Article 1297. If the new obligation is void, the original one shall subsist, unless the parties intended that the former relation should be extinguished in any event.
Artikulo 1297. Kung ang bagong obligasyon ay walang bisa, ang orihinal obligasyon ang syang magpapatuloy, maliban na lamang kung ang bawat partido ay ninais na ang naunang relasyon ay tatapusin ng anumang kaganapan.
Article 1297 stresses one of the essential requirements of a novation, to wit: the new obligation must be valid. The general rule is that there is no novation if the new obligation is void and, therefore, the original one shall subsist for the reason that the second obligation being inexistent, it cannot extinguish or modify the first.
ILLUSTRATION
Bryan is indebted to Anne in the amount of Php 1, 000.00. Since Bryan cannot pay his debt, Bryan and Anne entered into a new contract whereby Bryan will kidnap and kill the enemy of Anne and the later will consider Bryan debt extinguished. In this case, the original obligation of Bryan and Anne shall subsist because the new obligation of Bryan to Anne is void it being against the law.
OBLIGATIONS AND CONTRACTS 