Republic of the Philippines REGIONAL TRIAL COURT XXX Judicial District Province of Aklan Kalibo City TERESA DALIKA,

Plaintiff, - versus

CHARISS KAPANGAN, Defendant.

Civil Case No. 123 For Specific Performance with Damages

x---------------------x DEFENDANTS MEMORANDUM COMES NOW, the Defendant through counsel to this Honorable Court, respectfully submits this memorandum in the case and avers that: STATEMENT OF THE CASE Plaintiff Teresa Dalika filed the present action for specific performance with damages against Defendant Chariss Kapangan, seeking the Court to compel the latter to sell the property subject of the contract/agreement. In its answer, Defendant argued that the contract/agreement was merely oral in nature, hence, it is unenforceable. The parties claimed moral damages and attorneys fees against each other. SUMMARY OF ADMITTED FACTS AND PROPOSED STIPULATION OF FACTS 1. The Defendant admits the material allegations in paragraphs 1 to 8 of the complaint insofar as it alleges in particular the following, to wit: a. The Plaintiff went to his house to pay the amount of P500,000.00 as purchase price of his property. b. The Plaintiff paid the amount of P5,000.00 for their food and drinks at Malamig Resto. 2. The Defendant specifically denies the rest of the allegations of the same, the truth of the matter being that: a. The subject matter of the contract/agreement was a parcel of land and the contract was not put into writing, hence, it is unenforceable.

b. He cannot remember agreeing that 50% of what the Plaintiff has paid for the food and drinks at Malamig Resto was the downpayment of the latter for his property subject of the oral contract/agreement. 3. Due to the unfounded and baseless suit filed by the Plaintiff, Defendant was constrained to litigate and hence engaged the services of counsel. ISSUES Given the foregoing facts and circumstances, the following issues are presented for discussion: 1. Whether or not Plaintiff has a cause of action considering the contract/agreement was merely oral in nature. 2. Whether or not Defendant is entitled to Damages. ARGUMENTS 1. PLAINTIFF HAS NO CAUSE OF ACTION. A. While it is true that Defendant agreed with the Plaintiff to sell his property to the latter, the contract/agreement however is oral in nature, hence, it is unenforceable. The reason why it is unenforceable is because the oral agreement pertains to a parcel of land, but it was not put into writing. B. Under Article 1403(2e) of the New Civil Code, a CONTRACT FOR THE SALE OF REAL PROPERTY SHALL BE UNENFORCEABLE unless the same or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent. Evidence of the agreement cannot be received without the writing or a secondary evidence of its contents. C. Recognized jurisprudence also upholds the significance of a written instrument for the enforceability of a contract/agreement. In the decision of the case of Arrogante v. Deliarte (G.R. No. 152132, July 24, 2007), the Supreme Court ruled that Contracts are 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 be proven in a certain way, that REQUIREMENT is ABSOLUTE and INDISPENSABLE. (Art. 1356, NCC). One exception thereto is the Statute of Frauds which requires a written instrument for the enforceability of a contract. c. Moreover, the principle of the Statute of Frauds only applies to executory contracts, and not to contracts either partially or totally performed, as in this case where the sale has not been consummated absence of an accepted payment or consideration. Although it was alleged that the Plaintiff made an offer of P500,000.00 but such was not accepted by the Defendant. With respect to the P5,000.00 that has been paid by the Plaintiff for the food and drinks, of which 50% of it was claimed by the same as his downpayment for the

property subject of the oral contract/agreement, Defendant vehemently denies agreeing to that contention. Hence, the same is within the scope of the applicability of the Statute of Frauds. D. With the foregoing arguments, Plaintiff has, indeed, NO CAUSE OF ACTION. Thereby, cannot enforce the contract/agreement against the Defendant. 2. DEFENDANT IS ENTITLED TO DAMAGES. A. For having instituted this baseless and malicious suit, the Defendant suffered sleepless nights, and wounded feelings; hence, Plaintiff Teresa Dalika should be made to answer for moral damages and attorneys fees.

PRAYER WHEREFORE, premises considered, it is respectfully prayed for that judgment be rendered against the Plaintiff and in favor of the Defendant by: 1) DISMISSING the complaint for having no cause of action. 2) ORDERING the Plaintiff to pay moral damages in the amount of P500,000.00; attorneys fees of P100,000.00 and pay the costs of suit. Such other reliefs as are just and equitable are likewise prayed for. Kalibo City, Aklan, November 20, 2013.

(Sgd.) ATTY. JUAN P. EDRO Counsel for Defendant Address

Copy furnished: ATTY. XXXXXX Counsel for Plaintiff Address _____________________________ By personal service