Jerico, the project owner, entered into a Construction Contract with Ivan for the latter to construct his house. Jojo executed a Surety undertaking to guarantee the performance of the work by Ivan. Jerico and Ivan later entered into a Memorandum of Agreement (MOA) revising the work schedule of Ivan and the subcontractors. The MOA stated that all the stipulations of the original contract not in conflict with said agreement shall remain valid and legally effective. Jojo filed a suit to declare him relieved of his undertaking as a result of the MOA because of the change in the work schedule. Jerico claims there is no novation of the Construction Contract. Decide the case and explain. (5%)
Suggested answer only. Not an official answer and not legal advice.
I will decide in favor of Jerico; there is no novation of the Construction Contract. Under Article 1292 of the Civil Code, novation is never presumed and requires an express declaration or complete
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Quick check
Under Article 1292 of the Civil Code, when does a modification of an obligation result in an extinctive novation?
Extinctive novation occurs only when expressly declared or when old and new obligations are incompatible on every point.
What degree of alteration in a principal contract is required to discharge a surety from liability?
A surety is discharged only if a material alteration alters the legal effect or makes the surety's burden more onerous.
How is a Memorandum of Agreement revising a work schedule treated when it expressly preserves non-conflicting original terms?
An agreement that expressly preserves non-conflicting terms supplements the original contract without causing novation.
Why was Jojo not relieved of his undertaking as a surety in the case of Jerico and Ivan?
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Which legal principle applies regarding the presumption of novation under the Civil Code?
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Learn more about these topics
1. Article 1292 Novation
Under Article 1292 of the Civil Code, in order that an obligation may be extinguished by another which substitutes the same, it is imperative that it be so declared in unequivocal terms, or that the old and the new obligations be on every point incompatible with each other. Novation is never presumed and must be established with clear and convincing evidence. Modifying accessory terms or supplementary arrangements, such as extending or revising a construction work schedule, does not produce an extinctive novation of the principal obligation.
2. Release of Surety
Under Philippine law on guaranty and suretyship, a surety is released from liability if there is a material alteration in the principal contract made without the surety's consent. A material alteration is one that changes the legal effect of the original contract, alters the position of the surety, or renders the surety's obligation more onerous. Minor adjustments or revisions to execution details, such as work schedules or subcontractor timelines, do not constitute a material alteration that discharges the surety.
3. Express Non-Incompatibility
Where a subsequent agreement between the principal debtor and creditor expressly provides that all terms and stipulations of the original contract not in conflict shall remain valid and legally effective, there is no implied novation. The express reservation of the original contract's validity demonstrates that the parties intended to supplement, rather than extinguish, the initial agreement. Consequently, the principal obligation and its accessory surety undertaking persist in full force and effect.