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Loss of the Thing Due
Transcript of Loss of the Thing Due
When by law or stipulation, the obligor is liable even for fortuitous events, the loss of the thing does not extinguish the obligation, and he shall be responsible for damages. The same rule applies when nature of the obligation requires the assumption of risk.
genus nunquam perit
Effect of loss of a generic thing
Whenever the thing is lost in the possession of the debtor, it shall be presumed that the loss was due to his fault,unless there is proof to the contrary, and without prejudice to the provisions of article 1165. This presumption does not apply in case of earthquake, flood, storm, or other natural calamity. (1183a)
In an obligation to deliver a generic thing, the loss or destruction of anything of the same kind does not extinguish the obligation.
Loss of the Thing Due
There is partial loss when only a portion of the thing is lost or destroyed or when it suffers depreciation or deterioration. Partial loss is the equivalent of difficulty of performance in obligations to do.
Effect of partial loss of a specific thing
The courts shall determine whether, under the circumstances , the partial loss of the object of the obligation is so important as to extinguish the obligation.
When loss of thing will extinguish an obligation to give
The obligation is to deliver a specific or determinate thing;
The loss of the thing occurs without the fault of the debtor;
The debtor is not guilty of delay.
When loss of thing will not extinguish liability
when the law so provides (Arts.1170,1165[par.3],1263);
when the stipulation so provides;
when the nature of the obligation requires the assumption of risk(par.2;Art.1174.);
when the obligation to deliver a specific thing arises from a crime (Art.1268)
generic thing never perishes
the debtor is still liable even for a fortuitous event because the law says so
the creditor cannot demand a thing of superior quality
the debtor cannot deliver a thing of inferior quality