1. Overview
A potestative condition is a contractual or testamentary condition whose fulfillment depends upon the will of one party. Under Article 1182 of the Civil Code, if the condition “depends upon the sole will of the debtor, the conditional obligation shall be void.” The rule is designed to prevent illusory obligations and to preserve the principle of mutuality under Article 1308, which requires that neither party’s compliance be left entirely to the whim of the other. (BOOK IV (FULL TEXT) : CIVIL CODE OF THE PHILIPPINES)
2. Statutory Bases
| Civil-Code Article | Key rule | Practical effect |
|---|---|---|
| 1182 | Suspensive condition dependent solely on the debtor → obligation void. | No obligation ever arises. |
| 1182, 2nd sentence | If the condition depends on chance or a third person, obligation takes effect. | “Casual” and “mixed” conditions are valid. |
| 1180 | “When my means permit” creates a period, not a condition. | Court may fix the period (Art. 1197). |
| 1193–1194 | Distinguish suspensive vs. resolutory conditions. | Effects on existing rights differ. |
| 1308 | Mutuality of contracts. | Potestative stipulations offend mutuality. |
3. Classes of Conditions in Philippine law
- By cause of fulfillment
- Potestative – will of a party
- Casual – chance/fortuitous event
- Mixed – will of a party + chance/third person
- By timing
- Suspensive (condition precedent) – obligation arises only if condition happens.
- Resolutory (condition subsequent) – existing obligation extinguished if condition happens.
A condition can be both suspensive and potestative (e.g., “I will pay you if I feel like it”). (ARTICLE 1182 - Oblicon 2017 - WordPress.com)
4. Purely vs. Partly (Mixed) Potestative
| Type | Depends on | Result |
|---|---|---|
| Purely potestative, suspensive, debtor-controlled | Sole will of debtor | Entire obligation void (Art. 1182 ¶1). |
| Purely potestative, creditor-controlled | Sole will of creditor | Generally valid; threatens only debtor, not creditor, so no illusory promise. |
| Mixed | Will of a party and chance/third person | Valid. Example: “I will sell if my parents approve.” (G.R. No. 146839 - LawPhil) |
5. Effect of Invalid Potestative Conditions
- Before an obligation is born (suspensive):
The whole obligation is inexistent.
Example: an owner promises to donate land if he later decides to do so. - After an obligation is born (resolutory or condition to perform):
Only the condition is struck out; the obligation remains pure. This doctrine was reaffirmed in Gemudiano v. Naess Shipping (G.R. 223825, 20 Jan 2020). (G.R. No. 223825 - LUIS G. GEMUDIANO, JR., PETITIONER, VS. NAESS SHIPPING PHILIPPINES, INC. AND/OR ROYAL DRAGON OCEAN TRANSPORT, INC. AND/OR PEDRO MIGUEL F. OCA, RESPONDENTS. D E C I S I O N - Supreme Court E-Library)
6. Key Supreme Court Jurisprudence
| Case | G.R. No. / Date | Pronouncement |
|---|---|---|
| Hermosa v. Longara | L-5267, 27 Oct 1953 | Condition was mixed, not purely potestative, because sale of property also depended on finding a buyer. (G.R. No. L-5267 October 27, 1953 - LUZ HERMOSA, ET AL. v ...) |
| Naga Tel. Co. v. CA | 300 Phil. 367 (1994) | Defined “potestative”; voids suspensive obligations based solely on debtor’s whim. |
| Romero v. CA | 320 Phil. 269 (1995) | If potestative condition is attached after perfection, only the condition is void. |
| Rustan Pulp v. IAC | 289 Phil. 279 (1992) | Same doctrine; court simply “excises” the potestative clause. |
| Perez v. CA | G.R. 112329, 28 Jan 2000 | Re-applied Art. 1182 to strike down debtor-controlled suspensive clause. (Potestative conditions in contracts - Lawyers in the Philippines) |
| Gemudiano v. Naess Shipping | G.R. 223825, 20 Jan 2020 | “Boarding-confirmation” clause held purely potestative; labor case revived after excising clause. (G.R. No. 223825 - LUIS G. GEMUDIANO, JR., PETITIONER, VS. NAESS SHIPPING PHILIPPINES, INC. AND/OR ROYAL DRAGON OCEAN TRANSPORT, INC. AND/OR PEDRO MIGUEL F. OCA, RESPONDENTS. D E C I S I O N - Supreme Court E-Library) |
| Rafael v. Heirs of María Rafael | G.R. 252073, 18 Jul 2022 | Construed deed so as not to turn an approval clause into a potestative condition; courts lean toward validity. (G.R. No. 252073 - LawPhil) |
| Mistica v. Naguiat | G.R. 137909, 31 Jan 2002 | Debtor-controlled suspensive clause void; reiterated doctrine against “whims of the debtor.” (G.R. No. 137909 - FIDELA DEL CASTILLO VDA. DE MISTICA ...) |
Trend: Recent cases (2020–2024) emphasize severability—courts excise the invalid clause rather than void the whole contract when possible, in line with modern contractual fairness.
