On the following day, the joint program, rendered on the campus and attended by a crowd seldom witnessed in the University grounds, proved a pleasing success. "For France," a one-act play, despite its poor plot, made a hit because of the brilliant acting of Miss Alvarez. "The Recruiter," no matter what technical flaws it may have, is decidedly a success on the stage. The local coloring of the play and the amusing incidents which tickled the audience to bursts of laughter clearly indicate that its author knows wherein lies the weakness of his audience.

The University songs, written by Mr. Velez and Mr. Romero, both of the College of Law, for the first time charmed with melody the moonlit campus of our dear University. The College of Law should congratulate herself in having such sons, as Mr. Velez and Mr. Romero, who know how to express their love to their Alma Mater in the most beautiful lines.

THE CARSON MEDALS

Dionisio de Leon easily carried off the gold medal this year, and Ramon B. Felipe, the silver one. Engracio Abasolo was awarded the honorable mention. The winning orations are: De Leon's "The Advent of Peace," Felipe's "The Triumph of American Democracy," and Abasolo's "A Tribute to General L'ina."

The contest, the seventh annual oratorical contest of the College of Law, was held at the Philippine Normal School Auditorium on December 13. All the seats were occupied and the aisles were packed up to their full capacity. termissions of songs by Miss Cervero and by the law glee club.

PHILIPPINE BARRISTERS HELD BANQUET

There were in

The Philippine Barristers gave a banquet in honor of their adviser on Saturday, Déc. 21, at the Hotel Mignon. Speeches were delivered by three members of the association who were responded to by Dean Bocobo and the guest of honor.

Vol. V

FEBRUARY, 1919

No. 7

A COMPARATIVE STUDY OF THE STAGES IN THE LIFE OF A CONTRACT UNDER THE SPANISH LAW AND THE AMERICAN LAW

BY FELIX B. BAUTISTA, B.A., LL.B.

(Continued from January number)

E. By Impossibility of Performance under Spanish Law.

(1) As regards the parties.-This way of extinguishing the obligations takes place when the debtor is found physically and legally incapacitated in doing what he promised. The physical impossibility arises principally by the death of the debtor, in prestations to do which are very personal in him, or by the death of the creditor in those prestations of the same nature in respect to said creditor. In both cases, the obligation and the right are extinguished respectively, because they are personal. Also it may arise from a fortuitous event or by a force majeure, or from certain acts which depend upon the mental and physical capacity of the debtor, as when he is incapacitated to fulfill the prestation by a sickness, or by other external independent causes, etc. (8 Manresa 347). The legal impossibility may arise from a direct way, as when the law prohibits the execution of the act agreed upon for being considered immoral, illicit, illegal, untenable, or for some other cause or reason; and from an indirect way, as when the law without prohibiting the execution of what is agreed upon, it makes it impossible, by imposing upon the obligor other greater duties which result inconsistent with the fulfillment of the obligation. The legal impossibility is extended not only to the prohibition of a law as such but also to the rules or orders of the authorities such as municipal ordinances, etc. (8 Manresa 345.) (2) As regards the subject-matter.-This extinguishment takes place by the loss or destruction of the thing, the object of the contract.

Concept.-"The loss of the thing due means, aside from the destruction of the thing due, its disappearance by loss, theft or robbery, i. e., its non-existence in the hands of the obligor or when, thru any cause, the compliance of the obligation becomes impossible. A thing is understood as lost, when it perishes, goes out of commerce or disappears in such a way that its existence is unknown or it cannot be recovered." (Article 1122, No. 2 Civil Code; see 8 Manresa 335-338.) But to know when

the obligations are extinguished by this cause it is necessary to distinguish the things which are its object, and the part which the debtor had in the loss. The object of the obligations may be determined or undetermined.

Rules about the loss of the things determined.-When the things which may be owed were certain and determined as, for example, an animal, and be dead or lost, as in this case, it lacks the object of the contract the obligation ought to cease. (See Crame Sy Pangco vs. Gonzaga, 10 Phil. 646.) But in order to produce this effect, it is necessary that it should be lost or be dead without the fault of the debtor and before the latter should become guilty of delay (Article 1182); because if this might happen with the fault or omission of the debtor, if he cannot return the thing lost he has, however, to pay its appraised value. (Article 1185, Civil Code.) It is presumed that the thing was lost thru the fault of the debtor and not through fortuitous event, when the thing was lost in his possession. (Article 1183, Civil Code.) The reason for this presumption is obvious, for the person in whose possession the thing is found, is the only person called upon to look after it, and use the necessary means for its care and preservation. By this fact, if it is lost in his possession it shows his negligence or his fault unless the contrary is proven. (See Palacio vs. Sudario, 7 Phil. 275.) The same would happen when it is lost through fortuitous event and the debtor would have been guilty of delay, as, for example, not giving it back at the day designated for its delivery, or in the fault of this, after the creditor has demanded for it. (Articles 1182 and 1096, part 3, Civil Code.) The same would happen if the obligor had promised to deliver the same thing to two or more different persons. (Article 1096, part 3, Civil Code.) But when the debt for a certain and specified thing originates from a crime or fault, the debtor shall not be exempted from the payment of its value, whatever the cost of the loss may be unless, when after he has offered the thing to the person, who should have received it, this person without reason had refused to accept it. (Article 1185, Civil Code.)

