CHAPTER 1 - NATURE AND FORM OF THE CONTRACT

ARTICLE 1458. By the contract of sale one of the contracting parties obligates himself to transfer ownership and to
deliver a determinate things, and the other to pay thereof a price certain in money or its
equivalent.
A contract of sale may be absolute or conditional.

WHAT IS A CONTRACT OF SALE?

- By the contract of sale, one of the contracting parties obligates himself to transfer ownership of and to
deliver, a determinate things, and the other to pay thereof a price certain in money or its equivalent.
- A contract of sale is a consensual contract and, thus, is perfected by mere consent which is manifested by
the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the
contract.
- Until the contract of sale is perfected, it cannot, as an independent source of obligation, serve as a binding
juridical relation between the parties.
- The essential elements of a contract of sale are:
a. consent or the meeting of minds, that is, consent to transfer ownership in exchange of price.
B. Determinate subject matter; and
C. Price certain in money or its equivalent.
The absence of any of the essential elements shall negate the existence of a perfected contract of sale.

STAGES OF A CONTRACT OF SALE

1. Negotiation
It covers the period from the time the prospective contracting parties indicate interest in the
contract at the time of the contract is perfected.

2. Perfection
It takes place upon the concurrence of the essential elements of the sale, which is the meeting of
minds of the parties as to the object of the contract and upon price.

3. Consummation
It begins when the parties perform their respective undertakings under the contract of sale,
culminating in the extinguishment thereof.

SALE AS A TITLE
- The perfection of a contract of sale should not, however, be confused with its consummation. In relation to
the acquisition and transfer of ownership, it should be noted that sale is not a mode, but merely a title.
- A mode is the legal means by which dominion or ownership is created, transferred or destroyed.
- A title is only the legal basis by which to affect dominion or ownership.

- Under Article 712 of the Civil Code, “ownership and other real rights over properties are acquired and
transmitted by law, by donation, by testate and intestate succession, and in consequence for certain
contracts, by tradition.”
- Contracts only constitute titles or rights to the transfer or acquisition of ownership, while delivery or
tradition is the mode of accomplishing the same.
- Therefore, sale by itself does not transfer or affect ownership; the most that sale does is to create the
obligation to transfer ownership. It is tradition or delivery, as a consequence of sale, that actually transfers
ownership.

TWO KINDS OF A CONTRACT OF SALE

1. Absolute
There are no conditions attached to the contract.

2. Conditional
There are certain conditions attached to the contract.
A CONTRACT OF SALE MAY BE ABSOLUTE OR CONDITIONAL.
- Under Article 1458 of the New Civil Code, in a contract of sale, whether absolute or conditional, one of the
contracting parties obliges himself to transfer ownership of and deliver a determinate thing, and the other to
pay thereof a price certain in money or its equivalents.
- A contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the
object of the contract and the price.
- From the averment of perfection, the parties are bound, not only to the fulfillment if what has been
expressly stipulated, but also to all the consequences which, according to their nature, may be in keeping
with good faith, usage and law
- On the other hand, when the contract of sale or to sell is not perfected, it cannot, as an independent
source of obligation, serve as a binding juridical relation between the parties.

Note:
A deed of sale is considered absolute in nature whether there is neither a stipulation in the deed that the
title to the property sold is reserved in the seller until the full payment of the price, nor one giving the
vendor the right to unilaterally resolve the contract the moment the buyer fails to pay within a fixed period.

ESSENTIAL ELEMENTS OF A CONTRACT OF SALE

Sale, by its very nature, is a consensual contract because it is perfected by mere consent. The essential
elements of a contract of sale are the following:

1. Consent or the meeting of minds

That is, consent to transfer the ownership in exchange of its price;
2. Determinate subject matter; and
3. Price certain in money or its equivalent

CONTRACT TO SELL IS NOT A CONTRACT OF SALE

A Contract to Sell may not be considered as a Contract of Sale because the first essential element is lacking.
In contract to sell, the prospective seller explicitly reserves the transfer of title to the prospective buyer,
meaning, the prospective seller does not as yet agree or consent to transfer ownership of the property
subject of the contract to sell until the happening of an event, which for present purposes we shall take as
the full payment of the purchase price.
What the seller agrees or obliges himself to do is to fulfill his promise to sell the subject property when the
entire amount of the purchase price is delivered to him.
In other words, the full payment of the purchase price partakes of a suspensive condition, the non-
fulfillment of which prevents the obligation to sell from arising and thus, ownership is retained by the
prospective seller without further remedies by the prospective buyer.

