Torts and Damages-reviewer

Torts & DamagesAUF School of Law Atty. Saben C. Loyola

CHAPTER 1GENERAL CONSIDERATIONS

Torts – (Fr) torquere; to twist– common law: unlawful violation of private

right, not created by contract, and which gives rise to an action for damages.

– An act or omission producing an injury to another, without any previous legal relation of which the said act or omission may be said to be a natural outgrowth or incident.

– Private or civil wrong or injury, other than breach of contract.

– Can be based on all 5 sources of obligation as enumerated in Art. 1157, NCC

– genus; involves any violation of a right

Classes of torts:• Intentional torts – conduct where the

actor desires to cause the consequences of his acts or believes that consequences are substantially certain to result from it. ◦ Battery, assault, false imprisonment,

defamation, invasion of privacy, interference of property

• Negligence – voluntary acts or omissions which result in injury to another without intending to cause the same. The actor fails to exercise due care in performing such acts or omissions

• strict liability – the person is made liable independent of fault or negligence upon submission of proofs of certain facts.

Philippine Tort Law• Obligations based on law & quasi-delict• Sources

◦ New Civil Code▪ Roman Law▪ Spanish▪ French▪ Anglo-American Law

• Scope And Applicable Laws ◦ the Code Commission uses the word

“quasi-delict” instead of torts because torts in Angle American law is much broader than the Spanish-Philippine

concept of obligations arising from non-contractual negligence.

◦ Intentional acts (considered torts in Anglo American law) are intended to be governed by the RPC in the Philippines

Art. 19, 20, & 21 of the NCC enlarge the concept of tortious acts and embody in our law the Anglo-American concept of tort. They are “catch-all” provisions that serve as basis for any imaginable tort action.

Art. 20 is the general sanction for all other provisions of law which do not especially provide their own sanctions and is broad enough to cover all legal wrongs which do not constitute violation of contract.

• Defamation• fraud• physical injuries• violation of constitutional rights• negligence• interference with contractual relations• violation of privacy• malicious prosecution• product liability• strict liability for possession of animals• abuse of right (Art. 19, NCC)• acts which violate good morals and

customs (Art. 21, NCC)

Art. 1902 of the old Civil Code covers the broad concept of torts prior to the NCC.

Art. 2176 of NCC covers quasi-delict, which as observed by the SC in numerous cases includes intentional acts.

Culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or negligent.

Purposes of Tort Law:General purpose: Protect different interests in the society, specifically to:

• provide a peaceful means for adjusting the rights of parties who might otherwise take the law in their hands

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• deter wrongful conduct• encourage socially responsible behavior• restore the injured parties to their original

condition, insofar as that law can do this, by compensating them for their injury.

• Reduce the risks and burden of living in the society and to allocate them among the members of the society

The study of law of torts is therefore a study of the extent to which the law will shift from the person affected to the shoulder of him who caused the loss.(Wright, Cases on Law on Torts, p.1)

Although tort law is mainly concerned with providing compensation for personal injury and property damage caused by negligence, it also protects other interests such as reputation, personal freedom, enjoyment of property, and commercial interests.

Fundamental principles:These purposes of tort law are sought to be achieved in the pursuit of fundamental principles upheld under the NCC.

EQUITY & JUSTICE• NCC upholds the “spirit that giveth life

rather than the letter that killeth”• Art. 21 & 26 of NCC• justice and equity demand that persons

who may have damaged by the wrongful or negligent act of another are compensated.

• Acting with justice involves the duty to indemnify for damages caused under Arts. 20,21,28,27; to indemnify by reason of unjust enrichment under Arts. 22 & 23; and to protect the weaker party under Art. 24

• “the precepts of law are these, to live honestly, not to injure others, and to give each one his due.”

• “Justice is a steady and unceasing disposition to render every man his due.”

• 2 levels of justice◦ social

▪ distributive – address the allocation of social goods and bads• concern of our democratic

institutions▪ retributive – sanctions or penalties

that are applied to those who engage in cetain kinds of antisocial behavior

◦ individual▪ compensatory – a person who

wrongfully inflicts harm on another or that person's property must repay or repair the damage

▪ commutative – fairness of a private bargain or exchange

• equity is defined as justice according to natural law and right.◦ Justice outside legality◦ invoked in justifying the rule regarding

mitigation of liability if the plaintiff was guilty of contributory negligence

DEMOCRACY• democracy being more than a mere form of

government, affecting as it does, the very foundations of human life and happiness, cannot be overlooked by an integral civil code.

• Art. 32 provides for independent civil actions for damages against any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates, or in any manner impedes or impairs the civil rights and liberties of another person.

RESPECT FOR HUMAN DIGNITY • Art. 26 and the provisions on moral

damages are included in order to remedy defects in old CC in so far as it did not properly exalt human personality.

• The touchstone of every system of laws, of the culture and civilization of every country, is how far it dignifies man.

Justification of Tort Liability: in cases of non-contractual obligations, it is the wrongful or negligent act or omission itself which creates the vinculum juris whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the parties.

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• Moral perspective ◦ tort liability may be justified because

the conduct is considered moral wrong.◦ The law of torts abounds in moral

phraseology it has much to say of wrongs, malice, fraud, intent and negligence. Hence, it may naturally be supposed that the risk of man's conduct is thrown upon him as a result of some moral shortcomings.

◦ Ubi jus ibi remedium (there is no wrong without remedy)

◦ moral turpitude was considered the outstanding though not exclusive principle of tortious liability.

• social and economic perspective ◦ liability may be provided for certain

tortious conduct because of the good that it will do to the society as a whole and its function of encouraging socially responsible behavior.

◦ Economic analysis of tort law focuses on the allocation of the risks of loss due to the destruction of property or injury to persons created by those activities.

Plaintiff:• Any person who had been injured by

reason of a tortious conduct can sue the tortfeasor.

• Plaintiff can be a natural person or juridical person.

• An unborn child is not entitled to damages. But the bereaved parents may be entitled to damages, on damages inflicted directly upon them. (Geluz vs. CA, 2 SCRA 802)

Defendant:• may be held liable even if he does not

know the identity of the plaintiff at the time of the accident.

• Can either be a natural or juridical being

The primary purpose of a tort action is to provide compensation to a person who was injured by the tortious conduct of the defendant.

Preventive remedy is available in some cases.

Alternative compensation schemes include insurance & work employees compensation

CHAPTER 2NEGLIGENCE

Kinds of Negligence:• culpa contractual (contractual negligence)• culpa aquiliana (quasi-delict)• culpa criminal (criminal negligence)

Quasi-Delict• used by the Code Commission to

designate negligence as a separate source of obligation because it more nearly corresponds to the Roman Law classification and is in harmony with the nature of this kind of liability.

• fault or negligence of a person who, by his acts or omission, connected or unconnected with, but independent from, any contractual relation, causes damage to another person. (Art. 2176 of the CC)

• covers not only those that are not punished by law but also those acts which are voluntary and negligent

• Requisites:◦ act or omission constituting fault or

negligence◦ damage caused by the said act or

omission◦ causal relation between the damage

and the act or omission◦ absence of contractual relation

between plaintiff and defendant. (no longer cited because an action based on quasi-delict can be maintained even if there is an existing contractual relation between the parties)

Delict• criminal negligence; covered by Art. 365 of

RPC• elements:

◦ offender does or fails to do an act◦ that the doing or the failure to do the

act is voluntary

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◦ that it be without malice◦ that material damages results from the

reckless imprudence◦ there is an inexcusable lack of

precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances

Contract• governed by CC provisions on Obligations

and Contracts particularly Arts. 1170-1174• by express provision Arts. 2178, 1172 to

1174 are applicable to quasi-delict cases

Culpa aquiliana vs Culpa contractual

Separate source of oligation independent of contract

definition

Foundation of liability is contract

Substantive and independent

characteristic

Incident of the performance of an obligation

There may or may not be a pre-existing contractual relationship

Party relationship

Pre-existing contractual relation

Defendant's negligent act or omission

Source of obligation

Breach of contract

Negligence of the defendant

What needs to be

proven

Existence of the contract and its breach

Prof of diligence is a valid defense

Availability of diligence

Proof of diligence is not a defense

Culpa aquiliana CrimesAffects private concerns Affects public interest

CC merely repairs damages by means of indemnification

RPC punishes or corrects criminal act

Includes all acts which any kind of fault or negligence intervenes

Punishes only those covered by penal laws

Liability of employer is direct and primary

Liability of employer is subsidiary

A single act or omission can give rise to 2 or more causes of action.

Whenever a contractual obligation can be breached by a tort, it is also possible that two persons are liable for such breach even of there is only one act or omission that causes the injury.

Art. 2194 applies when there are two persons involved.

Limitation imposed by law is the proscription against double recovery provided under Art. 2177 of the NCC.

Although an act can give rise to 2 causes of action, the plaintiff cannot recover twice for the same act or omission of the defendant.

