PERFORMANCE ORCONSUMMATION OF SALE OBLIGATIONS OF SELLER1. To Preserve the Subject MatterArticle 1163 of the Civil Code lays down a rule applicableto obligations and contracts in general, that [E]very personobliged to give a determinate thing is also obliged to takecare of it with the proper diligence of a good father of a family,unless the law or the stipulation of the parties requires anotherstandard of care.When a sale covers a specifi c or determinate object, uponperfection and even prior to delivery, and although the seller stillowns the subject matter, he is already obliged to take care ofthe subject matter with the diligence of a good father of a family;otherwise, he becomes liable to the buyer for breach of suchobligation, as when the thing deteriorates or is lost throughsellers fault.The ancillary obligation to preserve the subject matter ofthe sale involves a personal obligation to do, rather than a realobligation to give, and arises as a necessary legal assuranceto the buyer that the seller would be able to comply fully with themain obligation to deliver the object of sale.2. To Deliver the Subject MatterUnder Article 1495 of the Civil Code, the seller is bound: (a)to transfer the ownership of, and (b) to deliver the thing, whichis the object of the sale to the buyer. Even in the defi nition ofsale under Article 1458, it covers the twin-obligations of the seller to transfer the ownership of and to deliver a determinate thing.Although the wordings of both Articles 1458 and 1495 seem toseparate delivery of the subject matter from the transfer ofownership, nonetheless, the means by which the seller cantransfer the ownership of the subject matter is by the mode oftradition or delivery, whether actual or constructive.As early as in Kuenzle & Streiff v. Watson & Co., 1 the SupremeCourt held that where there is no express provision that the titleshall not pass until payment of the price, and the thing sold hasbeen delivered, title passes from the moment the thing sold isplaced in the possession and control of the buyer. In spite of thereciprocal nature of a sale, it is not the prior payment of price thatdetermines the effects of delivery of the subject matter.Ocejo, Perez & Co. v. International Banking Corp., 2 alsoheld that delivery produces its natural effects in law, the principaland most important of which being the conveyance of ownership,without prejudice to the right of the seller to claim payment of theprice. Normally therefore, as a consequence of a valid sale, thedelivery of the subject matter ipso jure transfers its ownership tothe buyer.3. To Deliver the Fruits and AccessoriesUnder Article 1164 of the Civil Code, which applies only toan obligation to deliver a determinate thing, the transferee has aright to the fruits of the thing from the time the obligation to deliverit arises; however, he shall acquire no real right over them untilthe same has been delivered to him.Every obligation to deliver a determinate thing is coupled witha specifi c provision under Article 1537, that the seller is bound todeliver the thing sold and its accessions and accessories in thecondition in which they were upon the perfection of the contract,and all the fruits shall pertain to the buyer from the day on whichthe contract was perfected.Unlike in the principle of res perit domino where it is theowner of the thing who bears the risk of loss and benefi ts from thefruits of the thing owned, in a sale involving a determinate subjectmatter, even prior to delivery and transfer of ownership thereofto the buyer, the buyer already has certain rights enforceableagainst the seller, pertaining to the subject matter. This is inaccordance with the principle that the accessories alwaysfollow the principal; and since the subject matter is intended fordelivery to the buyer from the point of perfection of the sale, thennecessarily the accessories and fruits must from then on be heldfor the account of the buyer.4. To Warrant the Subject MatterUnder Article 1495 of the Civil Code, with the fulfi llment ofthe primary obligation to deliver the subject matter, the seller isthen obliged to warrant the thing which is the object of the sale.The warranties of the seller are discussed in details in Chapter12.TRADITION AS A CONSEQUENCE OF A VALID SALE1. Essence of TraditionEquatorial Realty Dev., Inc. v. Mayfair Theater, Inc., 3 hadexplained quite vividly the mode of tradition when it held thatownership of the thing sold is a real right, which the buyer acquiresonly upon delivery of the thing to him in any of the ways specifi edin Articles 1497 to 1501 of the Civil Code, or in any other mannersignifying an agreement that the possession is transferred fromthe vendor to the vendee. This right is transferred, not merely bycontract, but also by tradition or delivery. Non nudis pactis sedtraditione dominia rerum transferantur. And there is said to bedelivery if and when the thing sold is placed in the control andpossession of the vendee.4 The Court held further that deliveryis a composite act, in which both parties must join and the mindsof both parties concur; it is an act by which one party parts with the title to and the possession of the property, and the otheracquires the right to and the possession of the same. 5Santos v. Santos, 6 held that the critical factor in the differentmodes of effecting delivery, which gives legal effect to the act isthe actual intention of the vendor to deliver, and its acceptanceby the vendee. Without that intention, there is no tradition.7 Thisis quite an inelegant way to put forth the principle on traditionbased on two factors:(a) Acceptance, although an obligation on thepart of the buyer, is not essential for deliveryby the seller to achieve its legal effects;and(b) An express intention on the matter by theparties to a sale, at the point of delivery isnot essential for tradition to produce its legalconsequences.The legal effects of the parties intention must be gauged atthe point of perfection by which the obligation to deliver the subjectmatter is created: was there mutual intention and agreement totransfer the ownership of the subject matter; if in the affi rmative,there is a valid sale; if in the negative, we have a simulated salewhich is void ab initio. Besides, the rule has always been thattradition that is effected by reason of a valid sale would produceits legal consequences, without the parties having to say so, orparticularly intend it at the point of delivery. 8The essence of the Equatorial Realty and Santos rulings isthat tradition produces its legal consequences from the fact thatdelivery is effected pursuant to a valid sale. Consequently, in onecase, 9 it was held that there is no transfer of ownership by the execution of a deed of sale merely intended to accommodate thebuyer to enable him to generate funds for his business venture,simply because there was no valid sale behind the purported actof constructive delivery.In another case, 10 it was held that when the auction sale ofthe subject properties to the bank was void, no valid title passedin its favor; consequently, the subsequent sale and delivery ofthe properties thereof by the bank was also nullity (i.e., title heldby the banks buyer was void) under the elementary principle ofnemo dat quod non habet, one cannot give what one does nothave.a. Types of DeliveryThe Law on Sales under the Civil Code recognizes twogeneral types of delivery that will effectively transfer ownership ofthe subject matter to the buyer and would constitute complianceby the seller of his obligations under a valid contract of sale: (a)actual or physical delivery; and (b) constructive delivery.Froilan v. Pan Oriental Shipping Co., 11 held that in theabsence of stipulation to the contrary, the ownership of the thingsold passes to the buyer upon the actual or constructive deliverythereof.Alfredo v. Borras, 12 held that it is not necessary that theseller himself delivers title of the property to the buyer becausethe thing sold is understood as delivered when it is placed in thecontrol and possession of the buyer. In that decision, the sellerhimself introduced the tenant to the buyers as the new owners ofthe land, and from that time on the buyers acted as landlord, andthereby there was deem to have been delivery.1. Actual DeliveryUnder Article 1497 of the Civil Code, there is actual orphysical delivery when the thing sold is placed in the control and possession of the buyer. 