G.R. No.

L-10907 January 29, 1916 defendant is relieved from all liability for the noncompliance with the contract on account of the
order of the Australian government prohibiting the exportation of flour if the sale is not a
perfected one. As thus presented, our inquiry is limited to the determination of the question
ONG JANG CHUAN, plaintiff-appellee,
whether or not the contract and the facts found show a perfected sale.
vs.
WISE & CO. (LTD), defendant-appellant.
In the case of Yu Tek & Co. vs. Gonzales (29 Phil. Rep., 384) we said:
A.J. Burke for appellant.
Beaumont and Tenney for appellee. This court has consistently held that there is a perfected sale with regard to the "thing"
whenever the article of sale has been physically segregated from all other articles.
TRENT, J.:
In the case under consideration, the undertaking of the defendant was to sell to the plaintiff
1,000 sacks of "Mano" flour at P11.05 per barrel, 500 sacks to be delivered in September and
An appeal from a judgment of the Court of First Instance of Manila condemning the defendant to
500 in October. There was no delivery at all under the contract. If called upon to designate the
pay the plaintiff the sum of P1,237.50, together with interest and costs, as damages for a breach
article sold, the defendant could only say that it was "Mano" flour. There was no appropriation of
of contract.
any particular lot of flour. The flour mentioned in the contract was not "physically segregated
from all other articles.' In fact, the defendant did not have in its possession in Manila, at the time
The contract which forms the basis of this action reads: the contract was entered into, the 1,000 sacks of flour which it agreed to deliver in September
and October. It is therefore clear that under the rule laid down in the case of Yu Tek &
Co., supra, and the case cited in that opinion, the sale here in question was not a perfected one.
Between Messrs. Wise & Co. (Ltd.), Manila, and Mr. Ong Jang Chuan, Manila.

For the foregoing reasons, the judgment appealed from is affirmed, with costs against the
We Wise & Co. (Ltd.), have sold to Mr. Ong Jang Chuan the following goods, on this appellant. So ordered.
29th day of July, 1914:

Arellano, C. J., Torres and Carson, JJ., concur.

One thousand (1,000) sacks of flour, "Mano" brand, at the net price of P11.05 (eleven
pesos and five centavos) per barrel, the expenses of transportation from the Binondo
Canal to be borne by the purchaser, 500 sacks to be delivered in September and 500
in October, which we bind ourselves to deliver ... for which we shall receive a
commission of ... per cent of the total amount. Payment of the goods mentioned shall
be made within 30 days counted from the date of delivery, and interest at rate of ... per
annum on any unpaid amount that may still be due after the ... days mentioned.

The pertinent facts, as found by the trial court, are these:

It has been established by a preponderance of evidence that the reason for the
nonfulfillment, on the part of Wise & Co., of the contract made with the plaintiff, was
that the "Mano" brand of flour which the defendant bound itself to deliver during the
months of September and October had to come from Australia, and at the time the
contract was executed Wise & Co. did not have a sufficient stock of the said brand of
flour; and that, as the government of Australia prohibited the exportation of flour,
because of the scarcity of grain in that country, due to the war that had been declared
between Great Britain, of which Australia is an integral part and the German Empire, it
was impossible for the importers to supply Wise & Co. with a sufficient quantity of flour
to enable the latter, in turn, to serve its customers.

It is urged that the trial court erred (1) in holding that the contract above set forth was an
agreement to sell and not a perfected sale, (2) in not finding that the noncompliance of the
contract was due to a fortuitous event, and (3) in condemning the defendant to pay to the plaintiff
the sum of P1,237.50.