Negligence – omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of time, persons, and place. (Art. 1173)

– omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, world do. (Black's Law Dictionary)

– failure to observe for the protection of interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demands. (Judge Cooley)

– want of care required by the circumstances (Valenzuela vs CA)

– failure to observe that degree of care, precaution and vigilance which the circumstances justly demands whereby such other person suffers injury. (Valenzuela vs CA)

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test of negligence:Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary prudent person would have used in the same situation?

Test of what a reasonable ordinary man requires tha application of the test of foreseeability

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 the conduct or guarding against the consequences.

Negligence is conduct which creates an undue risk of harm to others

State of mind of the actor is not so important; good faith or use of sound judgment is immaterial.

Motive is not material in negligence cases.

Only juridical fault is subject to liability and not moral fault.

Unreasonable risk means a danger which is apparent, or should be apparent, to one in the position of the actor

the determination of negligence is a question of foresight on the part of the actor of a probable harm to another person.

If there is a great probability and risk that damage will result, a person is negligent if he did not exercise due diligence in the face of such great probability.

Risk-benefit analysis – balancing the risk, in the light of the social value of the interests threatened, and the probability and extent of harm against the value of eh interest which the actor is seeking to protect, and the expedience of the course pursued.

– common sense intuitive interpretation (under rule in the Philippines)

– Considerations:• gravity of the harm to be avoided

• social value it seeks to advance• alternative course of action, dangers

and advantages to the person or property of the actor himself and to the others.

Degree of diligence required in ever situation:• Art. 1173, NCC – depends upon the nature

of the obligation and corresponds to the circumstances of person, time and place

• Art. 365, RPC – employment of the actor, degree of diligence, physical condition and other circumstances regarding persons, time, and place.

Circumstances to consider in determining the existence of negligence:

1. Time2. Place3. Emergency

• emergency rule - the law takes stock of impulses of humanity when placed in a threatening or dangerous situations and does not require the same standard of thoughtful and reflective care from persons confronted by unusual and often time threatening situations

4. Gravity of harm to be avoided• even if the odds that an injury will result

is not high, harm may still be considered foreseeable if the gravity of the harm to be avoided is great.

5. Alternative cause of action• if the alternative presented to the actor

is too costly, the harm that may result may still be considered unforeseeable to a reasonable man, more so if there is no alternative thereto.

6. Social value or utility of activity• the diligence which the law requires an

individual to observe and exercise varies according to the nature of the situation which he happens to be in, and the importance of the act which he has to perform.

• Any act which subjects an innocent person to an unnecessary risk is a

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negligent act if the risk outweighs the advantage accruing to the actor and even to the innocent person himself.

7. Person exposed to the risk• a higher degree of diligence is required

if the person involved is a child.

Paterfamilias – diligence of a good father of a family

• reasonable man; ordinary prudent man• one objective standard:

Circumstances To Prove Negligence➢ knowledge and experience of the actor

• the prudent man is expected to act according to the circumstances that appear to him at the time of the incident and he is not judged based on his knowledge or experience after the event.

• A reasonable man is also deemed to have knowledge of facts that a man should be expected to know based on ordinary human experience.

• A prudent man is expected to know basic laws of nature and physics.

➢ children◦ the action of the child will not

necessarily be judged according to the standard of an ordinary adult.

◦ The care and caution required of a child is according to his maturity and capacity only and this is to be determined in each case by the circumstance of the case.

◦ The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his acts, so as to make it negligence on his part to exercise due care and precaution in the commission of such act

◦ question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences

◦ if the child is under 9 years, it is no longer necessary to determine his maturity and capacity because he is conclusively presumed to be incapable of negligence.

◦ If the child is above 9-15, he is disputably presumed to be incapable of negligence but the opposing party can prove that the child is at such stage of maturity and capacity that he can already determine what a reasonable man would do under the same circumstances.

◦ liability of children▪ absence of negligence does not

necessarily mean absence of liability.

▪ A child who is 9 yrs. old can still be subsidiarily liable with his properties. (Art. 101, RPC)

▪ absence of negligence or intent on the part of the child may not excuse the parents from their vicarious liability under Art. 2180 of CC or Art. 221 of FC (because they are liable for their own negligence in the supervision of their child)

▪ child shall be answerable with his own property in an action against him if he has no parent or guardian.

▪ The effect of the circumstances that the actor is a child would vary if the child is the defendant-actor or the plaintiff

➢ physical disability◦ weakness of a person will not be an

excuse in negligent cases (common law)

◦ the Constitution mandates the creation of a special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration in the mainstream of the society. (Sec. 13, Art. XIII)

◦ the standard of conduct to which a disabled person must conform to avoid being negligent is that of a reasonable

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person under like disability.

➢ experts & professionals◦ when a person holds himself out as

being competent to do things requiring professional skills, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinary skilled in the particular work which he attempted to do. (Culion Ice, Fish & Electric Co., vs Phil Motors Corp.)

◦ an act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another. (Far Eastern Shipping Co. vs CA)

◦ the care required must be commensurate with the danger involved and skill employed must correspond with the superior knowledge of the business which the law demands.

➢ nature of activity◦ persons impose upon themselves

certain obligations and non-compliance therewith will be considered negligence.

◦ There are activities which by nature impose duties to exercise a higher degree of diligence. (e.g. banks & common carriers)

➢ intoxication◦ mere intoxication is not negligence, nor

does the mere fact of intoxication establish want of ordinary care.

◦ If one's conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober. (Wright vs. MERALCO)

◦ intoxication is of little consequence in negligence cases if it was not shown that such drunkenness contributed to the accident or that the accident would have been avoided had he been sober.

➢ Insanity◦ RPC: insane persons are exempted

from criminal liability. ▪ In case of lunatic and demented

person, they may still be liable with their property for the consequences of their acts, even though they be performed unwittingly

◦ Civil Code: The insanity of the person does not excuse him or his guardian from liability based on quasi-delict (Art. 2180 & 2182, NCC)

◦ bases for holding a permanently insane person liable for his torts▪ where 1 of 2 innocent persons must

suffer a loss it should be borne by the 1 who occasioned it.

▪ To induce those interested in the estate of the insane person who restrain and control him.

▪ The fear that an insanity defense would lead to false claim of insanity to avoid liability.

➢ Women◦ Dean Guido Calabrese: there should

be uniform standard of care for men & women

➢ Others◦ Violation of Rules & Statutes

▪ statutes & ordinance • violation of these will be either

treated as:◦ circumstance that establish

negligence◦ negligence per se (+)◦ circumstance that should

be taken as an evidence of negligence.

• the statute or ordinance becomes the standard of care or conduct to which the reasonably prudent person is held.

• Since negligence is a breach of legal duty, the violator of a

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statute is the negligent as a matter of law.

• When the legislature has spoken, the standard of care required is no longer what the reasonable prudent man would do under the circumstances but what the Legislature has commanded.

• Art. 2184 & 2185; presumption of the negligence of a motor driver;

▪ administrative rule • violation of this is not

negligence per se but it may be an evidence of negligence.

▪ private rules of conduct • same rules applies to rules

imposed by private individuals like an employer.

• The order or prohibition of an employer couldn't be of greater obligation than the rule of the Commission or Board and violation thereof is merely a possible evidence of negligence

▪ proximate cause • the rule that no liability attaches

unless it appears that there was a causal connection between the negligent act or omission charged and the injury is applicable where the act or omission complained of constitutes a violation of some statute or ordinance even though such violation constitutes negligence per se or prima facie evidence of negligence.

▪ negligence per se rule • statutes may also provide

specific rules of conducts to be observed in a given situation and may even impose penal sanctions in case the rule is not observed.

“The weight of authority is the violation of statute is negligence per se. although it is argued that the better rule is to consider these statutes or ordinances as circumstances that give rise to a presumption of negligence unless the law provides otherwise”

◦ Practice & Customs▪ “What is usually done may be

evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.”- Justice Holmes

▪ one who performs an act so inherently dangerous cannot, when an accident occurs, take refuge behind the plea that other have performed the same act safely (Yamada vs Manila Raillroad Co. [1915])

◦ Compliance With Rules & Statutes▪ non-compliance to statute is not

sine qua non of negligence▪ one cannot avoid a charge of

negligence by showing that the act or omission complained of was of itself lawful or not violative of any statute or ordinance.

▪ Compliance to a statute or ordinance is not conclusive that there was no negligence

STANDARD vs. SPECIFIC RULESrules – legal norms that are formal & mechanical

standards – flexible, context-sensitive legal norms that require evaluative judgments in their application; being followed in deciding negligence cases.

The courts in each case must balance all conflicting interests and consider all the circumstances.

