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VOL. 2, MAY 19, 1903 309

Eleizegui vs. Manila Lawn Tennis Club

[No. 967. May 19, 1903.]

DARIO AND GAUDENCIO ELEIZEGUI, plaintiffs and appellees,

vs. THE MANILA LAWN TENNIS CLUB, defendant and
appellant.

1. REAL PROPERTY; LEASE; CONVENTIONAL AND LEGAL

TERM.—Article 1581 of the Civil Code, fixing legal terms for
leases in which no conventional term is stipulated, has no
application to a lease whose termination is expressly left to the will
of the lessee.

2. ID.; ID.; TERM AT WILL OF LESSEE.—The term of a lease

whose termination is expressly left to the will of the lessee must be
fixed by the courts according to the character and conditions of the
mutual undertakings, in an action brought for that purpose, in
accordance with article 1128 of the Civil Code.

3. OBLIGATIONS; CONTRACTS; GENERAL PROVISIONS.—

The general principles established by the Civil Code with respect to
obligations and contracts are applicable to contracts of all kinds.

Per WILLARD, J., concurring:

4. REAL PROPERTY; LEASE; CONVENTIONAL AND LEGAL

TERM.—Article 1128 of the Civil Code has no application to a
lease whose termination is left to the will of the lessee; such lease
in favor of a natural person creates an estate which may amount to
a life tenancy and in favor of a judicial person may endure until the
dissolution of the entity or until terminated by breach of some
condition of the contract.

APPEAL from a judgment of the Court of First Instance of Manila.

The facts are stated in the opinion of the court.
Pillsbury & Sutro, for appellant.
Manuel Torres, Vergara, for appellee.

ARELLANO, C. J.:

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This suit concerns the lease of a piece of land for a fixed

consideration and to endure at the will of the lessee. By the contract
of lease the lessee is expressly authorized to make improvements
upon the land, by erecting buildings of both permanent and
temporary character, by making fills, laying pipes, and making such
other improvements as might be considered desirable for the comf
ort and amusement of the members.

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Eleizegui vs. Manila Lawn Tennis Club

With respect to the term of the lease the present question has arisen.
In its discussion three theories have been presented: One which
makes the duration depend upon the will of the lessor, who, upon
one month's notice given to the lessee, may terminate the lease so
stipulated; another which, on the contrary, makes it dependent upon
the will of the lessee, as stipulated; and the third, in accordance with
which the right is reserved to the courts to fix the duration of the
term.
The first theory is that which has prevailed in the judgment
below, as appears from the language in which the basis of the
decision is expressed: "The court is of the opinion that the contract
of lease was terminated by the notice given by the plaintiffs on
August 28 of last year * * *." And such is the theory maintained by
the plaintiffs, which expressly rests upon article 1581 of the Civil
Code, the law which was in force at the time the contract was
entered into (January 25, 1890). The judge, in giving to this notice
the effect of terminating the lease, undoubtedly considers that it is
governed by the article relied upon by the plaintiffs, which is of the
following tenor: "When the term has not been fixed for the lease, it
is understood to be for years when an annual rental has been fixed,
for months when the rent is monthly * * *." The second clause of the
contract provides as follows: "The rent of the said land is fixed at 25
pesos per month." (P. 11, Bill of Exceptions.)
In accordance with such a theory, the plaintiffs might have
terminated the lease the month following the making of the contract
—at any time after the first month, which, strictly speaking, would
be the only month with respect to which they were expressly bound,
they not being bound for each successive month except by a tacit
renewal (art. 1566)—an effect which they might prevent by giving
the required notice.
Although the relief asked for in the complaint, drawn in
accordance with the new form of procedure established by the
prevailing Code, is the restitution of the land to the plaintiffs (a
formula common to various actions), nevertheless the action which
is maintained can be no other
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Eleizegui vs. Manila Lawn Tennis Club

