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NOVEMBER 24
A tooth for a tooth, an eye for an eye. That is the law of retaliation
and what it actually says is that when there is offense occasioned upon
a particular individual, there should be an exact reciprocity of what
should be a recompense for such an offense. So if you lose a tooth,
you get a tooth. You prick an eye, your eye should be pricked. When
you kill somebody, you should be killed.
Particularly, for example, for Filipinos. Have you heard of this Code of
Kalantiaw? Which was in the early part of the century was actually
debunked as a hoax. Did you know about that? The Code of Kalantiaw
is fictitious. Its not true. But Article 1 of the Code of Kalantiaw
succinctly tells you that You shall not kill, otherwise you shall be put
to death. Kung makapatay ka, patyon pud ka. That is what reciprocity
is.
Now practically every legal system that evolved while human society
has evolved has the same kind of principle: A tooth for a tooth, an eye
for an eye. But the problem with the law on exact reciprocity is that it
fails to take account certain factors which ought to be considered or at
least, according to the early societies, should be considered in meting
out penalty. Say for example, a slave is killed by a freeman or a
freeman, conversely, would be killed by a slave. According to earlier
civilizations, there has to be some graduation of penalties because
whether you like or not, before, a slave has a lesser status than a man
who is free. And you can even find that in one of the oldest
codifications of law in what weve known to be the Code of
Hammurabi.
So that principle is flawed, and therefore, you cannot expect exact
reciprocity for an offense and a recompense or penalty for that
offense. But not to look at these rules to be an (???). Better the law to
punish those transgressors than man putting the law on his own
hands. And of course, remember that if we talk about exact
reciprocity, it has a barbaric (???). Kung makapatay ka, patyon pud ka.
Kung logoson ka, logoson pud ka? Tama ba na?
Well anyway, later on, of course in order to regulate vengeance upon
its citizens, (???) prompting now to shift the supposed penalty for an
offense into something that we now recognize today which they called
a talio which is payment for damages that are occasioned by an
omission of another. And later on as a further development, the Anglo-
Saxons developed what is known to be a weregind or blood money.
Makapatay ka, bayari. Pwede.
Now despite these changes about history including, of course,
Philippine Law, the basic formula remains the same up to this date. For
every wrong, there must be commensurate compensation. Remember
that the basis for all these laws being developed is for purpose of
regulating vengeance to ensure that human beings do not put the law
into their own hands lest there will be chaos, lest the social order will
be entirely destroyed by anarchy. So imagine an early civilization, for
example. If you kill somebody, of course, that can be lawfully classified
as a crime. If you steal, because there is criminal intent, that, of
course, can be lawfully classified as a crime. Kung naa kay utang, of
course you have to pay that but that cannot be classified as a crime.
In fact, most Constitutions all over the world already outlawed the
penalty imprisonment for nonpayment of debt. Diba No person shall
be imprisoned for nonpayment of debt and nonpayment of poll tax.
Mao na ang nakabutang sa atong Constitution although the term poll
tax is no longer used. So on one hand, you have crimes. On the other
hand, you have civil wrongs which can be the basis of a civil action in
court. But is there something that lingers in the middle? It can be a
crime, or it can be a mere civil wrong. And sometimes it is difficult to
define. And being creatures of the law, being students of the law, we
know for a fact that human wisdom is finite. Do you expect the
legislature to be able to supply particulars or to foresee every situation
where a law might possibly be violated? Can the legislature ever
prepare for every wrong that might be occasioned in the interactions
between one man with his neighbor? Of course we cant. Human as we
are, wisdom is finite.
So there are certain classes of wrongs that may not necessarily fit into
the definition of what is crime of the definition of a mere civil injury.
And now we come to what that thing is and that is the concept of
(???). Ordinarily, we understand it to be something which is not
usually regulated by Civil Law and also something that is not usually
regulated by Criminal law that you have to develop a specialized set of
rules designed specifically to cover these transgressions, to cover such
lapses in the action and transgressions in human conduct.
Now the subject of course is Torts and Damages. When you hear the
word Tort, what comes to mind? You know what? Torts and
Damages is not something unfamiliar to you. By way of review, lets
try to recall what weve learned from 1st year to 2nd year and the
early part of 3rd year. Do you remember Article 1156 of the NCC which
defines an obligation?
ART. 1156. An obligation is a juridical necessity to give, to do or not
to do.
And then followed by Article 1157:
Article 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
When we were in first year, we would be amazed by these
terminologies: Quasi contracts, quasi delicts
Article 1170 of the Civil Codes provides:
Article 1170. Those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages. (1101)
Followed of course by Art. 1173 which defines what fault or negligence
consists:
Article 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad faith, the
provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good father
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of a family shall be required. (1104a)
Mulayo pa jud ta. First semester. Persons and Family Relations. Is it
not a fact that the most memorable for us is Art. 19 of the NCC?
Article 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
And we learned that Art. 19 is actually the key to understanding the
Principle of Abuse of Rights. Your right ends when you violate
anothers.
Ambak ta gamay, sa 2nd year. For sure, one of our favorite subjects is
Property. In the study of Property, we were introduced to the term
Nuisance. What is a nuisance?
Article 694. A nuisance is any act, omission, establishment, business,
condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any
public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
Were also familiar with the concept of damages because practically
every subject of the law would devote a certain portion to the study of
damages. Example: Persons & Family Relations. Is it not a fact that in
marital relations, if you, for example, the general rule is that breach of
promise to marry is not actionable. But there are certain instances
where a breach of promise to marry when coupled with something
extra (??) would render the actor liable for damages.
What else? Civil liability for crimes of course. Diba the rule is every
person criminally liable is also civilly liable. And what constitutes civil
liability? Reparation and so on and so forth. Nangawat ka, diba part of
civil liability, i-uli imong gikawat. Kung dili na nimo ma-uli kay imong
gikaon, bayari ang kantidad sa imong gikaon. Transportation Law, is it
not that part of discussion in Transpo would be damages recoverable
from common carriers. Moral, exemplary, nominal, temperate,
liquidated, actual damages as well. And the concept of averages can
you recall? General average and Particular average. Murag grado sa
law school.
Now suffice it to say na katong tanan gibalik nako sa inyo beginning
from Human relations, Article 1157 in Civil Code, we all dealt with
(???) and fortunately for us in the study of Torts and Damages, these
are matters that we are going to revisit because the study of torts and
damages would of course cover:
1. The provisions on Quasi Delicts in the NCC beginning from
Art. 2176 to 2194
2. Then we have the study of damages which we will learn
later on and revisit by way of what we learned already while
we were on those other subjects
3. Then the study of Human Relations
4. Finally, the Law on Nuisance
Now perhaps, what we are most unfamiliar with would be the concept
of Quasi Delict which is the main tort discussed in Tort Law. If you
dont mind, let me ask somebody (Sir calls student)
Atty. E: When have you first learned about Quasi Delict?
Student: In Obligations and Contract, sir
Atty. E: Obligations & Contracts and particularly I think 1157 of the
Civil Code diba which enumerates the different sources of obligations.
Now can you illustrate a quasi delict for me according to what you
recall. Because this is part of your stock knowledge. What is an
example?
Student: Example is negligence of a person, sir
Atty E: Be more specific
Student: For example, I was negligent in driving my car and I bumped
another person
Atty E: So, its quasi-delict right? Now when you were on obligations
and contracts, do you know the type of obligation involved in quasi
delict?
Student: No, sir.
Atty E: You dont? In that example you gave, what is the obligation
involved?
Student: The obligation involved, sir, is the obligation to pay whatever
damages
Atty E: If you caused damage. So is it fair to assume that had you not
bumped anybody, had you not caused injury to him, you wont be
paying anything?
Student: Yes, sir
Atty. E: And therefore, the liability involved in quasi-delict would be if
you committed something because of negligence.
If we go back again, the definition of an obligation is a juridical
necessity to give, to do, or not to do. And therefore the only thing that
a civil obligation can compel you to perform would be either the doing
of an act, the not doing an act or giving of something. Real and
personal obligations. When we talk about an obligation to give, that is
a real obligation. When we talk about to do or not to do, that is a
personal obligation.
Do you remember the importance of the distinction? Can you compel
somebody to give something? Is there a legal remedy that would be
the sanction for you if you do not comply with your obligation to give?
Yes, you can be compelled by specific performance. But if you omitted
in doing an obligation to do, will you be compelled by specific
performance? No, because that would be tantamount to a violation of
the Constitutional proscription against involuntary servitude. So I hire
you, for example, to paint my house. You did not do it. You began but
you told me I will not paint your house anymore kay gitamad ko. Can
I compel you? Of course not because that would now be involuntary
servitude.
Now take note of the term Juridical Necessity. Why juridical
necessity? Because if you do not perform it, naay silot. There is a legal
or judicial sanction. Unsa man ning mga sanction na ni? Now in
modern times, the sanction is simply youll be obliged to pay damages
or you can be made to perform what you promised to perform. But in
olden times, mas weird. I always, for illustration purposes, liken an
obligation to an oath. So help me God diba? Pero kung imo ng i-
translate to layman, what would that be. Promise, buhaton nako
makilatan pa ko. Simply, its an oath with a curse. A curse that
something bad might happen to you if you do not perform your
obligation. Karon, civil obligation, if you do not perform them, then
youll simply be sanctioned.
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Law, contracts, quasi-contracts, acts or omissions punished by law,
quasi delict. Law, what is an example of an obligation that can only be
imposed by law itself? The obligation to pay taxes diba? What about
contracts? Theres a lot because practically anything goes for as long
as there is meeting of the minds and for as long as it is not contrary to
law, morals Quasi contracts, where did you take quasi-contracts?
Unsa na subject ba? Obligations gihapon? But only in passing diba?
What does Art. 2142 provide?
Article 2142. Certain lawful, voluntary and unilateral acts give rise to
the juridical relation of quasi-contract to the end that no one shall be
unjustly enriched or benefited at the expense of another. (n)
And therefore, if you do not perform a lawful, voluntary and unilateral
act, no quasi-contract can arise. Lets test what youve learned (sir
calls student).
Atty E: Can you give me example of a quasi-contract?
Student: An example sir if a debtor pays his creditor by mistake sir.
The creditor is obliged to return what he has received by mistake.
Atty E: What do you call that?
Student: Solutio indebiti sir
Atty E: Whats the other one?
Student: Negotiorum Gestio sir.
Atty E: Can you give me a factual example?
Student: It is when an unauthorized person manage the property
without the consent of the owner
Atty E: translate that into terms that we can all understand. I want you
to explain it to your classmates like they are 5 yrs old.
Student: If A occupies the land of B. When B went to the US, A made
improvements on the land without the approval of B.
Atty E: Did it benefit B or nag buot2 lang si A? Because we have to
draw the line between nag buot2 lang and without the motivation to
benefit B.
Student: For the benefit of B sir.
Atty E: Thank you.
Now when I encounter the term Negotiorum Gestio ang musulod jud
sa akong mind kay kanding. Naay kanding sa field, then suddenly the
owner of the goats where nowhere to be found, and then a flood
suddenly hits the field and the goats are supposed to drown were it
not for the kind neighbor who saved them. Question, in a quasi-
contract situation like that, under Article 2168 (Article 2168. When
during a fire, flood, storm, or other calamity, property is saved from
destruction by another person without the knowledge of the owner,
the latter is bound to pay the former just compensation.), is there an
obligation to save the goats? No, because there is no penalty for not
being a good neighbor. But assuming that you were good-natured
enough to save the goats, what is the obligation now? What is the
quasi-contract? Is it the act of saving the goats? No. Mag arise lang
ang juridical relation of quasi-contract because somebody performed a
lawful, unilateral, and voluntary act. That if he is not compensated, it
will lead to an unjust enrichment. So the obligation created, therefore,
in a quasi-contract, is an obligation to give, the obligation to
recompense for the effort. Otherwise, the owner of the goats will be
unjustly enriched.
Acts or omission punished by law. Unsa man na? Felonies, crimes.
Remember that when you commit a crime, that is when the obligations
would arise. And what are possible obligations that might be imposed
against persons who commit crimes? Pwede obligation to give, pwede
obligation to do or not to do. Obligation to give, unsaon man?
Restitution, its an obligation to give. Payment of penalty, penalty of
damages by way of civil liability, these are obligations to give.
Obligation to do, ma-priso ka. Obligation not to do, destierro. Di ka
pwede musulod ani na locality.
Then finally we have, quasi-delict. In saying that, in quasi-delict, diba
whoever by act or omission causes damage to another, there being
fault or negligence is liable for the damage done. That is the statement
under Art. 2176. In other words, if you are driving your car, for
example, you are negligent in what you were doing, texting maybe
while driving and then you bump somebody, that is when the
obligation in quasi-delict arises. Obligation to be careful. The law
provides, if you commit a quasi-delict, you are obliged to pay for the
damage caused.
At least, we have a basic idea of what a quasi-delict is. Why are we
talking about quasi-delict? Diba the subject is tort? Quasi-delict is just
one of the torts that we are going to discuss.
What is a tort? Scour every book as to what, and I will always tell you
that they do not have good definition. Why? Authors will tell you that a
satisfactory definition of tort is yet to be found. Its like a hidden
treasure. Wala gihapoy nakakuha sa definition sa tort. Trying to define
tort would make it more difficult to understand. Thats why its so
special if its not susceptible to definition. There cannot be any
definition for a tort because at least in Philippine law, you cannot make
a specific formula or guidelines as to what constitutes a tort.
Ill give you an example. Weve discussed Art. 2176. And based on
decided cases, there are at least 5 requisites for quasi-delict. Again,
quasi-delict is tort.
1. There must be an act or omission;
2. There must be fault or negligence attendant in the same act
or omission
3. There must be damage caused to another person;
4. There must be a causal connection between the fault or
negligence and the damage;
5. There must have been no pre-existing contractual relation
between the parties.
Thats tort under Art. 2176 on the one hand. On the other hand, we
also discussed the principle of abuse of rights when you abuse your
right under the law on human relations, you can also be held liable for
a tort. And what are the requisites of the abuse of rights? The case of
SEBRENO vs. CA, March 26, 2014 which said that the elements of
abuse of rights are:
1. There must be a legal right or duty;
2. The legal right or duty was performed or exercised in bad
faith;
3. The purpose or intent is to prejudice or injure.
Now, given the requisites of 2176 and also the requisites for abuse of
rights, are there commonalities apart from the fact that abuse of rights
and 2176 are both torts?
1. Art. 2176 requires fault or negligence. Again, remember that
failure to perform the diligence that corresponds with the
circumstances. Nag dinanghag ka. Is that required in abuse
of rights? No. In fact, in abuse of rights, theres that
requirement of bad faith. There is intent to injure another.
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In fact, if you apply a requisite of abuse of rights to art.
2176, it becomes an entirely different provision. How so? Let
us suppose, your act or omission caused damaged or injury
to another, there is no pre-existing contractual relationship
between you but you did it with bad faith with intent to
injure. Is that a tort? Not anymore. It becomes a crime. So
the requisite of one would not necessarily apply to another.
Otherwise, it becomes an entirely different thing.
2. In Art. 2176, its required that there should be no pre-
existing contractual relationship between the parties.
Whereas in abuse of rights, from what weve learned in
sales, I think its the case of Adelfa vs CA, where the SC
ruled that if you interfere with the contractual relations of
others, you will be held liable for damages under the
principle of abuse of rights. So possible na in abuse of right
situation, theres a contract which is one that is not covered
in 2176. In fact, the SC added in Sesbreno vs. CA that
there is no hard and fast rule that can be applied to
ascertain whether or not the principle of abuse of rights can
be invoked. And the resolution of the issue depends on the
circumstances of each case.
Kindly take a look at Art. 365 of the RPC.
Article 365. Imprudence and negligence. - Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prision correccional in its
medium period; if it would have constituted a less grave felony, the
penalty ofarresto mayor in its minimum and medium periods shall be
imposed; if it would have constituted a light felony, the penalty
of arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an
act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and maximum periods; if it
would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.
When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less
than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed
upon any person who, by simple imprudence or negligence, shall
cause some wrong which, if done maliciously, would have constituted
a light felony.
In the imposition of these penalties, the court shall exercise their
sound discretion, without regard to the rules prescribed in Article sixty-
four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or
lower than those provided in the first two paragraphs of this
article, in which case the court shall impose the penalty next
lower in degree than that which should be imposed in the
period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of
the Automobile Law, to death of a person shall be caused, in
which case the defendant shall be punished by prision
correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing
or falling to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing of
failing to perform such act, taking into consideration his employment
or occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those
cases in which the damage impending to be caused is not immediate
nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this article
shall be imposed upon the offender who fails to lend on the spot to the
injured parties such help as may be in this hand to give. (As amended
by R.A. 1790, approved June 21, 1957).
Thats a felony right? But later on, well learn that you can also
prosecute a person who commits Art. 365 under Art. 2176 (NCC). Unsa
ba jud? Is it a crime or a tort? Or is it both? Pwede. What the law
prohibits is for the plaintiff to recover twice for the same act or
omission. You are defamed or slandered by your neighbor: Bigaon ka!
Pangit! Syempre na-hurt imong feelings. So what is that? Defamation
or Slander. Thats a crime diba? But can also be prosecuted under Art.
26 of NCC.
Article 26. Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons. The following
and similar acts, though they may not constitute a criminal offense,
shall produce a cause of action for damages, prevention and other
relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family
relations of another;
(3) Intriguing to cause another to be alienated from his
friends;
(4) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
Kindly take a look at Art. 699 of the NCC.
Article 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local
ordinance: or
(2) A civil action; or
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(3) Abatement, without judicial proceedings.
So the first remedy against a public nuisance is a prosecution under
the Penal Code. Meaning, when you commit a public nuisance or
maintain a public nuisance, it is at the same time a crime. And you
know that the maintenance of a nuisance is also a tort. So you cannot
say that an if an act or omission is not a crime, it is therefore a tort.
Kung manghod ra xa sa isa ka krimen such that only one of the
elements is absent, then you can classify it as a tort, you cannot do
that. The lines are actually blurred. In fact, the law itself sanctions the
filing of independent civil actions for certain acts like physical injuries,
defamation and so on and so forth. Pwede ka mu-file ug independent
civil action.
Now 2176 also provides that there should be no pre-existing
contractual relations between the parties. Meaning, if theres a
contract between the parties, there cannot be a tort. You cannot file a
case for damages based on tort. No pre-existing contractual relations.
Heres a situation, youre a Filipino guy and youre on board an
international flight on the way to France then suddenly you bump off.
Why? Because they cannot give you the seat because theres an
American with a better right of seat. Sounds familiar? Theres a breach
of contract of carriage, and therefore, there is a pre-existing
contractual relationship between the plaintiff and defendant. Can you
recover damages by way of tort? SC says that if the act that breaks
the contract is itself tortuous or a tort then you can recover damages.
Thats AIR FRANCE VS. CARASCOSO. So, its not a hard and fast
rule that if there is a pre-existing contractual relation between the
parties, walay tort liability. That illustrates why it is difficult to define a
tort.
An attempt at definition would say a tort is a civil wrong other than
breach of contract from which a court will provide a remedy in a form
of action for damages. That definition is not accurate. Its flawed
because a tort may not exclusively be a civil wrong, in fact, it may
likewise constitute a criminal offense. It may even exist in a
contractual relation or may provide other remedies other than action
for damages. Remember Art. 26, the remedies there are damages,
prevention or any other relief. Kung gi-ingnan ka ug pangit, bigaon!
In another jurisprudence, a tort has been defined as a commission of
an act by one without right whereby another receives some injury,
directly or indirectly in person, property or retribution. Thats a good
definition. In fact, thats my favorite definition. But it is still vague.
Because a crime for instance is also an act done without a right. The
fact that you breach a contract is one that you perform without any
entitlement. Nobody has a right to break a contract.
So unsa man jud ang definition sa tort? Choose any definition that I
gave you but for my purposes, these definitions are not accurate. In
fact, it might be better for me to call a tort for tort law, a legal
garbage car. Biodegradable, nonbiodegradable. Assume for instance
that, you know, when you talk about a tort being not a crime, and
therefore it is not a crime, it is a tort. But I might say if its not a
breach of contract, it is a tort, and therefore I put it in my legal
garbage can. Whatever is leftover, that is what a tort is. Not a crime
and not a breach of contract, and therefore, its a tort. It is not
susceptible of an exact definition.
But I can define for you what a tort law is. Tort law is the name given
to a body of laws that creates and provides remedies for civil wrongs
that do not arise out of contractual relations. Tort law defines what
constitutes a legal injury and establishes the circumstances under
which one person may be held liable for anothers (???).
What is the coverage of tort law? So what acts are actually covered?
For one, the law on torts covers both intentional acts and negligent
acts. For example somebody drives a car recklessly and negligently
and injures another, the same act or omission, can lead to either
criminal prosecution or an action for damages or even both under
certain situations. Abuse of rights as a class of torts is done
intentionally. So pwede intentional pwede pud negligence.
Tort law also covers actual, potential or foreseeable injuries. Actual,
nabanggaan ka, nasamaran ka, na-hospital ka. Actual injury, that can
be a tort. Potential injury, you are not injured, naay potential for injury
and yet you are already assessed damages and yet you can already be
sued. For that, lets take a look at two kind of weird principles in
common law:
1. Dejectum effusumve aliquid
2. Del positis vel suspensis
Lets go first to Dejectum effusumve aliquid. My students would always
remember me for inventing a doctrine for Dejectum and I call this the
Dolphy Doctrine. Its just a device that I try to use to make you
remember. He wakes up in the morning, nag mumug, nag toothbrush
and then he spits it out of his window. Then Babalu passes by, naigo
xa sa giluwa ni Dolphy. Nag away na sila. So what is this dejectum and
why is it related? It may not be exactly what it is but thats how I
remember it. In art. 2193 of the Civil Code:
Article 2193. The head of a family that lives in a building or a part
thereof, is responsible for damages caused by things thrown or falling
from the same. (1910)
You also imagine Dolphy, eating a banana and throws the banana peel
then na-slide na pud si Babalu. That is Dejectum Effusumve Aliquid.
That is for actual injury.
Del Positis on the other hand, provides that the mere placing of an
object in a dangerous position is already a ground for liability but its
not necessary that anyone should be hurt or injured. Dili kinihanglan
magka injury. The mere fact that you are negligent enough to place an
object in a dangerous position is already a ground for liability under
common law. Can that be found in the Philippines? No. But in other
jurisdictions, that is part and parcel of their tort law.
So tort law covers both actual, potential or foreseeable injury.
Finally, it covers both physical and nonphysical injuries. Perfect
example for tort that covers physical injury would be Art. 2183.
Article 2183. The possessor of an animal or whoever may make use
of the same is responsible for the damage which it may cause,
although it may escape or be lost. This responsibility shall cease only
in case the damage should come from force majeure or from the fault
of the person who has suffered damage. (1905)
What kind of damage do you think is the law talking about? (sir asks
student)
Student: based on actual damage
Atty E: For example, unsa man na actual damage?
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Student: For hospitalization, sir
Atty E: If for example mauled somebody or kung iro pa na, mamaak or
if you have a pet elephant and it escaped and caused injury? Physical
injury, right? Read Art. 2187.
Article 2187. Manufacturers and processors of foodstuffs, drinks,
toilet articles and similar goods shall be liable for death or injuries
caused by any noxious or harmful substances used, although no
contractual relation exists between them and the consumers. (n)
So if you are a manufacturer, etc, you will be liable for what?
Student: also for damages sir
Atty E: Why? Because you caused what?
Student: Death or injury, sir.
Atty E: So death or injury. Physical. Theres no such thing as a
nonphysical death. Okay, thank you.
Anyway, thus, a tort covers both physical and nonphysical injury. Is
there a tort that does not cover physical injury? Again, balik ta sa Art.
26. What are the acts that can be used to justify a cause of action for
damages under Art. 26?
Article 26. Every person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons. The following
and similar acts, though they may not constitute a criminal offense,
shall produce a cause of action for damages, prevention and other
relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family
relations of another (imong bana naay kabit);
(3) Intriguing to cause another to be alienated from his
friends (bahog ilok, ayaw duol ana);
(4) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or
other personal condition (pangit, bigaon).
What are the injuries that we are talking about? Were not talking
about physical injuries. We are talking about non-physical injuries or
moral injuries. And, therefore, tort is not limited to the fact na
nasamaran ka. Na nabun-og ka, na nabanggaan ka. It also covers
injury not only to your body but also to your right. And these are non-
physical injury.
How do we categorize torts specifically in Philippine law? In Philippine
law, we can categorize torts in a number of ways:
1. To classify it as negligence torts and intentional torts.
Negligence torts, of course, mao ng makita nimo sa Art.
2176. And intentional torts are torts na naay intent. Its not
negligence that is the cornerstone of liability here but intent,
bad faith on the part of the actor. For example nuisance. Is
it not intentional? You maintain a kandingan beside a mall?
Magbutang kag kandingan tapad sa abreeza. That is a
nuisance that can be abated and that is intentional. You do
not accidentally or negligently establish a kandingan.
2. You can also classify torts either statutory torts or common
law torts or torts that cannot be found in statutes. Statutory
torts of course imposes duties on private and public parties
however they are repeated(?) by the legislature and not the
courts. 99% of Philippine torts are statutory torts. Meaning
naay balaod na naga ingon na tort na siya na it is a ground
for liability. It is a source of liability for damages. Now you
have common law torts, the 1%, where it is not the law that
establishes tort liability. Mangutana ko karon, what is that
1% and Im not sure na-encounter na na ninyo before pa.
Whats the one and only common law non-statutory tort in
Philippine law. According to my finite understanding of Torts
& Damages, theres only one. Where liability is imposed not
by statute but by a Supreme Court decision. Can you
remember the case of HIDALGO ENTERPRISES VS.
BALANDAN in property? Which laid down the Doctrine of
Attractive Nuisance. That is a common law tort. That is not a
statutory tort because there is no law defining an Attractive
Nuisance. What is an attractive nuisance? The doctrine says
that one who maintains in his premises dangerous
instrumentalities or appliances of a character likely to attract
children in play and fails to exercise ordinary care to prevent
children from playing therewith and resorting thereto is
liable to a child of tender years who is injured thereby even
if the child is technically a trespasser in the premises. So
naay liability for damages if you create or maintain an
attractive nuisance. But remember that this doctrine does
not apply in cases where a supposed attractive nuisance is a
mere imitation of a work of nature. For example, a
swimming pool, a pond. Dili daw na apil according to the SC
in the case of HIDALGO ENTERPRISES VS. BALANDAN,
JUNE 13, 1952.
Its not enough that we know of the case of Hidalgo because
theres a subsequent case here although not talking about
attractive nuisance but somehow expands the liability of a
proprietor, tag-iya sa isa ka establishment or place for
injuries occasioned upon customers and thats the case of
JARCO MARKETING CORP VS. CA, G.R. NO. 129792,
DEC. 21, 1999. It happened in a dept. store in Makati in
1983, Syvels Dept. Store. And theres this 6 yrs old kid who
was pinned by the stores counter. Nagdula ang bata near
the counter, na-ipit. In short, the child passed away.
Syempre ikaw ang ginikanan, you have to file a case to give
meaning to what have happened so they sued Jarco
Marketing which maintained the Syvels Dept store.
According to Syvel, the proximate cause of the injury of the
child was her own negligence. At the very least, the child
died because of her own contributory negligence. In-ana ka-
heartless ang defense sa Dept store. According to the SC it
is conclusively presumed that a child below 9 years of age is
incapable of contributory negligence. Read this case.
Why is there a need for tort law? According to a 1951 work, The Aims
Of The Law Of Tort, the author Glanville Williams saw four possible
bases on which different torts rested:
1. Appeasement, to restore the claimant to his spiritual status
quo before the accident, before the commission of the tort.
To appease, to give him means or diversions to amuse
himself. So nabanggaan nimo ang isa ka tao, naputol ang
iyang tiil. But tort law will make him forget by giving him
money. Appeasement.
2. Justice or vindication. To bring relief to the distress,
disturbance or damage suffered by the claimant caused by
the wrong committed by the defendant.
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3. Deterrence. To set an example for the public good so that
similar tortuous conduct will be avoided.
4. Compensation. To compensate the plaintiff for unreasonable
harms that they have sustained.
In my view however, we can add two more.
1. An efficient distribution of risk. If you are in a hurry, will you
speed and violate traffic rules? You know that if you take the
risk of speeding and violating traffic rules, you hit somebody,
you can be held liable for damages. So is it worth the risk of
speeding? That is efficient distribution of risk. Because
otherwise, if tort law is not present, unsay mahitabo?
Everyone will have an incentive to speak. Thankfully under
Art. 2176, you can be held liable for damages.
2. Regulation of vengeance. By legally recognizing the class of
wrongs, not otherwise defined or regulated by statute, there
is less possibility of individuals putting the law into their own
hands. Naay civil law, naay criminal law. What happens to
cases that are in between? If there is no law that regulates
them, then people will tend to put the law into their hands.
So those are the aims of tort law.
(Sir talks about reading the assigned cases and recitations.)
December 1, 2014
So we were finishing up with the preliminary matters and basic
principles relating to Torts & Damages. Lets continue with quasi-
delicts proper which is of course the subject of discussion when we
look at Arts. 2176 to 2194 of the CC. But let us focus our attention
upon art. 2176 and succeeding provisions.
This is the basic provision.
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter. (1902a)
And this chapter being 2176 to 294 of the CC.
As for the literalmeaning and origin of the word quasi-delict, it comes
from two latin words:
1. quasi the latin word which means as if or almost or hapitna. Roman Law concept
2. delictum meaning fault or crime or offense.
So literally translated, quasi delict means almost a crime. But take
note that the translation makes the term a misnomer. Quasi-delict in
the Philippines is not almost crime. What makes an act or omissiona
quasi delict under art. 2176 is the presence of fault or negligence, not
the intent. When you talk about criems, ordinarily you will be talking
about mensrea or criminal intent which is inherent in every criminal
prosecution or in every criminal act.
Take note that under criminal law, art. 3 of the Revised Penal Code.
Art. 3. Definitions. Acts and omissions punishable by law are
felonies (delitos).chanrobles virtual law library
Felonies are committed not only be means of deceit (dolo) but also by
means of fault (culpa).
There is deceit when the act is performed with deliberate intent(Atty.
E: which makes up 99.5% of the RPC with respect to the
offenses defined therein) and there is fault when the wrongful act
results from imprudence, negligence, lack of foresight, or lack of skill.
And that would constitute the remaining point something of the RPC
regarding quasi-offenses or those that would arise out of criminal
negligence or imprudence. So lets go back to our basic assumption
earlier on that the term quasi-delict is a misnomer because in the
Philippines do not necessarily mean that they are almost crimes. Its
either that the common conception of the quasi delict is that it is not
supposed to be a criminal offense because what we are dealing here
are acts or omissions that are attended by fault or negligence which is
only a certain portion of the crimes punishable under the RPC. So in
other words, If an act which causes damages to another is committed
with intent to cause such damage then thats no longer supposed to be
a quasi-delict but rather it is treated as a crime. So parasaakua it is
really a misnomer.
Now what is the obligation involved in quasi-delicts? Some
commentators, including your favoriteBenjieParas (basketball
player???J), note that that the obligation involved in a quasi-delict is
the obligation to be careful. And I always contended that based on Art.
2176, that is not the obligation involved because the law provides that
Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. That
is the obligation involved in quasi-delict. Wala man
balaodnanagaingonnadilikinahanglangmagdinahag. No law would tell
you that because that is personal in the actor. So in other words, it is
the fact that the damage was caused by fault or negligence which
gives rise to an obligation under art. 2176. Without any act or omission
which causes damage there is no obligation to speak of. There is no
obligation which arises. The obligation involves in art. 2176 is a real
obligation obligation to give which is to pay for the damage done.
Now how do we distinguish a quasi-delict from tort? Mind you, this
question is asked in the Bar Examination some years ago. We know
because we have already discussed the general concept of tort.
Quasi-delict Tort
Limited to those acts which are In Philippine Law, include quasi-
governed by arts. 2176-2194 of delicts, violations of the law on
the CC but the main law would be human relations as well as
art. 2176 nuisance which we learned in
Property
Strictly a concept of Civil Law a Originally a concept of Common
Law
Why originally? Because right now it is difficult to draw the line
between a common law and a statutory tort because many common
law tort have already found their way to statute books.For example,
nuisances. Nuisances before used to be a common low tort but with
the passage of time and with the development of several legal
jurisdictions all over the world, ang tort had become translated into
statute. Imagine before that torts were undefined. In other words,
dilinicodal, dilinimga statutory na offense but with the passage of time,
cases were decided where a particular act or omission were considered
to be actionable but there is no law that defines liability, establishes
such act or omission to be the basis of that liability. And so pabalik-
balikang process, eventually they reach a point when there is a need
already to somehow codify and translate into statute these types of
wrongful act or omission where the law should be able to give redress.
And so tort right now is not necessarily a common-law concept but
based on your syllabus that I gave you, quasi-delict and torts have
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become children of mixed heritage. It may borrow from common law
concepts at the same time it might also proceed from a statutory
definition as provided by the different laws.
In addition, a quasi-delict as defined and originally conceived under
art. 2176 arises only if there is fault or negligence. Again, ngano man
pud defined and originally conceived? because later on we will learn
that a quasi-delict arises not only when there is fault or negligence but
also somehow parabulabugonangatongmgautok the Supreme Court
has ruled that it even includes intentional acts which somehow erodes
the distinction between a quasi-delict and a tort because a tort is
supposed to be broader because it ought to include not only
negligence but also intentional criminal acts as well. But later on when
you read the cases you will learn that theres this case telling you that
quasi-delict actually involves criminal acts.
Now what are the elements necessary to establish a quasi-delict case?
For that, we look at the case of..
DelaLlana v. Biong G.R. No. 182356, December 04, 2013.
Under this provision, the elements necessary to establish a
quasi-delict case are: (1) damages to the plaintiff; (2)
negligence, by act or omission, of the defendant or by some
person for whose acts the defendant must respond, was
guilty; and (3) the connection of cause and effect
between such negligence and the damages.28 These
elements show that the source of obligation in a quasi-delict
case is the breach or omission of mutual duties that civilized
society imposes upon its members, or which arise from non-
contractual relations of certain members of society to others.
Why was it that the testimonial evidence of Dra. DelaLlana herself
testifying as the plaintiff that collisions causing the whiplash injury was
rejected by the SC. Because it constituted opinion! And under the law
of Evidence, opinion does not count unless it is allowable opinion.
Remember that as a general rule, opinion evidence is not admissible
except where the opinion is rendered by an expert or it can also be
given by an ordinary witness or a witness who is not an expert
provided it falls under the exceptions for the allowable opinion (ie.,
emotions, behaviour, appearance, etc.). The fact that delaLlana is a
doctor does not necessarily mean that her testimony will be taken as
expert opinion and the rule also states that expert opinion is merely
advisory while the courts must rely on expert opinion to determine
certain matters of science beyond its competence because judges are
not medical doctors or scientists. It is not conclusive. It is merely
advisory.
Such a beautiful case this DelaLlana, not only does it lay down what
the SC is now tending to do to simplify the elements of the quasi
delict into 3 rather than the classic 5 elements of the SC which might
appear in your notes. It also gives you a paramount lesson that a
recitation of the elements of a quasi-delict is not enough. You have to
establish all of these requisites by a preponderance of evidence in
order to win the case. Thats very important. Now take note however
that these requisites in the case of DelaLlana, damage, negligence,
relation of the cause and effect between the damage and the
negligence is not really the classic recitation of requisites because
before lima nasyaka requisites as cited by Paras, Suarez, cited by me:
1. There must be an act or omission;
2. That there must be a fault or negligence attending the same
act or omission;
3. There must be damage caused to another;
4. There must be a causal connection between the fault or
negligence and damage; and
5. A negative requisite which can be found in art. 2176 that
there must have been no pre- existing contractual relations
between the parties.
Mao nasyaang classic na recitation of requisites but I agree more kani
(present requisites) because later on when we will learn when we
discuss art. 2180 and medical malpractice cases that mas uniform
kung kintihay it is simply damage, negligence and then the nexus
between damage and the negligence.
A fault or negligence in Civil Law must be distinguished from dolo.
Because if the act or omission causing the damage committed with
intent to cause damage, it is dolo. The act becomes a crime and so it
is governed by the RPC. When intent is absent, it is simply fault or
culpa. This distinction between the two concepts depends on the role
of the actor rather on his intelligence. Now remember that when a
person commits a crime, naa nay ginatawagnatona voluntarinessand
intent but when a person commits a quasi-delict, voluntariness is not
lost. Why? because it is by your volition that you did not exercise the
required degree of care under the circumstances. Walanawalaang
voluntariness.
Now what is negligence under the law? Particularly under art. 1173.
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad faith, the
provisions of Articles 1171 and 2201, paragraph 2, shall apply.
It is something that we should know by stock knowledge already. This
is basic Oblicon. And it applies in torts and damages. For example in
the case of..
Smith Bell v. Borja G.R. No. 143008. June 10, 2002
According to the SC, it proposes another definition of negligence other
than art. 1176. Negligence is conduct that creates undue risk of harm
to another. It is the failure to observe that degree of care, precaution
and vigilance that the circumstances justly demand, whereby that
other person suffers injury.
Now what are the types offault under the law?
(1) Fault which is Substantive or Independent which on
account of its origin gives rise to an obligation between two
persons not similarly bound by any other obligation. it is
otherwise known as culpa aquiliana or culpa extra-
contractual.
Now when you talk about fault that is substantive and
independent, what does it mean? It means that it by itself,
the fault by itself is an independent source of obligation. Asa
man natonakuhaang term na culpa acquiliana? It comes
from the lexaquilia of Roman Law. This was concerned
withdamnuminjuria datumor damage unlawfully inflicted.
And simply to demonstrate what lexaquiliaused to be and
why it became the basis of quasi-delict or culpa acquiliana in
Civil law, this is the first provision of the lexaquilla sometime
in 200 something BC by the Romans.
If anyone wrongfully kills anothers male or female slave or
four footed herd animal, let him be ordered to pay the
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owner whatever its highest value was in the preceding
year.
But what actually stands out given this translation of this
provision which I submit is an accurate translation? What
stands out? What can be killed here? A four footed animal
like a cow, and a male or female slave. Now it happens
today if a male or female or somebody is killed, what would
be the action? File of course a criminal case for murder,
homicide or what have you. But before take note that the
Romans treated the killing of the slave, if unlawful, because
there is lawful killing of the slaves, to be simply a civil
wrong. No prosecution, no penalty of imprisonment or by
virtue of reciprocity na kung nakapatayka, patyonpudka.
Before they treated slaves to be simply property equivalent
to cattle. And what would be the recompense here? The
recompense is simply that you have to pay the highest value
of either the herd animal or the slave underscoring the fact
that under Roman Law, a slave simply is a commodity or
property where only an action for damages can be
maintained. Thats the source of the term culpa acquiliana.
The Romans were very harsh. Note that there is a mere civil
action despite the fact that it may concern the unlawful
killing of a person. The killing of a slave was merely
considered a tort.
(2) Next type of fault would be as an incident in the
performance of an obligation which already existed which
cannot be assumed to exist without the other and which
increases the liability arising from the already existing
obligation. in other words, the fault or negligence arises out
of a pre-existing obligation and there can be no liability if
there was no contract to speak of in the first place. That is
why you call it culpa contractual a breach of contract.
There has to be a pre-existing contract. What is an example
of that? Take note in art. 1163.
Art. 1163. Every person obliged to give something is also
obliged to take care of it with the proper diligence of a good
father of a family, unless the law or the stipulation of the
parties requires another standard of care.
Take note that the main obligation or the pre-existing
obligation under art. 1163 is a real obligation an obligation
to give. But you are also obliged to take care of the thing
that you are supposed to give with the proper diligence of a
good father of a family. Now you can break or not fulfill your
obligation to give, you can also break your obligation to do
and that is to take care of the thing that you are supposed
to give. But what defined the relationship of the parties first?
That would be the obligation to give. Lets give a clearer
example with respect to this.
In a contract of commodatum, what is the ultimate
obligation of the bailee? of course to return the thing subject
of the commodatum. And while it is in your possession, you
have to take care of the thing with the proper diligence of a
good father of the family and if you lose the thing because
of your negligence, who will be held liable? And therefore
this is culpa contractual. You committed fault or negligence
in the course of your performance of the obligation which
was previously established by the contract. Say for example
you are riding a jeep and of course that is a contract of
carriage diba. What if nabanggaang jeep because of the
negligence of the driver, can you sue now the driver for
quasi-delict under art. 2176? General rule, NO! Why?
because there is a pre-existing contractual relationship
between yourself and the driver. There is a breach of
contract of carriage and therefore while there is negligence
because the driver was driving negligently that was simply
an incident of the fulfillment or the performance of a pre-
existing obligation and that is to deliver you to your
destination safely. Incident langsyadilisyaangmaoang source
sa obligation katong negligence. If you are sued for
damages, take note that you will be sued under a culpa-
contractual obligation rather than a culpa acquiliana.
Take note that the fault referred to under art. 2176 is SUBSTANTIVE
and INDEPENDENT. It is an independent source of obligation under
art. 1157. Fault under 2176 cannot be an incident in the performance
of the obligation because the provision requires that there should be
no pre-existing contractual relations between the parties. Take note of
that very very important requirement there which we will again destroy
when we go to the cases of Air France v. Carroscoso and etc.
Lets revisit art. 1173.
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the
persons, of the time and of the place. When negligence shows
bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall
apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good father
of a family shall be required. (1104a)
Is there a need for a rule in determining WON a person is negligent?
The SC in the case of
Orlis v. Manila Railroad March 28, 1929
This is a very old case. The SC ruled that negligence is want of care
required by the circumstances. It is relative or comparative it is not
an absolute term! Its application depends upon the situation of the
parties and the degree of care and vigilance which the circumstances
require. Where the
danger is great, a high degree of care is necessary and the failure to
observe it is want of ordinary care required by the circumstances.
So the SC is saying that there is no hard and fast rule. There is no
uniform standard in determining WON a person is negligent. By way of
example that there is no absolute rule here, is it not a fact that you
would be more careful if you are driving in a crowded street during a
busy hour compared to driving in an empty street? Or if you are
transporting an infant compared to when you are transporting an
adult, at least as far as Im concerned, I am more careful. Or carrying
a loaded gun or when you are carrying an empty one although I was
told that you should exercise the same degree of care when you are
carrying a loaded gun or an empty one.
Now the relative positions or physical situations of the parties
therefore must be considered. Which brings me to this very interesting
case which is asked in the Bar 3 yrs ago.
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Heirs of Completo v. Albayda July 6, 2010
What does the SC say here regarding the bicycle? What is the
important ruling here? This is where the SC drew the conclusion where
it should be Albayda who should win rather than Completo despite the
fact that Completo also gave a credible account of what took place.
The bicycle has an equal right to be on the road than a motorvehicle.
Thats what the SC said. It doesnt mean natungodbisikletaka mas
grabeang degree of care nairequiresaimo. In fact there is greater
degree of care that would be required of a motorist when you are
forced on the road with a vehicle with a disadvantage such as a
bicycle.
The bicycle occupies a legal position that is at least equal to that of
other vehicles lawfully on the highway, and it is fortified by the fact
that usually more will be required of a motorist than a bicyclist in
discharging his duty of care to the other because of the physical
advantages the automobile has over the bicycle.At the slow speed of
ten miles per hour, a bicyclist travels almost fifteen feet per second,
while a car traveling at only twenty-five miles per hour covers almost
thirty-seven feet per second, and split-second action may be
insufficient to avoid an accident. It is obvious that a motor vehicle
poses a greater danger of harm to a bicyclist than vice versa.
Accordingly, while the duty of using reasonable care falls alike on a
motorist and a bicyclist, due to the inherent differences in the two
vehicles, more care is required from the motorist to fully discharge the
duty than from the bicyclist.[44] Simply stated, the physical
advantages that the motor vehicle has over the bicycle make it more
dangerous to the bicyclist than vice versa.
So very unique ruling by the SC. *according to Sir, he hates bicycles
and motorcycles. Chika-chika*
By way of review, what are the types of diligence under the Civil
Code?
(1) Diligence agreed upon by the parties or conventional
diligence under art. 1163, the stipulation of the parties can
actually limit or expand on the required degree of diligence.
It is the diligence as a result of stipulation.
(2) Diligence required by law.
What is an example of a diligence required by law?
(1) Ordinary diligence or the diligence of a good father of the
family (bonus pater familias) which is the default standard
of care which is equal to the diligence of a reasonably
prudent man as mentioned in the case of Picart v. Smith;
and
(2) Extra-ordinary diligence.
Can you recall under the law, what situations would require extra-
ordinary diligence? What is the main example that comes to your
mind?
(1) Common carriersdiba. Because of art. 1733 and 1755,
that is the required degree of care.
Art. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence
in the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further
expressed in Articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety of the passengers is further set
forth in Articles 1755 and 1756
Art. 1755. A common carrier is bound to carry the passengers safely
as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard for all the
circumstances.
Under art. 1755, although it does not use extra-ordinary diligence, it
uses utmost diligence of very cautious persons which again
translates to EO diligence. When you talk about ordinary diligence, it
usually equates to a reasonably cautious man, here EO diligence
equates to the diligence of very cautious persons.
So that is one of those instances where the law requires EO diligence.
But believe it or not there are a lot.
(2) Public utility companies at certain situations are required
to exercise EO diligence.
ILOCOS NORTE ELECTRIC COMPANY vs. CA G.R. No. L-53401
November 6, 1989
What you need to remember here is that there is really no categorical
pronouncement by the SC saying that there should be EO diligence
required of public utility companies. It was actually the CA which the
SC quoted with approval that extraordinary diligence requires a
supplier of electricity to be in constant vigil to prevent or avoid any
probable incident that might imperil life or limb. Buy you know what it
is the same thing. The main contention here of INELCO was the fact
that it was actually due to force majeure. The SC quoted here that
Indeed, under the circumstances of the case, petitioner was negligent
in seeing to it that no harm is done to the general public"...
considering that electricity is an agency, subtle and deadly, the
measure of care required of electric companies must be commensurate
with or proportionate to the danger. The duty of exercising this high
degree of diligence and care extends to every place where persons
have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The
negligence of petitioner having been shown, it may not now absolve
itself from liability by arguing that the victim's death was solely due to
a fortuitous event. "When an act of God combines or concurs with the
negligence of the defendant to produce an injury, the defendant is
liable if the injury would not have resulted but for his own negligent
conduct or omission.
But thats not all. The SC have the occasion to discuss this maxim
volenti non fit injuria. What is this? You knowingly engage in an
activity with full knowledge and understanding of the risk then you
suffer injury. Whos at fault? You! Thats volenti non fit injuria or the
doctrine of assumption of risk. The SC is saying that if you are saving a
person or saving your own property, the doctrine of volenti non fit
injuria does not apply.For it has been held that a person is excused
from the force of the rule, that when he voluntarily assents to a known
danger he must abide by the consequences, if an emergency is found
to exist or if the life or property of another is in peril (65A C.S.C.
Negligence(174(5), p. 301), or when he seeks to rescue his
endangered property. That is what the SC ruled in relation to the
defense of volenti non fit injuria of INELCO.
When I imagine volenti non fit injuria, what always comes to my mind
is Manny Pacquiao. Because volenti non fit injuria is usually applied to
sporting competitions. By engaging in a lucrative sports competition or
physical activity knowing the risks, you cannot later on complain. If
some injury befalls him (Manny Pacquiao), that is volentinon fit injuria.
Its your voluntary assumption of a risk that led to your injury and
therefore you are entitled to nothing. Para dilinatomakalimtunnoh,
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when you are thinking about volenti non fit injuria, think about Manny
Pacquiao.
(3) BIR and Customs Examiners in certain cases are also
required to exercise EO diligence. According to RA 9335,
section 8.
Section 8. Liability of Officials, Examiners and Employees of
the BIR and the BOC. The officials, examiners, and employees of
the Bureau of Internal Revenue and the Bureau of Customs who
violate this Act or who are guilty of negligence, abuses or acts of
malfeasance or misfeasance or fail to exercise extraordinary diligence
in the performance of their duties shall be held liable for any loss or
injury suffered by any business establishment or taxpayer as a result
of such violation, negligence, abuse, malfeasance, misfeasance or
failure to exercise extraordinary diligence.
What is the situation that is contemplated by this sec. 8?
Anginyongtimanankayingani.Dibanaatay OPLAN KANDADO? Where if
you are found not to be paying the correct taxes in the BIR, the BIR
has the right to close the establishment.Now what if
angimonggikandaduhan is not an errant tax payer but one who really
pays the correct taxes. What happens to his business? His business will
of course suffer damages lucrossessante under the law on damages.
Kana bitaw profits that he failed to obtain because of the act. The law
actually now requires BIR and customs examiners to exercise EO
diligence in the performance of such functions.
(4) Banks
Samsung Construction vs. Far East Bank, August 14, 2004
EO diligence is required of banks. However, the process that they
applied was the usual verification or validation process used by the
banks. But why does the SC find it wanting? Because here Banks are
engaged in a business impressed with public interest, and it is their
duty to protect in return their many clients and depositors who
transact business with them. They have the obligation to treat their
clients account meticulously and with the highest degree of care
which again equates to EO diligence. The diligence required of banks
therefore is more than that of a good father of a family but this is only
limited to when banks are acting in their fiduciary capacity. Now youve
done credit transactions. Now remember the nature of a loan or a
deposit with the bank. It is in the nature of EO diligence where its not
actually the bank doing you a favour by keeping your money but you
are the one giving the bank a favour by giving them money to invest.
Mao man na.and therefore they being simply the one keeping the
money for you and using your money, they have that fiduciary
relationship with you and because of that fiduciary relationship, they
are handling not their money but yours, they are required to exercise
EO diligence in such dealings.
However, in a case previous to this Samsung Construction case,
theres this case of Reyes v. CA where the SC came out with an
entirely different ruling where they said you know what EO diligence is
not required.
Reyes v. CA G.R. No. 118492. August 15, 2001
What differentiates this case from Samsung Construction? In this case,
it involves a sales transaction rather than a deposit situation with a
bank where of course it is required to exercise EO diligence. So you
have to draw the line there. A fiduciary function is when you perform
functions that are imbued with trust and confidence. Why? because
you are not dealing with your own money, you are dealing with a
depositors money. Thats fiduciary. If its dealing with depositors, that
is fiduciary capacity. But when it is simply as in the case of Reyes v.
Ca, merely a sales transaction where it does not deal with account of
depositors but simply facilitating a sales transaction, thats not
fiduciary in nature. And therefore, there is no requirement of EO
diligence in the latter case.
Another example, naakay $100 gipadalasaimongninonggikansa US
giipitsa card. Now you go to a bank to have it converted into Philippine
Peso and then negligently the bank gave you the wrong amount.
Nalugika. Can you sue the bank for negligence? No! you cannot sue
the bank for damages and say that you know what is required here is
EO diligence because its not acting in a fiduciary relationship.
Nagpachangeka. The situation would have been different if you took
that $100 bill, deposited with the bank and withdrew it later on
uggitagaankaugkuwang because of negligence. In that case, the bank
would be acting in a fiduciary relationship. Thats how we should
remember the cases of Reyes and Samsung. Daghan pa kaayona
cases. Here the SC said that if it is not acting in a fiduciary capacity,
ordinary diligence. The same higher degree of negligence would not be
required of banks if they are not acting in the same fiduciary capacity.
Garcia v. CA
I am sure you would remember this case as one filed by Nene
Pimentel where he sued the Board of Canvassers. I dont know if this
is the case you discussed in political law or election but in torts &
damages, maoniiyang ruling Public policy dictates that extraordinary
diligenceshould be exercised by the members Board ofCanvassers in
canvassing the results of an election.Any error on their part would
result in the disenfranchisement of the voters. The Certificate of
Canvass for senatorial candidates and its supporting statements of
votes prepared by the municipal board of canvassers are sensitive
election documents whose entries must be thoroughly scrutinized.
Take note that this ruling has been eroded already this ruling and
this requirement of EO diligence because you cannot charge a PCOS
machine with negligence.
(5) Officers of the Securities and Exchange Commission
- section 6 of RA 7699
Section 6. Indemnification and Responsibilities of
Commissioners.6.1. The Commission shall indemnify
each Commissioner and other officials of the Commission,
including personnel performing supervision and examination
functions for all cost and expenses reasonably incurred by
such persons in connection with any civil or criminal actions,
suits or proceedings to be liable for gross negligence or
misconduct. In the event of settlement or compromise,
indemnification shall be provided only in connection with
such matters covered by the settlement as to which the
Commission is advised by external counsel that the persons
to be indemnified did not commit any gross negligence or
misconduct. The costs and expenses incurred in defending
the aforementioned action, suit or proceeding may be paid
by the Commission in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by
or on behalf of the Commissioner, officer or employee to
repay the amount advanced should it ultimately be
determined by the Commission that he/she is not entitled to
be indemnified as provided in this subsection.
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6.2. The Commissioners, officers and employees of the
Commission who willfully violate this Code or who are guilty
of negligence, abuse or acts of malfeasance or fail to
exercise extraordinary diligence in the performance of their
duties shall be held liable for any loss or injury suffered by
the Commission or other institutions such as a result of such
violation, negligence, abuse, or malfeasance, or failure to
exercise extraordinary diligence. Similar responsibility shall
apply to the Commissioners, officers and employees of the
Commission for (1) the disclosure of any information,
discussion or resolution of the Commission of a confidential
nature, or about the confidential operations of the
Commission unless the disclosure is in connection with the
performance of official functions with the Commission or
prior authorization of the Commissioners; or (2) the use of
such information for personal gain or to the detriment of the
government, the Commission or third parties: Provided,
however, That any data or information required to be
submitted to the President and/or Congress or its
appropriate committee, or to be published under the
provisions of this Code shall not be considered confidential
(6) Respondent public officers in writ of Amparo cases
Burgos v. CA
What I want you to focus on the case apart from the obvious that if
you are a public officer who is a respondent in a writ of amparo case,
there is a requirement of EO diligence but for your purposes. I dont
know man gud if these cases have been discussed in your previous
classes. In evidence, I usually discuss writ of amparo cases but only in
passing especially when we discussed the case of Razon v. Tagitis
where the SC relaxed the evidential requirements to support the
issuance of writ of amparo by allowing hearsay evidence so that they
so that they will simply have to comply with the standard reason that
is the basic test of relevancy of the evidence even if hearsay sya
technically. This is the most recent. What you need to also know with
the distinction between responsibility in writs of amparo cases and
accountability. What makes them difficult? Would responsibility have
the same requirement of EO diligence? Would accountability __
adunay (?) na requirement of EO diligence? In what subject do you
discuss writ of amparo? Mostly specpro eh. Whos your teacher in
Specpro? (class: maam Tiu) oh, the beautiful one? J
Take note section 17 of the Rule from writ of Amparo.
SEC. 17. Burden of Proof and Standard of Diligence Required.
The parties shallestablish their claims by substantial evidence. The
respondent who is a privateindividual or entity must prove that
ordinary diligence as required by applicable laws,rules and regulations
was observed in the performance of duty. The respondent who is
apublic official or employee must prove that extraordinary diligence as
required byapplicable laws, rules and regulations was observed in the
performance of duty. Therespondent public official or employee cannot
invoke the presumption that official duty has been regularly performed
to evade responsibility or liability
There is a distinction in the case of Burgos between responsibility and
accountability. The accountability is one which requires the EO
diligence. Responsibility man gud,
naabakaysalasapagkawalaaningtawhana or the violation of his
fundamental constitutional rights. Just read the case of Burgos.
Does the term quasi-delicts apply to intentional acts?
Dulay v. CA G.R. No. 108017 April 3, 1995
When it is subsidiary liability, what is the effect of that? What is the
main requirement in order that there be subsidiary liability that can be
imposed upon the employer under art.102 and 103 of the RPC? There
has to be a conviction and then there is that finding of insolvency. If
only art. 100 of the RPC in relation to art. 103, the security agency can
only be held liable if the employee is convicted and in the finding of his
insolvency. If art. 2176 is applied in relation to art. 2180, the liability of
the security agency is primary and therefore direct recourse can be
had against the security agency. How did the SC rule? Well-
entrenched is the doctrine that article 2176 covers not only acts
committed with negligence, but also acts which are voluntary and
intentional. So pwedena nay direct recourse under art. 2176.
Let us look at this situation: Maja files a case against Sarah with prayer
for damages. She was also allowed to file an independent action for
damages under art. 2176. In other words, say for examplegi-
fileannasyaugcriminal case for serious physical injuries but remember
that you can actually institute an indepent civil action for damages if
there is physical injuries including by way of basis art. 2176. Can you
recall that in your persons & family relations, pwedenanaay
independent civil action. Now Sarah is sued in a criminal case.
Ngangayoug damages siMaja and then on the civil case, based on the
same acts of Sarah, nangayolanggihaponug damages siMaja. Is it not
unfair? Kaluoynalangni Sarah. Jifmaja wins in both cases, she will be
awarded damages twice. Isnt that unjust enrichment? So how did the
SC ruled on that in Dulay?
Article 2176, where it refers to "fault or negligence," covers not only
acts "not punishable by law" but also acts criminal in character;
whether intentional and voluntary or negligent. Consequently, a
separate civil action against the offender in a criminal act, whether or
not he is criminally prosecuted and found guilty or acquitted, provided
that the offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be entitled
in such eventuality only to the bigger award of the two, assuming the
awards made in the two cases vary. In other words you can file two
separate actions: one for quasi delict and one for culpa criminal
provided that you cannot recover damages twice. You can sue for
damages twice but you can only recover once and the SC said in Dulay
whichever is the bigger amount, that is what the plaintiff is entitled. So
that is how the SC addressed the inequitable situation where Sarah
can be held liable twice. Kaluoypud.
Heres a weird case as far as Im concerned.
Calang v. People
Not really weird but more or less the same set of facts but SCs ruling
is totally different. There is also a killing of another person. But the SC
ruled that Articles 2176 and 2180 of the Civil Code pertain to the
vicarious liability of an employer for quasi-delicts that an employee has
committed. Such provision of law does not apply to civil liability arising
from delict. So art. 2176 napudkaron in relation to art. 2180 does not
apply to civil liability arising from quasi delict and therefore dili
applicable in the case of Dulay.
Now what is the reason why the ruling in Calang v. People is different
from the ruling of Dulay v. CA? didtosaDulayna case, naay case filed
against the employer, Superguard. Here in Calang, wala eh. No
independent civil action was filed that would claim primary liability
upon Philtranco. So thats the reason why the ruling was different.
There was no independent civil action filed against Philtranco in this
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case. It was not a direct party in this case. Since the cause of action positive law.
against Calang was based on delict, both the RTC and the CA erred in Theres no law
holding Philtranco jointly and severally liable with Calang, based on that tells
quasi-delict under Articles 2176[1] and 2180[2] of the Civil Code."So you to be
walay conflict. What the Dulay case is saying is you can use art. 2176 careful
to recover damages by way of an independent civil action which can specifically.You
be filed separately from the criminal action. Because what provision of dont have to
the law is this where you can file an independent civil action for betold to be
defamation, slander, physical injuries? The SC held that physical careful.
injuries does not necessarily mean physical injuries lang out of Quantum of Preponderance of Preponderance Proof Beyond
negligence or physical injuries in the specific sense. You are talking Proof Evidence of Reasonable
here about physical injuries in the generic sense which includes Evidence Doubt despite
intentional killing of a person. Thats what the SC is saying. Although being
medyoliboggamay because again the basic premise is when you are Prosecuted
talking about negligence you are not supposed to talk about under Article
dolokaylahiangdolosa culpa. 365 of the Civil
Code for
Art. 2177. Responsibility for fault or negligence under the preceding aquasioffense.
article is entirely separate and distinct from the civil liability arising Burden of Debtor- foras The Victim - he Prosecution
from negligence under the Penal Code. But the plaintiff cannot recover Proof long as has to prove initially,
damages twice for the same act or omission of the defendant. (n) theresproof the negligence because the
thatthere wasa of the accused is
Based on what we know so far, there are 3 basic types of culpa that contractand it defendant. innocent until
can be used as basis for personal injury actions, namely: wasnotperformed This is because proven guilty.
(1) Culpa acquiliana; and it his action is
(2) Culpa contractual; and isthedebtorsduty based on the
(3) Culpa criminal. to alleged
prove thathe was negligence on
Take note of the distinctions between these concepts. Take note of the not the part of the
table. negligent. defendant.
(TN: table taken from last years class tsn. Sir did not discuss the Whether the Not a proper or Proper and Not proper but
distinctions.) Diligence of complete defense complete it is proper in a
Culpa Culpaacquilia Culpa a Good but may mitigate defense. CF subsidiary
contractual na criminal Father of a damages. with Article liabilityemploy
As to the Negligence is Negligence is Negligence is Family can 2180 on ees criminal
characterizati merely direct, direct, be a defense Vicarious liability is
on Incidental to the substantive Substantive Liability automatically
of negligence performance of and andindepende employers civil
an obligation independent of nt of contract. liability if the
already existing contract. former is
because of It can be insolvent.
contract. committed Type of right Private right (i.e. Private right Public right,
(Art. 1170) despite the violated debtor-creditor) but based on the reason
When negligence fact that law and not on why the states
the performance there is no contract. that
of the contract. (accidents) prosecutes a
obligation,it criminal, not
entitles the individual.
the other party to Remedies Specific Action for Criminal
damages. Performance or Damages prosecution
As to the There is a pre- No pre-existing There is no Rescission with under Article plus Damages
existence of existing obligation pre-existing damages based 2176 found in
obligation obligation based except Obligation on Article 1170 Articles 104,
on perhaps that except the read together 107 of the RPC
contract you have to be duty not to with Article 1191
careful in all harm others
your or to commit a
(actuations?) crime. Necessity of proving negligence. This is very very important in a quasi-
which is a delict case. Unless you are able to prove by a preponderance of
product of negligence that there was negligence on the part of the defendant,
natural law, then the plaintiff cannot recover. However, since negligence in certain
not any cases is hard to prove. We apply the doctrine ofres ipsaloquitor or
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the thing speaks for itself. What does this doctrine mean? This means
that in certain instances, the presence of the presence of facts and