In the argument, as appears in defendant's printed brief filed in this court, the third alleged error
is made dependent upon the result of the first and second, or, in other words, it is not insisted
that the judgment is excessive or that the plaintiff has not established that he is entitled to
P1,237.50, in case he is entitled to any amount. Neither does counsel contend that the
G.R. No. L-29640 June 10, 1971
GUILLERMO AUSTRIA, petitioner,
vs.
THE COURT OF APPEALS (Second Division), PACIFICO ABAD and MARIA G.
ABAD, respondents.
Antonio Enrile Inton for petitioner.
Jose A. Buendia for respondents.
REYES, J.B.L., J.:
Guillermo Austria petitions for the review of the decision rendered by the Court of Appeal (in CA-
G.R. No. 33572-R), on the sole issue of whether in a contract of agency (consignment of goods
for sale) it is necessary that there be prior conviction for robbery before the loss of the article
shall exempt the consignee from liability for such loss.
In a receipt dated 30 January 1961, Maria G. Abad acknowledged having received from
Guillermo Austria one (1) pendant with diamonds valued at P4,500.00, to be sold on commission
basis or to be returned on demand. On 1 February 1961, however, while walking home to her
residence in Mandaluyong, Rizal, Abad was said to have been accosted by two men, one of
whom hit her on the face, while the other snatched her purse containing jewelry and cash, and
ran away. Among the pieces of jewelry allegedly taken by the robbers was the consigned
pendant. The incident became the subject of a criminal case filed in the Court of First Instance of
Rizal against certain persons (Criminal Case No. 10649, People vs. Rene Garcia, et al.).
As Abad failed to return the jewelry or pay for its value notwithstanding demands, Austria
brought in the Court of First Instance of Manila an action against her and her husband for
recovery of the pendant or of its value, and damages. Answering the allegations of the
complaint, defendants spouses set up the defense that the alleged robbery had extinguished
their obligation.
After due hearing, the trial court rendered judgment for the plaintiff, and ordered defendants
spouses, jointly and severally, to pay to the former the sum of P4,500.00, with legal interest
thereon, plus the amount of P450.00 as reasonable attorneys' fees, and the costs. It was held
that defendants failed to prove the fact of robbery, or, if indeed it was committed, that defendant
Maria Abad was guilty of negligence when she went home without any companion, although it
was already getting dark and she was carrying a large amount of cash and valuables on the day
in question, and such negligence did not free her from liability for damages for the loss of the
jewelry.
Not satisfied with his decision, the defendants went to the Court of Appeals, and there secured a
reversal of the judgment. The appellate court overruling the finding of the trial court on the lack
of credibility of the two defense witnesses who testified on the occurrence of the robbery, and
holding that the facts of robbery and defendant Maria Abad's possesion of the pendant on that
unfortunate day have been duly published, declared respondents not responsible for the loss of
the jewelry on account of a fortuitous event, and relieved them from liability for damages to the
owner. Plaintiff thereupon instituted the present proceeding.
It is now contended by herein petitioner that the Court of Appeals erred in finding that there was
robbery in the case, although nobody has been found guilty of the supposed crime. It is
petitioner's theory that for robbery to fall under the category of a fortuitous event and relieve the
obligor from his obligation under a contract, pursuant to Article 1174 of the new Civil Code, there
ought to be prior finding on the guilt of the persons responsible therefor. In short, that the
occurrence of the robbery should be proved by a final judgment of conviction in the criminal
case. To adopt a different view, petitioner argues, would be to encourage persons accountable
for goods or properties received in trust or consignment to connive with others, who would be
willing to be accused in court for the robbery, in order to be absolved from civil liability for the
loss or disappearance of the entrusted articles.
We find no merit in the contention of petitioner.
It is recognized in this jurisdiction that to constitute a caso fortuito that would exempt a person
from responsibility, it is necessary that (1) the event must be independent of the human will (or
rather, of the debtor's or obligor's); (2) the occurrence must render it impossible for the debtor to
fulfill the obligation in a normal manner; and that (3) the obligor must be free of participation in or
aggravation of the injury to the creditor.1 A fortuitous event, therefore, can be produced by
nature, e.g., earthquakes, storms, floods, etc., or by the act of man, such as war, attack by
bandits, robbery,2 etc., provided that the event has all the characteristics enumerated above.
It is not here disputed that if respondent Maria Abad were indeed the victim of robbery, and if it
were really true that the pendant, which she was obliged either to sell on commission or to return
to petitioner, were taken during the robbery, then the occurrence of that fortuitous event would
have extinguished her liability. The point at issue in this proceeding is how the fact of robbery is
to be established in order that a person may avail of the exempting provision of Article 1174 of
the new Civil Code, which reads as follows:
ART. 1174. Except in cases expressly specified by law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were
inevitable.
It may be noted the reform that the emphasis of the provision is on the events, not on the agents
or factors responsible for them. To avail of the exemption granted in the law, it is not necessary
that the persons responsible for the occurrence should be found or punished; it would only be
sufficient to established that the enforceable event, the robbery in this case did take place
without any concurrent fault on the debtor's part, and this can be done by preponderant
evidence. To require in the present action for recovery the prior conviction of the culprits in the
criminal case, in order to establish the robbery as a fact, would be to demand proof beyond
reasonable doubt to prove a fact in a civil case.
It is undeniable that in order to completely exonerate the debtor for reason of a fortutious event,
such debtor must, in addition to the cams itself, be free of any concurrent or contributory fault or
negligence.3 This is apparent from Article 1170 of the Civil Code of the Philippines, providing
that:
ART. 1170. Those who in the performance of their obligations are guilty of
fraud, negligence, or delay, and those who in any manner contravene the
tenor thereof, are liable for damages.
It is clear that under the circumstances prevailing at present in the City of Manila and its
suburbs, with their high incidence of crimes against persons and property that renders travel
after nightfall a matter to be sedulously avoided without suitable precaution and protection, the
conduct of respondent Maria G. Abad, in returning alone to her house in the evening, carrying
jewelry of considerable value would be negligent per se and would not exempt her from
responsibility in the case of a robbery. We are not persuaded, however, that the same rule
should obtain ten years previously, in 1961, when the robbery in question did take place, for at
that time criminality had not by far reached the levels attained in the present day.

