Sale of Future Things and Sale of Hope or Expectancy (Philippine Context)

1) The legal anchor: what Article 1461 is about

Civil Code Article 1461 is the Philippines’ central rule on sales involving something that does not yet exist. It recognizes two related—but legally very different—transactions:

Sale of a future thing (the parties are really selling the thing that is expected to exist later), and
Sale of a hope or expectancy (the parties are really selling the chance that something may exist or be obtained later).

The key difference is who bears the risk when the expected thing never comes to be.

2) Why this matters in practice

Many real-life transactions deal with goods “to come”:

crops not yet harvested
fish catch from a planned fishing trip
minerals to be extracted
outputs of a farm or poultry operation
goods to be manufactured
shares/rights expected from a venture
“rights to whatever may be obtained” from a particular undertaking

Article 1461 allows parties to trade in these realities—but forces clarity on whether the buyer is purchasing (a) the future thing itself, or (b) the hope that the thing may be produced or obtained.

PART I — SALE OF A FUTURE THING (Emptio Rei Speratae)

3) Concept

A sale of a future thing is a sale where the object is a thing expected to exist, but does not yet exist at the time of the contract.

Classic examples:

“I sell you my mango harvest this coming May.”
“I sell you the palay that will be produced on my land this season.”
“I sell you 100 sacks of rice that my mill will produce next month.”

The law treats this as a sale subject to the condition that the thing will come into existence.

4) Legal effect if the thing never comes into existence

If the future thing does not come into existence at all, the sale is ineffective (the obligation to deliver and to pay does not become demandable), because the condition (existence) did not happen.

Practical consequence:

The buyer generally does not have to pay, or if payment was made, it is generally returnable, because the very object of the sale never existed.

5) If only part comes into existence

Common scenarios:

harvest is smaller than expected
partial output is produced
only some items are manufactured successfully

How this plays out depends on:

divisibility of the subject matter (e.g., sacks of palay are divisible; a single specific racehorse foal is not), and
what the parties agreed (e.g., “entire output,” “at least 100 sacks,” “all-or-nothing”).

Many disputes turn on contract wording:

“Entire harvest/output” often implies the buyer takes whatever is produced (quantity uncertain, but production expected).
“100 sacks exactly” implies a commitment to deliver that quantity; failure may trigger breach analysis (including fault and damages) if the seller undertook responsibility to produce or procure.

6) Fault and assumed obligations

Article 1461 addresses existence as a condition, but liability can still arise from fault or undertakings in the contract:

If the seller promised to cultivate, manufacture, or procure the future thing and then negligently fails, the buyer may have damage claims depending on the terms and nature of the obligation.
If the non-existence is due to fortuitous events (e.g., typhoon wipes out crops), the default outcome is typically that the condition failed and the sale does not become effective—unless risk was allocated differently.

7) Ownership and delivery timing

In sales, ownership generally transfers upon delivery (tradition), unless otherwise agreed. With future things:

Delivery cannot happen until the thing exists.
So ownership ordinarily transfers only when the future thing is delivered (actual or constructive delivery), not at contract signing.

8) Warranties: what is implied (and what isn’t)

In a sale of future things, the seller is generally taken to warrant that:

there is a genuine expectation the thing can exist (not a pure sham), and
the seller will not act to prevent its coming into existence in bad faith.

But the seller does not automatically guarantee outcomes against natural contingencies unless the contract says so.

PART II — SALE OF HOPE OR EXPECTANCY (Emptio Spei)

9) Concept

A sale of hope or expectancy is a sale where the object is not a thing, but the chance of obtaining something.

Classic examples:

“I sell you whatever fish my boat may catch tonight for ₱X, regardless of catch size.”
“I sell you the chance that there will be treasure recovered from this salvage attempt.”
“I sell you whatever may be produced from this risky venture, and you pay now even if nothing is produced.”

Here, the buyer is buying the risk-laden possibility itself. This is inherently aleatory in character: the buyer may get much, little, or nothing.

10) Legal effect if nothing is obtained

If the “thing hoped for” never materializes (no fish caught, no output produced, no recovery made), the buyer generally still pays. The buyer assumed the risk.

This is the most important operational difference from the sale of a future thing.

11) Limits: good faith and a real “hope” must exist

A sale of hope is not a license to sell an illusion. The “hope” must be:

real (there must be some chance, however uncertain), and
not known to be impossible by the seller.

If the seller knows there is no chance at all (e.g., the fishing boat never left, the salvage site is fictitious, the “operation” is a sham), the transaction can be attacked for:

fraud,
lack of cause/consideration, or
illicit/void object depending on the circumstances.

12) Relationship to gambling and aleatory contracts

A sale of hope is often described in civil law commentary as aleatory because the equivalent and performance depend on an uncertain event.

But being aleatory does not automatically mean it is illegal gambling. The legality depends on:

whether the transaction is anchored to a lawful enterprise or activity, and
whether it violates prohibitions on wagering/gambling or public policy.

In practice, courts look at the true nature of the agreement: is it a commercial allocation of risk tied to production/recovery, or merely a disguised wager?