circumstances surrounding the injury clearly indicate negligence on the
part of the defendant. The maxim applies whenever it is so improbable
that the accident would have happened without the fault of the
defendant that the reasonable man could find withoutfurther evidence
that it was caused. The maxim throws on to the defendant the burden
of disproving negligence. My favourite case in the whole world applies
to this doctrine.
Republic v. Luzon Stevedoring
The facts are very simple. Barge towed by tugboats. If you want
simplify the facts. There is this barge and there is this stationary object
which is the bridge. You just simplify the facts to a moving object and
a stationary object. And there was an allusion where there is an
incident between a moving object and a stationary object.
Alangannamanangbutangangnaglihoklikok. Its common sense. But
does it necessarily mean that kadtongnaglihokna object is the one that
is liable? Necessarily. But the effect is when the doctrine of the res
ipsaloquitor applies based on the facts of the case, it throws upon the
defendant the burden of proving that it was not negligent. That is the
effect of a presumption. It throws the burden to the other party, rather
than it is the plaintiff having the burden of establishing that the
defendant was negligent because of the operation of the doctrine such
as the doctrine of res ipsaloquitor, it throws upon the defendant the
burden conversely. Karonang defendant naangnaay obligation to come
forward with the evidence and say that diliko negligent. That is the
effect of the doctrine of res ipsaloquitor.
Africa v. Caltex
here are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or by
another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by such
other person in the performance of a duty specially enjoined by law;
and (c) that the public officer or other person had sufficient knowledge
of the facts by him stated, which must have been acquired by him
personally or through official information (Moran, Comments on the
Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered
here. This is a very very old case. A 1966 case.
December 15, 2014
Last meeting, weve talked about quasi-delicts. Of course, when we
talk about quasi-delict, in general, were talking about Article 2176 of
the Civil Code, which is the only codal provision which I trust you are
very familiar with already. Take note that in jurisprudence, the
traditional elements of a quasi-delict are five although in recent cases
there are three are only three requisites, these are the minimum
requisites in order for a quasi-delicts to exist but just go over these
traditional elements:
1. There must be an act or omission;
2. There must be fault or negligence;
3. There must be damage caused to another person;
4. There must be a causal connection between the fault and
damage; and
5. There must have been no pre-existing contractual relation
between the parties.
There must be an act or omission
Of course we know what an act or omission is. An act is something
that you do positively. An omission, on the other hand, is something
that you neglect to do. Take note that a quasi-delict can actually exist
even if it is by omission only. There is no need for a positive act for
you to be considered liable in a quasi-delict.
There must be fault or negligence
It must be in attendant with the act or omission.
There must be damage caused to another person
Damage is from the Latin term damnum, which in turn is taken from
the term demo can be derived which is to take away.
In the study of Torts & Damages, the term damage has two
significations:
1. The sum of money which the law imposes as pecuniary
compensation, recompense, or satisfaction from any injury done
or wrong sustained;
This concept can be taken from Articles 2195-2235. These would
be the provisions of the CC relating to the different types of
damages from, actual to exemplary.
2. The injury or loss caused to another by the violation of vehicle
rights.
There must be a causal connection between the fault and
damage
There must have been no pre-existing contractual relation
between the parties
The fifth requisite, without going into the doctrine of proximate cause,
because if youve realized the fourth requisite is that there should be a
relationship between the act and damages, is a negative requisite
the absence of a contract. There must be no pre-existing contractual
relationship between the parties in order for liability to attach under
Art. 2176. This so because contract is a separate source of obligation
under the Civil Code and so also is a quasi-delict. Culpa aquiliana is
different from culpa contractual. There are separate bodies of
remedies provided for contracts and, sure, you have already discussed
some of these remedies. In obligations and contracts, for example, in
a breach of contract, if there is fault, negligence, delay, there will be
remedies provided for it provided by article 1191, there are three:
1. Rescission which is implied in reciprocal obligations;
2. Specific performance; and
3. Damages in either case.
Remember that you can also sue for damages as a separate action and
not necessarily an additional prayer in an action, lets say, for specific
performance or rescission. Remember in your civil procedure that in a
case purely for damages what would be the determinant of
jurisdiction? The amount of damages claimed such that if the amount
of damages exceeds P 300,000 in Davao, for example, where does the
jurisdiction lie? In the RTC. OK?
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Example, if a common carrier leaves a passenger stranded in the
middle of nowhere, there is a breach of contract of carriage. It does no
matter how the contract is breached or whether that breach a contract
the common carrier is negligent your cause of action is for breach of
contract. The fact that the contract was entered into and was not
fulfilled is enough for culpa contractual to be a source of liability.
**Sir talking about one of his experiences in law school where he
represented the school in a debate in CDO. They chartered a van that
broke down while they were travelling and so they ended up riding a
jeepney to Davao. According to Sir, it was a breach of contract of
carriage as the common carrier failed to deliver them safely and
securely to their destination.
Another example, X rode a bus operated by Y Bus Company. The
driver of the bus was negligent and bumped a light post. In short, X
did not arrive at his destination safely and securely. X also suffered
injury. What type of contract is the source of liability here? Of course,
we know that would be culpa contractual, there is breach of contract
of carriage. Again, it does not matter how the contract was breached
for as long as it was breached. But the question is, diba nay
negligence? Can X sue Y Bus Company for culpa aquiliana precisely
because there is negligence on the part of the employee of the bus
company? Take note that as a general rule NO! Article 2176 clearly
stated that there must be no pre-existing contractual relationship
between the plaintiff and the defendant. HOWEVER, there is a very
broad exception placed on jurisprudence. It has been held that if the
manner of breaching a contract is in itself tortuous, there can be a
viable cause of action for culpa aquiliana even if there is a pre-existing
contractual relationship between the parties. This brings us to the
seminal case of Air France vs Carrascoso.
**RECITATION
Air France vs Carrascoso
Is there a breach of contract of carriage here? YES! Remember that in
transportation law, you should get what you paid. In this case, he paid
for first class accommodation, so why was he in tourist class from
Bangkok to Rome? Thats the reason why there was a breach of
contract of carriage.
Did he sue? What was the basis of his suit? He sued on the basis of
culpa contractual.
There was a breach of contract of carriage, we cannot dispute that,
but what was the contention of Air France when it was assessed moral
damages? Air France contended that there was no bad faith. Why is
the presence of bad faith important in that issue? In breaches of
contract, remember, moral damages can only be awarded if the breach
of contract results to the death of passenger or if there is bad faith.
Remember also that in transportation law, there is a little bit of a
qualification, sometimes gross negligence amounts to bad faith but
that is not the issue in this case. Air France is saying that there cannot
be any award of moral damages because he was not able to specify
unsa diadto ang bad faith. Ok?
What else? What was the other contention of Air France? Assuming for
the sake of argument that there is a breach of contract of carriage,
moral damages cannot still be awarded because in a quasi-delict or in
a tort there is that requirement that there should be no pre-existing
relationship between the parties. How did the SC solve that line of
argument? The SC said that, under article 21 of the CC, any person
who willfully causes loss or injury to another in manner that is contrary
to morals, good customs or public policy shall compensate the latter
for damage. That was the tort that according to the SC was the basis
of liability here.
What was the ruling which the SC elevated (?) in the status of doctrine
in the ruling of this case? The SC said that the act which itself breaks
the contract may be a tort. So, the requirement of there being no pre-
existing contractual relationship between the parties may not
necessarily apply if the act which breaks the contract is by itself
tortuous.
Neglect or malfeasance of the carrier's employees, naturally, could
give ground for an action for damages. Passengers do not contract
merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against personal
misconduct, injurious language, indignities and abuses from such
employees. In this case, that was precisely what the employee of Air
France did because this is a form of discrimination, saying that there
was a white man who has better right to the seat. Hence, the SC
awarded damages against Air France. So it is that any rule or
discourteous conduct on the part of employees towards a passenger
gives the latter an action for damages against the carrier. Although the
relation of passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract may be also a
tort".
Petitioner's contract with Carrascoso is one attended with public duty.
The stress of Carrascoso's action as we have said, is placed upon his
wrongful expulsion. This is a violation of public duty by the petitioner
air carrier a case of quasi-delict. Damages are proper.
But I have a problem with the ruling of the SC. I am not saying that
this is not good law. I am saying that the SC might have a wrong
pronouncement in terms of nomenclature, why? According to the SC,
the quasi-delict is based on article 21 but is that a quasi-delict? Article
21 does not make up a quasi-delict but rather, in general terms, a tort
because a quasi-delict under article 2176 requires negligence. In this
case, the supposed quasi-delict was not attended by negligence,
whatsoever, rather it is an act committed with intent.
Lets go to the next case
Coca Cola vs. CA
The respondent here is a proprietress of a canteen. She filed an action,
under article 2176, against Coca Cola because the coke product that
she sold was contaminated.
What was the contention of Coca Cola? It is not a quasi-delict. In the
answer of coca cola, it alleged to affirmative defenses. Coca Cola is
saying that, assuming that I am liable still you cannot successfully
obtain relief from the court because of these affirmative defenses:
1. The proprietress failed to state the cause of action; and
2. Prescription based on Article 1571 of the CC
What was the contention of the proprietress in this case? It has not yet
prescribed because the action can be brought within years, and not 6
months, under article 1146.
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Under article 1146, there are two items there (1) quasi delict and (2)
and injury on the rights of the plaintiff. In fact, before the court a quo
it was injury to the rights of the plaintiff, later on it was somehow
changed to quasi-delict under article 2176. How did the SC rule?
The same ruling as in the case of Air France v. Carrascoso. There can
be a pre-existing contract, as in this case which is a contract of sale,
but if the act itself which breaks the contract is tortuous, liability can
attach under article 2176. Therefore, this being an article 2176 action,
it does not prescribe in 6 months but in 4 years.
While it may be true that the pre-existing contract between the parties
may, as a general rule, bar the applicability of the law on quasi-delict,
the liability may itself be deemed to arise from quasi-delict, i.e., the
acts which breaks the contract may also be a quasi-delict. Otherwise
put, liability for quasi-delict may still exist despite the presence of
contractual relations.
Now, in the contract of sale (?), the SC used the term quasi-delict to
describe negligent manufacture and its accurate because were talking
here of negligence as a cause of action. In Air France, its actually a
willful act, therefore you do not apply article 2176. Here, the SC
correctly called it a quasi-delict.
Regino v. Pangasinan Colleges
She was not able to take the examinations and, therefore, it delayed
her.
The SC did not make any pronouncements as to damages. In this
case, the SC merely remanded the case to the RTC to decide the case
based on the merits with dispatch.
There are quite some issues decided by the SC here.
First Issue
The first one is with respect to the issue of exhaustion of remedies. Its
a little bit out of topic what Pangasinan Colleges is saying is You are
not allowed to file a case for damages before the court because this is
an administrative matter. You are actually filing this case to cause a
reversal of the policy of Pangasinan Colleges the policy of no
payment of ticket, no final exam. According to Pangasinan Colleges,
you have to file this before the CHED.
The SC said NO, what she is asking is for damages and not for a
reversal of the policy. She is no longer enrolled with Pangasinan
Colleges, thats what the SC said. Besides, the CHED cannot award
damages, it has no jurisdiction to do so.
Second Issue
The second one is with respect to the contract issue between Regino
and Pangasinan Colleges. What did the SC said? Was there a contract
between Regino and Pangasinan Colleges?
According to the SC, a contract between the school and the student is
actually two-way, its reciprocal. The school has obligations to its
students, the students have their obligations against the school. When
you enroll, you will be told what fees you are to pay. If you fail to pay
these fees, the school can actually refuse to continue performing its
obligations under the enrolment contract. The SC said the payment for
the tickets is not included in the contract and therefore dili nimo
pwede i-withhold ang service sa student because of that types of fees.
How did the SC rule on that contractual issue? Is it culpa contractual
or culpa aquiliana? Is there quasi-delict or tort in general? What was
the basis?
The SC ruled na mali ang pagka-dismiss. This case is not dismissible
on the ground that there is a contract and she is asking for damages
by way of tort. The SC even made a very nice discussion here relating
to academic freedom citing the case of Non v. Dames from your
political law.
What constitutes academic freedom? The SC here said that it is not a
cause of action. Academic freedom is not a defense because it is very
limited. The school can actually lay down what it will teach, how it will
teach, who will teach and who may be admitted to study. You cannot
use academic freedom to collect fees. Thats not at all related to
academic freedom.
Take note that in this case, the SC used the term tort to describe the
willful acts of the school and teacher. It did not use the term quasi-
delict.
Loadmaster v. Glodel
Columbia here engaged the services of Glodel for the release and
withdrawal of its cargoes from the pier and subsequent delivery to its
warehouse. Glodel, in turn, engaged the services of Loadmasters for
the use of its delivery truck to transport the cargoes to the warehouse
in Bulacan and Valenzuela City. There were 6 trucks, 5 of them arrived
with the cargo, 1 of them, I dont know may be hi-jacked, wala
nadeliver. The cargo that was not delivered amounted to P 2M. So, R
& B insurance paid Columbia the amount of P 1.8M as insurance
indemnity. Remember that there is this right of subrogation granted to
insurance companies, if you pay, you are now subrogated to the rights
of the plaintiff to recover whatever it is that was paid. The insurance
filed a case for damages against, both, Loadmasters and Glodel, it
sought the reimbursement of the amount it paid to Columbia for the
loss of the subject cargo claiming that it had been subrogated to the
right of the consignee to recover from the party or parties who may be
held legally liable for the loss.
Now, Columbia has a contract with Glodel. Glodel, on the other hand,
sub-contracted with Loadmasters. So, if were talking about contractual
privity here, theres contractual privity between Columbia and Glodel,
theres also contractual privity between Glodel and Loadmasters BUT
nothing between Columbia and Loadmasters. To complicate this a little
bit further, there is also contractual privity between R&B and Glodel,
ok?
Would a breach of contract on the part of Glodel be considered a
breach of contract on the part of Loadmasters? NO! The principle of
relativity of contract governs. The contract takes effect only between
the contracting parties, their heirs and assigns. Remember the
exception, the exception of stipulations pour autrui which requires
acceptance of benefits under the contract for you to also make the
contract apply to the third persons. In this case, there is not such
stipulation. How did the SC rule? Both of them are jointly and severally
liable to R&B Insurance for the loss of the subject cargo. Under Article
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2194 of the New Civil Code, the responsibility of two or more persons
who are liable for a quasi-delict is solidary. In other words, what the
SC seems to imply is the fact that both Loadmasters and Glodel are
liable based on Article 2176. Ok? The SC is actually not talking about
the contract between Glodel and Columbia. Loadmasters claim that it
was never privy to the contract entered into by Glodel with the
consignee Columbia or R&B Insurance as subrogee, is not a valid
defense. It may not have a direct contractual relation with Columbia,
but it is liable for tort under the provisions of Article 2176 of the Civil
Code on quasi-delicts.
No we have discussed 4 cases relating to this. The requirement that
there should be no pre-existing contractual relations between the
parties and the very broad exception to that requirement if the act
which breaks the contract is tortuous, you can actually sue for tort or
quasi-delict, you can be held liable for damages if you are the
defendant. What is not clear to me, and I am sure, to you as well,
although I believe that you wouldnt mind, because ignorance is bliss,
when the SC makes an award for damages in these cases, is it
awarding on the basis of culpa contractual or culpa aquiliana?
Here, it might lead to that implication that you are liable for culpa
aquiliana despite the presence of a contract but, still, you cannot
change the fact that there is a contract. In fact, the SC used
extraordinary diligence as the standard of care because both Glodel
and Loadmasters are common carrier. So ang basis for the filing of
negligence is the requirement of extraordinary diligence which is
proper in a breach of contract of carriage culpa contractual pero
liability was assessed upon both of them, solidary, on the basis of
culpa aquiliana under Article 2176.
** Sir giving instructions for the legal paper/project
Let's go to 2177
Article 2177. Responsibility for fault or negligence under the
preceding article is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the
defendant.(n)
I think we already discussed this when we are talking about the case
of Dulay vs CA. Remember the lawyer who had an argument with the
security guard, this is art 2177. what you need to remember is that
sometimes an act can be both culpa contractual and culpa aquiliana
and culpa aquiliana and culpa criminal, in fact there are instances
where all these culpa( culpa contractual, culpa aquiliana, culpa
criminal) might coincide in the same set of facts. For example, A was
riding a bus owned by X. B was riding the jeepney owned by Y.
Nagbangga ang duha, but remember with respect to the passenger A,
A will not have any cause of action for breach of contract against Y
because wa man siya ngsakay sa jeep, nagsakay man siya sa bus. The
same thing can be said with B. Wa pod siyay contract with X bus
company. So in that set of facts, there can be culpa aquiliana, there
can be culpa contractual and based on Art 2177, there can also be
culpa criminal because this can be considered a quasi-offense
depending of which of the two common carriers is liable in the case.
Take note that while a single act be both constitute culpa aquiliana
and culpa criminal, you can actually sue on the basis of these two
types of culpa. What the law however proscribes is for the plaintiff to
recover damages twice for the same act or omission.
What are the things to remember regarding Art 2177?
-You can file independent civil action for culpa aquiliana or quasi delict
-you can also file a criminal action on the basis of Art 365 of the RPC,
you can do that.
What if you are awarded damages in the civil case and you are also
awarded damages in the criminal case? Is that allowed by law?
Yes. Actually it's allowed but there is a limitation on what you can
recover. You cannot recover twice. Let's say for example, there is this
guy, nabanggaan og jeep leading to his right leg to be amputated. So
he filed a criminal action against the driver. Daog-awarded damages.
In the independent civil action, also awarded damages. Pero pila ka tiil
ang naputol? Isa lang. Can you recover twice by ___ your other leg?
You can't. Paputol nalang pod nako para duha akong madawat. No,
you cannot do that. So what the law proscribes is double-recovery. But
double filing, no problem.
Now take that when there is an award in the criminal case and also an
award of damages in the civil case, the plaintiff or the complainant can
recover whichever is higher of the two amounts. There is no
prohibition, pwede marecover ang higher amount.
Article 2178. The provisions of articles 1172 to 1174 are also
applicable to a quasi-delict. (n)
Nothing much there, you already know what is art 1172 to 1174. So I
think there is no need for us to review, although 1174, we will be
discussing that in a little bit when we talk about fortuitous event (force
majeure).
Article 2179. When the plaintiff's own negligence was the immediate
and proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the damages to be
awarded. (n)
What is proximate cause?
When you say cause, then it can be equated with the reason, the why.
Such that in civil procedure when you talk about cause of action, you
also talk about it as the why of the litigation. Same thing with the
proximate cause.
Why is there such an adjective proximate? Direct reason. Immediate
cause.
Bataclan vs. Medina (Doctrinal case about proximate cause)
There is this bus that went turtle. Then 4 people were left inside. Then
there is this another group of people who came to rescue but bringing
with them torch as light. And then naa nay leaking ang gas tank,
nisiga hinoon. So 4 people inside died.
What was the proximate cause there?
Lets go to the defenses in Quasi-delict:
1st: the defendant is not negligent, meaning you are completely
denying it. Its a defense of denial. You're saying that negligence as
are requisite of quasi delict is not proven. In other words a defendant
must prove by preponderance of evidence the he exercise the required
degree of care. Remember that the required degree of care is always
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relative. The fault or negligence of the defendant consist in the
omission of the degree of care required by the circumstances of the
case that corresponds with the circumstances of the person and of the
time. There is no uniform rule in determining whether or not negligent
ba ang defendant. Negligence in case A may not necessarily be
negligence of case B and vice versa.
2nd defense: Damnum Absque Injuria. There may be damage but
the law does not consider it as _____, means loss without wrong is
damage without legal injury. Remember the requirement that there
should be damage, in the sense that it is injury or loss, the second
concept of damage. So, your actually saying walay damage eh, in
other words I shall not be held liable. Take note that we have
encountered a lot of Damnum Absque Injuria situations in the past.
For example, in criminal law, you have the concept of Justifying
circumstances under Art 11, self-defense, defense of relatives, defense
of strangers, then we have the 4th one, the state of necessity which
we will be qualifying later on, fulfillment of a duty, exercise of a right
or office and obedience of lawful orders.
Article 11. Justifying circumstances. - The following do not incur any
criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent
or repel it.
Third. Lack of sufficient provocation on the part of the person
defending himself.
2. Any one who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural or adopted
brothers or sisters, or his relatives by affinity in the same degrees
and those consanguinity within the fourth civil degree, provided
that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the
revocation was given by the person attacked, that the one making
defense had no part therein.
3. Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites mentioned in
the first circumstance of this Article are present and that the
person defending be not induced by revenge, resentment, or other
evil motive.
4. Any person who, in order to avoid an evil or injury, does not act
which causes damage to another, provided that the following
requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid
it;
Third. That there be no other practical and less harmful means of
preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.
6. Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
Now, remember that all of these 6 justifying circumstances would
exempt the actor or the accused not only for criminal liability but also
civil liability. The only time that there is award of civil liability under Art
11 of the RPC is when a person acts in the state of necessity. But it is
not even the accused who will be assessed damage/s, it's actually
the people benefited by the act done in the state of necessity.
Murag wala na ninyo na-teacher si Judge Canete no? Here's his story
no, that Judge Canete always tells us about state of necessity. Let's
say there is a fire and the fire will spread. Ing-ana man ng fire diba, it
will spread if you will not stop it. So there is this technique where you
bound or you destroy the place para dili mu-spread ngadto ang fire.
Mao man ng story ni Judge Canete, the bombing of LM Bakery.
Gipabuto niya, as a policeman before, so that the fire will not spread
anymore. So kinsa ang nagbenefit? Those succeeding houses na wala
na-burn. Who suffered damage? The person whose house was
destroyed so that the fire will not spread. SO those who benefited will
share equally sa damage atong tao, whose property was destroyed
under the state of necessity.
In any one of these circumstances, remember that there is always
damage. Is it not a fact that when you commit a killing in lawful self-
defense that you actually violate the right of another. When kill
somebody in self-defense, you still violate his right to life, however
wasted that life is. You should not kill him. In other words, he suffer
injury, his family by implication suffers injury as well. However,
because the law considers it a justified killing, there is no legal injury
to speak of. Damnum Absque Injuria. Same thing with defense of
relatives, defense of strangers and so on. State of necessity, the same
thing, you do not commit criminal liability, the actor also incur any civil
liability.
Another one is Art 12, for example.In par 4 Any person who, while
performing a lawful act with due care, causes an injury by
mere accident without fault or intention of causing it, is not
civilly liable for damages also. Infact, he is not also criminally liable by
way of exempting circumstance. There is damage, yes, but the law
does not consider it as an injury. Damnum Absque Injuria- damage
without anything which the law considers to be actionable. In all the
foregoing cases, for example in criminal law, there is a certain injury
suffered by person. However the law does not give him a remedy.
While there may be a violation of right, it does not concur with a
breach of duty on the part of the defendant or the accused.
Article 12. Circumstances which exempt from criminal liability. - the
following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted
during a lucid interval.
When the imbecile or an insane person has committed an act which
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the law defines as a felony (delito), the court shall order his
confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave
without first obtaining the permission of the same court.
2. A person under nine years of age.
3. A person over nine years of age and under fifteen, unless he has
acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Art. 80 of
this Code.
When such minor is adjudged to be criminally irresponsible, the
court, in conformably with the provisions of this and the preceding
paragraph, shall commit him to the care and custody of his family
who shall be charged with his surveillance and education
otherwise, he shall be committed to the care of some institution or
person mentioned in said Art. 80.
4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
5. Any person who act under the compulsion of irresistible force.
6. Any person who acts under the impulse of an uncontrollable fear
of an equal or greater injury.
7. Any person who fails to perform an act required by law, when
prevented by some lawful insuperable cause.
Also in Civil law, we have Art 429 of the CC,where there maybe
damage or injury to property but there is no liability.This is the
Doctrine of Self-Help. 429- The doctrine of self-defense of property in
the law of property.
Article 429. The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof. For this
purpose, he may use such force as may be reasonably necessary to
repel or prevent an actual or threatened unlawful physical invasion or
usurpation of his property. (n)
Why? Because you are just exercising your right as property owner,
you are justified. Any damage or injury that might come in the
occasion of the legitimate exercise of a right or the performance of an
act which you have, under the law, every right to perform is not
actionable.
But that is not unlimited.
First, you have this principle of Abuse of Rights from Art 19 of the
CC
Article 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
Remember that when you abuse your right, your right ends. And
therefore, even if you are simply exercising your right over the
property or the right to be of some place, if you abuse it, you can still
be held liable for damages. That's the premise under art 19.
Another one is the Sic Utere Principle in common law. Sic Utere
Tuo Ut Alienum Non Laedas- use your property so as not to injure
another. That we will be learning more of when we talk about
Nuisances.
Now, what's the formula to remember? To determine whether this is a
Damnum Absque Injuria or not: When in the exercise of the right or
the performance of anything actionable. That you cannot take refuge
under the principle of Damnum Absque Injury-damage without legal
injury. Liability only arises if there is an invasion of a right that
corresponds with a breach of duty. Violation of right must be at the
same time a breach of duty. Why do I say that? You violated a
persons right but you're not breaching a duty. Is there an example,
again Justifying circumstances. You kill him out of Self Defense, but
because it is justified, even if you violate his right, there is no breach
of duty.
What about if there is a breach of duty but there is no invasion of
right? Pwede ba nang ingon ana? You're breaching a duty but you're
not invading a right. You do it a lot. In your head. For example, you
don't like me, Si Sir ui, wa man niabsent. You make ___ of me. Ok
lang, no problem. Because you are not violating my right. There is no
injury as far as I am concern. Remember that when the invasion of a
right does not correspond with a breach of a duty, that is precisely
when there is Damnum Absque Injuria.
Now, the case of BPI Express Credit Card vs. CA- One of most
favorite case created by God, becasue I have a similar experience
from before relating to lawyers and credit card which I may or may not
tell you later.
In BPI vs CA, the lawyer who swiped his credit card despite knowing
that his credit card account has been temporarily suspended or cut
off? Here garbo ang gipaandar.
Issue: WON BPI can be held liable for damages to Atty. Ricardo
Marasigan.
SC: No.Damnum Absque Injuria-damage without injury.
When infact Atty. Marasigan paid by check his accountability. Infact,
nilangpas pa gani. Sa 9,000 nga iyang utang, gi-issue niya 15,000php.
And yet, I'm not in my right to sue BPI for damages when I was
already paid my bill, my statement of Account, and has a little extra to
cover the next. So why it is still a Damnum ABsque Injuria? The Check
was issued by Atty. Marasigan on November. In other words, bayad na
tong sa previous month and a portion of November. But the check
here was a postdated check. And postdated check has the effect of
payment only when encashed. So he actually took the risk. SO Dec 15
pa mag-due ang checque kay mag-clearing pa na. So clearly, it would
not produce the effect of payment.
What you need to know here in the case of BPI is that inorder for the
plaintiff to maintain an action for injuries which he complains of, he
must establish that such injuries resulted from a breach of duty which
the defendant owed the plaintiff. A concurrence of legal injury or a
violation of a right to the plaintiff and legal responsibility. A breach of
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duty by the person causing it. Was there any breach of duty on the
part of BPI? NO. IT was only proceeding based on their contract.
Under a contract, BPI has every right to suspend his credit
card privileges kung wala pa siya kabayad sa iyang credit card due.
Was there a violation of a right? Of course, he was humiliated. But was
there a breach of duty on the part of BPI? The answer is no. That is
the reason why, there cannot be any legal injury to speak of. This is
clearly a case of Damnum Absque Injuria.
Thus, there can be damage without injury in those instances in which
the loss or harm was not the result of a violation of a legal duty. In
such cases, the consequences must be borne by the injured person
alone, the law affords no remedy for damages resulting from an act
which does not amount to a legal injury or wrong. These situations
are often called damnum absque injuria.
So this is the dispositive portion of the case which clearly shows you
how the SC looks at a lawyer. Private respondent is DIRECTED to pay
his outstanding obligation with the petitioner in the amount
of P14,439.41. That is not even part of the issue of the case, whether
pabayron ba siya o dili. Because clearly, there is that obligation,
although giingon na niya nga i-recall nalang na akong checque. Then
the SC would say, hoi, pgbayad! mauwaw ka. Abogado ka. (sir shared
his story)
January 12, 2015
I guess we already began discussing the available defenses in quasi-
delicts cases. Of course, we began with what you call in remedial law,
the defense of denial, the requisite that there was fault or negligence
happening in the act or omission of the defender. So, in order for the
defendant to escape liability for quasi-delict, he must prove by
preponderance of evidence that he exercised the required degree of
care, the degree of care that is required by the circumstances of the
case. Now we also discussed the principleof damnum absque injuria
which literally means those without wrong and in the Philippine
jurisidiction, it means damage without legal injury. It simply tells us
that should there be damage upon a particular plaintiff but the law
does not afford a legal remedy, then walay gamit dba? A defendant
charged with having committed a quasi-delict will also escape liability.
We discussed certain examples noh For example under Artille 11 of
the Revised Penal Code. There may have been a wrongful act or
omission committed by an accused but still if the act is justified by way
of say, self defense or defense of relatives so on and so forth, that
would still not lead to any civil or criminal liability. Also in Article 12
paragraph 4, Any person who, while performing a lawful act with due
care, causes an injury by mere accident without fault or intention of
causing it, is not civilly liable for damages also. In Civil Law, we also
came across Artilcle 429 which also provides a situation where there is
also damum absque injuria. So, even if you commit damage in the act
of defending your property from usurpation, then that is actually
justified. No legal injury is caused. However, take note that not all
exercise property rights is damnum absque injuria. The property owner
is still limited by the principle of abuse of rights under the law of
human relations as well as the latin maxim Sic utere tuo ut alienum
non laedas which means use your property as not to injure your
neighbors. That is something that we will more particularly discuss
when we get to nuisance.
Remember what we discussed in the BPI Express Credit Card case
relating to the lawyer whose credit card was rejected or was not
honored in a coffee shop near Malate. There must be a breach of duty
and at the same time, an evasion of right and vice versa.
What about this case, have we discussed this? Gilchrist vs. Cuddy.
Still relating to damnum absque injuria.
*recitation*
What happened here?
Name of the film?
So, the focus of our discussion right now is the principle of damnum
absque injuria. How did that come into play in this case?
Did Espejo here know Gilchrist?
Even if he did, would it be material?
C. S. GILCHRIST vs. E. A. CUDDY ET AL., JOSE
FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA |
G.R. No. 9356 | February 18, 1915 |
Doctrine: If disturbance or loss come as a result of
competition, or the exercise of like rights by others, it is damum
absque injuria, unless some superior right by contract or
otherwise is interfered with.
Facts: [this case talks about injunction, not included in digest]
Cuddy was the owner of the film Zigomar and that on the
24th of April he rented it to C. S. Gilchrist for a week for
P125
It was to be delivered on the 26th of May, the week
beginning that day.
A few days prior to this Cuddy sent the money back to
Gilchrist, which he had forwarded to him in Manila, saying
that he had made other arrangements with his film.
The other arrangements was the rental to these defendants
Espejo [not related kay Sir. :P] and his partner for P350 for
the week and the injunction was asked by Gilchrist against
these parties from showing it for the week beginning the
26th of May.
The arrangements between Cuddy and the Espejo and
Zaldarriaga for the exhibition of the film by the latter on the
26th of May were perfected after April 26, 90 that the six
weeks would include and extend beyond May 26.
C. S. Gilchrist claims for damages against Espejo and
Zaldarriaga.
Espejo and Zaldarriaga claim that they had a right to do what
they did. The ground upon which the Espejo and Zaldarriaga
base this contention is, that there was no valid and binding
contract between Cuddy and Gilchrist and that, therefore, they
had a right to compete with Gilchrist for the lease of the film,
the right to compete being a justification for their acts. If there
had been no contract between Cuddy and Gilchrist this defense
would be tenable, but the mere right to compete could not
justify the Espejo and Zaldarriaga in intentionally inducing
Cuddy to take away the appellee's contractual rights.
WON Espejo and Zaldarriaga are liable for interfering with the
contract between Gilchrist and Cuddy, they not knowing at the
time the identity of one of the contracting parties.
Held: No, they are not liable.
Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said:
"Everyone has a right to enjoy the fruits and advantages of his
own enterprise, industry, skill and credit, He has no right to be
protected against competition; but he has a right to be free
from malicious and wanton interference, disturbance or
annoyance. If disturbance or loss come as a result of
competition, or the exercise of like rights by others, it is damum
absque injuria, unless some superior right by contract or
otherwise is interfered with."
In Read vs. Friendly Society of Operative Stonemasons ([1902]
2 K. B., 88), Darling, J., said: "I think the plaintiff has a cause of
action against the defendants, unless the court is satisfied that,
when they interfered with the contractual rights of plaintiff, the
defendants had a sufficient justification for their interference; . .
.for it is not a justification that 'they acted bona fide in the best
interests of the society of masons,' i. e., in their own interests.
Nor is it enough that 'they were not actuated by improper
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motives. I think their sufficient justification for interference with
plaintiff's right must be an equal or superior right in themselves,
and that no one can legally excuse himself to a man, of whose
contract he has procured the breach, on the ground that he
acted on a wrong understanding of his own rights, or without
malice, or bona fide, or in the best interests of himself, or even
that he acted as an altruist, seeking only the good of another
and careless of his own advantage." (Quoted with approval in
Beekman vs. Marsters, 195 Mass., 205.)
It is said that the ground on which the liability of a third party
for interfering with a contract between others rests, is that the
interference was malicious. The contrary view, however, is
taken by the Supreme Court of the United States in the case of
Angle vs. Railway Co. (151 U. S., 1). The only motive for
interference by the third party in that case was the desire to
make a profit to the injury of one of the parties of the contract.
There was no malice in the case beyond the desire to make an
unlawful gain to the detriment of one of the contracting parties.
In the case at bar the only motive for the interference with the
Gilchrist-Cuddy contract on the part of the Espejo and
Zaldarriaga was a desire to make a profit by exhibiting the film
in their theater. There was no malice beyond this desire; but
this fact does not relieve them of the legal liability for interfering
with that contract and causing its breach. It is, therefore, clear,
under the above authorities, that they were liable to Gilchrist for
the damages caused by their acts, unless they are relieved from
such liability by reason of the fact that they did not know at the
time the identity of the original lessee (Gilchrist) of the film.
The liability of the Espejo and Zaldarriaga arises from unlawful
acts and not from contractual obligations, as they were under
no such obligations to induce Cuddy to violate his contract with
Gilchrist. So that if the action of Gilchrist had been one for
damages, it would be governed by chapter 2, title 16 book 4 of
the Civil Code.
Article 1902 of that code provides that a person who, by act
or omission, causes damage to another when there is fault or
negligence, shall be obliged to repair the damage so done.
There is nothing in this article which requires as a condition
precedent to the liability of a tort feasor that he must know the
identity of a person to whom he causes damage. In fact, the
chapter wherein this article is found clearly shows that no such
knowledge is required in order that the injured party may
recover for the damage suffered.
But the fact that the Espejo and Zaldarriaga' interference with
the Gilchrist contract was actionable did not of itself entitle
Gilchrist to sue out an injunction against them.
So, its not a damnum absque injuria. Why? Because interference in
contractual relations is an abuse of right. Thats something we have to
remember as well. I guess we discussed that already in sales where
according to the Supreme Court, interference in contractual relations is
an abuse of right and that is actually that portion of the law that would
lead to liability. Not necessarily the fact that you constrained
somebody to violate a contract of option or a right to first refusal. So,
that is the basis of liability there as ruled by the Supreme Court in the
case of Gilchrist vs. Cuddy.
Here, there is a concurrence of course of a breach of duty which is at
the same time an evasion of a right. Although the Supreme Court
recognized that you have the right to enter into contractual relations to
compete in business. You have to do it in a manner that does not
cause prejudice to other persons.
Here, in the case of Cebu Country Club vs. Elizagaque, it became
a little bit more glaring noh. How there can be no damnum absque
injuria when there is abuse of rights.
*recitation*
What happened?
How do you describe the type of membership here?
It is exclusive.
Was his ballot rejected?
Yes
What takes place here is the fact that a persons application is the fact
that a persons application can be rejected by mere majority of
members.
How did the Supreme Court rule about the plight of the applicant in
this case?
CEBU COUNTRY CLUB, INC., SABINO R. DAPAT, RUBEN
D. ALMENDRAS, JULIUS Z. NERI, DOUGLAS L. LUYM,
CESAR T. LIBI, RAMONTITO* E. GARCIA and JOSE B.
SALA v. RICARDO F. ELIZAGAQUE | G.R. No. 160273,
January 18, 2008 |
Cebu Country Club, Inc. (CCCI), petitioner, is a domestic
corporation operating as a non-profit and non-stock private
membership club, having its principal place of business in
Banilad, Cebu City. Petitioners herein are members of its Board
of Directors.
Sometime in 1987, San Miguel Corporation (SMC), a special
company proprietary member of CCCI, designated respondent
Ricardo F. Elizagaque, its Senior Vice President and Operations
Manager for the Visayas and Mindanao, as a special nonproprietary
member. The designation was thereafter approved
by the CCCIs Board of Directors.
In 1996, respondent filed with CCCI an application for
proprietary membership. The application was indorsed by
CCCIs two (2) proprietary members, namely: Edmundo T. Misa
and Silvano Ludo.
As the price of a proprietary share was around the P5 million
range, Benito Unchuan, then president of CCCI, offered to sell
respondent a share for only P3.5 million. Respondent, however,
purchased the share of a certain Dr. Butalid for only P3 million.
Consequently, on September 6, 1996, CCCI issued Proprietary
Ownership Certificate No. 1446 to respondent.
During the meetings of the CCCI Board of Directors, action on
respondents application for proprietary membership was
deferred. In another Board meeting held on July 30, 1997,
respondents application was voted upon. Subsequently, or on
August 1, 1997, respondent received a letter from Julius Z. Neri,
CCCIs corporate secretary, informing him that the Board
disapproved his application for proprietary membership.
On August 6, 1997, Edmundo T. Misa, on behalf of respondent,
wrote CCCI a letter of reconsideration. As CCCI did not answer,
respondent, on October 7, 1997, wrote another letter of
reconsideration. Still, CCCI kept silent. On November 5, 1997,
respondent again sent CCCI a letter inquiring whether any
member of the Board objected to his application. Again, CCCI
did not reply.
Consequently, on December 23, 1998, respondent filed with the
RTC Branch 71, Pasig City a complaint for damages against
petitioners.
RTC: rendered in favor of plaintiff: Ordering defendants to pay,
jointly and severally, plaintiff P2,340,000.00 as actual or
compensatory damages, P5,000,000.00 as moral damages,
P1,000,000.00 as exemplary damages, P1,000,000.00 as and by
way of attorneys fees and P80,000.00 as litigation expenses.
CA: Affirmed with modification.
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Petitioners contention: that the Court of Appeals erred in
awarding exorbitant damages to respondent despite the lack of
evidence that they acted in bad faith in disapproving the latters
application; and in disregarding their defense of damnum
absque injuria.
Section 3, Article 1 of CCCIs Amended By-Laws provides:
SECTION 3. HOW MEMBERS ARE ELECTED The
procedure for the admission of new members of the
Club shall be as follows:
xxx (c) After the expiration of the aforesaid thirty (30)
days, if no objections have been filed or if there are,
the Board considers the objections unmeritorious, the
candidate shall be qualified for inclusion in the
"Eligible-for-Membership List"; xxx
On March 1, 1978, Section 3(c) was amended to read as
follows:
(c) After the expiration of the aforesaid thirty (30)
days, the Board may, by unanimous vote of all
directors present at a regular or special
meeting, approve the inclusion of the candidate in the
"Eligible-for-Membership List".
ISSUE 1: Whether in disapproving respondents application for
proprietary membership with CCCI, petitioners are liable to
respondent for damages. YES
RULING: As shown by the records, the Board adopted a secret
balloting known as the "black ball system" of voting wherein
each member will drop a ball in the ballot box. A white ball
represents conformity to the admission of an applicant, while a
black ball means disapproval. Pursuant to Section 3(c), as
amended, cited above, a unanimous vote of the directors is
required. When respondents application for proprietary
membership was voted upon during the Board meeting on July
30, 1997, the ballot box contained one (1) black ball. Thus, for
lack of unanimity, his application was disapproved.
Obviously, the CCCI Board of Directors, under its Articles of
Incorporation, has the right to approve or disapprove an
application for proprietary membership. But such right should
not be exercised arbitrarily.
In GF Equity, Inc. v. Valenzona, we expounded Article 19 and
correlated it with Article 21, thus:
This article, known to contain what is commonly
referred to as the principle of abuse of rights, sets
certain standards which must be observed not only in
the exercise of one's rights but also in the performance
of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to
observe honesty and good faith. The law, therefore,
recognizes a primordial limitation on all rights; that in
their exercise, the norms of human conduct set forth in
Article 19 must be observed. A right, though by
itself legal because recognized or granted by
law as such, may nevertheless become the
source of some illegality. When a right is
exercised in a manner which does not conform
with the norms enshrined in Article 19 and
results in damage to another, a legal wrong is
thereby committed for which the wrongdoer
must be held responsible. But while Article 19 lays
down a rule of conduct for the government of human
relations and for the maintenance of social order, it
does not provide a remedy for its violation. Generally,
an action for damages under either Article 20 or Article
21 would be proper.
In rejecting respondents application for proprietary
membership, we find that petitioners violated the rules
governing human relations, the basic principles to be observed
for the rightful relationship between human beings and for the
stability of social order. The trial court and the Court of Appeals
aptly held that petitioners committed fraud and evident bad
faith in disapproving respondents applications. This is contrary
to morals, good custom or public policy. Hence, petitioners are
liable for damages pursuant to Article 19 in relation to Article 21
of the same Code.
It bears stressing that the amendment to Section 3(c) of CCCIs
Amended By-Laws requiring the unanimous vote of the directors
present at a special or regular meeting was not printed on the
application form respondent filled and submitted to CCCI. What
was printed thereon was the original provision of Section 3(c)
which was silent on the required number of votes needed for
admission of an applicant as a proprietary member.
Petitioners explained that the amendment was not printed on
the application form due to economic reasons. We find this
excuse flimsy and unconvincing. Such amendment, aside from
being extremely significant, was introduced way back in 1978 or
almost twenty (20) years before respondent filed his
application. We cannot fathom why such a prestigious and
exclusive golf country club, like the CCCI, whose members are
all affluent, did not have enough money to cause the printing of
an updated application form.
It is thus clear that respondent was left groping in the dark
wondering why his application was disapproved. He was not
even informed that a unanimous vote of the Board members
was required. When he sent a letter for reconsideration and an
inquiry whether there was an objection to his application,
petitioners apparently ignored him. Certainly, respondent did
not deserve this kind of treatment. Having been designated by
San Miguel Corporation as a special non-proprietary member of
CCCI, he should have been treated by petitioners with courtesy
and civility. At the very least, they should have informed him
why his application was disapproved.
The exercise of a right, though legal by itself, must nonetheless
be in accordance with the proper norm. When the right is
exercised arbitrarily, unjustly or excessively and results in
damage to another, a legal wrong is committed for which the
wrongdoer must be held responsible. It bears reiterating that
the trial court and the Court of Appeals held that petitioners
disapproval of respondents application is characterized by bad
faith.
DAMNUM ABSQUE INJURIA
As to petitioners reliance on the principle of damnum absque
injuria or damage without injury, suffice it to state that the
same is misplaced. In Amonoy v. Gutierrez, we held that this
principle does not apply when there is an abuse of a
persons right, as in this case. [GUIDE QUESTION #2]
As to the appellate courts award to respondent of moral
damages, we find the same in order. Under Article 2219 of the
New Civil Code, moral damages may be recovered, among
others, in acts and actions referred to in Article 21. We believe
respondents testimony that he suffered mental anguish, social
humiliation and wounded feelings as a result of the arbitrary
denial of his application. However, the amount of P2,000,000.00
is excessive. While there is no hard-and-fast rule in determining
what would be a fair and reasonable amount of moral damages,
the same should not be palpably and scandalously excessive.
Moral damages are not intended to impose a penalty to the
wrongdoer, neither to enrich the claimant at the expense of the
defendant. Taking into consideration the attending
circumstances here, we hold that an award to respondent
of P50,000.00, instead of P2,000,000.00, as moral damages
reasonable.
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Anent the award of exemplary damages, Article 2229 allows it
by way of example or correction for the public good.
Nonetheless, since exemplary damages are imposed not to
enrich one party or impoverish another but to serve as a
deterrent against or as a negative incentive to curb socially
deleterious actions,9 we reduce the amount from P1,000,000.00
to P25,000.00 only.
On the matter of attorneys fees and litigation expenses, Article
2208 of the same Code provides, among others, that attorneys
fees and expenses of litigation may be recovered in cases when
exemplary damages are awarded and where the court deems it
just and equitable that attorneys fees and expenses of litigation
should be recovered, as in this case. In any event, however,
such award must be reasonable, just and equitable. Thus, we
reduce the amount of attorneys fees (P500,000.00) and
litigation expenses (P50,000.00) to P50,000.00 andP25,000.00,
respectively.
ISSUE 2: Whether petitioners liability is joint and several. YES
RULING: Lastly, petitioners argument that they could not be
held jointly and severally liable for damages because only one
(1) voted for the disapproval of respondents application lacks
merit.
Section 31 of the Corporation Code provides:
SEC. 31. Liability of directors, trustees or officers.
Directors or trustees who willfully and knowingly vote
for or assent to patently unlawful acts of the
corporation or who are guilty of gross negligence
or bad faith in directing the affairs of the corporation
or acquire any personal or pecuniary interest in conflict
with their duty as such directors, or trustees shall
be liable jointly and severally for all damages
resulting therefrom suffered by the corporation, its
stockholders or members and other persons.
The problem with Cebu Country Club is somehow the applicant here
was left in the dark not knowing whats going on. What was the
reason why he was being rejected. Here, there was some breach of
bad faith which led to damages in this case.
Defenses in quasi-delicts cases would include that the plaintiffs own
negligence is the proximate cause of his own loss. So, when the
plaintiffs own negligence was the immediate and proximate cause of
his injury, he cannot recover damages under Article 2179. Take note
that, that is a complete defense. Why? Because there is no causal
connection between the fault and negligence or negligence and the
damage.
So, the question therefore is unsa ning proximate casuse? What is
meant by proximate cause? And for that, we have the case of Bataclan
vs. Medina. How did the Supreme Court define proximate cause in this
case? Proximate cause is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result
would not have occurred. To my mind its a matter of remembering
this definition. The proximate legal cause is that acting first and
producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable
result of the cause which first acted, under such
circumstances that the person responsible for the first event
should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
default that an injury to some person might probably result
therefrom. So, that is another way to say proximate cause.
We also have the concept of efficient intervening cause. Remember,
that an efficient intervening cause may be enough to break the chain
of possession between the fault or negligence and the injury. It is one
which destroys the causal connection between the negligent act and
injury and thereby negatives liability. Another name for it would be
pre-emptive cause which breaks the continuity of causal connection
between the original negligent act or omission and the injury so that
the former cannot be ____ the efficient cause of the latter.
REMIGIO RODRIGUEZA, ET AL. v. THE MANILA
RAILROAD COMPANY (November 19, 1921)
Where you can imagine there are these homes along the riles.
Naabtan pa man cguro na ninyo. Kadtong bata pa mo. Palabas ni
Dolphy. Home along the Riles. So, these are shanties. They place their
homes along the riles. The thing is, because of sparks emitted because
of the train of Manila Railroad Company, there was fire that broke out
destroying the shanties. Manila Railroad here contended that the fire
would not have spread to the house of the plaintiff were it not for wind
which is contended to be an efficient intervening cause. So, now they
are blaming it on the wind. Would that be an efficient intervening
cause? The Supreme Court here explained that the cause is not
intervening if it is already in operation at the time the negligent act
was committed. It is short of saying, was there wind prior to the fact
that there were sparks emitted by the train? Wind will always be there.
The wind cannot be deemed an efficient intervening cause because it
was already in operation at the time of the negligence of the
defendant.
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and
ROSALINDA MANALO, respondents.
G.R. No. L-68103 (July 16, 1992)
Here the plaintiff driving along the highway swerved his car to the left
and approached the opposite lane ____ two children. His car was hit
by a speeding truck coming from the opposite direction. Of course, the
plaintiff sued the driver of the truck. How did the Supreme Court here
rule regarding proximate cause and efficient intervening cause? The
efficient intervening cause is the negligence of the defendant.
Meaning, kadtong nakabangga. The plaintiff here may have been
negligent when in the act of swerving to avoid two crossing children,
he may have been negligent in that regard, and was the initial act in
the chain of events, it cannot be said that the same caused the
eventual injuries and deaths because of the occurrence of a sufficient
intervening event, the negligent act of the truck driver. Here, we are
introduced to a situation where in a quasi-delicts case, not only is the
defendant negligent but plaintiff in turn can also be negligent. So,
negligence of both parties, the plaintiff and defendant can concur in
one case. And that is when we need to apply the different rules and
principles relating to comparative negligence.
Take note, in Bataclan, the first cause is the over speeding of the bus
driver causing the bus to turn turtle. That was still considered a
proximate cause despite the fact that the people who tried to rescue
set fire to the bus. Kadtong nagdala sila ug torches. In McKee, the first
cause which is the swerving to avoid the two children was not
considered a proximate cause. Take note that in McKee the Supreme
Court applied the so called Emergency Rule as follows "one who
suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence, if he fails to adopt
what subsequently and upon reflection may appear to have been a
better method, unless the emergency in which he finds himself is
brought about by his own negligence." The law considers you that in
an emergency that your ability to think clearly is impaired. Everything
that you do in an emergency is instantaneous. Nobody pauses. The
only exception is that something that you yourself as defendant has
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caused. Kung ikaw mismo ung reason sa emergency, then the
Emergency Rule does not apply.
BJDC Construction vs. Lanuso
*recitation*
What accident took place in this case?
An obstruction
Was it a necessary obstruction?
Yes
How did the Supreme Court rule?
The Supreme Court is actually saying: He has been using that route
everyday and yet inexplicably he still managed to hit the obstruction.
What did the Supreme Court say here that pointed to the negligent of
the deceased?
The proximate cause of the loss or injury is this, it was the plaintiff or
the deceaseds own negligence. He did not wear a helmet. He was
familiar with the route but still hit the obstruction.
BJDC CONSTRUCTION, REPRESENTED BY ITS
MANAGER/PROPRIETOR JANET S. DELA CRUZ vs. NENA E.
LANUZO, CLAUDETTE E. LANUZO, JANET E. LANUZO, JOAN
BERNABE E. LANUZO, AND RYAN JOSE E. LANUZO | G.R. No.
161151 | March 24, 2014 |
FACTS: On January 5, 1998, Nena E. Lanuzo (Nena) filed a
complaint for damages against BJDC Construction (company),
the contractor of the reblocking project. Nena alleged that she
was the surviving spouse of the late Balbino Los Baos Lanuzo
(Balbino) who figured in the accident that transpired at the site
of the reblocking work at about 6:30 p.m. on October 30,
1997. It appears that Balbinos Honda motorcycle sideswiped
the road barricade placed by the company in the right lane
portion of the road, causing him to lose control of his
motorcycle and to crash on the newly cemented road, resulting
in his instant death.
Nenas contention: The companys failure to place
illuminated warning signs on the site of the project,
especially during night time, was the proximate cause of
the death of Balbino.
Companys defense: The company denied Nenas allegations of
negligence, insisting that it had installed warning signs and
lights along the highway and on the barricades since the
inception of the project in Sept. 1997 such as: big overhead
streamers and road signs containing the words SLOW DOWN
ROAD UNDER REPAIR AHEAD and a series of 50watt light
bulbs were installed and switched on daily from 6:00 p.m. until
the following morning; that at the time of the incident, the
lights were working and switched on. It insisted that the death
of Balbino was an accident brought about by his own
negligence, as confirmed by the police investigation report that
stated, among others, that Balbino was not wearing any helmet
at that time, and the accident occurred while Balbino was
overtaking another motorcycle; and that the police report also
stated that the road sign/barricade installed on the road had a
light.
RTC: rendered judgment in favor of the company.
CA: reversed RTC Decision. It ruled that the elements of res
ipsa loquitor were present; that the placing of road signs and
streamers alone did not prove that the electric bulbs were in
fact switched on at the time of the accident as to sufficiently
light up the newly reblocked portion of the highway. It
concluded that the negligence of the company was the
proximate cause of Balbinos death; hence, the company was
liable for damages.
ISSUE: Whose negligence was the proximate cause of the
death of Balbino? BALBINO.
HELD: Upon a review of the records, the Court affirms the
findings of the RTC, and rules that the Lanuzo heirs, the
parties carrying the burden of proof, did not establish by
preponderance of evidence that the negligence on the
part of the company was the proximate cause of the
fatal accident of Balbino.
First of all, we note that the Lanuzo heirs argued in the trial and
appellate courts that there was a total omission on the part of
the company to place illuminated warning signs on the site of
the project, especially during night time, in order to warn
motorists of the project. They claim that the omission was the
proximate cause of the death of Balbino. In this appeal,
however, they contend that the negligence of the company
consisted in its omission to put up adequate lighting and
the required signs to warn motorists of the project, abandoning
their previous argument of a total omission to illuminate the
project site.
During the trial, the witnesses of the plaintiffs were not
consistent on their recollections of the significant detail of the
illumination of the site. Their first witness recalled that lights
had been actually installed in the site of the project. The next
witness stated that he had seen three light bulbs installed in the
site. Another stated that he had seen only a gas lamp, not light
bulbs, on his approach.
In contrast, the company credibly refuted the allegation of
inadequate illumination. Zamora, its flagman in the project,
rendered an eyewitness account of the accident by stating that
the site had been illuminated by light bulbs and gas lamps, and
that Balbino had been in the process of overtaking another
motorcycle rider at a fast speed when he hit the barricade
placed on the newly cemented road. On his part, SPO1
Corporal, the police investigator who arrived at the scene of the
accident on October 30, 1997, recalled that there were light
bulbs on the other side of the barricade on the lane and that
the light bulb was broken because it had been hit by the
victims motorcycle.
In our view, the RTC properly gave more weight to the
testimonies of Zamora and SPO1 Corporal than to those of the
witnesses for the Lanuzo heirs. There was justification for doing
so, because the greater probability pertained to the former.
Moreover, the trial courts assessment of the credibility of the
witnesses and of their testimonies is preferred to that of the
appellate courts because of the trial courts unique firsthand
opportunity to observe the witnesses and their demeanor as
such.
Based on the evidence adduced by the Lanuzo heirs, negligence
cannot be fairly ascribed to the company considering that it has
shown its installation of the necessary warning signs and lights
in the project site. In that context, the fatal accident was not
caused by any instrumentality within the exclusive control of the
company. In contrast, Balbino had the exclusive control of how
he operated and managed his motorcycle. The records disclose
that he himself did not take the necessary precautions. As
Zamora declared, Balbino overtook another motorcycle rider at
a fast speed, and in the process could not avoid hitting a
barricade at the site, causing him to be thrown off his
motorcycle onto the newly cemented road. SPO1 Corporals
investigation report corroborated Zamoras declaration. This
causation of the fatal injury went uncontroverted by the Lanuzo
heirs.
Moreover, by the time of the accident, the project, which had
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commenced in September 1997, had been going on for more
than a month and was already in the completion stage. Balbino,
who had passed there on a daily basis in going to and from his
residence and the school where he then worked as the
principal, was thus very familiar with the risks at the project
site. Nor could the Lanuzo heirs justly posit that the illumination
was not adequate, for it cannot be denied that Balbinos
motorcycle was equipped with headlights that would have
enabled him at dusk or night time to see the condition of the
road ahead. That the accident still occurred surely indicated that
he himself did not exercise the degree of care expected of him
as a prudent motorist. According to Dr. Abilay, the cause of
death of Balbino was the fatal depressed fracture at the back of
his head, an injury that Dr. Abilay opined to be attributable to
his head landing on the cemented road after being thrown off
his motorcycle. Considering that it was shown that Balbino was
not wearing any protective head gear or helmet at the time of
the accident, he was guilty of negligence in that respect. Had he
worn the protective head gear or helmet, his untimely death
would not have occurred.
Lastly, the doctrine of res ipsa loquitor does not apply. The
Court has warned in Reyes v. Sisters of Mercy Hospital,
however, that res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case.
Calalas vs. CA
*recitation*
How did the Supreme Court rule?
What did the Supreme Court say relating to the doctrine of proximate
cause in this case of Calalas?
VICENTE CALALAS vs. CA | May 31, 2000
At 10 oclock in the morning of August 23, 1989, Eliza Jujeurche
G. Sunga, then a college freshman majoring in Physical
Education at the Siliman University, took a passenger jeepney
owned and operated by petitioner Vicente Calalas. As the
jeepney was filled to capacity of about 24 passengers, Sunga
was given by the conductor an "extension seat," a wooden stool
at the back of the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle,
Sunga gave way to the outgoing passenger. Just as she was
doing so, an Isuzu truck driven by Iglecerio Verena and owned
by Francisco Salva bumped the left rear portion of the jeepney.
As a result, Sunga was injured. She sustained a fracture of the
"distal third of the left tibia-fibula with severe necrosis of the
underlying skin." Closed reduction of the fracture, long leg
circular casting, and case wedging were done under sedation.
Her confinement in the hospital lasted from August 23 to
September 7, 1989. Her attending physician, Dr. Danilo V.
Oligario, an orthopedic surgeon, certified she would remain on a
cast for a period of three months and would have to ambulate
in crutches during said period.
On October 9, 1989, Sunga filed a complaint for
damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise
the diligence required of him as a common carrier.
Calalas, on the other hand, filed a third-party complaint
against Francisco Salva, the owner of the Isuzu truck.
RTC: The lower court rendered judgment against Salva as
third-party defendant and absolved Calalas of liability, holding
that it was the driver of the Isuzu truck who was responsible for
the accident.
CA: Ruling of the lower court was reversed on the ground that
Sungas cause of action was based on a contract of carriage,
not quasi-delict, and that the common carrier failed to exercise
the diligence required under the Civil Code. The appellate court
dismissed the third-party complaint against Salva and adjudged
Calalas liable for damages to Sunga.
Calalas: Contends that the ruling in Civil Case No. 3490 that
the negligence of Verena was the proximate cause of
the accident negates his liability and that to rule
otherwise would be to make the common carrier an
insurer of the safety of its passengers. He contends that
the bumping of the jeepney by the truck owned by Salva was a
caso fortuito.
Issue: Whether or not Calalas is liable for breach of contract
of carriage although he is not the proximate cause of the
injury caused to Sunga.
Ruling: YES!
The first, quasi-delict, also known as culpa aquiliana or culpa
extra contractual, has as its source the negligence of the
tortfeasor. The second, breach of contract or culpa contractual,
is premised upon the negligence in the performance of a
contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be
clearly established because it is the basis of the action, whereas
in breach of contract, the action can be prosecuted merely by
proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his
passenger safely to his destination. In case of death or injuries
to passengers, Art. 1756 of the Civil Code provides that
common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed
extraordinary diligence as defined in Arts. 1733 and 1755 of the
Code. This provision necessarily shifts to the common carrier
the burden of proof.
There is, thus, no basis for the contention that the ruling
in Civil Case No. 3490, finding Salva and his driver Verena liable for the
damage to petitioners jeepney, should be binding on Sunga. It
is immaterial that the proximate cause of the collision
between the jeepney and the truck was the negligence
of the truck driver. The doctrine of proximate cause is
applicable only in actions for quasi-delict, not in actions
involving breach of contract. The doctrine is a device for
imputing liability to a person where there is no relation
between him and another party. In such a case, the
obligation is created by law itself. But, where there is a
pre-existing contractual relation between the parties, it
is the parties themselves who create the obligation, and
the function of the law is merely to regulate the relation
thus created. Insofar as contracts of carriage are
concerned, some aspects regulated by the Civil Code are
those respecting the diligence required of common
carriers with regard to the safety of passengers as well
as the presumption of negligence in cases of death or
injury to passengers. (Refer to Articles 1733, 1755 and
1756 in the codal)
In the case at bar, upon the happening of the accident, the
presumption of negligence at once arose, and it became the
duty of petitioner to prove that he had to observe extraordinary
diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as
human care and foresight could provide, using the utmost
diligence of very cautious persons, with due regard for all the
circumstances" as required by Art. 1755? We do not think so.
Several factors militate against petitioners contention
First, as found by the Court of Appeals, the jeepney was not
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properly parked, its rear portion being exposed about two
meters from the broad shoulders of the highway, and facing the
middle of the highway in a diagonal angle. This is a violation of
the R.A. No. 4136, as amended, or the Land Transportation and
Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. - No person shall drive his
motor vehicle in such a manner as to obstruct or impede the
passage of any vehicle, nor, while discharging or taking on
passengers or loading or unloading freight, obstruct the free
passage of other vehicles on the highway.
Second, it is undisputed that petitioners driver took in more
passengers than the allowed seating capacity of the jeepney, a
violation of 32(a) of the same law. It provides:
Exceeding registered capacity. - No person operating any
motor vehicle shall allow more passengers or more freight or
cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed
her in a peril greater than that to which the other passengers
were exposed. Therefore, not only was petitioner unable to
overcome the presumption of negligence imposed on him for
the injury sustained by Sunga, but also, the evidence shows he
was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioners contention
that Sungas taking an "extension seat" amounted to an
implied assumption of risk. It is akin to arguing that the injuries
to the many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a
greater risk of drowning by boarding an overloaded ferry. This
is also true of petitioners contention that the jeepney being
bumped while it was improperly parked constitutes caso
fortuito.
The doctrine of proximate cause is applicable only in actions
for quasi-delict not in actions involving breach of contract.
Remember the added element that in the case of Calalas, there were
actually two separate causes of action. There is quasi-delict. There is
also culpa contractual, breach of contract of carriage. But with respect
to the operator of the jeepney vis a vis the owner of the Isuzu, thats
quasi-delict. Thats allowed under the law to prosecute a complaint
based on a different cause of action. Here take note that the
passenger was made to sit on an extension seat and the jeepney at
the time of the mishap was improperly parked is enough to make a
finding that there was negligence in the performance or obligation of a
carrier in a contract of carriage.
Lets go now to Contributory Negligence because what we discussed
earlier on was the negligence itself of the plaintiff being proximate