13 Although possession is the best gaugewhen there is control, nonetheless control can take other formsother than actual physical possession.Thus, Power Commercial and Industrial Corp. v. Court ofAppeals, 14 held that for both actual or constructive delivery [t]hekey word is control, not possession,15 in determining the legaleffect of tradition. Power Commercial considered that the lot soldhad been placed under the control of the buyer, as evidencedby the subsequent fi ling by the buyer of an ejectment suit, whichsignifi ed that the buyer was the new owner which intendedto obtain for itself, and to terminate said occupants actualpossession thereof.2. Constructive DeliveryUnder Article 1496 of the Civil Code, constructive deliverycan take several forms, and may be any manner signifying anagreement that the possession is transferred from the vendorto the vendee. The essence of most forms of constructivedelivery is the existence of an agreement between the sellerand the buyer, and that the latter is understood to have controlof the subject matter of sale.The discussions on the execution of a public instrument asa form of constructive delivery should be considered as settingthe same basic premise or principles as to all other forms ofconstructive delivery. The importance of using the execution of apublic instrument pursuant to a valid sale, as the prime exampleto highlight the doctrines to cover all types of constructive deliverycomes from its applicability to all types of subject matter, whethermovable or immovable, tangible or intangible.a. Execution of Public InstrumentUnder Article 1498 of the Civil Code, in the case of bothmovables and immovables, when the sale is made through apublic instrument, the execution thereof shall be equivalent to the delivery of the subject matter of sale, if from the deed thecontrary does not appear or cannot clearly be inferred. 16 Inseveral cases, 17 the Court held that the notarized deed of salehas two functions:(a) It operates as a formal or symbolic deliveryof the property sold; and(b) It authorizes the buyer to use the documentas proof of ownership.Therefore, the general rule is that the execution of a publicinstrument has the same legal effects as actual or physicaldelivery, i.e., it transfers the ownership of the subject matter tothe buyer, and constitutes valid compliance by the seller of hisprimary obligations under the sale. 18Of course, the foregoing rules apply only to a public instrumentthat evidences a valid sale. Thus, Torcuator v. Bernabe, 19 heldthat a special power of attorney authorizing the agents to executea deed of sale over the property can by no means be interpretedas delivery or conveyance of ownership over said property, thus:Taken by itself, in fact, the special power of attorney can beinterpreted as tied up with any number of property arrangements,such as a contract of lease or a joint venture.20(1) Constructive Delivery Has the Same Legal Effectas Actual or Physical DeliveryMunicipality of Victorias v. Court of Appeals, 21 held that thelegal effects and consequences of actual or physical delivery,also apply equally to constructive delivery: Similarly, when thesale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the objectof the contract, if from the deed, the contrary does not appear orcannot be clearly inferred.22The concept has been aptly summed-up in Sabio v.International Corporate Bank, 23 where the Court held Under Article 1498 ... the mere execution of the deedof conveyance in a public instrument is equivalent tothe delivery of the property. ... prior physical delivery orpossession is not legally required. It is well-establishedthat ownership and possession are two entirelydifferent legal concepts. Just as possession is not adefi nite proof of ownership, neither is non-possessioninconsistent with ownership. Thus, it is of no legalconsequence that respondents were never in actualpossession or occupation of the subject property. They,nevertheless, perfected and completed ownershipand title to the subject property. Notwithstanding thepresence of illegal occupants on the subject property,transfer of ownership by symbolic delivery under Article1498 can still be effected through the execution of thedeed of conveyance. 24The author therefore takes exception to the ruling in TenForty Realty and Dev. Corp. v. Cruz, 25 where the SupremeCourt held that [N]owhere in the Civil Code is it provided thatthe execution of a Deed of Sale is a conclusive presumption ofdelivery of possession of a piece of real estate. This Court hasheld that the execution of a public instrument gives rise onlyto a prima facie presumption of delivery. Such presumption isdestroyed when the delivery is not effected because of legalimpediment ... negated by the failure of the vendee to takeactual possession of the land sold. The Ten Forty Realty rulingconfuses between the twin functions of a public instrument, fi rst being merely an evidence of a sale, and second, a publicinstrument being the main, but not the only ingredient, in whatconstitutes constructive delivery. By itself a deed of sale ismerely a species of evidence, and it becomes an integral partof tradition when coupled with other requirements mandated byjurisprudence, namely, control over the subject matter at the timeof execution and the passage of reasonable time for the controlto remain.(2)When Execution of Public InstrumentDoes Not Produce Effects of DeliveryThere are cases when the execution of public instrumentscovering valid sales do not produce the effects of tradition.First, when in the execution of a public instrument, there isa stipulation to the contrary. 26 Phil. Suburban Dev. v. Auditor, 27held that such express reservation or contrary inference wouldbe present when:(a) A certain date is fi xed for the purchaser totake possession of the property subject ofthe conveyance;(b) In case of sale by installments, it is stipulatedthat until the last installment is made, thetitle to the property should remain with theseller;(c) When the seller reserves the right to useand enjoy the property until the gathering ofthe pending crops; or(d) Where the seller has no control over thething sold at the moment of the sale, and,therefore, its material delivery could nothave been made.Phil. Suburban held that since the execution of the publicinstrument was preceded by actual delivery of the subject real estate, then tradition was effected in spite of the condition statedin the instrument that the seller should fi rst register the deed ofsale and secure a new title in the name of the buyer before thelatter shall pay the balance of the purchase price, which did notpreclude the transmission of ownership, thus: In the absenceof an express stipulation to the contrary, the payment of thepurchase price of the goods is not a condition precedent to thetransfer of title to the buyer, but title passes by the delivery.28This well-established rule is contrary to what was said inHeirs of Severina San Miguel v. Court of Appeals, 29 that [i]n acontract of sale, title only passes to the vendee upon full paymentof the stipulated consideration, or upon delivery of the thingsold. In fact, Balatbat v. Court of Appeals, 30 held that [D]evoidof stipulation that ownership in the thing shall not pass to thepurchaser until he has fully paid the price [Art. 1478], ownershipin the thing shall pass from the seller to the buyer upon actual orconstructive delivery of the thing sold even if the purchase pricehas not yet been fully paid. Failure of the buyer to make good theprice does not, in law, cause the ownership to revest to the sellerunless the bilateral contract of sale is fi rst rescinded or resolvedpursuant to Art. 1191.31In Fortune Tobacco Corp. v. NLRC, 32 where the resolution ofthe issues boiled down to whether there was an actual sale of theemployers plant and facilities, the Court held that the executionof the deed of conditional sale with provision that the fi nal deed ofsale was to be executed only upon full payment, did not transferownership of the subject matter by the delivery thereof. It alsoheld that even accepting that the plant and its facilities have beensold on a conditional basis, there can be no actual sale thereof[i.e., transfer of ownership] unless the plant and its facilities areunconditionally conveyed ... by virtue of a fi