There is likewise no merit in petitioner's argument that to allow the fact of robbery to be
recognized in the civil case before conviction is secured in the criminal action, would prejudice
the latter case, or would result in inconsistency should the accused obtain an acquittal or should
the criminal case be dismissed. It must be realized that a court finding that a robbery has
happened would not necessarily mean that those accused in the criminal action should be found
guilty of the crime; nor would a ruling that those actually accused did not commit the robbery be
inconsistent with a finding that a robbery did take place. The evidence to establish these facts
would not necessarily be the same.

WHEREFORE, finding no error in the decision of the Court of Appeals under review, the petition
in this case is hereby dismissed with costs against the petitioner.
 contract was not due to fortuitous events and that, therefore, the defendant was liable in
damages.
G.R. No. L-19495 February 2, 1924
In our opinion, the conclusions of the court below are entirely correct. That upon the facts stated
the defendant's liability, if any, is contractual, is well settled by previous decisions of the court,
HONORIO LASAM, ET AL., plaintiffs-appellants,
beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the distinction
vs.
between extra-contractual liability and contractual liability has been so ably and exhaustively
FRANK SMITH, JR., defendant-appellant.
discussed in various other cases, that nothing further need here be said upon that subject. (See
Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila Railroad Co. vs. Compania Trasatlantica
Palma and Leuterio for plaintiffs-appellants. and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co.,
Mariano Alisangco for defendant-appellant. 40 Phil., 706.) It is sufficient to reiterate that the source of the defendant's legal liability is the
contract of carriage; that by entering into that contract he bound himself to carry the plaintiffs
safely and securely to their destination; and that having failed to do so he is liable in damages
OSTRAND, J.:
unless he shows that the failure to fulfill his obligation was due to causes mentioned in article
1105 of the Civil Code, which reads as follows:
The plaintiff are husband and wife and this action is brought to recover damages in the sum of
P20,000 for physical injuries sustained by them in an automobile accident. The trial court
No one shall be liable for events which could not be foreseen or which, even if
rendered a judgment in their favor for the sum of P1,254.10, with legal interest from the date of foreseen, were inevitable, with the exception of the cases in which the law expressly
the judgment. Both the plaintiffs and the defendant appeal, the former maintaining that the provides otherwise and those in which the obligation itself imposes such liability.
damages awarded are insufficient while the latter denies all liability for any damages whatever.