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Degrees of Negligence• ordinary negligence • Gross negligence

◦ recognized in Art. 2231 of the Civil Code

◦ where there is want of even slight care and diligence. (Amadeo vs Olabarrieta)

◦ implying conscious indifference to consequences; pursuing a course of conduct which would naturally and probably result to injury;

◦ utter disregard of consequences◦ basis for the award of exemplary

damages

burden of proof – the duty of a party to present evidence on the facts in issue necessary to establish his claim or defenses by the amount of evidence required by law [preponderance of evidence]. (Sec. 1, Rule 131, Revised Rules of Court)

Presumption of Negligence• Art. 2184 & 2185; presumption of the

negligence of a motor driver;• Art. 2188; possession of deadly weapon• presumption of negligence may also

arise because of certain contractual relationship between the parties (example: contract of carriage)

Res Ipsa Loquitur• the thing speaks for itself• function: aid plaintiff in proving elements of

a negligence case by circumstantial evidence

• merely a mode of proof or procedural convenience, not a rule of substantive law

• requisites: ◦ the accident is of a kind which

ordinarily does not occur in the absence of someone's negligence

◦ it is caused by an instrumentality within the exclusive control of the defendant or defendants

◦ the possibility of contributing conduct which would make the plaintiff

responsible is eliminated. • Applied in conjunction with the doctrine of

common knowledge.• Theoretically based on necessity (some

evidence may not be available)

CHAPTER 3AFFIRMATIVE DUTIES

AND MISCELLANEOUS ACTIVITIES

1. DUTY TO RESCUE• duty to the rescuer

◦ we have an innate repugnance at seeing a fellow creature suffer (Rousseau)

◦ courts make defendants liable for the injuries to persons who rescue people in distress because of the acts or omission of said defendant.

◦ One who was hurt while trying to rescue another who was injured through negligence may recover damages.

• duty to rescue ◦ there is no general duty to rescue◦ a person is not liable for quasi-delict

even if he did not help a person in distress.

◦ Except: Art. 275, RPC; Sec, 55, RA 4136

◦ there are individuals who are required by law to take care another person, hence, they are legally compelled to rescue the other person under their care or custody

2. OWNERS, PROPRIETORS, & POSSESSORS-damage to any person resulting from the exercise of any of the rights of ownership is damage without injury (damnum absque injuria)• trespassers

◦ trespassers comes on to the premises at his own risk.

◦ The owner has no duty to maintain his property in such a danger-free state just to prevent trespassers from being injured

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▪ tolerated possession• owner is liable if the plaintiff

is inside his property by tolerance or by implied permission

▪ visitors owners of a building or premises owe a duty of care to visitors

• common carriers◦ common carriers may

be held liable for negligence to persons who stay in their premises even if they are not passengers.

◦ The person who purchases a ticket from the carrier must present himself at the proper place and in the proper manner to be transported.

▪ children and attractive nuisance rule• an owner is liable if he

maintains in his premises dangerous instrumentalities or appliances of a character likely to lure children in play if he fails to exercise ordinary care to prevent children of tender age from playing therewith or resorting thereto.

• Liability exists even if the child is a trespasser so long as he is not of sufficient age or discretion

• nuisance vs attractive nuisance◦ nuisance – by its very

nature, harmful to the community or to certain persons

◦ attractive nuisance – considered nuisance only because it attracts certain kind of persons -

children▪ state of necessity

• owners and possessors of real estate also owes duty to allow trespassers, who are in a state of necessity, to enter their properties

• Art. 432, CC & Art. 11, RPC• state of necessity – a

situation of present danger to legally protected interests, in which there is no other remedy than the injuring of another's also legally protected interest.

• use of property that injures others ◦ Art. 431, CC, “an owner cannot use

his property in such a manner as to injure the rights of others.

• liability of proprietors of buildings ◦ 3rd persons who suffered damages

may proceed only against the engineer or architect or contractor if the damage referred to in Art. 2190 & 2191 should be the result of any defect in construction.

3. EMPLOYERS AND EMPLOYEES• Employer

◦ failure of the employer to comply with the mandatory provisions of the Labor Code with regard the proper maintenance of the workplace or the provision on adequate facilities to ensure the safety of the employees may be considered negligence per se.

◦ degree of care owed by employers to their employees has been modified by Art. 1711 & 1712, NCC.

• Employee ◦ employees are bound to exercise

due care in the performance of their functions for the employers

◦ the existence of the contract constitutes no bar to the commission of torts by one against the other and the consequent

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recovery of damages

4. BANKS• business of banks is one affected with

public interest• a bank is under obligation to treat the

accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationships

5. COMMON CARRIERS• Arts. 1733 & 1755, NCC: carriers, by

reason of public policy and the nature of their business, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of passengers transported by them according to all circumstances of each case.

• Presumption: common carriers have been at fault or have acted negligently

• the case against common carrier is for the enforcement of an obligation from breach of contract.

6. DOCTORSthey are required to exercise utmost diligence in the performance of their work.

• standard of care ◦ medical malpractice – form of

negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of skill and care which is ordinarily employed by the profession generally under similar conditions and in like surrounding circumstances.

◦ General Practitioners vs Specialist▪ standard of care demanded

from a general practitioner is ordinary care and diligence in the application of his knowledge and skill in the practice of a profession.

▪ A specialist's legal duty to the patient is generally considered

to be that of an average specialist, not that of an average physician.

▪ Advances of the profession is taken into account in either case

• captain of the ship doctrine ◦ doctor as head of the surgical team◦ he has the responsibility to it that

those under him perfrom the task in the proper manner.

◦ The doctor is likened to a captain of the ship who must not only be responsible for the safety of the crew but also of the passengers of the vessel.

• Physicians are not warrantors ◦ difficulties and uncertainties in the

practice of the profession are such that no practitioner can guarantee results

• Proof ◦ there is a presumption that in

proper cases, the physician takes the necessary precaution and employs the best of his knowledge and skills in attending to his clients.

◦ Doctrine of res ipsa loquitur is limited to cases where the court from its fund of common knowledge can determine the standard of care required.

• liability of hospital and consultants ◦ in cases of consultants, the hospital

itself is not liable under Art. 2180, CC in the absence of employer-employee relationship

7. LAWYERS• conduct of lawyers is governed by the

Code of Professional responsibility• Canon 18• a lawyer is not bound to exercise

extraordinary diligence, but a reasonable degree of care and skill, having reference to the character f the business he undertakes to do.

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CHAPTER 4DEFENSES IN NEGLIGENCE CASES

***either partial defenses or complete defenses

1. PLAINTIFF'S CONDUCT AND CONTRIBUTORY NEGLIGENCEthe victim of negligence is likewise required to exercise due care in avoiding injury to himselfArt. 2179

• Plaintiff's own negligence as the proximate cause bars him from recovering anything

• contributory negligence of the victim has the effect of mitigating or reducing the damages that the victim may recover (Art. 2179 & Art. 2174)

• contributory negligence – conduct on the part of the injured party, contributing as legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.

• rule of comparative negligence – any rule under which the relative degree of negligence of the parties is considered in determining whether, and to what degree, either should be responsible for his negligence.◦ Apportionment of damages◦ pure type of comparative negligence –

plaintiff's contributory negligence does not operate to bar his recovery altogether but does serve to reduce his damage in proportion to his fault.

• Prevailing doctrine◦ Time of Civil Code: contributory

negligence◦ 1991: comparative negligence

• The court is free to determine the extent of the mitigation of the defendant's liability depending on the circumstances.

2. IMPUTED CONTRIBUTORY NEGLIGENCE• negligence is imputed if the actor is different

from the person who is being made liable. • Effect: mitigated liability• applicable where the negligence was on the

part of the person for whom the plaintiff is responsible

3.FORTUITOUS EVENTS• caso fortuito; an event which could not be

foreseen, or which though foreseen, was inevitable. (Art. 2181)

• a person is not liable if the cause of the damage was fortuitous (Art. 1174)

• characteristics of fortuitous event:◦ the cause of the unforeseen and

unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will

◦ must be impossible to foresee the event or if it is foreseen, it must be impossible to avoid

◦ occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner

◦ obligor must be free from any participation in the aggravation of the injury resulting to the creditor

• the negligence of the defendant which occurred with the fortuitous event or which resulted in the aggravation of the injury of the plaintiff will make him liable even if there was a fortuitous event.

• Nevertheless, even if the defendant is still liable, courts may equitably mitigate the damages if the loss, even in part, would have resulted in any event because of the fortuitous event

4.ASSUMPTION OF RISK• consistent with the maxim, volenti non fit

injuria• requisites

◦ plaintiff must know that the risk is present

◦ he must further understand its nature◦ his choice to incur it is free and

voluntary• plaintiff is excused from the force of the rule

if an emergency is found to exist or if the life or property of another is in peril or when

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he seeks to rescue his endangered property.

• kinds◦ express waiver of right to recover

▪ there is assumption of risk if the plaintiff in advance has expressly waived his right to recover damages for the negligent act of the defendant.

▪ A person cannot contract away his right to recover damages resulting from negligence; the same is contrary to public policy (Pleasantville Dev't Corp vs CA, 253 SCRA 10)

▪ waiver here is the waiver of the right to recover BEFORE the negligent act was committed.

▪ if the waiver was made after the cause of action has accrued, the waiver is valid and may be construed as condonation of the obligation.

