application of r130, s17

7/23/2019 Application of R130, S17

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T H I R D D I V I S I O N

MARTHA R.HORRIGAN,

Petitioner,

- versus -

TROIKA COMMERCIAL,INC.,

Respondent.

G.R. No. 1!11

Present"

PANGANI#AN, J., C$%ir&%n,

SANDOVAL-G'TIERRE(,

CORONA,

CARPIO MORALES, %nd

GARCIA, JJ.

Pro&)*+%ted"

Noe&er /, 00

2---------------------------------------------------------------------------------------------2



D E C I S I O N

SANDOVAL-G'TIERRE(, J."

Before us is a petition for review on certiorari see3in+ to reerse

t$e De4ision516 o7 t$e Co)rt o7 Appe%*s d%ted M%8 91, 001 in CA-

G.R. CV No. 0990.

http://sc.judiciary.gov.ph/jurisprudence/2005/nov2005/148411.htm#_ftn1




T$e 7%4ts o7 t$is 4%se %re not in disp)te.

Troi3% Co&&er4i%*, In4., :Troi3%;, $erein respondent, is t$e

*essee o7 t$e entire +ro)nd <oor o7 % t=o-stor8 )i*din+ *o4%ted %t

9-A Ann%po*is St., S%n >)%n, Metro M%ni*%. Respondent t$en

s)-*et % portion o7 t$e +ro)nd <oor to M%rt$% Horri+%n,

petitioner, to e )sed 7or $er rest%)r%nt Tia Maria. T$e 4ontr%4t

o7 s)-*e%se d%ted Apri* 0, 1/!9 et=een t$e p%rties =%s

prep%red 8 M%rt$%?s $)s%nd. It proides, %&on+ ot$ers, t$e

7o**o=in+ stip)*%tions"

“2. In consideration thereof, Martha R. Horrigan undertakes,

promises and guarantees payment to Troika of the following:

2.. !2,"## monthly starting March ", $%& and e'ery monththereafter until (ecem)er &, $%$ paya)le e'ery ***day of the month.

2.2. In addition to the a)o'e +su)par 2.-, !,"## monthlystarting /ugust , $%& and e'ery month thereafter for se'en +0- yearsuntil (ecem)er &, $%$ plus a guaranteed yearly increase e1ui'alent to# thereof.3

T$e inst%nt 4%se ste&&ed 7ro& t$e p%rties? di@erent

interpret%tions o7 t$e p$r%se % +)%r%nteed 8e%r*8 in4re%se

eB)i%*ent to 10 t$ereo7 in re*%tion to s)-p%r%+r%p$s .1 %nd

. o7 t$eir %+ree&ent.



Respondent 4onstr)ed t$e 10 +)%r%nteed 8e%r*8 in4re%se

to %pp*8 to ot$ t$e ori+in%* &ont$*8 rent%* o7 P1,00.00 )nder

s)-p%r%+r%p$ .1 %nd t$e P,00.00 %ddition%* rent%* )nder s)-

p%r%+r%p$ .. or $er p%rt, petitioner 4*%i&ed t$%t t$e 10

+)%r%nteed 8e%r*8 in4re%se is %pp*i4%*e on*8 to t$e %ddition%*

P,00.00 rent%* 4ont%ined in s)-p%r%+r%p$ . o7 t$e s)-*e%se

4ontr%4t.

Respondent sent petitioner *etters, to+et$er =it$ its i**in+

st%te&ents, e2p*%inin+ t$e %pp*i4%tion o7 t$e 10 8e%r*8 in4re%se

o7 rent%* r%tes. #)t petitioner i+nored t$e&. On M%8 9, 1//1,

respondent sent petitioner % Fn%* de&%nd *etter %s3in+ $er to p%8

P91!,!/.00 4orrespondin+ to t$e )np%id rent%* %d)st&ents.

$en petitioner re7)sed to p%8, respondent F*ed =it$ t$e

Re+ion%* Tri%* Co)rt, #r%n4$ 1!, M%3%ti Cit8, % 4o&p*%int 7or s)&

o7 &one8, do43eted %s Cii* C%se No. /1-10.

In $er %ns=er, petitioner %erred t$%t t$e 10 8e%r*8

+)%r%nteed in4re%se %pp*ies on*8 to $er %ddition%* rent%* o7

P,00.00 st%rtin+ A)+)st 1, 1/!9 %nd t$%t s$e $%s een p%8in+



t$e 4orrespondin+ %&o)nts sin4e 1/!. S$e %d&itted t$%t 7ro&

>)ne 1/!, s$e $%s een +iin+ respondent P1,00.00 &ont$*8

ex-gratis in %ppre4i%tion o7 its e@orts to i&proe $er )siness.

S$e denied, $o=eer, t$%t t$ese s)&s %re rent%* %d)st&ents.

S$e %*so 4*%i&ed t$%t een %ss)&in+ t$%t s$e sti** o=ed

respondent, )nder s)-p%r%+r%p$ ., t$e %&o)nt d)e is on*8

P!,!.0. S$e stopped p%8in+ t$e 8e%r*8 in4re%se sin4e

A)+)st 1/! e4%)se o7 respondent?s de&%nd t$%t s$e s$o)*d

%*so p%8 t$e 8e%r*8 in4re%se eB)i%*ent to 10 o7 t$e ori+in%*

P1,00.00 &ont$*8 rent%*.

On M%8 1!, 1//, t$e tri%* 4o)rt rendered its De4ision in

7%or o7 respondent. It ordered petitioner to p%8 respondent $er

)np%id rent%* %d)st&ents in t$e s)& o7 P91!,!/.00 =it$ interest

%t 1 per %nn)& 7ro& Septe&er , 1//1 )nti* t$e o*i+%tion is

7)**8 p%id.

On %ppe%*, t$e Co)rt o7 Appe%*s, in its %ss%i*ed De4ision,

%Jr&ed t$e tri%* 4o)rt?s )d+&ent in toto.

Hen4e, t$e inst%nt petition 7or reie= on certiorari.



T$e so*e iss)e 7or o)r reso*)tion is =$et$er t$e Co)rt o7

Appe%*s erred in r)*in+ t$%t t$e 10 +)%r%nteed 8e%r*8 in4re%se

o7 rent%* r%tes %pp*ies to ot$ t$e ori+in%* &ont$*8 rent%* o7

P1,00.00 %nd t$e %ddition%* &ont$*8 rent%* o7 P,00.00.