cause of his loss. Here, contributory negligence is not the proximate
cause. His negligence was only contributory, the immediate and
proximate cause of the injury being the defendants lack of due care,
the plaintiff may recover damages but the courts shall mitigate the
damages to be awarded. So here, we are talking about comparative
negligence. Both the plaintiff and the defendant were negligent. Such
that, two situations may arise. First, the situation where the proximate
cause of the injury was the negligence of the plaintiff himself. And
based on Artilce 2179, if it is only contributory. Parehas sila naay
negligence but the proximate cause of the injury is still the negligence
of the defendant. The effect is simply that damages will be mitigated.
In the cases that I assigned to you, there are even samples on how
these damages were mitigated. Take note that this provision is a new
provision in the Civil Code. Meaning, walay provision ni-ini prior to the
enactment or promulgation of the Civil Code. Now take note that prior
to the Civil Code, the rule used to be that whenever there is a finding
of contributory negligence on the part of the plaintiff no matter how
slight, he cannot recover. Before, the rule was so harsh. Contributory
negligence was an absolute bar to recovery. What are the present
rules? Because upon the enactment of the Civil Code, nagchange na. If
the plaintiffs own negligence was the proximate cause of his injury, he
cannot recover based on the case of Taylor vs. Manila Electric
Company. Remember the case of the plastic cups? The plaintiffs in the
case of Taylor vs. Manila Electric Company cannot contend that there
was contributory negligence on the part of Manila because it just left
the plastic cups lying around. So, plaintiffs negligence was the
proximate cause of his injury, cannot recover. Next, if his negligence
was merely contributory, there is a mere mitigation of damages to be
awarded. Now, take note that it is a partial defense. Contributory
negligence. Its no longer an absolute bar to recovery. The defendant,
because of his lack of due care is still the immediate and proximate
cause of the injury is still ultimately liable without notification that his
liability to indemnify the plaintiff is ____.
Now, lets go the case of Jarco Marketing Corporation vs. CA.
*recitation*
What happened in this case of Jarco?
Jarco vs. CA | Dec. 1999
FACTS: Petitioner Jarco Marketing Corporation is the
owner of Syvels Department Store, Makati City. Petitioners
Leonardo Kong, Jose Tiope and Elisa Panelo are the
stores branch manager, operations manager, and supervisor,
respectively. Private respondents Conrado and Criselda
(CRISELDA) Aguilar are the parents of the victim, Zhieneth
Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA (mother) and
ZHIENETH (daughter) were at the 2nd floor of Syvels
Department Store, Makati City.
CRISELDA was signing her credit card slip at the payment
and verification counter when she felt a sudden gust of
wind and heard a loud thud.
She looked behind her and then beheld her daughter was
on the floor, her young body pinned by the bulk of the
stores gift-wrapping counter/structure.
Although shocked, CRISELDA was quick to ask the
assistance of the people around in lifting the counter and
retrieving her daughter from the floor, and then quickly
rushed her to the Makati Medical Center where she was
operated on.
The next day her six-year-old daughter lost her speech and
died fourteen days after the accident.
After the burial of their daughter, private respondents
demanded upon petitioners the reimbursement of the
hospitalization, medical, wake and funeral expenses which
they had incurred.
Petitioners refused to pay. Consequently, private
respondents filed a complaint for damages.
Petitioners contention: Petitioners claimed that
CRISELDA was negligent in exercising care and diligence over her
daughter
by allowing her to freely roam around in a store filled with
glassware and appliances. ZHIENETH too, was guilty of
contributory negligence since she climbed the counter,
triggering its eventual collapse on her. Petitioners also
emphasized that the counter was made of sturdy wood with a
strong support; it never fell nor collapsed for the past fifteen
years since its construction. They maintained that it observed
the diligence of a good father of a family in the selection,
supervision and control of its employees.
Private respondents contention: Private respondents
asserted that ZHIENETH should be entitled to the conclusive
presumption that a child below nine years is incapable of
contributory negligence. And even if ZHIENETH, at six years
old, was already capable of contributory negligence, still it was
physically impossible for her to have propped herself on the
counter. She had a small frame (four feet high and seventy
pounds) and the counter was much higher and heavier than she
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was. Also, the testimony of one of the stores former
employees, Gerardo Gonzales, who accompanied ZHIENETH
when she was brought to the emergency room belied
petitioners theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was asked by
the doctor what she did, ZHIENETH replied, [N]othing, I did
not come near the counter and the counter just fell on
me. Moreover, negligence could not be imputed to CRISELDA
for it was reasonable for her to have let go of ZHIENETH at the
precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the
proximate cause of ZHIENETHs death, was petitioners
negligence in failing to institute measures to have the counter
permanently nailed.
The RTC dismissed the complaint. The CA decided in favor of
private respondents and reversed the appealed
judgment. Hence, this petition.
ISSUE: WON the death of ZHIENETH was attributable to
negligence of the petitioner in this case.
RULING: YES.
An accident pertains to an unforeseen event in which no fault
or negligence attaches to the defendant. It is a fortuitous
circumstance, event or happening; an event happening without
any human agency, or if happening wholly or partly through
human agency, an event which under the circumstances is
unusual or unexpected by the person to whom it happens. On
the other hand, negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would not do. Negligence is the failure to observe, for the
protection of the interest of another person, that degree of
care, precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury.
Accident and negligence are intrinsically contradictory;
one cannot exist with the other. Accident occurs when the
person concerned is exercising ordinary care, which is not
caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. The
test in determining the existence of negligence is enunciated in
the landmark case of Picart v. Smith, thus: Did the defendant
in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in
the same situation? If not, then he is guilty of negligence.
Without doubt, petitioner Panelo and another store supervisor
were personally informed of the danger posed by the unstable
counter. Yet, neither initiated any concrete action to remedy
the situation nor ensure the safety of the stores employees and
patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners
miserably failed to discharge the due diligence required of a
good father of a family. Anent the negligence imputed to
ZHIENETH, we apply the conclusive presumption that favors
children below nine years old in that they are incapable of
contributory negligence.
[GUIDE QUESTION #7] In his book, former Judge Cezar S.
Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment, and
is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains
in a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment.
Since negligence may be a felony and a quasi-delict and
required discernment as a condition of liability, either criminal or
civil, a child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence
in the case of a child over nine but under fifteen years of age is
a rebuttable one, under our law. The rule, therefore, is that a
child under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of
law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should
have occurred if we accept petitioners theory that the counter
was stable and sturdy. For if that was the truth, a frail six-year
old could not have caused the counter to collapse. The physical
analysis of the counter by both the trial court and Court of
Appeals and a scrutiny of the evidence on record reveal
otherwise, i.e., it was not durable after all. Shaped like an
inverted L, the counter was heavy, huge, and its top laden
with formica. It protruded towards the customer waiting area
and its base was not secured. CRISELDA too, should be
absolved from any contributory negligence. Initially, ZHIENETH
held on to CRISELDAs waist, later to the latters hand.
CRISELDA momentarily released the childs hand from her
clutch when she signed her credit card slip. At this precise
moment, it was reasonable and usual for CRISELDA to let go of
her child. Further, at the time ZHIENETH was pinned down by
the counter, she was just a foot away from her mother; and the
gift-wrapping counter was just four meters away from
CRISELDA. The time and distance were both
significant. ZHIENETH was near her mother and did not loiter
as petitioners would want to impress upon us. She even
admitted to the doctor who treated her at the hospital that she
did not do anything; the counter just fell on her.
Important principle to remember in this case: A child below
nine years of age is conclusively presumed to be incapable of
contributory negligence apart from the factual considerations
of this case.
Why is it that a child is conclusively presumed to be incapable of
contributory negligence?
It is discernment that is the common denominator between
culpa criminal and culpa aquiliana. And because a child is
incapable of disrcernment, for purposes of criminal liability,
the same ruling applies or the same principle applies when it
comes to quasi-delictual responsibility. No ruling of
contributory negligence.
This case tells you an important doctrine. The principle of
Criminal Irresponsibility for Children Below Nine Years of Age
is to be applied in quasi-delicts cases. Remember that why is a
child below 9 years of age exempt from criminal liability
because of the conclusive presumption that the child cannot
act with discernment. The same applies to a mere quasi-
delicts case, incapable also of contributory negligence.
If the plaintiffs contributory negligence is duly proven, the fact that of
whether or not to mitigate the damage is not an act of discretion. The
courts are absolutely required to lessen the damages to be rewarded.
The extent of mitigation is however within the sound discretion of the
court with particular reference to the degree of negligence exhibited
by the plaintiff. Take note that the enactment of Article 2179 of the
Civil Code is a statutory rejection of the rules of Contributory
Negligence in common law because the Doctrine of Contributory
Negligence and its effects were actually taken from Anglo-American
Law. Which brings us to the case of Phoenix Construction vs. IAC.
*recitation*
Phoenix Construction Inc. vs. IAC and LEONARDO
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DIONISIO | March 1987
While on his way home driving his Volkswagon car from
cocktails and dinner, Dionisio had taken a shot or two of liquor.
Not far from his home, after passing through an intersection his
car headlight suddenly failed (as he alleged). Upon switching his
headlight, he saw a Ford dump truck looming some 2 1/2
meters away from his car parked on the right hand side of Gen.
Lacuna Street. The dump truck was parked askew (not parallel
to the street curb) in such a manner as to stick out in onto the
street, partly blocking the way of oncoming traffic. There were
no lights nor any so-called early warning reflector devices set
anywhere near the dump truck, front or rear. Dionisio claimed
that he tried to avoid collision b swerving his ca to the left but it
was too late and his car smashed into the dump track. As a
result of the collision, Dionisio suffered some physical injuries
including some permanent facial scars, a nervous
breakdownand loss of two gold bridge dentures.
Factual Findings of the Supreme Court
(a) Dionisio ha no curfew pass in the basis of allegation.
(b) Dionisio was driving fast just before the collision with
the dump truck.
(c) The headlights of Dionisio was shut off as not to be
detected by the police.
(d) Dionisio was intoxicated through intoxication may not
determine negligence.
ISSUES:
1. Whether Dionisio is negligent.
Yes. He was hurrying that night and driving faster than he
should have been. He extinguished his headlights at or near the
intersection thus did not see the dump truck that was parked
askew and sticking out onto the road lane.
2. Whether he is the proximate cause or a mere passive
condition.
Under the Philippine jurisdiction, there is no distinction, and the
Philippine jurisdiction unlike in the United States. Dionisios
negligence was not an efficient intervening cause. The driver
was the efficient intervening cause in failure to protect plaintiff
against that very risk.
3. Whether there is contributory negligence on the part
of Dionisio.
Yes. But the immediate and proximate cause of the injury
remained in the truck drivers lack of due care and that
consequently respondent Dionisio may recover damages though
such damages are subject to mitigation by the courts (Article
2179, Civil Code of the Philippines
4. Whether the doctrine of the last clear chance apply.
To accept this view is to come too close to wiping out the
fundamental principle of law that a man must respond for the
foreseeable consequences of his own negligent and act or
omission. Our law of quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among the
members of society.
5. Whether there id presumption of negligence on the
part of the employer Phoenix.
Presumption or negligence on the part of his employer Phoenix
in supervising its employees properly and adequately is
attached. Phoenix was not able t overcome this presumption of
negligence. The circumstance that Phoenix had allowed its truck
driver to bring the dump truck to his home whenever there was
work to be done early in the morning, when coupled with the
failure to show any effort on the part of Phoenix to supervise
the manner in which the dump truck id parked when away from
the company premises, is an affirmative showing of culpa in
vigilando on the part of Phoenix.
Okay, let me just tell it out to you. Dionisio was negligent because he
was running at a high speed. Phoenix was negligent because it was
just parked askew there blocking incoming traffic there. It was parked
askew apart from the fact that there were no early warning reflector
devices. Both of them were negligent. So, how is it that the Supreme
Court here adjudged Phoenix liable over Dioniso who was clearly also
negligent. Thats the question. Both of them were negligent but clearly
the negligence of Phoenix was the proximate cause of the loss or
injury while Dionisios negligence was merely contributory. And
therefore, based on Article 2179, it only serves to mitigate or lessen
the damages to be awarded.
Heres what the Supreme Court said because the contention of Phoenix
was passive condition lng man na. Dba something stationary, kung dili
man na banggaan, walay mahitabo. So they are saying, kadtong
nakabangga, mao naay sala.The Supreme Court said, NO! It is not a
passive condition but rather it is an indispensable and efficient cause.
The collision between the dump truck and the private respondents car
would in all probability not have occurred have the dump truck not
been parked askew without any warning lights or reflector devices. An
improper parking of the dump truck located at an unreasonable risk of
injury for anyone driving down the street and for having so created
this risk, the truck driver must be held responsible. In our view,
Dionisios negligence although later in point of time that the truck
drivers negligence and therefore closer to the accident was not an
efficient intervening cause. In other words, in this case, the first cause
was still the proximate cause. The first cause is nganong gi-park man
nimo na diha? Kay kung wala nimo na gi-park diha, walay bangga na
mahitabo. Thats what the Supreme Court is saying. Then the Supreme
Court here by way of ruling, mitigated the damages to be awarded to
Dionisio, because both of them are comparatively negligent. Their
negligence occurred in the same case. According to the Supreme
Court, we believe that the demands of substantial justice are satisfied
by allocating most of the damages on a 20-80 ratio. Thus, 20% of the
damages awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private respondent
Dionisio; only the balance of 80% needs to be paid by petitioners
Carbonel and Phoenix who shall be solidarity liable therefor to the
former. The award of exemplary damages and attorney's fees and
costs shall be borne exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. We see no sufficient reason
for disturbing the reduced award of damages made by the respondent
appellate court.
What takes place therefore if you are a court deciding on a case where
there is comparative negligence between the plaintiff and the
defendant is in a scale of 1-10. Thats what the courts are supposed to
do.
Now heres another argument here that was advanced by Phoenix:
while the petitioner truck driver was negligent, private respondent
Dionisio had the "last clear chance" of avoiding the accident and hence
his injuries, and that Dionisio having failed to take that "last clear
chance" must bear his own injuries alone.
Therefore, we have this Doctrine of Last Clear Chance. This was
illustrated in the case of Picart vs. Smith.
*recitation*
PICART vs. SMITH, JR. | 1918 |
FACTS: On the Carlatan Bridge in La Union. Picart was riding
on his pony over said bridge. Before he had gotten half way
across, Smith approached from the opposite direction in an
automobile. As the defendant neared the bridge he saw a
horseman on it and blew his horn to give warning of his
approach. He continued his course and after he had taken the
bridge he gave two more successive blasts, as it appeared to
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him that the man on horseback before him was not observing
the rule of the road.
Picart saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the
apparition or the rapidity of the approach, he pulled the pony
closely up against the railing on the right side of the bridge
instead of going to the left. He says that the reason he did this
was that he thought he did not have sufficient time to get over
to the other side. As the automobile approached, Smith guided
it toward his left, that being the proper side of the road for the
machine. In so doing the defendant assumed that the horseman
would move to the other side. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right
while yet some distance away or slowing down, continued to
approach directly toward the horse without diminution of speed.
When he had gotten quite near, there being then no possibility
of the horse getting across to the other side, the defendant
quickly turned his car sufficiently to the right to escape hitting
the horse; but in so doing the automobile passed in such close
proximity to the animal that it became frightened and turned its
body across the bridge, got hit by the car and the limb was
broken. The horse fell and its rider was thrown off with some
violenceAs a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness
and required medical attention for several days.
From a judgment of the CFI of La Union absolving Smith from
liability Picart has appealed.
ISSUE: W/N Smith was guilty of negligence such as gives rise
to a civil obligation to repair the damage done
HELD: YES
RATIO:
The judgment of the lower court must be reversed, and
judgment is here rendered that the Picart recover of Smith
damages
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that person would have
used in the same situation? If not, then he is guilty of
negligence. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that. The
question as to what would constitute the conduct of a prudent
man in a given situation must of course be always determined
in the light of human experience and in view of the facts
involved in the particular case.
Could a prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued? If so, it was
the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a
given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against
its consequences.
Applying this test to the conduct of the defendant in the present
case we think that negligence is clearly established. A prudent
man, placed in the position of the defendant, would in our
opinion, have recognized that the course which he was pursuing
was fraught with risk, and would therefore have foreseen harm
to the horse and the rider as reasonable consequence of that
course. Under these circumstances the law imposed on the
Smith the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in
planting himself on the wrong side of the road. But as we have
already stated, Smith was also negligent; and in such case the
problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of
the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these circumstances
the law is that the person who has the last fair chance to avoid
the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the
other party.
Here, the Supreme Court said that the law has said that the person
who has proved the last clear chance to avoid the intending harm but
fails to do so is chargeable with the consequences without reference to
the prior negligence of the other party. So in the case of Picart vs.
Smith, remember the facts. Smith was at the right lane. The bridge is
spacious enough that both can pass. It was the rider of the pony that
was negligent because in the first place, he was not at the right lane.
Because he had the last clear chance to avoid the impending harm, he
is the one liable even in the first place, he was not negligent. Kanus-a
siya nahimong negligent beh? In terms of point in time? Kadto ng duol
na kaayo ang bangga. Did he have any idea that the horse will be
agitated? NO. But still the Supreme Court ruled that he was liable. Why
the harsh rule? Why is it that as illustrated in the case of Picart
vs.Smith, ka-harsh ba sa Doctrine of Last Clear Chance. Because the
rule which is supposed to mitigate is even more harsh. And what is
that? The Doctrine of Contributory Negligence, which before was an
absolute bar to recovery. Remember, this is a 1918 case. Where wala
pa tay New Civil Code where kadtong Contributory Negligence only
mitigates the liability, not an absolute bar tol liability. So, harsh ang
exception because the rule in itself is harsh. So, remember, when you
encounter the terms Supervening Negligence, Doctrine of Discovered
Peril, its still the Doctrine of Last Clear Chance. Is to the effect where
both parties are negligent but the negligent act of one is appreciably
later in time of that of the other or when it is impossible to determine
whos fault or negligence should be attributable to the incident, the
one who had the last clear opportunity to avoid the impending harm
but failed to do so is chargeable with the consequences thereof. Stated
differently, the rule would also mean that an antecedent negligence of
the person does not preclude the recovery of damages for supervening
negligence of or bar the defense against the liability sought of by
another if the latter who had the last clear chance could have avoided
the impending harm by the exercise of due diligence. Take note again,
the doctrine was imported to Philippine jurisdiction to mitigate the
harshness of the legal effects of the Doctrine of Contributory
Negligence. An absolute bar to recovery but when we already
promulgated beginning August 30, 1950, the Civil Code of the
Philippines, it was a total rejection of the Doctrine of Contributory
Negligence as an absolute bar to recovery. So, after the passage of the
New Civil Code, wala na ng Doctrine of Contributory Negligence as an
absolute bar to recovery.
Later on we will learn, it harkened back to the ruling of Phoenix vs.
IAC but it was also a division case. A second division case. But it is still
the Supreme Court saying that there is no role to be played by the
Doctrine of Last Clear Chance. And so after Phoenix, the flipflop
begins. In ____ Peoples Lumber vs. NLRC, the Supreme Court still
applied the Doctrine of Last Clear Chance. In LBC Cargo Incorporated
vs. CA, again the Supreme Court applied the Doctrine of Last Clear
Chance. In fact, in 1997, for I think the first time, it applied the
Doctrine of Last Clear Chance in a non-accident case. It applied it in a
banking case. In Tiu vs. Arriesgado, Supreme Court again rejected
through the second division the Doctrine of Last Clear Chance and
harkened back to the ruling in the case of Phoenix vs. IAC. But in
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2006, in the case of PNR vs. Branti(?), again applied the Doctrine of
Last Clear Chance. In a Davao City case, Lapanday Agricultural and
Development Corporation vs. Michael Raymond Angala, the Supreme
Court once again, applied the Doctrine of Last Clear Chance despite
two previous categorical pronouncements that it no longer applies in
the Philippine jurisdiction. Libog! Why say something and yet do the
exact opposite of it and believe the exact opposite? Weird! Solid Bank
vs. Spouses Tan, the Doctrine of Last Clear Chance may be applied to
a banking transaction where the bank may be responsible for the
encashment of a forged check. There, we enunciated that the degree
of diligence required of banks is more than that of a good father of a
family in keeping with their responsibility to exercise the necessary
care and prudence in handling their clients money. When you encash
a forged check, a lot of parties may be negligent, one, the owner of
the check. You can be yourself negligent. You left a check signed
already lying around. Thats negligence. So, the impostor has to get
the check and have it encashed. So, what should a bank do to verify
that that is not a spurious check? You verify. Gi-issue mo ba ning
cheke nimo Sir? Tawagan nimo ang client. That is proper diligence
under the circumstances. So, there can be comparable negligence
which is understandable why the Supreme Court is applying the
Doctrine of Last Clear Chance because comparative negligence can
actually arise. There can be concurrence of negligence among the
parties.
Now here comes the case of Allied Bank vs. BPI which is to my mind
the most recent case relating to the Doctrine of Last Clear Chance and
it also applies to banking transactions.
*recitation*
ALLIED BANKING CORPORATION vs. BANK OF THE PH
ISLANDS | G.R. No. 188363 | February 27, 2013 |
Doctrine: A collecting bank is guilty of contributory negligence
when it accepted for deposit a post-dated check
notwithstanding that said check had been cleared by the
drawee bank which failed to return the check within the 24-hour
reglementary period. Facts: [doctrinal case]
On October 10, 2002, a check in the amount of
P1,000,000.00 payable to "Mateo Mgt. Group
International" (MMGI) was presented for deposit and
accepted at petitioner's Kawit Branch. The check, postdated
"Oct. 9, 2003", was drawn against the account
of Marciano Silva, Jr. (Silva) with respondent Bank of
the Philippine Islands (BPI) Bel-Air Branch.
The check was cleared by respondent and petitioner
credited the account of MMGI with P1,000,000.00. On
October 22, 2002, MMGIs account was closed and all
the funds therein were withdrawn.
A month later, Silva discovered the debit of
P1,000,000.00 from his account. In response to Silvas
complaint, respondent credited his account with the
aforesaid sum
After the check, or more accurately, the Charge Slip,
was tossed several times from petitioner to respondent
PCHC directed the respondent to deliver the original
check and informed it of PCHCs authority to split
50/50 the amount of the check subject of a "PingPong"
controversy which shall be implemented thru the
issuance of Debit Adjustment Tickets against the
outward demands of the banks involved
Petitioner filed a complaint6 before the Arbitration Committee,
asserting that respondent should solely bear the entire face
value of the check due to its negligence in failing to return the
check to petitioner within the 24-hour reglementary period as
provided in Section 20.17 of the Clearing House Rules and
Regulations
In its Answer with Counterclaims, respondent charged petitioner
with gross negligence for accepting the post-dated check in the
first place. It contended that petitioners admitted negligence
was the sole and proximate cause of the loss.
On December 8, 2004, the Arbitration Committee rendered its
Decision in favor of petitioner and against the respondent.
At the RTC, it found no merit in respondents stance that
through inadvertence it failed to discover that the check was
post-dated and that confirmation within 24 hours is often
"elusive if not outright impossible" because a drawee bank
receives hundreds if not thousands of checks in an ordinary
clearing day
CA set aside the RTC judgment and ruled for a 60-40 sharing of
the loss as it found petitioner guilty of contributory negligence
in accepting what is clearly a post-dated check. The CA found
that petitioners failure to notice the irregularity on the face of
the check was a breach of its duty to the public and a telling
sign of its lack of due diligence in handling checks coursed
through it. While the CA conceded that the drawee bank has a
bigger responsibility in the clearing of checks, it declared that
the presenting bank cannot take lightly its obligation to make
sure that only valid checks are introduced into the clearing
system. According to the CA, considerations of public policy and
substantial justice will be served by allocating the damage on a
60-40 ratio
As well established by the records, both petitioner and
respondent were admittedly negligent in the encashment of a
check post-dated one year from its presentment.
Petitioner: CA should have sustained PCHCs finding that despite
the antecedent negligence of petitioner in accepting the
postdated check for deposit, respondent, by exercising
reasonable care and prudence, might have avoided injurious
consequences had it not negligently cleared the check in
question.
It pointed out that in applying the doctrine of last clear
chance, the PCHC cited the case of Philippine Bank of
Commerce v. Court of Appeals21 which ruled that
assuming the banks depositor, private respondent,
was negligent in entrusting cash to a dishonest
employee, thus providing the latter with the
opportunity to defraud the company, it cannot be
denied that petitioner bank had the last clear
opportunity to avert the injury incurred by its client,
simply by faithfully observing their self-imposed
validation procedure.
Petitioner underscores respondents failure to observe
clearing house rules and its own standard operating
procedure which, the PCHC said constitute further
negligence so much so that respondent should be
solely liable for the loss. Specifically, respondent failed
to return the subject check within the 24-hour
reglementary period and to institute any formal
complaint.
The PCHC likewise faulted respondent for not making
follow-up calls or taking any other action after it
initially attempted, without success, to contact by
telephone the drawer of the check, and clearing the
check despite such lack of confirmation from its
depositor in violation of its own standard procedure for
checks involving large amounts.
Questions applicable:
What is contributory negligence?
What is the relationship between CN and doctrine
of last clear chance?
Issue: Whether the doctrine of last clear chance applies in this
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case
Held: Yes.
The doctrine of last clear chance, stated broadly, is that the
negligence of the plaintiff does not preclude a recovery for the
negligence of the defendant where it appears that the
defendant, by exercising reasonable care and prudence, might
have avoided injurious consequences to the plaintiff
notwithstanding the plaintiffs negligence.22 The doctrine
necessarily assumes negligence on the part of the defendant
and contributory negligence on the part of the plaintiff, and
does not apply except upon that assumption.
Stated differently, the antecedent negligence of the plaintiff
does not preclude him from recovering damages caused by the
supervening negligence of the defendant, who had the last fair
chance to prevent the impending harm by the exercise of due
diligence
Moreover, in situations where the doctrine has been applied, it
was defendants failure to exercise such ordinary care, having
the last clear chance to avoid loss or injury, which was the
proximate cause of the occurrence of such loss or injury
In this case, the evidence clearly shows that the proximate
cause of the unwarranted encashment of the subject check was
the negligence of respondent who cleared a post-dated check
sent to it thru the PCHC clearing facility without observing its
own verification procedure. As correctly found by the PCHC and
upheld by the RTC, if only respondent exercised ordinary care in
the clearing process, it could have easily noticed the glaring
defect upon seeing the date written on the face of the check
"Oct. 9, 2003". Respondent could have then promptly returned
the check and with the check thus dishonored, petitioner would
have not credited the amount thereof to the payees account.
Thus, notwithstanding the antecedent negligence of the
petitioner in accepting the post-dated check for deposit, it can
seek reimbursement from respondent the amount credited to
the payees account covering the check.
What petitioner omitted to mention is that in the cited case of
Philippine Bank of Commerce v. Court of Appeals, while the
Court found petitioner bank as the culpable party under the
doctrine of last clear chance since it had, thru its teller, the last
opportunity to avert the injury incurred by its client simply by
faithfully observing its own validation procedure, it nevertheless
ruled that the plaintiff depositor (private respondent) must
share in the loss on account of its contributory negligence.
Thus:
The foregoing notwithstanding, it cannot be denied that,
indeed, private respondent was likewise negligent in not
checking its monthly statements of account. Had it done so, the
company would have been alerted to the series of frauds being
committed against RMC by its secretary. The damage would
definitely not have ballooned to such an amount if only RMC,
particularly Romeo Lipana, had exercised even a little vigilance
in their financial affairs. This omission by RMC amounts to
contributory negligence which shall mitigate the
damages that may be awarded to the private
respondent under Article 2179 of the New Civil Code, to
wit:
"x x x. When the plaintiffs own negligence was the immediate
and proximate cause of his injury, he cannot recover damages.
But if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded."
In view of this, we believe that the demands of substantial
justice are satisfied by allocating the damage on a 60-40
ratio. Thus, 40% of the damage awarded by the respondent
appellate court, except the award of P25,000.00 attorneys fees,
shall be borne by private respondent RMC; only the balance of
60% needs to be paid by the petitioners. The award of
attorneys fees shall be borne exclusively by the petitioners.
In another earlier case, the Court refused to hold petitioner
bank solely liable for the loss notwithstanding the finding that
the proximate cause of the loss was due to its negligence. Since
the employees of private respondent bank were likewise found
negligent, its claim for damages is subject to mitigation by the
courts. Thus:
Both banks were negligent in the selection and supervision of
their employees resulting in the encashment of the forged
checks by an impostor. Both banks were not able to overcome
the presumption of negligence in the selection and supervision
of their employees. It was the gross negligence of the
employees of both banks which resulted in the fraud and the
subsequent loss. While it is true that petitioner BPIs
negligence may have been the proximate cause of the
loss, respondent CBCs negligence contributed equally
to the success of the impostor in encashing the proceeds
of the forged checks. Under these circumstances, we apply
Article 2179 of the Civil Code to the effect that while respondent
CBC may recover its losses, such losses are subject to mitigation
by the courts. x x x
Considering the comparative negligence of the two (2) banks,
we rule that the demands of substantial justice are satisfied by
allocating the loss of P2,413,215.16 and the costs of the
arbitration proceedings in the amount of P7,250.00 and the
costs of litigation on a 60-40 ratio. Conformably with this ruling,
no interests and attorneys fees can be awarded to either of the
parties Apportionment of damages between parties who are both
negligent was followed in subsequent cases involving banking
transactions notwithstanding the courts finding that one of
them had the last clear opportunity to avoid the occurrence of
the loss.
In Bank of America NT & SA v. Philippine Racing Club, the Court
ruled:
In the case at bar, petitioner cannot evade responsibility for the
loss by attributing negligence on the part of respondent
because, even if we concur that the latter was indeed negligent
in pre-signing blank checks, the former had the last clear
chance to avoid the loss. To reiterate, petitioners own
operations manager admitted that they could have called up the
client for verification or confirmation before honoring the
dubious checks. Verily, petitioner had the final opportunity to
avert the injury that befell the respondent. x x x Petitioners
negligence has been undoubtedly established and, thus,
pursuant to Art. 1170 of the NCC, it must suffer the
consequence of said negligence.
In the interest of fairness, however, we believe it is
proper to consider respondents own negligence to
mitigate petitioners liability.1wphi1 Article 2179 of
the Civil Code provides:
xxxx
Explaining this provision in Lambert v. Heirs of Ray Castillon,
the Court held:
"The underlying precept on contributory negligence is that a
plaintiff who is partly responsible for his own injury should not
be entitled to recover damages in full but must bear the
consequences of his own negligence. The defendant must thus
be held liable only for the damages actually caused by his
negligence. xxx xxx xxx"
xxxx
Following established jurisprudential precedents, we believe the
allocation of sixty percent (60%) of the actual damages
involved in this case (represented by the amount of the checks
with legal interest) to petitioner is proper under the premises.
Respondent should, in light of its contributory
negligence, bear forty percent (40%) of its own loss.
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In Philippine National Bank v. F.F. Cruz and Co., Inc., the Court
made a similar disposition, thus:
Given the foregoing, we find no reversible error in the findings
of the appellate court that PNB was negligent in the handling of
FFCCIs combo account, specifically, with respect to PNBs
failure to detect the forgeries in the subject applications for
managers check which could have prevented the loss. x x x
PNB failed to meet the high standard of diligence required by
the circumstances to prevent the fraud. In Philippine Bank of
Commerce v. Court of Appeals and The Consolidated Bank &
Trust Corporation v. Court of Appeals, where the banks
negligence is the proximate cause of the loss and the depositor
is guilty of contributory negligence, we allocated the damages
between the bank and the depositor on a 60-40 ratio. We apply
the same ruling in this case considering that, as shown above,
PNBs negligence is the proximate cause of the loss while the
issue as to FFCCIs contributory negligence has been settled
with finality in G.R. No. 173278. Thus, the appellate court
properly adjudged PNB to bear the greater part of the loss
consistent with these rulings.
"Contributory negligence is conduct on the part of the injured
party, contributing as a legal cause to the harm he has suffered,
which falls below the standard to which he is required to
conform for his own protection." Admittedly, petitioners
acceptance of the subject check for deposit despite the one
year postdate written on its face was a clear violation of
established banking regulations and practices. In such
instances, payment should be refused by the drawee bank and
returned through the PCHC within the 24-hour reglementary
period. As aptly observed by the CA, petitioners failure to
comply with this basic policy regarding post-dated checks was
"a telling sign of its lack of due diligence in handling checks
coursed through it."
It bears stressing that "the diligence required of banks is more
than that of a Roman paterfamilias or a good father of a family.
The highest degree of diligence is expected," considering the
nature of the banking business that is imbued with public
interest. While it is true that respondent's liability for its
negligent clearing of the check is greater, petitioner cannot take
lightly its own violation of the long-standing rule against
encashment of post-dated checks and the injurious
consequences of allowing such checks into the clearing system.
Petitioner repeatedly harps on respondent's transgression of
clearing house rules when the latter resorted to direct
presentment way beyond the reglementary period but glosses
over its own negligent act that clearly fell short of the conduct
expected of it as a collecting bank. Petitioner must bear the
consequences of its omission to exercise extraordinary diligence
in scrutinizing checks presented by its depositors.
Assessing the facts and in the light of the cited precedents, the
Court thus finds no error committed by the CA in allocating the
resulting loss from the wrongful encashment of the subject
check on a 60-40 ratio.
Just remember ha again, there is this apportionment, 60-40. Again, we
will go back to the case of Philippine Bank of Commerce vs. CA.
Again, 60-40 ratio. That is what you need to remember. In fact in
banking cases with similar facts, it is always 60-40. Take note of the
case.
Another defense is prescription. Any right of action will prescribe if you
do not prosecute it in a proper time. In this case, what would be the
prescriptive period? In Article 1146 of the New Civil code which
states:
"The following actions must be instituted within four years:
(1) Upon injury to the rights of the plaintiff; .
(2) Upon a quasi-delict; .
xxx xxx xxx
In the case of Paulan vs. Sarabia, all you need to remember is if it is
a collision, then the period begins to run from the date of collision or
the date of the act or omission that causes damage since the action is
based on the quasi-delict. Although, Paulan vs. Sarabia is more known
in Civil Procedure because this is a case of prescription in the light of
third party complaints.
I tried to scour jurisprudence what would be an example of injury to
the rights of the plaintiff because you know what anything can be an
injury to the right of the plaintiff. Gikawatan ko nimo, you violate my
right. Gi-dautan ko nimo, that is an injury to my right. So, what is an
example? A very definite example there? It would be the case of
Valencia vs. Cebu Portland Cement where the plaintiff was
separated from employment from allegedly unjustifiable cause. The
Supreme Court held that the action is one for the injury to the rights of
the plaintiff. Take note of this thing, if you are separated from
employment for allegedly unjustifiable cause, what do you call that?
An illegal dismissal case. Therefore, upon effectivity of the labor code,
labor complaints were still recognized by the judiciary. Thats what
happened before. Right now, under the labor code, the act complained
of in Valencia which is separation without justifiable cause as
cognizable as illegal dismissal and therefore we are to follow whatever
would be the prescriptive period for illegal dismissal cases. So the
question is, what now is the proper prescriptive period for filing an
illegal dismissal case? Is it safe to assume that whatever is the
prescriptive period for the filing of illegal dismissal cases before the
Labor arbiter would be the prescriptive period whether under the labor
code or under the rules to implement the labor code? Actually, the
period is 4 years. Whats my basis? My basis is Teekay Shipping vs.
Concha (February 22, 2012). What you need to remember here is
that any persons right to his labor is a property right. Therefore, it
cannot be taken away from you without due process of law without
offending the due process considerations under the 1987 Constitution.
And illegal dismissal is a violation of a property right or an injury to the
rights of the plaintiff and therefore, it is still 4 years. Here in Teekay
Shipping, it is actually an enforced disembarkation. We are talking here
about a maritime contract. Maritime labor ni siya. Nisakay kag barko
pero before the end of your contract, gipanaog ka na, wala ka na
gipasakay and so the employee here was dismissed. Teekay Shipping
was saying he actually filed it despite the lapse of time. Wala na. nag
prescribe na siya. Why? Because according to POEA rules, it is only 3
years. The period within which to enforce violations of maritime
contracts or contracts of maritime employment should only be 3 years
according to Teekay Shipping. Supreme Court said, NO! Any illegal
termination case which according to the case of Valencia, must be
brought within 4 years from the date of commission. So, Valencia is
still good law. It is still a perfect example of violation of the rights of
the plaintiff under Number 1 of Article 1146.
January 26, 2015
Lets go to art. 2180.
Art. 2180. The obligation imposed by Article 2176 is demandable not
only for one's own acts or omissions, but also for those of persons for
whom one is responsible. Xx
(Recitation)
Q: Can there be liability under art. 2180 if there is no violation of art.
2176?
Q: So based on the opening paragraph of art. 2180, what are the
types of tort liability?
Atty. E:
1. Direct liability
2. Derivative liability which is vicarious liability under art. 2180
The term vicarious comes from the word vicar. In turn pag
pamubuon pa jud nimo ang word na vicar, you have vice. Lets start
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with the word vice. When you say vice, it comes from the latin word
vicis.Vicis which means change. So any word related to vicis in
English? Vicissitude, which means a change in life situation. So vicis
means change. Also, it can be related to the word vice na gikuha ra
pud ani from this word vicis because when you talk about vice, its to
change somebody else. Later on, it evolved to mean that somebody
takes the place of another. Whats an example of a vice that takes the
place of another? Vice President. If the President is not available, then
its the vice president that takes over. So somebody who takes the
place of another person. Lets go to the word vicar. Im sure being
Catholic individuals, you know the Roman Catholic church would think
the pope to be the vicar of Christ. How do we suppose to understand
the word vicar used in that context? We understand that to mean that
the pope is actually the deputy the vice, the second in command of
Christ. Thats what Catholic doctrine actually means. He is actually
Gods representative on earth. *chika about Pope John Paul II*
Now lets go the word vicarious. Understood using the word vicis,
vicarious liability therefore is a liability not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
In art. 2180, it says there that there are a lot of people who are
responsible for others. So we will continue to read art. 2180.
Take note that the liability for quasi-delict may either be:
(1) Direct and personal that is under art. 2176 or responsibility
for ones own act or omission; and
(2) Direct but derivative under art. 2180 or the liability for
those persons for whom one is responsible.
The general rule under tort liability is you are responsible for your own
actions. 2180 is actually an exception to the general rule. And it states
what is known as the vicarious liability doctrine. It is also called the
doctrine of imputed negligence. Meaning, there is a presumption that
should ascertain a child, ward or anybody else for whom another
person is responsible that is presumed to be negligence on the part of
the person responsible for anothers actions. A person is not only
responsible for torts committed by himself but also for torts committed
by others with whom he has a certain relationship and for whom he is
responsible.
According to the SC in the case of Tamargo v. CA, why is there a
need for law to include vicarious liability? What is the rationale?
With respect to extra-contractual obligation
arising from negligence, whether of act or omission, it is
competent for the legislature to elect and our Legislature
has so elected to limit such liability to cases in which the
person upon whom such an obligation is imposed is morally
culpable or, on the contrary, for reasons of public policy. to
extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the negligence
of those persons whose acts or omissions are imputable, by
a legal fiction, to others who are in a position to exercise an
absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual
liability with certain well-defined exceptions to cases in
which moral culpability can be directly imputed to the
persons to be charged. This moral responsibility may consist
in having failed to exercise due care in one's own acts, or in
having failed to exercise due care in the selection and
control of one's agent or servants, or in the control of
persons who, by reasons of their status, occupy a position of
dependency with respect to the person made liable for their
conduct.
According to the SC in the case of Tamargo, it is that degree of control
exercised by another person over another that is the basis of liability.
With power comes responsibility (Sir quoting a line in Spiderman).
With power over another person with whom you are responsible,
comes also the responsibility to answer for his acts or omissions. Now
according to the SC in the case of Tamargo, naa ba certain degree of
public policy involved here? Is there public policy involved in imputing
vicarious liability or extending the scope of liability not only for ones
own acts or omissions but for the acts or omissions of another person?
Yes.
What is the ultimate basis of liability or cornerstone of liability in tort
law without which you cannot be held liable under art. 2176?
Negligence. There is this culpa in the performance of a parents duty to
supervise my child. That is the reason for liability. Naa koy presumed
na negligence on my part. Had I supervise properly my child, it would
not have happened. Thats the presumption but take note that that
presumption is not absolute. That is not a conclusive presumption. If a
presumption is not conclusive, what is it under Rule 131 of the ROC? It
is disputable. How would I dispute the presumption of negligence on
my part if my child committed a tort? That I exercised the diligence of
a good father of a family.
Take note that in general, the liability imposed against a vicarious
tortfeasor is direct and primary, not subsidiary. Although we will know
later on that there are instances where there can simply be subsidiary
liability. General rule, it is primary. You are the one directly sued. Lets
say for example you have a child who committed a tort, you are the
one who is sued subject to reimbursement under art. 2181 although
that rarely happens. Now take note that principle alone highlights the
distinction between culpa criminal and culpa acquiliana. In criminal
cases, remember diha ra naa subsidiary liability as a general rule.
Because you can only have recourse against for example the employer
if the employee is insolvent. And take note that in culpa criminal, the
employees criminal guilt is automatically the employers civil guilt. You
dont have to prove in culpa criminal. Its better in art. 2180 because if
you are the employee there, you can still disprove it. You can still
present evidence saying that you exercised the proper diligence
required by the circumstances.
Take note in quasi-delict, recourse can be made directly against the
employer, parent, guardian, etc. without suing the employee. Because
the cornerstone of tort liability will always be negligence, the basis of
liability under art. 2180 is the presumed negligence in supervision.
Have you heard of the term respondat superior? What does it mean?
Lets say for example I am the employer, my employee commits a tort
or a mistake. Is it not a fact that ultimately I am liable. Lets say my
employee nagkapalpak ang iyang trabaho, Im the supervisor. Is it not
a fact that I am ultimately liable? It reflects upon me? What is
respondeat superior? The basis of liability under art. 2180 is not
respondeat superior but bonus pater familias.
Take note that while both vicarious liability based on bonus pater
familias and respondeat superior, both presumed negligence on the
part of the person responsible for another, the vicarious liability under
bonus pater familias is disputable. Whereas the liability under
respondeat superior is actually conclusive. Say for example, you are
the president of the Philippines. Ultimately, if something goes wrong
with the government, who is to be blamed? It is the President. In the
military, it is the same thing. Kung sino ang iyong commanding military
officer, napalpak karon ang iyahang mga subordinates. Who will be
relieved? Its not yung mga subordites niya, it would be the
commanding officer. That is respondeat superior.
Read the 2nd par. of art. 2180.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in
their company.
Whats the basis of liability under that paragraph?
Fuellas v. Cadano October 31, 1961
Vicarious liability of parents is a necessary consequence of what?
According to the SC, the liability of parents is a consequence of
parental authority. How did the SC define parental authority? What
constitutes parental authority? What is the main duty? It imposes upon
the parents the "duty of supporting them, keeping them in their
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company, educating them in proportion to their means", while on the
other hand, gives them the "right to correct and punish them in
moderation".
Because you are supported by your parents, you owe them the duty of
obedience. If you do not obey, they have the right to correct you, to
punish you in moderation. Thats part of parental authority. Whats the
degree of care imposed upon parents over the acts of their minor
children? Whos liable under this article?
Take note that right now 2180 supposed to be amended already. Not
categorically or by express provision of the law saying that art. 2180 of
is amended but under art. 211 of the Family Code which provide that
The father and the mother shall jointly exercise parental authority
over the persons of their common children. And under 221 of the
Family Code Parents and other persons exercising parental authority
shall be civilly liable for the injuries and damages caused by the acts or
omissions of their unemancipated children living in their company
xx.So is there an alternative qualification there? That the father, or in
the absence or due to his death or incapacity, the mother will be held
liable? So whats the basis?
Libi v. IAC, G.R. No. 70890, Sept. 18, 1992
In Libi v. IAC, categorical ang ruling ng SC. The SC said that the civil
liability is without any alternative qualification. Wala na. father and
mother are jointly liable already under art. 2180.
In the Child & Youth Welfare Code, is there a provision there relating
to tort committed by children?
Art. 58. Torts. - Parents and guardians are responsible for the
damage caused by the child under their parental authority in
accordance with the Civil Code.
So we are talking about 3 laws:
(1) Civil Code 2nd par. of art. 2180.
(2) Family Code
(3) Art. 58 of Child & Youth Welfare Code
Does it matter that the child is legitimate or illegitimate?
Tamargo v. CAJune 3, 1992
We do not believe that parental authority is
properly regarded as having been retroactively transferred to
and vested in the adopting parents, the Rapisura spouses, at
the time the air rifle shooting happened. We do not consider
that retroactive effect may be given to the decree of
adoption so as to impose a liability upon the adopting
parents accruing at a time when adopting parents had no
actual or physically custody over the adopted child.
Retroactive affect may perhaps be given to the granting of
the petition for adoption where such is essential to permit
the accrual of some benefit or advantage in favor of the
adopted child. In the instant case, however, to hold that
parental authority had been retroactively lodged in the
Rapisura spouses so as to burden them with liability for a
tortious act that they could not have foreseen and which
they could not have prevented (since they were at the time
in the United States and had no physical custody over the
child Adelberto) would be unfair and unconscionable. Such a
result, moreover, would be inconsistent with the
philosophical and policy basis underlying the doctrine of
vicarious liability. Put a little differently, no presumption of
parental dereliction on the part of the adopting parents, the
Rapisura spouses, could have arisen since Adelberto was not
in fact subject to their control at the time the tort was
committed.
In this case, the SC made a categorical pronouncement saying that a
decree of adoption cannot be given retroactive effect apart from the
fact that factually in this case, they still have custody of the child at
the time the incident happened.
We have no problem with minor children. They are deemed to lack
proper discernment. They cannot be held responsible for their own
actions. The question is what about children of majority age? Can
children of majority age still commit tort so as to hold their parents
responsible? How do we answer the question? For that we look at art.
236 of the Family Code.
Art. 236.Emancipation shall terminate parental authority over the
person and property of the child who shall then be qualified and
responsible for all acts of civil life, save the exceptions established by
existing laws in special cases.
Contracting marriage shall require parental consent until the age of
twenty-one.
Nothing in this Code shall be construed to derogate from the duty or
responsibility of parents and guardians for children and wards below
twenty-one years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code.
So its emancipation. Once you are emancipated from your parents,
you terminate parental authority in that situation. How do we get
emancipated? By contracting marriage? No, its only upon reaching the
age of majority. Have you heard of cases filed by reason of
emancipation? Because before you can petition for emancipation under
the Civil Code. Right now theres no more emancipation but before you
can petition for emancipation. You can have because you are a minor
technically speaking you can have somebody else exercise parental
authority over you. A guardian, pwede na sya karon dili na.
emancipation can only take place upon reaching the age of majority
age. When do you reach the age of majority age? 18! In fact between
ages of 18 to 21 years, when you get married you are still required to
get parental consent to get married under 2nd par. of art. 236.
And the final paragraph said Nothing in this Code shall be construed
to derogate from the duty or responsibility of parents and guardians
for children and wards below twenty-one years of age mentioned in
the second and third paragraphs of Article 2180 of the Civil Code.
Which means that even if you are already of age, your parents can still
be held liable for tort. So that 18-21 years of age, that can actually
lead to tort liability on the part of parents even if you are technically
speaking of majority age already. Remember, upon emancipation,
parental authority is terminated. But art. 236 has stated quite
categorically that the main effect of emancipation is the termination of
parental authority. So therefore, between the ages of 18-21, its no
longer parental authority that would be the basis for tort liability or
vicarious liability. So what would therefore be the basis of extending
parental authority or vicarious liability beyond the age of majority? you
can find that in the old old case of..
Elcano v. Hill 77 SCRA 98 1977
You read this case. Although the SC made a pronouncement that the
liability of a parent who was a lawyer direct and primary, SC said
subsidiary nalang. Well in fact at that time, the rules relating to
vicarious liability were *inaudible sorry may umubo ng malakas*
already. You read that case. The main issue here is may art. 2180 may
apply against a father notwithstanding the undisputed fact that at the
time before the complaint of the child living with and getting
subsistence from his father was already legally married. It cannot be
parental authority anymore because there was already emancipation
by marriage. According to the SC, it is clear that pursuant to art. 399
of the Old CC: Emancipation by marriage or by voluntary concession
shall terminate parental authority over the child's person. It shall
enable the minor to administer his property as though he were of age,
but he cannot borrow money or alienate or encumber real property
without the consent of his father or mother, or guardian. He can sue
and be sued in court only with the assistance of his father, mother or
guardian. SC said the marriage of a minor child does not relieve the
parents of the duty to see to it that the child, while still a minor, does
not give answerable for the borrowings of money and alienation or
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encumbering of real property which cannot be done by their minor
married child without their consent.
Guardians are liable for the damages caused by the minor or
incapacitated persons who are under their authority and live in their
company. So take note that guardianship can be over minors or over
incapacitated persons. Now why is it that guardians can be held liable?
Whats the basis why civil liability is extended to guardians? Dba sa
parents its parental authority? What about the guardians?
Guardianship is somewhat like parental authority. If youre a guardian
over a minor, you are deemed to exercise special parental
authority or substitute parental authority. The same thing can
be applicable to teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and students or
apprentices, so long as they remain in their custody. Again remember
that while minor children are in school, they are deemed to exercise
substitute parental authority over the children. That is why we will
discuss this together with parental authority.
Lets skip the other pars. 4-6 and continue with teachers and heads of
establishments.
Lastly, teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices,
so long as they remain in their custody
Now take note that prior to the Family Code, this provision relating to
teachers and heads of establishments seem to apply only to
establishments of arts and trades, and not to academic educational
institutions. Before there was a distinction. Whats the difference with
the establishment of arts and trades with an academic educational
institution? An academic educational institution is what type of
establishment? An establishment of arts and sciences. Arts and trades
are vocational schools. Ex. Samson Technical Institute or STI. Why is it
that it is only applicable to this type of establishments? Again, this is a
provision that comes from antiquated situations in the ancient times.
Thats no longer applicable now. Before when it is an apprenticeable
occupation, instruction is more often than not equated with custody
during the time of ancient craftsmen. For example, you are a stone
mason, you just do not become a master of the craft just by applying
yourself to that occupation. You have to be an apprentice first. You
have to live together with your master and earn your by learning the
craft while in his custody. It takes a long time in the olden times it
takes as much as 20 years. Thats the reason why there is vicarious
liability because technically speaking, while the apprentice is living with
the master, he is exercising substitute parental authority. That if his
apprentice commits a tort or a crime, he will also be held responsible.
Take note that this liability originally was not imposed upon academic
educational institutions because to do so will result in imposing upon
academic educational institutions a greater and wider area of
responsibility than that imposed upon parents which stands to reason
considering that parents are liable to the damage caused by their
children only when they are minors and they live with them. Parents
have that power to correct their children. Schools do not. So sobra ra
pud kaayo kung imohang irender them liable. The schools or the
teachers cannot punish their students even in moderation. Although I
was a product of the time when the teachers are sobra pa kaayo kesa
sa gilikanan.
Only teachers and heads of establishment are held liable CODALLY ha
under art. 2180. Can you hold the school itself liable? NO, only the
teachers and heads of establishment. And in addition and more
importantly, custody is required for liability to attach as art. 2180 is
originally reworded and originally intended. Now according to Paras,
the students and apprentices usually handle machineries, instruments
or substances which may have untrained or ignorant persons may
cause damages to fellow students or other persons. The law,
therefore, imposes upon the teachers the duty to exercise supervision
over them to prevent damage.
Exconde v. Capunong June 29, 1957
There is a double homicide here that took place. So the boy took over
the wheel of the jeep and drove it recklessly and turned turtle resulting
to the death of two of its passengers. Would the school be held liable?
According to the SC very simply that the school is not liable because it
is not an establishment of arts and trades. What is it? Its Balintawak
Elementary School. And elementary school is not an establishment of
arts and trades. Theres no custody here. The children did not board
Balintawak. Anyway, thats the provision of the law. Thats what the
law says.
Mercado v. CA
Where the SC also ruled that the school was not liable because it was
not an establishment of arts and trades. And the SC explaining the
custody requirement said that it had not been proven because it
contemplates a situation where the student boards and lives with the
teacher such that the control, direction and influences on the pupil
supersede those of the parents. But you have to question, naa pa bay
ingon ana karon? Where in studying you board the school itself? You
live in the school and its the school has parental authority over you
superseding the parental authority over the parents. Naa ba? Wala nay
ingon ana karon.
Heres an interesting case.
Palisoc v. Brillantes October 4, 1971
There is nothing in the law that requires that for such liability to
attach the pupil or student who commits the tortious act must live and
board in the school, as erroneously held by the lower court, and the
dicta in Mercado (as well as in Exconde) on which it relied, must now
be deemed to have been set aside by the present decision. The SC
said that categorically saying that Mercado and Exconde v. Capunong
are no longer true dicta. So the prevailing rule now is there is no more
requirement of boarding together or living in the company of the
teachers or living in the company of the school. The custody
requirement therefore under art. 2180 as it relates to teachers and
heads of establishments in the vicarious liability for the acts committed
by their pupils or their apprentices or etc. can now be simply reduced
into protective custody the protective and supervisory custody that
the school and its heads and teachers exercise over the pupils and
students for as long as they are at attendance in the school, including
recess time.
What does the SC say about the term in attendance in the school or
at recess?
Salvosa v. IAC October 5, 1988
This is the case where SC defined and explained what is meant by the
terms at attendance in a school and recess clearly expanding or
elucidating the principle laid down in the case of Palisoc v. Brillantes.
In line with the case of Palisoc, 17 a student not
"at attendance in the school" cannot be in "recess" thereat.
A "recess," as the concept is embraced in the phrase "at
attendance in the school," contemplates a situation of
temporary adjournment of school activities where the
student still remains within call of his mentor and is not
permitted to leave the school premises, or the area within
which the school activity is conducted. Recess by its nature
does not include dismissal. 18 Likewise, the mere fact of
being enrolled or being in the premises of a school without
more does not constitute "attending school" or being in the
"protective and supervisory custody' of the school, as
contemplated in the law.
Upon the foregoing considerations, we hold that
Jimmy B. Abon cannot be considered to have been "at
attendance in the school," or in the custody of BCF, when he
shot Napoleon Castro. Logically, therefore, petitioners
cannot under Art. 2180 of the Civil Code be held solidarity
liable with Jimmy B. Abon for damages resulting from his
acts.
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Is recess and dismissal the same? Recess is not the recess that we
enjoy when we were in elementary or even in highschool. So in this
case the SC said that you cannot be at attendance or a student not at
attendance cannot be in recess thereat. It doesnt really matter.
Recess is actually still included in the term at attendance in a school.
At a situation of temporary adjournment of activities thats recess.
February 16, 2015
Ok, so last time we were still discussing Article 2180, this time we will
continue with where we went off
Amadora v. CA
The provision in question according to the SC should apply to all
schools. Therefore, there is no longer a distinction between that,
whether it is a School of Arts or a School of Arts and Sciences. There is
no substantial distinction between academic and non-academic schools
in so far as torts committed by the schools are concerned but the
same vigilance is expected from the teacher over the students under
his control and supervision, whatever the nature of the school where
he is teaching.
It may be a piece of judicial legislation but to my mind that is the
correct interpretation. Ok? Very clear the provision says it must be a
school of arts and trades for the vicarious liability to apply to schools
but considering that we are now in golden times and the school for
arts and trades are slowly getting phased out, wala na. So this is the
correct interpretation of the provision as far as I am concerned.
Salvosa vs. IAC
With respect to the issue of when the peril was in attendance while the
school was on recess. Ok, those were the topics that that we last
discussed.
St. Francis High School v. CA
What happened here was that a student was not allowed by his
parents to join a picnic organized by his classmates and teachers.
However, the child was persuaded to go even against the advice of his
parents and went with them to the beach, excursion. He drowned.
Now, can you hold the school liable here? The activity, in which the
student, his classmates and teachers were involved, was organized
with the knowledge of the school. According to the SC you have to
draw the line between whether that teacher, who organized the event,
was performing his duty as a teacher. If it is something that is totally
estrange from his academic task then there is no way that you can
hold the school liable for damages because it shall be considered an
extra-curricular activity and therefore not a schools action.
Let me tell you, actually, that as far as DepEd is concerned it doesnt
really matter. Naa bitaw ka, lets say, practicum or immersions sa mga
students, schools would normally ask the parents or guardians of the
student to sign a waiver holding the school claimless for whatever
might happen. Will that waiver stand in court? The answer is NO, not
because of the civil code, not because of jurisprudence but because of
the Family Code which we will be discussing later on.
PSBA vs. CA (Feb 4, 1992)
I think this is the case where the injury was occasioned upon the
student not by elements of the school but elements outside of school.
Can the school be held liable for the fact that the student was injured,
maybe stabbed or gikulata or what have you, by somebody who is not
involved with the school?
An affirmative answer to that question would mean that the school will
now be considered an insurer of all these risks. You cannot hold the
school liable for an act of someone who is not even its student. That is
how the SC in not so many words said the case of PSBA. The rules
applicable in the present are Articles 218 and 219 of the FC.
Art. 218. The school, its administrators and teachers, or the
individual, entity or institution engaged in child care shall have
special parental authority and responsibility over the minor
child while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized
activities whether inside or outside the premises of the school,
entity or institution. (349a)
So whether it is committed or undertaken within or outside the
premises of the school it doesnt mean liability (?) for as long as it is
sanctioned by the school. Is it possible to hold the school liable for
torts upon a student, for example, where it was a non-sanctioned
activity? Is it possible? Remember that to do so would be to unfair
consequence. Why unfair? Kanang pag mag-outing ang mga students,
sila sila lang, but because they are enrolled with the school you can
hold the school liable for accident? So, this provision is to sanction only
activities that are authorized or sanctioned by the school.
Art. 219. Those given the authority and responsibility under
the preceding Article shall be principally and solidarily liable for
damages caused by the acts or omissions of the
unemancipated minor. The parents, judicial guardians or the
persons exercising substitute parental authority over said minor
shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.
All other cases not covered by this and the preceding articles
shall be governed by the provisions of the Civil Code on quasi-
delicts. (n)
So the consequence, therefore, of parental authority and responsibility
is solidary liability. But if it is a mere substitute of parental authority,
conformably with Art. 219, the parents, judicial guardian, etc., shall be
subsidiarily liable.
To summarize:
1. Schools, administrators, teachers, are liable for torts committed
by minors in their custody.
2. Liability is no longer limited to teachers and to heads of
establishments of arts and trades.
3. Pursuant to what weve learned previously, the term custody here
means protective custody and no longer custody that would
require a student to ___ with the head of establishment or the
teacher.
4. Any school is liable, whether academic or non-academic, there is
no distinction any more as to a school being one of arts and
trades.
5. What is the nature of liability? Still follow the general rule and Art.
2194 which makes it joint and solidary liability.
6. Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or
institution.
So it is very clear right now the rules with respect to minors. What if
the student right now is no longer a minor? What would be the rules
here? Take note that under Article 2180, teachers and heads of
establishments are still liable for acts of students and apprentices even
if they are no longer minors. The teacher in charge is liable for acts of
the non-minor student. The school and administrators are not to be
held liable. However, the teachers liability attached whether the school
is academic or non-academic. OK? By mere exception, we follow the
rule under Article 2180 where it is only the head of establishments, not
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the teacher, who is held liable where the injury is caused in a school of prove employer-employee
arts and trades. Custody still means protective custody. So, in a relationship and the insolvency of
nutshell, mao na sya ang rules pertaining to liability of those exercising the employee, thats it.
special or substitute parental authority. There is no industry There is an industry
requirement. Why do I say requirement. The employer
Lets now go to owners and managers. 4th paragraph of Article 2180: that? It is because of the codal must be engaged in some kind of
provision itself. Such that, if a tort business or industry.
The owners and managers of an establishment or enterprise are is committed by a family driver
likewise responsible for damages caused by their employees in the and the (family) employer is not
service of the branches in which the latter are employed or on the engaged in any business, the
occasion of their functions. employer may still be held liable
for the family drivers tort.
Very clearly stated in the codal provision. Now, unsay meaning sa If you want to make an employer The employer is not party to the
owners and managers? There are a lot of managers in car industry or liable, you have to make him a case. You do not file criminal
practice, naay general manager, assistant manager, so unsay party to the case. information upon a person on
meaning? Tanan ba basta kay tig-utos (?) sa imong trabaho account of his being an employee
considered manager and will be held liable under this provision? That of somebody else. There is no
was interpreted by the SC in the case of Philippine Rabbit Bus complicity just because you are
Lines, Inc. vs. Phil-American Forwarders, Inc. (March 25, an employer. There is no criminal
1975). participation.