than that of desahucio, in accordance with the substantive law

governing the contract. The lessor—says article 1569 of the Civil
Code—may judicially dispossess the lessee upon the expiration of
the conventional term or of the legal term; the conventional term—
that is, the one agreed upon by the parties; the legal term, in defect
of the conventional, fixed for leases by articles 1577 and 1581. We
have already seen what this legal term is with respect to urban
properties, in accordance with article 1581.
Hence, it follows that the judge has only to determine whether
there is or is not a conventional term. If there be a conventional
term, he can not apply the legal term fixed in subsidium to cover a
case in which the parties have made no agreement whatsoever with
respect to the duration of the lease. In this case the law interprets the
presumptive intention of the parties, they having said nothing in the
contract with respect to its duration. "Obligations arising from
contracts have the force of law between the contracting parties and
must be complied with according to the tenor of the contracts." (Art.
1091 of the Civil Code.)
The obligations which, with the force of law, the lessors assumed
by the contract entered into, so far as pertaining to the issues, are the
following: "First. * * * They lease the above-described land to Mr.
Williamson, who takes it on lease, * * * for all the time the members
of the said club may desire to use it * * * Third. * * * the owners of
the land undertake to maintain the club as tenant as long as the
latter shall sec fit, without altering in the slightest degree the
conditions of this contract, even though the estate be sold."
It is necessary, therefore, to answer the first question: Was there,
or was there not, a conventional term, a duration, agreed upon in the
contract in question? If there was an agreed duration, a conventional
term, then the legal term—the term fixed in article 1581—has no
application; the contract is the supreme law of the contracting
parties. Over and above the general law is the special law, expressly
imposed upon themselves by the contracting parties. Without these
clauses 1 and 3, the contract would contain no

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stipulation with respect to the duration of the lease, and then article
1581, in connection with article 1569, would necessarily be
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applicable. In view of these clauses, however, it can not be said that

there is no stipulation with respect to the duration of the lease, or
that, notwithstanding these clauses, article 1581, in connection with
article 1569, can be applied. If this were so, it would be necessary to
hold that the lessors spoke in vain—that their words are to be
disregarded—a claim which can not be advanced by the plaintiffs
nor upheld by any court without citing the law which detracts all
legal force from such words or despoils them of their literal sense.
It having been demonstrated that the legal term can not be
applied, there being a conventional term, this destroys the
assumption that the contract of lease was wholly terminated by the
notice given by the plaintiffs, this notice being necessary only when
it becomes necessary to have recourse to the legal term. Nor had the
plaintiffs, under the contract, any right to give such notice. It is
evident that they had no intention of stipulating that they reserved
the right to give such notice. Clause 3 begins as follows: "Mr.
Williamson, or whoever may succeed him as secretary of said club,
may terminate this lease whenever desired without other formality
than that of giving a month's notice. The owners of the land
undertake to maintain the club as tenant as long as the latter shall see
fit." The right of the one and the obligation of the others being thus
placed in antithesis, there is something more, much more, than the
inclussio unius, exclussio alterius. It is evident that the lessors did
not intend to reserve to themselves the right to rescind that which
they expressly conferred upon the lessee by establishing it
exclusively in favor of the latter.
It would be the greatest absurdity to conclude that in a contract
by which the lessor has left the termination of the lease to the will of
the lessee, such a lease can or should be terminated at the will of the
lessor.
It would appear to follow, from the foregoing, that, if such is the
force of the agreement, there can be no other mode of terminating
the lease than by the will of the lessee,

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Eleizegui vs. Manila Lawn Tennis Club

as stipulated in this case. Such is the conclusion maintained by the

defendant in the demonstration of the first error of law in the
judgment, as alleged by him. He goes so far, under this theory, as to
maintain the possibility of a perpetual lease, either as such lease, if
the name can be applied, or else as an innominate contract, or under
any other denomination, in accordance with the agreement of the
parties, which is, in fine, the law of the contract, superior to all other
law, provided that there be no agreement against any prohibitive
statute, morals, or public policy.
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It is unnecessary here to enter into a discussion of a perpetual

lease in accordance with the law and doctrine prior to the Civil Code
now in force, and which has been operative since 1889. Hence the
judgment of the supreme court of Spain of January 2, 1891, with
respect to a lease made in 1887, cited by the defendant, and a
decision stated by him to have been rendered by the Audiencia of
Pamplona in 1885 (it appears to be rather a decision by the head
office of land registration of July 1, 1885), and any other decision
which might be cited based upon the constitutions of Cataluña,
according to which a lease of more than ten years is understood to
create a life tenancy, or even a perpetual tenancy, are entirely out of
point in this case, in which the subject-matter is a lease entered into
under the provisions of the present Civil Code, in accordance with
the principles of which alone can this doctrine be examined.
It is not to be understood that we admit that the lease entered into
was stipulated as a life tenancy, and still less as a perpetual lease.
The terms of the contract express nothing to this effect. They do,
however, imply this idea. If the lease could last during such time as
the lessee might see fit, because it has been so stipulated by the
lessor, it would last, first, as long as the will of the lessee—that is,
all his life; second, during all the time that he may have succession,
inasmuch as he who contracts does so for himself and his heirs. (Art.
1257 of the Civil Code.) The lease in question does not fall within
any of the cases in which the rights and obligations arising from a
contract

