SURIGAO STATE COLLEGE OF

TECHNOLOGY
NARCISO ST. SURIGAO CITY

EXTRACTS FROM THE NEW

CIVIL CODE: OBLIGATIONS
AND CONTRACTS

SUBMITTED BY:

MALICDEM, LYNEL JIM A.

MADELO, VON REINEIR

SUBMITTED TO:

ENGR. ELMARIO PEJAN

 OBLIGATIONS
Definition of Debtors

In general, debtors are the parties who owes debt towards the company.
The parties can be an individual or a company or bank or government agency,
etc. Whenever an entity sells its goods on credit to a person (buyer) or renders
services to a person (receiver of services), then that person is considered as
Debtor and the company is known as a creditor.

Definition of Creditors

Creditors are the parties, to whom the company owes a debt. Here, the
party can be an individual or a company which includes suppliers,
lenders, government, service providers, etc. Whenever the company purchases
goods from another company or services are provided by a person and the
amount is not yet paid. Then that individual or company is regarded as the
creditor.

The Law
 •  Article 1156. An obligation is a juridical necessity to give, to do or not
to do.
Discussion of the Law
•  An obligation is a legal duty, however created, the violation of which
may become the basis of an action of law.

Every obligation has four definite elements, without which no

obligation can exist, to wit: (1) an active subject, also known as the obligee or
creditor, who has the power to demand the prestation; (2) a passive subject,
also known as the debtor, who is bound to perform the prestation; (3) an object
or the prestation, which is an object or undertaking to give, to do or not to do;
(4) The juridical or legal tie, the vinculum which binds the contracting parties

The Law
•  Article. 1157. Obligations arise from:(
• 1) Law;
• (2) Contracts;
• (3) Quasi-contracts;
• (4) Acts or omissions punishable by law; and
• (5) Quasi-delicts.
Discussion of the Law
• There are only two (2) sources of obligations, namely: (1) law; and (2)
contracts because obligations arising from quasi-contracts, crimes (No.
4, Article 1157, Civil Code of the Philippines), and quasi-delicts are
really imposed by law. (Leung Ben vs. O‘Brien,38 Phil. 182).
•  A contract is a ―meeting of the minds between two persons whereby
one binds himself, with respect to the other, to give something or to
render some service.
• Quasi-contract refers to a lawful, voluntary and unilateral act based on
the maxim that no one shall unjustly enrich himself at the expense of
another.
• Civil obligations arising from criminal offenses are governed: (1)
by the provisions of the Revised Penal Code (i.e. restitution, reparation
of the damage caused , indemnification of consequential damages; (2)
by the provisions of the Civil Code on damages (i.e. moral, exemplary
and nominal damages)
• Quasi-delict (also called culpa aquiliana) is any act or omission which
causes damage to another, there being fault or negligence, and there
being no preexisting contractual relation between the parties.
Nature and Effects of Obligations

The following are the rights available to a creditor in obligations to give: If it is

a determinate thing:
1. To compel specific performance
2. To recover damages in case of breach
3. Acquires personal right to the fruits of the thing from the time the
obligation to deliver arises
4. Acquires real right over the thing once the thing has been delivered to
him
5. Rights over the accessories and accessions

If it is a generic thing:
1. To ask for performance of the obligation
2. To ask that the obligation be complied with at the expense of the
debtor. A determinate thing is one that is particularly designated or
physically segregated from all others of the same class. A generic thing
is one whose determination is confined to that of its nature, to the genus
to which it pertains such as a horse, a chair. A contract of sale uses a
determinate thing, while a contract of loan uses a generic thing.