I. CONSENT
Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which
constitute the agreement.

ACCEPTANCE
As to the matter of acceptance, the same may be evidenced by some acts, or conduct, communicated to the
offeror, either, either in formal or an informal manner, that clearly manifest the intention or determination
to accept the offer.

Example:
In one case, acceptance on the part of the vendee was manifested through a plethora of acts, such as
payment of the purchase price, declaration of the property for taxation purposes, and payment of real
estate taxes thereon, and similar acts showing vendee’s assents to the contract.
II. OBJECT
The object of every contract must be determinate as to its kind.
The fact that the quantity is not determinate shall not be an obstacle to the existence of the contract, provided
it is possible to determine the same, without the need of a new contract between the parties.
A thing is determinate when its particularly designated and/or physically segregated from all others of the same
class.

In general, the cause is the why of the contract or the essential reason which moves the contracting parties to
enter into the contract.
For the cause to be valid, it must be lawful such as it is not contrary to the law, morals, good customs, public
order or public policy.

III. PRICE
A definite agreement as to the price is an essential element of a binding agreement to sell personal or real
property because it seriously affects the rights and obligations of the parties.
Price is an essential element in the formation of a binding and enforceable contract of sale.
The fixing of price can never be left to the decision of one of the contracting parties.
But a price fixed by one of the contracting parties, if accepted by the other, give rise to a perfected sale.

It is not enough for the parties to agree on the price of the property.
The parties must also agree on the manner of payment of the price of the price of the property to give rise
to a binding and enforceable contract of sale or contact to sell.
This is so because the agreement as to the manner of payment goes into the price, such that a disagreement
on the manner of payment is tantamount to a failure to agree on the price.

GROSS INADEQUACY OF PRICE, ITS EFFECT

In Hulst v. PR Builders, Inc., we further elaborated on this principle.

Gross inadequacy of price does not nullify an execution sale.

In an ordinary sale, for reason of equity, a transaction may be invalidated on the ground of inadequacy of
price, or when such inadequacy shock one’s conscience as to justify the courts to interfere; such does not
follow when the law gives the owner the right to redeem as when a sale is made at public auction, upon the
theory that the lesser the price, the easier it is for the owner to effect redemption.
Thus, respondent stood to gain rather than be harmed by the low sale value if the auctioned properties
because it possesses the right to redemption.

Note:
Consideration and consent are essential elements in a contract of sale.
Where a party’s consent to a contract of sale is vitiated or where there is lack of consideration due to a
simulated price, the contract is null and void ab initio.

CHARACTERISTIC OF A CONTRACT OF SALE

1. Consensual
The contract is perfected by mere consent.
2. Bilateral
The seller and the buyer are bound by obligations dependent upon each other.
3. Onerous
It imposes a valuable consideration, which is a price certain in money or its equivalent.
4. Commutative
The thing of value is exchange for equal value.
5. Nominate
The Civil Code refers to it by a special name, “contract of sale”.
6. Principal
It can stand on its own and does not depend on another contract for its validity.
CONTRACT OF SALE IS CONSENSUAL
A contract of sale is classified as a consensual contract, which means that the sale is perfected by mere
consent.
No particular form is required for its validity.
Upon the perfection of the contract, the parties may reciprocally demand performance, I.e., the vendee may
compel transfer of ownership of the object of the sale, and the vendor may require the vendee to
pay the things sold.

CONTRACT OF SALE IS COMMUTATIVE AND ONEROUS

A contract of sale is normally commutative and onerous; not only does each time of the parties assume a
correlative obligation (the seller to deliver and transfer ownership of the thing sold and the buyer to
pay the price), but each party anticipates performance by the other from the very start.
While in sale, the obligation of one party can be lawfully subordinated to an uncertain event, so that the
other understands that he assumes the risk of receiving nothing for what he gives ( as in the case of
a sale of hopes or expectations, emptio spei), it is not in the usual course of business to do so; hence,
the contingent character of the obligation must clearly appear.