nal or absolute deedof sale in accordance with the terms and conditions stated in theagreement between the parties.Secondly, when at the time of the execution of the publicinstrument, the subject matter was not subject to the control ofthe seller, then the legal effects of delivery would not happen.Addison v. Felix, 34 held earlier that it is the duty of theseller to deliver the thing sold, and that symbolic delivery by theexecution of a public instrument is equivalent to actual deliveryonly when the thing sold is subject to the control of the seller, sothat at the moment of sale, its material delivery could have beenmade,35 which talks of capacity rather than an actual physicaldelivery. The moment of sale referred to was of course theconsummation stage, thus The Code imposes upon the vendor the obligationto deliver the thing sold. The thing is considered to bedelivered when it is placed in the hands and possessionof the vendee. ... It is true that the same article declaresthat the execution of a public instrument is equivalentto the delivery of the thing which is the object of thecontract, but, in order that this symbolic delivery mayproduce the effect of tradition, it is necessary that thevendor shall have such control over the thing sold that,at the moment of the sale, its material delivery couldhave been made. It is not enough to confer upon thepurchaser the ownership and the right of possession.The thing sold must be placed in his control. Whenthere is no impediment whatsoever to prevent the thingsold from passing into the tenancy of the purchaser bythe sole will of the vendor, symbolic delivery throughthe execution of a public instrument is sufficient. Butif, notwithstanding the execution of the instrument, thepurchaser cannot have the enjoyment and materialtenancy of the thing and make use of it himself orthrough another in his name, because such tenancyand enjoyment are opposed by the interposition ofanother will, then fiction yields to reality the deliveryhas not been effectedAddison however recognized that if the sale had been madeunder the express agreement of imposing upon the purchaserthe obligation to take the necessary steps to obtain the materialpossession of the thing sold, and it were proven that she knewthat the thing was in the possession of a third person claiming tohave property rights therein, such agreement would perfectly bevalid,37 and there would have been full compliance by the sellerof his obligations under the sale, by the mere execution of thepublic instrument.In effect, Addison does not intend to place constructivedelivery at a lower category than that of actual delivery, andthere is no implication in the ruling that for constructive deliveryto produce the effects of tradition, it has to be coupled bysubsequent actual delivery or by the actual taking of physicalpossession by the buyer. Otherwise, if constructive deliverycannot do the job without actual delivery being made later on,then constructive delivery would not in reality be a separateform of tradition.The Addison doctrine was reiterated in Power Commercialand Industrial Corp. v. Court of Appeals, 38 where the Courtemphasized that the operative word in the doctrine is notpossession but control. In Power Commercial, the buyer wasfully aware of the existence of squatters on the property at thetime of the transactions and even undertook the job of evictingthem. The Court held that the buyer cannot contend later onthat the execution of the deed of sale in a public document didnot operate as a symbolic delivery to transfer possession to thebuyer due to the presence of occupants on the lot sold, thus:Although most authorities consider transfer ofownership as the primary purpose of sale, deliveryremains an indispensable requisite as our law doesnot admit the doctrine of transfer of property by mereconsent. 39The Civil Code provides that delivery can eitherbe (1) ACTUAL (Article 1497) or (2) CONSTRUCTIVE(Articles 1498-1501). Symbolic delivery (Article 1498),as a species of constructive delivery, effects thetransfer of ownership through the execution of a publicdocument. Its effi cacy can, however, be prevented ifthe vendor does not possess control over the thingsold, 40 in which case this legal fi ction must yield toreality. The key word is control, not possession, of theland ... Considering that the deed of sale between theparties did not stipulate or infer otherwise, delivery waseffected through the execution of said deed. 41Nevertheless, the statement in Power Commercial thatour law does not admit the doctrine of transfer of property bymere consent, is not accurate, since under Article 1496 of theCivil Code, the ownership of the thing sold is acquired by thebuyer from the moment it is delivered to him in any of the waysspecifi ed by law, or in any other manner signifying an agreementthat the possession is transferred from the vendor to the vendee.As discussed hereunder, traditio longa manu and other forms ofsymbolic delivery involve a mere agreement that buyer is nowthe owner and possessor of the subject matter.Thirdly, from the decision in Pasagui v. Villablanca, 42 wecan infer an additional element into the Addison doctrine, thatin order that the execution of public instrument to produce theeffect of tradition, not only must the seller have actual controlof the object of the sale at the execution of the instrument, butthat such control or ability to transfer physical possession andenjoyment must subsist for a reasonable length of time after theinstruments execution.We can only infer the ruling from the decision becausePasagui actually covered the main issue of whether the properaction that should have been fi led was one of forcible entry, whichrequired plaintiffs prior possession; it was therefore a decision,not on sale, but on jurisdiction and proper remedy. It held thatalthough a public instrument had been executed to cover the sale,and despite the facts showing that the third-party claimants of thesubject parcel of land came into possession after the instrumentwas executed, there was no delivery ever made by the sellereven by constructive delivery as to conclude that the buyer everhad title, possession or control of the subject real estate.The implied Pasagui ruling of control for a reasonableperiod after execution of the instrument is an important ingredientfor constructive delivery; otherwise, the execution of a publicinstrument, as a mode of delivery, would create undue burden onthe part of the buyer, who would be compelled to literally jumpinto the possession of the subject matter soon after signing theinstrument, for he would then obtain no remedy from the seller.The rationale for such inferred ruling should apply equally to allforms of constructive delivery, since tradition being an obligationon the part of the seller, the burden must continue to be with theseller to grant the buyer reasonable period to take possession ofthe subject matter. The ruling has since obtained doctrinal statuswhen it was reiterated in Danguilan v. Intermediate AppellateCourt, 43 and Vda. de Sarmiento v. Lesaca. 44It is clear therefore, that without the other requisites mandatedby jurisprudence (i.e., control at time of delivery and passageof reasonable time), the mere execution of a public instrumentdoes not create a conclusive presumption of delivery, whichpresumption can be rebutted by clear and convincing evidence,such as when the buyer failed to take actual possession or therewas continued enjoyment by the seller of possession. 