Philippine Rabbit Bus Lines, Inc. vs. Phil-American Take note, under the RPC, you can only hold the employer
subsidiarily liable only if the following requisites are present:
Forwarders, Inc.

1. Existence of employer-employee relationship;

The term manager is used in the sense as employer. Meaning,
2. Employer must be engaged in some kind of business or
you are a person of authority not merely a minor bureaucrat in the
industry;
organizational charter.
3. Employee is adjudged guilty of the wrongful act and found
committed the offense in the discharge of his office; and
Lets try to summarize the codal provision relating to the liability of 4. The employee becomes insolvent.
owners and managers:
Here is an interesting case
1. Owners and managers of an establishment or enterprise are
responsible for the damages caused by the employees in the
braches in which they are employed or on the occasion of their Spouses Jayme v. Apostol (November 27, 2008)
functions.
2. Employers are likewise liable for damages caused by their I will leave you with the facts of the case. It is a simple case but what
employees and household helpers acting within the scope of their is interesting to me is the fact that the putative employer of the driver
assigned task also in article 2180 of the CC. here whose negligence caused the accident in this case was a mayor
3. Under Art. 103 of the RPC, employers and corporations engaged of Cotabato. Nobody here who is from Cotabato?
in any kind of industry are subsidiarily civilly liable for felonies
committed by their employees in the discharge of their duties. First things first, this case reiterates what we know from Labor Law
This only pertains to the civil liability arising from the crime because to determine WON you are the employer of a particular
committed. employee you need to determine whether er-ee relationship exists.
And for that we have to go back to the basics of labor law, what are
How do we now distinguish between the liability of employers under the requisites for an er-ee relationship to exist?
Art. 2180 and liability of employer under Art. 103 of the RPC?
1. Power to dismiss or discipline;
Art. 2180 of the CC Art. 103 of the RPC 2. Power of control;
Liability is direct and final Liability is simply subsidiary. 3. Power to pay wages; and
because of the presumption that The employer will be called upon 4. Power of selection or engagement
when a person over whom the to answer for damages only upon
you are responsible commits a the default of the employee. Most of the time, the er-ee relationship is a product of agreement.
tort, that liability is attributed as Meaning, nangapply ka ug trabaho, gidawat ka, gipa-sign ka ug
well from your own negligence, contract, a contract of employment. Question, is there any another
and that is your negligence in situation wherein er-ee relationship exists outside of contract? Can
supervision and in certain cases there be er-ee relationship inspite the absence of a contract?
the selection of an employee.
Liability being direct and Remember, when we were in labor standards, classification of certain
primary, employee is not even a women workers. What was the provision?
dispensable party to an action.
You can proceed directly against Article 138. Classification of Certain Women Workers: Any
the employer. woman who is permitted or suffered to work, with or without
Under Art. 2180, the defense of The defense of diligence of a compensation, in any night club, cocktail lounge, massage clinic,
due diligence of a good father good father of a family is NOT bar or similar establishments under the effective control or
of a family is a valid and a valid defense because once supervision of the employer for a substantial period of time as
proper defense. the employee is found to be determined by the Secretary of Labor and Employment, shall be
guilty and in the case of his considered as an employee of such establishment for purposes of
default or inability to pay, his labor and social legislation.
criminal guilt is automatically his
employers. OK? You only need to Meaning, even if an employer claims absence of power of control over
the acts of the workers when they are, for example, inside the VIP
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lounge, they are in the course of employment. You can contend that
independent contractors na sila but Art. 138 itself provides that shall
be considered as an employee of such establishment for purposes of
labor and social legislation. It is comprehensive, it is not limited to
labor standards but extends it to social legislation.
What else? You are an indirect employer, meaning, you do not
really select the people who are going to work for you. Nay mga
agency na magsupply ug people who will work for you. What happens
if there is a finding of labor-only contract? What happens if the
employer of the agency does not play the wages due upon these
employees? According to the labor code, if there is non-payment of
ewages, the employer shall be jointly and severally liable with his
contractor or sub-contractor to such employees to the extent of the
contract in the same and extent that he is liable to employees directly
employed by him. So there is er-ee relationship created. This is so
comprehensive because he shall be liable in the same and extent that
he is liable to employees directly employed by him. Just imagine.
Duna pa bay lain er-ee relationship created and supplied by law? Yes,
and we take that from the case of Ramos vs. CA (December 29, 1999):
**Recitation**
Ramos vs. CA (First Case)
The patient here was comatose because of allergic reaction to
anesthesia. There was failure to evaluate whether the patient would be
respond well with the anesthesia. The patient eventually died but,
remember, that at the time of the filing of the case, the patient was
still comatose. It was the family of Ramos who filed a case against the
hospital.
What was the basis of the family in suing the hospital? How did the SC
ruled on that? Whats the doctrinal pronouncement in the first Ramos
case?
The SC here sweepingly stated that for purpose of allocating
responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and
their attending and visiting physicians.
When you hear something like that you will get the impression that
you dont have to really look at the elements of er-ee relationship
because it is now supplied by the SC. Although of course, the SC also
looked at the unique circumstances that avail in hospitals. How do
hospitals select their physicians? The SC said there is er-ee
relationship. That was doctrinal and is limited only in creating liability
in medical negligence cases.
Ramos vs. CA (Second Case)
However in the second case of Ramos, April 11, 2002, the SC totally
reversed its initial ruling in the first case this time going by the
requisites of the er-ee relationship.
1. Power of selection or engagement
It does not hire. What does the hospital do? It simply accredits.
Gi-accredit lang, ok pwede ka muopera dri or magbutang ug
clinic.
2. Power to pay wages
Is it not a fact that you dont pay the doctor directly? How do you
reconcile? You pay the hospital, is it not? It may not be stated
directly by the SC but in effect there is a contract of agency
between the doctor and the hospital. The hospital is simply the
collecting agent of the doctor. It is the patient who pays the
doctor not the hospital.
3. Power to dismiss
According to the SC, wala may firing mahitabo but as a
consequence of bad performance, the doctor may lose his
accreditation and he can no longer practice.
4. Power of control
Naa bay control ang hospital with the means of treatment
prescribed by the doctor? According to the SC, the hospitals
obligation is limited only to providing the patient with is preferred
room accommodations, the nutritional diet and to ensure that the
medications prescribed by the doctor are followed through the
nurses who are employees of the hospital. Mao ra to, walay
power.
So what happened in the second Ramos case? Total reversal of the
first but the SC here really considered the circumstances between the
hospital and the physicians consultants. With the reversal of the first
case, kani bang ruling sa SC saying that for purpose of allocating
responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and
visiting physicians is already abrogated? NO! Why? Even after the
second Ramos case naa na pud following cases that harken that of the
first Ramos case. We have Professional Services v. Agana, diri
nibalik napud ang ruling sa SC. We will discuss more of that later when
we go to medical negligence.
So what are the requisites of liability, therefore, under Article 2180 for
there to be er-ee relationship? Mubalik napud ta sa Sps. Jayme vs.
Apostol:
Spouses Jayme vs. Apostol
To sustain claims against employers for the acts of their employees,
the following requisites must be established:
(1) That the employee was chosen by the employer personally or
through another;
(2) That the service to be rendered in accordance with orders
which the employer has the authority to give at all times; and
(3) That the illicit act of the employee was on the occasion or by
reason of the functions entrusted to him.
Significantly, to make the employee liable under paragraphs 5 and 6 of
Article 2180, it must be established that the injurious or tortuous act
was committed at the time the employee was performing his functions.
Lets go over all these requisites:
First requisite: That the employee was chosen by the employer
personally or through another.
Read the case of Roque vs. Torres. For example, kaning mga
security guards dinhi sa Ateneo, ang Ateneo ba ang ga-interview ana?
Nidawat? No, agency lang na sya. That is part of the ruling of the SC
here in Roque vs. Torres.
Second requisite: That the service to be rendered in accordance
with orders which the employer has the authority to give at all times.
This was applied also in the case of Jayme vs. Apostol. Here, the SC
made a finding that the municipality of Coronadal remains to be
Lozanos employer. Mere giving of directions to the driver does not
establish that the passenger has control over the vehicle. Neither does
it render one the employer of the driver. At all times, mao na ang
requirement.
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Third requisite: That the illicit act of the employee was on the Valenzuela v. CA
occasion or by reason of the functions entrusted to him.
Another interesting the case, this has appeared in my own examination
It was interpreted by the SC as any act of the employee in furtherance three times already and appeared also as a bar question.
of the interest of the employer over the account of the employer at the
time of the infliction of the injury or damages. This involves MedRep. Why would a pharmaceutical company issue
cars to medreps? Is that an employee benefit or is that something
Not all acts of the employee could be attributed to the employer. Why? given so that the employee may more perfectly serve the employer?
To rule otherwise would require now the employer to exercise due According to the SC, you have to make a distinction. If the vehicle is
supervision over the employees on all his activities. issued for the purpose of furthering the interest of the employer, then
there is liability on the part of the employer to see to it that the
Did I assign the case of Macalinao (?). managerial officer and/or its employees, to whom it has entrusted the
use of company cars, are able to use it in public responsibly.
Macalinao
I am able to relate this with what happened to my cousin. My cousin
All I need you to remember is how creative the defendant was. The was a former employee of Globe Telecom, I am not sure what his work
defendant here said that Art. 2180 is only applicable when the injury is was but sige ra sya ug tuyok2x mamaligya ug product sa Globe, and
caused by the employee against a third person but when the injury is then part of her benefits was the use of a company-issued car but my
caused upon by an employee against a fellow employee 2180 does not cousin could not avail of the benefit because she kept on failing the
apply. company prescribed licensure test for driving. Ako biskan dili ko kabalo
magdrive but I could get a license biskan karon but Globe took it very
SC said, the law does not distinguish whether the claimant is an very seriously because of the ruling in Valenzuela. For two years she
employee or a third person relative to the employer. was not able to avail of that vehicle because the company could not be
assured that she could operate the vehicle properly.
Another interesting case
But if the company vehicle is given by way of unconditional benefit or
Universal Aquarius v. QC HRM productivity incentive, that belongs to the employee already.
Therefore, because it belongs to the employee already wala nay
pakialam karon ang company. What you do with your car does not
If you are an employee, do you have the right to strike? Labor law
concern the employer. But, again, if it is company issued to further
would tell you YES but not if the employee commits a tort while
company interest, the responsibility and supervision would extend
on strike. You can hold the employer liable in such case under Art.
even beyond working hours.
2180.
How would you distinguish between an ordinary employer under Art.
SC said, a question then is when at the time of the damage or injury
2180 with a common carrier as employer?
the employee is engaged in the affairs or concerns of his employer or
independently of his own. An employer incurs no liability when an
employees conduct, act or omission is beyond the range of Ordinary ER Common Carrier as
employment. Unquestionably, when Resources' employees staged a ER
strike, they were acting on their own, beyond the range of their Acts that will Acts performed on the All negligent or wilful
employment. Thus, Resources cannot be held liable for damages make the ER occasion or by the acts of the former's
caused by the strike staged by its employees. liable reason of the functions employees, although
entrusted to the such employees may
Weve discussed already liability of schools for torts committed by their
employee have acted beyond the
students. We also know now the doctrines relating to an employee, a
worker, how to make an employer liable but ewaht if there is a mixture scope of their authority
of the two? How so? Working students. What rule would apply to or in violation of the
working students? When they are both a student and employee of the orders of the common
school. Diba sa Ateneo naa na, mga SA (student assistants). If they carriers
committed a tort, what would be the basis for liability? Would it be Effect of This is generally a It is not a defense.
vicarious liability of the employer or the school? Remember that there
violation of defense because if you The CC can still be
are differences. The answer to that could be found in the case of
Filamer Christian Institute v. IAC, August 17, 1992. Read that orders give order, that proves held liable
case. actual supervision
Defense of an Responsibility ceases Does not escape
Whats the basis of liability here? When an injury is caused by the ordinary ER upon proof of Exercise of liability upon proof of
negligence of the servant or employee, the master or employer is DGOF in Selection or the exercise of DGOF
presumed to be negligent either in the selection (culpa in eligiendo) or Supervision because the standard
in the supervision (culpa in vigilando) of that employee. Whenever an
of care is EO Diligence
employees negligence causes damage or injury to another, there
instantly arises a disputable presumption that the employer failed to Effect of Article 2179. When the Article 1762. The
exercise diligence of a good father of a family in the selection and Contributory plaintiff's own negligence contributory
supervision of its employees. To avoid liability for quasi-delict Negligence was the immediate and negligence of the
committed by his employee, the employer must overcome the proximate cause of his passenger does not
presumption by presenting convincing proof that he exercised the care injury, he cannot recover bar recovery of
and diligence of a good father of a family in the selection and
damages. But if his damages for his death
supervision of his employee.
negligence was only or injuries, if the
Remember in that the presumption here is merely presumption juris contributory, the proximate cause
tantum. Therefore, it may be rebutted by convincing proof. immediate and proximate thereof is the
cause of the injury being negligence of the

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the defendant's lack of common carrier, but Take note of the E-Merritt vs. Government of the Philippine
due care, the plaintiff the amount of Islands,Mar. 21, 1916, this is an old case which gives the definition
may recover damages, damages shall be of a special agent. Case of Fontanilla v Maliaman, Dec. 1, 1989.
but the courts shall equitably reduced.
Naa bay lain vicarious liability in addition to Article 2180? Yes, in fact,
mitigate the damages to Art 102 of the RPC provides:
be awarded. (n)
Effect of acts of Cannot be held liable for Article 1763. A Article 102. Subsidiary civil liability of innkeepers, tavernkeepers and
strangers negligence of strangers common carrier is proprietors of establishments.
responsible for injuries
suffered by a In default of the persons criminally liable, innkeepers, tavernkeepers,
passenger on account and any other persons or corporations shall be civilly liable for crimes
committed in their establishments, in all cases where a violation of
of the wilful acts or
municipal ordinances or some general or special police regulation shall
negligence of other have been committed by them or their employees.
passengers or of
strangers, if the Innkeepers are also subsidiarily liable for the restitution of goods taken
common carrier's by robbery or theft within their houses from guests lodging therein, or
employees through the for the payment of the value thereof, provided that such guests shall
exercise of the have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and
diligence of a good
shall furthermore have followed the directions which such innkeeper or
father of a family could his representative may have given them with respect to the care and
have prevented or vigilance over such goods. No liability shall attach in case of robbery
stopped the act or with violence against or intimidation of persons unless committed by
omission. the innkeeper's employees.

Castilex v. Vasquez It is also governed, to a certain extent, by Article 2000 of the CC:

Take note that in the case of Castilex v. Vasquez, December 21,
1999, the SC also had the occasion to distinguish between the two
paragraphs dealing with owners, managers and employers.
Both provisions apply to employers: the fourth paragraph, to owners
and managers of an establishment or enterprise; and the fifth
paragraph, to employers in general, whether or not engaged in any
business or industry. The fourth paragraph covers negligent acts of
employees committed either in the service of the branches or on the
occasion of their functions, while the fifth paragraph encompasses
negligent acts of employees acting within the scope of their assigned
task. The latter is an expansion of the former in both employer
coverage and acts included. Negligent acts of employees, whether or
not the employer is engaged in a business or industry, are covered so
long as they were acting within the scope of their assigned task, even
though committed neither in the service of the branches nor on the
occasion of their functions. For, admittedly, employees oftentimes
wear different hats. They perform functions which are beyond their
office, title or designation but which, nevertheless, are still within the
call of duty.
Responsibility of the State
The State is responsible in like manner when it acts through a special
agent; but not when the damage has been caused by the official to
whom the task done properly pertains, in which case what is provided
in article 2176 shall be applicable.
Article 2176 that is direct and primary responsibility for ones actions.
So it is not derivative.
Article 2180 pertains to vicarious liability. The state would only be
responsible if it acts through a special agent. Meaning, you must be
ordered by the employee to perform tasks that are not usually
assigned to him. Thats when the State acts through a special agent
but when the damage is caused by an official to whom the task done
pertains, the State cannot be held liable. Why? The law now says that
the employee would become personally liable.
Article 2000. The responsibility referred to in the two preceding
articles shall include the loss of, or injury to the personal property of
the guests caused by the servants or employees of the keepers of
hotels or inns as well as strangers; but not that which may proceed
from any force majeure. The fact that travellers are constrained to rely
on the vigilance of the keeper of the hotels or inns shall be considered
in determining the degree of care required of him. (1784a)
FEBRUARY 23
We are already done discussing Article 2180 which of course deals
with Vicarious Liability. What we are going to discuss tonight is not
necessarily separate from the basic principles that we have learned so
far in Articles 2176 and 2180 of the Civil Code. It is just a sub species
probably of tort liability cases that we call medical negligence or
medical malpractice.
Why do we need to discuss this separately from Article 2180? From the
time of the Supreme Courts ruling and the first Ramos case in 1999,
ang trend worldwide is to change the litigation of medical negligence
cases. In fact, there are some jury negligence courts in the United
States.
Basic premise is still Article 2176 where the law defines what a quasi-
delict is and of course we follow also the same elements of a quasi-
delict although in this case, we expound a little bit on these elements
and translate them into more or less medical negligence terms.
Remember again Article 2176 because Article 2176 does not
distinguish. What is the hallmark (?) again of liability in torts cases?
And that would be negligence. Being in the medical field, you are
subject to the same degree of care that is demanded of persons still
the degree of care of persons that is demanded by the circumstances
of the case. It does not matter whether you pay the doctor or not
because if there is a finding of negligence and that negligence is the
proximate cause of the injury sustained by a patient, then, the doctor
can be held liable by this type of case called medical negligence or
medical malpractice.