◦ implied assumption▪ dangerous conditions

• a person who knowing that he is exposed to a dangerous condition, voluntarily assumes the risk of such dangerous condition may not recover from the defendant who maintained such dangerous conditions.

▪ contractual relations • by entering into a contractual

relationship freely and voluntarily where the negligence of the defendant is obvious, the plaintiff may be found to accept and consent to it, and to undertake to look out for himself and yo relieve the defendant of the duty.

• This is a defense of an employer in a tort case filed by his employee.

• There is assumption of risk involved in transportation of goods and passengers

(common carriage)▪ dangerous activities

• persons who voluntarily participate in dangerous activities assume the risk which are usually present in such activities.

• Awareness of the risk is not to be determined in a vacuum but must be assessed against the background of the skill and experience of the particular plaintiff.

▪ defendant's negligence • plaintiff is aware of the risk

created by the defendant's negligence, yet he voluntarily decided to proceed to encounter it.

5.DEATH• death of the defendant will not extinguish

the obligation based on quasi-delict.• The case will continue through the legal

representative who will substitute the deceased.

6.PRESCRIPTION• action based on quasi delicts prescribes in

4 years, counted from the date of the accident (Art. 1146)

• relations back doctrine – an act done at one time is considered by fiction of law to have been done at some antecedent period.

• Acquisitive prescription vs. extinctive prescription

7. INVOLUNTARINESS• believed to be a complete defense in a

quasi-delict case

CHAPTER 5CAUSATION

PROXIMATE CAUSE• cause which, in natural and continuous

sequence, unbroken by any efficient intervening cause, produces the injury, and

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without which the result would not have occurred.

• not necessarily the last link in the chain of events but that which is the procuring efficient and predominant cause.

• Not necessarily the sole cause of the accident

Remote cause – cause which some independent force merely took advantage of to accomplish something not the natural effect thereof.

Concurrent cause• intervening cause which merely cooperated

with the primary cause and which did nit break the chain of causation.

• The joint tortfeasors are solidarily liable

TESTS OF PROXIMATE CAUSE• “cause-in-fact test”

◦ it is necessary that there be proof that defendant's conduct is a factor in causing plaintiff's damage

◦ “but for” test or sine qua non test ▪ defendant's conduct is the cause in

fact of the injury under this test if the damage would not have resulted had there been negligence on the part of the defendant.

▪ This is the test commonly applied in Philippine jurisdiction

◦ substantial factor test ▪ the causes set in motion by the

defendant must continue until the moment of the damage or at least down the setting in motion of the final active injurious force which immediately produced or preceded the damage.

▪ Important in cases where there are concurrent causes

◦ NESS test ▪ the act or omission is the cause in

fact if it is a necessary element of a sufficient set

• policy tests of negligence◦ if the damage or injury to the plaintiff is

beyond the limit of the liability fixed by law, the defendant's conduct cannot be considered the proximate cause of the damage

◦ foresight perspective – the defendant is not liable for the unforseeable consequences of his act.▪ foreseeablity test▪ natural and probable consequences

test▪ natural and ordinary or direct

consequences test◦ directness perspective – makes the

defendant liable for damages which are beyond the risk▪ hindsight test▪ orbit of risk test▪ substantial factor test

the definition of proximate cause which includes the element of foreseeability is not consistent with the express provision of the New Civil Code (Art. 2202).

“natural and probable consequences of the act or omission complained for” (Art. 2202)

• involves 2 things: (Reyes & Puno)◦ causality

▪ damage would not have resulted without the fault or negligence of the defendant

◦ adequacy▪ the fault of the defendant would

normally result in the damage suffered by the obligee

moral damages & purely economic loss are recoverable under the Philippine jurisdiction on Torts cases. Moreover, the defendant can also be made liable even to those who may be considered unforeseeable plaintiffs.

CAUSE AND CONDITION• it is no longer practicable to distinguish

between cause and condition (Phoenix

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Construction vs IAC)• if no danger existed in the condition except

because of the independent cause, such condition was not the proximate cause

• if an independent negligent act or defective condition sets in the operation the circumstances which result in the injury because the prior defective condition, such subsequent act or condition is the proximate cause.

• Even if the defendant had only created a condition, he may be held liable for damages if such condition resulted in harm to either person or property.

• Types of dangerous conditions◦ inherently dangerous

▪ they retain their potential energy in full, even if they are stored or handled with utmost care.

◦ in a dangerous position ▪ like the case of Phoenix

Construction vs. IAC▪ includes cases where the object is

placed in an unstable position where the application of small force will permit the release of some greater force.

◦ defective products▪ the thing itself is not supposed to

be dangerous but it was negligently or erroneously produced or constructed

▪ i.e defective buildings

EFFICIENT INTERVENING CAUSE• one that destroys the causal connection

between the negligent act and injury and thereby negatives liability

• novuc actus interviens• there is no efficient intervening cause if the

force created by the negligent act or omission have either:◦ remained active itself◦ created another force which remained

active until it directly caused the result◦ created a new active risk of being acted

upon by the active force that caused

the result.• Equivalent to the pre-emptive cause

referred to in the NESS test of Professor Wright

• the test for efficient intervening cause is found in the nature and manner in which it affects the continuity of operation of the primary cause or the connection between it and the injury

• such intervening cause must be:◦ new◦ independent or one not under the

control of the official wrongdoer◦ one which by the exercise of

reasonable foresight and diligence, he should have anticipated and guarded against it

◦ it must break the continuity of causal connection between the original negligent act or omission and the injury so that the former cannot be said to have been the efficient cause of the latter

• a cause is not an intervening cause if it is already in operation at the time the negligent act is committed.

• Foreseeable intervening cause◦ cannot be considered sufficient

intervening causes.• A medical treatment is an intervening cause• the intervention of an unforeseen and

unexpected cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates with the independent cause in the resulting injury.◦ An unforeseen and unexpected act of a

3rd person may not be considered efficient intervening cause of it is duplicative in nature or it merely aggravated the injury that resulted because of the prior cause.

CONTRIBUTORY NEGLIGENCE• conduct on the part of the injured party,

contributing as a legal cause to the harm he has suffered, which falls below the

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standard to which he is required to conform for his own protection

• the reduction of the liability of the defendant cannot be more than 50% because such reduction by more than 50% is no longer consistent with a finding that the defendant's negligence was the proximate cause of the damage or injury

• if the defendant's negligence caused the injury but the plaintiff's negligence may have increased or aggravated the resulting damage or injury, the liability of the defendant should also be mitigated.

LAST CLEAR CHANCE• Requisites :

◦ Plaintiff was in a position of danger by his own negligence

◦ Defendant knew of such position of the plaintiff

◦ Defendant had the least clear chance to avoid the accident by exercise of ordinary care but failed to exercise such last clear chance and

◦ Accident occurred as proximate cause of such failure

• Views :◦ prevailing view

▪ 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.

◦ minority view▪ the doctrine is not applicable in the

jurisdiction where the common law doctrine of contributory negligence (which bars recovery) has been rejected

◦ 3rd view▪ the rule of comparative negligence

and last clear chance are not considered inconsistent in any way

• cases where doctrine is applied ◦ the doctrine is being applied for the

purpose of determining the proximate cause of the accident

◦ Picart vs. Smith; PBCom vs CA; • cases where doctrine is inapplicable

◦ when only the defendant was negligent◦ where the party charged is required to

act instantaneously; or if the injury cannot be avoided by the application of all means at hand

◦ if the defendant's negligence is a concurrent cause and which was still in operation up to the time the injury was inflicted. (joint tortfeasors or between defendants)

◦ when plaintiff, a passenger, filed an action against a carrier based on contract

◦ if the actor was not aware of the danger or risk brought about by prior fraud or negligent act

CHAPTER 6HUMAN RELATIONS: INTENTIONAL TORTS

CATCH ALL PROVISIONS:Art. 19, NCC

• believed to be a mere declaration of principles which is being implemented by other provisions

• abuse of rights, elements:◦ there is a legal right or duty◦ such right or duty was exercised in bad

faith◦ for the sole intent of prejudicing or

injuring another• sets certain standards which may be

observed not only in the exercise of one's rights but also in the performance of one's duties◦ to act with justice◦ to give everyone his due◦ to observe honesty and good faith

Art. 20, NCC• renders it impossible that a person who

suffers damage because another has violated some legal provision, should find himself without relief

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Art. 21, NCC• gives flesh to the provisions of Art. 19• acts contra bonus mores, elements

◦ there is an act which is legal◦ such act is contrary to morals, good

customs, public order or public policy◦ one with intent to injure

• breach of promise to marry ◦ by itself is not actionable unless there

are other acts that make it fall under Art. 19, 20, 21 of the Civil Code▪ financial damage▪ social humiliation caused to one of

the parties▪ when there is a moral seduction

• seduction by itself is an act which is contrary to morals, good customs, and public policy

• one is liable if he employed deceit, enticement, superior power or abuse of confidence in successfully having sexual intercourse with another.