45(3) Special Variation to Addison DoctrineThe Addison doctrine seemed to have been strained in thecase of Dy, Jr. v. Court of Appeals, 46 where a brother boughtthrough a deed of absolute sale a tractor from his brother- seller, which at the time of the execution of the instrument, wasmortgaged to and in the possession of the mortgagee. Thepurchase was with the knowledge of the mortgagee who insistedthat delivery to the buyer shall be made only upon the clearing ofthe check payment on the mortgage debt. In the meantime, thetractor was executed upon by a judgment creditor of the brotherseller while still in the possession of the mortgagee.The issue before the Court was whether the executioneffected upon the tractor to enforce the brother-sellers judgmentdebt was still valid, since the tractor was already sold to thebrother-buyer. The judgment creditor insisted that at the time ofthe execution of the deed of sale, no constructive delivery waseffected since the consummation of the sale was dependent uponthe clearance and encashment of the check which was issued inpayment of the tractor.In ruling for the brother-buyer, Justice Gutierrez held inDy, Jr., that [T]he mortgagor who gave the property as securityunder a chattel mortgage did not part with the ownership over thesame. He had a right to sell it although he was under obligationto secure the written consent of the mortgagor.47 He held thatin addition to Article 1498 of the Civil Code which recognizedthe execution of public instrument as constructive delivery, underArticle 1499, it is provided that the delivery of movable propertymay likewise be made by the mere consent or agreement ofthe contracting parties, if the thing sold cannot be transferred tothe possession of the vendee at the time of sale, or if the latteralready had it in his possession for any other reason.Nevertheless, Justice Gutierrez recognized that [I]n theinstant case, actual delivery of the subject tractor could not bemade. However, there was constructive delivery already uponthe execution of the public instrument pursuant to Art. 1498 andupon the consent or agreement of the parties when the thingsold cannot be immediately transferred to the possession of thevendee. (Art. 1499).48 With the acknowledgment that actualdelivery could not be effected, because possession of the tractorwas with the mortgagee, under the Addison doctrine, constructivedelivery through the execution of the public instrument could notproduce the effects of tradition, as to have made the brotherbuyer the owner of the subject matter.In addressing this particular point raised by the respondentCourt of Appeals in its appealed decision, Justice Gutierrez heldthat [W]hile it is true that [the seller] was not in actual possessionand control of the subject tractor, his right of ownership was notdivested from him upon his default. Neither could it be said that[the mortgagee] was the owner of the subject tractor because themortgagee can not become the owner of or convert and appropriate to himself the property mortgaged. (Art. 2088, Civil Code)Said property continues to belong to the mortgagor.49 The onlyproper way to treat the Dy, Jr. ruling is to consider that when itcomes to a third-party and the issue centers on the title or ownership of the subject matter of a sale, then constructive delivery bythe execution of the public instrument would produce the effectof tradition, but only insofar as title is concerned, provided that atthe time of the execution there was no legal impediment on thepart of the seller to transfer title to the buyer, even if at the timeof sale, control or possession of the subject matter was not in thehands of the seller.In any event, the variation in Dy, Jr. is not really that crucial,since Addison itself recognized that if the sale had been madeunder the express agreement of imposing upon the purchaserthe obligation to take the necessary steps to obtain the materialpossession of the thing sold, and it were proven that she knewthat the thing was in the possession of a third person claimingto have property rights therein, such agreement would perfectlybe valid,50 and therefore execution of the public document byitself would produce the legal effects of tradition and effectivelytransfer ownership to the buyer, even when the subject matter isin the hands of a third party. Symbolic DeliveryAs to movables, constructive delivery may also be madeby the delivery of the keys of the place or depository where themovable is stored or kept. 51Symbolic delivery must involve or cover the subject matter,and cannot take a form relating to the payment of the purchaseprice. Thus, Lorenzo Dev. Corp. v. Court of Appeals, 52 held thatthe issuance of an acknowledgment receipt of the partial paymentfor the property bought cannot be taken to mean a transfer ofownership thereof to the buyer because no constructive deliveryof the real property could have been effected by virtue thereof.c. Constitutum PossessoriumThis mode of constructive delivery takes effect when at thetime of the perfection of the sale, the seller held possession ofthe subject matter in the concept of owner, and pursuant to thecontract, the seller continues to hold physical possession thereofno longer in the concept of an owner, but as a lessee or any otherform of possession other than in the concept of owner. 53d. Traditio Brevi ManuThis mode of delivery is opposite that of constitutumpossessorium, where before the sale, the would-be buyer wasalready in possession of the would-be subject matter of thesale, say as a lessee, and pursuant to sale, he would now holdpossession in the concept of an owner. but as owners now through symbolic delivery known as traditiobrevi manu.e. Traditio Longa ManuThis is delivery of a thing merely by agreement, such as whenthe seller points the property subject matter of the sale by way ofdelivery without need of actually delivering physical possessionthereof. Thus, under Article 1499 of the Civil Code, the delivery ofmovable property may be made by the mere consent or agreementof the contracting parties, if the thing sold cannot be transferred tothe possession of the buyer at the time of the sale.f. Delivery of Incorporeal PropertyAn incorporeal property having no physical existence, itsdelivery can only be effected by constructive delivery. Article1501 of the Civil Code recognizes three (3) types of constructivedelivery specifi cally applicable to incorporeal property, thus:(a) When the sale is made through a publicinstrument, the execution thereof shall beequivalent to the delivery of the thing whichis the object of the contract, if from the deedthe contrary does not appear or cannotclearly be inferred;(b) By the placing of the titles of ownership inthe possession of the buyer; or(c) The use and enjoyment by the buyer of therights pertaining to the incorporeal property,with the sellers consent.g. Delivery by Negotiable Document of TitleA person to whom a negotiable document of title has beenduly negotiated acquires thereby such title to the goods astransferor had or had ability to convey to a purchaser in goodfaith for value, and also the title of the persons to whom thedocuments was originally. 55 Therefore, the buyer of the goodsHeirs of Pedro Escanlar v. Court of Appeals, 54 illustratesthe application of traditio brevi manu. In that case, prior tothe sale, would-be buyers were in possession of the subjectproperty as lessees. Upon sale to them of the rights, interestsand participation as to the one-half () portion pro indiviso, theyremained in possession, not in the concept of lessees anymorecan by the process of negotiation of the covering document havea title better than that of his immediate seller.On other hand, the buyer to whom a document of title hasbeen transferred by assignment, acquires only his transferors titleto the goods, and always subject to the terms of any agreementwith the transferor. 56Since an invoice is not a negotiable document of title, theissuance thereof would not constitute constructive delivery. 57h. Delivery Through CarrierDelivery through a carrier as a form of constructive deliverynecessarily pertains only to a sale of goods. The general rule,and in the absence of stipulation or circumstances to the contrary,delivery to carrier is deemed delivery to the buyer, the premisebeing that the carrier acts as an agent of the buyer.This default rule is best illustrated by Article 1523 of the CivilCode, where, if in pursuance of a sale, the seller is authorized orrequired to send the goods to the buyer, delivery of the goods toa carrier, whether named by the buyer or not, for the purpose oftransmission to the buyer is deemed to be a delivery of the goodsto the buyer, unless a contrary intent appears.Unless otherwise authorized by the buyer, the seller mustmake such contract with the carrier on behalf of the buyer as maybe reasonable, having regard to the nature of the goods and theother circumstances of the case. If the seller omits to do so, andthe goods are lost or damaged in the course of the transit, thebuyer may decline to treat the delivery to the carrier as delivery tohimself, or may hold the seller responsible for damages. 