The following are the obligations of the passive subject in:

a) Obligations to give a determinate thing:

1. To deliver the thing which he has obligated himself to give.
2. To take care of the thing with the proper diligence of a good father of a
family.
3. To deliver all its accessories and accessions.
4. To pay damages in case of breach of obligation.
Obligations to do:
1. If the debtor fails to do what he is obliged to do, it will be done at his
expense.
2. If the work is done in contravention of the tenor of the obligation, it
will be re-done at debtor‘s expense.
3. If the work is poorly done, it will be re-done at debtor‘s expense.
The sources of liability (for damages) of a party in an obligation are as
follows:
 1. Fraud. The fraud is incidental fraud (dolo incidente) which is fraud
incident to the performance of an obligation. In fraud, there is an intent
to evade the normal fulfillment of the obligation and to cause damage.
2. Negligence. The negligence referred here, in the case of contracts (i.e.
common carrier) is culpa contractual, the lack of diligence or
carelessness. Negligence consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with
the circumstances of the persons, or the time and of the place
3. Delay (Mora). The debtor can be held liable for the delay or default in
the fulfillment of his obligation only after the creditor has made a demand,
judicial or extrajudicial, on the debtor, except:
• When the law expressly provides that demand is not necessary;
• When the contract expressly stipulates that demand is not necessary;
• When time is of the essence;
• When demand would be useless

4. Contravention of the tenor of the obligation. Performance in

contravention of the tenor or terms of the obligations means where
performance is contrary to what is agreed upon or stipulated thus
making the debtor liable for damages.
Classification of Obligations

(1) Primary classification of obligations under the Civil Code:

(a) Pure and conditional obligations (Articles 1179-1192);
(b) Obligations with a period (Articles 1193-1198);
(c) Alternative (1199-1205) and facultative obligations (Article 1206);
(d) Joint and solidary obligations (Articles 1207-1222);
(e) Divisible and indivisible obligations (Articles 1223-1225); and
(f) Obligations with a penal clause (Articles 1226-1230)

• A pure obligation is one which is not subject to any condition and no

specific date is mentioned for its fulfillment and is, therefore,
immediately demandable.
• A conditional obligation is one whose consequences are subject in one
way or another to the fulfillment of a condition.
• An obligation with a period is one whose consequences are subject in
one way or another to the expiration of the said period or term.
• Joint obligations are those where, although there concur two or more
creditors and debtors, in one and the same obligation, there is no right
 to demand nor a duty on the part of each of the latter to render entire
compliance of the entire obligation.
• Solidary obligations are those in which concur several debtors or
creditors or both, and where each creditor has the right to demand, and
each debtor is bound to perform, in its entirety, the prestation
constituting the object of the obligation.
• An obligation with a penal clause is an obligation which contains an
accessory obligation imposing upon the obligor added burdens or which
operates as a previously stipulated indemnity, for the purpose of
securing the performance of the principal obligation.
(2) Secondary classification of obligations under the Civil Code:
(a) Unilateral and bilateral obligations (Articles 1169-1191);
(b) Real and personal obligations (Articles 1163-1168);
(c) Civil and natural obligations (Articles 1423); and
(d) Legal, conventional, and penal obligations (Articles 1157, 1159, 1161)

The implied power to rescind reciprocal obligations.

The Law
“ART. 1191. The power to rescind obligations is implied in recipral
ones, in case one of the obligors should not comply with what is incumbent
upon him.
“The injured party may choose between the fulfillment and the
rescission of the obligation, with the payment of damages in either case. He
may also seek rescission, even after he has chosen fulfillment, if the latter
should become impossible.
“The courts shall decree the rescission claimed, unless there is a just
cause authorizing the fixing of a period.”

Modes of Extinguishing Obligations

Article 1231. Obligations are extinguished:

i. By payment or performance;
ii. By the loss of the thing due;
iii. By the condonation or remission of the debt;
iv. By the confusion or merger of the rights of the creditor and debtor;
 v. By compensation; and
vi. By novation
Payment or Performance

As a mode of extinguishment, it means fulfillment or performance of the

obligation by:
a) Delivery of money in payment of debt
b) Delivery of the object
c) Performance or non-performance of the prestation in obligations to do
or not to do.
In case of payment made by a third person who has no interest in the
obligation:

a) Without knowledge and consent of the debtor.

I. Creditor is not bound to accept unless there is stipulation to the contrary
II. There is no legal subrogation. Third person cannot collect from the
guarantor if the debtor refuses to pay
III. Third person can only collect from the debtor whatever has been
beneficial to the latter
IV. Third person cannot collect or recover from the debtor if the debt has
already prescribed or has been remitted.
b) With the knowledge and consent of the debtor.
• Legal subrogation takes place and he acquires all the rights of the
creditor against the debtor.
• Example: Payment through credit cards.

