2017 BAR

1. TRUE or FALSE – Explain your answers. Only the city or municipal mayor can file a civil
action to abate a public nuisance.

2. Jovencio operated a school bus to ferry his two sons and five of their schoolmates from
their houses to their school, and back. The parents of the five schoolmates paid for the
service. One morning, Porfirio, the driver, took a short cut on the way to school because
he was running late, and drove across an unmanned railway crossing. At the time, Porfirio
was wearing earphones because he loved to hear loud music while driving. As he crossed
the railway tracks, a speeding PNR train loudly blared its horn to warn Porfirio, but the
latter did not hear the horn because of the loud music. The train inevitably rammed into the
school bus. The strong impact of the collision between the school bus and the train resulted
in the instant death of one of the classmates of Jovencio’s younger son.
The parents of the fatality sued Jovencio for damages based on culpa contractual
alleging that Jovencio was a common carrier; Porfirio for being negligent; and the PNR for
damages based on culpa aquiliana.
Jovencio denied being a common carrier. He insisted that he had exercised the
diligence of a good father of a family in supervising Porfirio, claiming that the latter had
had no history of negligence or recklessness before the fatal accident.

(a) Did his operation of the school bus service for a limited clientele render
Jovencio a common carrier? Explain your answer. (3%)

(b) In accordance with your answer to the preceding question, state the degree of
diligence to be observed by Jovencio, and the consequences thereof. Explain your
answer. (3%)

(c) Assuming that the fatality was a minor of only 15 years of age who had no
earning capacity at the time of his death because he was still a student in high
school, and the trial court is minded to award indemnity, what may possibly be the
legal and factual justifications for the award of loss of earning capacity? Explain
your answer. (4%)

2016 BAR
1. With regard to an award of interest in the concept of actual and compensatory damages,
please state the guidelines regarding the manner of computing legal interest in the
following situations:

[a) when the obligation is breached and it consists in the payment of a sum of money like
a loan or forbearance of money; (2.5%)
 [b] when the obligation does not constitute a loan or forbearance of money. (2.5%)

Consider the issuance of BSP-MB Circular No. 799, which became effective on July 1,
2013.

2. Peter, a resident of Cebu City, sent through Reliable Pera Padala (RPP) the amount of
P20,000.00 to his daughter, Paula, for the payment of her tuition fee. Paula went to an RPP
branch but was informed that there was no money remitted to her name. Peter inquired
from RPP and was informed that there was a computer glitch and the money was credited
to another person. Peter and Paula sued RPP for actual damages, moral damages and
exemplary damages. The trial court ruled that there was no proof of pecuniary loss to the
plaintiffs but awarded moral damages of P20,000.00 and exemplary damages of P5,000.00.
On appeal, RPP questioned the award of moral and exemplary damages. Is the trial court
correct in awarding moral and exemplary damages? Explain.

3. Dr. Jack, a surgeon, holds clinic at the St. Vincent's Hospital and pays rent to the hospital.
The fees of Dr. Jack are paid directly to him by the patient or through the cashier of the
hospital. The hospital publicly displays in the lobby the names and specializations of the
doctors associated or accredited by it, including that of Dr. Jack. Marta engaged the
services of Dr. Jack because of recurring stomach pain. It was diagnosed that she is
suffering from cancer and had to be operated on. Before the operation, she was asked to
sign a "consent for hospital care," which reads:
"Permission is hereby given to the medical, nursing and laboratory staff of the St.
Vincent's Hospital to perform such procedures and to administer such medications and
treatments as may be deemed necessary or advisable by the physicians of this hospital for
and during the confinement."
After the surgery, the attending nurses reported that two (2) sponges were missing.
Later, Marta died due to complications brought about by the sponges that were left in her
stomach. The husband of Marta sued the hospital and Dr. Jack for damages arising from
negligence in the medical procedure. The hospital raised the defense that Dr. Jack is not its
employee as it did not hire Dr. Jack nor pay him any salary or compensation. It has
absolutely no control over the medical services and treatment being provided by Dr. Jack.
Dr. Jack even signed an agreement that he holds the hospital free and harmless from any
liability arising from his medical practice in the hospital.
Is St. Vincent's Hospital liable for the negligence of Dr. Jack? Explain your answer.