WHAT IS OPTION OR “UNACCEPTED OFFER”?

An option, as used in the law on sales, is continuing offer or contract by which the owner stipulates with
another that the latter (another) shall have the right to buy the property at a fixed price within a
certain time, or under, or in compliance with, certain terms and conditions, or which gives the owner
of the property the right to sell or demand a sale.
An option is not of itself a purchase but merely secures the privilege to buy.
It is not a sale of property but a sale of the right to purchase.
It is simply a contract by which the owner of property agrees with another person that shall have the right to
buy his property at a fixed price within a certain time.
He does not sell his land; he does not then agree to sell it, but he does sell something, that is, the right or
privilege to buy at the election or option of the other party.
It distinguishing characteristic is that it imposes no binding obligation on the person holding the option,
aside from the consideration for the offer. Until acceptance, it is not, properly speaking, a contract,
and does not vest, transfer, or agree to transfer, any title to, or any interest or right in the subject
matter, but is merely a contract by which the owner of property gives the optionee the right or
privilege of accepting the offer and giving the property on certain terms.

OPTION VS. CONTRACT OF SALE

OPTION CONTRACT OF SALE
Fixed definitely the relative rights and obligation of both
An option is an unaccepted offer.
parties at the same time of its execution.
It states the terms and conditions on which the owner is The offer and the acceptance are concurrent, since the
willing to sell the land, if the holder elects to accept minds of the contracting parties meet in the terms of the
them within the time limited. agreement.
If the holder does so elect, he must give notice to the
other party, and the accepted offer thereupon becomes -
a valid and binding contract.
If an acceptance is not made within the time fixed, the
owner is no longer bound by his offer,and the option is -
at the end.
WHAT IS THE TEST IN DETERMINING WHETHER IT IS A “CONTRACT OF SALE OR PURCHASE OR A MERE OPTION?”
The test in determining whether a contract is a “contract of sale or purchase” or a mere “option” is whether
or not the agreement could be specifically enforced.
This is not a case where no right is at yet created nor an obligation declared, as where something further
remains to be done before the buyer or seller obligates themselves.
An agreement is only an “option” when no obligation rests on the party to make any payment except such
as may be agreed on between parties as consideration to support the option until he has made up
his mind within the time specified.
An option, and not a contract to purchase, is effected by an agreement to sell real estate for payments to be
made within specified time and providing forfeiture of money paid upon failure to make payment,
where the purchaser does not agree to purchase, to make payment, or to bind himself in any way
other than the forfeiture of the payments made.

EARNEST MONEY
It is a statutory rule that whenever earnest money is given in a contract of sale, it shall be considered as part
of the price and as proof of the perfection of the contract.
It constitute an advance payment and must, therefore, be deducted from the total price.
Also, earnest money is given by the buyer to the seller to bind the bargain.

EARNEST MONEY vs. OPTION MONEY

EARNEST MONEY OPTION MONEY
1. Money is given as a distinct consideration for an
1. Part of the purchase price
option money.
2. Is given only where there is already a sale. 2. Applies to a sale not yet perfected.
3. When the earnest money is given, the buyer is bound 3. When the would-be buyer gives option money, he is
to pay the balance. not required to buy.

CONTRACT FOR A PIECE OF WORK vs. CONTRACT OF SALE

“A contract for a piece of work, labor or materials may be distinguish from a contract of sale by the inquiry
as to whether the thing transferred is one not in existence and which would never be existed but for
the order of the person desiring it. In such case, the contract is one for a piece of work, not a sale.
On the other hand, if the thing subject of a contract would have existed and had been the subject of a sale to
some other person even if the order has not been given then the contract is one of sale.