58Unless otherwise agreed, where goods are sent by the sellerto the buyer under circumstances in which the seller knows orought to know that it is usual to insure, the seller must give suchnotice to the buyer as may enable him to insure them during theirtransit, and if the seller fails to do so, the goods shall be deemedto be at his risk during such transit. 59(1) F.A.S. SalesUnder such arrangement, the seller pays all charges and issubject to risk until the goods are placed alongside the vessel.60In other words, delivery of the goods alongside the vesselcompletes the effect of tradition.(2) F.O.B. SalesIn mercantile contracts of American origin, f.o.b. standsfor the words free on board, and under such arrangementthe seller shall bear all expenses until the goods are delivered,depending on whether the goods are to be delivered f.o.b. atthe point of shipment or at the point of destination. 61 Under anf.o.b., shipping point arrangement, delivery of the goods to thecarrier is equivalent to delivery to the buyer, and at that point therisk of loss pertains to the buyer.Under an f.o.b., destination arrangement, only when thevessel has arrived at the point of destination would there bedelivery to the buyer and prior to that point in time, the risk of lossover the subject matter of the sale will be borne by the seller.(3) C.I.F. SalesThe letters c.i.f. found in British contracts stand for costs,insurance, and freight; they signify that the price fi xed coversnot only the costs of the goods, but the expense of freight andinsurance to be paid by the seller. 62 Under that arrangement, theamount quoted by the seller and agreed to by the buyer, coversnot only the cost of the merchandise (i.e., the price), but also thecost of insurance and freight. There are two schools of thoughton the effect of delivery under c.i.f. sales.Under the fi rst school of thought, since in a c.i.f. arrangement,the costs of insurance and freight are ultimately to be borne by thebuyer, as part of the price he has obligated himself to pay, thenit would mean that the carrier acts as an agent of the buyer whopays the freight, and therefore delivery to the carrier is deliveryto the buyer. In addition, since the insurance over the goodsshipped is for the account of the buyer, then clearly the buyer hasobtained ownership over the goods during the shipment periodsince this is required under the insurance law for the buyer tohave insurable interest.The other school of thought provides that in quoting a c.i.f.price, that means that both parties agree that the seller takes onthe responsibility of insuring the goods and providing for theirshipment to the buyer, and for which responsibility he gets apackage price. Under such circumstances, delivery by the sellerof the goods to the carrier is not equivalent to delivery to thebuyer, and the seller must continue to bear the risk of loss duringthe shipment period since this is an integral part of his obligationunder the agreed terms of the sale.In the early case of Behn, Meyer & Co. v. Yangco, 63 wherethe shipping terms were c.i.f., Manila on goods coming fromNew York, the Court held that [I]f the contract be silent as tothe person or mode by which the goods are to be sent, deliveryby the vendor to a common carrier, in the usual and ordinarycourse of business, transfers the property to the vendee.64 Theimplication is clear therefore in Behn Meyer & Co. that a c.i.f.arrangement signifi es that the price fi xed covers not only thecosts of the goods, but the expense of freight and insuranceto be paid by the seller, and therefore seller bears the risk ofloss during shipment. It held that [A] specifi cation in a contractrelative to the payment of freight can be taken to indicate theintention of the parties in regard to the place of delivery. If thebuyer is to pay the freight, it is reasonable to suppose that hedoes so because the goods become his at the point of shipment.On the other hand, if the seller is to pay the freight, the inference is equally strong that the duty of the seller is to have the goodstransported to their ultimate destination and that title to propertydoes not pass until the goods have reached their destination.65Nevertheless, Behn, Meyer & Co. upheld the principlethat both of the terms c.i.f. and f.o.b. merely make rules ofpresumption which yield to proof of contrary intention.66 The Courtthen held that since in the instant case the c.i.f. arrangementwas accompanied with the word Manila which was the point ofdestination, then this must be taken to mean that the contractprice, covering costs, insurance, and freight, signifi es that thedelivery was to be made at Manila.67In Pacifi c Vegetable Oil Corp. v. Singzon, 68 the Court heldthat under an arrangement c.i.f. Pacifi c Coast (the point ofdestination), the vendor is to pay not only the cost of the goods,but also the freight and insurance expenses, and, as it wasjudicially interpreted, this is taken to indicate that the delivery isto be made at the port of destination.Behn, Meyer & Co. and Pacifi c Vegetable agree with thesecond school of thought that since c.i.f. includes both insuranceand freight expenses to be paid by the seller, ordinarily therefore,in a c.i.f. arrangement, the risk of loss for the account of the buyerarises only when the vessel arrives at the point of destination.On the other hand General Foods v. NACOCO, 69 upholdsthe fi rst school of thought that [t]here is no question that underan ordinary C.I.F. agreement, delivery to the buyer is completeupon delivery of the goods to the carrier and tender of theshipping and other documents required by the contract and theinsurance policy taken in the buyers behalf.70 General Foodstherefore holds that although it is the seller who may make thearrangement for the insurance coverage and freightage of thegoods, he does this for the account and benefi t of the buyer, whohas agreed to pay for such amounts.In General Foods, the price was quoted CIF New York(the point of destination), and although the Court did not placesignifi cance on the indication of New York it held that [t]here isequally no question that the parties may, by express stipulationor impliedly (by making the buyers obligation depend on arrivaland inspection of the goods), modify a CIF contract and throwthe risk upon the seller until arrival in the port of destination.71The Court took into consideration that the price agreed upon wasto be based on net landed weights and it held that delivery bythe seller to the carrier in Manila of the goods covered was notdelivery to the buyer, and the risk of loss of the goods during thevoyage was to be borne by the seller.The lesson learned from all of these is that the shippingarrangements in a sale create, by commercial usage, certainpresumptive effects; however, such presumptive effects mustgive away, rather easily, to any stipulation or even intimationto the contrary. The courts have therefore tended to look atother stipulations or indications in the agreement to fi nd thetrue intentions of the parties as to the transfer of the risk ofloss before they would apply the presumptive effects of suchacronyms. EFFECTS AND COMPLETENESS OF DELIVERYFor tradition to produce the twin legal consequences oftransferring ownership to the buyer and effecting the fulfi llmentof the primary obligations of the seller, two principles must apply,namely:(a) Delivery must be made pursuant to a validsale; and(b) Delivery must be effected when seller hasownership over the subject matter of saleso delivered.a. Delivery Must Be Made Pursuant to a Valid SaleSince tradition takes effect in the consummation stage ofsale, it presupposes that there has been a valid passage throughperfection stage that has given rise to a valid and binding salethat is capable of performance. Consequently, delivery wouldproduce the effect of transferring ownership to the buyer onlywhen it is made pursuant to a valid sale.When a sale is fi ctitious, and therefore void and inexistent,as there was no consideration for the same, no title over thesubject matter of the sale can be conveyed. Nemo potest nisiquod de jure potest No man can do anything except what hecan do lawfully. 72b. Delivery Must Be Made By Seller Who HasOwnership over the Subject MatterLikewise, delivery would produce the effect of transferringownership only if at the time of delivery the seller still hadownership over the subject matter. This stems from the principlethat no man can dispose of that which does not belong to him.