prevent fraud and perjury in the enforcement of obligations
depending for their evidence on the unassisted memory of
witnesses by requiring certain enumerated contracts and
transactions to be evidenced
22
by a writing signed by the
party to be charged. The written note or memorandum, as
contemplated by Article 1403 of the 23
Civil Code, should
embody the essentials of the contract.
In the instant case, petitioners present as written
evidence of the agreement the special power of attorney
executed in their
24
favor by the Salvadors and the summary
of agreement allegedly initialed by respondent Remigio
Bernabe. These documents do not suffice as notes or
memoranda as contemplated by Article 1403 of the Civil
Code.
The special power of attorney does not contain the
essential elements of the purported contract and, more
tellingly, does not even refer to any agreement for the sale
of the property. In any case, it was rendered virtually
inoperable as a consequence of the Salvadors’ adamant
refusal to part with their title to the property.
The summary of agreement, on the other hand, is fatally
deficient in the fundamentals and ambiguous in the rest of
its terms. For one, it does not mention when the alleged
consideration should be paid and transfer of ownership
effected. The document does not even refer to a particular
property as the object thereof. For another, it is unclear
whether the supposed purchase price is P600.00, P590.00
or P570.00/square meter. The other conditions, such as
payment of documentary stamp taxes, capital gains tax and
other registration expenses, are likewise uncertain.

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22 Rosencor Development Corporation v. Inquing, G.R. No. 140479,

March 8, 2001, 354 SCRA 119.
23 Paredes v. Espino, 131 Phil. 94; 22 SCRA 1000 (1968).
24 RTC Records, pp. 73 and 147.

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25
Conformably with Article 1405 of the Civil Code, however,
respondents’ acceptance of the agreement foisted by
petitioners on them is deemed to have arisen from their
failure to object to the26 testimony of petitioner Mario
Torcuator on the matter 27
and their cross-examination of
said petitioner thereon.
Be that as it may, considering our ruling that the
agreement was a contract to sell, respondents were not
obliged to convey title to the property before the happening
of two (2) suspensive conditions, namely: full payment of
the purchase price and construction of a residence on the
property. They were acting perfectly within their right
when they considered the agreement cancelled after
unsuccessfully demanding payment from petitioners.
That said, the question of whether the transaction
violated the Uniform Currency Act, Republic Act No. 529,
is already moot. The contract having been cancelled, any
resolution regarding the validity of the stipulation
requiring payment of the purchase price in foreign currency
would not serve any further purpose.
Petitioners next insist that the condition requiring the
construction of a house on any residential lot located in
Ayala Alabang Village before it can be sold was never
submitted in evidence and was never testified to by any of
the witnesses presented during the trial. Hence, the trial
court and the Court of Appeals should not have used this as
basis for its denial of petitioners’ cause.
This assertion, however, 28
is completely untrue. While the
Formal Offer29 of Evidence of petitioners, respondents’ Offer
of Exhibits,
30
and the Formal Offer of Evidence (On
Rebuttal) of petitioners make no mention of any
stipulation prohibiting the sale of vacant

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25 Art. 1405. Contracts infringing the Statute of Frauds, referred to in

No. 2 of Article 1403, are ratified by the failure to object to the
presentation of oral evidence to prove the same, or by the acceptance of
benefits under them.
26 TSN, November 8, 1988, pp. 11-12.
27 TSN, November 8, 1988, pp. 38-103.
28 RTC Records, pp. 141-148.
29 Id., at pp. 167-168.
30 Id., at pp. 183-185.

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lots in Ayala Alabang Village, respondents maintain that

petitioners are fully aware of the prohibition as the
conditions imposed by Ayala Corporation on the sale of
Ayala Alabang lots are inscribed on the title of the property
which was submitted in evidence by both parties.
Despite petitioners’ remonstration
31
that the inscriptions
on the title are “hardly legible,” we are inclined to give
credence to respondents’ account. It is quite implausible
that a lawyer such as petitioner Mario Torcuator would not
take the precaution of checking the original title of the
property with the Registry of Deeds to ascertain whether
there are annotations therein that would prejudice his
position.
More importantly, petitioner Mario Torcuator himself
testified on the existence of the condition prohibiting the
sale of vacant lots in Ayala Alabang Village, viz:

  ATTY. J. DE DIOS, JR.

  Q Mr. witness aside from this summary of agreement
which has been marked as Exhibit “J” do you still
have a document relating to his transaction
between you and the defendant?
  A Yes, sir, as I indicated in my earlier testimony there
was supposed to be a letter addressed to Ayala
Corporation which defendant Salvador should sign
in order to request Ayala to deliver to me the TCT
covering the lot subject of the transaction.
  Q This letter that you are referring to do you still
have a copy of that letter?
  A Yes, sir.
      Q I am showing to you a xerox copy of a letter
addressed to Ayala Corporation and signed by
Diosdado and Lourdes Salvador, can you please
explain to this Court what is the relation of this
document with what you are referring to executed
by the defendant Diosdado Salvador and Lourdes
Salvador addressed to Ayala Corporation?
      A This is the letter of Mr. Salvador, sir, signed in my
presence.

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31 Rollo, p. 119.