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Eleizegui vs. Manila Lawn Tennis Club

can not be transmitted to heirs, either by its nature, by agreement, or

by provision of law. Furthermore, the lessee is an English
association.
Usufruct is a right of superior degree to that which arises from a
lease. It is a real right and includes all the jus utendi and jus fruendi.
Nevertheless, the utmost period for which a usufruct can endure, if
constituted in favor of a natural person, is the lifetime of the
usufructuary (art. 513, sec. 1); and if in favor of a juridical person, it
can not be created for more than thirty years. (Art. 515. If the lease
might be perpetual, in what would it be distinguished from an
emphyteusis? Why should the lessee have a greater right than the
usufructuary, as great as that of an emphyteuta, with respect to the
duration of the enjoyment of the property of another? Why did they
not contract for a usufruct or an emphyteusis? It was repeatedly
stated in the document that it was a lease, and nothing but a lease,
which was agreed upon: "Being in the full enjoyment of the
necessary legal capacity to enter into this contract of lease * * * they
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have agreed upon the lease of said estate * * * They lease to Mr.
Williamson, who receives it as such * * * The rental is fixed at 25
pesos a month. * * * The owners bind themselves to maintain the
club as tenant. * * * Upon the foregoing conditions they make the
present contract of lease. * * *" (Pp. 9. 11, and 12, bill of
exceptions.) If it is a lease, then it must be for a determinate period.
(Art. 1543.) By its very nature it must be temporary, just as by
reason of its nature an emphyteusis must be perpetual, or for an
unlimited period. (Art. 1608.)
On the other hand, it can not be concluded that the termination of
the contract is to be left completely at the will of the lessee, because
it has been stipulated that its duration is to be left to his will.
The Civil Code has made provision for such a case in all kinds of
obligations. In speaking in general of obligations with a term it has
supplied the deficiency of the former law with respect to the
"duration of the term

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Eleizegui vs. Manila Lawn Tennis Club

when it has been left to the will of the debtor," and provides that in
this case the term shall be fixed by the courts. (Art. 1128, sec. 2.) In
every contract, as laid down by the authorities, there is always a
creditor who is entitled to demand the performance, and a debtor
upon whom rests the obligation to perform the undertaking. In
bilateral contracts the contracting parties are mutually creditors and
debtors. Thus, in this contract of lease, the lessee is the creditor with
respect to the rights enumerated in article 1554, and is the debtor
with respect to the obligations imposed by articles 1555 and 1501.
The term within which performance of the latter obligation is due is
what has been left to the will of the debtor. This term it is which
must be fixed by the courts.
The only action which can be maintained under the terms of the
contract is that by which it is sought to obtain from the judge the
determination of this period, and not the unlawful detainer action
which has been brought—an action which presupposes the
expiration of the term and makes it the duty of the judge to simply
decree an eviction. To maintain the latter action it is sufficient to
show the expiration of the term of the contract, whether
conventional or legal; in order to decree the relief to be granted in
the former action it is necessary for the judge to look into the
character and conditions of the mutual undertakings with a view to
supplying the lacking element of a time at which the lease is to
expire. In the case of a loan of money or a commodatum of furniture,
the payment or return to be made when the borrower "can
conveniently do so" does not mean that he is to be allowed to enjoy
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the money or to make use of the thing indefinitely or perpetually.

The courts will fix in each case, according to the circumstances, the
time for the payment or return. This is the theory also maintained by
the defendant in his demonstration of the fifth assignment of error.
"Under article 1128 of the Civil Code," thus his proposition
concludes, "contracts whose term is left to the will of one of the
contracting parties must be fixed by the courts, * * * the condition as
to the term of this lease has a direct legislative sanction," and he
cites article 1128.

