1. Introducción
1.5. Osmolitos y regulación del volumen celular
a. If the parties
stipulate
otherwise. (Art.1252)
2" Magdalena Estates, Inc. v. Rodriguez, G.R. No. L-18411, December 17, 1966.
229 Paculdo v. CA, G.R. No. 123855, November 20, 2000.
b. Application shall not be made as to debts which are
not yet due. (Art. 1252)
Unless the application is made by the party for whose benefit the term has been constituted
(Art.
1252)
c. If the debtor accepts from the creditor a
receipt
in which an application of the payment is made, the former cannot complain of the same, unless ·there is a cause for invalidating the contract.(Art. 1252)
The debtor is deemed to have waived his right to apply payments and acquiesced to the creditor's application.
d. If the debt produces
interest,
payment of the principal shall not be deemed to have been made until the interests have beeu covere.d.(Art. 1253)
Thus, if the creditor agrees to apply a payment to the principal, it may be assumed that the interest had already been paid or wai:ved.230
3. In
Defaultof
theForegoing Rules.
When the payment carmot be applied in accordance with the preceding roles, or if application can not be inferred from other circumstances (e.g., if neither the debtor nor the creditor makes the application), apply the following roles:a. The debt which is
most onerous
to the debtor, ·among those due, shall be deemed to have been satisfied. (Art.1253)
In general-i. A debt incurred as a principal is more onerous than a debt as a mere surety or guarantor.
'" Swagman Hctels and Travel In� v. CA, G.R. No. 161135, April 6, 2005; Al)ama v. CA, G.R.
·
No. 126609; January 29, 2004.
ii. An interest-bearing debt is more onerous than one without interest.231
iii. The older debt is more onerous than a more recent one232 (unless the more recent debt bears interest, while the older one does not233).
iv. A secured debt is more onerous than an unsecured debt.234
b. If the debts due are of the same nature and burden, the payment shall be applied to all of them proportionately.
(Art. 1253) H.
PA
YMENT BY CESSION
I .
In General.
The debtor may cede or assign his property to his creditors in payment of his debts.(Art. 1255)
a. This cession is voluntary on the part of the debtor. It is also subject to the acceptance by the creditors.
b. The creditors do not become owners of the property assigned (unlike in dation in payment). The creditors merely become authorized to convert the property· into cash, which will be used to pay their credits.
c. Payment by cession contemplates the existence of two or more creditors, and involves the assignment of all the debtor's property.235
'" Menzl & Co. v. Quing Chuan, 69 Phil, 46 (1939).
'" Phil. National Bank v. Veraguth, 50 Phil. 253 (1927).
"' Menzi & Co. v. Quing Chuan, 69 Phil. 46 (1939).
'"Traders Insurance & Surety v. Dy Eng Giok, 104 Phil. 606 (1956
j
.'" DBP v. CA, G.R. No. 118342, January 5, 1998. ·
2. Effect.
This cession, unless there is stipulation to the contrary, shall only release the debtor from responsibility for the net proceeds of the thing assigned. (Art. 1255)The agreements which, on the effect of the cession, are '
made between the debtor and his creditors shall be governed by special laws.
(A
rt.1255)
I. TENDER OF PAYMENT AND CONSJGNATION I.
In General.a.
Tender of payment
is the manifestation by the debtor of his desire to comply with or to pay the obligation.236 If the creditor to whom tender of payment has been made refuses without just cause to accept it, !lie debtor shall be released from responsibility by theconsignation
of the thing or sum due.(Art. 1256)
i. Tender of payment must be made in
legal tender
to be valid. 237However, payment in check may be considered valid, if no prompt objection to said form of . . d 238 payment 1s ma e.
ii.
A
letter merely expressing intent to pay, but not accompanied by payment, is not equivalent to tender of payment.239b.
Consignation
is the act of depositing the thing due · with the court or judicial authorities whenever the 236 Ramos v. Sarao, G.R. No. 149756, 1 1 February 2005, 451 SCRA 103, 118·119.'" Sooo v. Militante, 208 Phil. 151, 160 (1983); see also Philippine Airlines, Inc. v. Court of Appeals, G.R. No. 49188, 30 January 1990, 181 SCRA 557, 568; Citibank, N.A. v. Sabeniand, G.R. No. 156132, October 16, 2006.
23e Saco v. Militante, 208 Phil. 151, 160 (1983); Pabugais v. Sahijwanl, G.R. No. 156846, February 23, 2004. .
239 Vda. De Zuluela v. Octaviano, G.R. No. L-55350, March 28, 1983 . . 94
creditor cannot accept or refuses to accept payment.140
(Art. 1258)
i. If the tender of payment (which has been refused) is not followed by consignation, the debtor is not discharged from the obligation.241
ii. Tender of payment must be distinguished from consignation. Tender is the antecedent of consignation, that is, an act preparatory to the consignation, which is the principal act with results in the discharge of the obligation. Tender of payment may be extrajudicial, while consignation is necessarily judicia!.242
2. Consignation Without Prior Tender.
As a rule, consignation must be preceded by tender of payment to discharge the obligation. However, in the following cases specified byArt. 1256,
consignation alone shall discharge the obligation:a. When the creditor is absent or unknown, or does not appear at the place of payment;
b. When he is incapacitated to receive the payment at the time it is due;
c. When, without just cause, he refuses to give a receipt;
d. When two or more persons claim the same right to collect;
e. When the title of the obligation has been lost.
