Dear PAO,

I hired a contractor that I found through Facebook Marketplace to construct my house. The contractor requested full payment before completing the project and I agreed to pay the entire amount. After several months, the structure of the house was built but the finishing was not completed. I have repeatedly called and messaged the contractor, but he has not responded to any of my messages. What are my legal rights against the contractor? 

Marcial

Dear Marcial,

When there is a breach of contract, the remedies generally available to the aggrieved party are specific performance and rescission, with the right to claim damages in either case. This is in consonance with Article 1191 of the New Civil Code, which states that in reciprocal obligations, where one party fails to comply with what is incumbent upon him or her, the injured party may choose between fulfillment or rescission of the obligation, and in either case with the right to claim damages. Fulfillment may be chosen initially, but if it becomes impossible, rescission may still be pursued.

Specific performance is a remedy that entitles the obligee to compel the obligor to perform the obligation as agreed upon. On the other hand, rescission aims to return both parties to their original positions prior to entering into the obligation. As explained by the Supreme Court in Sps. Pajares v. Remarkable Laundry and Dry Cleaning, GR 212690, Feb. 20, 2017, penned by Associate Justice Mariano Del Castillo:

“Specific performance is ‘[t]he remedy of requiring exact performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon. [It is t]he actual accomplishment of a contract by a party bound to fulfill it.’ Rescission of contract under Article 1191 of the Civil Code, on the other hand, is a remedy available to the obligee when the obligor cannot comply with what is incumbent upon him. It is predicated on a breach of faith by the other party who violates the reciprocity between them. Rescission may also refer to a remedy granted by law to the contracting parties and sometimes even to third persons in order to secure reparation of damages caused them by a valid contract; by means of restoration of things to their condition in which they were prior to the celebration of the contract.”

However, in your case, the contractor’s failure to fulfill his undertaking to complete the construction of your house constitutes a breach of an obligation “to do,” as contemplated under the pertinent provisions of the New Civil Code. Relative thereto, Article 1167 of the said Code explicitly provides that:

“ARTICLE 1167. If a person obliged to do something fails to do it, the same shall be executed at his cost.

“This same rule shall be observed if he does it in contravention of the tenor of the obligation. Furthermore, it may be decreed that what has been poorly done be undone.”

Notably, the law does not provide for an option to compel fulfillment of the obligation, or what we call specific performance, in case of breach. Instead, Article 1167 of the same Code only allows the work to be done at the expense of the party who fails to perform the obligation.

Thus, if a person who is obligated to do something fails to perform it, the same may be executed at his or her expense. This rule also applies if the act was done contrary to the terms of the obligation. Additionally, it allows for what has been poorly done to be undone.

Applying the foregoing to your situation, you may choose to have the work done by another person pursuant to Article 1167 of the New Civil Code, or rescind your contract with your contractor in accordance with Article 1191 of the said Code. In either case, you may ask for indemnification for the damages caused by your contractor’s failure to complete the construction of your house.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]