DACION EN PAGO vs. CONTRACT OF SALE

In dacion en pago, as a special mode of payment, the debtor offers another thing to the creditor who
accepts it as equivalent of payment of an outstanding debt.
In order that there be a valid dation in payment, the ff. are the requisite:
(1) There must be the performance of the prestation in lieu of payment (animo solvendi) which may consist
in the delivery of a corporeal thing or a real right or a credit against the third person;
(2) There must be some difference between the prestation due and that which is given in substitution (aliud
pro alio);
(3) There must be an agreement between the creditor and debtor that the obligation is immediately
extinguish by reason of the performance of a prestation different from that due.
The undertakings really partakes in one sense of the nature of sale, that is, the creditor is really buying the
thing or property of the debtor, payment for which is to be charged against the debtor’s debt.

ARTICLE 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)

Note:
Licit means lawful. The thing object of sale should not be contrary to laws, morals, good customs, public
order or public policy.
ARTICLE 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 is determinate is satisfied if at the time of contract is entered into, the
thing is capable of being made determinate without the necessity of a new or further agreement
between the parties.

REQUISITES:
1. At the time of contract is entered into, the thing is capable of being made determinate
2. There is no necessity of a new or further agreement between the parties.

ARTICLE 1461. Things having potential existence may be 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.

THINGS HAVING A POTENTIAL EXISTENCE

This is a future thing that can be object of sale.

SALE OF A MERE HOPE OR EXPECTANCY

This is subject to the condition that the thing will come into existence.

Note:
The sale of vain hope or expectancy is void.

EMPTIO REI SPERATAE vs. EMPTIO SPEI

EMPTOP REI SPERATAE EMPTIO SPEI
Sale of a mere hope or expectancy that the thing will
Sale of a thing with potential existence. come to existence.
Sale of the hope itself.
Sale is subject to the condition that the thing will exist; Sale is effective even if the thing does not come into
If the does not, there is no contract. existence unless it is a vain hope.
The object is a present thing which is the hope or
The object is a future thing.
expectancy.

GENERAL RULE:
A person cannot sell or convey what he does not have or own.

EXCEPTIONS:
1. Sale of a thing having potential existence;
2. Sale of future goods; and
3. Contract for delivery at a certain price of an article which the vendor in the ordinary course of business
manufactures or procures for the general market, whether the same is on hand at the time or not.

ARTICLE 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. Existing Goods
Those goods that are owned by the seller.
2. Future Goods
Those goods that are to be manufactured (like a future table, chairs or bicycle to be manufactured),
raised (like a young of animals) or acquired (like a cellular phone which the seller expects
to buy) by the seller after the perfection of the contract of sale.

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

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

ARTICLE 1564. 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 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 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.

ARTICLE 1565. Things subject to a resolutory condition may be the object of the contract of sale.

RESOLUTORY CONDITION
A condition that upon fulfillment terminates an already enforceable obligation and entitles the parties to be
restored to their original positions.
A conditional obligation that may be immediately enforced but will come to an end when an uncertain event
that is specified occurs.

Note:
It is a condition the happening of which will extinguish the obligation.

ARTICLE 1566. 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.

CONTRACT OF SALE vs. AGENCY TO SELL

CONTRACT OF SALE AGENCY TO SELL
The agent receives the goods as goods of the principal
The buyer receives the goods as owner.
who retains his ownership over them.
The agent delivers the price, which he got from his
The buyer pays the price.
buyer, to his principal.
The buyer, as a general rule, cannot return the object The agent can return the goods in case he is unable to
sold. sell the same to a third person.

ARTICLE 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.
 What determines whether the contract is one of work or of sale is whether the thing has been manufactured specially
for the customer and upon his special order.
Thus,if the thing is specially done at the order of another, this is a contract of piece of work.
If, on the other hand, the thing is manufactured or procured for the general market in the ordinary course of one’s
business, it is a contract of sale.

As held by the Court, “the distinction between a contract of sale and one for work, labor or materials is tested by the
inquiry whether the thing transferred is one not in existence and which never would have existed but for the order of
the party desiring to acquire it, or a thing which would have existed and has been the subject of sale to some other
persons even if the order had not been given.

WHO IS A CONTRACTOR?
The word “contractor” has come to be used with special reference to a person who, in the pursuit of the
independent business, undertakes to do a specific job or piece of work for other persons, using his own means and
methods without submitting himself to control as to the petty details.