7. Potestative Conditions in Particular Contracts
| Sector | Illustrative clause | Result |
|---|---|---|
| Real estate | “Buyer will pay once he finishes negotiating a right-of-way.” | Mixed, valid—depends on third-party landowners. (G.R. No. 146839 - LawPhil) |
| Option/earnest-money | “Seller may cancel at any time.” | Purely potestative (creditor’s will); usually void for mutuality unless balanced by reciprocal right. |
| Employment/Seafaring | “Employment starts only when Master issues boarding card.” | Purely debtor (employer) potestative; clause void, but employment still perfected (Gemudiano). (G.R. No. 223825 - LUIS G. GEMUDIANO, JR., PETITIONER, VS. NAESS SHIPPING PHILIPPINES, INC. AND/OR ROYAL DRAGON OCEAN TRANSPORT, INC. AND/OR PEDRO MIGUEL F. OCA, RESPONDENTS. D E C I S I O N - Supreme Court E-Library) |
| Donations | Donation “shall be revoked at donor’s pleasure.” | Suspensive → donation void; Resolutory → clause ignored, donation stands. |
| Testamentary succession | “Heir gets ₱1 M if he obeys all my future wishes.” | Art. 873–879 apply; purely potestative conditions in wills are generally void if they are impossible or illegal, but mixed conditions allowed. (Understanding testamentary succession - Business Inquirer) |
8. Distinguishing a Potestative Condition from a Period
“I will pay you when I have the money” is not a potestative condition. Under Article 1180, it is an obligation with a period whose duration depends on the debtor’s finances; if parties disagree the court fixes the period (Art. 1197). Hence the obligation is valid and demandable once the court intervenes. ([PDF] OBLIGATIONS AND CONTRACTS REVIEWER - PINAY JURIST)
9. Interaction with Other Civil-Law Doctrines
- Mutuality (Art. 1308). A clause giving one party unilateral power to cancel or perform violates mutuality and is struck down even if not technically within Art. 1182. (OBLIGATIONS AND CONTRACTS — Bar - Respicio & Co. Law Firm)
- Severability (Art. 1390, 1420). If the invalid condition is separable, courts preserve the contract.
- Reformation vs. Nullity. Courts prefer reformation (Art. 1359) or partial nullity over total voiding.
10. Drafting & Compliance Tips
| Goal | Practical drafting technique |
|---|---|
| Avoid Art. 1182 nullity | Make the triggering event objective or dependent on a third-party certification (e.g., architect’s sign-off, bank loan approval). |
| Preserve mutuality | Give reciprocal rights (e.g., either party may rescind upon 30 days’ notice). |
| Severability | Insert a clause that any invalid condition shall be deemed not written without affecting the rest. |
| Litigation risk | Keep records showing the condition also relies on factual contingencies (makes it “mixed”). |
11. Comparative Note
The Philippine rule is inherited from the Spanish Civil Code (Art. 1115). Other civil-law jurisdictions (Spain, France) likewise void suspensive debtor-potestative conditions, but the Common-law approach treats them as “illusory promises” subject to consideration doctrine rather than a specific code provision.
12. Conclusion
A potestative condition becomes fatal only when it is (1) suspensive and (2) depends solely on the debtor’s will. Contemporary jurisprudence shows a clear judicial preference for salvaging the parties’ bargain—courts surgically remove the invalid stipulation, uphold the rest of the contract, and restore balance through Article 1308. Lawyers should draft conditions with objective or third-party referents, mirror rights on both sides, and include severability clauses to avoid the potestative pitfall.
This discussion is for academic information only and does not constitute legal advice. For case-specific guidance, consult Philippine counsel.