PART III — HOW TO TELL WHICH ONE YOU HAVE

13) The “risk test” (most reliable)

Ask: If nothing comes into existence / nothing is obtained, who still bears the loss?

If the buyer does not have to pay (or can recover payment), it points to sale of a future thing.
If the buyer must still pay even if nothing is obtained, it points to sale of hope/expectancy.

14) Contract language that often signals each type

Sale of future thing indicators:

“subject to harvest/production”
“if and when produced” (often conditional)
“to be delivered upon existence”
“payment due upon delivery/harvest”

Sale of hope indicators:

“whatever may be obtained” for a fixed price regardless of result
“buyer assumes all risks of non-production/non-recovery”
“price is earned upon execution; no refund if none is obtained”

15) Courts look at substance over labels

Calling it “sale of hope” won’t control if the structure shows the parties actually intended a conditional sale of a future thing (or vice versa). Courts examine:

timing of payment
refund provisions
risk allocation clauses
obligations to cultivate/produce/procure
whether the seller retained control and undertook performance duties

PART IV — INTERSECTIONS WITH OTHER CIVIL CODE RULES

16) Future things can generally be the object of contracts

Philippine civil law broadly allows future things to be the object of obligations and contracts—subject to special prohibitions and public policy limits.

17) Important warning: future inheritance is generally prohibited

A major exception in civil law is future inheritance—contracts over inheritance that has not yet opened are generally prohibited (with narrow statutory exceptions).

This matters because people sometimes try to frame forbidden transfers as “sale of expectancy”:

“I sell my share in my parents’ estate while they’re alive.”

Even if described as an “expectancy,” transactions that effectively dispose of future inheritance can be void for violating the prohibition. Once succession opens, different rules apply (e.g., assignment of hereditary rights after the decedent’s death, subject to law and formalities).

18) Determinability and lawful object still required

Whether future thing or hope, the contract must still satisfy fundamentals:

consent of the parties
lawful object (not contrary to law, morals, good customs, public order, public policy)
cause/consideration
object must be determinate or at least determinable (e.g., “entire harvest of Lot 3 this season” is determinable)

PART V — DRAFTING AND LITIGATION POINTERS (PH PRACTICE)

19) Drafting checklist: make risk allocation unmistakable

For sale of future things, consider stating:

condition: “effective only upon existence/production”
payment timing: “payable upon delivery/harvest”
what happens if none is produced (refund/termination)
what happens if partial production occurs (pro rata price, minimum quantity, right to cancel)
who bears loss from fortuitous events

For sale of hope, consider stating:

explicit assumption of risk by buyer
“no refund even if none is obtained”
description of the enterprise/undertaking that gives the hope substance
representations that there is a genuine chance (and disclosure of material risks)

20) Evidence that usually wins or loses cases

In disputes, outcomes often hinge on:

receipts and payment schedule (paid now vs payable upon delivery)
communications showing intent (messages about refunds, guarantees, “sure harvest,” etc.)
industry custom (e.g., fisheries, agriculture, extraction)
whether seller had control and undertook duties (cultivation/production/procurement)
presence or absence of fraud/misrepresentation

PART VI — COMMON EXAMPLES (WITH CLASSIFICATION)

21) Crops not yet harvested

“I sell you my corn harvest this season; pay upon harvest.” → future thing
“Pay ₱X now for whatever harvest there may be, even if none.” → hope

22) Fish catch

“I sell you 200 kilos of fish to be caught tomorrow.” → usually future thing (and may imply procurement obligation)
“I sell you the entire catch of my trip for ₱X regardless of catch.” → hope

23) Manufacturing output

“I sell you 1,000 units to be manufactured next month.” → often treated as future goods, but may intersect with rules distinguishing sale vs contract for a piece of work depending on the principal nature of obligations.

24) Speculative recovery (salvage/mining exploration)

If payment depends on actual recovery/production → future thing
If payment is fixed regardless of recovery → hope (but ensure it’s not a sham)

PART VII — QUICK FAQ

If the parties didn’t clearly allocate risk, what’s the default? Courts generally infer intent from payment timing, refund terms, and the commercial setup. Ambiguity tends to be resolved by construing the contract according to its nature and evident intent—often leaning away from forcing payment for nothing unless the aleatory assumption is clear.

Can parties “mix” the two concepts? Yes. Contracts can be hybrid: e.g., a base price (hope component) plus additional price per quantity delivered (future thing component). Clarity in drafting is crucial.

Is a sale of hope always valid? Not always. It must involve a real chance, lawful object, and good faith. If it’s a sham, fraudulent, or violates prohibitions (like future inheritance), it can be void or voidable.

Takeaway

Article 1461 legitimizes commerce in what is yet to be—but draws a bright line:

Sale of a future thing: no existence, no sale (buyer generally doesn’t pay).
Sale of hope/expectancy: buyer pays for the chance (even if nothing results), provided the hope is real and lawful.

In Philippine transactions, most disputes are solved by one question: Did the buyer buy the thing-to-come, or did the buyer buy the chance?