TEST OF A CONTRACTOR
The true test of a contractor would seem to be that he renders service in the course of an independent
occupation, representing the will of his employer only to the result of his work, and not as to the means by
which it is accomplished.

ARTICLE 1568. If the consideration of the contract consists partly in money, and partly in another thing, the
transaction shall be characterized by manifest intention of the parties.
If such transaction does not clearly appear, it shall be considered barter if the value of the thing
given as part of the consideration exceeds the amount of the money or its equivalent; otherwise,
it is a sale.

SALE vs. BARTER

SALE BARTER
A thing is given in exchange of a price certain in money A things is given in exchange of another thing.
or its equivalent.
IF THE CONSIDERATION IS PARTLY IN MONEY AND PARTLY IN ANOTHER THING
1. The transaction is characterized by the manifest intention of the parties.
2. If there is no manifest intention:
A. Barter if the value of the thing is more valuable than money.
B. Sale if the value of the thing is equal or less than the amount of money.

ARTICLE 1569. 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 determination thereof be left to the judgement 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 court 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.
REQUISITES FOR A VALID PRICE
1. Real
The price is not simulated or not fictitious.
2. Certain or Ascertain
It is certain if it is expressed and agreed in terms of specific amount of amount or its equivalent.
It is ascertainable if it is sufficient that it be so with reference to another thing certain, or that the
determination thereof be left to the judgement of a special person or persons.
3. In money or its Equivalent
4. Manner of payment must be agreed upon
The agreement on the manner of payment goes into the price, such that a disagreement on the
manner of payment is tantamount to a failure to to agree on the price.

ARTICLE 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 donations or some other act or contract.

- The mere inadequacy of the price does not affect its validity when both parties are in a position to form an independent
judgement concerning the transaction, unless fraud, mistake or undue influence indicative of a defect in consent is
present.
- A contract may consequently be annulled on the ground of vitiated consent and not due to the inadequacy of the price.
- More allegedly inadequacy of the price does not necessarily void a contract of sale, although the inadequacy may indicate that
there was a defect in the consent, or that the parties really intended a donation, mortgage, or some other act or contract.
- Finally, unless the price is grossly inadequate or shocking to the conscience, a sale is not set aside.

ARTICLE 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.

WHAT IS SIMULATED PRICE?

A simulated price is a fictitious price.

- A contract of sale is not a real contract, but a consensual contract. As a consensual contract, a contract of sale becomes a
binding and valid upon the meeting of minds as to price.
- If there is a meeting of minds of the parties as to price, the contract of sale is valid, despite the manner of payment, or
even a breach of that manner of payment.
- If the real price is not stated in the contract, then the contract of sale is valid but subject to reformation.
- If there is no meeting of minds of the parties as to the price, because the price is stipulated in the contract is simulated,
then the contract is void.

- It is not the act of payment of price that determines the validity of a contract of sale.
- Payment of price has nothing to do with the perfection of the contract.
- Payment of the price goes into the performance of the contract.
- Failure to pay the consideration is different from lack of consideration.
- The former (failure to pay the consideration) results in a right to demand the fulfillment or cancellation of the obligation
under an existing valid contract; while the latter (lack of consideration) prevents the existence of a valid contract.

ARTICLE 1472. The price of securities, grains, liquids and other things shall 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, the sale is perfected.

ARTICLE 1473. The fixing of the price can never be left to the discretion of one of the contracting parties. However,
if the price fixed by one of the parties is accepted by the other, the sale is perfected.
RATIONALE:
Reason why price fixing cannot be left to the discretion of one of them: the other could not have consented
to the price, for he did not know what it was.

ARTICLE 1474. Where the price cannot be determined in accordance with the preceding articles, or in any other
manner, the contract is inefficacious. However, if the thing or any part thereof has been delivered
to and appropriated by the buyer he must pay a reasonable price thereof. What is reasonable
price is a question of fact dependent on the circumstances of each particular case.

GENERAL RULE:
Where the price cannot be determined in accordance with the preceding articles, or in any other manner,
the contract is inefficacious. Hence, the sale is void.