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Primum non nocere is a Latin phrase that means "first, do no harm."
Therefore, if a doctor, at least in principle, commits moral harm to a
patient, he violates his oath. Not only does he violate his oath, he
violates also Article 2176 of the Civil Code relating to quasi-delicts.
How do we define medical negligence or medical malpractice? In the
case of Garcia-Rueda vs. Pascasio, the Supreme Court had the
occasion to define medical malpractice or medical negligence is that
type of claim which a victim has available to him or her to redress a
wrong committed by a medical professional which has caused bodily
harm. And we have the definition in the case of SPOUSES FLORES vs.
SPOUSES PINEDA, a medical negligence case is a type of claim to
redress a wrong committed by a medical professional, that has
caused bodily harm to or the death of a patient. Take note however
that medical culpability in general does not really relate to just
medical negligence or what we traditionally call as malpractice
cases because there are a lot of duties that are legally imposed
upon medical professionals. For example, you are a doctor and
then a patient goes to you for treatment. Remember that in the law
on evidence that anything, that any information that is disclosed by
the patient to the doctor is supposed to be confidential. His medical
records are supposed to be confidential under the Physician-Patient
Privilege Communication Rule.
In the Physician-Patient Privilege Communication Rule, remember
the rule extends even
after the death of the patient because the protection is one to
benefit him even if he is already dead.
Now, is it limited to bodily harm or to death? For purposes of
Article 2176, YES but it does not necessarily mean that malpractice
is simply bodily harm or death. It may relate to other cases where
another provision of law may also apply. In order to successfully
pursue a claim, a patient must prove that a healthcare provider, in
most cases, a physician, either failed to do something which a
reasonably prudent healthcare provider should have done or that
he or she did something that a reasonably prudent provider would
not have done and that the failure of the action caused injury to
the patient. What are the elements of medical negligence? Similar
to quasi-delicts in general, there must be:
A duty
A breach of that duty
Injury caused to the patient
The breach of duty or the negligence itself must have
been the proximate cause of the injury or harm
occasioned on the patient
Now, what is meant by the term duty? According to the Supreme
Court in the same case of
SPOUSES FLORES vs. SPOUSES PINEDA, arises when the plaintiff
employs the services of a physician thus creating a physician-
patient relationship. Again, it does not matter if it is for free or for a
fee. It is enough for physician-patient relationship to arise should
the doctor be consulted as such in his professional capacity. Kung
gi-duol nimo siya as a doctor, then there is a duty on his part to act
as your doctor. Acceptance of the physician of a patient for
treatment in effect creates a representation on his part that he has
the needed training and skill possessed by those in the same field
and that they will employ the said training, care and skill in treating
the patient. Does that duty apply to a pseudo health care provider?
What do you mean by a pseudo health care provider? *story by
Atty. Espejo about his experience with a quack doctor* Supposing
you went to somebody like that (quack doctor) and then you got
worse, is that considered medical malpractice? Two schools of
thought: 1st School of Thought: In defining what appears to be
medical negligence, it should not be confined to people who are
licensed to practice. Why? Because it simply says provider. So,
anybody who provides healthcare or similar services should be held
to account for his actions. But can you make him account for his
actions based on medical malpractice? NO. Because it is really a
specialized group of cases that applies mostly to physicians. Pseudo
medical providers are not really health care professionals. Can you
hold him liable for violating the Hippocratic Oath? You cannot. For a
non-licensed medical practitioner, is there a license to revoke? NO.
Does that mean that you cannot hold him liable for damages? NO.
You can still hold him liable for damages but not under the context
of medical malpractice but under the general rule on tort. Would
medical malpractice apply to those prescribing herbal medication?
Later on you will find out that you cannot allow to sell herbal
medication unless it has been duly approved by the DOH under the
Food and Drugs Authorities. If you do, you will violate RA 9711
which amended RA 3720. So, that answers the question. Does it
apply to non-medical professionals? The answer is NO but YES
because both licensed medical practitioners and non-licensed
pseudo medical practitioners are subject to the same degree of
care. What is this standard of care required? Because you are
charged with preserving lives, does it mean that you are supposed
to exercise a greater degree of care? According to the Supreme
Court in the case of Reyes vs. Sisters of Mercy, the medical
profession is one which, like the business of a common carrier, is
affected with public interest. Moreover, they assert that since the
law imposes upon common carriers the duty of observing
extraordinary diligence in the vigilance over the goods and for the
safety of the passengers, physicians and surgeons should have the
same duty toward their patients. Therefore, the argumentation
came out that when you are talking about medical practitioners in
the medical field since you are dealing precisely with health and
human life, it should be at least equal or greater in terms of the
degree of care required as common carriers. So, dapat
extraordinary diligence. According to the Supreme Court is that the
degree of care? NO. The practice of medicine is already
conditioned upon the highest degree of diligence. The standard
contemplated for doctors is simply the reasonable average merit
among ordinarily good physicians. That is the reasonable diligence
for doctors, the reasonable skill and competence that a physician in
the same or similar locality(?) should apply. So, the Supreme Court
is saying both YES and NO. Yes in the sense that it can never be
called ordinary diligence because the degree of diligence is already
high. You are talking here about doctors. But no matter how you
translate what the Supreme Court said, its still actually translates
into ordinary diligence, not extraordinary diligence. And NO also.
Why no? Remember the definition of diligence. Diligence is that
degree of care that is required by the circumstances of the persons,
of time, and place. Clearly, there is a greater degree of diligence
required in the operating field because one wrong move, you can
actually be responsible for the death of the person.
The test of whether you have exhibited proper and reasonable care
is to compare your conduct or the operation you performed with a
similar situation in the same locality. The procedure that you
prescribed, the operation that you performed, the treatment you
prescribed, was it one that is in consonance with accepted medical
procedure under the same circumstances. That is how you measure
the degree of care. The problem there sometimes is how will you
judge if the proper procedure was followed? In the first place, what
is the proper procedure? Is that the accepted standard medical
procedure in the medical field for cases like that? How would the
Supreme Court know? We know that the Supreme Court and the
lower courts would have to rely on expert testimony. As a general
rule, expert testimony is actually opinion and opinion is not
generally acceptable in the field of law. Why? Because it is
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immaterial and irrelevant to the fact in issue in the case. But here
in medical malpractice cases, that is what the Supreme Court
actually requires. Expert opinion to be the general rule rather than
the exception. There will always be expert opinion that will be
required unless the case falls under where the thing speaks for
itself. How do you determine the second element, that there is a
breach of duty that is supposed to be performed by medical
practitioners? The breach of the duties of a medical practitioner or
their improper performance whereby the patient is bodily injured or
injured in body or in health constitutes actionable malpractice and
to establish which a two-pronged evidence is required. One,
evidence as to the recognized standards of the medical community
in the particular _____. Second, a showing that the physician in
question negligently departed from the standard that is needed.
The first one is simply what the standards are. The second one is
what we call a deviation of what the standard is. If this is the
standard that the medical profession actually allows, did he deviate
from these procedures? How can a layman be able to identify these
things? How can a judge who is only skillful in law and not in the
medical field determine for himself without the aid of expert
testimony. So, more often than not, what happens is there is
another physician who will testify this is what we usually do and
the defendant in the case has actually deviated from what we
usually do. Injury, the third requisite, as defined by the Supreme
Court shall refer to bodily injury or death. Hence, it will be all forms
of physical injury or death that results from the negligence of the
physician. In other words, for as long as it is established that the
bodily integrity of the patient is injured, the element of injury is
satisfied but it should not be limited to injury that would have
physical scars. The requirement of injury can also be satisfied if
when you become worse after treatment than you were before
treatment or the patients cognition previously _____ becomes
un_____ due to the negligence of the physician. The patient suffers
unnecessary impairment in his limbs or bodily functions as a result
of the procedure taken. The patient is injured after the physician
wrongfully prescribes medication that the patients body cannot
tolerate. *story by Atty. Espejo about his own experience of
misdiagnosis* Misdiagnosis can be considered as medical
negligence as well. Also,when you prescribe a wrong medication
injuring a patient because his body cannot tolerate or performing a
wrong operation because of misdiagnosis.
The Supreme Court actually limits medical malpractice by definition
to physical or bodily injury, bodily harm or death. However, the
element of injury as I previously noted should not be limited to
bodily injury because there are forms of injury. The trend under the
law right now is to recognize these other forms of injury. Perfect
example, RA 9262. How many kinds of abuses or injury are
recognized? Physical injury, sexual abuse, psychological abuse,
even economic abuse. So, why not medical malpractice? What if
the treatment you undergone actually caused you to be psychotic?
Nabuang ka sa treatment that you undergone. On a more serious
note, there are a lot of cases or acts or omissions by a medical
practitioner that can also be called malpractice. Not necessarily the
way the Supreme Court defines it. For example, Rule 130 Section
24, when you talk about Privilege Communication. Remember that
this physician-patient privilege communication rule disqualifies a
petition from giving testimony regarding the medical records or
information of the patient. Once this rule is violated and the patient
is injured such that his reputation is blackened or besmirched, the
violation that arises is an actionable tort. In fact this is one of the
grounds for disciplining the physician under the Medical Act of 1959
and it also constitutes a violation of the Code of Ethics for
Physicians as approved by the Philippine Medical Association. Its
an old law. RA 2382. Take note also that Article 2, Section 6 in the
Code of Ethics for Physicians provides that the physician should
hold as sacred and highly confidential whatever may be discovered
or learned pertinent to the patient even after death, except when
required in the promotion of justice, safety and public health.
However, there is sort of an exception under the Code of Ethics of
Medical Practitioners. If it promotes justice or serves safety and
public health then there can be reasonable disclosure.
RA No. 2382
Section 24. Grounds for reprimand, suspension or revocation of
registration certificate. Any of the following shall be sufficient ground
for reprimanding a physician, or for suspending or revoking a
certificate of registration as physician:
(1) Conviction by a court of competent jurisdiction of any
criminal offense involving moral turpitude;
(2) Immoral or dishonorable conduct;
(3) Insanity;
(4) Fraud in the acquisition of the certificate of registration;
(5) Gross negligence, ignorance or incompetence in the
practice of his or her profession resulting in an injury to or
death of the patient;
(6) Addiction to alcoholic beverages or to any habit forming
drug rendering him or her incompetent to practice his or her
profession, or to any form of gambling;
(7) False or extravagant or unethical advertisements wherein
other things than his name, profession, limitation of practice,
clinic hours, office and home address, are mentioned.
(8) Performance of or aiding in any criminal abortion;
(9) Knowingly issuing any false medical certificate;
(10) Issuing any statement or spreading any news or rumor
which is derogatory to the character and reputation of
another physician without justifiable motive;
(11) Aiding or acting as a dummy of an unqualified or
unregistered person to practice medicine;
(12) Violation of any provision of the Code of Ethics as
approved by the Philippine Medical Association.
Refusal of a physician to attend a patient in danger of death is not a
sufficient ground for revocation or suspension of his registration
certificate if there is a risk to the physician's life.
To my mind, that provision (last paragraph of the abovementioned
provision) is antiquated? Why? You are not to be disciplined, if you
are a physician, if you refuse to attend to a patient in danger of
death only if it causes death. Lets say in a warzone, you are the
only doctor in the locality, will you risk yourself, your own life just
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to treat a patient? But right now, it should be amended to include
that you are allowed to refuse if you are not confident to
administer medical care.
Remember that, medical negligence can also give rise to criminal
liability. For example, bodily injury or death caused by the
recklessness of a physician, that can be physical injuries or
homicide through reckless imprudence. If bodily injury or death is
caused by the willful act of the physician, that can be homicide or
murder. An ethical consideration here is what if a physician assists
in accelerating the death of the patient because he knows that
there is no cure and eventually he will still die especially at the
request of the patient himself? Euthanasia, Mercy killing, that is
another ethical consideration. Offending against the chastity of the
patient, acts of lasciviousness. Injury to the reputation of patient
through breach of confidentiality. It can be slander, defamation,
etc. Injury to the reputation of patient through breach of
confidentiality in HIV cases (RA 8504). Which makes it actually a
criminal offense to disclose confidential information relating to the
patient or the HIV afflicted person.
Proximate cause-Of course, there has to be proximate causation
that has to be involved in medical negligence cases. Whether the
doctors actions in fact caused the harm to the patient and whether
these were the proximate cause of the patients injury. They have
the duty to use the same level of care that a reasonably competent
doctor would use to treat a condition under the same
circumstances. The breach of these professional duties of skill and
care improper performance whereby the patient is injured in body
or in death constitutes actionable malpractice. The breach of the
duty to exercise reasonable care, to employ medical standards of
treatment causes damage or bodily injury or harm to a patient.
Thats the causation. And therefore, exempted from medical
malpractice cases are cases where a patient dies after treatment
but for totally unrelated causes. Therefore, if you want to sue the
doctor and hold him liable for damages for death or injury, you
need to establish that it is the proximate cause of the bodily harm
or the death of the patient. Proof-you need expert testimony. If
you file a civil case for damages, you need to establish by a
preponderance of evidence that there is this proximate causation.
And the ruling also if you resort to expert testimony this time as a
general rule rather than the exception. Diba dapat you need to
testify only to those facts which you know to be of personal
knowledge or based on your perception of events. But here, were
talking about a person who testifies despite not having a personal
knowledge because this person had never treated the patient
whether deceased or simply injured. What does he testify of?
Again, whats the standard? Was there a deviation of the standard?
Thats the purpose of expert testimony. Read the case of Cruz vs.
CA (G.R. No. 122445 November 18, 1997), LUCAS vs. TUAO (G.R.
No. 178763, April 21, 2009). Now, take note also that while medical
malpractice cases are prevalent, you need to remember one very
important maxim here. The physicians under medical practitioners are
not insurers against all risks. They do not insure that when you consult
them, when you ask for medical treatment that you will be cured.
Again, doctors are not insurers against all risks, mishaps, or unusual
consequences and therefore, they are not liable for honest mistakes.
They do not insure that you will get well and so under the law of
evidence, they have the Benefit of Assumption. The physician actually
enjoys the Benefit of Assumption which means that he does not have
to present evidence to prove that he was not negligent if the plaintiff
was not able to establish negligence on the part of the physician.
Again, the burden of proof still lies upon the plaintiff. Establish first
that the physician was negligent. Thats the only time you can compel
the physician to present his own evidence but sometimes where the
initial burden of proof rests shifts to the physician himself in cases
where the doctrine of res ipsa loquitor applies. The thing speaks for
itself. The doctrine of res ipsa loquitor was also touched upon in the
case of Ramos vs. CA. Take note the effect of the invocation of the
doctrine of res ipsa loquitor. It actually dispenses with expert medical
testimony because the injury itself actually provides the proof of
damage.
*read the article of sir regarding medical negligence and the cases*
Take note that the Ramos case is good law even if it was overturned in
the second Ramos case on motion for reconsideration in 2002 from the
original case in 1999 that the ruling of the Supreme Court was
reiterated in Professional Services vs. Agana (important case).
NOGALES vs. CAPITOL MEDICAL-Doctrine of Apparent Authority.
Doctrine of Corporate Responsibility in the case of Professional
Services vs. Agana (2008). Here, the Supreme Court says the duty of
providing quality medical service is no longer the sole prerogative and
responsibility of the physician. This is because the modern hospital
now tends to organize a highly-professional medical staff whose
competence and performance need also to be monitored by the
hospital commensurate with its inherent responsibility to provide
quality medical care.8 Such responsibility includes the proper
supervision of the members of its medical staff. Accordingly,
the hospital has the duty to make a reasonable effort to
monitor and oversee the treatment prescribed and
administered by the physicians practicing in its premises. This
is the Doctrine of Corporate Responsibility. So, there are three
doctrines: Employer-employee created and supplied by law.
Establish apparent authority so that the hospital will now be estopped
to deny its connection with the physician. That is the Doctrine of
apparent authority or ostensible agency in the Professional
Services and Nogales case. The Doctrine of Corporate
Responsibility looking at hospitals to be not only the venue of the
treatment but actually a more organized entity in providing medical
care. Failing that corporate responsibility, the hospital can itself be
held liable. Whats the effect of contributory negligence? Lets say you
were treated by the doctor and you failed to return for check up. The
applicable ruling there would be the case of CAYAO-LASAM vs.
SPOUSES RAMOLETE.
March 2, 2015
Sir: Article 2181. Please read
Article 2181. Whoever pays for the damage caused by his
dependents or employees may recover from the latter what he has
paid or delivered in satisfaction of the claim.
So vicarious liability under 2180 refers to the liability grounded on the
presumed or imputed negligence in selection or supervision of a
person over another person that he is responsible for. Thus under
Philippine Tort Law, vicarious liability is based on imputed negligence
but ultimately the employer, parent, etc. will be held liable for their
own lack of due care.
So under the general provision under Art. 2176, liability is direct and
primary. Under the vicarious liability provision, liability is merely
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derivative but still ___ to a certain degree. So if a defendant is liable
under 2176, he therefore, responds to his own property. He commits
the damage or he commits the tort, he will be the one liable. If
liability, however, is based under 2180, the parent or employer etc.
may be directly proceeded against. Take note that under Art. 2181
with regards to the right of one who pays for the damage caused by
another. The law provides that he has the right to recover from the
latter what he has paid or delivered in satisfaction of the claim. This is
a statutory recognition of the right of a person because while the basis
of the liability here is the presumed negligence in the selection or
supervision, it is ultimately the acts of the minor, the employee or the
ward that causes damage. And take note of the ruling of SC in
PHILTRANCO SERVICES INC. VS. CA JUNE 17, 1997 where the
SC ruled that the liability of the employer, for example, for the
damages arising from the notorious acts of his employee is primary,
direct and joint and several or solidary with the other. As to solidarity,
Art. 2194 provides that The responsibility of two or more persons who
are liable for quasi-delict is solidary.
In other words, if you are the plaintiff in a quasi-delict case, you can
proceed directly against the employer. And art. 2194 provides that the
liability here is solidary. We will be discussing a bit more about that
later on because I have to take exception to what art. 2194 provides
and how the SC has termed the liability to be solidary in terms of
vicarious liability under Art. 2181.
Read Art. 2182
Article 2182. If the minor or insane person causing damage has no
parents or guardian, the minor or insane person shall be answerable
with his own property in an action against him where a guardian ad
litem shall be appointed. (n)
Okay nothing much on Art. 2182 except that this provision mirrors its
counterpart in the Revised Penal Code in cases of civil liability ex
delicto. In other words, civil liability arising from the commission of
criminal offenses. The case there is LIBI VS. IAC SEPT. 18, 1992
where the SC ruled that the minor transgressor shall be answerable or
shall respond with his own property only in case of insolvency of the
former. Thus, for civil liability ex quasi delicto of minors, Art. 2182
provides. For civil liability ex delicto, meaning pursuant to a crime of
minors, an equivalent provision is found in Art. 101 of the RPC which
provides that Should there be no person having such insane, imbecile
or minor under his authority, legal guardianship or control, or if such
person be insolvent, said insane, imbecile, or minor shall respond with
their own property, excepting property exempt from execution, in
accordance with the civil law. So the same noh, the liability under Art.
2182 mirrors the same liability provided under the 3rd par. of Art. 101
of the RPC.
Read Art. 2183
Article 2183. The possessor of an animal or whoever may make use
of the same is responsible for the damage which it may cause,
although it may escape or be lost. This responsibility shall cease only
in case the damage should come from force majeure or from the fault
of the person who has suffered damage.
So Art. 2183 imposes an obligation upon the possessor of an animal or
the user of an animal. What is the basis of liability under Art. 2183?
Its the same, based on negligence or the presumed lack of vigilance
of the possessor or user of the animal causing damage. It is based on
natural equity and principle of social interest that he who possess
animals for his own utility, pleasure or service must answer for the
damages which such animal may cause. Thats from the case of
VESTIL VS. IAC NOV. 6, 1989.
Take note that Art. 2183 mentions possessor of an animal or whoever
may make use of the same not necessarily the owner. Thus,
ownership over the animal is not required in order for liability to
attach. Next question: Does the law here only contemplate vicious
animals as opposed to tamed or domesticated animals? Again, the law
does not distinguish and we should not also distinguish. In other
words, 2183 also covers tamed and domesticated animals. You went to
the house of a friend. Sagawassabalaynaaynakabutang Beware of
Dogs So alanganinkamusulod. Mu-ingonimong amigo Ayawkabalaka,
di namamaak. Impossible. Naa nay ngipon, naay baba. Mamaakjudna.
Actual control is also not required under Art. 2183. The Article says the
possessor or user liable even if the animal should escape or be lost
and so be removed from his control. Now, in a sense Art. 2183 is also
vicarious. Youre not the one who caused damage but by being the
user or possessor of the animal, you have the obligation to see to it
that the animal will not cause damage to another person. There are
two defenses under this provision:
1. In case the damage should come from force majeure; or
2. From the fault of the person who has suffered damage
For example, A is driving a horse-drawn carriage. Then suddenly a
firecracker exploded, causing the horse to be agitated, moving from
side to side causing damage to another person. That is force majeure
bastadiliikawnagpabuto.
Or the fault of the person who suffered damage. A owns the dog, B
the visitor hits the dog, so gipaak. So that is considered fault of the
person who has suffered damage.
There are two cases here that are ____ not so much because of what
the cases say but because there are just a few cases here namely the
case of AFIALDA VS. HISOLE NOVEMBER 29, 1949 where the SC,
we were discussing this in relation to volenti non fit injuria, the SC said
thats just an accident. (I-copy nalangnakoang decision sa SC kay
inaudible na.) This opinion, however, appears to have been rendered
in a case where an animal caused injury to a stranger or third person.
It is therefore no authority for a case like the present where the
person injured was the caretaker of the animal. The distinction is
important. For the statute names the possessor or user of the animal
as the person liable for "any damages it may cause," and this for the
obvious reason that the possessor or user has the custody and control
of the animal and is therefore the one in a position to prevent it from
causing damage.
In the present case, the animal was in custody and under the control
of the caretaker, who was paid for his work as such. Obviously, it was
the caretaker's business to try to prevent the animal from causing
injury or damage to anyone, including himself. And being injured by
the animal under those circumstances, was one of the risks of the
occupation which he had voluntarily assumed and for which he must
take the consequences.
And the case of VESTIL VS. IAC NOV. 6, 1989, a 3-year old child
was bitten by a dog and later on died because of rabies. Question is, if
you are the owner of the dog or the head of the household who
maintains the dog, would you be held liable under Art. 2183? So read
the case. I dont have to explain it to you. (Again, i-copy nakoang
ruling). The petitioner's contention that they could not be expected to
exercise remote control of the dog is not acceptable. In fact, Article
2183 of the Civil Code holds the possessor liable even if the animal
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should "escape or be lost" and so be removed from his control. And it
does not matter either that, as the petitioners also contend, the dog
was tame and was merely provoked by the child into biting her. The
law does not speak only of vicious animals but covers even tame ones
as long as they cause injury. As for the alleged provocation, the
petitioners forget that Theness was only three years old at the time
she was attacked and can hardly be faulted for whatever she might
have done to the animal.
Lets go now to Art. 2184
Article 2184. In motor vehicle mishaps, the owner is solidarily liable
with his driver, if the former, who was in the vehicle, could have, by
the use of the due diligence, prevented the misfortune. It is disputably
presumed that a driver was negligent, if he had been found guilty of
reckless driving or violating traffic regulations at least twice within the
next preceding two months.
If the owner was not in the motor vehicle, the provisions of article
2180 are applicable. (n)
Okay, 2184 presents to you 3 different situations:
1. The owner was in the vehicle and then the accident took
place. The owner if he could have, while he was in the
vehicle, by use of due diligence, prevented the misfortune
but fails to do so, then the owner is solidarily liable with the
driver.
2. If the driver had been found guilty of reckless driving or
violating traffic regulations at least twice within the next
preceding two months, the driver is disputably presumed
negligent. Take note also that in the first sentence where
the owner can be held solidarily liable with the driver has
also some presumption that he is negligent because
otherwise, he will not be held liable at all.
3. If the owner was not in the motor vehicle and precisely
because there is employer-employee relationship between
the owner and the driver, what law will apply? We will now
apply 2180 of the Civil Code which provides that employers
shall be liable for the damages caused by their employees
and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in
any business or industry.
Whats the basis, the rationale for Art. 2184? According to the case of
CAEDO VS. YU KHE THAI Dec. 18, 1968, the theory is that
ultimately, the negligence of the servant, if known to the master and
susceptible of timely correction by the master, reflects his own
negligence if he fails to correct it in order to prevent injury or damage.
In other words, what must the law require of owners of vehicle? To be
an intelligent backseat driver.
Now I question this all the time every year. Should this be made to
apply to somebody like me or my wife who are totally oblivious to
traffic rules and regulations? Thats precisely the reason why I
employed a driver because we do not know how to drive. I know how
to drive perodililangkokabalomugamitug signal light, kapoy. I never
had a drivers license. Will this apply? Will the requirement of being an
intelligent backseat driver apply to somebody who has no intelligence
in driving in the first place? So, I dont know but the law is clear. You
are the owner, youre at the vehicle at the time of the mishap, the law
requires you to be an intelligent backseat driver.
Will this apply to common carriers? The case there is CORPUS VS.
PAJEJULY 31, 1969 the SC said conceivably NO. It cannot be applied
to common carriers because for all intents and purposes, common
carriers are organized as corporations. And corporations having no
physical existence cannot be inside the vehicle to prevent the mishap.
However, if the manager of the bus company was in the bus at the
time of the mishap, Art. 2184 may be applied by analogy. So pwede,
Art. 2184 may be applied by analogy.
Take note that the owner here has defenses because liability here is
merely presumed or imputed or vicarious. The owner may rebut the
same by proof that he observed the diligence of a good father of a
family to prevent the misfortune or that he had no sufficient chance to
direct the driver to cease and desist from continuing with the negligent
act. A fairly recent case is the case of SERRA VS. MUMARMARCH
14, 2012 G.R. NO. 193861. If the causative factor was the drivers
negligence, the owner of the vehicle who was present is likewise held
liable if he could not have prevented the mishap by the exercise of due
diligence. And according to the SC here, walay due diligence that was
exercised by the owner of the vehicle because she admitted that the
driver had been her driver for one year only and she had no
knowledge of his driving experience or record for previous accidents.
Interestingly this case happened in South Cotabato. There was a
speed limit in Polomolok, its like the speed limit in Davao City. So sa
highway pa langnaa nay speed limit. Why? Because of the number of
accidents.
With Art. 2184 we, more or less, have a clear picture of what would
constitute vicarious liability provided under the Civil Code because
even if you are the owner of the vehicle and you employed a driver,
you can be held vicariously liable. But just to round up our
understanding of work-related damage, injury or death, we need to
take a look at Art. 1711 and 1712 of the Civil Code.
Article 1711. Owners of enterprises and other employers are obliged
to pay compensation for the death of or injuries to their laborers,
workmen, mechanics or other employees, even though the event may
have been purely accidental or entirely due to a fortuitous cause, if the
death or personal injury arose out of and in the course of the
employment. The employer is also liable for compensation if the
employee contracts any illness or disease caused by such employment
or as the result of the nature of the employment. If the mishap was
due to the employee's own notorious negligence, or voluntary act, or
drunkenness, the employer shall not be liable for compensation. When
the employee's lack of due care contributed to his death or injury, the
compensation shall be equitably reduced.
Take note that under Art. 1711, owners and employers may be held
liable for compensation even though the death or injury is due to
fortuitous event or fortuitous causes and that is of course an exception
to the general rule that the act of God prejudices no one. And
another latin maxim that you may use in your bar examination (speaks
latin maxim) a fortuitous event is not to be foreseen and no person is
expected to predict it and therefore the Act of God prejudices no one.
However, for this exception to apply, it is necessary that the death or
personal injury arose out of and in the course of employment. In other
words, it has to be work-related.
Another ground for compensation under 1711 is in addition, an
employer may also be liable for compensation when the employee
contracts any illness or disease caused by such employment or as the
result of the nature of the employment.
Kanisiyaginabantayannisiyasamga mining firms.
What will be the instances when the employer will not be liable for
compensation under 1711? There are four:
1. The injury was not work-related. In other words, it
happened while the employee was not permitted or suffer to
work.
2. The injury was due to the employees notorious negligence
or his own lack of due care. In other words,
salasaempleyado kay nag danghagsiya.
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3. The injury was due to the employees own voluntary act.
And when you say voluntary act, it should be outside of the
employers instructions or orders. If he does something
outside of what was instructed of him, then there will be no
liability that should attach against the employer. Because
remember, why does the law says own voluntary act?
Because again of the maxim volenti non fit injuria or to
the willing, no injury is caused. So it has to be outside the
employers instruction. The employer cannot say that yes,
he followed my instruction but it was his own voluntary act
to do so. So that cannot be an excuse.
4. The injury was due to the employees drunkenness and
similar addiction. It cannot be limited to drunkenness. What
about being intoxicated with drugs? So it cannot just be
drunkenness for drinking alcoholic beverages. Mind-altering
Substances should be included in the definition of
drunkenness.
And take note that when the employees lack of due care contributed
to his death or injury, the compensation shall be ratably reduced. And
this is a familiar rule to you already because under Art. 2179, when
there is contributory negligence, the court shall mitigate the damages
to be awarded.
Article 1712. If the death or injury is due to the negligence of a
fellow worker, the latter and the employer shall be solidarily liable for
compensation. If a fellow worker's intentional or malicious act is the
only cause of the death or injury, the employer shall not be
answerable, unless it should be shown that the latter did not exercise
due diligence in the selection or supervision of the plaintiff's fellow
worker.
Okay take note here that liability in Art. 1712 is similar to Art. 2194.
And there are 2 grounds for solidary liability under Art. 1712:
1. If the death or injury is due to the negligence of a fellow
worker. The employer is solidarily liable. Why? Because the
employer is presumed negligent in supervising the said
fellow worker who caused injury.
2. If the death or injury is due solely to the intentional or
malicious act of a fellow worker and it is proved that the
employer was negligent in selection or supervision.
In selection, how can negligence be present in selection? You
unintentionally hire a known ex-convict or an insane person bound to
cause violence against his fellow workers. That will be a ground for
solidary liability here because there is negligence in selection or in
supervision. Pasagdanlangnimoiyangginabuhat.
Now what is the difference between the first and second one? Very
important. In the first ground, there is a presumption of negligence
because the employer here would be held solidary liable due to the
negligence of a fellow worker. The negligence there on the part of the
employer is presumed and thats why he is held solidarily liable similar
to Art. 2180. What about in the 2nd ground? In the 2nd ground, no such
presumption arises. Remember that in the 2nd ground, it must be
shown that the employer did not exercise due diligence in selection or
supervision in the plaintiffs fellow worker. In other words, the plaintiff
bears the burden in proving that the employer was negligent either in
selection or supervision. So thats very important.
Lets go now to 2185.
Article 2185. Unless there is proof to the contrary, it is presumed
that a person driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation. (n)
Sir: Can I ask you, unsay difference between Art. 2184 and 2185?
Student: Sir, the difference between them is that in 2184, the driver is
not presumed to be violating any traffic regulation while in 2185, there
is a presumption on the part of the driver that he was negligent
because of the violation of any traffic rule sir.
Sir: So in 2184, it does not mention of any traffic violations?
Student: There is made mention sir but the driver has been found
guilty of violating any traffic rule for at least twice within the next
preceding two months.
Sir: So there is a requirement of frequency and there is also a
requirement of finding the driver of guilty already of violating any
traffic violations.
Okay, under Art. 2184, the driver is not the owner himself, right? The
driver and the owner are two different persons. In Art. 2185, it does
not foreclose the possibility that the driver maybe the owner himself.
What else? In Art. 2184, the presumption of negligence on the part of
the driver arises when the driver had been found guilty of reckless
driving or violating traffic regulations at least twice within the next
preceding two months. So theres that requirement of culpability and
frequency. What about in 2185? There is a presumption that the
person driving has been negligent if at the time of the mishap, he was
violating a traffic violation.
Let us examine case law as to what the SC had found to be traffic
violations in consonance with Art. 2185.
First, a case which we already discussed. The case of RAMOS VS.
COL REALTY CORP. AUGUST 28, 2009. Here, the driver did not
heed regulations that prohibited vehicles from crossing a certain street
in Katipunanavenue and that caused damage. And the SC applied here
the presumption under Art. 2185 finding him negligent.
Second, Guillang vs. Bedania May 21, 2009, here the SC said that
a truck while making a U-turn failed to signal that he was making a U-
turn, then he was violating traffic violation and therefore, presumed
negligent.
The case of Mendoza vs. Soriano G.R. No. 164012 June 8, 2007.
Where there were two violations. First, he was over speeding and
second was a violation of Sec. 55, Art. 5 of the R.A. 4136 otherwise
known as the Land Transportation and Traffic Code. What is Sec. 55?
No driver of a motor vehicle concerned in a vehicular accident shall
leave the scene of the accident without aiding the victim, except under
any of the following circumstances:
1. If he is in imminent danger of being seriously harmed by any person
or persons by reason of the accident;
2. If he reports the accident to the nearest officer of the law; or
3. If he has to summon a physician or nurse to aid the victim.
Take note that the law does not require here that he doesnt leave the
victim. Of course he can leave the victim but he cannot exit the
general vicinity of the accident. He can only do so if he aids the victim.
The only time that he can leave the vicinity are the 3 aforesaid
circumstances.
Now, question: Given Sec. 55 of RA 4136, do you have a duty to
rescue somebody if he figured in an accident? YES, you do and failure
to perform that duty can be considered a criminal offense for which he
can be sentenced to imprisonment of up to Aresto Mayor.
What is Art. 275 of the RPC? Abandonment of a person in danger and
abandonment of ones own victim. If you do not rescue, you can be
held liable.
Another case where the SC noted traffic violations under Art. 2185 is
the case of Lapanday vs. Angala June 21, 2007, here the SC noted
that both the plaintiff and defendant were violating traffic regulations
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at the time of the accident. Both of them were negligent. One for
executing a U-turn while being at the outer lane. And the other driver,
nag sunodsiya, he did not slow down. So both of them were negligent.
And since both were negligent, the SC had to apply the doctrine of last
clear chance. The problem I have with this ruling is both parties were
negligent. The SC applied the doctrine of last clear chance because
youre now talking about contributory negligence, comparative
negligence. And what have we learned when there is comparative
negligence? There has to be a mitigation of the damages to be
awarded and when that happens, the SC usually apportions the
damage. Here, the SC did not mitigate the damage even if theres
already a finding of contributory negligence. Thats my problem with
Lapanday vs Angala.
Another case is the case of PLEYTO VS. PHIL. RABBIT BUS LINES
JUNE 16, 2004 where the driver overtook a tricycle despite the
presence of an incoming car in another lane. Thats a violationa traffic
regulation.
RCJ BUSLINES INC. VS. STANDARD INSURANCE COMPANY
AUGUST 17, 2011 G.R. NO. 193629 where the accident took place,
the driver exceeded the speed limit of 50km/h while driving at 60km/h.
The fact that he was driving above the speed limit would clearly
indicate negligence on his part.
MCKEE VS. IAC JULY 16, 1992 where the SC found the driver-
defendant negligent because he was violating a traffic regulation that
when you are crossing a bridge, the speed limit should only be
30km/h. In this case, he was driving at 48km/h.
TISON VS. POMASIN AUGUST 24, 2011, where the driver was
driving without a license.
Now before we proceed, because there is a very important doctrine
that I need you to really study, go back to Art. 2185. Read it in your
seats. And heres my question: should art. 2185 apply to bicycles or
other self-propelled vehicles? NO, diba? Its supposed to apply only to
motor vehicles. It applies to a motorcycle, a tricycle. Question is,
should it be made to apply to non-motorized vehicle? Youre driving
your car at night, in moderate speed, its raining and not knowing that
you bumped a bicycle. The bicycle had no warning devices, no horn,
and after the accident it was found that it had no brakes, no
reflectorized sticker or whatever. Nabanggaannimo. Of course, kinsa
man diay ma-injure ana? It is the cyclist who will be injured. Should it
be applied in this situation? Thats precisely what was presented for
the consideration of the SC in the case of AONUEVO VS. CA
OCTOBER 20, 2004.So here, Villagracias bicycle collided with the
Mitsubishi Lancer of Anonuevo. Villagracia sustained injuries and sued
Anonuevo. During trial, Villagracia himself admitted that the bicycle
had no warning devices, reflectorized sticker, headlights etc. Nor was it
duly registered with the office of municipal treasurer. Finally, as
admitted by Villagracia, the bike had no brakes. The RTC ruled in
favour of the cyclist rather than Anonuevo. So Anonuevo claimed that
Villagracia violated traffic regulations and so he contends that Art.
2185 should be applied by analogy. How did the SC rule?
According to the SC, if we extend the application of Art. 2185 to non-
motorized vehicles, we would be having already judicial legislation
which we are not allowed to do. But Anonuevo was saying, Im not
telling you to amend the law, what Im telling you is apply it by
analogy because clearly here, there were violations of traffic
regulations established by a municipal ordinance. And then the SC
proceeded that assuming that we apply whatever is stated in Art. 2185
by analogy, would a violation of a municipal ordinance that prescribes
traffic violations, should it be considered as negligence per se? Can
you make a finding of negligence per se from the fact that several
traffic violations were violated at the time of the accident. And this is
where the SC made a very enlightening pronouncement that it is not
enough that a person was violating a traffic ordinance or regulation at
the time of the accident so that liability or an imputation of negligence
would become automatic. The plaintiff must still be able to prove that
that negligence caused the accident in the first place. So dili enough
somehow polluting(?) a little bit what Art. 2185 says. Because Art.
2185 says that there is a presumption of negligence. So thats what
the SC is saying. Kailangangihaponug proximate causation. Prove first
that that negligent act that may be exhibited from the fact that the
defendant violated some traffic violations must be the very cause of
the accident.
Look at the other cases. Over speeding, nakabangga, thats negligence
per se. Meaning, you are presumed negligent. The burden is shifted to
you to prove that you are not negligent. The presumption is
susceptible of contrary proof. Pwedeka mu-ingonna I was not
negligent. I can prove it. But here, the SC said that No. Dapatnaay
causal connection. Which is very important. In fact in other cases,
Tison vs. Pomasin, the violation here was the lack of requisite license.
No license to operate the vehicle. What was the vehicle in Tison? A
tractor-trailer. If you possess a professional drivers license, is it not a
fact that you may have restrictions? Pwedenadilika pa-drivonug heavy
machinery. Here, the accident was caused by the driver of the tractor-
trailer and his license forbade him to operate a tractor-trailer. The SC
here said that NO. You have to establish that that violation alone was
also the proximate cause of the injury. That were it not for the fact
that there was a violation, there would not have been any accident to
speak of. Muraganaangginaingonsa SC. But it should be noted in this
case that the defendant was still able to prove that his license
restrictions were erroneously issued.
Read the case of TISON and Aonuevo. Read ANONUEVO, its the best
explanation that you can get relating to Art. 2185 and why we cant
apply it to non-motorized vehicle.
AONUEVO vs. CA G.R. No. 130003 OCTOBER 20, 2004
HELD:There is a fundamental flaw in Aonuevos analysis of Art.
2185, as applicable today. He premises that the need for the
distinction between motorized and non-motorized vehicles arises from
the relative mass of number of these vehicles. The more pertinent
basis for the segregate classification is the difference in type of these
vehicles. A motorized vehicle operates by reason of a motor engine
unlike a non-motorized vehicle, which runs as a result of a direct
exertion by man or beast of burden of direct physical force. A
motorized vehicle, unimpeded by the limitations in physical exertion. is
capable of greater speeds and acceleration than non-motorized
vehicles. At the same time, motorized vehicles are more capable in
inflicting greater injury or damage in the event of an accident or
collision. This is due to a combination of factors peculiar to the motor
vehicle, such as the greater speed, its relative greater bulk of mass,
and greater combustability due to the fuels that they use.
There long has been judicial recognition of the peculiar dangers posed
by the motor vehicle. As far back as 1912, in the U.S. v. Juanillo25, the
Court has recognized that an automobile is capable of great speed,
greater than that of ordinary vehicles hauled by animals, "and beyond
doubt it is highly dangerous when used on country roads, putting to
great hazard the safety and lives of the mass of the people who travel
on such roads."26 In the same case, the Court emphasized:
A driver of an automobile, under such circumstances, is required to
use a greater degree of care than drivers of animals, for the reason
that the machine is capable of greater destruction, and furthermore, it
is absolutely under the power and control of the driver; whereas, a
horse or other animal can and does to some extent aid in averting an
accident. It is not pleasant to be obliged to slow down automobiles to
accommodate persons riding, driving, or walking. It is probably more
agreeable to send the machine along and let the horse or person get
out of the way in the best manner possible; but it is well to
understand, if this course is adopted and an accident occurs, that the
automobile driver will be called upon to account for his acts. An
automobile driver must at all times use all the care and caution which
a careful and prudent driver would have exercised under the
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circumstances.
Thus, we cannot sustain the contention that Art. 2185 should apply to
non-motorized vehicles, even if by analogy. There is factual and legal
basis that necessitates the distinction under Art. 2185, and to adopt
Aonuevos thesis would unwisely obviate this distinction.
Aonuevo, asserts that Villagracia was negligent as the latter had
transgressed a municipal ordinance requiring the registration of
bicycles and the installation of safety devices thereon. This view finds
some support if anchored on the long standing principle of negligence
per se.
The generally accepted view is that the violation of a statutory duty
constitutes negligence, negligence as a matter of law, or negligence
per se.32 In Teague vs. Fernandez,33 the Court cited with approval
American authorities elucidating on the rule:
"The mere fact of violation of a statute is not sufficient basis for an
inference that such violation was the proximate cause of the injury
complained. However, if the very injury has happened which was
intended to be prevented by the statute, it has been held that violation
of the statute will be deemed to be the proximate cause of the injury."
"The generally accepted view is that violation of a statutory duty
constitutes negligence, negligence as a matter of law, or, according to
the decisions on the question, negligence per se, for the reason that
non-observance of what the legislature has prescribed as a suitable
precaution is failure to observe that care which an ordinarily prudent
man would observe, and, when the state regards certain acts as so
liable to injure others as to justify their absolute prohibition, doing the
forbidden act is a breach of duty with respect to those who may be
injured thereby; or, as it has been otherwise expressed, when the
standard of care is fixed by law, failure to conform to such standard is
negligence, negligence per se or negligence in and of itself, in the
absence of a legal excuse. According to this view it is immaterial,
where a statute has been violated, whether the act or omission
constituting such violation would have been regarded as negligence in
the absence of any statute on the subject or whether there was, as a
matter of fact, any reason to anticipate that injury would result from
such violation. x xx." (65 C.J.S. pp.623-628)
"But the existence of an ordinance changes the situation. If a driver
causes an accident by exceeding the speed limit, for example, we do
not inquire whether his prohibited conduct was unreasonably
dangerous. It is enough that it was prohibited. Violation of an
ordinance intended to promote safety is negligence. If by creating the
hazard which the ordinance was intended to avoid it brings about the
harm which the ordinance was intended to prevent, it is a legal cause
of the harm. This comes only to saying that in such circumstances the
law has no reason to ignore the causal relation which obviously exists
in fact. The law has excellent reason to recognize it, since it is the very
relation which the makers of the ordinance anticipated. This court has
applied these principles to speed limits and other regulations of the
manner of driving."
Should the doctrine of negligence per se apply to Villagracia, resulting
from his violation of an ordinance? It cannot be denied that the
statutory purpose for requiring bicycles to be equipped with headlights
or horns is to promote road safety and to minimize the occurrence of
road accidents involving bicycles. At face value, Villagracias mishap
was precisely the danger sought to be guarded against by the
ordinance he violated. Aonuevo argues that Villagracias violation
should bar the latters recovery of damages, and a simplistic
interpretation of negligence per se might vindicate such an argument.
But this is by no means a simple case. There is the fact which we
consider as proven, that Aonuevo was speeding as he made the left
turn, and such negligent act was the proximate cause of the accident.
This reckless behavior would have imperiled anyone unlucky enough
within the path of Aonuevos car as it turned into the intersection,
whether they are fellow motorists, pedestrians, or cyclists. We are
hard put to conclude that Villagracia would have avoided injury had his
bicycle been up to par with safety regulations, especially considering
that Aonuevo was already speeding as he made the turn, or before
he had seen Villagracia. Even assuming that Aonuevo had failed to
see Villagracia because the bicycle was not equipped with headlights,
such lapse on the cyclists part would not have acquitted the driver of
his duty to slow down as he proceeded to make the left turn.
The bare fact that Villagracia was violating a municipal ordinance at
the time of the accident may have sufficiently established some degree
of negligence on his part, but such negligence is without legal
consequence unless it is shown that it was a contributing cause of the
injury. If anything at all, it is but indicative of Villagracias failure in
fulfilling his obligation to the municipal government, which would then
be the proper party to initiate corrective action as a result. But such
failure alone is not determinative of Villagracias negligence in relation
to the accident. Negligence is relative or comparative, dependent upon
the situation of the parties and the degree of care and vigilance which
the particular circumstances reasonably require.43 To determine if
Villagracia was negligent, it is not sufficient to rely solely on the
violations of the municipal ordinance, but imperative to examine
Villagracias behavior in relation to the contemporaneous
circumstances of the accident.
The rule on negligence per se must admit qualifications that may arise
from the logical consequences of the facts leading to the mishap. The
doctrine (and Article 2185, for that matter) is undeniably useful as a
judicial guide in adjudging liability, for it seeks to impute culpability
arising from the failure of the actor to perform up to a standard
established by a legal fiat. But the doctrine should not be rendered
inflexible so as to deny relief when in fact there is no causal relation
between the statutory violation and the injury sustained. Presumptions
in law, while convenient, are not intractable so as to forbid rebuttal
rooted in fact. After all, tort law is remunerative in spirit, aiming to
provide compensation for the harm suffered by those whose interests
have been invaded owing to the conduct of others.
The failure of the bicycle owner to comply with accepted safety
practices, whether or not imposed by ordinance or statute, is not
sufficient to negate or mitigate recovery unless a causal connection is
established between such failure and the injury sustained. The
principle likewise finds affirmation in Sanitary Steam Laundry, Inc. v.
Court of Appeals, wherein we declared that the violation of a traffic
statute must be shown as the proximate cause of the injury, or that it
substantially contributed thereto.54 Aonuevo had the burden of clearly
proving that the alleged negligence of Villagracia was the proximate or
contributory cause of the latters injury.
TISON VS. POMASIN G.R. No. 173180 August 24, 2011
HELD:There was no showing that the tractor-trailer was speeding.
There is a preponderance of evidence that the tractor-trailer was in
fact ascending. Considering its size and the weight of the tractor-
trailer, its speed could not be more than that of a fully loaded jitney
which was running downhill in a zigzagging manner.
Neither can it be inferred that Jabon(the driver) was negligent. In
hindsight, it can be argued that Jabon should have swerved to the
right upon seeing the jitney zigzagging before it collided with the
tractor-trailer. Accidents, though, happen in an instant, and,
understandably in this case, leaving the driver without sufficient time
and space to maneuver a vehicle the size of a tractor-trailer uphill and
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away from collision with the jitney oncoming downhill.
Clearly, the negligence of Gregorios daughter, Laarni was the
proximate cause of the accident.
We did not lose sight of the fact that at the time of the incident, Jabon
was prohibited from driving the truck due to the restriction imposed on
his drivers license, i.e., restriction code 2 and 3. As a matter of fact,
Jabon even asked the Land Transportation Office to reinstate his
articulated license containing restriction code 8 which would allow him
to drive a tractor-trailer. The Court of Appeals concluded therefrom
that Jabon was violating a traffic regulation at the time of the collision.
Driving without a proper license is a violation of traffic regulation.
Under Article 2185 of the Civil Code, the legal presumption of
negligence arises if at the time of the mishap, a person was violating
any traffic regulation. However, in Sanitary Steam Laundry, Inc. v.
Court of Appeals,27 we held that a causal connection must exist
between the injury received and the violation of the traffic regulation.
It must be proven that the violation of the traffic regulation was the
proximate or legal cause of the injury or that it substantially
contributed thereto. Negligence, consisting in whole or in part, of
violation of law, like any other negligence, is without legal
consequence unless it is a contributing cause of the injury.28 Likewise
controlling is our ruling in Aonuevo v. Court of Appeals29 where we
reiterated that negligence per se, arising from the mere violation of a
traffic statute, need not be sufficient in itself in establishing liability for
damages. In said case, Aonuevo, who was driving a car, did not
attempt "to establish a causal connection between the safety violations
imputed to the injured cyclist, and the accident itself. Instead, he
relied on a putative presumption that these violations in themselves
sufficiently established negligence appreciable against the cyclist. Since
the onus on Aonuevo is to conclusively prove the link between the
violations and the accident, we can deem him as having failed to
discharge his necessary burden of proving the cyclists own
liability."30 We took the occasion to state that:
The rule on negligence per se must admit qualifications that may arise
from the logical consequences of the facts leading to the mishap. The
doctrine (and Article 2185, for that matter) is undeniably useful as a
judicial guide in adjudging liability, for it seeks to impute culpability
arising from the failure of the actor to perform up to a standard
established by a legal fiat. But the doctrine should not be rendered
inflexible so as to deny relief when in fact there is no causal relation
between the statutory violation and the injury sustained. Presumptions
in law, while convenient, are not intractable so as to forbid rebuttal
rooted in fact. After all, tort law is remunerative in spirit, aiming to
provide compensation for the harm suffered by those whose interests
have been invaded owing to the conduct of other.31
In the instant case, no causal connection was established between the
tractor-trailer drivers restrictions on his license to the vehicular
collision. Furthermore, Jabon was able to sufficiently explain that the
Land Transportation Office merely erred in not including restriction
code 8 in his license.
Okay lets go to Art. 2186
ART. 2186. Every owner of a motor vehicle shall file with the proper
government office a bond executed by a government-controlled
corporation or office, to answer for damages to third persons. The
amount of the bond and other terms shall be fixed by the competent
public official.
Theres nothing useful in Art. 2186. Lets go now to 2187
ART. 2187. Manufacturers and processors of foodstuffs, drinks, toilet
articles and similar goods shall be liable for death or injuries caused by
any noxious or harmful substances used, although no contractual
relation exists between them and the consumers.
Okay 2187 and other laws related to it can be classified into what we
call Product Liability Torts. Although technically speaking, only 2187
here is a tort but there is an entire body of law that deals with
kaningmga foodstuffs, drinks, etc.
Now take note that liability under Art. 2187 does not depend on privity
of contract or privity between the manufacturer and the person injured
but on the duty imposed by law upon the manufacturer not to put
upon the market a commodity that is unsuitable for use by the public
and which the public cannot use without injury.
Now look at 2187, there is liability only when there is death or injury.
And when you say injury, it is physical injury. It does not cover an
injury that is less than physical injury. You cannot say because I saw
a cockroach in my coca-cola, I could not sleep and, therefore, there is
moral injury. You cannot do that. What happens when there is no
actual injury? Remember that 2187 only applies when theres actual
injury, not potential injury, which is the general rule under our
Philippine Tort Law. Phil. Tort Law covers only actual and not potential
injury as a general rule. So what will you do? Do you have any
recourse? YES but not under Art. 2187. You actually have RA 7394
Consumers Act of the Philippines you can actually file in the Dept. of
Health a petition to declare injurious, unsafe or dangerous products.
Article 11. Amendment and Revocation of Declaration of the
Injurious, Unsafe or Dangerous Character of a Consumer
Product. Any interested person may petition the appropriate
department to commence a proceeding for the issuance of an
amendment or revocation of a consumer product safety rule or an
order declaring a consumer product injurious, dangerous and unsafe.
In case the department, upon petition by an interested party or its
own initiative and after due notice and hearing, determines a
consumer product to be substandard or materially defective, it shall so
notify the manufacturer, distributor or seller thereof of such finding
and order such manufacturer, distributor or seller to:
a) give notice to the public of the defect or failure to comply
with the product safety standards; and
b) give notice to each distributor or retailer of such product.
The department shall also direct the manufacturer, distributor or seller
of such product to extend any or all of the following remedies to the
injured person:
a) to bring such product into conformity with the
requirements of the applicable consumer product standards
or to repair the defect in order to conform with the same;
b) to replace the product with a like or equivalent product
which complies with the applicable consumer product
standards which does not contain the defect;
c) to refund the purchase price of the product less a
reasonable allowance for use; and
d) to pay the consumer reasonable damages as may be
determined by the department.
The manufacturer, distributor or seller shall not charge a consumer
who avails himself of the remedy as provided above of any expense
and cost that may be incurred.
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And also under RA 7394, read at least 4 or 5 provisions. Articles 50,
51, 52. Art. 99 regarding liability for defective services. Then art. 106
in relation to that, read RA 3720 Food, Drug and Cosmetic Act
specifically Sec. 11. And the case of Coca-cola Bottlers Inc. vs. CA.
Article 50. Prohibition Against Deceptive Sales Acts or
Practices. A deceptive act or practice by a seller or supplier in
connection with a consumer transaction violates this Act whether it
occurs before, during or after the transaction. An act or practice shall
be deemed deceptive whenever the producer, manufacturer, supplier
or seller, through concealment, false representation of fraudulent
manipulation, induces a consumer to enter into a sales or lease
transaction of any consumer product or service.
Without limiting the scope of the above paragraph, the act or practice
of a seller or supplier is deceptive when it represents that:
a) a consumer product or service has the sponsorship,
approval, performance, characteristics, ingredients,
accessories, uses, or benefits it does not have;
b) a consumer product or service is of a particular standard,
quality, grade, style, or model when in fact it is not;
c) a consumer product is new, original or unused, when in
fact, it is in a deteriorated, altered, reconditioned, reclaimed
or second-hand state;
d) a consumer product or service is available to the
consumer for a reason that is different from the fact;
e) a consumer product or service has been supplied in
accordance with the previous representation when in fact it
is not;
f) a consumer product or service can be supplied in a
quantity greater than the supplier intends;
g) a service, or repair of a consumer product is needed
when in fact it is not;
h) a specific price advantage of a consumer product exists
when in fact it does not;
i) the sales act or practice involves or does not involve a
warranty, a disclaimer of warranties, particular warranty
terms or other rights, remedies or obligations if the
indication is false; and
j) the seller or supplier has a sponsorship, approval, or
affiliation he does not have.
Article 51. Deceptive Sales Act or Practices By Regulation.
The Department shall, after due notice and hearing, promulgate
regulations declaring as deceptive any sales act, practice or technique
which is a misrepresentation of facts other than these enumerated in
Article 50.
Article 52. Unfair or Unconscionable Sales Act or Practice. An
unfair or unconscionable sales act or practice by a seller or supplier in
connection with a consumer transaction violates this Chapter whether
it occurs before, during or after the consumer transaction. An act or
practice shall be deemed unfair or unconscionable whenever the
producer, manufacturer, distributor, supplier or seller, by taking
advantage of the consumer's physical or mental infirmity, ignorance,
illiteracy, lack of time or the general conditions of the environment or
surroundings, induces the consumer to enter into a sales or lease
transaction grossly inimical to the interests of the consumer or grossly
one-sided in favor of the producer, manufacturer, distributor, supplier
or seller.
In determining whether an act or practice is unfair and
unconscionable, the following circumstances shall be considered:
a) that the producer, manufacturer, distributor, supplier or
seller took advantage of the inability of the consumer to
reasonably protect his interest because of his inability to
understand the language of an agreement, or similar
factors;
b) that when the consumer transaction was entered into, the
price grossly exceeded the price at which similar products or
services were readily obtainable in similar transaction by like
consumers;
c) that when the consumer transaction was entered into, the
consumer was unable to receive a substantial benefit from
the subject of the transaction;
d) that when the consumer was entered into, the seller or
supplier was aware that there was no reasonable probability
or payment of the obligation in full by the consumer; and
e) that the transaction that the seller or supplier induced the
consumer to enter into was excessively one-sided in favor of
the seller or supplier.
Article 99. Liability for Defective Services. The service supplier
is liable for redress, independently of fault, for damages caused to
consumers by defects relating to the rendering of the services, as well
as for insufficient or inadequate information on the fruition and
hazards thereof.
The service is defective when it does not provide the safety the
consumer may rightfully expect of it, taking the relevant circumstances
into consideration, including but not limited to:
a) the manner in which it is provided;
b) the result of hazards which may reasonably be expected
of it;
c) the time when it was provided.
A service is not considered defective because of the use or introduction
of new techniques.
The supplier of the services shall not be held liable when it is proven:
a) that there is no defect in the service rendered;
b) that the consumer or third party is solely at fault.
Article 106. Prohibition in Contractual Stipulation. The
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stipulation in a contract of a clause preventing, exonerating or
reducing the obligation to indemnify for damages effected, as provided
for in this and in the preceding Articles, is hereby prohibited, if there is
more than one person responsible for the cause of the damage, they
shall be jointly liable for the redress established in the pertinent
provisions of this Act. However, if the damage is caused by a
component or part incorporated in the product or service, its
manufacturer, builder or importer and the person who incorporated
the component or part are jointly liable.
RA. 3720 - "Food, Drug, and Cosmetic Act
Section 11. The following acts and the causing thereof are hereby
prohibited: (a) The manufacture, sale, offering for sale or transfer of
any food, drug, device or cosmetic that is adulterated or misbranded.
(b) The adulteration or misbranding of any food, drug,
device, or cosmetic.
(c) The refusal to permit entry or inspection as authorized by
Section twenty-seven hereof or to allow samples to be
collected.
(d) The giving of a guaranty or undertaking referred to in
Section twelve (b) hereof which guaranty or undertaking is
false, except by a person who relied upon a guaranty or
undertaking to the same effect signed by, and containing the
name and address of, the person residing in the Philippines
from whom he received in good faith the food, drug, device,
or cosmetic or the giving of a guaranty or undertaking
referred to in Section twelve (b) which guaranty or
undertaking is false.
(e) Forging, counterfeiting, simulating, or falsely
representing or without proper authority using any mark,
stamp, tag label, or other identification device authorized or
required by regulations promulgated under the provisions of
this Act.
(f) The using by any person to his own advantage, or
revealing, other than to the Secretary or officers or
employees of the Department or to the courts when relevant
in any judicial proceeding under this Act, any information
acquired under authority of Section nine, or concerning any
method or process which as a trade secret is entitled to
protection.
(g) The alteration, mutilation, destruction, obliteration, or
removal of the whole or any part of the labeling of, or the
doing of any other act with respect to, a food, drug, device,
or cosmetic, if such act is done while such article is held for
sale (whether or not the first sale) and results in such article
being adulterated or misbranded.
(h) The use, on the labeling of any drug or in any
advertising relating to such drug, of any representation or
suggestion that an application with respect to such drug is
effective under Section twenty-one hereof, or that such drug
complies with the provisions of such section.
(i) The use, in labeling, advertising or other sales promotion
of any reference to any report or analysis furnished in
compliance with Section twenty-six hereof.
Lets go now to Art. 2188
Article 2188. There is prima facie presumption of negligence on the
part of the defendant if the death or injury results from his possession
of dangerous weapons or substances, such as firearms and poison,
except when the possession or use thereof is indispensable in his
occupation or business. (n)
Okay what you have to remember in 2188 the presumption is
disputable and therefore susceptible of contrary proof and the mere
fact that you are using or possessing dangerous weapons or
substances does not necessarily mean that you are conclusively
presumed liable. Again, the presumption is disputable.
Whats an example of use or possession of dangerous weapons or
substances? You are a security guard, of course you have to bring with
you a gun. Youre allowed to do that. What about dangerous
substances? Whats an example of a profession where you are
absolutely required to possess dangerous substances. Ill give you a
perfect example. Pharmacists. Ngano? Because one mans medicine
can be another mans poison. Diba? Asperin is poison to me. What
about if youre in the business of ____ that is also a dangerous
substance.
Article 2189. Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by
reason of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision.
(n)
Okay Ill just tell you the cases here ha.
CITY OF MANILA VS. TEOTICO AND CA JANUARY 29, 1968
JIMENEZ VS. CITY OF MANILA 150 SCRA 510 MAY 29, 1987
CINCO VS. CANONOY MAY 31, 1979
GUILATCO VS. CITY OF DAGUPAN MARCH 29, 1989
Article 2189 is supposed to be a very relevant provision because were
talking here about roads, streets, bridges and other public works under
the supervision of LGU. In fact, the mechanics of LGUs a while ago
under Article 2189 should have been _____ by the passage of the
Local Govt Code. However, angiyang case law has not _______. So
these 4 cases would do. But lets examine the codal here, okay? *sir
reads art. 2189*
For example in the case of TEOTICO somebody stepping down from
the jeepney when he fell inside an uncovered manhole. He suffered
damages. So the SC said At any rate, under Article 2189 of the Civil
Code, it is not necessary for the liability therein established to attach
that the defective roads or streets belong to the province, city or
municipality from which responsibility is exacted. What said article
requires is that the province, city or municipality have either "control
or supervision" over said street or road. Even if P. Burgos Avenue
were, therefore, a national highway, this circumstance would not
necessarily detract from its "control or supervision" by the City of
Manila, under Republic Act 409.
JIMENEZ VS. CITY OF MANILA, naaytaonatunokuglansang in the
public market. SC said City of Manila is liable because it has retained
control.The Supreme Court clarified further that under Article 2189 of
the Civil Code, it is not necessary for the liability therein established to
attach, that the defective public works belong to the province, city or
municipality from which responsibility is exacted. What said article
requires is that the province, city or municipality has either "control or
supervision" over the public building in question.
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In the case at bar, there is no question that the Sta. Ana Public
Market, despite the Management and Operating Contract between
respondent City and Asiatic Integrated Corporation remained under the
control of the former.
For example, theres a motorcycle then suddenly theres a manhole.
Ang motor beyond repair na. Can you sue the city of Davao? Can you?
Youre not injured peronadaotimong motor. Answer, NO. Why?
Because Art. 2189 applies only to death or injury to persons, not to
injury to property. In fact, to a certain extent, that was discussed in
the case of CINCO. Because in that case, the SC in trying to make
sense of Art. 2176 noted that injury here is not limited to physical
injury only, in fact it also applies to damage to property. But in CINCO,
the SC did not make a categorical pronouncement that therefore,
damage to property should be also actionable against the local
government. So who will be, for example, our sewage system. Its
what? Davao City Water District. What if our sewage system fails. So
nagbahakaron, tapos your house was flooded also. Can you hold the
city government through the Davao City Water District liable? NO. Not
at least under Art. 2189 because it only refers to damage or injury to
persons.
Okay lets go to Art. 2190
Article 2190. The proprietor of a building or structure is responsible
for the damages resulting from its total or partial collapse, if it should
be due to the lack of necessary repairs.
So again, the requisite for liability here is evidence of lack of necessary
repairs. What if the defect is an inherent defect? Not necessarily
because the proprietor did not repair it? Can you hold the proprietor
liable? For that, we go to Art. 2191 and 2192.
Article 2191. Proprietors shall also be responsible for damages
caused:
(1) By the explosion of machinery which has not been taken
care of with due diligence, and the inflammation of explosive
substances which have not been kept in a safe and
adequate place;
(2) By excessive smoke, which may be harmful to persons or
property;
(3) By the falling of trees situated at or near highways or
lanes, if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or deposits of
infectious matter, constructed without precautions suitable
to the place.
So 2191 including 2190 and 2192 are so-called proprietary loss why
because who is held liable here? Proprietors, owners of property. This
will be discussed when we go to nuisance.
Article 2192. If damage referred to in the two preceding articles
should be the result of any defect in the construction mentioned in
article 1723, the third person suffering damages may proceed only
against the engineer or architect or contractor in accordance with said
article, within the period therein fixed.
So, it makes mention of Art. 1723 talking about defects of
construction.
Read 1723
Article 1723. The engineer or architect who drew up the plans and
specifications for a building is liable for damages if within fifteen years
from the completion of the structure, the same should collapse by
reason of a defect in those plans and specifications, or due to the
defects in the ground. The contractor is likewise responsible for the
damages if the edifice falls, within the same period, on account of
defects in the construction or the use of materials of inferior quality
furnished by him, or due to any violation of the terms of the contract.
If the engineer or architect supervises the construction, he shall be
solidarily liable with the contractor.
Acceptance of the building, after completion, does not imply waiver of
any of the cause of action by reason of any defect mentioned in the
preceding paragraph.
The action must be brought within ten years following the collapse of
the building. (n)
1723 enforces strictly ______. How do the contractors save money?
Okay they quote you a certain roofing an imon ggamiton. Ang gi-
propose nila sa imo kay ____. The contractor goes to the same
supplier and gets Class C material, anyway you wont see the
difference, pintorahan ra bitaw gihapon. So thats how they save
money.
1723 makes mention of defects in the ground. So a situation where
you constructed a structure not suitable for the ground. Example,
sports domain (?).
Take note for the prescriptive period for filing an action under Art.
1723. 10 years following the collapse of the building which means the
building has to collapse first. Just imagine how crazy stupid this law is?
Its not enough that theres a defect. It has to collapse.
Lets go to 2193
Article 2193. The head of a family that lives in a building or a part
thereof, is responsible for damages caused by things thrown or falling
from the same.
Dolphy Doctrine ni sir. Naga mumog while brushing his teeth. When
he was about to spit, naluwaansibabalusaubossaiyangbalay.
Remember that theres a requirement of damage. Somebody has to be
injured or something is injured. For example you live in the 2nd floor
tapos nag butang ka ug paso. Youre the head of family. Tapos
nahulog ang paso hitting a car belonging to somebody who parked the
car there at the side of the road. In Roman Law, they call this liability
for damages of the person occupying the house or injury for anything
thrown from the house regardless of whether he is the owner or not.
And that made its way in Philippine Law.
Theres another doctrine Del positis vel suspensis it is a source of
liability in Roman Law that the mere placing of an object in a
dangerous position that if it falls will surely cause injury or damage is
enough to make whoever maintains that instrumentality liable.
Imagine ha, youre in the 2nd floor and you just placed something there
in danger of falling, mischievously and if somebody passes by, he
might get hit. It did not fall but in Roman law, you are liable. It covers
even potential injury. So it covers both actual and potential injuries.
Article 2194. The responsibility of two or more persons who are
liable for quasi-delict is solidary. (n)
Lets review a little bit of what we know regarding solidarity. Na-
encounter na nato ni in Obligations and Contracts. Remember that
under Art. 1207
Article 1207. The concurrence of two or more creditors or of two or
more debtors in one and the same obligation does not imply that each
one of the former has a right to demand, or that each one of the latter
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is bound to render, entire compliance with the prestation. There is a
solidary liability only when the obligation expressly so states, or when
the law or the nature of the obligation requires solidarity.
Again Art. 2194 is an instance where the law requires solidarity.
Question, what are the effects of solidarity? If youre the creditor,
because solidarity can be based described as the relationship between
the debtor and his creditor, the creditor may actually demand or
proceed against any one of the solidary debtors compliance or
fulfillment of the entire obligation. And if that one solidary debtor
makes compliance with the obligation, then the obligation is
extinguished. The others cannot be demanded to perform.
The solidary debtor who makes payment, if he is demanded to make
full compliance of the obligation, then that debtor will have the right to
be reimbursed. For example there are 3 of them who are solidary
debtors for a debt worth 30,000. Meaning, if A is made to pay the
creditor, he can demand from B and C their respective shares. But how
much? Does A have the right to collect from B and C 15,000 from each
of them? Pursuant to the principle of solidarity? How much? 10,000
each only. Why? Because he can only get reimbursed minus the share
that he himself holds. In other words, among the solidary debtors,
there is no solidarity. Di man niya makuha tanan.
