Oblicon Art. 1223-1230

DIVISIBLE AND INDIVISIBLE
OBLIGATION
SECTION 5
ARTICLE 1223
The divisibility or indivisibility of the things that are

the object of obligations in which there is only one
debtor and only one creditor does not alter or modify
the provisions of Chapter 2 of this Title.
Divisible and Indivisible
Obligations Definition
Divisible Obligation - are capable of partial performance.

Example: To deliver 200 Kilos of Rice.
Indivisible Obligation - one not capable of partial performance

Example: To deliver a speci c car
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Kinds of Division
Quantitative Division (depends on quantity)
Example: 10 chairs divided by 2 brother
Qualitative (depends on quality, irrespective of quantity)

Example: One child inherits land, another inherits cash
Intellectual or moral division (one that exists merely in the mind,

not in physical reality)
Example: 2 Brothers own a common house, 1/2 share in mind
each.
 
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ARTICLE 1224
A joint indivisible obligation gives rise to indemnity for

damages from the time anyone of the debtors does not
comply with his undertaking. The debtors who may
have been ready to ful ll their promises shall not
contribute to the indemnity beyond the corresponding
portion of the price of the thing or of the value of the
service in which the obligation consists.
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Joint Indivisible Obligation
Here the object is indivisible and yet the parties are merely
bound jointly.
Example: Mila and Ligaya are jointly bound to give a speci c

car to Jose.
 
 
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Effect of Non-compliance
The Obligation is converted into a monetary one for indemnity.
Example: Mila and Ligaya promised jointly to give a speci c car
worth P 2,400,000 to Jose. In the meantime car is with Honda Motors,
Co. Mila’s share is, therefore the money, but Ligaya has P 1,200,000. If
Mila, because f gambling, does not have the money, but Ligaya has P
1,200,000 it is clear that they cannot get the car from Honda Motors
Co. So they cannot comply with their obligation of delivering the car
to Jose. Here the obligation to give the car is converted to a monetary
obligation to give P2,400,000 to Jose. Ligaya is not responsible for
Mila’s insolvency, so she is duty bound to give only P1,200,000. Mila
will be indebted to Jose here share of P1,200,00.00
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Effect of Non-compliance
Suppose in the preceding problem, the obligation

was SOLIDARY and INDIVISIBLE, what would
be the effect?
ARTICLE 12225
For the purpose of the preceding articles, obligations to give de nite things and
those which are not susceptible of partial performance shall be deemed to be
indivisible
When the obligation has for its object the execution of a certain number of days
of work, the accomplishments of work by metrical units, or analogous things
which by their nature are susceptible of partial performance, it shall be divisible
However, even though the object or service may be physically divisible, an

obligation is indivisible if so provided by law or intended by the parties
In obligation not to do, divisibility or indivisibility shall be determined by the

character of the prestation in each particular case. (1151a)
.
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Obligations that are deemed

Indivisible
A. Obligation to give de nite things.
Example: To give this ca
B. Those which are not susceptible of partial performance

Example: To conduct the orchestra
C. Even if the thing is physically divisible, it may be indivisible if so

provided by law
D. Even if the thing is physically divisible, it may be indivisible if such

was the intention of the parties concerned.
.
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Obligations that are deemed Divisible
A. When the object of the obligation is the execution of a certain number
days of work.
Example: When a laborer is hired to work for 10 days
B. When the object of the obligation is the accomplishment of work by

metrical units.
Example: When a laborer is hired to construct a street 3 meters wide and
50 meters long.
C. When the purpose of the obligation is to pay a certain amount in

installments.
Example: When a debtor is required to pay in ten annual installments.
D. When the object of the obligation is the accomplishment of work

susceptible of partial performance.
 
