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Article 1199. A person alternatively bound by different prestations shall completely perform one of them.

The creditor cannot be compelled to receive part of one and part of the other undertaking. (1131)

Under the Civil Code, there are only three prestations namely:

to give, to do and not to do. Strictly speaking therefore, when the Code speaks of different prestations, it refers only to these three prestations. Hence, technically speaking, a person who is bound to give either a house, a car or a truck has only one prestation which is “to give.” But a person who is obliged to either deliver a house or to paint a picture has two prestations, namely: “to give” and “to do.”

It appears however that the phrase “different prestations” in the law refers to both the strict sense and the loose sense of the word

“prestation.”

Partial performance of the different prestations cannot be considered fulfillment of the obligation and therefore cannot be done unless the creditor accepts such partial performance as complete performance. Hence, if the obligor or debtor can either give a house and a car or paint two murals for the satisfaction of his obligation, he cannot give the car and one mural. The creditor cannot even be compelled to accept such kind of satisfaction. It will be considered an incomplete satisfaction which is not acceptable. The debtor must make a choice and when he does, it should either be the delivery of the house and car or the painting of two murals. The obligation will not be satisfied through partial fulfillment of several prestations.

If all but one of the alternatives become legally impossible to fulfill, the obligation will cease to be alternative. Thus, in a case where a loan was payable in Philippine Peso or in United States Dollars, the alternative obligation ceased to exist when, at the time the amount became due during the Japanese Occupation, payment in United States Dollars was prohibited.¹

Article 1200. The right of choice belongs to the debtor,

1Legardo vs. Miailhe, 88 Phil. 637.

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unless it has been expressly granted to the creditor.

The debtor shall have no right to choose those prestations which are impossible, unlawful or which could not have been the object of the obligation. (1132)

The debtor or the obligor is the passive subject in an obligation.

He, not the creditor, is the one obliged to give, to do or not to do. Hence, the choice is given to him by law. Any doubt as to whom the choice is given must always be interpreted in favor of the debtor. Only by an express grant of choice can a creditor have the right to choose which prestation is to be performed.

The debtor shall have no right to choose those prestations which are impossible, unlawful or which could not have been the object of the obligation. Hence, if for the accomplishment of the obligation, the debtor can either give a car, fly to the moon, or not join the army, he has all the three prestations as alternatives, namely: to give, to do and not to do. The first and the last alter-natives are possible and lawful while the second, which is to fly to the moon, is impossible.

The debtor therefore has no right to choose this second alternative.

If he is allowed to do so, then the obligation can never be fulfilled. If the alternatives are: to give opium, to sing a song or not to join the navy, the first alternative is clearly unlawful and therefore the debtor has no right to choose this prestation. If the alternative prestations in a modeling contract are: to deliver the dresses, to act as model or to engage in prostitution, not only is the last alternative illegal but it could not have been the object of the prestation.

Article 1201. The choice shall produce no effect except from the time it has been communicated. (1133)

The creditor is always entitled to be notified of the choice.

Communication to the creditor gives effect to the choice. The manner by which the communication is made can vary provided that it clearly conveys the unmistakable choice of the debtor. When the alternatives are all possible, lawful or consistent with the object of the obligation, the creditor has no right to oppose the choice. He must accept the chosen alternative. However, if some of the prestations are impossible, unlawful or which could not have been the object of the obligation, the creditor can relay his objection to the same so that the debtor will know, but, in any event, the debtor has no right to choose such proscribed alterna-tives.²

Article 1202. The debtor shall lose the right of choice when among the prestations whereby he is alternatively bound, only

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one is practicable. (1134)

Majority of the choices must be practicable. Otherwise, there will be no use to the various alternative prestations given. It must be noted however that whether only one, some, or a majority are practicable is generally irrelevant to the rights of the creditor. It is generally the debtor’s choice which prevails. If only one is practicable, the creditor has no right to complain about such situation because such affects only the debtor who will lose his right of choice. The creditor has no choice but to accept this single practicable choice provided that it is not unlawful or inconsistent with the object of the obligation.

