EQUATORIAL REALTY vs.

MAYFAIR
264 scra 482
FACTS: Petitioner Carmelo and Bauermann Inc. leased its parcel
of land with 2-storey building to respondent Mayfair Theater Inc.
They entered a contract which provides that if the lessor should
desire to sell the leased premises, the lessee shall be given 30days exclusive option to purchase the same. Carmelo
informed Mayfair that it will sell the property to
Equatorial. Mayfair made known its interest to buy the property
but only to the extent of the leased premises.
Notwithstanding Mayfairs intention, Carmelo sold the property
to Equatorial.
ISSUE: Whether or not the sale of the property to Equatorial is
valid.
RULING: No, the sale of the property to Equatorial is not valid.
The sale of the property should be rescinded because Mayfair has
the right of first refusal. Both Equatorial and Carmelo are in bad
faith because they knew of the stipulation in the contract
regarding the right of first refusal. The stipulation is a not an
option contract but a right of first refusal and as such the
requirement of a separate consideration for the option, has no
applicability in the instant case. The consideration is built in the
reciprocal obligation of the parties. In reciprocal contract, the
obligation or promise of each party is the consideration for that of
the other. (Promise to lease in return of the right to first refusal).
With regard to the impossibility of performance, only Carmelo
can be blamed for not including the entire property in the right of
first refusal. Court held that Mayfair may not have the option to
buy the property, not only the leased area but the entire property.
POWER COMMERCIAL V CA
FACTS:
Petitioner asbestos manufacturer Power Commercial and
industrial corporation bought the property of spouses Reynaldo
and Angelita Quiambao located in Makati City.
Since there are lessees occupying the subject land, part of the
deed of sale is a warranty of respondents that will defend its title
and peaceful possession in favor of the petitioners.
The property is mortgage to PNP and as such, petitioners filed a
request to assume responsibility of the mortgage. Because of
petitioners failure to produce the required papers, their petition
was denied.
Petitioners allege that the contract should be rescinded because of
failure of delivery.
ISSUE:
WON the contract is recissible due to breach of contract.
HELD:
There is no breach of contact in this case since there is no
provision in the contract that imposes the obligation to the
respondents to eject the people occupying the property.
There was also a constructive delivery because the deed of sale
was made in a public document. The contention of the petitioners
that there could be no constructive delivery because the
respondents is not in possession of the property is of no merit.
What matters in a constructive delivery is control and not

possession. Control was placed in the hands of the petitioners that

is why they were able to file an ejectment case. Prior physical
delivery or possession is not legally required and the execution of
the deed of sale is deemed equivalent to delivery.
DAGUPAN TRADING VS. MACAM, 14 SCRA 179
FACTS
On October 14, 1955, OCT No. 6942 covering the land was
issued in the name of the Marons, free from all liens and
encumbrances.
On August 4, 1956, however, by virtue of a final judgment of the
Municipal Court of Manila in a civil case in favor of Manila
Trading and Supply Co. (Manila Trading) against Sammy Maron,
levy was made upon whatever interest he had in the subject
property. Thereafter, said interest was sold at public auction to the
judgment creditor Manila Trading. The corresponding notice of
levy, certificate of sale and the sheriff's certificate of final sale in
favor of Manila Trading - because nobody exercised the right of
redemption - were duly registered, and on March 1, 1958, the
latter sold all its rights and title in the property to herein petitioner
Dagupan Trading Company (Dagupan Trading).
On September 4, 1958, Dagupan Trading filed an action against
Macam, praying that it be declared owner of one-eighth portion of
the subject property. The CFI of Pangasinan dismissed the said
complaint, and the Court of Appeals affirmed its decision.
ISSUE: Who has the superior right over the one-eight portion of
the subject property?
COURT RULING:
The Supreme Court likewise affirmed both decisions of the lower
courts. At the time of the levy, Sammy Maron already had no
interest on the one-eight portion of the property he and his
siblings have inherited because for a considerable time prior to
the levy, said interest had already been conveyed upon Macam
"fully and irretrievably" - as the Court of Appeals held.
Consequently, the subsequent levy made on the property for the
purpose of satisfying the judgment rendered against Sammy
Maron in favor of the Manila Trading Company was void and of
no effect.
The unregistered sale and the consequent conveyance of title and
ownership in favor Macam could not have been cancelled and
rendered of no effect upon the subsequent issuance of the Torrens
title over the entire parcel of land. Moreover, upon the execution
of the deed of sale in his favor by Sammy Maron, Macam had
immediately taken possession of the land conveyed as its new
owner and introduced considerable improvements upon it
himself. To deprive him, therefore, of the same by sheer force of
technicality would be against both justice and equity.
33. DAVID VS. BANDIN, 149 SCRA 140
34. OLIVARES VS. GONZALES, 159 SCRA 33
35. CARAM VS. LAURETA, 103 SCRA 7
On June 25, 1959, Claro L. Laureta filed in the Court of First
Instance of Davao an action for nullity, recovery of ownership