This brings us to the principal question in the case:

It appears from the evidence that on February 27, 1918, the defendant was the owner of a public
garage in the town of San Fernando, La Union, and engaged in the business of carrying
passengers for hire from the one point to another in the Province of La Union and the What is meant by "events which cannot be foreseen and which, having been foreseen, are
surrounding provinces. On the date mentioned, he undertook to convey the plaintiffs from San inevitable?" The Spanish authorities regard the language employed as an effort to define the
Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving San Fernando, the term caso fortuito and hold that the two expressions are synonymous. (Manresa, Comentarios al
automobile was operated by a licensed chauffeur, but after having reached the town of San Codigo Civil Español, vol. 8, pp. 88 et seq.; Scævola, Codigo Civil, vol. 19, pp. 526 et seq.)
Juan, the chauffeur allowed his assistant, Remigio Bueno, to drive the car. Bueno held no
driver's license, but had some experience in driving, and with the exception of some slight
The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso
engine trouble while passing through the town of Luna, the car functioned well until after the
fortuito as "occasion que a case por aventura de que non se puede ante ver. E son estos,
crossing of the Abra River in Tagudin, when, according to the testimony of the witnesses for the
derrivamientos de casas e fuego que se enciende a so ora, e quebrantamiento de navio, fuerca
plaintiffs, defects developed in the steering gear so as to make accurate steering impossible,
de ladrones. . . . (An event that takes place by accident and could not have been foreseen.
and after zigzagging for a distance of about half a kilometer, the car left the road and went down
Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers. . .
a steep embankment.
.)"

The defendant, in his testimony, maintains that there was no defect in the steering gear, neither
Escriche defines caso fortuito as "an unexpected event or act of God which could either be
before nor after the accident, and expresses the opinion that the swaying or zigzagging of the
foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion,
car must have been due to its having been driven at an excessive rate of speed. This may
insurrections, destructions, destruction of buildings by unforseen accidents and other
possibly be true, but it is, from our point of view, immaterial whether the accident was caused by
occurrences of a similar nature."
negligence on the part of the defendant's employees, or whether it was due to defects in the
automobile; the result would be practically the same in either event.
In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Española says: "In a
legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following
In going over the bank of the road, the automobile was overturned and the plaintiffs pinned down
essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the
under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib , but his wife, Joaquina
failure of the debtor to comply with his obligation, must be independent of the human will. (2) It
Sanchez, received serious injuries, among which was a compound fracture of one of the bones
must be impossible to foresee the event which constitutes the caso fortuito, or if it can be
in her left wrist. She also appears to have suffered a nervous breakdown from which she had not
foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it
fully recovered at the time of the trial.
impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor)
must be free from any participation in the aggravation of the injury resulting to the creditor."
The complaint in the case was filed about a year and a half after the occurrence above related. It (5 Enciclopedia Juridica Española, 309.)
alleges, among other things, that the accident was due to defects in the automobile as well as to
the incompetence and negligence of the chauffeur, and the case appears to have been tried
As will be seen, these authorities agree that some extraordinary circumstance independent of
largely upon the theory that it sounds in tort and that the liability of the defendant is governed by
the will of the obligor, or of his employees, is an essential element of a caso fortuito. Turning to
article 1903 of the Civil Code. The trial court held, however, that the cause of action rests on the
the present case, it is at once apparent that this element is lacking. It is not suggested that the
defendant's breach of the contract of carriage and that, consequently, articles 1101-1107 of the
accident in question was due to an act of God or to adverse road conditions which could not
Civil Code, and not article 1903, are applicable. The court further found that the breach of the
have been foreseen. As far as the records shows, the accident was caused either by defects in
the automobile or else through the negligence of its driver. That is not a caso fortuito.