It must be noted that the law uses the word “practicable.”

Practicable means capable of being done, or simply feasible.³ If the choices are either impossible, unlawful or which could not have been the object of the obligation, not only does the debtor have no right to choose them but it is also not practicable to undertake them.

However, prestations that are not “practicable” may also include lawful and possible prestations but, because of some special attendant circumstances which do not necessarily make them unlawful or impossible, they cannot be done. Hence, if the debtor has the following alternatives: to kiss a highly contagious leper, to sing a song, or not to pay taxes, it is clear that the last alternative is not only impracticable but also unlawful. The first alternative, although not unlawful and not impossible, is nevertheless not practicable because to do so will endanger the debtor’s health. In this case therefore, the debtor loses his right of choice because only one prestation is practicable which is to sing.

Article 1203. If through the creditor’s acts the debtor cannot make a choice according to the terms of the obligation, the latter may rescind the contract with damages. (n)

A debtor cannot perpetually be held liable for obligations the satisfaction or compliance of which the creditor himself prevents the debtor from fulfilling. If the debtor has three alternatives namely: to give a particular car, to sing at a particular night club, or not to resign from his job, and the creditor burns the particular nightclub where he should sing, the debtor has effectively been prevented from making a choice from the three alternatives, due to the fault of the creditor.

2See Ong Guan Can vs. Century Insurance Company, 46 Phil. 492.

3The New Lexicon Webster’s Dictionary of the English Language, 1987 edition, Page 787.

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In this case, the debtor can ask for the rescission of the contract with damages. If, despite, the act of the creditor, the debtor still wants to maintain the contract, said debtor can make his selection from the remaining choices.

Article 1204. The creditor shall have a right to indemnity for damages when, through the fault of the debtor, all the things which are alternatively the object of the obligation have been lost, or the compliance of the obligation has become impossible.

The indemnity shall be fixed taking as a basis the value of the last thing which disappeared, or that of the service which last became impossible.

Damages other than the value of the last thing or service may also be awarded. (1135a)

It must be pointed out that the debtor will not be liable in any way for reducing the alternatives from three to two alternatives, provided what remains are lawful, practicable, possible or consistent with the object of the obligation. Likewise, the debtor will not even be liable for converting his alternative obligation to a sim- ple one where there is only one lawful and possible prestation. The debtor may even cause the loss of the thing, or render the service impossible.

When the debtor is responsible for losing or rendering impossible all his alternative prestations, the creditor is entitled to damages.

Hence, if the debtor has the following alternative prestations: to give a car worth P50,000 or to paint a portrait in a special canvass worth P25,000, he will be liable for damages to the creditor if he (the debtor) willfully destroys the car and willfully destroys the special canvass where the portrait is to be painted, thereby rendering both alternatives impossible. If the special canvass were first destroyed and thereafter the car, the damages to be paid to the creditor will be the value of said car which is P50,000. This is so because, had the car not been destroyed, the debtor could have delivered the car, being the only remaining choice. This is pursuant to the law which provides that the indemnity shall be fixed, taking as a basis the value of the last thing which disappeared, or that of the service which last become impossible. Also damages other than the value of the last thing or service may also be awarded.

Article 1205. When the choice has been expressly given to

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the creditor, the obligation shall cease to be alternative from the day when the selection has been communicated to the debtor.

Until then the responsibility of the debtor shall be governed by the following rules:

(1) If one of the things is lost through a fortuitous event, he shall perform the obligation by delivering that which the creditor should choose from among the remainder, or that which remains if only one subsists;

(2) If the loss of one of the things occurs through the fault of the debtor, the creditor may claim any of those subsisting, or the price of that which, through the fault of the former, has disappeared, with a right to damages;

(3) If all the things are lost through the fault of the debtor, the choice by the creditor shall fall upon the price of any one of them, also with indemnity for damages.

