Article 1235: Waiver of Incomplete Performance

Article 1235. When the obligee accepts the performance, knowing its incompleteness or irregularity, and without expressing any protest or objection, the obligation is deemed fully complied with.

This Article provides an express rule that an obligee is already estopped from demanding from the obligor further compliance if he accepts an incomplete or irregular compliance of the obligation, knowing fully well that such defect exists. The law deems the obligation fully complied with in this case.

Is this a case of waiver?

Yes, it is. All requisites of a valid waiver are present: (1) the right to demand further compliance exists; (2) the person waiving the right has the capacity to do so (otherwise, he could not have entered into a contract in the first place); (3) the waiver, although not express, is clear, and; (4) the waiver is not contrary to law, public order, public policy, morals or good customs or is prejudicial to third person.

Is this absolute?

No, it is not absolute.

Paras, the great author, in one of his comments on the Civil Code said, "Note that under this Article, there is a possibility that a protest or objection can be made. Hence, there is what is called "qualified acceptance of incomplete or irregular payment." Be it remembered that a creditor who gives a receipt for a partial payment does not necessarily acquiesce to such incomplete payment. His actuation may show his dissatisfaction." Further, Paras said, "Thus, a creditor may conditionally accept performance by the debtor after the time of maturity, but with the stipulation that the surety or the guarantor of the debtor should give CONSENT. This is to prevent the surety or guarantor from later on alleging that the creditor had given an extension of time to the debtor. In this way, the surety or guarantor cannot claim that he has been released from the obligation." (Paras, Civil Code of the Philippines Annotated)