We agree with counsel that neither under the American nor Spanish law is a carrier of
passengers an absolute insurer against the risks of travel from which the passenger may protect
himself by exercising ordinary care and diligence. The case of Alba vs. Sociedad Anonima de
Tranvias, Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in support of his
contentions, affords a good illustration of the application of this principle. In that case Alba, a
passenger on a street car, was standing on the platform of the car while it was in motion. The
car rounded a curve causing Alba to lose his balance and fall off the platform, sustaining severe
injuries. In an action brought by him to recover damages, the supreme court of Spain held that
inasmuch as the car at the time of the accident was travelling at a moderate rate of speed and
there was no infraction of the regulations, and the plaintiff was exposed to no greater danger
than that inherent in that particular mode of travel, the plaintiff could not recover, especially so
since he should have been on his guard against a contingency as natural as that of losing his
balance to a greater or less extent when the car rounded the curve.

But such is not the present case; here the passengers had no means of avoiding the danger or
escaping the injury.

The plaintiffs maintain that the evidence clearly establishes that they are entitled to damages in
the sum of P7,832.80 instead of P1,254.10 as found by the trial court, and their assignments of
error relate to this point only.

There can be no doubt that the expenses incurred by the plaintiffs as a result of the accident
greatly exceeded the amount of the damages awarded. But bearing in mind that in determining
the extent of the liability for losses or damages resulting from negligence in the fulfillment of a
contractual obligation, the courts have "a discretionary power to moderate the liability according
to the circumstances" (De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706; art. 1103,
Civil Code), we do not think that the evidence is such as to justify us in interfering with the
discretion of the court below in this respect. As pointed out by that court in its well-reasoned and
well-considered decision, by far the greater part of the damages claimed by the plaintiffs resulted
from the fracture of a bone in the left wrist of Joaquina Sanchez and from her objections to
having a decaying splinter of the bone removed by a surgical operation. As a consequence of
her refusal to submit such an operation, a series of infections ensued and which required
constant and expensive medical treatment for several years. We agree with the court below that
the defendant should not be charged with these expenses.

For the reasons stated, the judgment appealed from is affirmed, without costs in this instance.
So ordered.