(Art.
1256)
"' Pabugais v. Sahijwanl, G.R. No. 156846, February 23, 2004.
241 Solid Homes, Inc. v. Laserna, G.R. No. 166051, April 8, 2008.
242 Saco v. Militante, 208 Phil. 151, 160 (1983).
3. Requisites.
In order that consignation may be effective, the debtor must show compliance with the following reqllisites:243a. There was a
debt due244;
Consignation is not necessary where the payor seeks to exercise a
right
(such as the right of redemption245 or repurchase246 or option247), instead of performing anobligation.
Tender of payment is sufficient for such exercise of right.b. The consignation of the obligation had been made because the creditor to whom tender of payment was made
r�fused
to accept it without just cause, or �ecause of any of thegrounds in Art. 1256
which dispenses with the need for tender of payment; (Arts.1256, 1258)
If the creditor justly refused to accept the. payment because it was not in legal tender, consignation is not proper.248
c. Previous
notice
of the consignation had been given to the person interested in the performance of the obligation; (Art.1257)
This is to give the creditor an opportunity to reconsider his unjustified refusal and to accept
243 Soco v. Militante, 208 Phil. 151, 160 (1983); Pabugais v. Sahijwani, G.R. No. 156846, February 23, 2004.
244 Ascue v. CA, G.R. No. 84330, May 8, 1991.
245 Villanueva v. Malaya, G.R. No. 94617, April 12, 2000, citing Co. vs. Philippine National Bank, 1 14 SCRA 842; De Castro vs. Intermediate Appellate Court, 165 SCRA 654; Enage vs. De Escano, 38 Phil. 687.
246 Legaspi v. CA, 142 SCRA 82, 88 (1986), citing Asturias Sugar Central v . . Pure Cane Molasses Co., 60 Phil. 255 (1934), Villegas v. Capistrano, 9 Phil. 416; Rosales v. Reyes, et al., 25 Phil. 495; Paez, eta\. v. Magno, 46 O.G.,p, 5425.
247 Vda. de Quirino v. Pa\arca, 29 SCRA 1 [196g] citing Asturias Sugar Central v. Pure Cane Molasses Co., 60 Phil. 255 and Conejero v. CA, L-21812, April 29, 1966.
"' Roman Catholic Bishop of Malolos, Inc. v. \AC, G.R. No. 72110, November 16, 1990.
payment thereby avoiding consignation and the subsequent litigation. 249
d. The amount due was placed at the
disposal of the court;
(Art.1258)
ande. After the consignation had been made,. the person interested was
notified
thereof. (Art.1258)
Notes:
Two notices are required:
prior to
andafter
the consignation. The reason for the second notice is to enable the creditor to withdraw the goods or money deposited, to avoid risk of deterioration, depreciation or loss. 250i.
Strict compliance.
The foregoing reqms1tes and mandatory and must be strictly complied with.mii. Inejfectuar consignation.
The consignation shall be ineffectual (a) if there is failure in any of the foregoing requisites252; or (b) if the consignation is not made strictly in.consonance with the provisions which regulate payment. (Art.1257)
iii.
Applicability.
The . foregoing reqnisites do not strictly apply to debts pursuant to a judgment. In such a case, if the judgment creditor refuses to accept the payment of the amount due on the judgment, the court may direct the money to be249 Cabanos v. Calo, G.R. No. L-10927, October 30, 1958, 104 Phil. 1058; Limkako vs. Teodoro.
74 Phil. 313; Socov. Militante, 208 Phil. 151, 160 (1983).
�° Cabanas v. Calo, G.R. No. L-10927, October 30, 1958, 104 Phil. 1058; Saco v: Militante, 208 Phil. 151, 160 (1g83).
251 Saco v. Militante, 208 Phil. 151, 160 (1983);
252 Pabugais v. SShijwanl, G.R. No. 156846, February 23, 2004.
paid in court and when this is done, order satisfaction of the judgment to be entered.'53
4. Effect of Consignation.
a.
Cancellation or Discharge of the Obligation.
Once the consignation has been duly made, the debtor may ask·the judge to order the cancellation of the obligation.
(Art. 1 260)
b.
Expenses.
The expenses of consignation, when properly made, shall be charged against the creditor.(Art. 1259)
c.
Withdrawal.
1.
Before
the creditor has accepted the consignation, orbefore
a judicial declaration that the consignation has been properly made - the debtor may withdraw the thing or the sum deposited, allowing the obligation to remain in force. (Art.1260)
At this point, the debtor is still the owner of the property deposited and may thus withdraw it.254
It has been held, however, that when all the requisites for consignation are complied with (and there is no reason to disapprove the consignation), the property deposited becomes for the account of the creditor, who must bear .the risk of loss,
253 Salvante v. Cruz, 88 Phil. 236 (1951): Francisco v. Bautista, G.R. No. 44167, December 19, 1990.
254 IV Tolentino 331.
even before the actual approval of the court or acceptance by the creditor.'55
ii.
After
the creditor has already accepted the consignation, orafter
the . court has already declared that consignation is proper .- the debtor may withdraw the thing or sum deposited only if the 'creditor consents.If the creditor should consent or authorize the withdrawal
-(a) The creditor shall lose every preference which he may have over the thing. (Art.
1261)
(b) The co-debtors, guarantors and sureties shall be released. (Art. 1261)