Arti4*e 19 o7 t$e Cii* Code proides"

“/RT. &00. The interpretation of o)scure words or stipulations in a

contract shall not fa'or the party who caused the o)scurity.3

In % *on+ *ine o7 4%ses,56 =e $%e 4onsistent*8 $e*d t$%t t$e

p%rt8 =$o dr%=s )p t$e 4ontr%4t, in =$i4$ os4)re =ords or

p$r%ses %ppe%r, e%rs t$e responsii*it8 7or 4%)sin+ t$e %&i+)it8

or os4)rit8, %nd $en4e, t$ese &)st e 4onstr)ed %+%inst $i&. In

t$is 4%se, it =%s petitioner?s spo)se =$o prep%red t$e s)-*e%se

4ontr%4t in B)estion. ConseB)ent*8, t$e %&i+)it8 &)st e

4onstr)ed %+%inst $erein petitioner %s s$e is pres)&ed to $%e

4onFr&ed t$e s%&e.

T$ere is %*so no B)estion t$%t t$e 10 +)%r%nteed 8e%r*8

in4re%se o7 rents proided 7or in s)-p%r%+r%p$ . o7 t$e s)-

*e%se %+ree&ent is 7or t$e eneFt o7 respondent $erein, ein+ t$e





s)-*essor o7 t$e pre&ises. As s)4$, %n8 do)t in its

interpret%tion &)st e interpreted in its 7%or. T$is is in *ine =it$

Se4tion 1, R)*e 190 o7 t$e Reised R)*es o7 Co)rt =$i4$ st%tes"

“456. 0. Of two constructions, which preferred . 7 8hen the terms of

an agreement ha'e )een intended in a different sense )y the differentparties to it, that sense is to pre'ail against either party in which hesupposed the other understood it, and when different constructions of aprovision are otherwise equally proper, that is to be taken which isthe most favorable to the party in whose favor the provision wasmade +stress supplied-.3

WHEREFORE, t$e petition is DENIED. T$e 4$%**en+ed

De4ision o7 t$e Co)rt o7 Appe%*s in CA-G.R. CV No. 0990 is

AFFIRMED IN TOTO. Costs %+%inst t$e petitioner.

SO ORDERED.

ANGELINA SANDOVAL-G'TIERRE(

Asso4i%te J)sti4e

E CONC'R"



ARTEMIO V. PANGANI#AN

Asso4i%te J)sti4e

C$%ir&%n

RENATO C. CORONA

Asso4i%te J)sti4e

CONCHITA CARPIO MORALES

Asso4i%te J)sti4e

CANCIO C. GARCIA

Asso4i%te J)sti4e

ATTESTATION



I %ttest t$%t t$e 4on4*)sions in t$e %oe De4ision =erere%4$ed in 4ons)*t%tion e7ore t$e 4%se =%s %ssi+ned to t$e =riter o7t$e opinion o7 t$e Co)rts Diision.

ARTEMIO V. PANGANI#AN

Asso4i%te J)sti4e

C$%ir&%n, T$ird Diision

CERTIICATION

P)rs)%nt to Arti4*e VIII, Se4tion 19 o7 t$e Constit)tion, %nd t$eDiision C$%ir&%ns Attest%tion, it is $ere8 4ertiFed t$%t t$e4on4*)sions in t$e %oe De4ision =ere re%4$ed in 4ons)*t%tion e7oret$e 4%se =%s %ssi+ned to t$e =riter o7 t$e opinion o7 t$e Co)rt.

HILARIO G. DAVIDE, >R.

C$ie7 J)sti4e



EN BANC

G.R. No. L-7180 March 30, 1912

RAFAEL ENRIQUEZ, ET AL., plaintiffs-appellants,

vs.A.S. WATSN ! ". LT#., defendant-appellee.

Rohde and Wright for appellants.

W. A. Kincaid and Thomas L. Hartigan for appellee.

TRENT, J.:

This action was brought on April 1, 1!11, b" #afael, Antonio, Trinidad, Ca"etano, #osario,

$ertrudis and Car%en Enri&ue', and Antonio $ascon (the latter being a %inor, was represented b" his guardian ad litem), as owners and lessors of the propert" Nos. *, *+, an * Escolta, cit"

of anila, against A. . /atson 0 Co%pan", td., as lessee of said propert". The plaintiffs allege

that on 2une , 1!3, #afael, Car%en, Antonio, and Trinidad Enri&ue' and Antonio $ascone4ecuted to the defendant a contract of %ortgage and lease upon their participation in that

propert"5 that on 2anuar" 1!, 1!3*, the other plaintiffs e4ecuted the sa%e %ortgage and lease in

favor of the defendant upon their interest in the sa%e propert"5 that the said contract of lease has been ter%inated b" the pa"%ent b" the plaintiffs to the defendant of the principal and interest of

the %ortgage5 that the said contract of lease is null and of no effect b" reason of the %inorit" of

the plaintiff Antonio $ascon, who is still a %inor5 that the defendant, after 2une , 1!3, %adeall the repairs necessar" to its business with the approval of the plaintiffs.

The plaintiffs further allege that there e4ists in that building a principal wall about one %eter in

thic6ness and five %eters in height, which e4tends fro% the front of the building on the Escolta

to the rear of the sa%e5 that upon this wall rests the second floor of the building and that it isnecessar" to safel" %aintain the building against earth&ua6es and t"phoons5 that on 11th of April,

1!11, the defendant co%%enced to destro" and re%ove the said wall and was on the date of the

filing of this co%plaint actuall" engaged in the destruction and re%oval of the sa%e5 and unless

restrained, would continue such destruction and re%oval, to the irreparable in7ur" of the plaintiffs5 and that the defendant has varied the for% and substance of the leased pre%ises. The

plaintiffs therefore pra"ed that the defendant be prohibited fro% destro"ing and re%oving saidwall5 that it be ordered to rebuild or replace that part which it had re%oved or destro"ed5 and thatthe contract of lease be declared ter%inated and rescinded.

8n the 1th da" of April, 1!11, a preli%inar" in7unction was issued b" the Court of 9irst

nstance, prohibiting and restraining the defendant fro% continuing the re%oval and destruction

of the wall in &uestion, and re&uiring it to appear in court on the 1*th of that %onth to show



cause wh" such preli%inar" in7unction should not be continued in force during the pendenc" of

this action.

8n the 1st of that %onth, the defendant co%pan" answered, ad%itting the allegations as to theownership, %ortgage, and lease, contained in paragraphs 1, , an ; of the co%plaint, and den"ing

all the other allegations therein. The defendant set up b" wa" of special defense that the wall in&uestion was not a principal wall and did not e4tend the entire length of the building5 that said

wall consisted of two shells filled with %ortar5 that it was ver" old, deteriorated, and wea65 that itwas necessar", in order to conserve the propert", to re%ove said wall and to substitute it with

other %aterial5 that the wall in &uestion is so located that it and its subtenant are deprived of the

use of a large part of the ground floor fronting on the Escolta5 that under Clause of thecontract of lease, the defendant has the right to re%ove the wall, substituting in lieu thereof other

%aterial, this being re&uired b" the business established in said building.