Let us suppose A and B are joint tortfeasors. They were both negligent
and caused damage to C. And C is demanding payment in the amount
of 100,000. Both of them were sued. A was demanded to pay, and he
paid the entire 100k to C. Under 2194 the responsibility of joint
tortfeasors are solidary. And therefore, C can demand the entire
obligation from A the entire 100,000. But can A demand from B
reimbursement? YES but how much? Entire amount? No. Theyre joint
tortfeasors and therefore, what he can have reimbursed is not the full
amount. Its not full reimbursement but only aliquot reimbursement.
Katunga lang because theyre jointly and solidarily liable.
Lets apply this to Art. 2180 which in the case of PHILTRANCO vs. CA
which we just discussed, the SC ruled that the liability of the employer
under Art. 2180 is primary, direct, and joint and several or solidary. So
A is the employer of B. B committed a quasi-delict. A, the employer
was sued by the aggrieved party which he can do because they are
solidary tortfeasors, right? Pwede under Art. 2180. And so the
employer A was constrained to pay damages lets say for the amount
of 100,000. The law mentions that under Art. 2194, solidary ang
liability. Also in PHILTRANCO, the liability of the employer is solidary to
that of his employee. How much can he ask for reimbursement from
the employee? 50,000? WRONG. Why? Because Art. 2181 provides
that Whoever pays for the damage caused by his dependents or
employees may recover from the latter what he has paid or delivered
in satisfaction of the claim. There is no qualification or limitation as to
the amount to be recovered from his employee. He is entitled not to
aliquot reimbursement but to full reimbursement of whatever he has
paid. So is the SC correct in saying that it is solidary under Art. 2180?
YES but not solidary in its strict sense that would entitle one of the
joint tortfeasors to a mere proportionate reimbursement. He is entitled
to full reimbursement. So it is not solidarity in its purest sense.
Recall solidarity in Credit Transactions. Name an entity or party in
CredTrans which is solidarily liable. A surety is solidarily liable. So A
secures a debt from B but B requires a surety in the person of C such
that if A does not pay, then B can proceed against C. In fact, B can
proceed directly against the surety. And remember that the surety
does not have the benefit of excussion. Let us suppose the surety
pays. Whats his right now? The surety has the right to recover all that
he/it had paid. What the surety actually guarantees is payment.
Whether the principal debtor is willing or able to pay, it doesnt matter,
I will pay nevertheless. Same with Art. 2180. It doesnt matter whether
he pays or refuses to pay, I will pay. Why? Because I am responsible.
Okay lets try to recap. Art. 2194 in relation to Art. 2176, solidarity is
pure. A and B committed a quasi-delict against C, A pays the whole
debt, A can get reimbursement minus the share of B. No problem
there because that is joint tortfeasor. But vicarious liability under Art.
2180, its not solidarity in its purest sense. Why? Because he is entitled
to claim the entire amount from the defendant.
And that will end our discussion on quasi-delict. We still have a long
way to go because we still have to discuss damages, human relations
and nuisance.
March 23, 2015
Right now were already in damages. Lets go first with what the term
damages means? It comes from the latin word damnum or demo
which means taking away and as used in the Civil Code, damages may
mean either:
1. The injury or loss caused to another by a violation of his
legal rights;
2. The sum of money which the law awards or imposes as
pecuniary compensation recompense or satisfaction to any
injury done or wrong sustained as a consequence of either
a breach of contractual obligation or a tortious act.
Note that although damages are awarded in criminal cases as well
based on the premise that every person criminally liable is also civilly
liable. Remember that we are talking here about the Civil Codes
signification of what damages consist. Based on this principle, you can
see that when you talk about damages it can refer to the injury or loss
itself or it can also refer to the amount of money by way of
recompense that is paid to the plaintiff by way of satisfaction of the
damages, injury or loss occasioned by the act of the other.
Lets go to the provision of the law.
Art. 2195. The provisions of this Title shall be respectively applicable
to all obligations mentioned in Article 1157.
Therefore, damages can be awarded for any source of obligation be
it a law, contract, quasi-contract, acts or omissions punishable by law
and quasi-delict.
Art. 2196. The rules under this Title are without prejudice to special
provisions on damages formulated elsewhere in this Code.
Compensation for workmen and other employees in case of death,
injury or illness is regulated by special laws. Rules governing damages
laid down in other laws shall be observed insofar as they are not in
conflict with this Code.
Take note that with respect to Workmens Compensation, remember
that the labor tribunals now have the authority to grant damages
contrary to before. Kaniadto man gud separated man gud sya, labor
tribunals can only deal with labor issues and if you are going to ask for
damages, you have to file a case before the RTC. But now the
authority of the labor tribunal is plenary as it seems. So therefore
pwede mu-award ang labor arbiter ug damages.
What are the types of damages under art. 2197?
Art. 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated; or
(6) Exemplary or corrective.
I wont go to the extent of telling you to memorize art. 2197.
Kabalonamoana.
Art. 2198. The principles of the general law on damages are hereby
adopted insofar as they are not inconsistent with this Code.
Unsa man ang gina mean aning principles of the general law on
damages? It does not refer to general damages as opposed to specific
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damages. What it actually refers to would be what else is stated by the
Civil Code and other codifications relating to damages. An example for
that would be from the case of..
Receiver for North Negros Sugar Company v. Ibanez August
30, 1968
SC ruled for the first time that damages due to a deceased person may
be paid to his next of kin based on the general law on succession and
in reference to what was then art. 2198.
Lets go to the 1st type of damages: ACTUAL OR COMPENSATORY
DAMAGES
Mind you art. 2199 is very important. A mastery of art. 2199 would
actually reveal a lot as to what we know relating to actual or
compensatory damages.
Art. 2199. Except as provided by law or by stipulation, one is entitled
to an adequate compensation only for such pecuniary loss suffered by
him as he has duly proved. Such compensation is referred to as actual
or compensatory damages.
So I told you earlier on art. 2199 is very important. It tells you a lot of
things. For example, it starts off by saying Except as provided by law
or by stipulation. Was there damages that are not provided by law?
For example moral damages is a perfect example. It does not require
pecuniary loss which is an exception to the general rule under art.
2199. By stipulation, parties can actually stipulate as to the amount to
be paid to a party in case a contract is breached. Later on, we will
learn that is what we call liquidated damages. So theres actually no
proof of pecuniary loss that is required. What is simply required for the
award of liquidated damages is to prove that there is a breach because
it is enough that there is a breach or the amount of liquidated
damages to as they say liquidated. So there is no more
contestation(?). I-award direkta because there is a breach.
And based on art. 2199, it is synonymous with general damages. They
indicate such losses as are actually sustained and susceptible of
measurement. The purpose of actual damages is to compensate actual
injury and to put the person in the position in which he was before he
was injured. Father Nazareno would call this as the status quo ante
bellum or before the war or prior to the conflict. So thats what
actual damages is meant.
Now take note that the purpose is to compensate ACTUAL INJURY. It
cannot refer to speculative injury or injury that is based on conjecture,
or remote injury. It must be actual injury. The purpose is to put the
injured party in a position in which he was before he was injured.
Nabanggaan ka ug sakyanan. Of course, that would require some
hospitalization, expenses. So nabangaan ka, naputol imong tiil, na
amputate but at least libre ang ospital sa imoha. Thats actual
damages although it cannot bring back your foot.
2 requisites are very important here:
1. Actual damages must be pleaded in the appropriate
complaint be it a complaint or a counter-claim. It must be
prayed for. And therefore in your prayer, kelangan jud
ibutang nimo didto pila ang ginapangayo nimo na actual
damages.
2. Actual damages must be proved. Actual damages just
require evidentiary proof and therefore when you are able to
prove it, you are entitled to such compensation as you
actually prove.
So what evidence would you introduce to prove the amount of actual
damages? Invariably, it becomes receipts. Nabanggaan ang imong
sakyanan, dili nimo sala, file ka ug kaso. How much would you be able
to recover from the defendant? It has to be proven by receipts. Come
to think of it, when you talk about actual damages per se not to
include injury to business standing and so on, ma substantiate jud
nimo na by receipts. And according to the SC, receipts would be the
best evidence in so far as the award of actual damages is concerned.
For death indemnity of course the plaintiff should present the death
certificate. We will discuss that death indemnity a little bit later on.
Now what happens if you are able to prove your entitlement to actual
damages during the trial you are able to present a lot of receipts
proving the entitlement to actual damages but the problem is you
forgot to make the necessary allegations in your complaint? In fact,
your prayer does not include actual damages. What will happen? In
the case of Heirs of Gustiva(?) v. CA, the SC said they can still be
awarded based on the prayer such other reliefs just and equitable
under the premises are likewise prayed for. Except in those cases
where the law authorizes the imposition of punitive or exemplary
damages, the party claiming damages must establish by competent
evidence the amount of such damages and courts cannot give
judgment for a greater amount than that actually proven. In that
sense, actual damages are actually quantitative damages. Whatever
you will be able to prove, you will be given. The award of actual
damages cannot be both based on actual facts and conjecture.
Meaning, i-estimate nimo kung pila ang imong na-incur na actual
damages.
Actual damages must be proved and a court
cannot rely on speculation, conjecture or guesswork, as to
the fact of the amount of damages but must depend on
actual proof that damages have been suffered and evidence
on actual compensatory damages cannot be presumed but
must be duly proved.
In one case the SC ruled that the list of damages, extra-judicially
prepared by the plaintiff without supporting receipts is inadmissible in
evidence as factum probans. Hence, in order that damages may be
recovered, the best evidence obtainable by the injured party must be
presented. Dili pwede na magbuhat-buhat lang ka ug lista nimo. As to
the receipt, it cannot be made extra-judicially or ex parte.
Art. 2200. Indemnification for damages shall comprehend not only
the value of the loss suffered, but also that of the profits which the
obligee failed to obtain. (1106)
So based on art. 2200, there are 2 types of actual or compensatory
damages:
1. Value of actual loss suffered;
2. The profits which the obligee failed to obtain.
By reason of the acts of the defendant, you were unable to open your
sari-sari store. Because the act of the defendant was unlawful, then he
should be made to pay. Question is for how much? That is the time
when we need to quantify pilabagyud tong profits nawalanimona
obtain. So loss of income is actually compensator under the Civil Code.
The value of the loss suffered that is more or less what you call
actual damages. They are also called dannoemergente or
damnumemergens, or dannovitando. Ang pinaka common diha is
dannoemergente.
The profits which the oblige failed to obtain that is more
properly termed compensatory damages. More commonly termed as
lucrocessante (spanish) or in latin lucrocessans.
Now 2201, pamilyar na ta ani. I know for a fact na 2201 was discussed
in transportation laws speaking about contracts of carriage.
Art. 2201. In contracts and quasi-contracts, the damages for which
the obligor who acted in good faith is liable shall be those that are the
natural and probable consequences of the breach of the obligation,
and which the parties have foreseen or could have reasonably
foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall
be responsible for all damages which may be reasonably attributed to
the non-performance of the obligation. (1107a)
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Now take note now unsa ang difference, when you talk about
contracts and quasi-contracts, whether the defendant acted in good
faith or bad faith would actually play a big role in the determination of
damages to be awarded. Take note that if you are an obligor who
acted in good faith, what now is your liability? Only to those that are
the natural and probable consequences of the breach. And there is
that requirement of foreseeability. It should have been reasonably
foreseen or foreseeable by the defendant, that is, the breach of the
contract will lead to certain loss or injury on the part of the plaintiff.
But if you are in bad faith or if you have defrauded the plaintiff or
acted with malice or wanton attitude, then take note that you are
responsible for all damages which may be reasonably attributed to the
non-performance of the obligation.
Does the law say whether kinahanglan ba that is something that the
parties have foreseen or could have reasonably foreseen? The answer
is NO. There is no requirement. Therefore, anything that can be
attributed to the breach, he can be held liable for. Example, in an
ordinary breach of contract of carriage, a passenger who does not
reach his destination safely and securely is entitled to actual damages.
Pagsakay nimo wala ka kaabot and nagbayad na ka daan sa jeep, eh
di dapat i-uli na nya ang gibayad nimo. Or if there is injury, you are
hospitalized, then the negligent party should of course pay for your
hospitalization. However, if the contract was breached in bad faith,
other forms of damages may also be due. Thus, if the airline
fraudulently confirmed first class bookings knowing that there werent
any available, moral damages are in order as well as we learned from
the case of
Lopez v. PanAm 16 scra 431.
Remember Senator Lopez in the Philippines booked for a flight going
to US and then he was given first class reservations, problem is before
his final leg of his flight, he was informed that waladiay available first
class. So because of the fraudulent misrepresentation of the defendant
in this case, the SC of course paid Lopez the difference. Gipa uli sa
PanAm ang difference between the cost of a first class ticket with the
cost of accommodations nga gihatag kang Lopez and company. But
because of the fraud, gidungagan pa gyud ug moral damages. Thats
the meaning of art. 2201.
And there are plenty of cases here. For example Air France vs.
Carrascoso 18 SCRA 155. Thats also a very important case as far
as art. 2201 is concerned. You have the citations with you so I wont
discuss that anymore.
Now with respect with art. 2202.
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable
for all damages which are the natural and probable consequences of
the act or omission complained of. It is not necessary that such
damages have been foreseen or could have reasonably been foreseen
by the defendant.
No requirement of foreseeability! Walay apil na sya sa kinahanglan
nato tanawon whether the party could have foreseen it at the time
that the accident for example happened or the crime took place. Why?
because crime na gani and theres negligence and therefore the law
dispenses with the requirement of proving bad faith which explains
why parehas sya ug requirement when we are talking about contracts
and quasi-contracts where the debtor acted in bad faith.
Art. 2203. The party suffering loss or injury must exercise the
diligence of a good father of a family to minimize the damages
resulting from the act or omission in question.
Nabanggaan ka, kinahanglan nimomagpaospital. You cannot just go
home and suffer your kaulaw ug imong injury on your own and
silently, kelangan nimo mag patambal. In fact the SC had previously
ruled that a plaintiff in a personal injury case not only commits
contributory negligence but also is not entitled to a greater amount of
damages if the injury worsens as results of his inaction. And thats the
case of..
Lasam vs. Smith 45 Phil 657
To make the long story short, sakay bus, ang bus nabangga. Unsa
nahitabo noh? The car zigzagged for about half kilometre, left the
road, the car overturned just like in the movies and the plaintiffs were
pinned down under it. Lasam escaped with a few contusions but his
wife received serious injurious among which was a compound fracture
of one of the bones in her left wrist. There was a bone splinter left
inside her but she objected to having the decaying splinter removed by
a surgical operation. So naay nabilin didto na fractured part of her
bone. Ang babae medyo squeamish wala nagpa opera, so they sued
the defendant here. The TC awarded P1,254.10 as damages but the
plaintiffs were not satisfied by the judgment of the TC contending that
they were actually entitled to more than that, P7,832.80. now take
note that it is logical to assume na kung nagpa operasya, the
medication required for her injury would not be as much. So the SC
said:
by far the greater part of the damages claimed
by the plaintiffs resulted from the fracture of a bone in the
left wrist of Joaquina Sanchez and from her objections to
having a decaying splinter of the bone removed by a surgical
operation. As a consequence of her refusal to submit such
an operation, a series of infections ensued and which
required constant and expensive medical treatment for
several years. We agree with the court below that the
defendant should not be charged with these expenses.
So according to the SC, kadto lang P1k is enough you cannot get P7k
as damages.
Art. 2205. Damages may be recovered:
(1) For loss or impairment of earning capacity in cases of temporary or
permanent personal injury;
(2) For injury to the plaintiff's business standing or commercial credit.
Remember that when you are talking about actual damages, it is
quantitative damages mayhap nimo. Ma quantify nimo. You are able
to express it in definite pesos and centavos.
But here comes #2: For injury to the plaintiff's business standing or
commercial credit. Can that ever be quantified? Thats the question.
Now take note that art. 2205 does not refer to actual damages. It talks
about damages in general. And therefore, it is quite possible under the
law that any injury to the plaintiff's business standing or commercial
credit is not compensated by actual damages because it is quite
impossible to do so but it can by means of other forms of damages.
Can you provide receipts to your business standing? Quantify the
injury to your business standing? You cannot! What about your
commercial credit? Because of what happened you can no longer to
pay a loan in the bank so hypothetically you say I wanted to loan P20
Billion but because of the act of the defendant, I cannot get that so
therefore I am entitled to P20 Billion. You cannot do that! That is
speculative. And therefore, my position is when you talk about injury
to business standing and commercial credit, dilinasya pang actual
damages because its very difficult to quantify. And that interpretation
finds support in the fact that under art. 2205 does not refer to actual
damages, it refer to actual damages in general.
Why do I have this comment? Because in several cases, some lawyers
would also advise their clients to also claim under art. 2205. And they
are saying that because of the plaintiffs injury to his business standing
and commercial credit, he is supposed to lose a certain amount of
money. That can never be proven in court. You cannot do that. Why?
because injury to plaintiff's business standing or commercial credit is
not quantitative but qualitative.
What about #1: loss or impairment of earning capacity in cases of
temporary or permanent personal injury? That is quantitative. Because
if you are a person with earning capacity at the time of the accident
for example or at the time of the commission of the crime, then if you
lose that earning capacity or you lose that ability to earn income. What
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will happen to you? Di naka musweldo, pwede nimo i-claim karon ang
sweldo na dapat makuha nimo.
2206 which is very very important as you will see a little bit later on.
Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos,xx.
Dihalang sa ta kutob ha. According to the framers of the Civil Code
that is what human life is worth P3k. banggaan ka kintahay simbako,
if you based it on codal provision, tres mil lang ang kantidad sa imong
kinabuhi. Thankfully of course the SC adjusted that over time, is the
SC allowed to in a way amend 2206 which says P3k? why is it that the
SC increased it to 15 and later on 30 and later on 50 and so on and so
forth? Yes, because 2206 does not actually call for judicial legislation.
It actually tells you the minimum amount that you can be awarded for
indemnity of death. In fact, under art. 2206 which provides that it is
death noh or civil indemnity for death, but the SC has went on to
interpret it to also mean that there should also be civil indemnity not
only for death but also for abuses against the chastity of a woman or
the commission of certain crimes which a person can also be injured
and we will of course go to that a lot.
Remember that that is the amount even though there may have been
mitigating circumstances. For example, voluntary surrender. You killed
somebody but you voluntarily surrendered, you have to pay the civil
indemnity. It doesnt matter. What if its a privilege mitigating
circumstance? It doesnt matter, you have to pay civil indemnity for
death.
And in addition:
(1) The defendant shall be liable for the loss of the
earning capacity of the deceased, and the indemnity shall be
paid to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the
deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the
time of his death;
(2) If the deceased was obliged to give support
according to the provisions of Article 291, the recipient who
is not an heir called to the decedent's inheritance by the law
of testate or intestate succession, may demand support from
the person causing the death, for a period not exceeding
five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate
descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of
the deceased.
So lets go over these paragraphs one by one.
First opening paragraph (art. 2206) indemnity for death. And
therefore as worded, death indemnity is payable in cases of wrongful
death due to crimes and quasi-delicts. Meaning, theres a crime
commited (murder, homicide, etc.,) or quasi-delict (2176). What about
if death occurred while in a breach of a contract of carriage? Does that
mean that the family of a deceased passenger can no longer recover?
NO. Under art.1764 talking about common carriers.
Art. 1764. Damages in cases comprised in this Section shall be
awarded in accordance with Title XVIII of this Book, concerning
Damages. Article 2206 shall also apply to the death of a passenger
caused by the breach of contract by a common carrier.
So all basis of action is covered. So under the law be it a crime, a
quasi-delict or a contract, there can be civil indemnity for death. So at
least that is now very clear.
Sulpicio Lines Inc. v. CA July 14, 1995
Deducing alone from said provision, one can
conclude that damages arising from culpa contractual are
not compensable without proof of special damages sustained
by the heirs of the victim. However, the Civil Code, in Article
1764 thereof, expressly makes Article 2206 applicable "to
the death of a passenger caused by the breach of contract
by a common carrier."
So now it is very very settled, pwede gihapon ang death indemnity in
this case.
Pp vs. Domingo, G.R. No. 184343, March 2, 2009
The SC have the occasion to enumerate what may be awarded to the
heirs in case of a wrongful death. So according to the SC:
(1) civil indemnity ex delicto for the death of the victim;
(2) actual or compensatory damages;
(3) moral damages;
(4) exemplary damages; and
(5) temperate damages.
Now what you need to remember relating to the relationship between
actual damages and temperate damages is that they are supposed to
be MUTUALLY EXCLUSIVE. In the sense that if you award actual, you
cannot temperate as a general rule subject to one very important
exception that actual damages and temperate damages may be
awarded at the same time even if they are supposed to address one
delict or one wrong committed by the defendant if the payment of
actual refers to a different stage in the treatment of an injury and
temperate for future stages in the treatment of an injury in which ato
lang i-discuss later on when we go to temperate damages. But
remember ha these are the types of damages that may be awarded for
wrongful death.
Interest to be recovered also in proper cases. And previous
jurisprudence would tell you that there is a legal interest at the rate of
12% p.a. if there is a monetary award. An award of damages that
accompanies the judgment of guilty. But I would tell you later on that
this is no longer the proper jurisprudence. This has already been
abrogated by Nueva Espana v. Pp.
People vs. Alawig. G.R. No. 187731, September 18, 2013
In conformity with current policy, we impose interest at the
rate of 6% per annum on all damages awarded from date of
finality of this Decision until fully paid.
Sige lang ato na i-discuss later on when we talk about legal interest.
Remember these doctrinal cases of Eastern Shipping v. CA, KengHua
Paper Products and many more na mga kaso.
Take note that the proof required is simply the fact of death as a result
of the crime and that the accused is responsible for the death. So that
will be the reason or the basis for the award of civil indemnity. So
question is how much? If you base it on art. 2206, at least P3k.
thankfully, the SC has increased the civil indemnity from P3k to higher
amounts based on several cases that succeeded the passage of the
Civil code. Right now the prevailing amount is when death results from
a crime or quasi-delict, the amount of civil indemnity is P50k.
remember ha P50k gyud na sya. Let me tell you that the SC does not
only award a civil indemnity again for just murder, homicide, etc. but
also awards for different criminal cases predominantly rape cases. And
there are also cases where the court awarded civil indemnity to a
kidnapping victim who is very much alive. So we will go to these cases.
PP vs. Obligadoapril 16, 2009
The crime committed here was murder. But the SC awarded P75k as
civil indemnity ex delicto. This was not the first case where P75k was
awarded. So does it mean bana even before Pp. v. Obligado, P50k
became P75k? lets examine further.
Ppvs. Gutierez February 4, 2010
This took place after Pp v. obligado. The amount of P50k as civil
indemnity for moral damages is proper and the SC sustained it. In
murder, the grant of civil indemnity, which has been fixed by
jurisprudence at P50,000.00, requires no proof other than the fact of
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death as a result of the crime and proof of the accused's responsibility
therefor.
Really? Obligado for the same crime of murder P75k but in a later case
of Gutierez the crime is murder but nirevert to P50k, is that what the
SC was saying? Lets examine the cases further.
Pp. Villanueva
Which somehow explains to us why the P75k civil indemnity is actually
awarded and the SC said that P75k will be awarded as civil indemnity if
the crime committed would otherwise be were it not for the enactment
of RA 9346 (AN ACT PROHIBITING THE IMPOSITION OF DEATH
PENALTY IN THE PHILIPPINES) which took effect June 24, 2006.
Remember that the presence or absence of death penalty in the
statute books would refer solely to the effects of statue but
constitution does not actually prohibit the death penalty. The
constitution does not also expressly grant the right to execute a
convict for a crime which he is duly convicted or his guilt is found
beyond reasonable doubt. It will depend on law. So if the law says no
death penalty, so every reference to death penalty and every
imposition of death penalty would therefore be commuted to reclusion
perpetua and other RA 9346 it becomes reclusion perpetua with no
possibility for parole. Mao na na karon ang equivalent sa death
penalty. Go back to your RPC, diba naay crimes na punishable by
reclusion perpetua to death. Its possible that the presence of
mitigating circumstances would allow the court to impose upon you
the minimum period and the minimum of course would be the
indeterminate penalty of reclusion perpetua. Pero pag qualified thats
the time where death penalty is supposed to be imposed and therefore
under RA 9346, if its a crime where the proper penalty as found by
the court should be death, it becomes reclusion perpetua with no
possibility of parole. *Sirs opinion and chika about death penalty*
So remember ha P75k is awarded when the crime committed would
warrant a penalty of death but the court cannot impose the death
penalty because it is not allowed by RA 9346. So if you want to bring
back death penalty you simply suspend or repeal 9346.
Pp v. DarilayJanuary 26, 2004
Which came before RA 9346 where the SC in the case for rape with
homicide, the SC awarded P100k as civil indemnity. Asa na man pud
nangita ang SC aning P100k when clearly in 2004, whats the amount?
P50k as a general rule and then with respect to after kining RA 9436
June 24, 2006 it became P75k. but here the SC awarded 100k. how
so? According to the SC, aniang explanation ana. The P100k is
supposed to be divided into two. The P50k would be the mandatory
award in case of death and P50k because there was a finding of rape.
Therefore, add 50 with 50, it becomes P100k.
However, with recent case law it becomes P75k. Rape with homicide,
death you cannot separate the 2 eh. It becomes a complex crime so it
becomes P75k if the crime committed was effectively qualified by any
of the circumstances under which the penalty is authorized by the
applicable laws. So mao na nikaron? GR 50k but if its death penalty
but we cant impose death penalty, it becomes P75k. you know what
the effect of 9346 is? It gives you the right not to be executed by
paying an additional P25k. that is the value of the convicts life
according to recent jurisprudence. For an extra P25k, you will not be
imposed the death penalty. Because we are not going to execute your
ass meaning we are requiring you to pay an additional P25k. See how
whimsical our laws are. Beginning the enactment of civil code, the
value of human life is only P3k! Thats why I like insurance law better
because it says the value of human life cannot be quantified!
Remember the requirement that the award is mandatory upon the
filing of the fact of rape and it is independent on the award of moral
damages and how much? P75k. but remember na kaning 75k is just
based on jurisprudence. Wala pa tong 9346. So what 9346 simply does
is to convert judicial policy into legislative policy.
PP vs. Ibanez, May 11, 2007
This is very illustrative. In as much as pursuant to prevailing
jurisprudence, when you rape someone antimano(?) na sya, civil
indemnity would be P75k when warranted and the same amount for
moral damages will be awarded. But here the SC said, NO! Thats not
enough. Its for each count of rape. Meaning if you rape somebody
ten times, you pay P75k for every count of rape as civil indemnity,
you pay 75k as moral damages for each count. Multiply that by 10 you
are paying P1.5Million just because you satisfy your lust ten times.
Which is cheaper? Go to Central Bank. Its cheaper. Get married, its
free! :p
Madsali vs. PP, G.R. No. 179570, Feb 4, 2010
Civil indemnity is P75k. it is not dependent upon the actual imposition
of the death penalty but on the fact that qualifying circumstances
warranting the imposition of the death penalty attended the
commission of the offense.
Take note whats the name of the victim in Ibanez, AAA. Madsali v. pp,
AAA lang gihapon. Thats how the SC disguises the name of the victim.
Pp. vs. Abella, January 6, 2010
the compensation to be awarded in favor of the
private offended party in cases of statutory rape or simple
rape committed with the use of a deadly weapon should be
in the amounts of P75,000.00 as civil indemnity and another
P75,000.00 as moral damages.29 The award of P30,000.00
as exemplary damages should also be imposed as a public
example in order to protect hapless individuals from
[sexual] molestation.
What about exemplary damages? According to current jurisprudence,
antimano mubayad ug P30k. lets survey current jurisprudence. We are
talking about 2014 and 2015 cases.
Pp. v. Warriner June 16, 2014
Murder qualified by treachery punishable by reclusion perpetua to
death. Thats the penalty under the heinous crimes law. So the SC
awarded P75k. no problem there.
Pp. v. Obogne March 24, 2014
The crime there is simple rape and so because there is simple rape I
dont know how it can ever be that simple. Jthe SC awarded P50k
pursuant to the general rule that it should just be 50k.
Pp. v. Castillo feb 19, 2014
One of those cases where I read them, my mood is completely
destroyed. What happened here? Theres this guy Castillo with grave
abuse of authority, did then and there willfully, unlawfully and
feloniously commit sexual assault upon his daughter Nene3, a minor,
then only six (6) years of age, by rubbing his penis on the labia of the
vagina of said complainant, licking her vagina and breast and inserting
his finger inside her vagina pervert!! Kalami kapunon(?)! (with
feelings! Hehe). Lets look at the information. Rubbing the penis on the
vagina, is that rape? For as long as the male organ touches the labia,
thats rape. But the question is, is that rape that would warrant the
death penalty? Do you know that there is some school of thought that
would say that if that is the case without actual penetration, the penis
is only an object. Its not considered as a sexual organ. But lets not
dwell on that too much. What about licking the vagina and the breast?
Is that rape? No but it can simply be but dili pud nimo ma-consider as
acts of lasciviousness. Why? because if there is really rape and you do
it while you rape, thats actually absorbed. You do not prosecute a
person for acts of lasciviousness when he rapes you and at the same
time he touches you lewdly. Absorbed na sya. What about inserting his
finger inside the vagina? That is rape! Again in that sense, the finger is
considered an object and therefore you do not classify it as simple
rape under par. a but we consider that under the next paragraph
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where it is possible to rape a man using an object. That is precisely the
finding of the SC here where the accused was liable for that kind of
rape which you call rape by sexual assault. How much do you think
ang dapat i-award na damages. We are talking about civil indemnity
here for rape. According to the SC, P30k. why? was there rape under
the 1st kind? No. it may be qualified rape but its not rape by sexual
intercourse. Therefore, 30k lang and the penalty is only prision mayor
to reclusion temporal. If you look at it, do not look at the act, look at
the penalty.
Pp. v. Sato
Crime committed was statutory rape. Meaning, below 12 whether
there was consent or not. Penalty? Of course reclusion perpetua.
Supposed to be theft so the civil indemnity was P75k.
Pp. v. Dilla Jan. 21, 2015; Pp. v. Busito Jan. 12 2015
Crime committed is murder. Penalty is of course reclusion perpetua
and therefore civil indemnity awarded was 75k which was correct dba.
Pp v. Abayan
Crime was rape committed against a granddaughter. Penalty was
reclusion perpetua instead of death but the SC awarded P100k as civil
indemnity, P100k as moral damages and P100k as exemplary
damages. Aberrant? Not abberant because of Pp. v. Gambao where
the doctrine came about.
Pp. v. Gambao October 1, 2013
Crime committed here was kidnapping for ransom. I wasnt really sure
about it but it was actually punishable by death. Kidnapping for
ransom? Oh my God, dili na lang ko mangidnap kay Sarah Geronimo.
Jproper penalty is death because of RA 9346. The penalty imposed
was reclusion perpetua without the possibility of parole. Thats the
background of the case. The SC said We take this opportunity to
increase the amounts of indemnity and damages, where, as in this
case, the penalty for the crime committed is death which, however,
cannot be imposed because of the provisions of R.A. No. 9346. So
now its 100k as civil indemnity, P100k as moral damages and P100k
as exemplary damages to set an example to the public. So mao na ni
karon 100k. but take note of the caveat here or what is the
precondition for the award of 100k. it has to be one punishable by
death gyudmismo but you commute it to reclusion perpetua without
the possibility of parole similar to Gambao. And therefore,
chronologically speaking after Gambao beginning October 1, 2013,
what would be the civil indemnity where the penalty is death? It
should be 100k already. What about these other cases? Abayan we
have no problem with 100k. Sato 2014: 75k. Dilla & Busito 2015: 75k.
does it mean na wala gi follow sa SC ang iyahang kaugalingong ruling
in Gambao 2013? Actually no. what really happens is this noh the
General indemnity is still P50k whether for death, homicide or death
because of quasi-delict or by reason of rape specially in simple rape
but take note of the following exceptions:
(1) A lower amount may be awarded for example 30k if the
imposable penalty is lower than reclusion perpetua in rape
cases. So gi-discuss nato na gnna katong papa na naay
gibuhat sa iyang anak. It also applies not only to homicide,
wrongful death and rape cases, but it applies actually to all
crimes where there can be award of civil indemnity.
Kidnapping for ransom diba?
(2) Its a higher amount of P75k if the imposable penalty is
reclusion perpetua only.
(3) But if its a commutation when in fact the proper penalty is
death but it was just reduced to a lower penalty of reclusion
perpetua because of RA 9346 thats where you apply P100k
based on the recent decisions of the SC.
Take note of that. It rarely comes out in the Bar examinations but take
note of this, I am not also saying that this will not come out of the Bar
kay wala pa gyud ni gipangutana sa Bar exams. But what if. When you
are taking up criminal law, naa na ba ni 100k? I dont think so. So take
note of this.
Lets go now to par. 1 of 2206.
(1) The defendant shall be liable for the loss of the earning capacity of
the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded by
the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the
time of his death
So the situation under par. 1 is what? Somebody dies and at the time
that he died because of the act of another person whether by way of
crime or by way of quasi-delict, he was gainfully employed and
therefore able to generate income and he works for it. So therefore a
person struck down on the prime of his life during his productive years
is of course entitled to compensation for the income that he may be
able to earn had he been alive and not killed by the act of the
defendant. Question, how do you compute that? First, whats the
purpose or nature of the award?
Jose v. Angeles October 23, 2013
Under Article 220644 of the Civil Code, the heirs
of the victim are entitled to indemnity for loss of earning
capacity. Compensation of this nature is awarded not for
loss of earnings, but for loss of capacity to earn money.45
The indemnification for loss of earning capacity partakes of
the nature of actual damages which must be duly proven46
by competent proof and the best obtainable evidence
thereof.47 Thus, as a rule, documentary evidence should be
presented to substantiate the claim for damages for loss of
earning capacity.
Therefore, the claimant must present documentary evidence such as
pay slips, payable sheets to justify the award. The court cannot
estimate your earnings. You have to prove how much that is in real
life.
Pp. v. Ibanez Septemeber 25, 2013
We have held that the bare testimony of a deceaseds mother or
spouse as to the income or earning capacity of the deceased must be
supported by competent evidence like income tax returns or receipts.
Thats the best evidence according to the SC assuming that the
deceased person pays taxes.
By way of exception, damages for loss of earning capacity may be
awarded despite the absence of documentary evidence when:
(1) the deceased is self-employed and earning less than the minimum
wage under current labor laws, in which case, judicial notice may be
taken of the fact that in the deceaseds line of work no documentary
evidence is available;
[self-employed ka. You are a freelance panday. Kung may trabaho,
didto ka musampa kung walay trabaho pahuway ka muinom kag
tanduay. In our neighbourhood, theres a lot of people in the
construction industry. So naa bay documentary evidence usually
involved in that kind of work? Wala. Kinsa ng naayresibo? Ang
contractor. Kulang sya ug tao, manguha syag tao. Naay payroll pero
walay payslips]; or
(2) the deceased is employed as a daily wage worker earning less
than the minimum wage under current labor laws. So no need for
documentary evidence in those cases.
Take note of the nature of damages for loss of earning capacity.
Pp. v. Vergara July 3, 2013
Damages for loss of earning capacity is in the nature of actual
damages, which as a rule must be duly proven by documentary
evidence, not merely by the self-serving testimony of the widow.
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Formula because there has to be a formula. The SC has come up with
a formula that has been consistenly used in a long line of cases
beginning from the case of Villa Rey Transit vs CA 31 SCRA 511.
Notably later in the case of Heirs of Poe vs Malayan Insurance
Company, April 7, 2009 and recently, in the case of People vs.
Alawig. G. R. No. 187731, September 18, 2013. So the formula
is:
Net Earning Capacity = Life expectancy x (Gross
Annual Income Living Expenses)
What is this living expenses? It is supposed to represent the amount
that deceased would spend for generating his gross annual income.
And therefore if annual income here is the basis, living expenses
necessarily must be annual expenses as well.
Now what is this life expectancy? According to the American Table of
Mortality or the American Life Expectancy Table, its supposed to
be[2/3 (80-age of death)]. Why 80 and why 2/3 of 80? I dont
know really and I dont care. Blame it on the Americans! (hehe). But to
my mind, lets say an average person would die as a good life
expectancy of 80. Meaning, everybody would be happy if we all die at
80. Thats a good life expectancy already. That explains the 80. What
about the 2/3? Remember that lets supposed you live up to the age of
80, you are not gainfully employed for the entire time diba. There are
those years of infancy or years of minority where you are technically
speaking you are not able to gain anything. And then years after
retirement. Therefore, not all 80 years are devoted to gainful
employment. There are years of inactivity and that is represented by
1/3 of your life. you know why there are 24 hrs in a day? Remember
that 24 is perfectly divisible by 3 and the product is 8 which would
mean that human beings should devote 8hrs for your usual vocation,
8hrs for refreshment and repose meaning mutulog mukaon, and what
is 8hrs for? Its supposed to be devoted to the person or being which
gave you the 24hrs a day. That should be devoted to service to God.
2/3 would also mean that you would not devote your entire day to
work. Nobody does that. You devote 8hrs so at least you can rest.
What happens if there is no proof of living expenses? Sa mga
ginagasto nimo pang grocery, pampalit ug sanina, pampalit ug load
then the law would now presume that it is equivalent to 50% of your
gross annual income. But I will prove to you later on that that is not
accurate.
Lets go to examples. But remember for age to be deducted from the
factor 80, a birth certificate would suffice but the best evidence is the
death certificate. Take note of People vs. Zeta March 27, 2008
where the SC applied that principle.
So illustration: A was killed in a vehicular accident due to the
negligence of X Bus Co, the operator of the bus was he was riding at
the time of his death. He was 20 yrs old. According to his latest
payroll, he was earning a net salary of P10k per month which right
now barely qualifies as minimum wage. In Manila NCR, the minimum
salary wage was P446. When you multiply that by 22 days probably,
kulangon nang P10k. thats below minimum wage. Receipts presented
during trial proved that expensesP9k a month as living expenses. So
dyis mil ang iyahang sweldo ug 9k ang iyahang gasto. So is that safe
to assume that it is accurate? Yeah! Sa kamahal sa mga palitunon
karon, swerte na lang nang makasave ka ug 10% sa imong income.
Now compute for indemnity for loss of earning capacity. Remember ha
Net Earning Capacity equals Life expectancy times the difference of
Gross Annual Income less his Living Expenses. Very easy to remember.
Life expectancy is 2/3 times the difference of 80 and age at the time of
death.
Life expectancy = 2/3 (80-age of death)
=2/3 (80-20)
=2/3 x 60
=40
Net Earning Capacity = Life expectancy x Gross Annual Income
Living Expenses
=40 x (P10,000 x 12) (P9,000 x 12)
=40 x (P120,000-P108,000)
=40 x P12,000
=P480,000.00
Thats a very simple computation. But Ill show you a computation
where theres no data or evidence relating to his living expenses. I for
one do not keep a true record of my expenses. Meaning, dili tanan
expenses nako naayresibo. Sakay kag jeep, is it fair to ask for a receipt
from the jeepney driver? What happens if no proof of living expenses?
Its supposed to be 50%. So deduct P60k from P120, that is P60k
times 40 making it P2.4M.
Net Earning Capacity = Life expectancy x Gross Annual Income
Living Expenses
= 40 x (GAI) 50% of GAI)
=40 x (P120,000 - P60,000)
=40 x P60,000
=P2,400,000.00
Thats what I am trying to tell you. When you become lawyers and you
encounter a case and you need to compute net earning capacity, do
not show receipts anymore for living expenses. why? it will turn out
that it is actually higher. Dako kayo angdiperensya 480k compared to
2.4M. This is a very small salary ha for a deceased individual. Do not
attempt to present anymore. Its better to simply have the court
multiply it by 50%. Youll get a better result.
Pp. v. Fieldad October 1, 2014
A wrong computation. The crime committed here was homicide
committed on 2 jailguards plus carnapping. Thats the case here. The
TC used the same formula but however used the gross monthly
income instead of gross annual income. So in the final decision
rendered by the SC gi-ingon niyana tama ang formula but mali ang
computation. So the SC simply multiplied the amount by 12. So from
100k kapin nahimong 1M kapin. Read this case, its interesting.
BAR QUESTION:
Were talking here about death indemnity. What can be paid in case of
death. Can you claim now damages arising out of an unborn child such
as in this case? If a pregnant woman who is a passenger of a bus
suffer an abortion following a vehicular accident due to the gross
negligence of the bus driver, may she and her husband claim damages
from the bus company for the death of their unborn child? Explain.
This was given in 2003 5%. Remember whose bar is this? Its my
baaaar. Its one of the questions in civil law and of course, I was able
to answer. (chosJ). According to the SC, NO. The spouses cannot
recover actual damages in the form of indemnity for the loss of life of
the unborn child. This is because the unborn child cannot be
considered a person and the law allows indemnity for loss of life of
person. The mother, however, may recover damages for the bodily
injury she suffered from the loss of the fetus which is considered as
part of her internal organs. Thats what the weirdest part of the ruling
of the SC here that the fetus is part of your internal organs diba. The
parents may also recover damages for the injuries inflicted directly
upon them. Example, moral damages for mental anguish that attended
the loss of the unborn child. Since there is gross negligence, exemplary
damages can also be awarded. (Veluz v. CA 2 SCRA)
You know what this question, almost the same question reared its ugly
head last year for the 2014 Bar examinations. Same facts as Veluz v.
CA. chances are when you take the Bar, this would not be asked. Its
been asked na eh bago lang. so just take note of the doctrine.
Art. 2207. If the plaintiff's property has been insured, and he has
received indemnity from the insurance company for the injury or loss
arising out of the wrong or breach of contract complained of, the
insurance company shall be subrogated to the rights of the insured
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against the wrongdoer or the person who has violated the contract. If
the amount paid by the insurance company does not fully cover the
injury or loss, the aggrieved party shall be entitled to recover the
deficiency from the person causing the loss or injury.
Subrogatory right of the insurer. You know of course what subrogation
is. Meaning, you step into the shoes of somebody else. You
represented him now. You substituted for whatever claim he may
have. Anything weird that you see here in 2207? Whats so telling
about 2207? The insurance on property. Does it mention human life?
wala!
Catuiza v. Pp. March 31, 1965
This provision refers, however, to damages to
"property" and is, accordingly, inapplicable to damages
resulting from the loss of human life and/or injury sustained
by natural persons. In fact, by making specific reference to
"property", said Art. 2207 necessarily excludes from its
operation upon the principle "expression unius est
exclusion alterius" all other damages, including those
suffered in consequence of loss of life or injury suffered by
natural persons. Indeed, whereas insurance policies on
property have, under the law, no other purpose than to
reimburse the insured for such loss as the property insured
may have suffered, such is not the object of life insurance.
Happens to me a lot. Pirminti mabanggan ang akong sakyanan.
Therefore, having purchased a brand new car, insured jud sya which is
very comprehensive. Imong i-paayo. And then, the insurance company
will pay for everything. So what will happen after that? Because they
pay for the repairs of the car, they now have the right to sue or to
recover whatever it has paid from the supposed defendant. Wala na
man ko nag file ug kaso, sila karon ang mu-file. So we are no longer
the real party in interest. The real party in interest now is the
insurance company.
Pan Malayan Insurance Corporation v. CA
When will there be no subrogation? For instance, if the assured by his
own act releases the wrongdoer or third party liable for the loss or
damage, from liability, the insurer's right of subrogation is defeated.
In other words, the plaintiff or the property owner will not rely on the
insurance anymore. Because no insurance company will pay for the
repairs of the vehicle if you have already made a __ later. Similarly,
where the insurer pays the assured the value of the lost goods without
notifying the carrier who has in good faith settled the assured's claim
for loss, the settlement is binding on both the assured and the insurer,
and the latter cannot bring an action against the carrier on his right of
subrogation [McCarthy v. Barber Steamship Lines, Inc., 45 Phil. 488
(1923)]. And where the insurer pays the assured for a loss which is not
a risk covered by the policy, thereby effecting "voluntary payment",
the former has no right of subrogation against the third party liable for
the loss. It just stands to reason. These are exceptions which of
course makes sense.
So when there is subrogation, the insurer becomes the real party-in-
interest. And when there is subrogation, it is pro tanto subrogation.
Meaning, it is a subrogation for however much the party was
benefited. Nothing more, nothing less as a general rule. So only to the
extent of what the insurer paid thats pro tanto. However, there is
actually one instance when the insurer can recover more than what he
paid to the insured. It is when legal interest is also due. So dugay na
kayo wala sya gibayran, nag earn na syang legal interest. So thats
when the amount increases.
Art. 2208. In the absence of stipulation, attorney's fees and expenses
of litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against
the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiff's plainly valid, just and demandable
claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers
and skilled workers;
(8) In actions for indemnity under workmen's compensation and
employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a
crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable
that attorney's fees and expenses of litigation should be recovered.
In all cases, the attorney's fees and expenses of litigation must be
reasonable.
Take note that attorneys fees here is not what you pay to your lawyer.
Its not what your clients pay you but it is attys fees in the concept of
actual damages. My advice to you when I told you earlier diba na
there are provisions that you dont have to memorize. 2208 is
something that you need to memorize. Although if it comes out in the
enumeration question in the bar, giving 5 will do. Ok na na sya. But
you need to be very familiar. What if you are given a problem and you
are supposed to decide whether or not attys fees should be awarded.
So you need to have justification based on art. 2208.
General rule: cannot be recovered. Why? because the law does not
intend to put up premium on the right to litigate. Just because you
won in a litigation does not entitle you to that premium nadugang
anang dapat nimo nimo na madawat.
Art. 2209. If the obligation consists in the payment of a sum of
money, and the debtor incurs in delay, the indemnity for damages,
there being no stipulation to the contrary, shall be the payment of the
interest agreed upon, and in the absence of stipulation, the legal
interest, which is six per cent per annum. (1108)
Art. 2210. Interest may, in the discretion of the court, be allowed
upon damages awarded for breach of contract.
Art. 2211. In crimes and quasi-delicts, interest as a part of the
damages may, in a proper case, be adjudicated in the discretion of the
court.
Art. 2212. Interest due shall earn legal interest from the time it is
judicially demanded, although the obligation may be silent upon this
point. (1109a)
Art. 2213. Interest cannot be recovered upon unliquidated claims or
damages, except when the demand can be established with
reasonably certainty.
Take note of the general rule in your Credit Transactions: no interest
shall be due unless it has been expressly stipulated.
Let us suppose it has been stipulated in writing. So there is contractual
interest. Question, can you increase the interest over and above what
is stated in the contract? Can you? Whats the general rule? No diba.
But whats the exception to the GR? When there is a proper and valid
escalation clause.
What are the requisites of an escalation clause?
(1) There has to be a written consent;
(2) The escalation or the increase in interest rates must be due
to causes such as inflation or there is the govt order not
because of the whim of the creditor; and
(3) There must be a de-escalation clause.
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There can be no escalation clause if there is no de-escalation clause.
Thats what you need to remember.
There are 2 types of interest that may be recovered by the plaintiff
from the defendant:
(1) Contractual interest; and
(2) Legal interest
What is contractual interest? It is interest based on the stipulation
between the parties to a contract. Which means that that can be any
rate considering that the usury law had been repealed or suspended
by the Central Bank Circ. 905. Theres no more maximum rate of
interest and the rate would just depend on the mutual agreement of
the parties. Obviously, this was in consonance in the ruling of the SC in
the case of Liam Lao vs. Philippine Sawmill Company 1984.
Now what if the problem in the bar examinations would seem to
indicate that the interest is so high but you know the law which says
that theres no more usury. Interest depend on the agreement of the
parties. How should you answer the question? Nothing in the said
circular grants lenders carte blanche authority or blanket authority to
raise interest rates to lender which can either enslave their borrowers
or otherwise lead to a hemorrhaging of their assets. In fact over and
again the SC has ruled relating to kana bitaw dagko na interest rate in
the same phraseology that it used over and over again. So you should
remember the phraseology of the SC in striking down exorbitant
interest rates. Dapat makitan jud sa examiner ana hemorrhaging of
assets. Thats the only way of answering. or shocking to the moral or
conscience. If I dont see that in your notebooks, I will not even check
it. Meaning its either you are not listening or you are not reading.
Impossible na dili nyo na mahinumdaman in the same way that your
grades might hemorrhage. L
Legal interest that is one that is supplied by law and therefore
according to pertinent legislation, legal interest is 6% under Article
2209 or 12% under CB Circular 416. 6% is default legal interest but
there can also be legal interest in the amount of 12% if it is for a loan
or forbearance of money.
There are a lot of cases here. Reformina vs. Tomolis one of the first
one. 12% kuno if it is a loan, forbearance of money, goods or credits
or a judgment involving a loan or forbearance of money. Now
remember also that the SC has ruled in subsequent cases that where a
judgment entails the payment of money and you delay the payment of
the monetary judgment, that judgment in itself becomes a loan or
forbearance of money. Thats the rule. So those are the 3 instances
where theres 12% interest.
Eastern Shipping Lines v. CA July 12, 1994
General rule: its always contractual interest that prevails for as long as
it is not exorbitant or unconscionable or shocking to the morals or
conscience or leads to the hemorrhaging of the assets of the debtor.
That would not be struck down if dili mag fall ana. But in the absence
of stipulation, you follow kadtong 6% or 12% interest per annum.
Again, the main difference or the first thing that you have to
remember regarding the 12% would be what constitutes a loan or a
forbearance of money? Are they the same? Thats another question.
Pareha ba ang loan sa forbearance of money. What constitutes a loan
or a forbearance of money?
Crismina Garments vs. CA
For example, an action for the enforcement of an obligation for
payment of money arising from a contract for a piece of work?
According to the SC, not a loan or a forbearance of money and
therefore at that time it should be 6% per annum. Thats the legal
interest. Thats in addition to the case of KengHua Paper Products and
the case of Eastern Shipping.
An action to collect the purchase price in a contract of sale. Again, not
a loan or forbearance of money. Wa ka nangutang, wala lang ka
nibayad.
Estores vs. Supangan, April 18 2012
Here its a conditional deed of sale. The condition is such that kung dili
madayon ang sale, i-uli nimo ang akong kwarta. Question, is that a
loan or a forbearance of money? Because at that time april 18, 2012,
again if its a loan or forbearance of money it should be 12%, not 6%
under art. 2209. According to SC, going back to Crismina,
forbearance was defined as a contractual obligation of
lender or creditor to refrain during a given period of time,
from requiring the borrower or debtor to repay a loan or debt
then due and payable. This definition describes a loan where
a debtor is given a period within which to pay a loan or debt.
In such case, forbearance of money, goods or credits will
have no distinct definition from a loan. And therefore it has to be
given a different meaning and the SC said: We believe however,
that the phrase Forbearance of money, goods or credits
should therefore refer to arrangements other than loan
agreements, where a person acquiesces to the temporary use
of his money, goods or credits pending happening of certain
events or fulfillment of certain conditions. So its a situation
where youre withholding money that does not belong to you. Thats in
a nutshell what forbearance is and upon demand, you refuse to pay.
Thats forbearance. And therefore, ang definition sa forbearance in
Crismina no longer applies. This is the proper definition. So what if you
are asked, what is a forbearance? This is how you answer from the
case of Estores v. Supangan. The SC took a long time in making a
proper definition on what is forbearance of money. The judgment is
Petitioners unwarranted withholding of the money which rightfully
pertains to respondent-spouses amounts to forbearance of money
which can be considered as an involuntary loan. Thus, the applicable
rate of interest is 12% per annum.
But! It became moot and academic! Why? because there is no
longer any 12% in terms to speak of in the present time. Why?
because of the monetary board through Cir. 799 promulgated June
21, 2013 which Im sure your credtrans professor told you last
year.The MB declared that effective July 1, the rate of interest for the
loan or forbearance of any money, goods or credits and the rate
allowed in judgments in the absence of an express contract as to such
rate or interest has been reduced from twelve percent (12%) to six
percent (6%) per annum. Wala nay 12% per annum. So whatever
happened to the doctrinal pronouncement of the SC in KengHua,
Eastern Shipping and Crismina Garments and Estores, they are now
Kris Aquino in the show Aquino and Abunda Tonight utterly useless! :p
Mitigation and reduction of damages.
Article 2203. The party suffering loss or injury must exercise the
diligence of a good father of a family to minimize the damages
resulting from the act or omission in question.
We discussed this already so no problem.
Article 2204. In crimes, the damages to be adjudicated may be
respectively increased or lessened according to the aggravating or
mitigating circumstances.
Heres a situation. Maja for example stole money from you for lets say
P2M. its a crime diba a crime of theft or robbery as the case may
be. So what would be the damages to be awarded there? Of course it
would require that Maja give back the amount of P2M. The law says
that in crimes, the damages to be adjudicated may be respectively
increased or lessened according to the aggravating or mitigating
circumstances. Let us assume that there are mitigating circumstances
like voluntary surrender, voluntary plea of guilt, cuteness (weh :p). So
theres a lot mitigating and no aggravating. Does that mean that you
are paying less than P2M the amount that you stole? NO. What about
if there are a lot of aggravating circumstances like nighttime or evident
premeditation? I dont know there are a lot of aggravating. Does that
mean you are paying 3M instead of 2M? Because the law says that in
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crimes, the damages to be adjudicated may be respectively increased
or lessened according to the aggravating or mitigating circumstances.
It doesnt make sense when it comes to actual damages and therefore
the proper interpretation of art. 2204 is that it applies to all forms of
actual damages EXCEPT actual damages! Because why? because of
the basic rule that we have learned under art. 2199 which provides
that with respect to actual damages you are entitled to an adequate
compensation only for such pecuniary loss you have actually suffered
and that you have actually proven! So the court will have no discretion
to mitigate because the defendant is cute. The court cannot do that
when there are mitigating circumstances for actual damages. Kung pila
ang imong na prove, kana lang dapat ang i-award. Dili pwede bawasan
because of mitigating, dili pud pwede dungagan because of
aggravating. So remember that.
But for example if its for moral damages. Usually, the award is 50k but
because of an aggravating circumstance, it can be P75k. because of a
mitigating circumstance, it can be 30k. diha naay discretion ang court
but for actual, walay discretion ang court. Remember that pls.
People vs. Ruiz. December 14, 1981
For actual damages, the court cannot reduce it because there was an
award of actual damages here but with respect to moral damages, the
SC actually reduced the award from 50k to 20k because of the
presence of mitigating circumstances and no aggravating
circumstances. So pwede for moral damages, exemplary damages but
not for actual damages.
Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff
shall reduce the damages that he may recover.
Again you do not include there actual damages! In actual damages,
kung unsa lang ang imong na prove, mao lang ang imong makuha.
The injury or damage to your property is not lessened because of
contributory negligence but usually what happens is that the court
apportions. The court has no discretion lets say to reduce the value of
the damage. It will always be the same amount because that will be
proven in court but as to how much will be paid, naa na karon ang
allocation. Remember the cases of the SC cited previously na naay
70:30 or 60:40. Mao na nasya ang meaning sa 2214 so there will be
an apportionment of the amount of damages.
Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the court
may equitably mitigate the damages under circumstances other than
the case referred to in the preceding article, as in the following
instances:
(1) That the plaintiff himself has contravened the terms of the
contract;
(2) That the plaintiff has derived some benefit as a result of the
contract;
(3) In cases where exemplary damages are to be awarded, that the
defendant acted upon the advice of counsel;
(4) That the loss would have resulted in any event;
(5) That since the filing of the action, the defendant has done his best
to lessen the plaintiff's loss or injury.
Again, equitable mitigation of damages in contracts, quasi-contracts,
and quasi-delicts. What are the instances where there was an
equitable mitigation?
(1) That the plaintiff himself has contravened the terms of the
contract;
Why? because that is somehow equivalent to
contributory negligence for quasi-delicts.
(2) That the plaintiff has derived some benefit as a result of the
contract;
(3) In cases where exemplary damages are to be awarded, that
the defendant acted upon the advice of counsel;
(4) That the loss would have resulted in any event;
(5) That since the filing of the action, the defendant has done
his best to lessen the plaintiff's loss or injury.
Take note of #5. Again it is pursuant to what weve learned in
evidence to be the Good Samaritan Rule. Remember that if you offer
to settle or you pay for hospitalization of the plaintiff, it will not be
taken as evidence against you if its a civil case. An offer to pay
medical, hospital or other expenses occasioned by injury is not
admissible in evidence as proof of civil or criminal liability of injury.
And therefore, the law favors voluntary acts of assistance to the
injured. A good lawyer will know this. I have an uncle before nawala
lang siguro ang driver hubog lang, daghan nabanggaan apil na ang
uncle nako. You know what they did the defendants knowing that they
are properly advised by counsels na I am thankful for it na ang
iyahang counsel kay estudyante nako before. They know that they
have to minimize the plaintiffs loss or injury. So in case musaka sa
korte, they have receipts of whatever they advanced, that can be used
apart from the fact that its easier to settle if you voluntarily advance
expenses.
Ang marember jud nako sa una noh ang Wowowee. Theres a
stampede that happened in Ultra. During one of its anniversary, in the
Philsports Arena in Pasig City didtoang venue saiyahang anniversary
celebration. A lot of people were injured and worse a lot of people
died. Kang kinsa sala na? you cannot pinpoint who started the
stampede. You cannot place blame on people who did the stampede.
So negligence will now be attributed to who created the dangerous
situation under the law on torts. And who created the dangerous
situation? Its ABS CBN through Wowowee. So what they did, William
Revillame was going around, going to funeral parlors extending
monetary assistance, going to hospitals to pay off the medical bills
because of that benefit in #5. Thats a good corporate move by ABS.
March 30, 2015
MORAL DAMAGES
Article 2217. Moral damages include physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act for omission.
The purpose is not to enrich, it is not supposed to be pecuniary
compensation at the expense of the defendant but rather these are
awarded to enable the injured party to obtain means, diversions or
amusements that will serve to alleviate the moral suffering he/she has
undergone, by reason of the defendant's culpable action.Its award is
aimed at restoration, as much as possible, of the spiritual status quo
ante; thus, it must be proportionate to the suffering inflicted.
Means, diversions or amusement- I lost my leg, but because of the
award of moral damages, I can amuse myself. I can divert my
attention from the fact that I dont have a leg anymore. It is essentially
for indemnity or reparation, not punishment or correction. In other
words the award thereof is aimed at a restoration within the limits of
the possible spiritual status quo ante. At least you have something to
alleviate your moral suffering.
Since each case must be governed by its own peculiar circumstances,
there is no hard and fast rule in determining the proper amount. The
yardstick should be that the amount awarded should not be so
palpably and scandalously excessive as to indicate that it was the
result of passion, prejudice or corruption on the part of the trial
judge.Neither should it be so little or so paltry that it rubs salt to the
injury already inflicted on plaintiffs.
Although the recent trend with regards to the rulings of the SC relating
to the award of moral damages, tend towards uniformity. The rule is
that there is no hard and fast rule, it should not be capable of
mathematical computation or quantification. Because the suffering of
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each individual is different. The reputation of each individual is
different. But again, the trend now is that the SC is trying to quantify.
Example. In murder cases, there is a uniform award given by the SC in
the amount of P50k. But always remember that the reason why there
should be no uniform award of moral damages is that the
circumstances of a plaintiff would never be the same with that of a
previous plaintiff.
Moral damages are meant to compensate the claimant for any physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation and
similar injuries unjustly caused. Although incapable of pecuniary
estimation, the amount must somehow be proportional to and in
approximation of the suffering inflicted. And sometimes depend as to
the wealth and means of the plaintiff.
Case: Villanueva vs. Rosqueta January 19, 2010
Theres this former deputy of BOC, Rosqueta who tendered her
resignation from her post shortly after GMA assumed office. But she
changed her mind. Sometime later, she withdrew the resignation
because she realized that she had security of tenure but in the
meantime, Pres Arroyo appointed somebody else. Challenging the
appointment, she filed a petition for injunction against Villanueva
before the RTC. There was a TRO enjoining Villanueva from
appropriating Rosquetas appointment. It became a writ of injunction.
Villanueva challenged this before the CA. CA issued TRO enjoining
RTCs judgment order. When the 60 days lapsed, the CA eventually
dismissed the petition before it. Meaning tama and Writ of Injunction
sa RTC. Villanueva issued Customs memo order authorizing Valera, the
replacement, to exercise the powers and functions of the former
Deputy Commissioner. During the centennial anniversary, it featured
everyone, including the souvenir program, did not include Rosqueta.
She filed a complaint for damages alleging that Villanueva excluded
her from the centennial anniversary memorabilia and for preventing
her from performing her duties as deputy commissioner. She asked the
RTC to award 1M in moral damages, 500T in exemplary, 300T in
attorneys fees and cost of suit. She appealed to the CA and the
appellate court ordered Villanueva to pay 500T in moral damages,
200T in exemplary and 100T in attorneys fees and cost of suit. The SC
ruled that theres clearly a justification for the award based on the
proof that she produced in court. However, the court found the 500T
was excessive because moral damages are not a BONANZA. They are
given to ease the defendants suffering. It should approximately be
proportionate to the amount of hurt. Her government position does
not matter. What matters is the suffering she suffered.
Moral Damages in Breach of Contract
General Rule: NO.
However that are subject to some exceptions:
1. When the defendant acted fraudulently or in bad faith.
2. When the breach of contract resulted in the death of the
plaintiff.
Requisites for the Award of Moral Damages [Expertraverl&
Tours vs. CA G.R. No. 130030 June 25, 1999]
1. there must be an injury, whether physical, mental or
psychological, clearly sustained by the claimant;
The general rule is that the physical suffering must be
suffered by the person instituting the action. If the basis of
the claim is physical suffering, only the person suffering, not
his spouse or children, can recover, because there is no
damage representative.
Article 2219.xxxxxThe parents of the female
seduced, abducted, raped, or abused, referred to in
No. 3 of this article, may also recover moral
damages.
That is by way of exception. Their action is not based on the
seduction, abduction, rape or abuse but because you feel
suffering too when your relative is abused or suffered the
same.
The spouse, descendants, ascendants, and brothers
and sisters may bring the action mentioned in No. 9
of this article, in the order named.
No. 9 above pertains to any person who shows disrespect to
the dead or wrongfully interferes with the funeral shall be
liable to the family of the deceased.
In the same manner, a relative who sues for another is not
entitled to the award because physical suffering is personal.
You cannot claim damages on account of your sympathy
alone. There can be no derivative claim, it must be direct.
2. there must be a culpable act or omission factually
established;
In Quirog vs. CA, there must be clear testimony on the
anguish and other forms of mental suffering plus if the
plaintiff fails to take the witness stand and to testify as to
her humiliation, wounded feelings and anxiety, moral
damages cannot be awarded. Thats how you factually
establish the culpability.
It is enough that in your pleading, you recite their how you
are entitled to moral damages and when you testify, you
also testify as to your entitlement for moral damages. You
testify why you are entitled to moral damages.
However, there are instances where no proof is required for
the award of moral damages.
Case: People vs. Gutierrez
Moral damages was awarded for civil indemnity of P50k was
awarded, no proof is required other than the fact of death.
Moral damages are awarded in view of the violent death of
the victim. There is no need of allegation and proof of the
moral suffering of the heirs because the ordinary human
experience dictate that the wound suffered by the victim
would naturally cause moral suffering the court takes
judicial notice. No need to present any proof.
Case: Madzali vs. People
Rape. Without the necessity of pleadings and proof other
than the fact of rape, moral damages should be awarded.
Just prove the rape and the culpability of the rapist,
automatic that you will be awarded moral damages.
3. the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the
claimant; and
This means that the physical, mental and psychological
injury suffered by the claimant must have been the direct
result of the acts or omissions of the defendant.
4. the award of damages is predicated on any of the
cases stated in Article 2219.
Article 2219. Moral damages may be recovered in the
following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious
acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
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(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26,
27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted, raped,
or abused, referred to in No. 3 of this article, may
also recover moral damages.
The spouse, descendants, ascendants, and brothers
and sisters may bring the action mentioned in No. 9
of this article, in the order named.
Moral damages can be recovered in every case of wrongful
act or omission causing as approximate result physical
suffering, etc. But art 2219 is not an exclusive enumeration
as to what acts the claimant can be entitled to moral
damages. The Code Commission purposely added the words
in analogous cases in the opening of the article to avoid a
possible erroneous interpretation to the enumeration.
Ejusdem Generis. The list is not exclusive, and hence when
there are cases similar to those enumerated by law, then
they can also recover damages.
Unfounded Action
Case: Expertraverl& Tours vs. CA G.R. No. 130030 June 25,
1999
The term analogous cases refer to Art 2219 the ff. ejusdem generis is
similar to those enumerated by the law. Although a clearly unfounded
suit can at times be a legal justification for an award of damages, such
was invariably held not to be a ground for an award of moral
damages. The rationale for the rule is that the law could not have
meant to impose a penalty on the right to litigate. The anguish
suffered by a person for having been made a defendant in a civil suit
would be no different from the usual worry and anxiety suffered by
anyone who is haled to court, a situation that cannot by itself be a
cogent reason for the award of moral damages. If the rule were
otherwise, then moral damages must every time be awarded in favor
of the prevailing defendant against an unsuccessful plaintiff.
It is never automatic. The fact that you won a case does not entitle
you to moral damages. The fact that you lost a case, does not mean
that you are liable to pay for moral damages.
Under the provisions of law, in culpa-contractual, breach of contract,
moral damages may be recovered when the defendant acted in bad
faith, or was guilty of gross negligence amounting to bad faith or in
wanton disregard of his contractual obligation, exceptionally when the
act of breach of contract itself is constituted of tort resulting in physical
injuries.
In quasi-delict, when the act or omission causes physical injuries or
where the defendant is guilty of intentional tort, moral damages may
be recovered.
Crimes or quasi-delicts resulting in physical injuries. There must be a
private offended party in order to award for moral damages. Take note
that these refer to physical injuries in their generic sense. Thus it
includes murder or homicide, or reckless imprudence. Seduction,
abduction, other lascivious acts. The classification of rape as a crime
against persons does not remove it from the ambit of Article 2219.
But in certain crimes where there is no private offended party, there
can be no award of moral damages. Crimes such as treason. You
cannot award moral damages in favor of the government and hence in
such crimes you cannot award moral damages.
Adultery and concubinage are also crimes against chastity but this
refers to the spouse of the person guilty of the adultery or
concubinage. Moral damages are recoverable both from the accused
spouse and the mistress or the paramour.
Malicious Prosecutionhas been defined as an action for damages
brought by one against whom a criminal prosecution, civil suit, or
other legal proceeding has been instituted maliciously and without
probable cause, after the termination of such prosecution, suit, or
other proceeding in favor of the defendant therein. To constitute
malicious prosecution, there must be proof that the prosecution was
prompted by a sinister design to vex or humiliate a person, and that it
was initiated deliberately by the defendant knowing that his charges
were false and groundless. Concededly, the mere act of submitting a
case to the authorities for prosecution does not make one liable for
malicious prosecution.
Elements are malice and absence of probable cause. Despite the
absence of probable cause, you still filed a case, and hence that is
malice and would be tantamount to malicious prosecution.
Labor Cases. It depends. However, it is now undisputed that labor
tribunals can now award to those illegally dismissed. Moral damages
may be recovered if the dismissal of the employee was done with
fraud or was done in a manner contrary to morals, good customs or
public policy.
Case: Globe Mckay Cable
The case of a dismissed employee despite the criminal case being
dismissed and after the termination, he was banned from other
establishments that would possibly hire him, thereby blacklisting him.
Hence the SC properly awarded moral damages in this case.
Article 2218. In the adjudication of moral damages, the
sentimental value of property, real or personal, may be
considered.
This is especially true in cases of crimes against property. Under Article
106 of the RPC: Art. 106. Reparation; How made. The court shall
determine the amount of damage, taking into consideration the price
of the thing, whenever possible, and its special sentimental value to
the injured party, and reparation shall be made.
Example, somebody stole your wedding ring. Of course that has
sentimental value. Since each case is to be considered based on the
circumstances of each case, there is no hard and fast rule as to the
amount of moral damages to be awarded. The yardstick should be that
the amount awarded should not be so palpably and scandalously
excessive as to indicate that it was the result of passion, prejudice or
corruption on the part of the trial judge. Neither should it be so little or
so paltry that it rubs salt to the injury already inflicted on plaintiffs.
Case: Valenzuela vs. CA
The SC in this case was confronted of a circumstance where there was
injury which is difficult to determine as to the amount of expenses that
the injured party suffered. There was in this case amputation. The SC
here awarded P1M as moral damages. Here the extent of the injury
recurs, hence you will suffer forever. Because according to the SC
because of the amputation of the lower extremity, she lost her
ambulatory functions. According to the SC, taking into consideration
the need for the use of prosthetics and therefore because of the
shrinking of the leg, there is a need to adjust to the prosthetics during
her lifetime so that it was painful. So P1M is awarded by the CA.
Case: Ramos vs. CA December 9, 1999
We discussed this in medical negligence and malpractice. SC awarded
2M by way of moral damages. Why? Awarding them to the husband
and the children who are supposed to take care of Ramos for the rest
of her life. SC said that they have fashioned their lives around nursing
the petitioner, altered their long term goals to take care of the
comatose patient. They, not the respondents, are charged with the
moral responsibility of the care of the victim. The familys moral injury
and suffering in this case is clearly a real one.
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Social Standing
Official, political, social and financial standing of the offended party
and the business and financial position of the offender affect the
award of damages. The SC in one case provides that if you injured a
person of high official, political or social standing, then an award of
higher moral damages is proper. That is why in cases against
celebrities, when they sue, they sue for millions. Example, Piolo vs.
Lolit Solis.
However there are those who believe that financial standing does not
affect the amount to be awarded as moral damages. The theory is that
injury of a rich person is the same of that of a pauper litigant, hence
the pain and suffering of a person who lost his limbs is the same
whether the victim is rich or poor. However the SC nevertheless
