Liezl L. Cruz BSC FMA 3 Art. 1174.

. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires assumption of risk, no person shall be responsible for those events which could not be foreseen, or which though foreseen, were inevitable. Fortuitous Event is any event which cannot be foreseen, or which, though foreseen, is inevitable. A Fortuitous Event may either be an act of man or n act of God. Acts of Man strictly speaking, fortuitous event is an event independent of the will of the obligor but not of the human will.

Example: War, fire, robbery, murder, insurrection, etc. Acts of God they refer to what is called Majeure or those events which are totally independent will of every human being.

Example: Earthquake, volcano eruption, flood, rain, lightning, etc. Kinds of Fortuitous Event: Ordinary fortuitous event those events which are common and which the contracting parties could reasonable foresee. Example: Rain, tropical storms, floods. Etc. Extra-ordinary fortuitous event those events which are uncommon and which the contracting parties could not have reasonable foreseen. Example: Fire, war, pestilence, locust, earthquake, unusual flood. Etc. Requisites: The cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply with his obligations, must be independent of the human will. Event could not be foreseen (unforeseeable), or if it can be foreseen, it must be impossible to avoid.

The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor. Illustrative Cases: Where the car was driven by an unlicensed chauffeur, the breach of the contract of carriage cannot be said to be due to a fortuitous event. Facts: X, engaged in the business of carrying passengers for hire, and undertook to convey B and C from one point to another in an automobile. The automobile was operated by a licensed chauffeur who later gives his assistant (no licensed) but knows how to drive, to drive the car. Defects developed in the gear and the car left the road and went down a deep embankment. Passengers are injured.

In this case, X is still liable, not by fortuitous event but because of negligence. By entering into a contract of carriage, X bound himself to carry the passengers safely and securely to their destination. Breach of the contract was not due to fortuitous event. Rules as to liability in case of Fortuitous event: General Rule: The effect of fortuitous event is to exempt the debtor from liability for the non-fulfillment of the obligation and to the payment of damages to the creditor. His obligation is extinguished. Exceptions: The law expressly so provides. The debtor is guilty of fraud, negligence, or delay, or contravention of the tenor of the obligation. Example: X, is obliged to deliver a specific kitten to Y on September 23. X did not deliver it on that date. If the next day, the kitten died due from drowning in flood. If there is no demand was made by Y, then X is not liable. If the kitten died after a demand was made by Y, then X is liable for damages, because of (legal) delay. If the kitten would have died in any event even if there is no demand made by Y, X would still be liable.

The debtor has promised to deliver the same (specific thing) to two or more persons who do not have the same interest for it would be impossible for the debtor to comply with his obligation to two or more creditors even without any fortuitous event taking place. Example: A sold and promised to deliver the same jewelry to B and C separately. A is liable even for a fortuitous event, because it is impossible for A to comply with his obligation to B and C at the same time even if a fortuitous event takes place.

The debt of the thing certain and determinate proceeds from a criminal offense, unless the thing having been offered by the debtor to the person who should receive it, the latter refused without justification to accept it. Example: M stole the carabao of A. M has the obligation, arising from crime, to return the carabao. Even if the carabao died or is lost due to fortuitous event, M is still liable for damages unless if A is in mora accipiendi.

The thing to be delivered is generic, for the debtor can still comply with his obligation by delivering another thing of the same kind in accordance with the principle that genus never perishes Example: If A is to deliver any Samsung product and it was loss. A can still comply with his obligation by delivering another thing as long as it is a Samsung product.

The parties expressly so stipulated The basis for this exception rests upon the freedom of contract. Such as stipulation is usually intended to better protect the interest of the creditor and procure greater diligence on the part of the debtor in the fulfillment of his obligation. But the intention to make the debtor liable even in case of a fortuitous event should be clearly stipulated. Example: Responsibility for fortuitous events is not clearly stipulated. Facts: in the contract, it is declared the duty of E, lessee, to maintain the improvements of the hacienda in good condition and to deliver them in the same state to R, lessor, upon the termination of the lease.

E is not responsible for loss resulting from fortuitous event. This case is a statement of the obligation imposed by law, generally upon all lessees. It is true that under article 1174 a party to a contract may make himself responsible for loss occurring without his fault. But the provision imposing this obligation should be clearly expressed, where the parties to a contract desire to create an unusual obligation. The expression of an intention to that effect should be clear.

The nature of the obligation requires the assumption of risk as in the case of insurance contracts Here, risk of loss or damage is an essential element in the obligation. Example: D ensured his house against fire for P500, 000.00 with R, an insurance company. Later, the house was destroyed by accidental fire. Although the cause of the loss is a fortuitous event, D may recover the amount of the policy. In a contract of insurance, the insurer (R), in consideration of the premium paid by the insured (D), undertakes to indemnify the latter for the loss of the thing insured by reason of the peril insured against even if the cause of the loss is a fortuitous event.