As a second special defense, the defendant ad%its the pa"%ent of the %ortgage b" the plaintiffs,

but alleges that the contract of lease is independent of the %ortgage contract, and that in

satisf"ing the %ortgage of the defendant, the leasehold was specificall" continued in force b" all parties.

As a third special defense, the defendant alleges that under the provisions of <aragraph of the

contract of lease, it has e4pended the su% of over si4t" thousand pesos in i%proving the leased pre%ises, and that on %a6ing such e4penditure it believed that it would be rei%bursed b"

en7o"ing the occupanc" and subrenting of the pre%ises.

8n the +th da" of a", 1!11, The <hilippines =rug Co%pan", a corporation organi'ed under the laws of the <hilippine slands, appeared and as6ed leave to intervene as an interested part".

This leave being granted, it alleged that it is the actual owner of the phar%ac" situated in the

leased pre%ises, which for%erl" belonged to the defendant A. . /atson 0 Co%pan", td.5 andthat the defendant sublet to it the ground floor of the leased propert" under the sa%e conditionsas are e4pressed in the original contract of lease. The intervener further alleged, as did the

defendant, the necessit" for the re%oval of the wall in &uestion in order to give it %ore space as

re&uired b" its business, and that the re%oval of this wall was authori'ed in <aragraph of theoriginal lease.

The trial court, after considering the evidence presented, %a6ing a personal inspection of the

leased pre%ises, and hearing the argu%ents of counsel for both parties, and after %a6ing its

findings of facts and conclusions of law, entered the following decree, to wit:

The court denies the rescission and declaration of nullit" of the contract of lease de%anded b"the plaintiffs, declaring such contract of lease to be valid and subsisting and binding upon the

parties thereto, and upon the sublessee and intervener, the <hilippine =rug Co%pan", and

continues and declares final the preli%inar" writ of in7unction issued herein on the 1th da" of April, 1!11, but %odif"ing the sa%e b" per%itting the defendant, A. . /atson 0 Co. td., or the

intervener, the <hilippines =rug Co%pan", to re%ove the wall in &uestion on the condition that

the" substitute it with properl" constructed concrete pillars and arches and such other wor6 as%a" be necessar" as specified in 9inding No. 1* of this 7udg%ent using such te%porar" shoring



and bracing as shall be necessar" to insure the safet" of the building while such change is being

%ade, which wor6 of re%oval and substitution %a" be co%%enced and carried out upon the

defendant or intervener, or both, filing herein an underta6ing in the su% of <13,333 with suretiesapproved b" the court, conditioned that it or the" will rei%burse the plaintiff lessors for an" and

all da%age that %a" be caused the leased pre%ises b" a failure to ta6e proper precautions and

e%plo" proper %eans to safeguard and protect the building while such wor6 of re%oval andsubstitution is being acco%plished.

9ro% this 7udg%ent the plaintiffs appealed and %a6e the following assign%ent of errors:

1. The 7udg%ent is erroneous in not having declared rescinded the contract of lease.

. The 7udg%ent is erroneous in finding that the lessee and sublessee have the right to change the

for% and substance of the propert" leased.

;. The 7udg%ent is erroneous in finding that the lessee acted in good faith in beginning the

destruction of the wall. believing that under the contract of lease it had the right to do this.

+. The 7udg%ent is erroneous in not finding that the building is wea6ened b" the destruction of

the wall.

>. The 7udg%ent is erroneous is so far as it %odifies the preli%inar" in7unction.

. The 7udg%ent is erroneous in not declaring perpetual the preli%inar" in7unction.

*. The 7udg%ent is erroneous in the dispositive part thereof relating to the for% and %anner of

%a6ing the %odifications in the propert" because it does not relate to an"thing at issue in the

case.

?. The 7udg%ent is erroneous in the part relating to the for% and %anner of %a6ing the%odifications in the propert" because it does not dispose of an"thing 7udiciall", but, on the

contrar", gives per%ission to the opposing parties without co%%anding the% to do an"thing.

!. The 7udg%ent is erroneous because it does not order the repair of the destruction %ade in the

wall.

13. The 7udg%ent is erroneous because it declares valid the contract of lease.

11. The court erred in den"ing the %otion for a new trial.

All the &uestions in this case %a" be %erged into one, and that is: =id the trial court err in failing

to declare the contract of lease voidable or rescinded for one of two reasons: first, because of the

%inorit" of one of the lessors5 and second, because neither the defendant nor intervener hadauthorit" under the contract of lease to re%ove the wall in &uestion@ <laintiffs do not now insist

that the contract of lease was ter%inated on the pa"%ent of the %ortgage.



The eight plaintiffs each have a one-eight undivided interest in the leased pre%ises. The propert"

was leased to the defendant for a period of twelve "ears with per%ission to renew the lease for a

further period of si4 "ears. even of these plaintiffs were of age when the" e4ecuted this contractof lease. The other, Antonio $ascon, was a %inor. At the ti%e this contract of lease was e4ecuted,

the %inor was represented b" his 7udicial guardian. The guardian having obtained authorit" or

per%ission of the court to enter into this contract of lease for and on behalf of his ward, theaction of the guardian in e4ecuting said contract was approved b" the probate court.

Article 1>+? of the Civil Code reads:

A#T. 1>+?. The husband can not give in lease the propert" of the wife, the father and guardian,

that of the son or %inor, and the ad%inistrator of propert", not having a special power, for a period e4ceeding si4 "ears.

Article ;!? of the sa%e code provides:

A#T. ;!?. The decision of a %a7orit" of the coowners as to the %anage%ent and better en7o"%ent of the thing owned in co%%on shall be obligator".

There shall be no %a7orit", unless the resolution has been adopted b" the coowners representinga %a7orit" of the interests which constitute the ob7ect of the co%%unit".

hould there be no %a7orit", or the resolution of the latter is seriousl" pre7udicial to the parties

interested in the thing owned in co%%on, the 7udge, at the instance of a part", shall decree what

%a" be proper, including the appoint%ent of an ad%inistrator.

4 4 4 4 4 4 4 4 4

Counsel for the plaintiffs do not clai% that the contract of lease which was %ade for a period of

%ore than si4 "ears is seriousl" pre7udicial to the interests of the %inor, nor do the" clai% that

said contract, of itself, pre7udices in an" wa" the %inors interest.