• Desertion by a spouse ◦ if a spouse does not perform hir or her

duty to the other, he may be held liable for damages for such omission because the same is contrary to law, morals and good customs

◦ (Tenchaves vs Escano, GR L-19671, July 26, 1966)

• trespass and deprivation of property ◦ real property◦ personal property

• abortion and wrongful death ◦ a doctor who performs an illegal

abortion is criminally liable under Art. 259 of the RPC

◦ Geluz vs CA, 2 SCRA 802 [1961]• illegal dismissal

◦ employer has a right to dismiss an employee in the manner and on the grounds provided for

◦ if the dismissal is in non-compliance with the principles provided in Art. 19 and 21, the employer may be held

liable for damages◦ basis of liability: Arts. 1701 and Art. 21

of NCC◦ Globe Mackay vs CA, GR 81262,

August 25, 1989• malicious prosecution

◦ an action for damages brought by one against another whom a criminal prosecution, civil suit, or other legal proceedings has been instituted maliciously and without probable cause, after the termination of such prosecution, suit or proceeding in favor of the defendant therein

◦ the action terminated should be one begun in malice without probable cause to belive the charges thereon can be sustained and is instituted with the intention of injuring another and which terminates in favor of the person prosecuted.

◦ Elements;▪ malice

• acting with inexusable ntent to injure, oppress, vex, annoy or humiliate

▪ absence of probable cause• probable cause – existence of

such facts and circumstances as would excite the belief of the prosecutor, that the person charged is guilty of the crime for which he was prosecuted

▪ acquittal• presupposes that a criminal

information is filed in court and final judgment is rendered dismissing the case against the accused

• public humiliation ◦ plaintiff suffered humiliation through the

positive acts of the defendant directed against the plaintiff

An action can only prosper when damage, material or otherwise, was suffered by the plaintiff.

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CHAPTER 7HUMAN DIGNITY

Privacya)constitutional right to privacy

• rights included◦ right against unreasonable search and

seizures (Sec. 2, Constitution)◦ the right to privacy of one's

communication and correspondence (Sec. 3 (1), Constitution)

◦ right against self incrimination (Sec. 17, Constitution)

• the Court ruled that in passing laws and rules, adequate safeguards should be maintained regarding the people's expectancy of privacy.

• 2 part-test◦ whether by his conduct, the individual

has exhibited an expectation of privacy◦ whether this expectation is one that

society recognizes as reasonable• special laws

◦ Anti Wiretapping Law ◦ Secrecy of Bank Deposits Act◦ Intellectual Property Code

• violation of the constitutional right to privacy that causes damage to another makes the actor liable under Art. 32, NCC

b) Violation of the Right to Privacy as Independent Tort

• According to Prosser violations of privacy create 4 different kinds of tort.◦ intrusion upon plaintiff’s seclusion or

solitude◦ public disclosure of private

embarrassing facts◦ publicity that places one in a bad light ◦ appropriation, for the defendant’s

advantage of the plaintiff’s name or likeness.

• The right to privacy can be invoked only by natural persons because the basis of the right to privacy is an injury to the feelings and sensibilities of the party.

• Purely personal in nature and may be

invoked only by the person whose privacy is claimed to have been violated.◦ May be waived◦ ceases upon the death of the person.

• The standard to be applied in determining if there was violation of the right is that of a person of ordinary sensibilities. It is relative to customs of time and place and is determined by the norm of an ordinary person.

Violation of privacy recognized in our jurisdiction:

• intrusion ◦ protect a person's sense of locational

and psychological privacy◦ forms of intrusion:

▪ prying into the privacy of another's residence (Art. 26 (a), NCC)

▪ criminal trespass (Art. 280, RPC)◦ generally, there is no invasion of the

right to privacy when a journalist records, photographs, or writes about something that occurs in public places. Except: when such constitutes harassment or overzealous shadowing.

• publication of private facts ◦ the interest sought to be protected is

the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern

◦ elements: (American Jurisprudence)▪ there must be a public disclosure▪ the facts disclosed must be private

facts▪ the matter must be one which

would be offensive and objectionable to a reasonable person of ordinary sensibilities

◦ elements: (Cordero vs. Buigasco) ▪ publicity is given to any private or

purely personal information about a person

▪ such publication is without the

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latter's consent▪ regardless of WON such publicity

constitutes a criminal offense▪ publication made for profit or with

intent to gain aggravates the violation of the right.

◦ Newsworthiness▪ the claim of newsworthiness can be

sustained if the facts to be published are strange and unusual

◦ official proceedings▪ the publication of facts derived form

the records of official proceedings, which are not otherwise declared by law as confidential, cannot be considered tortious.

◦ official functions▪ the right to privacy belongs to the

individual acting in his private capacity and not to governmental agency or officers tasked with, and acting in, the discharge of public duties

• false light ◦ the interest to be protected in this tort is

the interest of the individual in not being made to appear before the public in an objectionable false position

False light DefamationGravamen is the embarrassment of a person being made into something he is not.

Gravamen is reputational harm

The statement should be made actually public.

Publication is satisfied if a letter is sent to a 3rd

person

Affects the relationship of the plaintiff with his environment

What is published lowers the esteem in which the plaintiff is held

• commercial appropriation of likeness◦ held to protect aspects of an

individual's identity from commercial exploitation

◦ unwarranted publication of a person's name or the unauthorized use of his photograph or likeness for commercial purposes

◦ right to publicity: protection of one's economic interest; they treat their names and likeness as property which cannot be encroached by another.

◦ 3 policy consideration▪ right to publicity vindicates the

economic interests of celebrities, enabling those whose achievements have imbued their identities with pecuniary value to profit from their fame.

▪ Right of publicity fosters thr production of intellectual and creative works by providing the financial incentives for individuals to expend the time and resources necessary to produce them.

▪ Right of publicity serves both the individual and societal interest by preventing wrongful misconduct, unjust enrichment and deceptive trade practices.

Interference With Family Life And Other Relations

• alienation of affection◦ consists of depriving one spouse of the

affection, society, companionship and comfort of the other

◦ the gist is an interference with one spouse's mental attitude toward the other and the conjugal kindness of marital relations resulting in some actual conduct which materially affects it.

Vexation and Humiliation• infliction of emotional distress

◦ elements:▪ the conduct of the defendant was

intentional or in reckless disregard of the plaintiff

▪ the conduct was extreme and outrageous

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• conduct that is so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in civilized society

▪ there was a causal connection between the defendant's conduct and the plaintiff's mental distress

▪ plaintiff's mental distress is extreme and severe

◦ emotional distress ▪ highly unpleasant mental reaction▪ parasitic damages on emotional

distress – depend on the existence of another tort instead of an independent tort for intentional infliction of emotional distress

Emotional distress DefamationPersonal in nature

Belongs to the reactive harm

Calls for the application of the relational harm principle

Publication not necessary

Publication is necessary

• Discrimination ◦ laws against discrimination

▪ Universal Declaration Of Human Rights

▪ International Convention On Economic, Social, And Cultural Rights

▪ International Convention On The Ekements Of All Forms Of Racial Discrimination

▪ Convention Agaisnt Discrimination In Education

▪ Convention Concerning Discrimination In Respect Of Employment And Occupation

▪ Art. 135, Labor Code▪ RA 7277, Magna Carta For

Disabled Persons▪ RA 8504 (discrimination Against

AIDS Victims)▪ RA 8972 (Discrimination against

solo parent)• sexual harassment

◦ RA 7877, Anti-Sexual Harassment Act of 1995

◦ policy: value the digity of every individual, enhance the development of its human resources, guarantee full respet for human rights, and uphold the dignity of works, employees, applicants for employment, students or those undergoing training

◦ may be committed by one having authority, influence or moral ascendancy over another in a work, education, or training setting▪ quid pro quo cases

• defendant condition employment benefits, onors, awards, or privileges on sexual favors

▪ hostile environment case• involve the allegation that

employees or students work/study in an offensive or abusive environment

• test: Won an ordinary prudent person would engage in the allegedly harassing conduct

• elements:◦ plaintiff was subjected to

sexual advances, requests for sexual favors, or other verbal or physical conduct of sexual nature

◦ that the defendant's conduct was unwelcome

◦ that the conduct was sufficiently sever or pervasive to alter the conditions of the victim's employment and create an abusing work environment

◦ punishment: imprisonment of 1mo. to 6mo. or a fine of 10k-20k

◦ 3 years prescriptive period

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CHAPTER 8TORTS WITH INDEPENDENT CIVIL ACTION

INDEPENDENT CIVIL ACTION• violation of civil rights• violation of political rights• defamation• fraud• physical injuries• neglect of public officers

examples:• Art. 32, NCC• Art. 33, NCC• Art. 34, NCC• Art. 135 of the Labor Code• Section 5 of the Anti-Sexual Harassment

Act

Concept:“The underlying principle under consideration is to allow the citizen to enforce his rights in a private action brought by him regardless of the action of the State Attorney. x x x while the State is the complainant in the criminal case, the injured individuals is the most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which particularly affects him.” - (Report, p. 46, Civil Code Commission)

2 views:• Tolentino

◦ the civil actions are ex-delicto (civil liability arising from delict)

• Caguioa◦ the tortious of the actions are more of

culpa aquiliana

ARTICLE 32• provides for an independent civil action for

violation of civil and political rights.• Rationale:

◦ because the Fiscal is burdened with too many caseso bacause he belived the evidence was insufficient, as as to disinclination to prosecute a fellow

public official, especially when he is of high rank, no criminal action was thus filed by the prosecuting attorney

◦ the requirement of proof beyond reasonable doubt often prevented the appropriate punishment

◦ direct and open violation of the Penal Code trampling upon the freedom named are not so frequent as those subtle,clever and indirect ways which do not come within the pale of penal laws

• normally involves intentional acts but can also be committed through negligence, thus good faith on the part of the defendant does not necessarily excuse such violation

• liability for violation of any of these rights are directed against public officers or employees and private individuals

• a person may also be liable whether his participation is direct or indirect.