Rules about the loss of the things undetermined.-If the thing owed be generic, as, for example, if the debtor be only obligated to deliver one or many horses, a sum of money, etc., the obligation will not be extinguished until its delivery. The reason of this is based upon the fact that the impossibility of the delivery which exists in that of a determined thing, does no longer exist because the kind, as the jurists say, never parishes, Genus nunquam perit, unless the transaction refers to all the things included in the class' indicated. (3 Viso 123; see 8 Manresa 338.)

Effect. The loss of the thing due will produce the effect of extinguishing the obligation, if the debtor is exempted from the following requisites:

sons.

(1) That the thing was not lost thru his fault;

(2) That he was not guilty of delay;

(3) That he had not promised to deliver the same thing to two different per(Articles 1182 and 1096, part 3, Civil Code.)

Once the obligation is extinguished through the loss of the thing, all the actions

which the debtor might have against third persons by reason thereof will be transmitted to the creditor. (Article 1186, Civil Code.)

(3) As regards the obligation itself.-Another way of extinguishing the obligation by reason of impossibility of performance takes place when the obligation cannot be fulfilled for having the debtor succeeded in the rights of the creditor, or the latter in those of the debtor (merger); or because the law has declared it as notexisting through vices or latent defects (nullity and rescission); or for having fulfilled the conditions which have been imposed to terminate the effect of the contract (resolutory condition); and finally because the law considers it as fulfilled for having elapsed a sufficient time within which the creditor could demand for its fulfillment but he failed to do so (prescription). Let us discuss each one of these modes briefly.

(a) Merger. (Confusion of Rights.)

Concept.-Confusion is "the meeting in one person of the qualities of obligee and obligor in respect to the same obligation." (IV Sanchez Roman 421.)

Causes.-The confusion can take place either by virtue of universal title, as when the debtor succeeds the creditor or the latter, the debtor; or a third person, the two (the debtor and creditor); or either by virtue of a particular title, as when the debtor acquires the credit through another cause other than inheritance and can take place either between the principal debtor and his creditor or between the latter and the surety of the debtor, or between the creditor and some of the joint debtors. Through either of the titles and between either of the persons the confusion may have taken place, it will extinguish the obligation (article 1192, Civil Code), but observing the following rules:

Rules. (1) In order to extinguish the debt when the qualities of the debtor and creditor through title by inheritance are in the same person, it is required that the inheritance be not accepted with the benefit of inventory, (Article 1192, part 2, Civil Code). It seems, however, that this part of article 1192 is no longer in force as decided in the case of Suiliong & Co. vs. Chio-Taysan, 12 Phil. 13; see section 729, Act 190;

(2) That the confusion which has taken place in the person of the debtor or of the principal creditor, accrues for the benefit of the sureties, because the obligations of the latter being accessories cannot subsist when the principal has extinguished, just as the contrary, that which takes place in the person or any surety, for having succeeded the debtor, or the latter the surety, will not extinguish the principal obligation. (Article 1193, Civil Code; 8 Manresa 387; Article 1848, Civil Code.)

(3) That which takes place in the person of the creditor who inherits from one of the several debtors or in the person of the one of these who succeed the common creditor, does not extinguish the common debt but the portion pertaining to the creditor or debtor in whom the confusion might take place. (Article 1194, Civil Code.) But if the confusion takes place in the person of the creditor who succeeds

one of the joint debtors or in the person of one of those who succeed the common creditors, extinguishes the obligation. (Article 1143, Civil Code.)

Revocation of Confusion.-This revocation can take place: (1) When by a cause subsequent to the act which produces it, this ceases to exist. Such would be when the creditor being the heir of his debtor, the will be declared subsequently null and void;

(2) When the confusion be declared invalid by virtue of a cause previous or simultaneous to the act which produces the same. Thus, when the heir of his debtor after the acceptance of the inheritance, should ask for the revocation or rescission of his acceptance by reason of fraud.

In these cases, the obligations are revived as if the confusion had taken place. (IV Sanchez Román 422; 8 Manresa 380.)

Effect of Confusion.-The effect of confusion is that the obligation is extinguished, because its enforcement becomes impossible and because its purpose has been fulfilled. The confusion makes impossible the exercise, of the rights, because it takes away the plurality of the persons or subjects, essential characteristics of the obligation, merging in one person and because it is an absurd thing to conceive of the demand of one person against himself. (8 Manresa 378.)

(b) Rescission and Nullity.

Concept and Differences.-The action for nullity takes place when the contract lacks one of the essential requisites necessary for its validity, and that for rescission, when the contract which appears valid for having observed the formalities of the law, contains some vice or defect which may render its effects ineffective, at the instance of either party, especially of the injured one; or when having no vice at all but some stipulation or condition was not complied with. (3 Viso 136; IV Sanchez Román 343.) From the foregoing it is inferred that the action for rescission can only be based upon valid contracts, which for reasons of justice and equity they are allowed by law to be rescinded, but not upon contracts per se null and void, due to the fact that an act which does not legally exist can not be rescinded. Hence the reason why they are regarded as means of extinguishing the obligations.

Nullity. What are null obligations.-The contract wherein the essential requisites of consent, object and cause are present, can be declared null and void whenever they contain some of the vices which invalidate the same. (Article 1300, Civil Code.) According to this, all the obligations which can not have any legal effect either by reason of the persons, subject of the contract, or for lack of consent, or by reason of the object or by reason of the falsity or illegality of their cause can be nullified. The obligations are null due to the persons, subjects of the contract, when they are entered into by those persons who are incapable to make a contract, as provided for by Article 1263, Civil Code, and as it was discussed before.

The obligations null by lack of consent are those entered into by the same per