The supre%e court of pain had under consideration this ver" &uestion in its resolution of April, 1!3* (vol. 1> 2urisprudencia referente al Codigo Civil, p. 1!+). n this case, a contract of

lease for twelve "ears, e4ecuted b" one of the coowners of a certain propert", one of who% was a

%inor, had been presented for registr". #egistr" was refused for the reason, a%ong others, the

%a7orit" of the coowners lac6ed authorit" to e4ecute said contract of lease. t was argued that the%a7orit" of the coowners, in their en7o"%ent of the control of the %anage%ent and

ad%inistration of the thing, acted in a representative or an ad%inistrative capacit" in regard to the%inorit". n deter%ining the &uestions presented in this case, the court said:

That for the ad%inistration and better en7o"%ent of the thing, the decision of the %a7orit" of the

coowners is obligator", and that there is no %a7orit", unless the decision is %ade b" the

coowners, that represent the %a7orit" of the interests that constitute the ob7ect of the co%%unit",

are general rules laid down in article ;!? of the Civil Code, governing co%%unit" of propert".



The contract of lease is b" its nature and purpose one of the %eans of en7o"%ent or develop%ent

of nonfungible propert", and, in this concept, %a" be agreed upon b" the coowners of a thing,

provided alwa"s that the" represent a %a7orit" of the interests of the co%%unit", the decision being obligator" for all b" virtue of the powers that are e4pressl" conferred upon the% b" virtue

of said provisions.

f, indeed, the contract of lease of real propert" for a period e4ceeding si4 "ears, or in which the

rents are advanced for %ore than three "ears, constitutes a real right inas%uch as it is sub7ect toregistr", according to the decision of this court in various resolutions, this principle of law, which

has been applied in the sense of not per%itting the e4ecution of such a contract to those who

ad%inister the goods of others, and especiall" to prevent agents fro% e4ecuting such a contractwithout special authorit" for the sa%e, in accordance with the provisions of article 1*1; of the

said code, is not opposed to the principle of law laid down in said article ;!?5 ta6ing into

consideration the legal character and peculiar attributes of co%%unit" of propert", which %a6esit convenient and necessar" that those who have less interest therein should sub%it to those who

have a greater participation therein, in all that refers to the e4ploitation and ordinar" en7o"%ent

of the sa%e, the rule is established that the en7o"%ent of the co%%on thing %ust be sub7ect tothe will of the %a7orit", without distinguishing and li%iting the period or the for% of the

en7o"%ent5 therefore, the contract of lease being the sa%e in essence whatever the ter% for

which it is constituted, such a contract %ust be considered as an act of %ere ad%inistration, and

sub7ect to contract b" the decision of the %a7orit" of coowners, the other interested partiesalwa"s having the right to appeal to the court when the decision is gravel" pre7udicial to the%

according to the provisions of the sa%e article ;!?.

This doctrine was recogni'ed b" the supre%e court in its decision of 2une ;3, 1?!*, and of the

?th of 2ul", 1!3, and b" this court in its resolution of a" !, 1!3, considering as included inthe powers conferred in said article, leases e4ceeding a period of si4 "ears, decided upon b" a

%a7orit" of the coowners of a propert" possessed in co%%on.

The contract of lease of the propert" referred to in these proceedings, having been agreed upon b" the coowners representing the %a7orit" of the interests in the sa%e, the" were possessed of

sufficient legal capacit" b" virtue of what is alread" said, and it is, therefore, sub7ect to registr".

n the e4ecution of the contract of lease under consideration, the %inor was, as we have said,

represented b" his 7udicial guardian, who not onl" as6ed the court for and obtained authorit" toe4ecute this contract of lease on behalf of this ward, but his act, after the e4ecution, was

approved b" the court. The interest of the %inor has not been pre7udiced b" reason of the fact

that this contract of lease was e4ecuted for a ter% of %ore than si4 "ears. nder the doctrine laid

down b" the supre%e court of pain, it would appear that this contract of lease would be valid if the %inor had not been represented b" his guardian. The %inor having been represented b" his

dul" appointed guardian, there can be no &uestion about the validit" of this contract of lease.

The principal &uestion is whether or not the appellees have violated the ter%s of the contract of lease and thereb" entitle appellants to have said contract of lease rescinded.



Before considering the contract in &uestion, it %ight be well to e4a%ine the right of the lessee to

%a6e changes in the propert" leased, if there were no e4press stipulation therefor in the contract.

Article 1>*; of the Civil Code provides:

A lessee shall have, with regard to the useful and voluntar" i%prove%ents, the sa%e rights whichare granted the usufructuar".

Article +?* of the sa%e code reads:

The usufructuar" %a" %a6e on the propert" which is the ob7ect of the usufruct an"

i%prove%ents, useful or for recreation, which he %a" dee% proper, provided he does not changeits for% or substance5 but he shall have no right to be inde%nified therefor. e %a", however,

re%ove said i%prove%ents, should it be possible to do so without in7ur" to the propert".

The result is that the lessee %a" %a6e an" i%prove%ents, useful or for recreation, in the propert"

leased that he %a" dee% proper, provided that he does not change its for% or substance. Thesa%e obligation is e4pressed in articles +?* and +?!, and in so far as the for% of the thing is

concerned, in article 1>>*. According to article +?* and 1>>*, the obligations of the lessee and

the lessor are the sa%e in the absence of an" agree%ent to the contrar", in so far as theconservation of the for% of the thing leased is concerned. This &uestion of conserving the for%

and substance of the thing leased or the ob7ect of the usufruct has been passed upon at various

ti%es b" the courts.

n the case of the anila Building and oan Association and <eDalosa (1; <hil. #ep., >*>), thiscourt said:

f the ob7ect leased were a house, it is evident that the lessee %ight effect such i%prove%ents for use, recreation or co%fort as would not change its for% or substance as he dee%ed fit5 he could

build a tower or lu4urious pavilion %ore e4pensive than the house itself, to which, at thee4piration of the lease, the owner of the house would have no right whatever, unless the lessee

could not re%ove the sa%e without in7ur" to the house to which it was attached as an

i%prove%ent, e4cepting of course the right to cause the sa%e to be de%olished so that the house%ight be returned to hi% in the sa%e condition that the lessee received it5 . . . .