The same rules shall be applied to obligations to do or not to do in case one, some or all of the prestations should become impossible. (1136a)

When the choice is given to the creditor, the conferment of such right must always be express. Once the choice of the creditor has been communicated to the debtor, the obligation ceases to be alternative.

Thus, if the debtor has three alternative prestations: to give a car, to give a truck or to give a boat, once he receives the selection of the creditor, he (the debtor) is bound to deliver the choice properly. He is obliged to take care of it with the proper diligence of a good father of a family, unless the law or the stipulation of the parties requires another standard of care.

Prior to the selection of the creditor, the law provides three rules governing the responsibility of the debtor. First, if one of the things is lost through a fortuitous event, the debtor shall perform the obligation by delivering that which the creditor should choose from among the remainder, or that which remains if only one subsists.

If the car, the truck and the boat were lost because of a fortuitous event, the obligation is extinguished. If only the car were lost, then the creditor has a choice between the truck and the boat. If only the boat remains, then the obligation becomes a simple one and the

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creditor can demand the delivery of the same.

Second, if the loss of one of the things occurs through the fault of the debtor, the creditor may claim any of those subsisting, or the price of that which, through the fault of the former, has disappeared, with a right to damages. If the debtor destroys the car, the creditor still has three choices, the truck, the boat or the price of the car. In addition, the creditor shall be entitled to damages regardless of which alternative he chooses.

Third, if all the things are lost through the fault of the debtor, the choice of the creditor shall fall upon the price of any one of them, also with indemnity for damages. If the car, the truck and the boat were all lost through the fault of the debtor, the creditor still has three choices namely: the price of the car, the price of the truck or the price of the boat. No matter what he chooses, the creditor shall be entitled to damages.

The same rules shall be applied to obligations to do or not to do in case one, some or all of the prestations should become impossible.

Article 1206. When only one prestation has been agreed upon, but the obligor may render another in substitution, the obligation is called facultative.

The loss or deterioration of the thing intended as a substitute, through the negligence of the obligor, does not render him liable. But once the substitution has been made, the obligor is liable for the loss of the substitute on account of his delay, negligence or fraud. (n)

This particular provision deals with a facultative-alternative obligation. For example, if the debtor is obliged to give a car, such prestation is the principal obligation. It becomes facultative if, in lieu of the car, he can undertake another prestation like the painting of a mural. Undertaking the substitute prestation however is not mandatory in the event that the principal prestation is not performed as the creditor only agrees that it may be given as a substitute. If the substitute however is given, the creditor cannot refuse it unless it is unlawful. However, there is nothing to prevent the parties from agreeing that the giving of the substitute prestation is mandatory in the event the principal obligation cannot be performed.

In the event that the substitute is lost through the negligence of the debtor, it does not affect the principal obligation and hence the debtor will not be liable. If there is bad faith on the part of the

art. 1206

debtor, it will depend on the situation. If the substitute prestation was one of the main reasons which induced the creditor to enter into the contract with the debtor, but the latter did not really intend to constitute it as a substitute, this could be an act of fraud on the part of the debtor, which could make the whole contract voidable. For example, a debtor negotiates with a creditor in order to let him (the debtor) pay the obligation by giving a boat to the creditor instead of a particular car which is preferred by the creditor. The creditor resists but, eventually, he agrees on the promise of the debtor to give not only one but two cars of the same type, which the debtor represents as owned by him, as substitute prestation in the event that the principal prestation is not performed. Here, the creditor would not have agreed to the contract without this substitute prestation. After the signing of the contract and before the fulfillment of the main prestation, the creditor learns that the debtor does not own the cars. The act of the debtor may constitute fraud and the whole contract may be annulled.

If the creditor does not make any move to annul the contract and accepts the giving of the boat as satisfaction of the obligation, he can no longer assail the contract as his acceptance cured the defect of said voidable contract. However, if the promise to the creditor relative to the two substitute cars does not constitute the reason for which the creditor entered into the contract, the debtor would not be liable for his bad faith if the principal obligation can still be performed.

Once the substitution has been made, the obligor is liable for the loss of the substitute on account of his delay, negligence or fraud.

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