Condonation or remission of debt

It is the act of liberality by which the obligee, who receives no price or

equivalent thereof, renounces the enforcement of the obligation which is
extinguished in its entirety or in part or aspect of the same to which the
remission refers.

The requisites of condonation of debt are as follows:

a) Remission must be gratuitous

 b) Obligation must be due and demandable.
c) Debtor must accept.

Confusion or Merger of Rights

It is the meeting in one person the qualities of a creditor and debtor with
respect to the same obligation.
Example: Confusion of rights with respect to a check that is payable to
bearer or ―PAY TO THE ORDER OF CASH.‖

Compensation

This takes place when two persons who, in their own right, are creditors and
debtors of each other. The requisites of a valid compensation are as follows:
1. There are two persons who are creditors and debtors of each other
2. There are two or more debts of the same kind, nature and quality
3. The debts to be compensated are due and demandable
4. There is no retention, controversy or adverse claim over anyone of the
debts to be compensated.
Novation

It is the creation of a new obligation to alter, substitute or replace an

existing obligation, with the intention of extinguishing or modifying the latter
in any of the following ways:

By changing the object of the principal obligation:

Requisites:
a) There is a prior existing obligation
b) There is mutual agreement between the parties to make a new contract.
c) The new contract is also valid. The new contract extinguishes the prior
contract
. By substituting the person of the debtor

• Expromision -- when a third person who has no interest in the obligation and
with the consent of the creditor, takes the place and assumes the obligation of
the original debtor without the latter‘s knowledge and consent.
Delegacion -- when the original debtor recommends to the creditor a third
person to take his place as debtor and assume his obligation, and the creditor
accepts

CONTRACTS
Chapter 1: General Provision
ARTICLE 1305. A contract is a meeting of minds between two persons
whereby one binds himself, with respect to the other, to give something or to
render some service. (1254a)
• The above article gives the definition of a contract. It lays emphasis on
the meeting of minds between two contracting parties which takes place when
an offer by one party is accepted by the other.1 (Art. 1319.) In a contract, one
or more persons bind himself or themselves with respect to another or others,
or reciprocally, to the fulfillment of a prestation to give, to do, or not to do.
ARTICLE 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they are
not contrary to law, morals, good customs, public order, or public policy.
Should not against:
• Law. — It is a fundamental requirement that the contract entered into
must be in accordance with, and not repugnant to, an applicable statute. Its
terms are embodied in every contract.
• Morals deal with norms of good and right conduct evolved in a
community. These norms may differ at different times and places and with
each group of people
• Good customs consist of habits and practices which through long usage
have been followed and enforced by society or some part of it as binding rules
of conduct. It has the force of law when recognized and enforced by law. A
custom must be proved as a fact, according to the rules of evidence.
• Public order refers principally to public safety although it has been
considered to mean also the public weal
• Public policy is broader than public order, as the former may refer not
only to public safety but also to considerations which are moved by the
common good. By public policy is intended that principle of law which holds
that no subject or citizen can lawfully do that which tends to be injurious to the
public or against the public good which may be termed the “policy of the law,’’
or “public policy in relation to the administration of the law.

ARTICLE 1307. Innominate contracts shall be regulated by the stipulations of

the parties, by the provisions of Titles I and II of this Book, by the rules
governing the most analogous nominate contracts, and by the customs of the
place.
• Nominate contract or that which has a specifi c name or designation in
law (e.g., commodatum, lease, agency, sale, etc.); and (2)
• Innominate contract or that which has no specifi c name or designation
in law.
Kinds of innominate contract.
• do ut des (I give that you may give);
• do ut facias (I give that you may do);
• facio ut des (I do that you may give); and
• facio ut facias (I do that you may do).