and/or reconveyance with damages and attorney's fees against

Marcos Mata, Codidi Mata, Fermin Z. Caram Jr. and the Register
of Deeds of Davao City. On June 10, 1945, Marcos Mata
conveyed a large tract of agricultural land covered by Original
Certificate of Title No. 3019 in favor of Claro Laureta, plaintiff,
the respondent herein. The deed of absolute sale in favor of the
plaintiff was not registered because it was not acknowledged
before a notary public or any other authorized officer. At the time
the sale was executed, there was no authorized officer before
whom the sale could be acknowledged inasmuch as the civil
government in Tagum, Davao was not as yet organized. However,
the defendant Marcos Mata delivered to Laureta the peaceful and
lawful possession of the premises of the land together with the
pertinent papers thereof such as the Owner's Duplicate Original
Certificate of Title No. 3019, sketch plan, tax declaration, tax
receipts and other papers related thereto. Since June 10, 1945, the
plaintiff Laureta had been and is still in continuous, adverse and
notorious occupation of said land, without being molested,
disturbed or stopped by any of the defendants or their
representatives. However, the said property was sold to Fermin
Caram, Jr., the petitioner, by Marcos Mata on May 5, 1947.
ISSUES: Whether petitioner have acted in bad faith through his
agents action.
RULING: In the case at bar, the court found that the Attorneys
Irespe and Aportadera had knowledge of the circumstances, and
knew that Mata's certificate of title together with other papers
pertaining to the land was taken by soldiers under the command
of Col. Claro L. Laureta. Added to this is the fact that at the time
of the second sale Laureta was already in possession of the land.
Irespe and Aportadera should have investigated the nature of
Laureta's possession. If they failed to exercise the ordinary care
expected of a buyer of real estate they must suffer the
consequences. The rule of caveat emptor requires the purchaser to
be aware of the supposed title of the vendor and one who buys
without checking the vendor's title takes all the risks and losses
consequent to such failure. The principle that a person dealing
with the owner of the registered land is not bound to go behind
the certificate and inquire into transactions the existence of which
is not there intimated 18 should not apply in this case. It was of
common knowledge that at the time the soldiers of Laureta took
the documents from Mata, the civil government of Tagum was
not yet established and that there were no officials to ratify
contracts of sale and make them registrable. Obviously,
Aportadera and Irespe knew that even if Mata previously had sold
the disputed property such sale could not have been registered

Even though Cruz was the first to register the deed of absolute
sale, he cannot be given a better right over the property because
he was a buyer in bad faith.
Cruz knew the prior sale of the property because he was informed
by the RD that Legazpi and Cabana already registered the sale of
the said property.
Knowledge of a prior transfer of a registered property by a
subsequent purchaser makes him a purchaser in bad faith and his
knowledge of such transfer vitiates his title acquired by virtue of
the latter instrument of conveyance which creates no right as
against the first purchaser.
37. VALDEZ VS. CA, 194 SCRA 360
38. NUGUID VS. CA, 171 SCRA 213
FACTS:
The deceased spouses Victorino and Crisanta dela Rosa (spouses
dela Rosa) were registered owners of a parcel of land in Orani,
Bataan, and covered by OCT No. 3778. On or about May 4, 1931,
Victorino dela Rosa (widowed by then) sold one-half of the said
property to Juliana Salazar for P95.00. This sale between him and
Salazar, though evidenced by a document, was not registered.
Nevertheless, Juliana Salazar constructed a house on the lot she
purchased immediately after the sale. On March 10, 1964,
petitioner spouses Diosdado Nuguid and Marqiueta Venegas
(spouses Nuguid) caused the registration of a document entitled
"Kasulatan ng Partihan at Bilihan" (Kasulatan). In this document,
Marciana dela Rosa, together with the heirs of Victorino and
Crisanta dela Rosa, sold to spouses Nuguid the entire area of the
property for the sum of P300.00. Subsequently, OCT No. 3778
was cancelled by the Register of Deeds of Bataan, and TCT No.
T-12782 was issued in the spouses Nuguids names.
Private respondents claimed that the presented by spouses Nuguid
was forged. They also allegedly discovered the forged deed as
well as the certificate of title in the name of the petitioners much
later, that is, on February 28, 1978, when respondents Amorita
Guevarra and Teresita Guevarra thought of having the title of
their grandmother Juliana Salazar, registered.