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      Q Can you tell the Court where is the original of this
document?
  A All of the original copies of that letter are with the
defendant Bernabe, sir.
  Q Can you tell the Court how did you come to have a
xerox copy of this document?
  A Yes, because as soon as the copies of the documents
for the transaction were signed by Mrs. Salvador
who was then in New York, they were sent by the
spouses to the daughter of Mr. Salvador who in
turn told me that all the originals are supposed to
be delivered to Mr. Bernabe and I was given a xerox
copy of the same.
  ATTY. J. DE DIOS, JR.
    And which for purpose of identification, your Honor,
may we request that this letter addressed to Ayala
Corporation and signed by Diosdado Salvador and
Lourdes Salvador be marked as Exhibit “K” for the
plaintiff, your Honor.
  COURT
    Mark it.
    ...
  ATTY. J. DE DIOS, JR.
    Mr. Witness, this letter appears to be, does it
contain any date? Can you tell this Court why this
document does not contain the date?
  ATTY. A. MAGNO
    Incompetent, your Honor, because he was not the
one who made that document.
  COURT
    Let him explain.
  ATTY. MAGNO
    Yes, your Honor.
  ATTY. J. DE DIOS, JR.
        Because, your Honor, there is a requirement by
Ayala Corporation that no lot or property may
be transferred until there is a complete
building or structure built on the lot and so
what I was supposed to get only from Mr.
Salvador, aside from the deed of absolute sale,
is merely a special power of attorney to
authorize me to construct my house in the lot
and upon completion of the house that is the
time that I would be allowed by Ayala Corpo

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        ration to transfer the property in my name.

Therefore, the letter requesting Ayala Corporation to
release the title in the name of Mr. Salvador to was
deliberately undated because32 it would be only dated
when I completed the house. [Emphasis supplied]

The fact that petitioners agreed to construct a residential

house on the property in the name of the Salvadors further
proves that they knew that a direct sale to them of a vacant
lot would contravene the condition imposed by Ayala
Corporation on the original buyers of lots in Ayala Alabang
Village. Hence, they agreed on the elaborate plan whereby
the Salvador spouses, in whose names the property was
registered, would execute a special power of attorney in
favor of petitioners authorizing the latter to construct a
residential house on the property in the name of the
Salvadors. The records even indicate that the documents to
effectuate this plan were prepared by petitioner Mario
Torcuator himself.
In his testimony, for instance, petitioner Mario
Torcuator stated that: “[B]ased on our discussion, your
Honor, from the P600 per square meter price, we agreed
upon, they agreed to give me a rebate of 5% in the form of
discount because there was a problem in the
documentation which I tried to solve which are the papers
in favor of Bernabe missing. I suggested to Mr. Bernabe
that we prepare a new set of document which will be signed
by Mr. Salvador as the previous owner and because of that
I will be getting
33
in effect a 5% discount as my
commission.”
This was confirmed by respondent Remigio Bernabe:

      Q Now, where there any documents presented to you

during that occasion?
      A Yes, sir.
  Q By whom?
  A Mr. Torcuator prepared some documents for me to
sign.

_______________

32 TSN, November 8, 1988, pp. 24-36.

33 TSN, November 6, 1987, pp. 42-43.

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      Q And do you recall what was that documents?

  A Yes, sir. Mr. Torcuator prepared a documents for
cancellation of the deed of sale of Mr. Salvador to
Remigio Bernabe, and cancellation also of the
irrevocable power of attorney of Salvador to
Bernabe, and power of attorney of Salvador
authorizing Remigio Bernabe to sell the property
and power34of attorney of Salvador given to Mr.
Torcuator.

Petitioners therefore cannot feign ignorance of the

condition imposed by Ayala Corporation.
We do not agree, however, with the trial court and
appellate court’s ruling that the transaction between the
parties 35was void for being contrary to good customs and
morals.
In order to declare the agreement void for being contrary
to good customs and morals, it must first be shown that the
object, cause or purpose thereof contravenes the generally
accepted principles of morality which have 36
received some
kind of social and practical confirmation.
We are not inclined to rule that the transaction in this
case offended good customs and morals. It should be
emphasized that the proscription imposed by Ayala
Corporation was on the resale of the property without a
residential house having been constructed thereon. The
condition did not require that the original lot buyer should
himself construct a residential house on the property, only
that the original buyer may not resell a vacant lot. In view
of our finding that the agreement between the parties was
a mere contract to sell, no violation of the condition may be
inferred from the transaction as no transfer of ownership
was made. In fact, the

_______________

34 TSN, June 22, 1989, pp. 14-16.

35 Civil Code, Art. 1409. The following contracts are inexistent and void
from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy.
36 Cui v. Arellano University, No. L-15127, 112 Phil. 135; 2 SCRA 205
(1961) citing Manresa. See also Philippine American General Insurance
Company, Inc. v. Mutuc, No. L-19632, November 13, 1974, 61 SCRA 22.

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agreement in this case that petitioners will construct a

residential house on the property in the name of the
Salvadors (who retained ownership of the property until
the fulfillment of the twin conditions of payment and
construction of a residence) was actually in compliance
with or obeisance to the condition.
Finally, the issue of whether the agreement violated the
law as it deprived the government of capital gains tax is
wholly irrelevant. Capital gains taxes, after all, are only
imposed on gains presumed to have been realized from
sales, exchanges or dispositions of property. Having
declared that the contract to sell in this case was aborted
by petitioners’ failure to comply with the twin suspensive
conditions of full payment and construction of a residence,
the obligation to pay taxes never arose. Hence, any error
the appellate court may have committed when it passed
upon the issue of taxes despite the fact that no evidence on
the matter was pleaded, adduced or proved is rather
innocuous and does not warrant reversal of the decisions
under review.
WHEREFORE, the instant petition is DENIED. Costs
against petitioners.
SO ORDERED.

     Austria-Martinez (Actg. Chairman), Callejo, Sr. and

Chico-Nazario, JJ., concur.
     Puno (Chairman), J., On Official Leave.

Petition denied.

Note.—The absence of a formal deed of sale does not

render the agreement null and void or without any effect—
the provision of Article 1358 of the Civil Code on the
necessity of a public document is only for convenience, not
for validity or enforceability. (Caoili vs. Court of Appeals,
314 SCRA 345 [1999])

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