ARTICLE 1308. The contract must bind both contracting parties; its validity or
compliance cannot be left to the will of one of them. (1256a)
• Both parties, when entering a contract, should agree to terms and
conditions being written or said.
CHAPTER 2: ESSENTIAL REQUISITES OF CONTRACTS
ARTICLE 1318. There is no contract unless the following requisites concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established. (1261)
• The contract will not be complete if what listed below aren’t met.
Before making the contract both obligee and obligor should have consent that
they will be in contract. It should have a valid reason for your contract and the
need of cause of obligation as listed in number 3. The numbers 1-3 should be
strictly followed considering that the absence of any number, the contract is
invalid
Section 1: Consent
ARTICLE 1319. Consent is manifested by the meeting of the offer and the
acceptance upon the thing and the cause which are to constitute the contract.
The offer must be certain and the acceptance absolute. A qualified acceptance
constitutes a counter-offer.

• Consent is the conformity of wills and with respect to contracts, it is the

agreement of the will of one contracting party with that of another or others,
upon the object and terms of the contract.
Section 2: Object of Contracts
ARTICLE 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights which are
not in transmissible may also be the object of contracts.

• The object of a contract is its subject matter. (Art. 1318[2].)

• In reality, the object of every contract is the obligation created. But
since a contract cannot exist without an obligation, it may be said that the
thing, service, or right which is the object of the obligation is also the object of
the contract.
Section 3: Cause of Contracts
ARTICLE 1350. In onerous contracts the cause is understood to be, for each
contracting party, the prestation or promise of a thing or service by the other; in
remuneratory ones, the service or benefit which is remunerated; and in
contracts of pure beneficence, the mere liberality of the benefactor.
• The form of a contract refers to the manner in which a contract is
executed or manifested.