(Nemo dat quod non habet.)73c. To Whom Delivery Must Be MadeLagoon v. Hooven Comalco Industries, Inc., 74 held thatwhere it is stipulated that deliveries must be made to the buyeror his duly authorized representative named in the contracts, theseller is bound to deliver in such manner only, unless the buyerspecifi cally designated someone to receive delivery d. When Buyer Refuses to AcceptSince delivery of the subject matter of the sale is anobligation on the part of the seller, the acceptance thereof bythe buyer is not a condition for the completeness of delivery. 75Even with such refusal of acceptance, delivery, whether actualor constructive, will produce its legal effects, as, for example,transferring the risk of loss of the subject matter to the buyer whohas become the owner thereof.Under Article 1588 of the Civil Code, when the buyersrefusal to accept the goods is without just cause, the title theretopasses to him from the moment they are placed at his disposal.However, even under such circumstances, the seller is stilllegally obliged to take certain steps as not to be held liable forconsequent loss or damage to the goods.1. Rules on Effects of Delivery for MovablesArticle 1522 of the Civil Code provides the rules on thedelivery of goods (a) Where the seller delivers to the buyera quantity of goods less than what hecontracted to sell, the buyer may rejectthem; but if the buyer accepts or retains thegoods so delivered, knowing that the selleris not going to perform the contract in full,he must pay for them at the contract rate;(b) If, however, the buyer has used or disposedof the goods delivered before he knows thatthe seller is not going to perform his contractin full, the buyer shall not be liable for morethan the fair value to him of the goods soreceived;(c) Where the seller delivers to the buyera quantity of goods larger than what hecontracted to sell, the buyer may accept the goods covered in the contract and reject therest; if the buyer accepts the whole of thegoods so delivered he must pay for themat the contract rate; if the subject matter isindivisible, the buyer may reject the wholeof the goods; or(d) Where the seller delivers to the buyer thegoods contracted but mixed with goods of adifferent description, the buyer may acceptthe contracted goods and reject the rest; ifthe subject matter is indivisible, the buyermay reject the goods entirely.a. When Goods Held by Third PartyWhere the goods at the time of sale are in the possession ofa third person, the seller has not fulfi lled his obligation to deliverto the buyer unless and until such third person acknowledges tothe buyer that he holds the goods on the buyers behalf. 76b. Reservation of OwnershipDespite delivery, ownership will not transfer to the buyer incase of express reservation, such as when the parties stipulatethat ownership will not transfer until the purchase price is fullypaid, 77 or until certain conditions are fulfi lled. 78Article 1503 of the Civil Code gives the following instanceswhen there is an implied reservation of ownership:(a) Where goods are shipped, and by the bill oflading the goods are deliverable to the selleror his agent, the seller thereby reserves theownership in the goods.But, if except from the form of the bill oflading, ownership would have passed to thebuyer on shipment of the goods, the sellers property in the goods shall be deemed to beonly for purpose of securing performance ofthe buyers obligations, in which case thebuyer bears the risk of loss;(b) Where goods are shipped, and by the bill oflading the goods are deliverable to the orderof the buyer or of his agent, but possessionof the bill of lading is retained by the seller orhis agent, the seller thereby reserves a rightto the possession of the goods as againstthe buyer, and ownership is still transferredto the buyer;(c) Where the seller of goods draws on thebuyer for the price and transmits the bill ofexchange and bill of lading together to thebuyer to secure acceptance or payment ofthe bill of exchange, the buyer is bound toreturn the bill of lading if he does not honorthe bill of exchange, and if he wrongfullyretains the bill of lading he acquires noadded right thereby.In the last case, however, if the bill of lading providesthat the goods are deliverable to the buyer or to the order ofthe person named therein, one who purchases in good faithfor value the bill of lading, or goods from the buyer will obtainthe ownership in the goods, although the bill of exchange hasnot been honored, provided that such purchaser has receiveddelivery of the bill of lading endorsed by the consignee namedtherein, or of the goods, without notice of the facts making thetransfer wrongful. 79c. Obligation as to Accessories and AccessionsIn the sale of movables, in addition to the obligation of theseller to deliver the accessories and accessions in the conditionin which they were upon the perfection of the contract, 80 the seller must deliver to the buyer a quantity of goods that should not beless than what he contracted to sell, otherwise the buyer mayreject them. 81d. Sale in Mass of MovablesThe sale of movables under Article 1522 of the NCC,should be distinguished from the sale of specifi c mass underArticle 1480 which provides for the sale of fungible things, madeindependently and for a single price, or without consideration oftheir weight, number, or measure.In Gaite v. Fonacier, 82 which involved the sale of iron ore,it was held that if there is no provision in the contract for themeasuring or weighing of the fungible movables sold in order tocomplete or perfect the sale, nor is the price agreed upon by theparties to be based upon such measurement, then the subjectmatter of the sale is, therefore, a determinate object, the mass,and not the actual number of units or tons contained therein, sothat all that was required of the seller Gaite was to deliver in goodfaith to his buyer all of the ore found in the mass, notwithstandingthat the quantity delivered is less than the amount estimated bythem.83e. Sale by Description and/or SampleIn a sale of goods by description or sample, the sale maybe rescinded if the bulk of the goods delivered do not correspondwith the description or the sample, and if the contract be bysample as well as by description, it is not suffi cient that the bulk ofgoods correspond with the sample if they do not also correspondwith the description. 84 By their very nature, sales of goods bysample and/or description, should allow the buyer a reasonableopportunity of inspection or of comparing the bulk with the sampleor the description before accepting their delivery.Mendoza v. David, 86 held that there is sale by sample whena small quantity is exhibited by the seller as a fair specimen of thebulk, which is not present and there is no opportunity to inspector examine the same, thus: To constitute a sale by sample, itmust appear that the parties treated the sample as the standardof quality and that they contracted with reference to the samplewith the understanding that the product to be delivered wouldcorrespond with the sample.87Mendoza described a sale of goods by description as onewhere a seller sells things as being of a particular kind, the buyernot knowing whether the sellers representations are true or false,but relying on them as true; or as otherwise stated, where thebuyer has not seen the article sold and relies on the descriptiongiven to him by the seller, or has seen the goods, but the want ofidentity is not apparent on inspection.88The Court in Mendoza also held that the term sale bysample does not include an agreement to manufacture goodsto correspond with the pattern, especially where in that casethe three sets of furniture were manufactured according to thespecifi cations provided by the buyer, and not in accordance withthe replicas displayed in the sellers shop.Engel v. Mariano Velasco & Co., 89 held that even in salesby description and/or sample, the purchaser will not be releasedfrom his obligation to accept and pay for the goods by deviationson the part of the seller from the exact terms of the contract, ifthe purchaser had acquiesced to such deviations after due noticethereof.Pacifi c Commercial Co. v. Ermita Market & Cold Stores, 90held that when the machine delivered by the seller is in accordancewith the description stated in the sales contract, the buyer