 
 

Effect of Illegality on a Divisible

Contract
In case of a divisible contract, if the illegal terms

can be separated from the legal ones, the latter
may be enforced.
OBLIGATIONS WITH A PENAL
CLAUSE
SECTION 6
ARTICLE 1226
In obligations with a penal clause, the penalty shall substitute the

indemnity for damages and the payment of interests in case of non-
compliance, if there is no stipulation to the contrary. Nevertheless,
damages shall be paid if the obligor refuses to pay the penalty or is
guilty of fraud in the ful llment of the obligation
The penalty may be enforced only when it is demandable in

accordance with the provisions of this Code.
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PENAL CLAUSE
It is a coercive means to obtain to obtain from the debtor

compliance
A penal clause is an accessory undertaking to assume

greater liability in case of breach. It is attached to
obligations in order to insure their performance.
.
Kinds of Penal Clause

First Classi cation
a. Legal Penal Clause - one that is imposed by law
b. Conventional penal clause - that which has been agreed upon by the
parties.
Second Classi cation
a. Subsidiary - when only the penalty may be asked
b. Joint - when both the principal contract and the penal clause can be
enforced.

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Principal purpose of the Penal

Clause
Its principal purpose is to insure the performance of an

obligation and also to substitute for damages and the
payment of interest in case of non-compliance.
Example:
A promise to construct the house of B within 80 days. In

the contract, there is a provision to the effect that for
every day’s delay after the stipulated 80 days, A would
pay a ne or indemnity or penalty of P10,000.
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Obligation with Penal Clause, Facultative obligation
and Alternative obligation
Obligation with Penal Clause

Gloria is obliged to give me a diamond ring. If she fails to do so,
she must give P 700,000.0
Facultative obligation
Gloria is obliged to give me a particular diamond ring. However,
if she desires, she may instead of give me P700,000.0
Alternative obligation
Gloria is obliged to give me either a particular diamond ring or
P700,000.00
 
 
0
 
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ARTICLE 1227
The debtor cannot exempt himself from the performance of the

obligation by paying the penalty, save in the case where this right has
been expressly reserved for him. Neither can the creditor demand the
ful llment of the obligation and the satisfaction of the penalty at the
same time, unless this right has been clearly granted him. However,
if after the creditor has decided to require the ful llment of the
obligation, the performance thereof should become impossible
without his fault, the penalty may be enforced.
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General Rule: Debtor cannot substitute
Penalty for the Principal Obligation
The general rule is that the debtor is not allowed to just pay the
penalty instead of ful lling the obligation. He can only do so if the
right has been EXPRESSLY reserved. The reason is that if he can
just pay, ful llment of the obligation will be considered an
alternative one.
EXPRESSLY means that any implied reservation is not allowed.

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Example:
A promises to nish a certain piece of work within six months.

The contract stipulates that in case he does not build the
house at all, he is supposed to forfeit the sum of P1,000,000.00
In this case, as a general rule the contractor cannot just give

the sum of P1,000,000 as a substitute for his non-performance
of the obligation. It must be remembered that as a general
rule, therefore, the penal clause is not supposed to substitute
the performance of the principal obligation. He may however,
be expressly granted by the creditor the right to refrain from
the execution of the contract by a forfeiture of the penalty.
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Creditor cannot demand Both fulfillment

and the Penalty at the Same time.
As a general rule, the creditor does not have his right to

demand ful llment of the obligation and the penalty at
the same time. Unless expressly or CLEARLY granted to
him.
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ARTICLE 1228
Proof of actual damages suffered by the creditor

is not necessary in order that the penalty may be
demanded.
No necessity of Proving Actual
Damages
Example:
Lambert Vs. Fox
A was obliged under a contract with B, not to sell the shares of stock for one year.
A penal clause was provided. But A sold the shares of stock within the period
speci ed but damages were not proven by B to have been suffered by him
Issue: May B recover the penalty
Yes. Be may lawfully recover the penalty. In this jurisdiction contracts are
enforced as they are read, and parties who are competent to contract may make
such agreements within the limitations of the law and public policy as they
desire, and the courts will enforce them according to their terms.
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ARTICLE 1229
The judge shall equitably reduce the penalty when the