36. CRUZ VS. CABANA, 129 SCRA 656

The CFI of Bataan dismissed the complaint filed by private

respondents, but the Court of Appeals reversed said decision and
ordered the spouses Nuguid to execute a deed of reconveyance in
favor of herein respondents.

FACTS:
Leodegaria Cabana sold his real propery first to Teofilo Legaspi
and Illuminada Cabana and then later to Abelardo Cruz.

ISSUE: Who is the rightful owner of the subject property?

Legaspi and Cabana were able to take possession of the property

but they were not able to register the deed of absolute sale
because the property was still mortgaged to PNB. They however
were able to register with the RD the sale with the right to
repurchase.
On the other hand, Cruz succeeded to register the deed of
absolute sale in his favor.
HELD:

COURT RULING:
The Supreme Court reinstated the decision of the CFI of Bataan.
The basis for the Court of Appeals' conclusion that petitioners
were buyers in bad faith is ambiguous because said court relied
on the singular circumstance that the petitioners are from Orani,
Bataan, and should have personally known that the private
respondents were the persons in actual possession. However, at
the time of the purchase, the spouses Nuguid dealt with Pedro
Guevarra and Pascuala Tolentino, the latter being the actual
occupants. The respondents Guevarras, children of the said Pedro
and Pascuala Guevarra, came into the picture only after their

parents died. As for the respondent heirs of Victorino dela Rosa,

their being in actual possession of any portion of the property
was, likewise, simply presumed or taken for granted by the Court
of Appeals.

materials, labor, tools and all services required in order to so

fabricate and install said system. The system was completed in
1963 and accepted by private respondent, who paid in full the
contract price.

The private respondents cannot also honestly claim that they

became aware of the spouses Nuguids title only in 1978, because
ever since the latter bought the property in 1961, the spouse
Nuguid have occupied the same openly, publicly, and
continuously in the concept of owners, even building their house
thereon. For seventeen years they were in peaceful possession,
with the respondents Guevarras occupying less than one-half of
the same property.

Almeda learned from the employees of NIDC of the defects of the

air-conditioning system of the building. Almeda spent for the
repair of the airconditioning system. He now sues Engineering for
the refund of the repair. RTC found that Engineering failed to
install certain parts and accessories called for by the contract, and
deviated from the plans of the system, thus reducing its
operational effectiveness to achieve a fairly desirable room
temperature.

41. Spouses Tomas and Silvina Occena vs.Esponilla, GR No.

156973, 6-4,2004

Issue: 1) WON the contract for the fabrication and installation of

a central air-conditioning system in a building, one of sale or
for a piece of work? CONTRACT FOR PIECE OF WORK.

42. MOLES V IAC

Held:

FACTS:

1)
A contract for a piece of work, labor and materials may
be distinguished from a contract of sale by the inquiry as to
whether the thing transferred is one not in existence and which
would never have existed but for the order, of the person desiring
it. In such case, the contract is one for a piece of work, not a sale.
On the other hand, if the thing subject of the contract would have
existed and been the subject of a sale to some other person even if
the order had not been given, then the contract is one of sale.