considered financial standing in a number of cases it decided.
The social and financial standing of the claimant may be considered
only if he is subjected to contentious conduct despite the offenders
knowledge of his/her financial standing. So if you commit a wrong to a
claimant, and if the social or financial standing is somehow an element
of the wrong you committed against him, then that is the time that
you award moral damages based on social and financial standing.
Juridical Persons
2 types of persons: Natural persons and Juridical persons. If it is
against a natural person who is entitled to moral damages, he can feel
physical, personal and moral injury. What about a juridical person or
corporations?
Case: Mambulao Lumber vs. Philippine National Bank
Obviously, an artificial person like herein appellant corporation cannot
experience physical sufferings, mental anguish, fright, serious anxiety,
wounded feelings, moral shock or social humiliation which are basis of
moral damages. A corporation, however, may have a good reputation
which, if besmirched, may also be a ground for the award of moral
damages.
However, the same cannot be considered under the facts of this case,
however, not only because it is admitted that herein appellant had
already ceased in its business operation at the time of the foreclosure
sale of the chattels, but also for the reason that whatever adverse
effects of the foreclosure sale of the chattels could have upon its
reputation or business standing would undoubtedly be the same
whether the sale was conducted at Jose Panganiban, Camarines Norte,
or in Manila which is the place agreed upon by the parties in the
mortgage contract.
The implication of the case of Mambulao Lumber is that true, a
corporation cannot feel any pair or suffering, but if has a good
reputation, which is besmirched by the defendant, then we can award
moral damages.
Case: Pp vs. Manero, January 29, 1993
There was here an Italian missionary priest who was killed by the
group of Manero. Can there be an award of damages to the religious
order to which TulioFavali belonged?
The award of moral damages in the amount of P100,000.00 to the
congregation, the Pontifical Institute of Foreign Mission (PIME)
Brothers, is not proper. There is nothing on record which indicates that
the deceased effectively severed his civil relations with his family, or
that he disinherited any member thereof, when he joined his religious
congregation. As a matter of fact, Fr. Peter Geremias of the same
congregation, who was then a parish priest of Kidapawan, testified
that "the religious family belongs to the natural family of origin."
Besides, as We already held, a juridical person is not entitled to moral
damages because, not being a natural person, it cannot experience
physical suffering or such sentiments as wounded feelings, serious
anxiety, mental anguish or moral shock. It is only when a juridical
person has a good reputation that is debased, resulting in social
humiliation, that moral damages may be awarded.
So twice already that the SC repeated that when a juridical person has
good reputation that is besmirched, moral damages may be awarded.
But in the case of ABS-CBN, everything is put into question.
Case: ABS-CBN 1999
Here, what was claimed was exactly that the corporation has a good
reputation that has been besmirched.
However the SC said that the award of moral damages cannot be
granted in favor of a corporation because, being an artificial person
and having existence only in legal contemplation, it has no feelings, no
emotions, no senses. It cannot, therefore, experience physical
suffering and mental anguish, which can be experienced only by one
having a nervous system. The statement in People v. Manero
andMambulao Lumber Co. v. PNBthat a corporation may recover moral
damages if it has a good reputation that is debased, resulting in social
humiliation is an obiter dictum. On this score alone the award for
damages must be set aside, since RBS is a corporation.
Now the SC also ruled in later case that there may be a chance to
award moral damages to a corporation but it is not automatic. There
must be proof of factual basis of damage and its causal relation to the
offense.
This is the prevailing rule. Moral damages can still be awarded even if
the claimant is a corporation provided that there is proof.
Article 2220.Willful injury to property may be a legal ground
for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due. The
same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith.
Case: Tongson vs. Emergency Pawnshop January 15, 2010
Napala defrauded the Spouses Tongson in his acts of issuing a
worthless check and representing to the Spouses Tongson that the
check was funded, committing in the process a substantial breach of
his obligation as a buyer. For such fraudulent acts, the law,
specifically the Civil Code, awards moral damages to the injured party.
So moral damages can be awarded in cases of bouncing checks.
NOMINAL DAMAGES
Article 2221. Nominal damages are adjudicated in order that a
right of the plaintiff, which has been violated or invaded by
the defendant, may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss suffered
by him.
In a sense, nominal damages is the same with moral damages in that
they are not for the purpose of indemnifying or they are both not
predicated from pecuniary loss, it is for the purpose of recognizing a
right and vindication for the violation of such right.
Case: Francisco vs. CFI, 1978
Nominal damages are not intended for indemnification of loss suffered
but for the vindication or recognition of a right violated or invaded.
They are recoverable where some injury has been done the amount of
which the evidence fails to show, the assessment of damages being
left to the discretion of the court according to the circumstances of the
case.
In American jurisprudence, nominal damages are by their very nature
are small sums fixed by the court without regard to the extent of the
harm done to the injured party. It is generally held that a nominal
damage is a substantial claim, if based upon the violation of a legal
right; in such case, the law presumes a damage, although actual or
compensatory damages are not proven; in truth nominal damages are
damages in name only and not in fact, and are allowed, not as an
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equivalent of a wrong inflicted, but simply in recognition of the
existence of a technical injury.
Nominal damages are nominal because of the purpose of the award,
and not the amount.
Its existing in name only not really actual, not really real, or very small
in amount. Because the term nominal is used to describe small. What
determines it is not the amount but the reason behind the award
which is the right to recognize the right. Youre talking about nominal
values in a sense that it does not compensate actual damages.
Nominal not in the sense of the amount but because of the reason
why it is awarded and that is recognizing a right.
Nominate- comes from the Latin nomen which is the root word of
nomenclature, or nomine(nominate as in nominating an officer or
naming him). Nominal because it names, or that it recognizes the
injury.
Case: Almeda vs. Carino January 13, 2003
Nominal damages are nominal in name only and not in fact. When
granted by the courts, they are not treated as an equivalent of the
wrong inflicted but simply recognition of the existence of a technical
injury. A violation of the plaintiffs right, even if only technical, is
sufficient to support an award of nominal damages. Conversely, so
long as there is a showing of a violation of the right of the plaintiff, an
award of nominal damages is proper.
Technical injury. Example. Dismissal upon just cause, but no notice
was given. You did not suffer injury, but your right to due process was
violated, and hence there is technical injury, therefore there can be an
award for nominal damages.
Article 2222. The court may award nominal damages in every
obligation arising from any source enumerated in article 1157,
or in every case where any property right has been invaded.
Therefore there can be nominal damages awarded if you violate the
law, if you violate a contract, or did no proceed upon the obligations
attendant of a quasi-contract, quasi-delict or act or omission punished
by law. So nominal damages may be predicated from any source of
obligation plus in every case where any property right has been
invaded. Very broad and therefore the only way to determine whether
nominal damages is proper in every case is to case law on the matter.
Labor Cases
Case: Agabon vs. NLRCG.R. 158693 November 17, 2004
If the employer fails to comply with the due process, nominal damages
may be awarded. It will serve to deter employers from future
violations of the statutory due process rights of employees. At the
very least, it provides a vindication or recognition of this fundamental
right granted to the latter under the Labor Code and its Implementing
Rules.
Here, the SC found that there was a proper just cause, but there was a
violation in the procedural due process in the termination and so
nominal damages was awarded. The status of the termination is
neither valid nor invalid, but ineffectual. Here the nominal damages
awarded was P30k, but this is a 2004 case.
Case: Uniliver vs. Rivera 2013- Garza vs. Coca Cola, January
2013
Uniliver was not direct or specific with its first notice to Rivera but
there was an attempt to comply but the terms used were in general
terms and in no way informative of the charges against her that would
terminated her employment. Evidently, there was a violation of her
right to statutory due process, warranting the payment of indemnity in
the form of nominal damages. The SC here awarded P30k as nominal
damages based on the case of Agabon. This is a 2013 case.
Case: JAKA Food Processing vs. PACOT, March 28, 2005
Here the ground for termination was an authorized cause. Is there a
difference between lack of due process in just cause termination and
lack of due process in authorized cause termination? There is a
difference.
It is, therefore, established that there was ground for respondents
dismissal, i.e., retrenchment, which is one of the authorized causes
enumerated under Article 283 of the Labor Code. Likewise, it is
established that JAKA failed to comply with the notice requirement
under the same Article. Considering the factual circumstances in the
instant case and the above ratiocination, we, therefore, deem it proper
to fix the indemnity at P50,000.00. In Agabon, only P30,000.
The rationale is that: (1) if the dismissal is based on a just cause under
Article 282 but the employer failed to comply with the notice
requirement, the sanction to be imposed upon him should be
tempered because the dismissal process was, in effect, initiated by an
act imputable to the employee; and (2) if the dismissal is based on an
authorized cause under Article 283 but the employer failed to comply
with the notice requirement, the sanction should be stiffer because the
dismissal process was initiated by the employers exercise of his
management prerogative.
This is the reasoning of the SC why it awarded 50T to the employee
terminated for authorized cause when in just cause, it is only 30T.
However in a recent case the SC awarded as nominal damages P50k
for the failure to observe procedural due process for a just cause
termination.
Case: De Jesus vs. Aquino
The Agabon provides for such kind of damages as a deterrent for
employers committing in the future violations of statutory rights of due
process to their employees and at the same time, at the very least, a
vindication or the recognition of the fundamental right granted to the
employees under the Labor Code. The SC cited the case of Culili vs.
Eastern Telecom, the amount of 50T by way of nominal damages for
failure to observe due process
In a way, Agabon was already increased in this case of De Jesus vs.
Aquino based on the case of Culili vs. Eastern Telecom. But if you look
at Culili, this is not a just cause termination, but an authorized cause
termination. But the SC is not clear.
Nominal damages is always awarded in illegal dismissal cases,
remember Fr. Nazareno that a right to a persons labor is a property
right, and being a property right it is covered under the due process
clause in the constitution. And under Art. 2222, when a property right
has been degraded, the court may award nominal damages.
Contractual Relations
Case: Francisco vs. Ferrer February 28, 2005
A and B had a wedding. They ordered a wedding cake. The wedding
cake should at least be in the reception. Time is of the essence in the
contract. However, the baker was not able to bake the cake. During
the reception, there was no cake. Pay nominal damages of P10k in
addition to amount of the price paid for the cake.
Case: Lentfer vs. Wolff 2004
1:19:40
Again, fraud noh but this time in a case decided 2014, fraud in
contract is 50,000 in the form of nominal damages. What makes
Lentfer vs. Wolff different in the case of Francisco vs. Ferrer? Here, the
prevarication happened after the breach. In Lentfer vs. Wolff, the
fraud happened at the time of breach, meaning the breach itself was
fraudulent so, therefore, mas dako ang gi-award na damages.
ALMEDA VS. CARINO JANUARY 13, 2003
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Read this case, nothing much here but its one of those cases where in
contractual relations naay award on nominal damages.
CONTRACTS OF CARRIAGE. Kani ang pinaka prevalent. Cancelled
bookings most of the time.
CHINA AIRLINES VS. CA. China airlines confirmed reservations for
the plaintiff despite the fact na wala na diay silay mahatag na seats
for that flight. China airlines personnel ___ them for boarding because
their reservations were cancelled. So SC awarded 5,000 as reasonable
award for nominal damages to each of the plaintiff. Very small, 5000.
10,000 katong sa cake.
CATHAY PACIFIC VS. REYES JUNE 26, 2013. Same case noh
cancelled reservation. Nag re-confirm pa jud and they were advised
that their reservation was still okay as scheduled. On the day of their
scheduled departure from Adelaide, Wilfredo and his family arrived at
the airport on time. When the airport check-in counter opened,
Wilfredo was informed by a staff from Cathay Pacific that the Reyeses
did not have confirmed reservations, and only Sixtas flight booking
was confirmed. Nevertheless, they were allowed to board the flight to
HongKong due to adamant pleas from Wilfredo. When they arrived in
HongKong, they were again informed of the same problem.
Unfortunately this time, the Reyeses were not allowed to board
because the flight to Manila was fully booked. Only Sixta was allowed
to proceed to Manila from HongKong. On the following day, the
Reyeses were finally allowed to board the next flight bound for Manila.
Upon arriving in the Philippines, Wilfredo went to Sampaguita Travel to
report the incident. He was informed by Sampaguita Travel that it was
actually Cathay Pacific which cancelled their bookings.
According to SC Respondents entered into a contract of carriage with
Cathay Pacific. As far as respondents are concerned, they were holding
valid and confirmed airplane tickets. The ticket in itself is a valid
written contract of carriage whereby for a consideration, Cathay Pacific
undertook to carry respondents in its airplane for a round-trip flight
from Manila to Adelaide, Australia and then back to Manila. In fact,
Wilfredo called the Cathay Pacific office in Adelaide one week before
his return flight to re-confirm his booking. He was even assured by a
staff of Cathay Pacific that he does not need to reconfirm his booking.
Considering that the three respondents were denied boarding their
return flight from HongKong to Manila and that they had to wait in the
airport overnight for their return flight, they are deemed to have
technically suffered injury. Nonetheless, they failed to present proof of
actual damages. Consequently, they should be compensated in the
form of nominal damages.
How much? 25,000. So mag depend jud siya on how they are able to
prove it.
Same thing happened with JAPAN AIRLINES VS. CA AUGUST 7,
1998. What happened here was they were not able to board their
flight as scheduled because Mt. Pinatubo erupted and all flights to
Manila were cancelled indefinitely because NAIA was closed. So, they
rebooked them on flights on June 16 and Japan airlines paid for their
unexpected overnight stay. Unfortunately, the June 16 flight was also
cancelled. Japan airlines informed the stranded passengers that it will
no longer shoulder their expenses. The passengers stayed in Japan
until the 22nd of June and were forced to pay for their meals and
accommodations from their personal funds. So 6 days ang delay.
Passengers filed an action for damages against Japan Airlines claiming
that it failed to live up to its duty to provide care and comfort to its
stranded passengers when it refused to pay for accommodation
expenses.
Question, naa ba na sa Civil Code that you have the right to be paid
hotel and accommodation expenses if the flight is cancelled through no
fault of your own as passenger na dili ka maka board sa imong flight?
Actually, wala na siya sa Civil Code but it is stated in the Magna Carta
of Passengers Rights. Naa gud na. If you are stranded because of the
fault of the airline, they should at least give you a meager
accommodation. As to how meager? I dont know really but you are
entitled to that.
According to SC, Japan Airlines is not liable since the reason why
Japan Airlines was prevented from pursuing its flight to Manila was
because of the Mt. Pinatubo eruption. However, it is not completely
absolved from liability. While JAL was no longer required to defray
private respondents' living expenses during their stay in Narita on
account of the fortuitous event, JAL had the duty to make the
necessary arrangements to transport private respondents on the first
available connecting flight to Manila. Petitioner JAL reneged on its
obligation to look after the comfort and convenience of its passengers
when it declassified private respondents from "transit passengers" to
"new passengers" as a result of which private respondents were
obliged to make the necessary arrangements themselves for the next
flight to Manila. Private respondents were placed on the waiting list
from June 20 to June 24. To assure themselves of a seat on an
available flight, they were compelled to stay in the airport the whole
day of June 22, 1991 and it was only at 8:00 p.m. of the aforesaid
date that they were advised that they could be accommodated in said
flight which flew at about 9:00 a.m. the next day.
An award of 100,000 nominal damages in favor of each passenger was
awarded. Is it nominal in terms of award? Not anymore. Dako na. Gi-
laliman ka nominal damages 100,000 while in some case 10,000,
25,000 unya kani 100,000 each passenger? So naga change actually.
There is no hard and fast rule. So you have to remember the cases.
OTHER CASES. Kaning mga cases na dili na nato ma-classify. Walay
category.
USURPATION OF TRANSPORTATION FRANCHISE.
COGEO-CUBAO OPERATORS AND DRIVERS ASSOCIATION VS.
CA MARCH 18, 1992. At the act of usurpation by the defendants
which constituted an invasion of the plaintiffs property rights should
be awarded nominal damages in the amount of 10,000.
This is an interesting case: TWIN ACE HOLDINGS CORPORATION
VS. RUFINA AND COMPANY JUNE 8, 2006. What is Rufina
engaged in? In the manufacture of patis. What about Twin Ace? What
is it in the business of? Its conducting business under the name and
style of Tanduay Distillers. How do you consume tanduay? By means
of bottles. Lapad or Long neck. What do you do after that? Do you
return the bottle? You dont. You throw the battle or recycle or sell it
to the bote, dyaryo, bakal. And so, where does it go? When its
discarded already, where does it go? It makes its way to a lot of
people who reuse the bottles, one of which was Rufina Patis. And
namalit sila sa bote, dyaryo, mao ilang gi-gamit, gibutangan nila ug
patis ug gibaligya ang patis sa public. Nakit-an karon sa Tanduay and
they are saying thats our bottle. In fact, in the bottles themselves,
naay nakabutang na Tanduay Distillers. And so it was successful in
taking possession of tansans or bottles that were supposed to be used
by Rufina for their patis.
According to SC, that is wrongful replevin. Why? Because when Rufina
were using the bottles, gipalit na na nila from the junk dealers. And
when they bought it from the junk dealers, it becomes their property.
Is there technically wrong with what Tanduay did? In claiming
possession of what they thought was their property? Theres none.
Diba, naa silay right.
But here, according to the SC, the replevin was not proper. So when
plaintiff suffers some species of injury not enough to warrant an award
of actual damages, the court may award nominal damages.
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Considering the foregoing, we find that the award of nominal damages
to Rufina in the amount of fifty thousand pesos (P50,000.00) is
reasonable, warranted and justified.
Kani ang pinaka pait. The case of SALUDO VS. CA MARCH 23,
1992. The remains of a loved one was lost in transit. Nag latagaw
intawon. Padulong ug lets say Manila, ni-abot ug Hong Kong ni-abot
ug Macao wherever. So the personnel were remiss in the observance
of the genuine human concern and professional attentiveness required
and expected. So the SC awarded 40,000 as nominal damages.
Nganong dili moral damages? Remember that this is a contract of
carriage. In a contract of carriage, there can only be an award of
moral damages if there is bad faith or if the breach of carriage resulted
in the death of the person. None of the are present in this case. But
according to the SC, theres a need to actually recognize injury
because dili lalim na mawalaan ug remains sa isa ka loved one.
SHORT KIDNAPPING
Ngano short? Kay dali lang man kaayo. Here the accused took the 15
day old baby away from the yaya and was able to abscond with the
child only for a few minutes before she was stopped. And the baby
was recovered immediately thereafter. Kadali lang kaayo pero
kidnapping na na sya, is it not? So what do you award, moral
damages? Naa ba diay sleepless nights or something? Wala man
siguro, katulog pa man ka kay pila lang ka minutes. Very short
kidnapping. The award of nominal damages was only P10k. So naay
award unta ug moral damages which is P10k from the P300k. nominal
damages from P50k reduced to P10k.
CITY TRUST v. IAC MAY 27, 1994. Guerrero issued several
postdated checks from her account with City Trust. She deposited cash
in order to cover the checks. However, in filling up the (account
number in the) deposit slip, she omitted a zero and wrote 2900823
instead of three zeros 29000823. And therefore because of that error,
her checks were dishonored. Guerrero filed a complaint for damages
against City Trust. The TC dismissed the complaint. The CA reversed
and awarded nominal and temperate damages and attys fees. And
before the SC, the SC said that banking is a business affected with
public interest and because of the nature of its functions, the bank is
under obligation to treat the accounts of its depositors with meticulous
care, always having in mind the fiduciary nature of their relationship.
For, even if it be true that there was error on the part of the plaintiff in
omitting a "zero" in her account number, yet, it is a fact that her
name, "Emme E. Herrero", is clearly written on said deposit slip which
is very clear diba. Grabe pud naa man gani pangalan wala pa nila
gidouble check. This is so because it is not likely to commit an error in
one's name than merely relying on numbers which are difficult to
remember, especially a number with eight (8) digits as the account
numbers of defendant's depositors. We view the use of numbers as
simply for the convenience of the bank but was never intended to
disregard the real name of its depositors. Therefore, nominal damages
should be given to vindicate the wrong.
Negligence in atty-client relationship: VENTANILLA v. CENTENO
JANUARY 28, 1961. The lawyer here failed to deposit on time the
appeal bond and also neglected to the file the record on appeal within
the extension granted by law. So luoy ang cliente. So the SC awarded
nominal damages in the amount of P200! You have to remember that
this is 1961 pero just imagine unsa na kagagmay na amout P200.
This is very very important.
Art. 2223. The adjudication of nominal damages shall
preclude further contest upon the right involved and all
accessory questions, as between the parties to the suit, or
their respective heirs and assigns.
Whats the reason again for the award of nominal damages? To
vindicate or recognize a right. And therefore, when nominal damages
are awarded, thats the vindication, thats the recognition of the right.
Therefore, it has the effect of preclusion. You cannot recover anymore
other forms of damages because its already enough that nominal
damages were already awarded. So nominal cannot therefore co-exist
with moral damages. It cannot co-exist with temperate damages and
so on and so forth because of the effect of preclusion. It automatically
precludes the award of other forms of damages. Verily, all forms of
damages are recognitions that indeed a right has been violated.
However, it must be noted that exemplary damages being for
correction for public good not to recognize a right violated can coexist
with nominal damages. Only exemplary damages.
The award of nominal damages in addition to actual damages is
untenable. In fact it was ruled that nominal damages cannot coexist
compensatory with damages like LRTA v. NAVIDAD. So very clear
gyud na sya na naay effect of preclusion.
CITY TRUST v. IAC. It is wrong to award, along with nominal
damages, temperate or moderate damages. The two awards are
incompatible and cannot be granted concurrently. So dili gyud pwede.
It has the effect of preclusion.
However there are cases decided by the SC that nominal damages are
awarded together with other forms of damages and the rulings appear
to be inconsistent. Asa na tong effect of preclusion under art. 2223?
For example FRANCISCO v. FERRER kadtong cake na case. Is it not
a fact that in addition to nominal damages, giorder pa sa SC the
payment of actual damages which is the value of the cake. So P10k
nominal damages plus the value of the cake P3k.
SUMALPONG v. CA. Nominal damages and moral damages were
awarded in the same case.
So how do we make sense out of this? In Sumalpong, the SC ruled
that the award of moral damages in the amount of P10k was justified
under the circumstances whenever there has been a violation of an
ascertained legal right, although no actual damages resulted or none
are shown, the award of nominal damages is proper. There is no room
to doubt that some species of injury was caused to the complainant
because of the medical expenses he incurred in having his wounds
treated, and the loss of income due to his failure to work during his
hospitalization. However, in the absence of competent proof of the
amount of actual damages, the complainant is entitled only to nominal
damages. Moral damages again probably because of the __ of his
injuries, the scarification or mutilation of his body. So moral damages
has been awarded.
But again, 2223 has the effect of preclusion. When you award nominal
damages, do not award anything else. Thats what 2223 says. So why
is it that the SC awarded nominal damages together with other forms
of damages such as the case of Francisco v. Ferrre and the case of
Sumalpong v. CA. lets try to make sense noh because it is confusing!
In Sumalpong, nominal damages were awarded because some
species of injury was caused to the complainant because of the
medical expenses he incurred in having his wounds treated and
because of loss of income to work during his hospitalization. Moral
damages were awarded because of the physical suffering and the
scarification of the complainants body.
In Francisco, nominal damages was awarded because of the
insensitivity, inadvertence or inattention to their customers anxiety
and need of the hour because it is a contract where time is of the
essence diba. Actual or compensatory damages was awarded as
indemnification for the value of the cake which was already paid by
the wedding party and the cake never arrived.
So whats the rule therefore? When can nominal damages be awarded
together with other forms of damages as an exception to the effect of
preclusion under art. 2223? Nominal damages can be awarded
together with other forms of damages if it can be predicated on an
injury or a source of obligation other than the one that justifies the
award of the other forms of damages. So dapat lahi ang basis.
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So lets say for example if moral damages was awarded because of a For the other classes of damages, no proof of pecuniary loss is
different act, walay problema, and the nominal damages for a different necessary in order that moral, nominal, temperate, liquidated or
act or basis, ok lang. so lets say if the reason for the award of nominal exemplary damages may be adjudicated. For example, for moral, even
damages is a technical injury, award of actual damages should be though you need not present proof of pecuniary loss, you still have to
different ang basis. For example in Francisco, actual was for the value have clear testimony of physical suffering etc. and other circumstances
of the cake, nominal was for the inadvertence and insensitivity during which actually give rise to an award of moral damages. For nominal,
their clients need of the hour. In Sumalpong, moral damages awarded you need to prove to the satisfaction of the court, by way of
for the scarification of his body and the nominal damages was for the testimony, that there has been some technical injury suffered by the
purpose of compensating medical expenses. Lahi lahi ang basis. But plaintiff that needs to be vindicated or otherwise recognized by the
you cannot award nominal damages and other forms of damages court, therefore paving the way for the award of nominal damages.
based on the same act or omission or using one basis only. It has to Liquidated damages, there is still required to be proven, which is the
be different basis. So pwede nominal with others by way of exception. breach of the contract for which liquidated damages substitutes for
other forms of damages. And exemplary damages, which is awarded
as a way of example or correction of the public good, or in cases
wherein there is fraudulent, reckless, oppressive, or malevolent
April 8, 2015
violations of rights or obligations of a contract.
The last time we were discussing was nominal damages. So now we
For temperate damages, no proof of pecuniary loss is required. While
go to temperate damages which is defined under Article 2224 -
the law does not require proof of the exact amount suffered as
Temperate or moderate damages, which are more than nominal but
pecuniary loss, it still requires the plaintiff to establish factual basis to
less than compensatory damages, may be recovered when the court
justify its award. Again, by way of observation, because they both
finds that some pecuniary loss has been suffered but its amount
based on pecuniary loss, actual and temperate damages are closely
cannot, from the nature of the case, be provided with certainty.
related, close cousins. They both are predicated on pecuniary loss, but
differ on proof required.
In the case of Araneta vs. Bank of America. Temperate damages are
damages allowed in certain classes of cases, without proof of actual or
Temperate damages are often awarded because plaintiff has clearly
special damages, where the wrong done must in fact have caused
suffered pecuniary loss or incurred expenses but the plaintiff was not
actual damage to the plaintiff, though from the nature of the case, he
able to prove actual damages. Kay wala xa nagtago ug resibo.
cannot furnish independent, distinct proof thereof. Temperate
Example: A was killed by B. The heirs were suing for costs of
damages are more than nominal damages, and, rather, are such as
internment but they did not show receipts. They were given temperate
would be a reasonable compensation for the injury sustained.
damages because it is apparent that they really spent for the funeral.
The court will take note that when there is someone buried, then there
Now take note of the basis for temperate damages. It is still pecuniary
were really expenses. It is awarded in lieu of actual damages that
loss. It is very much related to actual damages, the only difference
cannot be proven in certain cases. This is however subject to the
being, that for temperate damages the nature of the case itself
limitation that while it is more than nominal damages, but less than
provides that it cannot prove the pecuniary loss in terms of specific
actual damages. Had the heirs been able to show receipts, they would
pesos or centavos. Or even if you try to adduce proof of pecuniary
be awarded more. However this is only the GR, we will discuss later
loss, the same have failed but the court finds that there is some
the (somewhat) exceptions when we go to the cases.
pecuniary loss suffered by the plaintiff.
Case: Pp vs. De la Tongga. G.R. No. 133246. July 31, 2000.
Requirements for the award:
Other than the testimony of the victims wife, Maxima Bace, that she
1. Definite proof of pecuniary loss cannot be adduced
spent this amount for hospital and funeral expenses, no documentary
by the aggrieved party;
evidence was presented by the prosecution to support this claim. We
2. The court is convinced that the aggrieved party
agree with this contention. To recover actual damages, it is necessary
suffered some pecuniary loss; [Premier Development
to prove the actual amount of loss with a reasonable degree of
Bank vs. CA]
certainty, on the basis of competent proof and the best evidence
3. The temperate damages awarded must be reasonable
obtainable by the injured party. In this case, there was no such proof
under the circumstances. [under Art. 2225]
to sustain the trial courts award of actual damages. In lieu of actual
damages, accused-appellant should pay the heirs of the deceased the
What do you mean by reasonableness of temperate damages? It
amount of P15,000.00 as temperate damages. Art. 2224 of the Civil
means that the amount awarded as temperate damages must be less
Code provides that temperate damages may be recovered when the
than actual or compensatory damages and also greater than mere
court finds that some pecuniary loss has been suffered but its amount
nominal damages. It is in between actual and nominal damages.
cannot, from the nature of the case, be proved with certainty.
When you say reasonable damages, dapat ra ba gamay ra ang imong
Case: Premium Development Bank vs. CA. April 14, 2004. To
i.award nga temperate damages? Or does it also envision a case
justify an award for actual damages, there must be competent proof of
where dako ang i.award nga temperate damages? We will see that in
the actual amount of loss. Credence can be given only to claims, which
the cases.
are duly supported by receipts. In other words, damages cannot be
presumed and courts, in making an award, must point out specific
There is pecuniary loss but the uncertainty lies in the amount of such
facts that can afford a basis for measuring whatever compensatory or
pecuniary loss. In actual or compensatory damages, it is required that
actual damages are borne.
ones entitled to an adequate compensation only for such pecuniary
Premieres failure to prove actual expenditure consequently conduces
loss suffered by him as is duly proved. That is an evidentiary rule. You
to a failure of its claim. Even if not recoverable as compensatory
cannot be awarded actual damages unless you can prove it by means
damages, Panacor may still be awarded damages in the concept of
of best evidence obtainable which the SC has interpreted to be
temperate or moderate damages. When the court finds that some
receipts; documentary proof. Mere unilateral listing of expenses
pecuniary loss has been suffered but the amount cannot, from the
supported by no independent proof cannot serve as basis for the
nature of the case, be proved with certainty, temperate damages may
award of actual damages. Among the classes of damages in the civil
be recovered.
code, only actual or compensatory damages require that ones entitled
It is obvious that the wrongful acts of Premiere Bank adversely
to an adequate compensation only for such pecuniary loss suffered by
affected, in one way or another, the commercial credit of Panacor,
him as is duly proved.
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greatly contributed to, if not, decisively caused the premature
stoppage of its business operations and the consequent loss of
business opportunity. Since these losses are not susceptible to
pecuniary estimation, temperate damages may be awarded.
Here, P200,000 was awarded. On the basis of the stoppage of the
business. SC has to make an estimate as to what is the proper award
for damages. So in the previous case, P15,000, here P200,000, so
pwede gamay pwede dako.
P25,000 or Actual Rule
Case: Pp vs. Villanueva. August 11, 2003.
In the case of Pp vs. Abrazaldo, it allows the grant of temperate
damages in the amount of P25,000 if there is no evidence of burial and
funeral expenses. This is in lieu of actual damages as it would be
unfair for the victims heirs to get nothing, despite the death of their
kin, for the reason alone that they cannot produce any receipts. We
also ruled there that temperate and actual damages are mutually
exclusive in that both may not be awarded at the same time, hence,
no temperate damages may be granted if actual damages have
already been granted.
Now why can you not award both actual and temperate damages in
the same case, as a general rule? Precisely because they are based on
the same thing. They are based on pecuniary loss. In temperate
damages, there is clearly pecuniary loss but the problem is that you
cannot prove it. You no receipts or documentary proof to prove your
claim for actual or compensatory damages.
Here, in Villanueva, coming from the case of Abrazaldo, if you clearly
incurred funeral or burial expenses, but what you were able to prove is
less than P25,000, the SC ruled that dapat tagan ka ug minimum of
P25,000. In this case, only P13,000 was supported by receipts.
Ordinarily, this is all Otoleo Brabantes heirs should be entitled to by
way of actual damages. However, we find this anomalous and unfair
because the victims heirs who tried but succeeded in proving actual
damages to the extent of P13,100 only, would be in a worse situation
than, say, those who might have presented no receipts at all but
would now be entitled to P25,000 temperate damages.
Therefore, base on this ruling by the SC in the case of Pp vs.
Villanueva, padakuay! Actual damages or temperate damages. If you
are able to prove less than P25,000, direct P25,000 will be awarded if
the expenses was for burial or funeral expenses. However, this is only
applicable if there is pecuniary loss and it was not proven and only for
burial or funeral expenses.
Let us suppose, you are suing for collection. And your basis for
collection, ginagmay, P1k karun, P1,500 napud and until it reached to
more than P25,000. But you are not able to prove all of these, and you
were only able to prove say P20,000. Will the P25,000 or actual rule
apply? NO!
Remember that the basis for your claim is collection. The award for
temperate damages should not be allowed as a convenient substitute
for the failure to adduce proof of actual damages. Otherwise, you will
be rewarding the incompetence of parties in proving their claims. So
the case of Pp vs. Villanueva cannot be applied for any other case.
Only for burial or funeral expenses. It may even be extended for
hospitalization expenses, but not for all kinds of expenses.
We therefore rule that when actual damages proven by receipts during
the trial amount to less than P25,000, as in this case, the award of
temperate damages for P25,000 is justified in lieu of actual damages
of a lesser amount. Conversely, if the amount of actual damages
proven exceeds P25,000, then temperate damages may no longer be
awarded; actual damages based on the receipts presented during trial
should instead be granted.
Lastly, in the application of the P25,000 or actual rule, you cannot
claim such as a matter of right. You still need to attempt or show it
through testimony that indeed you have incurred expenses. Because
otherwise it would simply be a matter of praying for in the complaint
that somebody died and automatic P25,000 should be awarded as
temperate damages. That is not allowed under the Civil Code on what
may be awarded for wrongful death. There is death indemnity, loss of
earning capacity, moral damages and even exemplary damages. You
still have to testify, it is not automatic.
Summary. If the claims proven for hospitalization, wake or burial are
greater than P25,000, then the greater amount should be awarded. If
the claims proven is less than P25,000, the amount to be awarded will
be P25,000. If the claims are not proven by any receipts at all, but the
court can infer some pecuniary loss, the amount to be awarded is still
P25,000. Therefore, you need to give basis to allow the court to infer
that indeed there is pecuniary loss by way testimony.
Case: Adriano vs. Lasala. October 9, 2013.
The owners of the buildings unilatreally terminated their services.
Indisputably, respondents in this case suffered pecuniary loss because
of the untimely termination of their services for no cause at all. As
there is no proof capable of ascertaining the actual loss, the CA
rightfully awarded temperate damages, in lieu of actual damages. The
Court finds the amount of P200,000.00 by way of temperate damages
as just and reasonable.
Again pwede gamay, P25,000 and pwede dako.
Case: Gonzales vs. Casureco. March 2013.
CASURECO is an electricity provider. It unreasonably refused its
electric services to the petitioners. There was already a finding of their
refusal. The petitioners asked for damages, presenting a listing
representing transportation expenses and gasoline but no receipt. This
was in a span of seven years going to and from Casureco trying to
forestall the disconnection of electricity. Even if the pecuniary loss
suffered by the claimant is capable of proof, an award of temperate
damages is not precluded. The grant of temperate damages is drawn
from equity to provide relief to those definitely injured. Therefore, it
may be allowed so long as the court is convinced that the aggrieved
party suffered some pecuniary loss. It can be big and so big and can
be so and so small. In this case there was an award of 3T.
Remember in this case, you cannot apply the P25,000 or actual rule.
Here what was awarded was merely P3,000. (nikaso paka?)
Case: Bacolod vs. People.
He was found guilty and was ordered to pay the value of the house.
However, nobody quite knows the value of a house, because receipts
may not have been kept. The court does not expect that the value of a
house can really be proven. Consequently, the Court holds that the
amount of P500,000.00 in the form of temperate damages is
reasonable considering that the dwelling of the Spouses Cogtas had
been completely burned down.
Again pwede gamay pwede dako. Depending on the factual
antecedents behind the award of temperate damages.
Nominal vs. Temperate Damages
Case: People vs. Hammer G.R. No. 147836. December 17,
2002
Theres a usual confusion between nominal damages and temperate
damages. This is a case where there is no proof of funeral expenses
that was given. If you read it in a problem, perhaps in the bar exams,
because of the cases weve discussed, it pertains to temperate
damages.
The prosecution failed to present any receipt to prove the amount of
actual damages, other than the self-serving testimony of Teresita
Castillo, widow of Romeo Castillo. For lack of evidentiary basis, the
Court is correct in not awarding the same. It being clear, however,
that the heirs of Romeo Castillo really incurred funeral expenses, they
are hereby awarded the amount of P10,000.00 by way of nominal
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damages. This award is adjudicated so that a right which has been
violated may be recognized or vindicated, and not for the purpose of
indemnification. Nonetheless, the civil indemnity of P50,000.00 is
affirmed, in line with our prevailing jurisprudence.
SC is saying that this is nominal damages when as we discussed, this
should be temperate damages.
Case: Sumalpong vs. CA. G.R. No. 123404. February 26, 1997
There is no room to doubt that some species of injury was caused to
the complainant because of the medical expenses he incurred in
having his wounds treated, and the loss of income due to his failure to
work during his hospitalization. However, in the absence of competent
proof of the amount of actual damages, the complainant is entitled
only to nominal damages.
Normally, what would be awarded for loss of earning capacity? Actual
damages. But here the SC awarded nominal damages. What SC is
saying is that there is a specie of injury which warrants the award of
nominal damages.
Case: Soliven Realty vs. Ong. January 26, 2007.
Nominal damages are recoverable where the plaintiff has suffered
some injury the amount of which the evidence fails to show. Isnt that
a proper characterization of temperate damages, rather than nominal
damages? Although it is more general. If the amount of injury is not
determined, the award is temperate and not nominal.
Case: Manila Banking Corp. vs. IAC
This is the most confusing. Temperate or moderate damages are
proper not for indemnification of loss suffered but for the vindication
or recognition of a right violated or invaded. Isnt that the definition of
nominal damages? In this case, P5,000 as temperate damages was
awarded for attorneys fees.
So problemado ang SC sa pagsabot ug temperate ug nominal
damages.
Temperate Damages and Actual Damages Mutually Exclusive
One cannot be awarded together with the other. By nature these
classes of damages cannot be awarded in one case. If there is
pecuniary loss and it can been proven, then the court will award actual
damages as can be proven by the plaintiff. If there is pecuniary loss,
but it is of such nature that it cannot be proven with certainty by
material evidence, the court awards temperate damages.
If you award temperate, it precludes actual. If you award actual, it is
wrong to award temperate.
Exception!!!
Case: Ramos vs. CA. December 29, 1999. G.R. No. 124354.
Temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct
phases.
As it would not be equitable and certainly not in the best interests
of the administration of justice for the victim in such cases to
constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded
temperate damages are appropriate. The amount given as temperate
damages, though to a certain extent speculative, should take into
account the cost of proper care.
Having premised our award for compensatory damages on the amount
provided by petitioners at the onset of litigation, it would be now much
more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for
their loved one in a facility which generally specializes in such care.
They should not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the circumstances,
an award of P1,500,000.00 in temperate damages would therefore be
reasonable.
The actual damages awarded by the SC here was for the
hospitalization expenses. Ramos here was entered for surgery not
knowing that she is allergic to the anesthesia, so she became
comatose. From the time of the coma, the family spent for
hospitalization expenses. But the rehabilitation does not end there. So
the SC awarded the P1.5m as temperate damages. It is even higher
than the actual damages awarded. This is the exception. Remember
that temperate damages are moderate damages, it is in between
actual and nominal damages. But here the award for temperate
damages is greater than actual damages. Hospitalization expenses and
rehabilitation expenses.
Liquidated Damages
Article 2226. Liquidated damages are those agreed upon by the
parties to a contract, to be paid in case of breach thereof.
In actual damages, proof of pecuniary loss is required. For the other
forms of damages, no proof of pecuniary loss is required. But you still
have to testify, for moral damages physical suffering etc., for
temperate that there is pecuniary loss but cannot be proven. But for
liquidated damages, you need not prove that there was pecuniary loss
or actual injury, but merely the fact that the contract was violated.
Because liquidated damages are damages the amount of which the
parties designate during the formation of the contract for the injured
party to correct as compensation upon a specific breach
Example. Delay in performance of contract. Delay in delivery.
Construction contracts. Penalty for delay is liquidated damages.
The term liquidate came from (Medieval Latin) liquidat- 'made clear'.
As used in the Civil Code, liquidated damages means therefore
ascertained or already predetermined by the parties.
It is also referred to as a penalty clause. It is an accessory undertaking
to assume greater liability on the part of the obligor in case of breach
of an obligation.
Example. A hires B to construct house for P10m. The parties stipulate
that the house should be finished within 1 year from ground breaking.
In case B does not completes the house within the stipulated period, B
shall bay P5,000 per day of delay.
Functions of Liquidated Damages
Case: Atlantic Erectors vs. CA
A stipulation for liquidated damages is attached to an obligation in
order ensure performance and has a double function:
1. To provide for an amount of liquidated damages;
2. To strengthen the coercive force of obligation by the threat
of greater responsibility in the event of breach.
Similar to obligations with a penal clause.
Effects of Stipulation of Liquidated Damages
Case: Sps. Mallari vs. Prudential Bank. June 5, 2013.
The amount agreed upon already answers for damages suffered by the
creditor due to the breach. Proof of pecuniary loss is dispensed with.
The obligor would be bound to pay the stipulated amount of indemnity
without the necessity of proof on the existence and on the measure of
damages caused by the breach.
When liquidated damages is present, no need to prove actual
pecuniary loss. In fact, as a rule, you cannot even prove that you are
entitled to moral damages. Because at the start of the contract, the
parties stipulate that the limitation for damages claim against the other
is the amount of liquidated damages.
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Example: Homer hires Domeng to construct a commercial building for
20M, to be constructed not to exceed 18months. In case Domeng fails
to build it within the stipulated period, a penalty of 5% of the project
cost will be assessed for every month of delay. 1M is 5% of 20M so
every month of delay, the margin would be diminished. Domeng
finished it in 20 months. Homer demanded 2M as penalty and 1M as
unrealized profits which could have been obtained within 2 months
had the building been done. Hes asking for lost profits collected from
lease rentals for 2 months had the building been completed on time.
Domeng argued that he must prove the pecuniary cost of damages so
that he could recover liquidated damages.
Two contentions.
Is Homer correct in asking for 2M for liquidated damages and 1M for
lost profits? No! the provision of liquidated damages is deemed to
subsume any other claim because of the breach of the obligation
which may be attributed to the liquidated damage, provided there is
good faith because if there is bad faith, the effect is different. That is a
catch-all, hence including the lost profits. It has the effect of
preclusion for that specific breach.
Is Domeng correct in contending that Homer should prove by way of
specific proof the pecuniary loss that he suffered? No! Liquidated
damages is a form of compensation or substitute for damages in case
of breach of obligation. The obligor is obliged to pay the stipulated
amount without need proof of the existence and measure of damages
caused by the breach. No need to show proof because it is substituted
by the provision on liquidated damages. Do you need to prove that
there is damage? No. What needs to be proved is that there is breach
because it ipso facto by fact of the breach itself gives rise to the claim
for liquidated damages. It doesnt matter whether your actual loss is
below or above the amount stipulated. You are limited to the amount
stipulated. Case: PCIC vs. Petroleum Distributors and Services
Corp. April 18, 2012.
Requisites for the validity of liquidated damages stipulation
1. The amount of damages identified must roughly
approximate the damages likely to fall upon the party
seeking the benefit of the award.
At the beginning of the contract, youll never know how
much the damage will be or that if there would be delay or
breach. Therefore, in drafting the contract, it is enough that
it roughly approximates the damages.
2. The damages must be sufficiently uncertain at the time the
contract was made such that it would save both parties the
future difficulty of estimating damages.
Damages that are sufficiently uncertain may be referred to
as unliquidated damages and may be so categorized
because they are mathematically incalculable or is subject to
a contingency which makes the amount of damages
uncertain. If there is no specific amount, there has to be a
way of computing liquidated damages. Example. P5000/day
or 1%. It is at least ascertainable.
3. A precondition to the award is that there must be a breach
of the performance of the obligation. (J Plus Asia
Development Corporation vs. Utility Assurance Corp June
26, 2013) Only the fact of breach is required to be proved
not specific damage or injury. The law would presume that if
the condition is breached, there is damage.
Policy of Non-Interference
General Rule:
Ordinarily, the court cannot change the amount of liquidated damages agreed upon by the parties,
Article 1306. The contracting parties may establish such stipulations, clauses, terms
Article 1159. Obligations arising from contracts have the
force of law between the contracting parties and should be
complied with in good faith.
Exceptions:
1. Article 2227. Liquidated damages, whether intended
as an indemnity or a penalty, shall be equitably
reduced if they are iniquitous or unconscionable.
Example: A construction contract worth P20M and the
liquidated damage clause provides that in case there is delay
in the delivery of the completed building, all the money paid
to the contractor will revert back to the principal.
That cannot be done. Because that iniquitous or
unconscionable.
Compare that with Article 1229. Dealing with penal clauses.
Article 1229. The judge shall equitably reduce the
penalty when the principal obligation has been partly
or irregularly complied with by the debtor. Even if
there has been no performance, the penalty may also
be reduced by the courts if it is iniquitous or
unconscionable.
Same treatment, except that in Art. 1229, there are 2
reasons for reduction. Partial or irregular performance and
no performance at all.
Case: Urban vs. Insular Life August 28, 2009
Insular here engaged the services of Urban to construct a 6-
storey building for a period not to exceed 365 days at a
contract price of P38M. The court found Insular Life entitled
to Liquidated damages. Under the contract, the damages is
1/10 of 1% of the total contract price which is
38,885.00/day or over 11M for the entire time of delay from
October 1, 1991 to July 21, 1992 when Urban turned over
the building.
The CA found it exorbitant and reduced it to 2, 940,000,
roughly 10T per day of delay rather than P38k/day. The
reason of the CA is equitable considerations.
In the case of Filinvest, the penalty for the delay in the
completion of the project was P3,990,000.00 or P15,000.00
per day but the Court affirmed the reduction of said amount
to P1,881,867.66 considering that the project was already
94.53% complete and that Filinvest agreed to extend the
period of completion, which extensions Filinvest included in
computing the amount of the penalty. It makes sense. Why?
If you give extensions, you seem to have waived the
penalty. So if you want to enforce the penalty, do not give
any extensions.
In the present case, the factors considered by the Court of
Appeals were the absence of bad faith on the part of Urban
and the fact that the project was 97% complete at the time
it was turned over to Insular. In addition, we noted that
Insular is likewise not entirely blameless considering that it
failed to pay Urban P1,144,030.94 representing the balance
of unpaid change orders and to return the retention money
in the amount of P2,134,908.80, or a total of P3,578,939.74.
In other words, they are both creditors and debtors of one
another. Had Insular said amount to Urban upon demand,
the same would have been used by Urban to complete the
project, to purchase supplies, and to expedite the
completion
based
of on
thePrinciples
project. Under
of Freedom
the circumstances,
to Contract and
wethe
findObligatory F
that this omission by Insular justifies a further reduction of
the liquidated
and conditions
damages
as they
against
mayUrban,
deem convenient,
from P2.9M provided
to P1.9M.they are no
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 TORTS AND DAMAGES 2014-2015 3 MANRESA
Is the decision okay? The 1M award, since the CA already
made an offsetting, whatever liabilities that Insular had with
respect to Urban would also be deducted from it. Since the
court found that there was 1.1M representing the balance of
the cost of change of orders, it granted released to Urban
1.1 retention money but it means that in the CA decision
alone, Insular, the party not at fault, paid the 300T so that
when SC ordered the across the board reduction, Insular
was liable to pay 1.3M. Somehow, it erases the fact there
was no damages for delay. The SC practically nullified the
liquidated damages as if there was no delay. So kinsa ang
murag nidaog? Basically ang contractor.
Remember that the SC is infallible only because it is final. It
is not final because it is infallible.
Without integrity, intelligence is impunity. Without
intelligence is mediocrity. J
Case: Atlantic Erectors vs. CA October 11, 2012
Atlantic erectors here had an erectile disfunction. It failed to
erect a building within the date specified. As of the due date
of the controversy, the building was 62.7% complete and
the stipulation for liquidated damages provide that the
contractor is supposed to pay one-tenth of one percent
(1/10 of 1%) of the contract price per calendar day of delay
until completion, delivery and acceptance of the said works
by respondent to a maximum amount not to exceed ten
percent (10%). This is a good liquidated damages clause
and this is standard in the construction industry because it
limits the delay and the amount to be deducted and 10% is
usual in construction industry as retention fee.
Petitioner may be held to answer for liquidated damages in
its maximum amount which is 10% of the contract price.
While we have reduced the amount of liquidated damages in
some cases because of partial fulfillment of the contract
and/or the amount is unconscionable, we do not find the
same to be applicable in this case. Hence, we apply the
general rule not to ignore the freedom of the parties to
agree on such terms and conditions as they see fit as long
as they are not contrary to law, morals, good customs,
public order or public policy.
2. The breach of contract committed by the defendant is
not the one contemplated by the parties in agreeing
upon the liquidated damages, the law shall
determine the measure of damages, not the
stipulation.
Policy of non-interference! That is the general rule.
Whatever the parties agreed upon, the SC will not touch it.
The SC will not invalidate it. And therefore the lower courts
should also not invalidate it. The exception as we earlier
discussed is when in is iniquitous or unconscionable.
Another exception is when the breach of contract is not the
one contemplated by the parties. Example. In construction
contracts, the usual breach is delay. If the breach does not
refer to the delay or another obligation of the contract, it is
the law that will determine the measure of damages not the
stipulation because it is not intended for it.
Let say the breach was that in the construction contract, the
contractor warranted that the roof would Class A, but what
was used for the roofing is only Class C. that is not delay,
but it is a breach in the construction contract. And therefore
the liquidated damages clause under the contract only refers
only to delay, then you cannot claim for liquidated damages
for the use of substandard materials. Now, the law says that
even if you cannot charge for liquidated damages, the law
shall determine the measure for damages, not the
stipulation.
That is the time when you can recover actual damages,
moral damages, and etc. This is also the time that you can
collect both liquidated and actual damages. Let us say that a
breach was made which is subject to the liquidated damage
clause and another breach not subject to the liquidated
damage clause. This in effect is an exception to the principle
of preclusion. Remember that liquidated damages
substitutes for actual, moral or etc. But if there is a breach
that was not the one contemplated by the parties in the
stipulation, it is possible that you can receive liquidated
damages, together with the other kinds of damages.
Example: Homer asked Domeng to construct the building
and in case he delays, 5% of the project cost will be
assessed Domeng. Domeng was able to finish on time,
however, he breached another obligation in the contract
which is to secure a surety bond to secure performance of
his obligations. Homer demanded the payment of liquidated
damages. He cannot demand because it is an entirely
different damage altogether. The stipulation on liquidated
damages may not be applied.
3. When the claimant also did not faithfully comply with
the agreement.
There is mutual guilt between the claimant and the
defendant.
Case: Buenosenso Sy vs. CA August 17, 1983
Filinvest vs. CA 470 SCRA 260
Filinvest was not free of blame as it failed to pay the cost of
work actually performed by the contractor in the amount of
P1.8M, therefore the liquidated damages should be reduced.
The SC now will interfere with the freedom of the parties to
contract and stipulate for liquidated damages.
4. When the principal obligation has been partly or
irregularly fulfilled and the court can see that the
party demanding the penalty has received the benefit
of such irregular performance, the court is authorized
to reduce the penalty to the extent of the benefits
received by the party enforcing the claim. [Joes
Electrical Supply vs. Alto Electronics August 22,
1958]
This is an exception because for all intents and purposes, a
liquidated damage clause is a penal clause. A penal clause is
a liquidated damage clause.
Case: Joes Electrical Supply vs. Alto Electronics
August 22, 1958
There was a contract for supply of television sets. Joe
ordered 500 TV sets from Alto in two shipments of 250 sets/
shipment. It did not arrive so no delivery was made on the
second batch, suit was commenced against the defendant
claiming liquidated damages of 20% of the entire contract
price.
Where there is partial or irregular performance in a contract
providing for liquidated damages, it can be said, in view of
the foregoing cited provision of the Code, that the court may
mitigate the sum stipulated therein since it is to be
presumed that the parties only contemplated a total breach
of the contract.
In this connection, we believe that the 20 per cent liquidated
damages clause in the dealership agreement must have had
reference to a failure to comply with the terms of the entire
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agreement, that is to say, the delivery of 500 television sets
(in two shipments of 250 sets each) within the time provided
therein. To permit appellee to collect the same amount of
liquidated damages after more than half of the sets were
delivered and received, would amount to doubling the
stipulated damages in case none of the sets had been
delivered, and nothing in the contract warrants such a
possibility.
The SC here is not talking about a penal clause, but rather
of liquidated damage clause. In other words, the same
treatment is given by the SC for both penal clause and
liquidated damage clause. If you are saying it is a penal
clause, it is for penalty or to punish. If you are saying it is a
liquidated damage, then it is for insurance or insuring
compensation. The enforcement of the term would effect an
equitable order for specific performance. However, the court
sitting in equity would not enforce a term that would lead to
the unjust enrichment of the enforcing party. But in the
Philippines, the laws governing penal clause and liquidated
damages are practically the same, neither require proof of
actual damages. [Lambert vs. Fox]
OBLICON Provisions
Article 1226. In obligations with a penal clause, the penalty
shall substitute the indemnity for damages and the payment
of interests in case of noncompliance, if there is no stipulation
to the contrary. Nevertheless, damages shall be paid if the
obligor refuses to pay the penalty or is guilty of fraud in the
fulfillment of the obligation.
As what we have discussed, its the same as liquidated damages. Its
supposed to subsume all damages, indemnity for damages or interest
in the proper case unless theres a stipulation to the contrary.
Nevertheless, damages shall be paid if the obligor refuses to pay the
penalty or employed fraud in the fulfilment of the obligation. Meaning,
youre already assessed penalty, you cannot pay. You can still be held
liable for other types of damages. It will no longer be subsumed
because it is an entirely different breach altogether. Non-payment and
non-performance are different, or if there is fault in the fulfilment of
the obligation. There can be double penalty. The penalty may be
enforced when it is demandable in accordance with the provision of
this code.
Article 1227. The debtor cannot exempt himself from the
performance of the obligation by paying the penalty, save in
the case where this right has been expressly reserved for him.
Neither can the creditor demand the fulfilment of the
obligation and the satisfaction of the penalty at the same
time, unless this right has been clearly granted him. However,
if after the creditor has decided to require the fulfilment of the
obligation, the performance thereof should become impossible
without his fault, the penalty may be enforced.
Payment of penalty, not a substitute to performance unless there is a
stipulation. Creditor cant ask for both performance and payment of
penalty at the same time unless theres a stipulation. If after the creditors decided to requireequitably
Article 1228. Proof of actual damages suffered by the creditor
is not necessary in order that the penalty may be demanded.
Same thing with liquidated damages, no proof of damage is required,
only needed is to prove the breach.
Article 1229. The judge shall equitably reduce the penalty
when the principal obligation has been partly or irregularly
complied with by the debtor. Even if there has been no
performance, the penalty may also be reduced by the courts if
it is iniquitous or unconscionable.
Article 1230. The nullity of the penal clause does not carry
with it that of the principal obligation. The nullity of the
principal obligation carries with it that of the penal clause.
Same with liquidated damages, merely accessory. The accessory
follows the principal.
Penalty vs. Indemnity
In this jurisdiction, there is no difference between a penalty and
liquidated damages, so far as legal results are concerned. Whatever
differences exists between them as a matter of language, they are
treated the same legally. In either case the party to whom payment is
to be made is entitled to recover the sum stipulated without the
necessity of proving damages. Indeed one of the primary purposes in
fixing a penalty or in liquidating damages, is to avoid such necessity.
[Lambert vs. Fox]
Penalty, is in the nature of punishment, it is punitive in character.
Indemnity is in the nature of security or protection of loss or injury, in
the concept of insurance or guaranty. Liquidated damages can serve
as both indemnity or penalty.
Onerous surety vs. Gratuitous surety
One distinction. A compensated surety or an onerous surety is not
subject to the rule on strict construction. That the obligation of the
surety or guarantor cannot be made liable more than what he bound
himself for. The contract cannot be interpreted to make the liability of
the guarantor or surety greater than what he has stipulated for. That
is the rule of stricsissimi juris. But when you are an onerous surety or
compensated surety, that rule will not be applied to you, because in all
probability, you are the one who prepared the contract, hence a
contract of adhesion aside from the fact that you received
compensation for the contract.
In American law, it is only when the clause is a penalty that the courts
will reduce the stipulated damages which are excessive. While under
the new Civil Code, penalties and liquidated damages are dealt with
separately, nevertheless, the fundamental rules governing them still
remain basically the same, making them subject to reduction where
equity so requires. The reason is that in both cases, the stipulation is
contra bonos mores under article 1326. It is a mere technicality to
refuse to lessen the damages to their just amount simply because the
stipulation is not meant to be a penalty. An immoral stipulation is none
the less immoral because it is called an indemnity.
ART. 2247. Liquidated damages, whether intended as an
indemnity or a penalty shall be equitably reduced if they are
iniquitous or unconscionable.
Hence, there is no distinction between penalty and indemnity, both are
subject to reduction.
Summaries:
1. For liquidated damages, the proper basis for reduction is
unconscionability or inequitable.
2. For penal clause, the proper basis for reduction is partial
performance if there is partial performance. The judge shall
the fulfilment,
reducethe
theperformance
penalty when
thereof
the becomes
principal impossible
obligation without th
has been partly or irregularly complied with by the debtor.
However, even if there has been no performance, the
penalty may also be reduced by the courts if it is iniquitous
or unconscionable.
3. When asked in the bar for the distinction of penal clause vs.
liquidated damages is that - In terms of effect, there are no
practical differences. Whether treated as a penalty or an
indemnity, the treatment is the same.
4. In obligations with a penal clause, the general rule is that
the penalty serves as a substitute for the indemnity for
damages and the payment of interests in case of
noncompliance; that is, if there is no stipulation to the
contrary, in which case proof of actual damages is not
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necessary for the penalty to be demanded. There are
exceptions to the aforementioned rule, however, as
enumerated in paragraph 1 of Article 1226 of the Civil Code:
1) when there is a stipulation to the contrary, 2) when the
obligor is sued for refusal to pay the agreed penalty, and 3)
when the obligor is guilty of fraud. In these cases, the
purpose of the penalty is obviously to punish the obligor for
the breach. Hence, the obligee can recover from the former
not only the penalty, but also other damages resulting from
the nonfulfillment of the principal obligation.
5. Factors considered in fixing the amount of penalty: (sir: no
need to remember these)
a. the type, extent and purpose of the penalty;
b. the nature of the obligation;
c. the mode of the breach and its consequences;
d. the supervening realities;
e. the standing and relationship of the parties; and
f. the like.
EXEMPLARY DAMAGES
Article 2229. Exemplary or corrective damages are imposed,
by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or compensatory
damages.
Exemplary damages cannot never be awarded together with nominal
damages. It should always be awarded together with moral,
temperate, liquidated or compensatory damages. You cannot ask the
court only for exemplary damages by way of correction or example to
the public. Therefore, you must first prove to the court that you are
entitled to the other forms of damages before you can ask for
exemplary damages. But never together with nominal damages, it has
the effect of preclusion.
It comes from the word exemplum (Latin for "example", pl. exempla,
exempli gratia = "for example", abbr.: e.g.) is a moral anecdote, brief
or extended, real or fictitious, used to illustrate a point. Its also the
source of the Spanish word ejemplo meaning example.
Under the Civil Code, it is imposed for the public to refrain from the
same deplorable conduct. Thats why in American law its also called
punitive damages so that others will not follow you. Punitive Damages
in the US, Exemplary in UK. It is awarded not to compensate the
plaintiff but to reform or deter defendant and similar from pursuing
such court of action such as that damage made.
Case: Octot vs. Ybanez January 1982
Exemplary or corrective damages are imposed by way of example or
correction for the public good, in addition to the moral, temperate,
liquidated or compensatory damages. Such damages are required by
public policy, for wanton acts must be suppressed. They are an
antidote so that the poison of wickedness may not run through the
body politic.
Requisites:
1. They may be imposed by way of example or corrected only
in addition, among others, to compensatory damages, and
cannot he recovered as a matter of right, their determination
depending upon the amount of compensatory damages that
may be awarded to the claimant;
2. The claimant must first establish his fight to moral,
temperate, liquidated or compensatory damages;
3. The wrongful act must be accompanied by bad faith and the
award would be allowed only if the guilty party acted in a
wanton, fraudulent, reckless, oppressive or
malevolent manner.
How to Plead
No proof of pecuniary loss is required.
Article 2216. No proof of pecuniary loss is necessary in order
that moral, nominal, temperate, liquidated or exemplary
damages, may be adjudicated. The assessment of such
damages, except liquidated ones, is left to the discretion of
the court, according to the circumstances of each case.
It is only the court who will decide whether you are entitled to
exemplary damages and for whatever amount it deems proper. You do
not testify that you are entitled for exemplary damages, but you testify
on the basis for the award of exemplary damages. Example: wanton,
fraudulent, reckless, oppressive or malevolent manner in the breach of
the contract.
Case: Gregorio vs. Angeles December 21, 1989
Art. 2233. Exemplary damages cannot be recovered as a
matter of right; the court will decide whether or not they
should be adjudicated.
So also, "...the amount of the exemplary damages need not be
proved... In other words, the amount payable by way of exemplary
damages may be determined in the course of the trial. The plaintiff
(the petitioners in this case) could not have therefore predicted how
much exemplary losses they had incurred.
Plus it would be error to hold that there was failure to pay the proper
docket fees, to include exemplary damages. How would you know how
much will you be claiming for exemplary damages? You cannot
determine that. You can only determine that during trial upon the
determination of the judge. Though these damages are, under the Civil
Code, damages that can not be shown with certainty, unlike actual
damages, the plaintiff must ascertain, in his estimation, the sums he
wants, and the sums required to determine the amount of docket and
other fees.
The case at bar is different. It is, in essence, a demand for specific
performance, as a consequence of a contract of loan between the
parties. The demand for exemplary damages was obviously meant to
magnify the total claims, as is the usual practice, but the failure to
specify it is not lethal. The court can assess the docketing fees on the
basis of the actual damages sought.
However, the present rule now it the case of Ayala vs. Madayag.
Case: Ayala vs. Madayag January 30, 1990 Civil Procedure.
The amount of any claim for damages, therefore, arising on or before
the filing of the complaint or any pleading, should be specified. While it
is true that the determination of certain damages as exemplary or
corrective damages is left to the sound discretion of the court, it is the
duty of the parties claiming such damages to specify the amount
sought on the basis of which the court may make a proper
determination, and for the proper assessment of the appropriate
docket fees.
So make sure, that when file a case claiming for exemplary damages,
you should provide or specify the amount. The exception contemplated
as to claims not specified or to claims although specified are left for
determination of the court is limited only to any damages that may
arise after the filing of the complaint or similar pleading for then it will
not be possible for the claimant to specify nor speculate as to the
amount thereof.
Exemplary Damages merged with Moral Damages?
Case: Singson vs. Aragon January 27, 1953
The SC awarded P50k as moral and exemplary damages. Merged.
Remember that the basis for the award of moral damages is different
for the award of exemplary damages. It may not be the usual way of
awarding damages, however, if both are found by the court to be
proper to be awarded then its okay. Its just a matter of form. The
fact, however, that the amount of exemplary damages prayed for in
the complaint has not been specified does not necessarily mean that
the case is beyond the jurisdiction of the Municipal Court.
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Criminal Offenses
Article 2230. In criminal offenses, exemplary damages as a
part of the civil liability may be imposed when the crime was
committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid
to the offended party.
Article 2204. In crimes, the damages to be adjudicated may
be respectively increased or lessened according to the
aggravating or mitigating circumstances.
Aggravating circumstance in its generic sense. It can be ordinary
aggravating or qualifying aggravating. The presence of either one or
both should entitle the offended party to an award of exemplary
damages within the meaning of Art. 2230 of the Civil Code.
Suppose there are 2 aggravating circumstances and 5 mitigating
circumstances. There is no effect on the award of exemplary damages
because the law does not provide for the reduction of exemplary
damages upon the presence of mitigating circumstances.
Case: People vs. Amba September 20, 2001
We are therefore constrained not to award exemplary damages in this
case since no aggravating circumstances attended the commission of
the crime.
Suppose, there is no aggravating but a lot of mitigating. There is no
effect on the exemplary damages. Only for exemplary damages.
Mitigating circumstances has no effect whatsoever for exemplary
damages, and there can be no offsetting.
Quasi-Helix
In quasi-helix, exemplary damages may be granted if the defendant
acted with gross negligence. Gross negligence. Not mere negligence.
Article 2231. In quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence.
Exemplary damages are imposed not to enrich one party or impoverish
another, but to serve as a deterrent against or as a negative incentive
to curb socially deleterious actions.
Contracts and Quasi-contracts
Article 2232. In contracts and quasi-contracts, the court may
award exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.
Case: Tan vs. Northwest Airlines March 3, 2000
Where in breaching the contract of carriage the defendant airline is not
shown to have acted fraudulently or in bad faith, liability for damages
is limited to the natural and probable consequences of the breach of
obligation which the parties had foreseen or could have reasonably
foreseen. In that case, such liability does not include moral and
exemplary damages.
If there has been no bad faith, or did not act in wanton, fraudulent,
reckless, oppressive or malevolent manner, no award for moral and
exemplary damages.
Case: Prudential Bank vs. CA March 16, 2000
Banking cases. Extraordinary diligence and application of doctrine of
last clear chance apply to banks in their fiduciary capacity. The public
relies on the banks' sworn profession of diligence and meticulousness
in giving irreproachable service. The level of meticulousness must be
maintained at all times by the banking sector. Hence, the Court of
Appeals did not err in awarding exemplary damages.
The basis for the award in this case is the nature of the banking
sector, which is to exercise extraordinary diligence.
Case: Solidbank vs. Sps. Tan April 2, 2007
As to the award of exemplary damages, the law allows it by way of
example for the public good. The business of banking is impressed
with public interest and great reliance is made on the banks sworn
profession of diligence and meticulousness in giving irreproachable
service. For petitioners failure to carry out its responsibility and to
account for respondents lost check, we hold that the lower courts did
not err in awarding exemplary damages to the latter.
Labor Cases
Generally, if the dismissal was effected in a wanton, fraudulent,
reckless, oppressive, or malevolent manner, there is liability for
exemplary damages.
Article 2232. In contracts and quasi-contracts, the court may
award exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner.
Case: Lirag Textile vs. CA April 14, 1975
The act was attended with bad faith and deceit because said petitioner
made false allegations of a supposed valid cause knowing them to be
false, thus making itself liable for payment of actual, moral and
exemplary damages. When the dismissal constitutes bad faith or fraud,
or oppressive to labor, contrary to morals, customs or public policy. If
it is tainted with unfair labor practice.
Article 2234. While the amount of the exemplary damages
need not be proved, the plaintiff must show that he is entitled
to moral, temperate or compensatory damages before the
court may consider the question of whether or not exemplary
damages should be awarded. In case liquidated damages have
been agreed upon, although no proof of loss is necessary in
order that such liquidated damages may be recovered,
nevertheless, before the court may consider the question of
granting exemplary in addition to the liquidated damages, the
plaintiff must show that he would be entitled to moral,
temperate or compensatory damages were it not for the
stipulation for liquidated damages.
Remember that exemplary damages can only be awarded in cases
where other forms of damages is also awarded. This means that
exemplary damages cannot be awarded alone, it has to be in addition
to the other forms of damages.
Special Rule on Liquidated Damages
Take note of the special rule relating to liquidated damages. Because
in awarding liquidated damages, it substitutes the other forms of
damages. Normally, if you award liquidated damages, you should not
anymore award exemplary damages. But here, in case liquidated
damages have been agreed upon, despite no proof of loss is necessary
in order that such liquidated damages may be recovered, nevertheless,
before the court may consider the question of granting exemplary
damages in addition to liquidated damages, the plaintiff must show
that he would be entitled to moral, temperate or compensatory
damages were it not for the stipulation for liquidated damages.
Therefore, there would be no effect of preclusion. That is the special
rule on liquidated damages.
Waiver of Exemplary Damages
Article 2235. A stipulation whereby exemplary damages are
renounced in advance shall be null and void.
In advance. Meaning there can be no waiver in prospective direction.
But in can be done in a backward direction, such in the case of labor.
The rationale of the rule is
Article 1171. Responsibility arising from fraud is demandable
in all obligations. Any waiver of an action for future fraud is
void.
Remember that the basis of exemplary damages is fraud, and hence
you cannot waive future exemplary damages as it is tantamount to
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waiver of future fraud which is void. Hence wanton, fraudulent, parties by agreeing to the stipulation or there are
reckless, oppressive and malevolent acts cannot also waived in other violations justifying the moral damages.
advance for the same reason provided for under Article 1171.
Nominal Damages with: (G.R. precludes the award of any
DETERMINING PROPER CO-EXISTENCE OF DAMAGES
other kind of damage)
Actual Damages with:
Moral NO.
Moral YES, that is the usual case
Exception: Yes. If predicated on a different
Exemplary YES, no effect of preclusion. violation or a different source of obligation where
moral damages can be awarded. (sumalpong
Nominal NO, Vda de Medina vs. Cresencia, 1956 case)