• The doctrine of state immunity applies only if the acts involved are act done by officers in the performance of official duties within the ambit of their powers.

• Examples of violations:◦ due process◦ search and seizure

ARTICLE 33: DEFAMATION, FRAUD, and PHYSICAL INJURIES

• Defamation◦ invasion of the interests in reputation

and good name, by communication to others which tends to diminish the esteem in which the plaintiff s held, or to excite adverse feelings or opinions against him. (Prosser)

◦ publication of statement which tends to lower a person in the estomation of right-thinking members of society generally or which tends to make them shun or avoid that person

◦ liability is brought about by the desire to protect the reputation of every individual

◦ requisites:

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▪ it must defamatory ▪ it must be malicious

• prompted by ill-will or spite and speaks not in response to a duty but merely to injure the reputation of the person who claims to have been defamed

• malice in law or malice in fact▪ it must be given publicity

• communication to a single individual is sufficient

▪ the victim must be identifiable • includes natural and juridical

persons• groups libel – statements

directed against a fairly large group

• in our jurisdiction, the relatives of the deceased can file an action for damage to the reputation of the latter.

◦ a man's reputation is not the good opinion he has of himself, but the estimation in which others hold him.

◦ Kinds:▪ slander or oral defamation▪ libel or written defamation

◦ persons liable: (Art. 360, RPC)▪ any person who shall publish,

exhibit, or cause the publication or exhibition

▪ author or editor of the book or pamphlet

▪ editor or business manager of a daily newspaper, magazine, or serial publication

◦ every defamatory imputation is presumed to be malicious even if it be true (Art. 354, RPC)

◦ Defenses:▪ absolutely privileged matters

• Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged

from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. (Constitution)

▪ qualified privilege• a private communication made

by any person to another in the performance of any legal, moral, or social duty;◦ complaints against public

officials◦ report to a superior officer◦ allegations in pleadings◦ publication of pleadings◦

• a fair and true report, made in good faith, without any comments or remarks of any judicial, legislative, or other official proceedings which are not confidential in nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions◦ fair comment – when the

discretable imputation is directed against a public person in his public capacity, it is not necessarily actionable

• Fraud◦ elements of deceit (English Law)

▪ the defendant must have made false representation to the plaintiff

▪ the representation must be one of fact

▪ the defendant must know that the representation is false or be reckless about whether it is false

▪ the defendant must have acted on the false representation

▪ the plaintiff must have suffered

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damages as a result of acting on the representation

◦ includes the crime of Estafa under the RPC

◦ includes misrepresentation made by sellers and manufacturers

• Physical Injuries◦ include the crime of battery (an

intentional infliction of harmful or offensive bodily contact)

◦ includes bodily injuries causing death

ARTICLE 34: NEGLECT OF DUTY• intended to afford a remedy agaisnt police

officers who connive with bad elements, are afraid of them or are simply indifferent to duty

• the subsidiary liability of cities and municipalities, is imposed so that they will exercise great care in selecting conscientious and duly qualified policeman and exercise supervision over them in the performance of their duties as peace officers

CHAPTER 9CIVIL LIABILITY ARISING FROM DELICT

dual character of a crime:• offense against the State for the

disturbance of the social order• offense against the person injured by the

crime.

Art. 100, RPC. Every person criminally liable is also civilly liable.

ARTICLE 1161. Civil obligations arising from criminal offenses shall be governed by the penal laws, subject to the provisions of article 2177, and of the pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of this Book, regulating damages.

What gives rise to the civil liability is really the obligation of everyone to repair or to make whole the damage caused to another by reason of his act or omission, whether done intentionally or negligently and whether or not punishable by law.

Exceptions:• contravention of ordinance• violation of game laws• infraction of the rules of traffic when nobody

is hurt• treason• rebellion• espionage• contempt, etc.

The presence of civil liability in offenses is not determined by the fact that the crime is public or private.

Persons liable: (RPC & NCC)• principals• accomplices• accessories

“Art. 109. Share of each person civilly liable. — If there are two or more persons civilly liable for a felony, the courts shall determine the amount for which each must respond.

Art. 110. Several and subsidiary liability of principals, accomplices and accessories of a felony — Preference in payment. — Notwithstanding the provisions of the next preceding article, the principals, accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiaries for those of the other persons liable.

The subsidiary liability shall be enforced, first against the property of the principals; next, against that of the accomplices, and, lastly, against that of the accessories.

Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has been made shall have a right of action against the others for the amount of their respective shares.”

Each of the persons liable shall be subsidiarily liable for the other's share in case of the latter's insolvency.

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Civil liability includes restitution, reparation of the damages caused, and indemnification for consequential damages. (Art. 104, RPC; see Art. 105, 106, 107 and 111 of RPC)

Art. 2202 of the NCC provides that in crime and quasi-delicts, the defendant shall be liable for all the damages which are natural and probable consequences of the act or omission complained of.

Circumstances affecting civil liability:• JUSTIFYING CIRCUMSTANCES (Art, 11,

RPC)◦ make the act of the accused legal◦ exception: general rule will not apply to

persons who obtained benefit because he performed an act in a state of necessity. (Art. 101, RPC)

◦ civil liability when there is justifying circumstances is present only in the situation contemplated in paragraph 4 of Art. 11.

• EXEMPTING CIRCUMSTANCES (Art. 12, RPC)◦ exempt the person from punishment◦ no civil liability if

▪ the crime was committed by any person who while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.

▪ Crime was committed by any person who fails to perform an act required by law, when presented by some lawful or insuperable cause.

• MITIGATING CIRCUMSTANCES (Art. 13, RPC)◦ reduces the criminal liability

• AGGRAVATING CIRCUMSTANCES (Art. 14, RPC)◦ compels the court to impose the

penalty to the maximum provided by

law.

Modes to extinguish liability:• payment• loss of the thing due• condonation or remission of the debt• confusion or merger• compensation• novation• prescription

Effect of Death:• Death of the person liable after the final

judgment extinguishes the criminal liability but will not extinguish the civil liability. The obligation to make restoration and reparation for damages ad indemnification for consequential damages devolves upon he heirs of the person liable.

• Death of the accused before the final judgment relieves the accused of both criminal and civil liability arising from the criminal liability.◦ Aggrieved party in a libel or physical

injuries case (including homicide or murder) who initially opted to claim damages in the criminal case can file another case to enforce his claim under Art. 33, NCC

Pardon does not erase civil liability because it is not one of the grounds recognized by the civil code that extinguishes civil liability.

Civil liability arising from crime is impliedly instituted with the criminal action but a separate case may be filed to enforce the same.

• Civil action filed ahead of the criminal action

• filing of civil action has been reserved(in both case the civil action is dependent on the criminal action)

section 1 of Rule 111 of the 2000 Revised Rules on Criminal Procedures indicates that the action to enforce civil liability based on Arts. 2176, 32, 33, and 34 of NCC are not deemed instituted and what is deemed instituted only is the action to enforce

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civil liability arising from criminal liability.

The right to file an independent action is even available to the accused in the criminal case.

Prejudicial question• matter that may suspend the civil action

that is deemed instituted with the criminal case

• elements:◦ previously instituted civil action involves

an issue similar or intimately related to the issue raised in the criminal action

◦ the resolution of such issue determines whether or not the criminal action may proceed.

CHAPTER 10THE DEFENDANTS

Doctrine of Respondeat Superior – the liability is strictly imputed, the employer is liable not because of his act or omission but because of the act or omission of the employee; employer cannot escape liability by claiming that he exercised due diligence in the selection or supervision of the employee.GENERAL RULE: Vicarious liability in the Philippines is not governed by the doctrine of respondeat superior; employers or parents are made liable not only because of the negligent or wrongful act of the person for whom they are responsible but also because of their own negligence:

1) Liability is imposed on the employer because he failed to exercise due diligence in the selection or supervision of the employee2) Parents are made liable because they failed to exercise due diligence

EXCEPTION: Doctrine of respondeat superior is applicable in:

1) liability of employers under Article 103 of the RPC2) liability of a partnership for the tort committed by a partner

both natural and juridical persons may be held liable for quasi-delict.