Chapter 3: Form of Contracts

ARTICLE 1356. Contracts shall be obligatory, in whatever form they may
have been entered into, provided all the essential requisites for their validity are
present. However, when the law requires that a contract be in some form in
order that it may be valid or enforceable, or that a contract be proved in a
certain way, that requirement is absolute and indispensable. In such cases, the
right of the parties stated in the following article cannot be exercised.
• The form of a contract refers to the manner in which a contract is
executed or manifested.
ARTICLE 1357. If the law requires a document or other special form, as in the
acts and contracts enumerated in the following article, the contracting parties
may compel each other to observe that form, once the contract has been
perfected. This right may be exercised simultaneously with the action upon the
contract.
• In certain cases, a certain form (e.g., public instrument) is required for
the convenience of the parties in order that the contract may be registered in the
proper registry to make effective, as against third persons, the right acquired
under such contract. Non-compliance with the required form would not
adversely affect the validity nor enforceability of the contract between the
parties themselves.
Chapter 4: Reformation of Instruments
ARTICLE 1359. When, there having been a meeting of the minds of the parties
to a contract, their true intention is not expressed in the instrument purporting
to embody the agreement, by reason of mistake, fraud, inequitable conduct or
accident, one of the parties may ask for the reformation of the instrument to the
end that such true intention may be expressed.
• Reformation is that remedy by means of which a written instrument is
amended or rectified so as to express or conform to the real agreement or
intention of the parties when by reason of mistake, fraud, inequitable conduct,
or accident, the instrument fails to express such agreement or intention
ARTICLE 1362. If one party was mistaken and the other acted fraudulently or
inequitably in such a way that the instrument does not show their true
intention, the former may ask for the reformation of the instrument.
• Reformation is granted when the mistake is mutual. Clearly, a unilateral
mistake in the making of an agreement, of which the other party is entirely
ignorant and to which he in no way contributes, will not affect the agreement
or afford ground for its reformation.
• In other words, a party to a contract cannot avoid it on the ground that
he made a mistake where there has been no misrepresentation, there is no
ambiguity in the terms of the contract, and the other party has no notice of such
mistake and acts in perfect in good faith.
Chapter 5: Interpretation of Contacts
ARTICLE 1370. If the terms of a contract are clear and leave no doubt upon
the intention of the contracting parties, the literal meaning of its stipulations
shall control.
• Interpretation of a contract is the determination of the meaning of the
terms or words used by the parties in their contract.
• Determining the intent of the parties is usually what courts say it is
when they interpret a contract’s language in particular cases.
• Valid and enforceable contracts, being the private laws of the
contracting parties, should be fulfilled according to the literal sense of their
stipulations as they appear on the face of the contract. The words used therein
should be given their natural and ordinary meaning unless a technical meaning
was intended.
ARTICLE 1371. In order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally considered.
• While intentions involve a state of mind which may sometimes be diffi
cult to decipher, the acts of the parties as well as the evidentiary facts as proved
and admitted can be refl ective of one’s intention. (Sarming vs. Dy, 383 SCRA
131 [2002].) The real nature of a contract may be determined not only from the
express terms of the written agreement but also by all the surrounding
circumstances to prove the intention of the parties thereto.
ARTICLE 1372. However general the terms of a contract may be, they shall
not be understood to comprehend things that are distinct and cases that are
different from those upon which the parties intended to agree.
• As a rule, where in a contract there are general and special provisions
covering the same subject matter are inconsistent, the latter shall be paramount
to and control over the former when the two cannot stand together.
• The reason for this rule is that when the parties express themselves in
reference to a particular matter, the attention is directed to that, and it must be
assumed that it expresses their intent; whereas, a reference to some general
matter, within which the particular matter may be included, does not
necessarily indicate that the parties had that particular matter in mind.
Chapter 6: Rescissble Contracts
ARTICLE 1380. Contracts validly agreed upon may be rescinded in the cases
established by law.
• Rescission is an equitable remedy granted by law to the contracting
parties and sometimes even to third persons in order to secure reparation of
damages caused them by a valid contract,2 by means of the restoration of
things to their condition prior to the celebration of said contract.
• Rescissible contracts are those validly agreed upon because all the
essential elements exist and, therefore, legally effective, but in the cases
established by law, the remedy of rescission is granted in the interest of equity
ARTICLE 1382. Payments made in a state of insolvency for obligations to
whose fulfillment the debtor could not be compelled at the time they were
effected, are also rescissible.
• The present article speaks of “payments” not exactly of a contract. A
debtor is insolvent if he does not have sufficient properties to meet his
obligations. It is not necessary that debtor’s insolvency be judicially declared.
• Under this article, the payments must have been made “for obligations
to whose fulfi llment the debtor could not be compelled at the time they were
effected.” Such payments are also rescissible.6 Included in the obligations
referred to are not only those that have not yet become due and demandable
(i.e., obligations with a suspensive period or condition) but also those which
cannot legally be demanded such as natural obligations and those that have
prescribed.
Chapter 7: Voidable Contracts
ARTICLE 1390. The following contracts are voidable or annullable, even
though there may have been no damage to the contracting parties:
(1) Those where one of the parties is incapable of giving consent to a contract;
(2) Those where the consent is vitiated by mistake, violence, intimidation,
undue influence or fraud.
• Voidable or annullable contracts are those which possess all the
essential requisites of a valid contract but one of the parties is legally incapable
of giving consent, or consent is vitiated by mistake, violence, intimidation,
undue influence, or fraud.
ARTICLE 1391. The action for annulment shall be brought within four years.
• Direct court action is necessary to annul avoidable contract, and until
annulled or set aside by the court, a party cannot relieve himself from the
obligations arising therefrom. A voidable contract may be collaterally attacked
by way of defense to an action under the contract
Chapter 8: Unenforceable Contracats
ARTICLE 1403. The following contracts are unenforceable, unless they are
ratified:
(1) Those entered into in the name of another person by one who has been
given no authority or legal representation, or who has acted beyond his powers;
(2) Those that do not comply with the Statute of Frauds as set forth in this
number. In the following cases an agreement hereafter made shall be
unenforceable by action, unless the same, or some note or memorandum,
thereof, be in writing, and subscribed by the party charged, or by his agent;
evidence, therefore, of the agreement cannot be received without the writing, or
a secondary evidence of its contents:
(a) An agreement that by its terms is not to be performed within a year from the
making thereof;
(b) A special promise to answer for the debt, default, or miscarriage of another;
(c) An agreement made in consideration of marriage, other than a mutual
promise to marry;
(d) An agreement for the sale of goods, chattels or things in action, at a price
not less than five hundred pesos, unless the buyer accept and receive part of
such goods and chattels, or the evidences, or some of them, of such things in
action, or pay at the time some part of the purchase money; but when a sale is
made by auction and entry is made by the auctioneer in his sales book, at the
time of the sale, of the amount and kind of property sold, terms of sale, price,
names of the purchasers and person on whose account the sale is made, it is a
sufficient memorandum;
(e) An agreement for the leasing for a longer period than one year, or for the
sale of real property or of an interest therein;
(f) A representation as to the credit of a third person.
(3) Those where both parties are incapable of giving consent to a contract.
• Unenforceable contracts are those that cannot be enforced in court or
sued upon by reason of defects provided by law until and unless they are ratifi
ed according to law.
• Unauthorized contracts are those entered into in the name of another
person by one who has been given no authority or legal representation or who
has acted beyond his powers
• While rescissible and voidable contracts are valid and enforceable
unless they are rescinded or annulled, unenforceable contracts, although valid,
are unenforceable unless they are ratifi ed. The mere lapse of time cannot give
effect to such a contract. The defect is of a permanent nature and will exist as
long as the unenforceable contract is not duly ratifi ed by the person in whose
name the contract was executed.
• The term “statute of frauds’’ is descriptive of statutes which require
certain classes of contracts to be in writing. This statute does not deprive the
parties of the right to contract with respect to the matters therein involved, but
merely regulates the formalities of the contract necessary to render it
enforceable. The effect of non-compliance is simply that no action can proved
unless the requirement is complied with.
ARTICLE 1404. Unauthorized contracts are governed by article 1317 and the
principles of agency in Title X of this Book.
ARTICLE 1405. Contracts infringing the Statute of Frauds, referred to in No. 2
of article 1403, are ratified by the failure to object to the presentation of oral
evidence to prove the same, or by the acceptance of benefits under them.
• The ratifi cation of contracts infringing the Statute of Frauds may be
effected in two ways:

