Article 1402. As long as one of the contracting parties does not restore what in virtue of the decree of annulment he is bound to return, the other cannot be compelled to comply with what is incumbent upon him.
By: Kristia Capio
Artikulo 1402. Hangga’t isa sa mga partido ay hindi pa binabalik ang kaniyang responsibilidad na ibalik, ang kabilang partido ay hindi pwedeng piliting gawin ang nakatoka niyang gawain.
When a contract is annulled, a reciprocal obligation of restitution is created. The return by one party of what he is obliged to restore by the decree of annulment may be regarded as a condition to the fulfillment by the other of what is incumbent upon him.
In effect, there will be no annulment if the party cannot restore what he is bound to return. This is true even if the loss is due to a fortuitous event.
However, if the party who lost the thing through a fortuitous event offers to pay its value with the fruits received if any (there is no liability to pay interest since the loss is without his fault), the other can be required to make restitution.
ILLUSTRATION
Jay entered into a contract with Zola whereby he obliged himself to create a wooden statue in the image of Zola’s mother. However, it turned out that Zola is only 12 years old and as such, he is incapacitated to enter into a contract. The contract was annulled. Zola was then obligated to return the statue while Jay has the obligation of returning the money payed by Zola for the statue. Since Jay did not return the money, Zola cannot be compelled to return the statue, as provided for by Article 1402 of the New Civil Code.
OBLIGATIONS AND CONTRACTS 