EXCEPTION:
If the thing or any part thereof has been delivered to and appropriated by the buyer, he must pay a
reasonable price thereof.

ARTICLE 1475. The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is
the object of the contract and upon the price.

From the moment, the parties may reciprocally demand performance, subject to the provisions of
the law governing the form of contract.

Take note that sale is a consensual contract; thus, it is perfected by mere consent meaning the moment there is a
meeting of the minds.

ARTICLE 1476. In the case of a sale by auction:

(1) Where the goods are put up for sale by auction in lots, each lot is the subject of a separate
contract of sale.
(2) A sale by auction is perfected when the auctioneer announces its perfection by the fall of the
hammer, or in other customary manner.
(3) A right to bid may be reserved expressly by or on behalf of the seller, unless otherwise
provided by law or by stipulation.
(4) Where notice has not been given that a sale by auction is subject to a right to bid on behalf of
the seller, it shall not be lawful for the seller to bid himself or to employ or induce any person to
bid at such sale on his behalf or for the auctioneer, to employ or induce any person to bid such
sale on behalf of the seller or knowingly to take any bid from the seller or any person employed by
him. Any sale contravening this rule may be treated as fraudulent by the buyer.

SALE BY AUCTION IS PERFECTED

A sale by auction is perfected when the auctioneer announces its perfection by the fall of the hammer, or in
other customary manner.

BEFORE THE FALL OF THE HAMMER

1. Any bidder may react his bid; and
2. The auctioneer may withdraw the goods from the sale unless the auction has been announced to be
without reserve.
 ARTICLE 1477. The ownership of the thing sold shall be transferred to the vendee upon the actual or constructive
delivery thereof.

- In a contract of sale, the title to the property passes to the vendee upon constructive or actual delivery thereof.
- The vendor losses ownership over the property and cannot recover it unless the contract is rescinded by a notarial deed or
by judicial action (as provided for in Article 1592 of the New Civil Code).
- A contract of sale is absolute, absent any stipulation therein reserving title over the property to the vendee until full
payment of the purchase price nor giving the vendor the right to unilaterally rescind the contract in case of non-
payment.
- In a contract of sale, the non-payment of the price is a resolutory condition which extinguishes the transaction that, for a
time existed, and discharge the obligations create thereunder.

- In a contract of sale, until and unless the contract is resolved or rescinded in accordance with law, the vendor cannot recover
the thing sold even if the vendee failed to pay in full the initial payment for the property.
- The failure of the buyer to pay the purchase price within the stipulated period does not itself bar the transfer of
ownership or possession of the property sold, nor ipso facto rescind the contract.
- Such failure will merely give the vendor the option to rescind the contract of sale judicially or by notarial demand as
provided by Article 1592 of the New Civil Code:

ARTICLE 1592. In the sale of immovable property, even though it may have been stipulated that upon
failure to pay the price at the time agreed upon, the rescission of the contract shall of right take
place, the vendee may pay, even after the expiration of the period, as long as no demand for
rescission of the contract has been made upon him either judicially or by a notarial act. After the
demand, the court may not grant him a new term.

TWO ASPECTS OF DELIVERY

The terms “delivery” or tradition has two aspects
1. The de jure delivery or the execution of deeds of conveyance; and
2. The delivery of the material possession.

ARTICLE 1478. The parties may stipulate the ownership in the thing shall not to the purchaser until he has fully
paid the price.

- Under the Civil Code, unless the contract contains a stipulation that ownership of the thing sold shall not pass to the
purchaser until he has fully paid the price, ownership of the thing shall be transferred to the vendee upon the actual
or constructive delivery thereof.
- In other words, the payment of the purchase price is not essential to the transfer of ownership as long as the property sold has
been delivered..
- Such delivery (traditio) operated to divest the vendor of title to the property which may not be regained or recovered until
and unless the contract is resolved or rescinded in accordance with law.

- Article 1478 of the civil code does not require that such stipulation be expressly made.
- Consequently, an implied stipulation to that effect is considered valid and, therefore, binding and enforceable between the
parties.
- It should be noted that under the law and jurisprudence, a contract which contains this kind of stipulation is considered a contract

ARTICLE 1479. A promise to buy and sell a determinate thing for a price certain is reciprocally demandable.