Jerry Moles(petitioner) bought from Mariano Diolosa owner of

Diolosa Publishing House a linotype printing
machine(secondhand machine). Moles promised Diolosa that will
pay the full amount after the loan from DBP worth P50,000.00
will be released. Private respondent on return issued a
certification wherein he warrated that the machine was in A-1
condition, together with other express warranties. After the
release of the of the money from DBP, Petitioner required the
Respondent to accomplish some of the requirements. On which
the dependant complied the requirements on the same day.
On November 29, 1977, petitioner wrote private respondent that
the machine was not functioning properly. The petitioner found
out that the said machine was not in good condition as experts
advised and it was worth lesser than the purchase price. After
several telephone calls regarding the defects in the machine,
private respondent sent two technicians to make necessary repairs
but they failed to put the machine in running condition and since
then the petitioner wan unable to use the machine anymore.
ISSUE/S: Whether there is an implied warranty of its quality or
fitness.
HELD
It is generally held that in the sale of a designated and specific
article sold as secondhand, there is no implied warranty as to its
quality or fitness for the purpose intended, at least where it is
subject to inspection at the time of the sale. On the other hand,
there is also authority to the effect that in a sale of secondhand
articles there may be, under some circumstances, an implied
warranty of fitness for the ordinary purpose of the article sold or
for the particular purpose of the buyer.
43. ENGINEERING AND MACHINE CORP V CA GR NO.
52267
Facts:
Almeda and Engineering signed a contract, wherein Engineering
undertook to fabricate, furnish and install the air-conditioning
system in the latters building along Buendia Avenue, Makati in
consideration of P210,000.00. Petitioner was to furnish the

The contract in question is one for a piece of work. It is not

petitioners line of business to manufacture air-conditioning
systems to be sold off-the-shelf. Its business and particular field
of expertise is the fabrication and installation of such systems as
ordered by customers and in accordance with the particular plans
and specifications provided by the customers. Naturally, the price
or compensation for the system manufactured and installed will
depend greatly on the particular plans and specifications agreed
upon with the customers.
45. TUAZON V CA 94 SCRA 413
FACTS: On September 7, 1954, petitioner J.M. Tuason & Co.,
Inc. entered a contract to sell with respondent Ligaya Javier a
parcel of land known as Lot No. 28, Block No. 356, PSD 30328,
of the Sta. Mesa Heights Subdivision for the sum of Php3,691.20
with 10% interest per annum; Php396.12 will be payable upon
execution of the contract, and an installment of Php43.92 monthly
for a period of ten (10) years. It was further stipulated in the
contract, particularly the sixth paragraph, that upon failure of
respondent to pay the monthly installment, she is given a one
month grace period to pay such installment together with the
monthly installment falling on the said grace period. Furthermore,
failure to pay both monthly installments, respondent will pay an
additional 10% interest. And after 90 days from the end of the
grace period, petitioner can rescind the contract, the payments
made by respondent will be considered as rentals. Upon the
execution of the contract, respondent religiously paid the monthly
installment until January 5, 1962. Respondent, however, was
unable to the pay the monthly installments within the grace period
which petitioner, subsequently, sent a letter to respondent on May
22, 1964 that the contract has been rescinded and asked the
respondent to vacate the said land.
ISSUE: Did the CFI erroneously apply Article 1592 of the New
Civil Code?