The supre%e court of pain, in its 7udg%ent of 2une +, 1!3>, volu%e 1+ of the 2urisprudencia

referente al Codigo Civil, page ;?, had under consideration the interpretation of this phrase in a

case in which the lessee as6ed for the rescission of the lease because the lessor had altered the

for% of the thing leased. The facts were that the lessee had leased the house for the period of ten"ears, and at the ti%e of the e4ecution of the contract of lease, there was a vacant lot ne4t to the

house and 1; windows of the house lease overloo6ed this lot. Thereafter the owner of the

ad7acent lot constructed an edifice thereon which gave rise to litigation between the lessor andthe owner of the ad7acent lot, which litigation was settled b" the lessor and the owner of the said

lot, the latter being per%itted to cover the windows of the leased propert", and the for%er

allowed to open in the partition wall of the latters garden two large and two s%all windows of specified di%ensions, under certain conditions. The construction was continued, with the result



that such construction effectuall" closed and covered the 1; windows and the balcon", depriving

the propert" leased of the light previousl" received b" the sa%e. 9or the purpose of obtaining

better light, %an" changes were %ade and %uch wor6 done in the interior of the leased house,the final result being that so%e of the roo%s of the house were dar6ened co%pletel", others

receiving poor and indirect ventilation. The court, in refusing to rescind the contract of lease,

said:

t does not appear that there is error co%%itted b" the trial court in its decision as set out in thefirst assign%ent of error, because, even though the nonco%pliance b" the lessor of his

obligations, a%ong which was that of %aintaining the lessee in the peaceable en7o"%ent of the

lease during the period of the contract, and the prohibition to change the for% of the thing leased,confers upon the lessee the right to as6 for the rescission of the contract, such circu%stances are

not found in the present case since the trial court sa"s that the appellant was not disturbed in the

possession of the house, the ob7ect of the lease, nor was he i%peded fro% using the pre%ises as atavern, for which use he had intended the sa%e, and these findings of fact have not been legall"

i%pugned.

The decision also states that the changes %ade in the propert" did not change the for% of the

sa%e in the sense and concept covered b" article 1>>* of the Civil Code. Notwithstanding thatthe findings on the point contain legal reasoning now corresponding to this court, the

interpretation of this article can not be %ade in general and absolute ter%s not defined b" law,

because as a circu%stantial fact depending in each case on the peculiar conditions of the thingleased, there e4ists no reason in the case at bar upon which to base the conclusion that the trial

court erred, having in %ind that the particular use of the sa%e as a tavern was not interfered with,

as held in its decision, and also the fact set out in its decision, and not contradicted in an"

%anner, na%el", that the changes and alterations %ade were beneficial, tolerated b" aba", andconsented to b" the person to who% aba" transferred his rights under the contract of sublease.

The two last reasons given for the rescission of the contract lac6 force and weight, because, in

accordance with the sense and concept of article 1>1 of the said Civil Code, the propert" %ust be returned at the e4piration of the ter% of lease with the changes %ade in the sa%e, and these do

not involve, as has alread" been said, an" variation or change of for% or an" interruption of the

peaceable en7o"%ent of the lease and because it does not appear fro% the facts that the trial court

accepted as proven that the appellant suffered disturbance of his rights for which he had beenco%pelled to beco%e responsible to the lessor, and he, not having done so, there is no legal

reason to appl", as is atte%pted, the provisions of article 1>3 of the code referred to.

anresa, in volu%e 13 of his co%%entaries on the Civil Code, pages >;+, >;>, +??, +?!F sa"s:

The &uestion was discussed ver" energeticall" as to whether the lessee of a cit" propert" leasedfor a stated industrial purpose, could install %achiner" propelled b" stea% in substitution for the

utilities, i%ple%ents, and contrivances which were used before the general adoption of such

%achiner". The installation of %odern %achiner" and its ordinar" operation, at once caused adeterioration to the estate %uch greater than the use of the for%er apparatus, besides the

accidents which %ight occur and which produce ver" great da%age to the thing leased.

Therefore, based upon this consideration, it was said that the lessee could not %a6e this



substitution because it i%plied a bad and pre7udicial use of the thing and therefore ver" different

fro% that diligence of a good father in its use to which he had obligated hi%self.

As aurent sa"s, there arise here two contrar" interests and two diverse tendencies. The owner has in view the stabilit" of the structure and fears ever" innovation which %a" co%pro%ise its

preservation. The %anufacturer finds hi%self obliged to 6eep abreast of the develop%ent of hisindustr", to %a6e changes, if he does not wish to perish, and his interests de%and that he put into

practice the inventions which increase his profits, even though the edifice %a" suffer. The owner co%%ences to resist, adds this writer, but co%petition forces the %anufacturer, and the owner

ends b" "ielding, if he does not wish to re%ain unproductive.

This is the essence of the polic" pursued b" foreign decisions, where the &uestion has been so%uch %ore i%portant than in our own countr". ntil the "ear 1?3, 7udicial decisions were

inclined to favor the owner of the propert". But fro% that "ear the rights of industr" have been

recogni'ed with ever increasing clearness. t has been considered that fro% the %o%ent the lease

is drawn up, in which is stated the industrial use to which the lessee desires to put the thing

leased, the clai%s of the industr" to which the ob7ect of the lease is to be devoted have beendeter%ined, and the lessee can not be conde%ned to a stagnation which would be unecono%ical,

and, these facts ad%itted, the logical conse&uences %ust necessaril" follow: the lessor can not prevent the lessee fro% adopting the i%prove%ents of his industr"5 the acts of the parties in

%a6ing the stipulations in the lease will do the rest.

The lessee %a" %a6e on the propert" which is the ob7ect of the lease an" i%prove%ents, useful

or for recreation, which %a" be dee% proper, provided he does not change its for% or substance.e is obligated to use the thing leased as a diligent father of a fa%il" would, and to return the

thing leased at the e4piration of the lease in the sa%e condition in which he received it, e4cept

what %a" have been destro"ed or i%paired b" ti%e or unavoidable reasons. (Arts. 1>*;, +?*,

1>>>, and 1>1, Civil Code.)

The supre%e court of pain recogni'es the fact that no ironclad rules for the interpretation of

these articles can be laid down which would govern all cases. These provisions %ust be applied

according to the facts and circu%stances of each case. anresa is inclined to the view thatindustrial develop%ent should be ta6en into consideration in the deter%ination of &uestions

involved in the application of said articles. The provisions of these articles are general rules of

law, and, li6e %ost general propositions, are not to be accepted without li%itation or reserve,under an" and all circu%stances. The" %ust be interpreted in the light of the growth of

civili'ation and var"ing conditions. Certain obligations are placed upon the lessee to prevent

lawless acts which would result in waste or destruction. The i%portance of these obligations to

the lessor cannot be denied. Especiall" are the" valuable and essential to the protection of alandlord who rents his pre%ises for a short ti%e. uppose he has fitted his pre%ises for certain

uses and leases the% for such uses for a short ter%. e would then be entitled to receive the%

bac6 at the end of the ter% still fitted for those sa%e uses, and he %a" well sa" that he does notchoose to have a different propert" returned to hi% fro% that which he leased, even if it be found

to be of greater value of reason of the change. But suppose that a usufructuar" who has a life

interest in an estate should receive as such a he%p hacienda, and that in a short ti%e thishacienda should beco%e per%anentl" unproductive through disease or death of the plants, or b"



change of the %ar6et conditions, and the land to have beco%e far %ore valuable, b" reason of

new conditions, as rice or sugar land. s the usufructuar" to be co%pelled to preserve or renew

the useless he%p fields and forego the advantages to be derived fro% a different use@ 8r,suppose a life tenant should change warehouses into dwelling houses on the ground that b"

change of conditions the de%and for warehouses had ceased and the propert" had beco%e

worthless, whereas it would be ver" valuable when fitted for dwelling houses. /ould this besuch a change in the for% or substance of the thing leased as to forfeit the interest of the tenant@