An accepted unilateral promise to buy and sell a determinate thing for a price certain is binding
upon the promissor if the promise is supported by a consideration distinct from the price.
WHAT IS CONTRACT TO SELL?
- A contract to sell may thus be defined as a bilateral contract whereby the prospective seller, while
expressly reserving the ownership of the subject property despite delivery to the prospective
buyer, binds himself to sell the said property exclusively to the prospective buyer upon fulfillment of
the condition agreed upon, that is, full payment of the purchase price.
- In a contract to sell, upon the fulfillment of the suspensive condition which is the full payment of the
purchase price, ownership will not automatically transfer to the buyer although the property may have been
previously delivered to him. The prospective seller still has to convey title to the prospective buyer by
entering into a contract of absolute sale.

CONTRACT TO SELL vs. CONDITIONAL CONTRACT OF SALE (page 29)

WHAT IS OPTION CONTRACT?

- A contract by virtue of which A, in consideration of the payment of a certain sum to B, acquires the
privilege of buying from, or selling to, B certain securities or properties within a limited time at a
specified price.
- An agreement in writing to give a person the “option” to purchase lands within a given time at a named
price is neither a sale nor an agreement to sell.
- It is simply a contract by which the owner of property agrees with another person that he shall have the
right to buy his property at a fixed price within a certain time.
- He does not sell his land, he does not then agree to sell it; but he does sell something; that is, the right or
privilege to buy at the election or option of the other party.

WHAT IS RIGHT OF FIRST REFUSAL?

- Right of first refusal is an innovative juridical relation.
- In a right of first refusal, while the object might be made determinate, the exercise of the right, however,
would be dependent not only on the grantor’s eventual intention to enter into a binding juridical
relation with another but also on terms, including the price, that obviously are yet to be later
firmed up.
- It can at best be so described as merely belonging to a class of preparatory judicial relations governed not
by contracts (since the essential elements to establish the vinculum juris would still be indefinite and
inconclusive) but by, among other laws of general application, the pertinent scattered provisions of
the Civil Code on human conduct.

ARTICLE 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 1261.

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 be imputed to the vendee until they have been weighted, counted, or measured and
delivered, unless the latter has incurred in delay.

OBJECT IS LOST BEFORE PERFECTION

If the object has been lost before perfection, the seller bears the loss.

OBJECT IS LOST AFTER DELIVERY TO THE BUYER

If the object was lost after delivery to the buyer, the buyer bears the loss.

OBJECT IS LOST FTER PERFECTION BUT BEFORE DELIVERY

If the object was lost after perfection but before delivery, the buyer bears the loss. This is an exception to
the principle of res perit domino.
WHAT IS RES PERIT DOMINO?
Property lost to the owner.

WHAT ARE FUNGIBLE GOODS?

Goods that are interchangeable with one another; goods that, by nature or trade usage, are the equivalent
of any other like unit, such as coffee or grain.

ARTICLE 1481. In the contract of sale of goods by description or by sample, the contract may be rescinded if the
bulk of the goods delivered do not correspond with the description or the sample, and if the
contract be by sample as well as description, it is not sufficient that the bulk of goods corresponds
with the sample if they do not also correspond with the description.

The buyer shall have a reasonable opportunity of comparing the bulk with the description or the
sample.

WHAT IS SALE BY SAMPLE?

- There is a sale by sample when a small quantity is exhibited by the seller as a fair specimen of the bulk,
which is not present and there is no opportunity to inspect or examine the same.
- To constitute a sale by sample, it must appear that the parties treated the sample as the standard of
quality and that they contracted with reference to the sample with the understanding that the
product to be delivered would correspond with the sample.

WHAT IS SALE BY DESCRIPTION?