RULING: Yes. Regardless, however, of the propriety of applying

Article 1592, petitioner has not been denied substantial justice
under Article 1234 of the New Civil Code. In this connection,
respondent religiously satisfied the monthly installments for
almost eight (8) years or up to January 5, 1962. It has been shown
that respondent had already paid Php4,134.08 as of January 5,
1962 which is beyond the stipulated amount of Php3,691.20.
Also, respondent has offered to pay all installments overdue
including the stipulated interest, attorneys fees and the costs
which the CFI accordingly sentenced respondent to pay such
installment, interest, fees and costs. Thus, petitioner will be able
recover everything that was due
thereto. Under these circumstances, the SC feel that, in the
interest of justice and equity, the decision appealed from may be
upheld upon the authority of Article 1234 of the New Civil Code.
SONNY LO vs KJS ECO-FORMWORK SYSTEM PHIL,
INC.
Lo, doing business under the name Sans Enterprises, ordered
scaffolding equipments from KJS worth P540,425.80. Lo paid a
downpayment of P150,000 and the balance was to be paid in 10
monthly installments.
KJS delivered the scaffoldings to Lo, who paid the first two
installments. However, his business encountered financial
difficulties and he was unable to settle his obligation despite oral
and written demands.
Lo and KJS executed a Deed of Assignment, whereby Lo
assigned to KJS his receivables in the amount of P335,462.14
from Jomero Realty Corporation. When KJS tried to collect the
said credit from Jomero, it refused to honor the Deed of
Assignment because it claimed that Lo was also indebted to it.
KJS sent a letter to Lo demanding payment but he refused
claiming that his obligation had been extinguished when they
executed the Deed of Assignment.
KJS filed an action for recovery of a sum of money against Lo.
Issue: W/N the Deed of Assignment extinguished Los obligation.
NO, he failed to comply with his warranty.
In dacion en pago1, as a special mode of payment, the debtor
offers another thing to the creditor who accepts it as equivalent of
payment of an outstanding debt. The undertaking really partakes
in one sense of the nature of sale the creditor is really buying
the thing or property of the debtor, payment for which is to be
charged against the debtors debt.
The assignment of credit, which is in the nature of a sale of
personal property, produced the effects of a dation in payment,
which may extinguish the obligation. However, as in any other
contract of sale, the vendor or assignor is bound by certain
warranties.
Lo, as assignor, is bound to warrant the existence and legality of
the credit at the time of the sale or assignment. When Jomero
claimed that it was no longer indebted to Lo since the latter also
had an unpaid obligation to it, it essentially meant that its
Requisites: (1) There must be the performance of the prestation in
lieu of payment (animo solvendi) which may consist in the delivery of
a corporeal thing or a real right or a credit against the third person;
(2) There must be some difference between the prestation due and
that which is given in substitution (aliud pro alio); (3) There must be
an agreement between the creditor and debtor that the obligation is
immediately extinguished by reason of the performance of a prestation
different from that due.

obligation to Lo has been extinguished by compensation. As a

result, KJS alleged the non-existence of the credit and asserted its
claim to Los warranty under the assignment. Lo was therefore
required to make good its warranty and pay the obligation.
47. Ramos v CA
48. Flores v So
FACTS
On August 2, 1958, plaintiff-appellee Johnson So filed an action
for specific performance before the CFI of Sorsogon, against
defendant-appellant Alfonso Flores to effect the redemption of a
parcel of coconut and rice land in Matnog, Sorsogon. It was
alleged that one Valentin Gallano sold to Flores the said parcel of
land on February 27, 1950, with right of repurchase within 4
years from the date of the sale, for a price of P2,550.00. Valentin
Gallano sold in an absolute manner the same land to Johnson So
on February 26, 1958 for the price of P5,000.00. On the allegation
that the Pacto de Retro Sale did not embody the real intent and
nature of the agreement between the parties, the transaction being
a mere mortgage to secure a loan, Johnson So prayed that the
court declare the said Pacto de Retro Sale as a mere equitable
mortgage and order Alfonso Flores to receive the sum of
P2,550.00 deposited with the court and to consider the land in
question as redeemed from the latter for all legal purposes.
The lower court ruled that there was a indeed a contract of sale of
a parcel of land with the reservation in favor of Gallano a retro of
the right to repurchase.
ISSUE: Who should be the absolute owner of the subject
property?
COURT RULING:
The Supreme Court reversed the decision appealed from and
declared Alfonso Flores the absolute owner of the subject
property. In a sale with the right of redemption, the ownership
over the thing sold is transferred to the vendee upon execution of
the contract, "subject only to the resolutory condition that the
vendor may exercise his right of repurchase within the period
agreed upon." Consequently, since the pacto de retro sale in
question, which was executed in February of 1950 before the
effectivity of the New Civil Code in August of 1950, was a
contract with a resolutory condition, and the condition was still
pending at the time the new law went into effect, the provisions of
the old Civil Code should still apply.
The trial court erred in allowing Johnson So to redeem the subject
property. Valentin Gallano was no longer the owner of the same
at the time of sale to Johnson So, thus, no right whatsoever was
transmitted to the latter, except the right to redeem the property.
Ownership over the subject property had long vested upon the
defendant-appellant Alfonso Flores.

49. De Leon v Salvador

50. Alonzo v IAC

FACTS:
Five brothers and sisters inherited in equal pro indiviso shares a
parcel of land registered in the name of their deceased parents.

