WHO SHOULD BEAR THE LOSS OF THE THING SUBJECT OF THE SALE
AFTER THE PERFECTION THEREOF BUT BEFORE DELIVERY?
ANSWER:
In this case, if the thing is lost after the perfection of the sale henceforth before its
delivery to the buyer, the latter shall bear the loss as an exception to the rule of res
perit domino.
Under Art. 1480 of the Civil Code, it applies to non-fungible things (par. 1) and
fungible things sold independently and for a single price or for a price fixed without
consideration of their weight, number, or measure. (par. 2) 1
The buyer would take the risks of the loss thing and shifted to him the obligation
even without the delivery of the thing. For example, if the house was destroyed by a
typhoon and it was damaged either wholly or partly, the seller was not liable for the
thing loss for there would be no fraud on his part. However, the buyer must pay the
price of the house even though he has not yet received the thing.
In effect under Article 1493, If at the time the contract of sale is perfected, the thing
which is the object of the contract has been entirely lost, the contract shall be without
any effect. Hence, it applies only to a sale of specific thing. On the other hand, Art.
1494 is applicable only to sales of goods.
In support to the above provision, Article 1538 provides that “In case of loss,
deterioration or improvement of the thing before its delivery, the rules in article 1189
shall be observed, the vendor being considered the debtor.”
Citing Article 1189, the Rules in case of loss, deterioration, or improvement of thing
before delivery, it states that:
1
Hector De Leon, Law of Sales (Manila, Rex Book Store, January 1, 1984) p. 104
“When the conditions have been imposed with the intention of suspending the
efficacy of an obligation to give, the following rules shall be observed in case of
the improvement, loss or deterioration of the thing during the pendency of the
condition:
(1) If the thing is lost without the fault of the debtor, the obligation shall be
extinguished;
(2) If the thing is lost through the fault of the debtor, he shall be obliged to pay
damages; it is understood that the thing is lost when it perishes, or goes out of
commerce, or disappears in such a way that its existence is unknown or it
cannot be recovered;
(3) When the thing deteriorates without the fault of the debtor, the impairment is
to be borne by the creditor;
(4) If it deteriorates through the fault of the debtor, the creditor may choose
between the rescission of the obligation and its fulfillment, with indemnity for
damages in either case;
(5) If the thing is improved by its nature, or by time, the improvement shall inure
to the benefit of the creditor;
(6) If it is improved at the expense of the debtor, he shall have no other right
than that granted to the usufructuary.”
An in-depth reading of Art. 1408, 1538 and 1189 it shows that these provisions
follows the idea of each other. It discussed the “rules governing injury to, or benefit
from, the thing sold after the contract has been perfected but before its delivery.” 2
However, Art. 1504 states a different ruling pertaining to the rule governing risk of
loss which is contrary to Arts. 1480 and 1538.
ART. 1504. Unless otherwise agreed, the goods remain at the seller’s risk until
the ownership therein is transferred to the buyer, but when the ownership
therein is transferred to the buyer, the goods are at the buyer’s risk whether
actual delivery has been made or not, except that:
2
Hector De Leon, Law of Sales (Manila, Rex Book Store, January 1, 1984) p. 256
(1) Where delivery of the goods has been made to the buyer or to a bailee for
the buyer, in pursuance of the contract and the ownership in the goods has
been retained by the seller merely to secure performance by the buyer of his
obligations under the contract, the goods are at the buyer’s risk from the time of
such delivery;
(2) Where actual delivery has been delayed through the fault of either the
buyer or seller the goods are at the risk of the party in fault. (n)
For a better understanding and to avoid conflicts between the laws let us apply the
statutory construction. Under Article 1504, it is explicitly providing that “Unless
otherwise agreed, the goods remain at the seller’s risk until the ownership therein is
transferred to the buyer.” while in Article 1480, “the risk of loss of the thing after
perfection is shifted from the seller to the buyer even though the buyer has not yet
acquired ownership thereof.”3 Article 1480 is the general rule on risk of loss while
Article 1504 is the exception and only applicable to sales of “goods”.
3
Hector De Leon, Law of Sales (Manila, Rex Book Store, January 1, 1984) p. 196
