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Effects of The Contract When The Thing Sold Has Been Lost Loss (1493-1494)

The document discusses the effects of a contract for sale when the thing sold has been lost or deteriorated before delivery. It provides: 1) If the thing is entirely lost at the time the contract is perfected, the contract is void. If it is partially lost, the buyer can withdraw or demand the remaining part with a proportional price adjustment. 2) If the goods deteriorate or are lost after the contract is perfected but before delivery, the risk falls on the buyer unless it is due to the seller's fault, under Articles 1480 and 1538. 3) For fungible goods sold at a fixed price per unit, the risk remains with the seller until weighing, counting or measuring and

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231 views

Effects of The Contract When The Thing Sold Has Been Lost Loss (1493-1494)

The document discusses the effects of a contract for sale when the thing sold has been lost or deteriorated before delivery. It provides: 1) If the thing is entirely lost at the time the contract is perfected, the contract is void. If it is partially lost, the buyer can withdraw or demand the remaining part with a proportional price adjustment. 2) If the goods deteriorate or are lost after the contract is perfected but before delivery, the risk falls on the buyer unless it is due to the seller's fault, under Articles 1480 and 1538. 3) For fungible goods sold at a fixed price per unit, the risk remains with the seller until weighing, counting or measuring and

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Bing Kidkid Calya-en
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EFFECTS OF THE CONTRACT WHEN THE

THING SOLD HAS BEEN LOST

Loss (1493-1494)
Art. 1493. If at the time the contract of sale is perfected, the thing
which is the object of the contract has been entirely lost, the
contract shall be without any effect.
But if the thing should have been lost in part only, the vendee
may choose between withdrawing from the contract and
demanding the remaining part, paying its price in proportion to
the total sum agreed upon. (1460a)

When is a thing lost? (Art. 1189[2].)


The thing is lost when it perishes or goes out of commerce or disappears in
such a way that its existence is unknown or it cannot be recovered.

Art. 1494. Where the parties purport a sale of specific goods, and
the goods without the knowledge of the seller have perished in part
or have wholly or in a material part so deteriorated in quality as to
be substantially changed in character, the buyer may at his option
treat the sale:
(1) As avoided; or
(2) As valid in all of the existing goods or in so much thereof
as have not deteriorated, and as binding the buyer to pay the
agreed price for the goods in which the ownership will pass, if
the sale was divisible. (n)
“Specific Goods” - goods identified and agreed upon at the time a
contract of sale is made.
Loss of the Determinate Thing in the Different Stages
of a Sale Transactions
1. Art 1480
Art. 1480. Any injury to or benefit from the thing sold, after the contract has been
perfected, from the moment of the perfection of the contract to the time of delivery,
shall be governed by Articles 1163 to 1165, and 1262.
This rule shall apply to the sale of fungible things, made independently and for a
single price, or without consideration of their weight, number, or measure.
Should fungible things be sold for a price fixed according to weight, number, or
measure, the risk shall not be imputed to the vendee until they have been weighed,
counted, or measured, and delivered, unless the latter has incurred in delay. (1452a)

Scope of Article 1480.


Article 1480 contemplates two rules:
(1)The first rule — where the thing is lost after perfection
but before its delivery (see Rule No. 3,supra.) — applies to non-fungible things
and fungible things sold independently and for a single price or for a price
fixed without consideration of their weight, number, or measure.
Under this rule, which follows the Roman Rule, the risk of the
thing sold passes to the buyer, even though the thing has not yet been
delivered to him. Therefore, if a house (sold) be destroyed wholly or partly
by fire the loss falls upon the buyer who must pay the price, even though
he has not received the thing. For the seller is not liable for anything
which happens without his fraud or negligence. But if after the sale any
alluvion has accrued to the land, the benefit goes to the buyer for the
benefit ought to belong to him who has the risk. (Sherman, Inchiridion Romani
Juris, Sec.296.)

In other words, the buyer assumes the risk of loss caused by


fortuitous event (Art. 1174.) without the fault of the seller (Art.1262.), that is, in
spite of the exercise of due diligence on his part(Art. 1163.) and before he has
incurred in delay (Arts. 165, 1170,1262.) after the perfection of the contract to
the time of delivery.(Art. 1480, par. 1.)
With respect to the fruits, the buyer has a right to the same from
the time the obligation to deliver the thing arises.(Art. 1164.)
If the risk ought to belong to the buyer before delivery, the benefit
ought to belong to him who has the risk. (see Arts.1538, 1189[5].)
Article 1480, paragraph 1 is applicable only where the thing is
determinate. (Art. 1460.)
It also applies to fungible things sold for a price not fixed in
relation to weight, number, or measure because in such case the fungible
things have been “particularly designated or physically segregated.”
(Ibid.,par. 2.)

(2) The second rule relates to fungible things sold for a price fixed
in relation to weight, number, or measure. Under the third paragraph, “the
risk shall not be imputed to the vendee until they have been
weighed, counted, or measured, and delivered.” (see U.S. vs. De Vera, 43 Phil.
1001 [1922].)

Paragraph 3 is an exception to the rule that the vendee bears the


loss after the perfection of the contract and before delivery. However, the
vendee assumes the risk if he has incurred in delay in receiving the goods
sold. (North Negros Sugar Co., Inc. vs. Compania General Tabacos de Filipinas, 100
Phil. 1103 [1957].)

2. Art 1538
Art. 1538. In case of loss, deterioration or improvement of the thing before its delivery, the
rules in Article 1189 shall be observed, the vendor being considered the debtor. (n)

Rules in case of loss, deterioration, or improvement of thing before delivery.


Article 1189 of the Civil Code states:
“When the conditions have been imposed with the intention of suspending the
efficacy of an obligation to give, the following rules shall be observed in case of the
improvement, loss or deterioration of the thing during the pendency of the condition:
(1)If the thing is lost without the fault of the debtor, the obligation shall
be extinguished;
(2)If the thing is lost through the fault of the debtor, he shall be obliged
to pay damages; it is understood that the thing is lost when it perishes, or goes
out of commerce, or disappears in such a way that its existence is unknown or it
cannot be recovered;
(3)When the thing deteriorates without the fault of the debtor, the
impairment is to be borne by the creditor;
(4)If it deteriorates through the fault of the debtor, the creditor may
choose between the rescission of the obligation and its fulfilment, with indemnity
for damages in either case;
(5)If the thing is improved by its nature, or by time, the improvement
shall inure to the benefit of the creditor;
(6)If it is improved at the expense of the debtor, he shall have no
other right than that granted to the usufructuary.”A reading of the above article
shows that it is in consonance with Article 1480 (supra.) which provides for the
rules governing injury to, or benefit from, the thing sold after the contract has
been perfected but before its delivery. Both under Articles 1480 (pars. 1and 2.)
and 1538, the loss shall be at the risk of the vendee pending delivery. As
heretofore pointed out, Article 1504 (supra.), which has been taken from the
American law on sales, provides another rule governing risk of loss which is
contrary to Articles 1480 and 1538.

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