cannotrefuse to pay the balance of the purchase price and the cost ofinstallation even if it proves that the machine cannot be used satisfactorily for the purposes for which he bought it when suchpurpose was not made known to the seller.f. On Sale or ReturnUnder Article 1502 of the NCC, when goods are delivered tothe buyer on sale or return to give the buyer an option to returnthe goods instead of paying the price, the ownership passes tothe buyer on delivery, but he may revest the ownership in theseller by returning or tendering the goods within the time fi xedin the contract, or, if no time has been fi xed, within a reasonabletime.g. Sale on Approval, Trial, Satisfaction, or AcceptanceOn the other hand, Article 1502 provides that when goodsare delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the ownership therein passes to thebuyer only: (a) when he signifi es his approval or acceptance tothe seller or does any other act adopting the transaction; or (b)if the buyer does not signify his approval or acceptance, but retains the goods without giving notice of rejection, then if a timehas been fi xed for the return of the goods, on the expiration ofsuch time, and, if no time has been fi xed, on the expiration of areasonable time.Vallarta v. Court of Appeals, 91 held that when the sale of amovable is sale on acceptance, no ownership could have beentransferred to the buyer although he took possession thereof,because [d]elivery, or tradition, as a mode of acquiring ownershipmust be in consequence of a contract ..., e.g., sale,92 and in thatcase there was as yet no contract when delivery was effected.h. Form of Such Special SalesIndustrial Textile Manufacturing Co. v. LPJ Enterprises,Inc., 93 held that for a sale to be considered and construed as asale or return or a sale on approval, there must be a clear agreement to either of such effect, otherwise, the provisions ofArticle 1502 of the Civil Code governing such sales cannot beinvoked by either party to the contract, and therefore must be inwriting, and cannot be proved by parol evidence:... The provision in the Uniform Sales Act and theUniform Commercial Code from which Article 1502 wastaken, clearly requires an express written agreementto make a sales contract either a sale or return or asale on approval. Parol or extrinsic testimony couldnot be admitted for the purpose of showing that aninvoice or bill of sale that was complete in every aspectand purporting to embody a sale without condition orrestriction constituted a contract of sale or return. If thepurchaser desired to incorporate a stipulation securingto him the right to return, he should have done so atthe time the contract was made. On the other hand,the buyer cannot accept part and reject the rest of thegoods since this falls outside the normal intent of theparties in the on approval situation. 94i. Written Proof of DeliveryLao v. Court of Appeals, 95 confi rmed that in case of goods,delivery is generally evidenced by a written acknowledgment of aperson that he has actually received the thing or the goods, as indelivery receipts, under the following rules:(a) A bill of lading cannot substitute for adelivery receipt, because it is a writtenacknowledgment of receipt of the goods bythe carrier and an agreement to transportand deliver them at a specifi c place to aperson named or upon his order; it doesnot evidence receipt of the goods by theconsignee or the person named in the bill oflading; and (b) A factory consignment invoice is notevidence of actual delivery of the goodssince in the invoice nothing more than adetailed statement of the nature, quantityand cost of the thing sold, and it not proofthat the thing or goods were actuallydelivered to the buyer or the consignee.j. Time and Place of DeliveryWhether it is for the buyer to take possession of the goodsor for the seller to send them to the buyer is a question dependingin each case on the contract, express or implied, between theparties. Apart from such contract, express or implied, or usageof trade to the contrary, the place of delivery is sellers place ofbusiness, if he has one, and if not, his residence. 96 In case of asale of specifi c goods, which to the knowledge of the parties whenthe contract or the sale was made were in some other place, thenthat place is the place of delivery. 97Where by a sale the seller is bound to send the goods to thebuyer, but no time for sending them is fi xed, the seller is bound tosend them within a reasonable time. 98Demand or tender of delivery may be treated as ineffectualunless made at a reasonable hour; and what may be a reasonablehour is a question of fact. 99k. Seller Shall Pay Expenses of DeliveryUnless otherwise agreed, the expenses in putting the goodsinto a deliverable state must be borne by the seller. 1002. Rules on Effects of Delivery for ImmovablesThe following rules to determine completeness of deliveryshall apply when the subject matter of the sale is an immovable:a. Where Immovables Sold Per Unit or NumberIf the sale of real estate should be made with a statementof its area, at the rate of a certain price for a unit of measure ornumber, the seller is obliged to deliver to the buyer, if the lattershould demand it, all that may have been stated in the contract.If this should not be possible, the buyer may choose betweena proportional reduction of the price, or the rescission of thecontract when in the latter case, the lack of area be not less thanone-tenth (1/10) of that stated. 101In Rudolf Lietz, Inc. v. Court of Appeals, 102 it was held thatthe statement of the area of the immovable is not conclusive andthe price may be reduced or increased depending on the areaactually delivered.The rule applies, even when the area is the same, if any partof the immovable is not of the quality specifi ed in the contract;provided that rescission may take place when the inferior valueof the thing sold exceeds one-tenth (1/10) of the price agreedupon. 103Even when the smaller area or inferiority of quality doesnot conform to the minimum amount or value provided by lawto allow rescission on the part of the buyer, nevertheless, if thebuyer would not have bought the immovable had he known of itssmaller area or inferior quality, he may rescind the sale. 104On the other hand, if there is a greater area or number inthe immovable than that stated in the contract, the buyer mayaccept the area included in the contract and reject the rest. Ifhe accepts the whole area, he must pay for the same at thecontract rate. 105The foregoing rules also apply to judicial salesb. Where Immovables Sold for a Lump SumIn the sale of real estate made for a lump sum and not atthe rate of a certain sum for a unit of measure or number, thereshall be no increase or decrease of the price, although therebe a greater or lesser area or number than that stated in thecontract, 107 especially with the use of qualifying words of moreor less in describing the area. 108The same rule applies when two or more immovables aresold for a single price; but if, besides mentioning the boundarieswhich is indispensable in every conveyance of real estate,its area or number should be designated in the contract, thevendor shall be bound to deliver all that is included within saidboundaries, even when it exceeds the area or number specifi edin the contract; and, should he not be able to do so, he shallsuffer a reduction in the price, in proportion to what is lacking inthe area or number, unless the contract is rescinded becausethe buyer does not accede to the failure to deliver what has beenstipulated. 