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CONCURRING OPINION
VITUG, J.:
I concur with my esteemed colleague, Mr. Justice Hilario Davide, Jr., in his eloquently written ponencia.
I just would like to add, by way of clarification, that the principal remedies open to an obligee, upon the breach of an obligation, are generally judicial in nature and must be independently sought in litigation, i.e., an action for performance (specific, substitute or equivalent) or rescission (resolution) of a reciprocal obligation. The right to rescind (resolve) is recognized in reciprocal obligations; it is implicit, however, in third paragraph of Article 11911 of the Civil Code that the rescission there contemplated can only be invoked judicially. Hence, the mere failure of a party to comply with what is incumbent upon him does not ipso jure produce the rescission (resolution) of the obligation.
Exceptionally, under the law and, to a limited degree, by agreement of the parties, extrajudicial remedies may become available2 such as, in the latter case, an option to rescind or terminate a contract upon the violation of a resolutory faculative condition. In the case of lease agreements, despite the absence of an explicit stipulation, that option has been reserved by law in favor of a lessee under Article 16733 of the Civil Code by providing that the lessor may judicially eject the lessee for, among other grounds, a violation of any of the conditions agreed upon in the contract. The provision, read in conjunction with Section 2,4 Rule 70, of the 1997 Rules of Civil Procedure, would, absent a contrary stipulation, merely require a written demand on the lessee to pay or to comply with the conditions of the lease and to vacate the premises prior to the institution of an action for ejectment. The above provisions, in effect, authorized the lessor to terminate extrajudicially the lease (with the same effect as rescission) by simply serving due notice to the lessee.
In this particular instance, therefore, the only relevant court jurisdiction involved is that of the first level court in the action for ejectment, an independent judicial action for rescission being unnecessary.
Endnotes:
1 Art. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him.
The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible.
The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance wth articles 1385 and 1388 and the Mortgage Law.
2 Although its exercise may be subject to judicial scrutiny.
3 Art. 1673. The lessor may judicially eject the lessee for any of the following causes:
(1) When the period agreed upon, or that which is fixed for the duration of lease articles 1682 and 1687, has expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the contract;
(4) When the lessee devotes the thing leased to any use or service not stipulated which causes he deterioration thereof; or if he does not observe the requirement in No. 2 of article 16557, as regards the use thereof.
The ejectment of tenants of argricultural lands is governed by special laws.
4 SEC. 2. Lessor to proceed against lessee only after demand.- Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings.