Again, a lessee for a long ter% received, during ver" prosperous ti%es, a he%p hacienda upon

which were constructed large and valuable storehouses in which were the old st"le hand-presses, but new. ater, on account of a co%plete change in conditions due to the %ar6et and the %ethod

of pressing he%p b" stea%, the lessee allowed the buildings and presses, which had beco%e

useless, to fall into deca" rather than incur the e4pense of repair. /ould a prudent owner of the

fee, if in possession, have done the sa%e@ These &uestions naturall" suggest their own answer.The radical and per%anent changes of surrounding conditions %ust alwa"s be an i%portant

consideration in the deter%ination of such &uestions. The interpretation that Gif the %an is too

long for the bed his head should be chopped off rather than enlarge the old bed or purchase a new

oneG should not be given those provisions of the Civil Code regarding the obligations of lessees.

et us now turn to the contract of lease and the evidence presented. n this contract of lease there

are two clauses which deserve careful consideration.

Clause H:

All the e4penditures for cleaning, painting, and repairs which the building %a" re&uire and allthat is ordered done b" the Board of ealth, will be at the e4pense of the lessee, A. . /atson

and Co%pan", i%ited.

Clause :

The lessee %a" %a6e such wor6s on the building as the business which it has established thereinre&uires, provided alwa"s that neither the strength nor the value of the said building is i%paired.

t will be noted that the word GreparacionesG is used in Clause H, and the word GobrasG in Clause

. Counsel for the appellants insist that the word GobrasG as thus used %eans the sa%e as

Greparaciones.G The Enc"clopedic =ictionar" of the Castilian anguage (=iccionarioEnciclopedico de la engua Castellana) defines these words as follows:

8B#A:

1. A thing %ade or produce b" an agent.

4 4 4 4 4 4 4 4 4

+. A building in course of construction.

#E<A#AC8N:



1. The action an effect of repair. ( Reparar -verb: To %end, to straighten, or correct the da%age

suffered b" so%ething.)

The New =ictionar" of the Castilian anguage (Nuevo =iccionario de la engua Castellana)defines the sa%e words as follows:

8B#A:

An"thing %ade, created, or produced b" the so%e power or agent. An" construction of

architecture, %asonr", or carpentr", applied especiall" to buildings in course of construction or

repair, as: GThere are three 7obs in Calle ortale'a. Ever"thing in %" house is disordered andtops"-turv" because of the wor6.G

#E<A#AC8N:

The act or effect of repairing or of being repaired. The fact of the repairing, in the sense of

renewing or i%proving so%ething.

The onl" s"non"% given in this wor6 for GobraG is produccion.G

t %a" be that repairs are included in the definition of Gobras.G Nevertheless, it cannot be denied

that the word Gobras,G used in its general sense, has a far %ore co%prehensive %eaning than 7ust

si%ple repairs.

ections !3 and !; of the Code of Civil <rocedure, provide:

EC. !3. Terms of a writing presumed to be in their ordinary sense. I The ter%s of a writing

are presu%ed to have been used in their pri%ar" and general acceptation, but evidence isnevertheless ad%issible that the" have a local, technical or otherwise peculiar signification, and

were so used and understood in the particular instance, in which case the agree%ent %ust beconstrued accordingl".

EC. !;. Where intention of different parties to instrument not the same . I /hen the ter%s of

an agree%ent have been intended in a different sense b" the different parties to it, that sense is to

prevail against either part" in which he supposed the other understood it5 and when differentconstructions of a provision are otherwise e&uall" proper, that is to be ta6en which is the %ost

favorable to the part" in whose favor the provision was %ade.

n the case at bar no proof has been presented tending to show that the word GobrasG was used ina technical or special sense, or that it has a local signification, and therefore, it %ust beconsidered as used in its ordinar" and general sense. f there e4ist an" a%biguit" and if the

%eaning that the appellants give to the word GobrasG is proper, the %eaning given b" the

appellees is li6ewise proper, conse&uentl", we %ust appl" the rule laid down in section !;,above &uoted, for the reason that the stipulation contained in Clause of the contract is a

stipulation in the favor of the lessee.



Counsel for appellants insist that in order to define the %eaning of the word GobrasG we should

refer to the articles of the Civil Code that deal with contracts of lease. This %ight be done in

those cases where the intention of the parties could not be ascertained fro% either the contractitself or fro% the conduct of the parties in e4ecuting and carr"ing out the sa%e. n the case at bar,

all that is necessar" is to give a fair and reasonable interpretation to the %eaning of clause of

the contract of lease. This clause contains certain li%itations on the e4ercise of the right to %a6ealterations (obras): first, the alterations (obras) proposed to be %ade %ust be re&uired b" the

business5 second, such alterations %ust not in7ure the solidit" of the building5 and third, the sa%e

%ust not pre7udice the value of the building. But it is insisted, as we have said, that the wordGobrasG in clause %ust be interpreted to %ean GreparacionesG as used in Clause H. Clause H

i%poses upon the lessee the obligation to %a6e the repairs re&uired b" the building for its

conservation. f the words have e4actl" the sa%e %eaning and were intended b" the parties to

%ean the sa%e thing, then the insertion of clause would onl" have had the effect of giving tothe lessee the right to 6eep the building in repair, when, as a %atter of fact, Clause H %ade it its

dut" to repair the building. As we understand the contract, in Clause H a dut" is i%posed upon

the lessee, while in Clause a right is given to it. n Clause H the word GreparacionesG is used in

connection with the dut", and in clause the word GobrasG is used in connection with the right.f the contracting parties had intended that the two words be used in the sa%e sense the" would

have so stated, or the" would have eli%inated Clause entirel" as being useless, as it is%eaningless to sa" that when a dut" is i%posed upon a person it is necessar" to e4pressl" give

hi% a right to perfor% that dut". f he did not have the right to perfor% that dut", the sa%e would

not have been i%posed upon hi%. The stipulations in Clause are e4pressed as clearl" ande4plicitl" as the" could have been under the circu%stances. At the ti%e of the e4ecution of this

contract of lease, it was i%possible to 6now what would be the re&uire%ents of the business

during its ter% of eighteen "ears. t was li6ewise i%possible for the parties to have then agreed in

detail as to the changes that %ight be necessar". The lessee wished to reserve to itself the right to%a6e the changes in the propert" re&uired b" its business, and none of the parties could

anticipate what %ight be re&uired during this long period of ti%e. This right was conferred upon

the lessee b" the lessors, but the right, as we have said, had its li%itations: that is, the lesseecould not pre7udice the solidit" or the value of the building without brea6ing the contract.