G.R. No. L-12342 August 3, 1918
A. A. ADDISON, plaintiff-appellant,
vs.
MARCIANA FELIX and BALBINO TIOCO, defendants-appellees.
Thos. D. Aitken for appellant.
Modesto Reyes and Eliseo Ymzon for appellees.
FISHER, J.:
By a public instrument dated June 11, 1914, the plaintiff sold to the defendant Marciana Felix,
with the consent of her husband, the defendant Balbino Tioco, four parcels of land, described in
the instrument. The defendant Felix paid, at the time of the execution of the deed, the sum of
P3,000 on account of the purchase price, and bound herself to pay the remainder in
installments, the first of P2,000 on July 15, 1914, and the second of P5,000 thirty days after the
issuance to her of a certificate of title under the Land Registration Act, and further, within ten
years from the date of such title P10, for each coconut tree in bearing and P5 for each such tree
not in bearing, that might be growing on said four parcels of land on the date of the issuance of
title to her, with the condition that the total price should not exceed P85,000. It was further
stipulated that the purchaser was to deliver to the vendor 25 per centum of the value of the
products that she might obtain from the four parcels "from the moment she takes possession of
them until the Torrens certificate of title be issued in her favor."
It was also covenanted that "within one year from the date of the certificate of title in favor of
Marciana Felix, this latter may rescind the present contract of purchase and sale, in which case
Marciana Felix shall be obliged to return to me, A. A. Addison, the net value of all the products of
the four parcels sold, and I shall obliged to return to her, Marciana Felix, all the sums that she
may have paid me, together with interest at the rate of 10 per cent per annum."
In January, 1915, the vendor, A. A. Addison, filed suit in Court of First Instance of Manila to
compel Marciana Felix to make payment of the first installment of P2,000, demandable in
accordance with the terms of the contract of sale aforementioned, on July 15, 1914, and of the
interest in arrears, at the stipulated rate of 8 per cent per annum. The defendant, jointly with her
husband, answered the complaint and alleged by way of special defense that the plaintiff had
absolutely failed to deliver to the defendant the lands that were the subject matter of the sale,
notwithstanding the demands made upon him for this purpose. She therefore asked that she be
absolved from the complaint, and that, after a declaration of the rescission of the contract of the
purchase and sale of said lands, the plaintiff be ordered to refund the P3,000 that had been paid
to him on account, together with the interest agreed upon, and to pay an indemnity for the losses
and damages which the defendant alleged she had suffered through the plaintiff's non-fulfillment
of the contract.
The evidence adduced shows that after the execution of the deed of the sale the plaintiff, at the
request of the purchaser, went to Lucena, accompanied by a representative of the latter, for the
purpose of designating and delivering the lands sold. He was able to designate only two of the
four parcels, and more than two-thirds of these two were found to be in the possession of one
Juan Villafuerte, who claimed to be the owner of the parts so occupied by him. The plaintiff
admitted that the purchaser would have to bring suit to obtain possession of the land (sten.
notes, record, p. 5). In August, 1914, the surveyor Santamaria went to Lucena, at the request of
the plaintiff and accompanied by him, in order to survey the land sold to the defendant; but he
surveyed only two parcels, which are those occupied mainly by the brothers Leon and Julio
Villafuerte. He did not survey the other parcels, as they were not designated to him by the
plaintiff. In order to make this survey it was necessary to obtain from the Land Court a writ of
injunction against the occupants, and for the purpose of the issuance of this writ the defendant,
in June, 1914, filed an application with the Land Court for the registration in her name of four
parcels of land described in the deed of sale executed in her favor by the plaintiff. The
proceedings in the matter of this application were subsequently dismissed, for failure to present
the required plans within the period of the time allowed for the purpose.
The trial court rendered judgment in behalf of the defendant, holding the contract of sale to be
rescinded and ordering the return to the plaintiff the P3,000 paid on account of the price,
together with interest thereon at the rate of 10 per cent per annum. From this judgment the
plaintiff appealed.
In decreeing the rescission of the contract, the trial judge rested his conclusion solely on the
indisputable fact that up to that time the lands sold had not been registered in accordance with
the Torrens system, and on the terms of the second paragraph of clause (h) of the contract,
whereby it is stipulated that ". . . within one year from the date of the certificate of title in favor of
Marciana Felix, this latter may rescind the present contract of purchase and sale . . . ."
The appellant objects, and rightly, that the cross-complaint is not founded on the hypothesis of
the conventional rescission relied upon by the court, but on the failure to deliver the land sold.
He argues that the right to rescind the contract by virtue of the special agreement not only did
not exist from the moment of the execution of the contract up to one year after the registration of
the land, but does not accrue until the land is registered. The wording of the clause, in fact,
substantiates the contention. The one year's deliberation granted to the purchaser was to be
counted "from the date of the certificate of title ... ." Therefore the right to elect to rescind the
contract was subject to a condition, namely, the issuance of the title. The record show that up to
the present time that condition has not been fulfilled; consequently the defendant cannot be
heard to invoke a right which depends on the existence of that condition. If in the cross-
complaint it had been alleged that the fulfillment of the condition was impossible for reasons
imputable to the plaintiff, and if this allegation had been proven, perhaps the condition would
have been considered as fulfilled (arts. 1117, 1118, and 1119, Civ. Code); but this issue was not
presented in the defendant's answer.
However, although we are not in agreement with the reasoning found in the decision appealed
from, we consider it to be correct in its result. The record shows that the plaintiff did not deliver
the thing sold. With respect to two of the parcels of land, he was not even able to show them to
the purchaser; and as regards the other two, more than two-thirds of their area was in the hostile
and adverse possession of a third person.
The Code imposes upon the vendor the obligation to deliver the thing sold. The thing is
considered to be delivered when it is placed "in the hands and possession of the vendee." (Civ.
Code, art. 1462.) It is true that the same article declares that the execution of a public
instruments is equivalent to the delivery of the thing which is the object of the contract, but, in
order that this symbolic delivery may produce the effect of tradition, it is necessary that the
vendor shall have had such control over the thing sold that, at the moment of the sale, its
material delivery could have been made. It is not enough to confer upon the purchaser
the ownership and the right of possession. The thing sold must be placed in his control. When
there is no impediment whatever to prevent the thing sold passing into the tenancy of the
purchaser by the sole will of the vendor, symbolic delivery through the execution of a public
instrument is sufficient. But if, notwithstanding the execution of the instrument, the purchaser
cannot have the enjoyment and material tenancy of the thing and make use of it himself or
through another in his name, because such tenancy and enjoyment are opposed by the
interposition of another will, then fiction yields to reality — the delivery has not been effected.
As Dalloz rightly says (Gen. Rep., vol. 43, p. 174) in his commentaries on article 1604 of the
French Civil code, "the word "delivery" expresses a complex idea . . . the abandonment of the
thing by the person who makes the delivery and the taking control of it by the person to whom
the delivery is made."