One of them transferred his undivided share by way of absolute

sale. A year later, his sister sold her share in a Con Pacto de
Retro Sale. By virtue of such agreements, the petitioners
occupied, after the said sales, an area corresponding to two-fifths
of the said lot, representing the portions sold to them. The
vendees subsequently enclosed the same with a fence. with their
consent, their son Eduardo Alonzo and his wife built a semiconcrete house on a part of the enclosed area.
One of the five coheirs sought to redeem the area sold to
petitioners but was dismissed when it appeared that he was an
American citizen. Another coheir filed her own complaint
invoking the same right of redemption of her brother. Trial court
dismissed the complaint, on the ground that the right had lapsed,
not having been exercised within thirty days from notice of the
sales.

subsequently dishonored by the drawee bank. The scope of Laos

duties and responsibilities did not encompass the funding of the
corporations checks; her duties were limited to the marketing
department of the Binondo branch.
Further, there can be no prima facie evidence of knowledge of
insufficiency of funds in the instant case because no notice of
dishonor was actually sent to or received by Lao. Pariljo sent the
notices of dishonor to Premiere Investments main branch. The
main branch did not send the notices to the Binondo branch
because it deemed it futile because at that time it knows that it
does not have sufficient funds to cover the debt anyway. Notice to
the main branch does not serve as constructive notice to Lao. BP
22 is a personal crime hence notice should have been sent to her
personally if she were to be made liable.

ISSUE: Whether or not actual knowledge satisfied the

requirement of Art. 1088 of the New Civil Code.
52. Lanuza v De Leon
HELD:
The co-heirs in this case were undeniably informed of the sales
although no notice in writing was given them. And there is no
doubt either that the 30-day period began and ended during the 14
years between the sales in question and the filing of the complaint
for redemption in 1977, without the co-heirs exercising their right
of redemption. These are the justifications for this exception.
While [courts] may not read into the law a purpose that is not
there, [courts] nevertheless have the right to read out of it the
reason for its enactment. In doing so, [courts] defer not to the
letter that killeth but to the spirit that vivifieth, to give effect to
the law makers will.

53. Capulong v CA
54. Solid Homes v CA GR. No. GR No. 117501
On April 7,1980, Solid Homes sold to spouses Uy a subdivision
lot and thereafter spouses Uy sold the same lot to spouses Tan.
From then on, respondents visited their property a number of
times, only to find out the sad state of development thereat. There
was no infrastructure & utility system of water. Worse, squatters
occupy their lot & its surrounding areas.

51. LAO vs CA
Father Artelijo Palijo was investing with Premiere Investment
House through the latters trader Rosemarie Lachenal. Through
the course of his business with Premiere Investment, he was
issued three Traders Royal Bank checks in the amounts of P150k,
P150k, and P26k respectively. These checks were eventually
dishonored.
Since the checks were dishonored, Palijo sent notices of dishonor
to Premiere Investment but he sent the same to the latters main
office in Cubao (note that Lao and Asprec were holding office in
the Binondo Branch of Premiere Investment). Premiere
Investment was only able to pay P5k and no further payment was
made. Apparently, Premiere Investment was going insolvent and
was subsequently placed under receivership.
Palijo filed a criminal case against Lao and Asprec for violation
of Batas Pambansa Blg. 22.
ISSUE:
In the present case, the fact alone that petitioner was a signatory
to the checks that were subsequently dishonored merely
engenders the prima facie presumption that she knew of the
insufficiency of funds, but it does not render her automatically
guilty under B.P. 22. After a thorough review of the case at bar,
the SC finds that Petitioner Lao did not have actual knowledge of
the insufficiency of funds in the corporate accounts at the time
she affixed her signature to the checks involved in this case, at the
time the same were issued, and even at the time the checks were

On Dec. 18,1995, respondents demanded on petitioner to provide

the needed utility system & clear the area of squatters by the end
of January 1996.
Having received no reply from petitioner, Respondent filed with
the housing & Land Use Regulatory Board (HLURB) a complaint
for specific performance which rendered judgment in favor of
respondents.
ISSUE: WON Respondents right to bring the instant case against
petitioner has already prescribed?
HELD:
Petitioner argued that the 10 yrs prescriptive period should be
reckoned from April 7, 1980 when they sold the lot to spouses Uy
or at the latest on February 1985. The SC disagree because it is
from the time an act is performed or an omission incurred which
is violative of plaintiffs right, that signals the accrual of a case of
action.
Thus, the period of prescription of any action is reckoned only
from the date the cause of action accrued. And a cause of action
arises when that which should have been done is not done, or that
which should not have been done is done.
55.Primary Structures v Valencia