- There is a sale by description where “a seller sells things as being of a particular kind, the buyer not
knowing whether the seller’s representations are true or false, but relying on them as true; or as
otherwise stated, where the buyer has not seen the Article sold and relies on the description given
to him by the seller, or has seen the goods, but the want of identity is not apparent on inspection.”
- A seller’s description of the goods which is made part of the basis of the transaction creates a warranty that
the goods will conform to that description.
- Where the goods are bought by description from a seller who deals in the goods of that description, there
is an implied warranty that the goods are of merchantable quality.

ARTICLE 1482. Whenever earnest money is given in a contract of sale, it shall be considered as part of the price
and as proof of the perfection of the contract.

WHAT IS EARNEST MONEY (“ARRAS”)?

A deposit paid (often in escrow) by a prospective buyer (esp. of real estate) to show a good-faith intention
to complete the transaction, and ordinarily forfeited if the buyer defaults.

ARTICLE 1483. Subject to the provision of the Statute of Frauds and of any other applicable statute, a contract of
sale may be made in writing, or by word of mouth, or partly in writing and partly by word of
mouth, or may be inferred from the conduct of the parties. (n)

GENERAL RULE:
A contract of sale may be made in writing, or by word of mouth, or partly in writing and partly by word of
mouth, or may be inferred from the conduct of the parties.

EXCEPTIONS:
When a sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be
in written; otherwise, the sale shall be void.
FORM IS REQUIRED FOR ENFORCEABILITY
Under the Statue of Frauds, the following contract of sale must be in writing to be enforceable:
1. Sale of real property.
2. Sale of personal property at a price not less than ₱500.
3. Sale of property not to be performed within a year from the date thereof.

ARTICLE 1484. In a contract of sale of personal property the price of which is payable in installments, the vendor
may exercise any of the following remedies:
(1) Exact fulfillment of the obligation, should the vendee fail to pay;
(2) Cancel the sale, should the vendee’s failure to pay cover two or more installments; and
(3) Foreclose the chattel mortgage on the thing sold, if one has been constituted, should the
vendee’s failure to pay cover two or more installments. In this case, he shall have no further action
against the purchaser to recover any unpaid balance of the price. Any agreement to the contrary
shall be void.

REMEDIES ARE ALTERNATIVE

The remedies provided for in Article 1484 are alternative, not cumulative.
The exercise of one bars the exercise of the others.
This limitation applies to contracts purporting to be leases of personal property with option to buy by virtue
of Article 1485.

Article 1484 of the New Civil Code prescribes three remedies which a vendor may pursue in a contract of
sale of personal property the price of which is payable in installments, to wit;
1. Exact fulfillment of the obligation, should the vendee fail to pay;
2. Cancel the sale, should the vendee’s failure to pay cover two or more installments; and
3. Foreclose the chattel mortgage on the thing sold, if one has been constituted, should the vendee’s failure
to pay cover two or more installments. In this case, he shall have no further action against the purchaser to
recover any unpaid balance of the price. Any agreement to the contrary shall be void.

CREDITOR NOT OBLIGED TO FORECLOSE

A creditor is not obliged to foreclose a chattel mortgage even there is one; precisely the law says that any
of the remedies “may” be exercised by the seller.
He may still sue for fulfillment or for cancellation of the obligation, if he does not want to foreclose.
As a matter of fact, he may avail himself of remedy no. 1 (specific performance) and may still ask that a real
estate mortgage be executed to secure the payment of the obligation, in which case, and in the
event of foreclosure, there can still be recovery of the deficiency.

ARTICLE 1485. The preceding article shall be applied to contracts purporting to be leases of personal property with
option to buy, when the lessor has deprived the lessee of the possession or enjoyment of the thing.

ARTICLE 1486. In the case referred to in two preceding articles, a stipulation that the installments or rents paid
shall not be returned to the vendee or lessee shall be valid insofar as the same may not be
unconscionable under the circumstances.
ARTICLE 1487. The expenses for the execution and registration of the sale shall be borne by the vendor, unless
there is a stipulation to the contrary.

GENERAL RULE:
The expenses for the execution and registration of the sale shall be borne by the vendor.

EXCEPTION:
Contrary stipulation.

ARTICLE 1488. The expropriation of property for public use is governed by special laws.

WHAT IS EXPROPRIATION?
A government taking or modification of an individual’s property rights, esp. By eminent domain.