The &uestion was raised as to whether the conduct of the parties in carr"ing out the ter%s of this

lease has been such as to show or indicate their intention or understanding of the %eaning of the

word GobrasG when the" inserted this word in Clause . pon this point the trial court said:

That under and by virtue of the said contract of lease, the defendant co%pan" entered into

possession of the leased pre%ises, %a6ing therein alterations and repairs at a cost of so%e

<3,333, including the re%oval of the whole front of the building facing upon the Escolta and

replacing the sa%e upon the new street line, established b" the cit" of anila, with a %odern anda decorative co%%ercial front5 the re%oval of the heav" tiled roof and the replacing of the sa%e

with a light galvani'ed roof5 the re%oval of various walls and replacing the sa%e with steel

colu%ns and girders5 the tearing down and rebuilding of a part of the building and the addingthereto of a camarin upon the <asig #iver5 and the building of a river wall and recla%ation of a

considerable a%ount of ground5 and which alteration included the re%oval of that part of the

wall in &uestion which e4tended fro% point A to point $ on the plan of the pre%ises introducedin evidence as defendants E4hibit No. !, all of which repairs, alterations and i%prove%ents,



were %ade with final approval of the plaintiffs, although after %uch controvers" and %an"

disagree%ents, and to which alterations and i%prove%ents the plaintiffs contributed the su% of

about eighteen hundred pesos paid b" the cit" of anila for the e4propriation for street purposesof the s%all strip along the front of the building heretofore %entioned.

These findings of fact are, we thin6, full" supported b" the evidence. The result is that thesei%portant and %aterial changes, which include the re%oval of a great portion of the ver" wall in

&uestion, were %ade b" virtue of the contract of lease itself. t is true that the owners ob7ected atfirst, but afterwards consented in accordance with the provisions of Clause , and not b" reason

of an" subse&uent specific agree%ent. After all, that the defendants have the right under the law

and the provisions of Clause of the contract of lease to re%ove the wall in &uestion, cannot beseriousl" doubted, provided alwa"s that neither the solidit" of the building nor its value be

i%paired.

et us now deter%ine whether or not a re%oval of the wall in &uestion (1) will pre7udice either

the solidit" of the building or its value, and () if it is re&uired b" the business of the defendants.

The walls which the defendants and interveners propose to re%ove and substitute in lieu thereof

other %aterial is co%posed of two outer shells of $uadalupe or e"caua"an stone, filled with

li%e, plaster and rubber, the two shells being bound together b" stones laid transversel", the

whole wall was so for%ed being about one %eter thic6 and e4tending fro% the front of the building a distance of about ;? %eters toward the <asig #iver. This wall is about four %eters

high, e4tending fro% the ground floor to the second floor. The 7oists and girders supporting the

second floor are e%bedded in said wall. There are two actual openings in this wall, with threedoors and an arch, which have been walled up. The wall is in good condition, e4cept that part

re%oved b" the defendants before the co%%ence%ent of this action, and said wall is one of the

longitudinal walls, all being appro4i%atel" of the sa%e thic6ness. The wall in &uestion divides

the east half of the ground floor of the building appro4i%atel" in its center and sustains a part of the weight of the second floor of this east half, together with a partition for%ing one of the

divisions of the second floor. But it does not sustain an" of the weight of the roof, this weight being distributed b" %eans of trusses to the outer walls of the building. About one-third of this

wall, or that part nearest the <asig has alread" been re%oved, and the re%oval of the sa%e was

approved b" the owners. The interveners now propose to re%ove the re%aining two-thirds and

substitute in lieu thereof other %aterial, using the %aterial of the old wall for filing up certainopenings in other walls of the building. This old wall, according to the e4perts, offers ver" little

resistance to lateral shoc6s or %otions. <racticall" all of the resistance of lateral shoc6s or

%otions is furnished b" the cross-walls. Again, according to the opinion of the e4perts the building will be greatl" strengthened against earth&ua6es or unusual shoc6s or force, and its

durabilit" increased b" the re%oval of the re%aining part of the wall in &uestion and the

substitution in lieu thereof of reinforced concrete posts or pillars and arches, ta6ing the %aterialand filing, as the interveners propose to do, the openings in so%e of the other walls. uch

proposed re%oval, if carried out, will practicall" double the floor space of the drug store and

greatl" increase its rental value, and also greatl" increase the actual value of the building. This

e4tra floor space is absolutel" essential to the business carried on in this part of the building. Theforegoing are substantiall" the findings of the trial court, based upon the testi%on" of e4pert

witnesses, and an ocular inspection of the pre%ises. These facts show clearl" and be"ond a



&uestion that the re%oval of the re%ainder of this old wall will not onl" pre7udice the solidit" of

the building, but greatl" increase its solidit" and durabilit", as, according to the opinion of the

e4perts, the reinforced concrete posts and arches will offer greater resistance to earth&ua6es or bagious than the old wall5 that both the intrinsic and rental value of the building will be

increased5 and that this re%oval is re&uired b" the business.

astl", counsel for the appellants sa":

The plaintiffs contend that a contract is onl" binding on the parties thereto as provided in article1>* of the Civil Code and that, although a sublessee is bound to the lessor as provided in

articles 1>>1 and 1>> "et this is not an obligation arising out of contract but one founded in law

and the relation of the parties to propert", and that the lessor has no obligation towards thesublessee as such at all either legal or of contract and that therefore even if b" clause (%) of the

lease of the plaintiffs had the obligation to per%it the defendant to ta6e out the wall to suit the

convenience of its own business, that such an obligation was purel" personal between the parties

to the lease and since the contract of lease is not assignable this right could not be transferred b"

the defendant or %ade use of b" the defendant for the benefit of other persons.

A lease %a" be of things, wor6s, or services. (Art. 1>+, Civil Code.) n a lease of things, one of

the parties thereto binds hi%self to give to the other the en7o"%ent or use of a thing for a

specified ti%e and for a fi4ed price. (Art. 1>+;, ide%.)