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"In place of the ruthless method of annihilating a solemn obligation,

which the plaintiffs in this case have sought to pursue, the Code has
provided a legitimate and easily available remedy. * * * The Code
has provided for the proper disposition of those covenants, and a
case can hardly arise more clearly demonstrating the usefulness of
that provision than the case at bar." (Pp. 52 and 53 of appellant's
brief.)
The plaintiffs, with respect to this conclusion on the part of their
opponents, only say that article 1128 "expressly refers to obligations
in contracts in general, and that it is well known that a lease is
included among special contracts." But they do not observe that if
contracts, simply because special rules are provided for them, could
be excepted from the provisions of the articles of the Code relative
to obligations and contracts in general, such general provisions
would be wholly without application. The system of the Code is that
of establishing general rules applicable to all obligations and
contracts, and then special provisions peculiar to each species of
contract. In no part of Title VI of Book IV, which treats of the
contract of lease, are there any special rules concerning pure or
conditional obligations which may be stipulated in a lease, because,
with respect to these matters, the provisions of section 1, chapter 3,
Title I, on the subject of obligations, are wholly sufficient. With
equal reason should we refer to section 2, which deals with
obligations with a term, in the same chapter and title, if a question
concerning the term arises out of a contract of lease, as in the present
case, and within this section we find article 1128, which decides the
question.
The judgment was entered below upon the theory of the
expiration of a legal term which does not exist,. as the case requires
that a term be fixed by the courts under the provisions of article
1128 with respect to obligations which, as is the present, are
terminable at the will of the obligee. It follows, therefore, that the
judgment below is erroneous.
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The judgment is reversed and the case will be remanded to the

court below with directions to enter a judgment of

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Eleizegui vs. Manila Lawn Tennis Club

dismissal of the action in favor of the defendant, the Manila Lawn

Tennis Club, without special allowance as to the recovery of costs.
So ordered.

Mapa and Ladd, JJ., concur.

Torres, J., disqualified.

WILLARD, J., concurring:

I concur in the foregoing opinion so far as it holds that article 1581

has no application to the case and that the action can not be
maintained. But as to the application of article 1128 I do not concur.
That article is as follows:

"Should the obligation not fix a period, but it can be inferred from its nature
and circumstances that there was an intention to grant it to the debtor, the
courts shall fix the duration of the same.
"The court shall also fix the duration of the period when it may have
been left to the will of the debtor."

The court has applied the last paragraph of the article to the case of a
lease. But, applying the first paragraph to leases, we have a direct
conflict between this article and article 1581. Let us suppose the
lease of a house for 50 pesos a month. Nothing is said about the
number of months during which the lessee shall occupy it. If article
1581 is applicable to this case, the law fixes the duration of the term
and the courts have no power to change it. If article 1128 is applied
to it, the courts fix the duration of the lease without reference to
article 1581. It will, I think, be agreed by everyone that article 1581
is the law applicable to the case, and that article 1128 has nothing to
do with it.
It seems clear that both parts of the article must refer to the same
kind of obligations. The first paragraph relates to obligations In
which the parties have named no period, the second to the same kind
of obligations in which the period is left to the will of the debtor. If
the first paragraph is not applicable to leases, the second is not.
The whole article was, I think, intended to apply generally to
unilateral contracts—to those in which the creditor had parted with
something of value, leaving it to the debtor to say when it should be
returned. In such cases the debtor might never return it, and the
creditor might
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thus be deprived of his property and entirely defeated in his rights. It

was to prevent such a wrong that the article was adopted. But it has
no application to this case. The plaintiffs are not deprived of their
rights. They get every month the value which they themselves put
upon the use of the property. The time for the payment of this rent
has not been left by the contract to the will of the debtor. It is
expressly provided in the contract that it shall be paid "within the
first five days after the expiration of each month."
Article 1255 of the Civil Code is as follows:

"The contracting parties may make the agreement and establish the clauses
and conditions which they may deem advisable, provided they are not in
contravention of law, morals, or public order."

That the parties to this contract distinctly agreed that the defendant
should have this property so long as he was willing to pay 25 pesos a
month for it, is undisputed.
I find nothing in the Code to show that when a natural person is
the tenant such an agreement would be contrary to law, morality, or
public policy. In such a case the contract would terminate at the
death of the tenant. Such is the doctrine of the French Cour de
Cassation. (Houet vs. Lamarge, July 20, 1840.)
The tenant is the only person who has been given the right to say
how long the contract shall continue. That right is personal to him,
and is not property in such a sense as to pass to his heirs.
In this case the question is made more difficult by the fact that
the tenant is said to be a juridical person, and it is said that the lease
is therefore a perpetual one. Just what kind of a partnership or
association the defendant is does not appear, and without knowing
what kind of an entity it is we can not say that this contract is a
perpetual lease. Even if the defendant has perpetual succession, the
lease would not necessarily last forever. A breach of any one of the
obligations imposed upon the lessee by article 1555 of the Civil
Code would give the landlord the right to terminate it.
Judgment reversed.
319

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