109Nevertheless, in both Asiain v. Jalandoni, 110 and Roble v.Arbasa, 111 the Court held that although under Article 1542, inthe sale of real estate by lump sum, there shall be no increaseor decrease of the price although there be a greater or lesserarea or number than that stated in the contract, the rule admitsof exception because the sale of land under description moreor less or similar words in designating quantity covers only areasonable excess or defi ciency.112 In Roble, the Court held thata defi ciency or excess of 644 square meters is not reasonable.The exception to this rule is when expressly the buyer assumesthe risk on the actual area of the land bought. c. Lump Sum Sale versus Sale by Unitof Measure or NumberSanta Ana v. Hernandez, 114 clarifi ed the governing rule inthe sale of real property, whether to treat it as a lump-sum saleor a sale per unit of measure or number. In that case, the sellersspouses sold to the buyer two separate portions of a muchbigger land indicating in the instrument the total purchase priceand the areas of each of the sold portions totaling 17,000 squaremeters, plus an indication of the boundaries. Subsequently, thebuyer refused to vacate the areas occupied by her which werein excess of 17,000 square meters but which she alleged wherewithin the boundaries described in the instrument.In affi rming that the contract between the parties was alump-sum sale, and therefore the buyer was entitled to occupyall portions within the boundaries stated in the instrument,even if they exceed 17,000 square meters, the Court held thatthe sale made was of a defi nite and identifi ed tract, a corpuscertum, that obligated the vendors to deliver to the buyer all theland within the boundaries, irrespective of whether its real areashould be greater or smaller than what is recited in the deed. ...To hold the buyer to no more than the area recited on the deed,it must be made clear therein that the sale was made by unit ofmeasure at a defi nite price for each unit.115The Court also held that [i]f the defendant intended tobuy by the meters he should have so stated in the contract.Also, based on the ruling of the Supreme Court of Spain, inconstruing Article 1471 of the Spanish Civil Code, which wascopied verbatim in Article 1542 of our Civil Code, the Courtheld that it is highly persuasive that as between the absenceof a recital of a given price per unit of measurement, and thespecifi cation of the total area sold, the former must prevail anddetermines the applicability of the norms concerning sales fora lump sum. 116 In short, Santa Ana provides that if the price perunit of measure or number is not expressly provided for in the contract, the rules of lump sum sale shall prevail in the sale ofreal property.Balantakbo v. Court of Appeals, 117 reiterated that the rule isquite well-settled that what really defi nes a piece of land is notthe area calculated with more or less certainty mentioned in thedescription but the boundaries therein laid down as enclosing theland and indicating its limits: where the land is sold for a lump sumand not so much per unit of measure or number, the boundariesof the land stated in the contract determine the effects and scopeof the sale not the area thereof. 118In Esguerra v. Trinidad, 119 the Court held Under Article 1542, what is controlling is the entireland included within the boundaries, regardless ofwhether the real area should be greater or smaller thanthat recited in the deed. This is particularly true sincethe are of the land ... was described in the deed ashumigit kumulang, that is, more or less. A caveat isin order, however, the use of more or less or similarwords in designating quantify covers only a reasonableexcess or defi ciency. A vendee of land sold in grossor with the description more or less with referenceto its area does not thereby ipso facto take all risks ofquantity in the land. Numerical data are not of coursethe sole gauge of unreasonableness of the excessof defi ciency in area. Courts must consider a host ofother factors, in one case (Roble v. Arbas, 362 SCRA69 [2001]), the Court found substantial discrepancy inarea due to contemporaneous circumstance. Citingchange in the physical nature of the property, it wastherein established that the excess area at the southernportion was a product of reclamation, which explainedwhy the lands technical description in the deed ofsale indicated the seashore as its southern boundary,hence the inclusion of the reclaimed area was declaredunreasonable. The increase by a fourth of a fraction of the area indicated in the deed of sale cannot beconsidered an unreasonable excess. 120d. Where Immovables Sold in MassA judicial sale in mass of separate known lots or parcels willnot be set aside, unless it is made to appear that a larger sumcould have been realized from a sale in parcels or that a saleof less than the whole would have been suffi cient to satisfy thedebt. 121e. Expenses of Delivery and Registrationon Real EstateAs discussed in greater details in the appropriate chapters,the rules pertaining to, and the effects of, tradition, whether actualor constructive, vary greatly when the subject matter of a validsale is real property, especially so when it is registered land. Thisis because of the rather peremptory effect of registration in goodfaith as the operative act principle under the Torrens systemembodied in the Property Registration Decree, 122 and the priorityof registration in good faith to determine ownership preference indouble sales rules in Article 1544 of the Civil Code.The Supreme Court held in 2003 in Chua v. Court ofAppeals, 123 that registration of the title of the buyer over thepurchased real estate is not an ingredient necessary for traditionto have full effect, thus The obligation of the seller is to transfer to the buyerownership of the thing sold. In the sale of real property,the seller is not obligated to transfer in the name of thebuyer a new certifi cate of title, but rather to transferownership of the real property. There is a differencebetween transfer of the certifi cate of title in the name ofthe buyer, and the transfer of ownership to the buyer. Thebuyer may become the owner of the real property evenif the certifi cate of title is still registered in the name of the seller. As between the seller and buyer, ownershipis transferred not by issuance of a new certifi cate oftitle in the name of the buyer but by the execution of theinstrument of sale in a public document. 124 x x x. Therecording of the sale with the proper Registry of Deedsand the transfer of the certifi cate of title in the name ofthe buyer are necessary only to bind third parties tothe transfer of ownership. As between the seller andthe buyer, the transfer of ownership takes effect uponthe execution of a public instrument conveying the realestate. Registration of the sale with the Registry ofDeeds, or the issuance of a new certifi cate of title, doesnot confer ownership on the buyer. Such registrationor issuance of a new certifi cate of title is not one of themodes of acquiring ownership.Chua also held that although the buyer of a parcel of landhas more interest in having the capital gains tax paid immediatelysince this is a pre-requisite to the issuance of a new Torrens titlein his name, nevertheless, as far as the government is concerned,the capital gains tax remains a liability of the seller since it is atax on the sellers gain from the sale of the real estate. The Courtalso emphasized that the payment of the capital gains tax is nota pre-requisite to the transfer of ownership to the buyer, andthat the transfer of ownership took effect upon the signing andnotarization of the deed of absolute sale.Earlier, Jose Clavano, Inc. v. HLURB, 125 held that a judgmenton a sale that decrees the obligations of the seller to execute anddeliver the deed of absolute sale and the certifi cate of title, doesnot necessarily include within its terms the obligation on the partof the seller to pay for the expenses in notarizing the deed of saleand in obtaining new certifi cate of title.The ruling in Jose Clavano, Inc. is contrary to the Courtssubsequent ruling in Chua where the Court decreed theobligations of the seller to deliver the documents necessary toallow the buyer to be able to effect registration of his purchase.In fact, Vive Eagle Land, Inc. v. Court of Appeals, 126subsequently held that under Article 1487 of the Civil Code, theexpenses for the registration of the sale should be shoulderedby the seller unless there is a stipulation to the contrary; and thatunder Article 1495, the seller is obliged to transfer title over theproperty and deliver the same to the vendee. The ruling in ViveEagle Land is again in stark contrast to the Courts earlier ruling inChua that registration of the title of the buyer over the purchasedreal estate is not an ingredient necessary for tradition to have fulleffect, and therefore the seller is not obligated to transfer in thename of the buyer a new certifi cate of title, but rather to transferownership of the real property. There is a difference betweentransfer of the certifi cate of title in the name of the buyer, and thetransfer of ownership to the buyer.