Article 1>>3 of the Civil Code reads:

hould it not be e4pressl" forbidden in the contract of the lease of things, the lessee %a" sublet

the whole or a part of the things leased without pre7udice to his liabilit" for the fulfill%ent of the

contract e4ecuted with the lessor.

There is nothing in the contract of lease in the case at bar which even tends to prohibit the lesseefro% subletting the whole or an" part of the leased pre%ises. The lessees right to do this cannot

be &uestioned, and his subtenant is not onl" obligated to carr" out his part of the contract with

the sublessor, but he is also bound to the lessors for all of the acts which refer to the use and preservation of the pre%ises, in the %anner agreed upon between the lessors and the lessee. The

lessors can co%pel the subtenant to co%pl" with these conditions. This sets up the privit"

between the lessors and the subtenant. But it is said that the contract of lease in &uestion is notassignable. This contract is an ordinar" one, under which the lessee as we have said, has a perfect

right to sublet the whole of the pre%ises for the entire ti%e. hould the lessee do this, would it

not a%ount to an assign%ent of the contract of the lease@ The power of assign%ent is incident to

the state of ever" lessee of things, unless he has been restrained b" the ter%s of his lease. n thecontract of lease in &uestion, the lessors, b" Clause , agree that the lessee %a" %a6e such

changes as its business re&uires, provided that neither the solidit" nor the value of the building is

pre7udiced. This is a specific right granted to the lessee. This right is a part of the lease itself andaffects directl" the thing leased. t is not, therefore, a personal obligation between the lessors and

the lessee.



/e are, therefore, of the opinion that the 7udg%ent appealed fro% should be affir%ed with costs

against the appellant.

Johnson !arson and "oreland JJ. concur. Arellano !.J. and "apa J. dissent.

S$%ara&$ %'('o()

TRRES, J., dissenting:

Notwithstanding the respect the opinion of the %a7orit" deserves, regret that can not agree

with the foregoing decision in so far as it follows the defendant, A. . /atson 0 Co., or theintervener, The <hilippines =rug Co%pan", to re%ove the wall in &uestion on condition that the"

replace it b" pillars and arches of reinforced concrete, with the re%aining circu%stance set forth.

n %" opinion this point in the 7udg%ent appealed fro% should be reversed b" sustaining the

in7unction issued b" the court and ordering the destro"ed wall to be restored to the for% andcondition it previousl" had. The destruction of this wall a%ounts to a change in for% and an

essential %odification of the condition of solidit" the propert" had before it was re%oved. The

best proof that it was not e4pedient to re%ove the wall in &uestion is the fact that i%%ediatel",and as the wall was being torn down, the building was propped up and another wall erected to

replace the one ta6en out.

Article 1>>* of the Civil Code prescribes:

The lessor can not change the for% of the thing leased.

Article 1>>1 thereof sa"s:

The lessee %ust return the estate at the e4piration of the lease in the sa%e condition in which he

receive it, e4cept what %a" have been destro"ed or i%paired b" ti%e or b" unavoidabe reasons.

n the contract of the lease appears the following Clause :

The leasing co%pan" %a" perfor% on the propert" the wor6 re&uired b" the business it has

established therein, provided that the solidit" of the building is not da%aged or its value affected.

The defendants proceeded to tear down said wall in violation of the provisions of law and the

agree%ent in the contract of the lease, for the clause &uoted does not authori'e the% to destro"

the central wall of the building, even with the intention of replacing it b" another wall of

concrete, and in doing so the" changed in the for% of the building and perfor%ed wor6 notauthori'ed in the contract, and which essentiall" affects the solidit" of the building.



Even though said clause provides that the leasing co%pan" %a" perfor% the wor6 re&uired b"

the business it has established therein, "et the sa%e clause sa"s: provided that the solidit" of the

building is not da%aged or its value affected. B" tearing down the wall in &uestion and changingits for% as the central support of the whole weight of the second stor" and of the fra%ewor6 of

the roof, the defendant co%pan" undoubtedl" perfor%ed wor6 which essentiall" affects the

solidit" and value of the structure.

The convenience of the tenant, not ad%itted b" the owner, is no legal reason or cause whereb"the for%er %a" alter the condition of the propert", and as there was no e4press stipulation that

said wall %ight be torn down, it is i%possible to assert that the leasing co%pan" has not violated

the contract and the legal provision which protects the rights of the owner, who should in nosense be at the %erc" of the caprice and convenience of the tenant, for that would give rise to a

genuine transgression upon the right propert".

8ne of the obligations of the lease under Article 1>>> is to used the thing leased li6e a careful

householder b" appl"ing it to the use agreed upon, and, in default of agree%ent, to the use that

%a" be inferred fro% the nature of the thing leased according to the custo% of the land. There isno custo% in this countr" whereb" a tenant %a" without per%ission of the owner tear down in

this wa" a central wall that upholds a building.

n a countr" li6e this, where the ground is fre&uentl" sha6en b" an enor%ous internal force,causing violent earth&ua6es, it is custo%ar" to build for the solidit" of the structure walls of si'e

and e4tent such as that of the propert" in &uestion, which was destro"ed b" the defendant part"

b" and for itself. n spite of the defects ascribed thereto, it is sufficient to assert that said wall haswithstood all the violent earth&ua6es that have occurred during the latter half of the past centur",

and "et it was arbitraril" torn down without the 6nowledge and consent of the owners and in

spite of an in7unction of the court, not because it was not solid but because it was thic6 and wide

and too6 up a good deal of space in the place which the defendant co%pan" wished to use to itsfull e4tent. A concrete wall, with which the destro"ed stone was replaced, would be %ore

convenient for the interests of the defendant because it would ta6e up less roo%, but the solidit"of concrete walls in this land of earth&ua6es has not "et received the sta%p of conclusive test in

one of those violent pheno%ena, happil" not "et e4perienced since concrete buildings have been

erected here. But if the will of the parties is the law in contracts not contrar" to law, %oralit" and

public order, and in cases not foreseen b" the interested parties, the rules and provisions of lawthat protect the reciprocal rights and duties of the contracting parties, the leasing co%pan"

un&uestionabl" had no right to tear down the wall in &uestion and replace it b" another of

concrete without the consent and against the e4press ob7ection of the owners of the propert".

Therefore, thin6 that the first part of the 7udg%ent appealed fro% should be affir%ed and thatthe second part, referring to the authori'ation therein conferred upon the defendant part" to

re%ove the wall in &uestion and replace it b" another of concrete with the conditions set forth,

ought to be reserved and the defendant part" ordered to replace the destro"ed wall in the for%and condition it for%erl" had, with the costs against the defendant part".



niversit" of anto To%as, 9acult" of Civil aw J 313 All #ights #eserved.

application of r130, s17

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