Joint tort-feasors• their liability is solidary (Art. 2194, NCC)

◦ motor vehicle mishaps – owner is solidarily liable with his driver if the former who was in the vehicle, could have, by the use of due diligence, prevented the misfortune (Art. 2184)

◦ test of negligence: omission to do which the evidence of his own senses tell him he should do in order to avoid the accident.

Vicarious liability• a person is not only liable 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.

• Doctrine of imputed negligence• the person is being made liable not only

because of the negligent or wrongful act of the person for whom they are responsible but also because for their own negligence

• legal bases:◦ Civil Code: Art. 2180 to 2182 of NCC;

Art. 58, Child and Youth Welfare Code; Arts. 219, 221, and 236 of the Family Code

◦ Revised Penal Code: Arts. 101, 102 and 103

Parents and other person exercising Parental Authority

• the basis of their liability is the parental authority that they exercise over the minor children.

• The parents exercise their authority jointly and in the absence or death of either parent, the parent present shall continue exercising parental authority.

• The same parental authority is terminated upon adoption of the child and shall be vested in the adopters.

• In default of parents or a judicially appointed guardian, the ffg. shall exercise substitute parental authority◦ surviving grandparents

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◦ oldest brother or sister over 21 years of age

◦ child's actual custodian over 21 years of age

• with the enactment of the Family Code, the alternative obligation of parents under Art. 2180 is now inoperative. Both parents are primarily liable for the damages caused by their child

• parents or guardian are liable only if the minor is living in their company

• under Art. 101 of RPC, parents are primarily liable for the civil liability arising from criminal offense committed by their minor children under their legal authority or control who live in their company

• defense of due diligence of a good father of a family is a valid defense

• due care that parents and guardians are supposed to exercise is a question of foreseeability

• in guardianship, even if the ward is already of age, guardians have the same liability as persons exercising parental authority.

• Procedure for appointment of guardians is governed by Rule 92, Rules of Court

• special parental authority vs. substitute parental authority.

• Parents are held vicariously liable because they are the persons who are financially capable of satisfying any judgment obligation. (deep pocket principle)

Schools, Teachers and Administrators• Art. 218, Family Code: schools, 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 under their supervision, instruction, or custody.

• They are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor

• defense: due diligence of a good father of a family

• if the persons enumerated herein are made

liable, the parents are subsidiarily liable• responsibility and authority of the school

and other persons exercising special parental authority shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution.

• Art. 2180 of the Civil Code applied if the student is not a minor, apply Art. 218 of Family Code if the involved is a minor.

• Basis of liability may be:◦ negligence◦ contract

Employers• the responsibility of employers for the

negligence of their employees in the performance of their duties is primary

• Civil Code◦ Art. 2180 of the Civil Code provides

that the employer's liability is direct and primary▪ the employer can escape this

liability by proving that he exercised due diligence in the selection and supervision of the employee• formulating SOP, monitoring

their implementation, and imposing discipline for breaches thereof.

▪ presence of employer-employee relationship must be proven• control test – person for whom

the services are to be performed controls not just the result but also the means and manner to achieve such end or result

▪ if only the employer is sued, he may recover from the employee what he has paid or delivered in satisfaction of the claim. If only the employee is sued, no right of reimbursement accrues.

◦ it is not necessary that the employer is engaged in some kind of industry or work (Castillex vs. Vasquez)

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◦ the vicarious liability of the employer attaches only when the tortious conduct of the employee relates to, or is in the course of his employment▪ test: whether, at the time of the

damage or injury, the employer is engaged in he affairs or concerns of the employer, or independently, in that of his own

◦ presumption of negligence of the employer is only juris tantum and not juris et de jure

◦ for the presumption of negligence to operate, the negligence of the employee must first be established.

◦ Registered owner rule ▪ the person who is the registered

owner of a vehicle is liable for any damages caused by the negligent operation of the vehicle driver although the same was already sold or conveyed to another at the time of the accident.

▪ This rule had been applied to cases involving the enforcement of liability against an employer under Art. 2180, NCC even if the employer is not engaged in business.

▪ Exception: if the vehicle was stolen from or taken without the consent and knowledge of the registered owner.

▪ This rule applies when ever the persons involved are engaged in what is known as the “kabit system”• arrangement whereby a person

who has been granted a certificate of public convenience allows other persons who own motor vehicles to operate under his license, sometimes for a fee or percentage of the earnings.

• Revised Penal Code ◦ Art. 103, RPC, the liability imposed is

subsidiary◦ requisites

▪ employer is engaged in any kind of industry• industry – any department or

branch of arts, occupation or business especially one which employs such labor and capital and is a distinct branch of trade

▪ employee was convicted of the offense in the discharge of his duties• conviction is condition sine qua

non. If no criminal action was instituted, the employer's liability will nit be predicated on Art. 103, RPC

• the acquittal of the employee wipes out not just the employee's primary liability but the subsidiary liability as well

▪ employee is insolvent • insolvency - inability or the lack

of means to pay one's debt as they fall due

◦ the controlling view is that the subsidiary liability of the employer can be enforced in the same criminal case where the employee was convicted. All that is necessary is the filing of a motion for a subsidiary writ of execution

Innkeepers and Hotelkeepers• their liability is based on Art. 102 of RPC

Partnership• each partner is an agent of the other

partners and the partnership for acts done within the apparent scope of business of the latter.

• The partnership or every member of a partnership is liable for torts committed by one of the members acting within the scope of the firm's business though they do not participate in, ratify, or have knowledge of such torts.

• Test: WON the wrong was committed in behalf of the partnership and within the reasonable scope of its business.

• Vicarious liability is similar to the common

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law rule on respondeat superior

Spouses• Absolute Community of Property

◦ default marriage settlement◦ all the properties of the marriage are

jointly owned by the spouses◦ vicarious liability based on paragraph

(9), Art. 94, Family Code• Conjugal Partnership of Gains

◦ default marriage settlement prior to the effectivity of the Family Code

◦ pecuniary indemnities imposed upon the husband or wife are not chargeable against the conjugal partnership but against the separate properties of the wrongdoer.

• Regime of separation of property ◦ Art. 145, Family Code◦ each spouse shall own, dispose of ,

possess, administer and enjoy his or her own separate estate.

◦ Each spouse is responsible for his or her own obligation.

State• 5th paragraph of Art. 2180, NCC which is

limited to acts of special agents◦ special agent – one who receives

definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official.

Municipal Corporations• liability of municipal corps for damages

arising from injuries suffered by pedestrians from the defective conditions of roads is expressed in Art. 2189, NCC

• the article only requires that either control or supervision is exercised over the defective road or street.

Public officers• public officers who are guilty of tortious acts

are personally liable for their actions.• Section 38, Administrative Code of 1987

CHAPTER 11STRICT LIABILITY

strict liability• if one is made liable independent of fault,

negligence or intent after establishing certain facts specified by law.

• Can be committed even if reasonable care was exercised and regardless of the state of mind of the actor at that time.

• Liability without fault.

ANIMALS• Art. 2183, NCC

“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)”

FALLING OBJECTS• Art. 2193, NCC

“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)”

• the liability imposed is absolute; it does not indicate a presumption or admit of proof of care.

• The term “head of a family” is not limited to the owner of the building and it may even include the lessee thereof.

LIABILITY OF EMPLOYERS• Art. 1171, NCC

“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.”

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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.

• Anything that injures health, endangers life, offends the senses or produces discomfort to the community (Section 84, Code of Sanitation of the Phil.)

• protection against nuisance is a legal easement

• kinds ◦ public

▪ affects a community or neighborhood or any considerable number of persons although the extent of annoyance, danger or damage upon individuals may be unequal

▪ remedies• prosecution under the RPC• civil action for abatement

without judicial proceedings▪ a private person may file an action

on account of a public nuisance, if it is specially injurious to himself with the following requisites:• that demand be first made upon

the owner or possessor of the property to abate the nuisance

• that such demand has been rejected

• that the abatement must be approved by the district health officer and executed with the assistance of the local police;

• that the value of the destruction does not exceed P3k

◦ private▪ anything that is not included in the

foregoing

▪ remedies• civil action• abatement without judicial

proceedings• remove or destroy the thing

which constitutes the nuisance (must be with the assistance of the local police)

◦ nuisance per se▪ nuisance under any and al

circumstances◦ nuisance per accidens

▪ becomes nuisance under certain conditions and circumstances

• there is strict liability on the part of the owner or possessor of the property where a nuisance is found because he is obliged to abate the same irrespective of the presence or absence of fault or negligence.