Exception: Yes. The cake case, Francisco vs.
Ferrer
Rationale: Actual has monetary basis, nominal has
monetary basis also.
Exemplary NO, (Article 2234 expressly excludes nominal
damages, the only kind of damage excluded)
inclusio union exclussio est alterius
Nominal only YES. (Saludo case, no due process in labor cases)

Temperate NO, basis is the same, pecuniary loss. (e.g. 25T or
actual damages)
Exception: Yes. Ramos case, medical malpractice.
Actually spent money, and future costs.
DIFFERENT PHASES is the basis. It can be
awarded even bigger than actual damages.
Temperate NO. (Cititrust case)
Exception: Yes, Francisco, actual and nominal
(What if the receipt of the cake was lost but
clearly they paid? As long as its pecuniary loss is
suffered, and you can prove with reasonable
certainty)

Actual only YES. (e.g. collection of sum of money only)
Liquidated NO, because liquidated damages substitutes for
everything.
Exception: YES. If the breach is not the one
contemplated by the parties in agreeing to the
stipulation, hence a different breach.
Actual YES. (Francisco case, cost of the cake and the
nominal damages)
Liquidated NO. Liquidated and Nominal both have the effect
of preclusion. Liquidated is already a recognition
or vindication of a right that is breached.
Temperate Damages with:

Moral Damages with: Moral YES. (Sumalpong case) Different bases and
awards.
Moral only YES. (e.g. Defamation of character)
Exemplary YES. (always with other forms except nominal)
Exemplary YES. (bestfriends)
Nominal NO, incompatible with other damages according to
Nominal NO, nominal damages has the effect of precluding Cititrust case
other forms of awards of damages. They have the
same basis, recognition or vindication of a right. Exception: Yes, Francisco cake case
Awarding moral damages is already the vindication
of the right. Temperate YES.

Exception: Yes. If the award is predicated on a Actual NO, same basis

different violation or source of obligation such as
Exception: Yes, Ramos case. (present and future
in Sumalpong vs. CA nominal damages and
expenses)
moral damages for the scarification of his body
(and loss of earning capacity)
Liquidated NO. (substitutes everything)

Temperate YES, Villanueva and Abrazaldo case (funeral cases

Exception: Yes, if the basis of the breach is
of 25T worth of damages)
different from that stipulated or violation has a
different source.
Actual YES, since cousins with Temperate.

Liquidated NO, It subsumes all other damages.

Liquidated Damages with:

Exception: Yes, liquidated is based on Breach. If
the breach is not the one contemplated by the
Moral, Temperate, Actual

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NO. Liquidated substitutes everything else. Moral YES, constantly.

Exception: Yes. Theoretically if the breach is not Exemplary alone NEVER. No award of any damage, no exemplary.
the one stipulated by the parties or the violation is
surrounded by circumstances justifying the award Nominal NO. Effect of preclusion. Article 2234
of other damages. expressly excludes.

Exemplary YES. Article 2234. Also if the breach of the Actual YES.
contract is attended with wanton, oppressive and
abusive manner. But prove first that you are Temperate YES.
entitled to moral, temperate and actual.
Liquidated YES. (Article 2234 and special rule on
Nominal NO. Effect of preclusion is mutual. exemplary and liquidated damages,
prove entitled to actual, moral and
Exception: Yes. If the SC decides to vindicate a temperate damages)
right other than the breach of the contract
stipulated or the agreement.

Liquidated only YES. Ideal.

-END-

Exemplary Damages with:

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