(1) by failure to object to the presentation of oral evidence to prove the

contract. The failureto so object amounts to a waiver and makes the contract as
binding as if it had been reduced to writing.
(2) by acceptance of benefits under the contract. In this case, the
contract is no longer executory and, therefore, the Statute does not apply. This
rule is based upon the familiar principle that one who has enjoyed the benefits
of a transaction should not be allowed to repudiate its burdens. It is also an
indication of a party’s consent to the contract as when he accepts partial
payment or delivery of the thing sold thereby precluding him from
rejecting its binding effect.

Chapter 9: Void or Inexistent Contracts

ARTICLE 1409. The following contracts are inexistent and void from the
beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal object of
the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
• Void contracts are those which, because of certain defects, generally
produce no effect at all. They are considered as inexistent from its inception or
from the very beginning.
• The expression ‘‘void contract” is, therefore, a contradiction in terms.
However, the expression is often loosely used to refer to an agreement tainted
with illegality.
• inexistent contracts refer to agreements which lack one or some or all of
the elements (i.e., consent, object, and cause) or do not comply with the
formalities which are essential for the existence of a contract.
ARTICLE 1410. The action or defense for the declaration of the inexistence of
a contract does not prescribe.
• This action or defense should not be confused with an action for the
annulment of a voidable contract.
• (1) Action or defense imprescriptible. — If a contract is void, a party
thereto can always bring a court action to declare it void or inexistent; and a
party against whom a void contract is sought to be enforced, can always raise
the defense of nullity, despite the passage of time. The defect being permanent
and incurable, the action or defense does not prescribe.
• (2) Necessity of judicial declaration. — Since a void contract has no
effect at all, it is, therefore, unnecessary to bring an action to declare it void. It
is well within the right of a party to unilaterally cancel and treat as avoided a
void contract. In fact, such action cannot logically exist. However, an action to
declare the non-existence of the contract can be maintained and in the same
action, the plaintiff may recover what he has given by virtue of the contract. It
is better that a judicial declaration of nullity be secured not only to give peace
of mind to the parties but also to avoid the taking of the law into their own
hands.
• (3) Rule where contract not void but merely voidable. — Voidable
contracts can only be annulled by a proper action in court. (Art. 1390, last par.)
within four (4) years from the time the cause of action accrues. (Art. 1391.) In
an action to enforce a voidable contract, the defendant cannot attack its validity
by way of defense and then ask for its annulment. But he can do so in a
counterclaim because it is in the nature of a complaint