I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
The subject matter of the sale is valid and binding only if the following requisites are present during the perfection of the sale/when the consent to sell is given:
1.) It must be existing or have potential existence. It can also have potential existence. It can even be a future thing (with exceptions, of course,) a contingent one or even subject to a resolutory condition. In other words, it must be a "possible" subject matter.
2.) It must be legal.
3.) It must be determinate or determinable at least
The goods of the sale can be either existing goods or future ones. Future goods includes those that are manufactured or acquired by the seller after the contract is perfected. A sale of future goods is perfected when the goods themselves are acquired and delivered. Future inheritance, however, can't be sold; and future property can't be donated.
If any of the requisites are lacking, the sale is non-existent (read: void.) Neither party can ask for specific performance, nor hold the other liable for a breach of contract. If, under Art. 1411 of the Civil Code, the contract is void because the object is illegal and the act itself is a criminal offense, one of the following things will happen: if both parties are in pari delicto (equally guilty,) neither party can have a cause of action against the other; if only one party is guilty, the innocent party can take back what he has given and won't be bound to comply with his promise.
If, however, under Art. 1412, where the act isn't a criminal offense, the following rules will apply:
1.) If both parties are at fault, neither can recover from the other or demand performance.
2.) If only one party is at fault, he can't recover what he has given and the innocent party can take back what he gave and won't be bound by his promise.
Emptio Rei Speratae vs. Emptio Spei
Emptio rei speratae is a contract of sale of future things which must be determinate or specific; it won't apply to things that are generic because generic things aren't lost under legal fiction. Such a thing becomes enforceable when the thing in question appears. If it doesn't appear, the contract either is extinguished when the time limit expires or it becomes obvious the event won't happen. The uncertainty is with regard to the quality and quantity of the thing.
Emptio spei, on the other hand, is the sale of a mere hope (like buying a lottery ticket.) The sale is effective even if the thing doesn't appear unless it's a vain hope. The object is a present thing which is the hope or expectancy and the uncertainty is with regard to its existence.
In case of doubt, emptio rei speratae is presumed.
The Civil Code recognizes the sale of things not actually owned by the seller in the following instances:
1.) Sale of a thing having potential existence (Art. 1461.)
2.) Sale of future goods (Art 1462.)
3.) Contract for delivery at a certain price of an article which the seller in the normal course of business manufactures or produces for the general market, whether or not it is in the seller's hands at the time or not (Art. 1467.)
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