principal obligation has been partly or irregularly complied
with by the debtor. Even if there has been no performance,
the penalty may also be reduced by the courts if it is
iniquitous or unconscionable.
When penalty may be reduced by the Court
• When the obligation has Benn partly complied with by the

debtor
• When the obligation has been irregularly complied with

by the debtor
• When the penalty is iniquitous or unconscionable, even if

there has been no performance at all.
.
When does penal clause cannot be enforced.
The breach is the fault of the creditor
Or fortuitous even intervened, unless the debtor

expressly agreed on his liability in case of
fortuitous events
The debtor is not yet in default.

.
ARTICLE 1230
The nullity of the penal clause does not carry with it

that of the principal obligation
The nullity of the principal obligation carries with it

that of the penal clause.
.
Effect of Nullity of the Penalty Clause
If the principal obligation is null and void, the penal clause

will have no more use for existence and is therefore also
considered null and void. Upon on the other hand, just
because the penal clause is not valid, it does not mean that
its nullity will also make the principal obligation null and
void.
Examples:
A is obliged to give B a pack of Shabu. There is a penal
clause regarding foreigture of P500,000 in case of non
compliance with the obligation. Here, the subject
matter is outside the commerce of man. The penalty
clause here, although in itself valid, will also be
considered null and void because “ the nullity of the
principal obligation carries with it that of penal
clause.”

Oblicon Art. 1223-1230

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DIVISIBLE AND INDIVISIBLE

The divisibility or indivisibility of the things that are

Divisible Obligation - are capable of partial performance.

Indivisible Obligation - one not capable of partial performance

Qualitative (depends on quality, irrespective of quantity)

Intellectual or moral division (one that exists merely in the mind,

A joint indivisible obligation gives rise to indemnity for

Example: Mila and Ligaya are jointly bound to give a speci c

Suppose in the preceding problem, the obligation

However, even though the object or service may be physically divisible, an

In obligation not to do, divisibility or indivisibility shall be determined by the

Obligations that are deemed

B. Those which are not susceptible of partial performance

C. Even if the thing is physically divisible, it may be indivisible if so

D. Even if the thing is physically divisible, it may be indivisible if such

B. When the object of the obligation is the accomplishment of work by

C. When the purpose of the obligation is to pay a certain amount in

D. When the object of the obligation is the accomplishment of work

Effect of Illegality on a Divisible

In case of a divisible contract, if the illegal terms

In obligations with a penal clause, the penalty shall substitute the

The penalty may be enforced only when it is demandable in

It is a coercive means to obtain to obtain from the debtor

A penal clause is an accessory undertaking to assume

Kinds of Penal Clause

a. Legal Penal Clause - one that is imposed by law

Second Classi cation

a. Subsidiary - when only the penalty may be asked

Principal purpose of the Penal

Its principal purpose is to insure the performance of an

A promise to construct the house of B within 80 days. In

Obligation with Penal Clause

The debtor cannot exempt himself from the performance of the

EXPRESSLY means that any implied reservation is not allowed.

A promises to nish a certain piece of work within six months.

In this case, as a general rule the contractor cannot just give

Creditor cannot demand Both fulfillment

As a general rule, the creditor does not have his right to

Proof of actual damages suffered by the creditor

Issue: May B recover the penalty

The judge shall equitably reduce the penalty when the

• When the obligation has Benn partly complied with by the

• When the obligation has been irregularly complied with

• When the penalty is iniquitous or unconscionable, even if

When does penal clause cannot be enforced.

The breach is the fault of the creditor

Or fortuitous even intervened, unless the debtor

The debtor is not yet in default.

The nullity of the penal clause does not carry with it

The nullity of the principal obligation carries with it

Effect of Nullity of the Penalty Clause

If the principal obligation is null and void, the penal clause

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