2015 BAR
1. A driver of a bus owned by company Z ran over a boy who died instantly. A criminal case
for reckless imprudence resulting in homicide was filed against the driver. He was
convicted and was ordered to pay P2 Million in actual and moral damages to the parents
of the boy who was an honor student and had a bright future. Without even trying to find
 out if the driver had assets or means to pay the award of damages, the parents of the boy
filed a civil action against the bus company to make it directly liable for the damages.
a. Will their action prosper? (4%)
b. If the parents of the boy do not wish to file a separate civil action against. the
bus company, can they still make the bus company liable if the driver cannot'
pay the award for damages? If so, what is the nature of the employer's liability
and how may civil damages be satisfied? (3%)

SUGGESTED ANSWER:
a. Yes, the action will prosper. The liability of the employer in this case may be
based on quasi-delict and is included within the coverage of independent civil
action. It is not necessary to enforce the civil liability based on culpa aquiliana
that the driver or employee be proven to be insolvent since the liability of the
employer for the quasi-delicts committed by their employees is direct and
primary subject to the defense of due diligence on their part. (Article 2176;
Article 2180)
b. Yes, the parents of the boy can enforce the subsidiary liability of the employer
in the criminal case against the driver. The conviction of the driver is a
condition sine qua non for the subsidiary liability of the employer to attach.
Proof must be shown that the driver is insolvent. (Article 103, Revised Penal
Code)

2. Sara borrowed PS0,000.00 from Julia and orally promised to pay it within six months.
When Sara tried to pay her debt on the gth month, Julia demanded the payment of interest
of 12o/o per annum because of Sara's delay in payment. Sara paid her debt and the interest
claimed by Julia. After rethinking, Sara demanded back from Julia the amount she had paid
as interest. Julia claims she has no obligation to return the interest paid by Sara because it
was a natural obligation which Sara voluntarily performed and can no longer recover. Do
you agree? Explain.

SUGGESTED ANSWER:

No, the case is not one of a natural obligation because even if the contract of loan is verbal,
the delay of Julia made her liable for interest upon demand by Sara. This is not a case of
a natural obligation but a civil obligation to pay interest by way of damages by reason of
delay. (Article 1956; Article 1169; Article 2209 Civil Code)

2014 BAR
1. A pedestrian, who was four (4) months pregnant, was hit by a bus driver while crossing the
street. Although the pedestrian survived, the fetus inside her womb was aborted. Can the
pedestrian recover damages on account of the death of the fetus? (1%)
 (A) Yes, because of Article 2206 of the Civil Code which allows the surviving heirs
to demand damages for mental anguish by reason of the death of the deceased.
(B) Yes, for as long as the pedestrian can prove that she was not at fault and the bus
driver was the one negligent.
(C) No, because a fetus is not a natural person.
(D) No, if the fetus did not comply with the requirements under Article 41 of the
Civil Code.

SUGGESTED ANSWER:

Correct Answer is letter D – Article 41 of the Civil Code requires that to be considered a
person, a fetus with an intrauterine life of less than seven months must survive for the full
twenty-four hours from complete separation from the mother’s womb.

2. Mabuhay Elementary School organized a field trip for its Grade VI students in Fort
Santiago, Manila Zoo, and Star City. To be able to join, the parents of the students had to
sign a piece of paper that reads as follows:
"I allow my child (name of student), Grade – Section, to join the school’s
field trip on February 14, 2014.
I will not file any claim against the school, administrator or teacher in case
something happens to my child during the trip."
Joey, a 7-year-old student of Mabuhay Elementary School was bitten by a snake
while the group was touring Manila Zoo. The parents of Joey sued the school for damages.
The school, as a defense, presented the waiver signed by Joey’s parents.
Was there a valid waiver of right to sue the school? Why? (4%)

SUGGESTED ANSWER:

No, there was no valid waiver of the right to sue the school. A waiver to be valid must have
three requisites 1) existence of the right; 2) legal capacity of the person waiving the right
and 3) the waiver must not be contrary to law, morals, good customs, public order or public
policy or prejudicial to a third person with a right recognized by law. In the case
presented, the waiver may be considered contrary to public policy as it exonerates the
school from liability for future negligence. The waiver in effect allows the school to not
exercise even ordinary diligence.