LOSS OF THE THING DUE

LOSS OF THE THING DUE – partial or total/ includes impossibility of performance

WHEN IS THERE A LOSS:

1) When the object perishes (physically)

2) When it goes out of commerce

3) When it disappears in such a way that: its existence is unknown or it cannot be recovered

WHEN IS THERE IMPOSSIBILITY OF PERFORMANCE

1) Physical impossibility

2) Legal impossibility :

(a) Directly – caused as when prohibited by law

(b) Indirectly – caused as when debtor is required to enter a military draft


OBLIGATION TO DELIVER A SPECIFIC THING

General Rule: Extinguished

Exceptions:

a) Debtor is at fault

b) Debtor is made liable for fortuitous event because of a provision of law, contractual stipulation or the nature of the obligation requires assumption of risk on part of debtor

OBLIGATION TO DELIVER A GENERIC THING

General Rule: Not extinguished

Exceptions:

a) if the generic thing is delimited

b) if the generic thing has already been segregated

c) monetary obligation

OBLIGATION TO DO

General Rule: Debtor is released when prestation becomes legally or physically impossible without fault on part of debtor

EFFECT OF PARTIAL LOSS – ( judicial determination of extent is necessary)

a) when loss is significant – may be enough to extinguish obligation

b) when loss insignificant – not enough to extinguish obligation

WHEN THING IS LOST IN THE POSSESSION OF THE DEBTOR

Presumption: Loss due to debtor’s fault ( disputable )

Exception: natural calamity, earthquake, flood, storm