The execution of a public instrument is sufficient for the purposes of the abandonment made by
the vendor; but it is not always sufficient to permit of the apprehension of the thing by the
purchaser.

The supreme court of Spain, interpreting article 1462 of the Civil Code, held in its decision of
November 10, 1903, (Civ. Rep., vol. 96, p. 560) that this article "merely declares that when the
sale is made through the means of a public instrument, the execution of this latter is equivalent
to the delivery of the thing sold: which does not and cannot mean that this fictitious tradition
necessarily implies the real tradition of the thing sold, for it is incontrovertible that, while its
ownership still pertains to the vendor (and with greater reason if it does not), a third person may
be in possession of the same thing; wherefore, though, as a general rule, he who purchases by
means of a public instrument should be deemed . . . to be the possessor in fact, yet this
presumption gives way before proof to the contrary."

It is evident, then, in the case at bar, that the mere execution of the instrument was not a
fulfillment of the vendors' obligation to deliver the thing sold, and that from such non-fulfillment
arises the purchaser's right to demand, as she has demanded, the rescission of the sale and the
return of the price. (Civ. Code, arts. 1506 and 1124.)

Of course if the sale had been made under the express agreement of imposing upon the
purchaser the obligation to take the necessary steps to obtain the material possession of the
thing sold, and it were proven that she knew that the thing was in the possession of a third
person claiming to have property rights therein, such agreement would be perfectly valid. But
there is nothing in the instrument which would indicate, even implicitly, that such was the
agreement. It is true, as the appellant argues, that the obligation was incumbent upon the
defendant Marciana Felix to apply for and obtain the registration of the land in the new registry of
property; but from this it cannot be concluded that she had to await the final decision of the Court
of Land Registration, in order to be able to enjoy the property sold. On the contrary, it was
expressly stipulated in the contract that the purchaser should deliver to the vendor one-fourth "of
the products ... of the aforesaid four parcels from the moment when she takes possession of
them until the Torrens certificate of title be issued in her favor." This obviously shows that it was
not forseen that the purchaser might be deprived of her possession during the course of the
registration proceedings, but that the transaction rested on the assumption that she was to have,
during said period, the material possession and enjoyment of the four parcels of land.

Inasmuch as the rescission is made by virtue of the provisions of law and not by contractual
agreement, it is not the conventional but the legal interest that is demandable.

It is therefore held that the contract of purchase and sale entered into by and between the
plaintiff and the defendant on June 11, 1914, is rescinded, and the plaintiff is ordered to make
restitution of the sum of P3,000 received by him on account of the price of the sale, together with
interest thereon at the legal rate of 6 per annum from the date of the filing of the complaint until
payment, with the costs of both instances against the appellant. So ordered.