No, you may still sue him for breach of contract as the debtor cannot compel you to accept a thing different from that which you have agreed to purchase in your written agreement. Your agreement has already been breached from the moment the painter failed to deliver to you the particular painting you so desired to purchase.
Based on the facts you have narrated, it appears that there was a breach of contract when the painter delivered to you a painting that is totally different from the one you intended to purchase. Since you mentioned that the painter has already sold your desired painting to a different person, it now becomes impossible on his part to deliver that particular painting to you upon your full payment. Thus, the painter will no longer be able to comply with his obligations in your agreement.
Moreover, the fact that the painter is offering to you another painting of a higher value is of no moment as he cannot compel you to accept a different thing. Article 1244 of our New Civil Code states:
“Art. 1244. The debtor of a thing cannot compel the creditor to receive a different one, although the latter may be of the same value as, or more valuable than that which is due.” (Emphasis supplied)
Since the painter will not be able to fulfill his obligation to you anymore, you now have a cause of action against the painter for the full refund of your payments, plus damages, if also warranted by the circumstances.
We find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org.