• Private person or public official extraordinarily abating a nuisance shall be liable for damages in 2 cases:◦ if he causes unnecessary injury◦ if an alleged nuisance is later declared

by the courts to be not a real nuisance. • The action to abate a nuisance is

imprescriptible• it is believed that the only effect of estoppel

at most is that the private party who is so estopped may be deemed to have waived his or her rights to damages.

CHAPTER 12PRODUCT AND SERICE LIABILITY

Product Liability• law which governs the liability of

manufacturers and sellers for damages resulting from defective products

• statutory basis: Consumer Act of the Philippines

• alternative theories:◦ fraud or misrepresentation

▪ may be based on Art. 33, NCCusual exaggeration in trade are not actionable misrepresentations

◦ breach of warranty

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▪ warranty is any affirmation of fact or any promise by the seller relating to the thing which induces the buyer to purchase the same and the buyer purchases relying thereon

▪ warranty may be express or implied▪ warranty shall be operative from the

moment of sale (Art. 68 [b], Consumer Act)

▪ other implied warranty shall endure not less that 60 days nor more than 1 year

▪ distributors and retailers are required to keep a record of all purchases covered by a warranty or guarantee for such a period of time

▪ warranty registration – report made in accordance with Art. 68, par 1 of Consumer Act.

▪ The retailer shall be subsidiarily liable under the warranty in case of failure of both the manufacturer and distributor to honor the warranty

▪ Del Rosario vs CA: privity is not necessary in successfully pursuing an action for breach of warranty

▪ see the coverage of the Consumer Act • De Guzman vs Toyota(2006): a

car is impliedly a consumer product

▪ hierarchy of liable individuals• Manufacturer• distributor• retailer

▪ joint manufacturer are jointly liable▪ remedies

• express: goods repaired; refund purchase price

• implied: retain the goods+ damages; reject the goods+rescind the contract+recover what has been paid

◦ negligence ▪ liability will result if due care of an

ordinary prudent man was not exercised in manufacturing, packaging, marketing or distributing the product

▪ there is negligence per se if the manufactures products do not comply with the safety standards promulgated by appropriate government agencies specified under the Consumer Act.

▪ Safety and quality standards for consumer act• requirements to performance,

composition, contents, design, construction, finish, packaging of a consumer product

• requirements as to kind, class, grade, dimensions, weight, material

• requirements as to method of sampling, tests and codes used to check the quality of the products

• requirements as to precautions in storage, transporting and packaging

• requirements that a consumer product be marked with or accompanied by clear and adequate safety.

◦ civil liability arising from criminal liability ◦ strict liability ***

▪ Article 2187, NCC▪ privity of contract is not required

under Art. 2187 because it expressly allows recovery although no contractual relation exists.

▪ The duty to warn is primarily imposed on the manufacturer but exceptionally, the wholesaler or retailer may have such obligation if they:• are engaged in the packaging

or labeling of such products• prescribe or specify by means

the manner in which such products are packaged or labelled

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• having knowledge, refuse to disclose the source of the mislabeled or mispackaged products

▪ minimum labeling requirements• WON it is flammable• directions for use• warning of toxicity• wattage, voltage or amperes• process of manufacture use if

necessary▪ failure of the manufacturer to

comply with the affirmative duties imposed by law not only exposes him to civil liability for damages but also to criminal liability

▪ available defenses• that it did not place the product

on the market• although it did place the product

on the market such products has no defect

• the consumer or 3rd party is solely at fault

• there is no defect in the services rendered (supplier)

CHAPTER 13BUSINESS TORTS

“ARTICLE 1314. Any third person who induces another to violate his contract shall be liable for damages to the other contracting party. (n)”

Interference With Contractual Relations• general rule: only parties to a contract ae

bound by the terms of the contract and only a party can file an action for breach of contract or for rescission or annulment thereof

• considered tortious because it violates the rights of the contracting parties to fulfill the contract and to have it fulfilled to reap the benefits resulting therefrom and to compel the performance by the other party

• elements◦ existence of a valid contract

◦ knowledge on the part of th e3rd person of the existence of the contract

◦ interference by a 3rd person without legal cause

• Daywalt vs. La Corporacion De los Padres Agustinos Recoletos et al.: malice in the sense of ill will or spite is immaterial as opposed with the case of So Ping Bun vs. CA: lack of malice precludes damages but a permanent injunction against the 3rd

person shall be the proper remedy.• mere competition is not sufficient unless it

is considered unfair competition or the dominant purpose is to inflict harm or injury

• privileges to interfere afforded in business competition◦ the defendant's purpose is a justifiable

one◦ the actor employs no means of fraud or

deception which are regarded unfair• the stranger cannot become more

extensively liable in damages for the non performance of the contract than the party in whose behalf he intermeddles.

• See Article 2202, NCC

Interference With Prospective Advantage• there is no contract yet and the defendant

is only being sued for inducing another to enter into a contract with the plaintiff

Unfair Competition• Art. 28, NCC• see Article 186, RPC; Section 2 of Art. XIV,

Constitution; Section 168 (Sec. 168.2 and 168.3 [a] and [b]), IPCode;

• includes the cases involving the tort of interference with contractual relations and interference with prospective advantage

• also present is the defendant committed fraudulent appropriation against competition

• also present in the case of predatory pricing◦ practice of selling below costs in the

short run in the hoe of obtaining monopoly gains later, after driving the

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competition from the market.

Securities Related Fraud• implicit from any violation of the Securities

Regulations Code (RA 8799) is the liability for damages caused by such violation.

• Sec. 26, RA 8799 enumerates the fraudulent transactions.

• Sec. 58, RA 8799• the essential objectives of securities

legislation is to protect those who do not know market conditions from the overrechings of those who do.

CHAPTER 14DAMAGES

Justice Regaladoinjury – legal invasion of a right;damage – lost, hurt or harmdamages – compensation of the lost, hurt or harm caused by the legal invasion of a right

damages shall be awarded in legal tender

damnum absque injuria – damages without injury; one who exercise a right does no injury except is the provisions on human relations apply (Art. 19-21, NCC)read the case of Custodio vs CA (property case)

types of damages:(mental)• moral

◦ awarded to afford plaintiff the means of diversion or to alleviate moral sufferings

◦ malice on the part of the defendant should be proven▪ Bagumbayan Corp. vs IAC: juice

was spilled to one patron of a restaurant; no ground to award moral damages

▪ Sps. Herbosa vs PBE, January 25, 2002; videography of a wedding; moral damages was awarded

▪ Buenaventura vs Buenaventura, March 21, 2005: moral damages against a spouse who is

psychologically incapacitated; award of moral damages is improper

◦ WON a juridical entity is capable of being awarded an award for moral damages: Generally NO.Exception: Besmirched reputation (Filipinas Broadcasting Network, Jan 17, 2005:libel and defamation with moral damages)

• exemplary◦ corrective damages◦ Art. 2229, NCC◦ in addition to the other forms of

damages◦ bad faith, gross negligence or malice

on the part of the defendant• nominal

◦ “stand alone” award of damages◦ Cathay Pacific vs. Vasquez; passenger

moved from economy class to business class

◦ Agabon vs NLRC: reverted to the Wenphil doctrine(?) with regard to award of backwages; there is valid ground to dismiss the employee; right to due process was violated; nominal damages was awarded

• temperate◦ award of damage sustained cannot be

determined with reasonable certainty◦ Ramos vs CA; medical

malpractice;captain of the ship doctrine; 1.5M award of temperate damages

• actual/compensatory damages◦ the 2 are treated the same◦ doctrine of foreseeability of the injury◦ plaintiff has to prove his cause of action◦ types

▪ danjo emergente – loss of what the plaintiff has

▪ lucro cessante – loss of profit; loss of earning capacity

◦ legal interest▪ Eastern Shipping vs CA (Vitug)▪ distinguish obligation from a loan or

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forbearance of money and from those which are not.• Loan: Legal interest is 12%

which commence on the day of delay

• 6% if the amount claimed cannot be determined with reasonable certainty which commence on the day the Court rendered judgment on the amount of claim

▪ General rule: the stipulated interest in the contract shall be the basis of computationexception: in cases where the source of an obligation is not a contract

◦ ICTSI vs FGU insurance (March 2009)▪ cargo owner; subrogation; 6%

interest applied (Resolution)◦ P50k award in case of death

◦ formula for loss of earning capacity:2/3 x 80 (life expectancy of Filipinos) – actual age x gross annual income – living expenses (50% of gross annual income)

◦ PP vs Claudio Teehankee, Jr.: compensation for damages for loss of capacity is awarded even to those who are NOT gainfully employed

◦ Mercury Drug vs Huang: student who was awarded damages for earning capacity

◦ Attorney's fees▪ belongs to the client not to counsel▪ not automatically awarded to

winning litigant▪ usually is 10%▪ basis for the award must be

explained in the dispositive portion of the decision

▪ avoidable consequences (Art. 2203, NCC)

• liquidated◦ specific amount stipulated with regard

to damage◦ General rule: respected by court

except: if the amount is unconscionable

Source: TORTS AND DAMAGES by Timoteo B. Aquino, 2nd

edition, 2005

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