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Principles of Torts ABUSE OF RIGHT

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Generally, the exercise of any right must be in accordance with the purpose for which it was established. It must not be excessive or unduly harsh; there must be no intention to injure another. There is abuse of right when: (a) The right is exercised for the only purpose of

prejudicing or injuring another (b) The objective of the act is illegitimate (c) There is an absence of good faith ELEMENTS: (1) There is a legal right or duty; (2) Which is exercised in bad faith; (3) For the sole intent of prejudicing or injuring

another.

Velayo vs. Shell (1959): The standards in NCC 19 are implemented by NCC 21.

Globe vs. CA (1989): When a right is exercised in a manner which does not conform with the norms in NCC 19, and results in damage to another, a legal wrong is thereby committed.

University of the East vs. Jader (2000): The conscious indifference of a person to the rights or welfare of the others who may be affected by his act or omission can support a claim for damages.

Nikko Hotel Manila Garden vs. Reyes (2005): Article 19, known to contain what is commonly referred to as the principle of abuse of rights, is not a panacea for all human hurts and social grievances. The object of this article is to set certain standards which must be observed not only in the exercise of one’s rights but also in the performance of one’s duties. ACTS CONTRARY TO LAW

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.

The provision is intended to provide a remedy in cases where the law declares an act illegal but fails to provide for a relief to the party injured. (Jarencio) NCC 20 does not distinguish, and the act may be done wilfully or negligently. REQUISITES (1) The act must be wilful or negligent; (2) It must be contrary to law; (3) Damages must be suffered by the injured party. ACTS CONTRARY TO MORALS

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. This article is designed to fill in the “countless gaps” in the statutes which would otherwise leave victims of moral wrongs helpless. ELEMENTS: (1) Legal action; (2) Contrary to morals, public policy, good customs; (3) Intent to injure. EXAMPLES: BREACH OF PROMISE TO MARRY, SEDUCTION AND SEXUAL ASSAULT Wassmer vs. Velez (1964): Mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs xxx.

Baksh vs. CA (1993): Where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy.


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Tanjanco v. CA (1966): However, when for one whole year, the plaintiff, a woman of legal age, maintained sexual relations with the defendant, with repeated acts of intercourse, there is here voluntariness. No case under Article 21 is made. MALICIOUS PROSECUTION Malicious prosecution is the institution of any action or proceeding, either civil or criminal, maliciously and without probable cause. ELEMENTS: (1) The fact of the prosecution and that the

defendant was himself the prosecutor, and that the action was finally terminated with an acquittal

(2) The prosecutor acted without probable cause (3) The prosecutor was impelled by legal malice.

Que vs. IAC (1989): To constitute malicious prosecution, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person and that it was initiated deliberately by the defendant knowing that his charges were false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not make one liable for malicious prosecution. PUBLIC HUMILIATION

Grand Union vs. Espino: It is against morals, good customs and public policy to humiliate, embarrass and degrade the dignity of a person. Everyone must respect the dignity, personality, privacy and peace of mind of his neighbors and other persons (Article 26, Civil Code). UNJUSTIFIED DISMISSAL The right of an employer to dismiss an employee is not to be confused with the manner in which this right is to be exercised. When the manner in which the company exercised its right to dismiss was abusive, oppressive and malicious, it is liable for damages. UNJUST ENRICHMENT

Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

Art. 23. Even when an act or event causing damage to another’s property was not due to the fault or

negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited.

Art. 2142. Certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasi-contract to the end that no one shall be unjustly enriched or benefited at the expense of another.

Art. 2143. The provisions for quasi contracts in this Chapter do not exclude other quasi-contracts which may come within the purview of the preceding article. One person should not be permitted to unjustly enrich himself at the expense of another, but should be required to make restitution of, or for property or benefits received, retained, or appropriated where it is just and equitable that such restitution be made, and where much action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. While neither Art. 22 nor Art. 23 expressly provides for the effects of unjust enrichment, the Chapter on Quasi-Contracts (Articles 2159-2163), which complements or supplements and should be so considered in appropriate cases, does. Enrichment at the expense of another is not per se forbidden. It is such enrichment without just or legal cause that is contemplated here. Just and legal cause is always presumed, and the plaintiff has the burden of proving its absence. The restitution must cover the loss suffered by the plaintiff but it can never exceed the amount of unjust enrichment of the defendant if it is less than the loss of the plaintiff. Requisites: (1) That the defendant has been enriched; (2) That the plaintiff has suffered a loss; (3) That the enrichment of the defendant is without

just or legal ground; and (4) That the plaintiff has no other action based on

contract, crime or quasi-delict LIABILITY WITHOUT FAULT

Art. 23. Even when an act or event causing damage to another’s party was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited.


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BASIS OF LIABILITY Equity. An involuntary act, because of its character, cannot generally create an obligation; but when by such act its author has been enriched, it is only just that he should indemnify for the damages caused to the extent of this enrichment. SCOPE OF LIABILITY The indemnity does not include unrealized profits of the injured party, because the defendant’s enrichment is the limit of his liability.

Classification of Torts ACCORDING TO MANNER OF COMMISSION (1) Negligent Tort – consists in the failure to act

according to the standard of diligence required under the attendant circumstances. It is a voluntary act or omission which results in injury to others, without intending to cause the same.

(2) Intentional Tort – perpetrated by one who intends

to do that which the law has declared to be wrong. It is conduct where the actor desires to cause the consequences of the act, or that he believes that the consequences are substantially certain to result therefrom.

Note: Article 2176 where it refers to “fault or negligence” covers not only acts “not punishable by law” but also acts criminal in character, whether intentional and voluntary or negligent. (Elcano vs Hill (1977)) (3) Strict Liability – one is liable independent of fault

or negligence. It only requires proof of a certain set of facts. Liability here is based on the breach of an absolute duty to make something safe. It most often applies to ultra-hazardous activities or in product liability cases. It is also known as “absolute liability” or liability without fault.”

Strict liability is imposed by articles 1314, 1711, 1712, 1723, 2183, 2187, 2189, 2190, 2191, 2192, 2193. ACCORDING TO SCOPE GENERAL Tort liability is based on any of the three categories: intentional, negligent, strict liability SPECIFIC Includes trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress

The Tortfeasor Worcester vs. Ocampo (1958): Tortfeasor refers to all persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. THE DIRECT TORTFEASOR

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. The tortfeasor may be a natural or juridical person. PERSONS MADE LIABLE FOR OTHERS

Art. 2180 (1). The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. PRINCIPLE OF VICARIOUS LIABILITY; DEFINITION A person who has not committed the act or omission which caused damage or injury to another may nevertheless be held civilly liable to the latter either directly or subsidiarily under certain circumstances. This is also known as the “doctrine of imputed negligence.”

Art. 2180, par. 8. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. General Rule: proper defense is the exercise of the diligence of a good father of a family (bonus paterfamilias) Exception: common carriers, and all others subject to extraordinary diligence. BASIS OF VICARIOUS LIABILITY The basis of vicarious liability is NOT respondeat superior; rather, it is the principle of pater familias.

Respondeat superior

Under American jurisprudence, it means that the negligence of the servant is conclusively the negligence of the master.

Bonus pater familias

Under the principle of pater familias, the basis of the “master’s” liability is the negligence in the supervision of his subordinates. The “master” will be


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freed from liability if he can prove that he had observed all the diligence of a good father of the family to prevent the damage.

LIABILITY OF THE ACTUAL TORTFEASOR The author of the act is not exempted from personal liability. He may be sued alone or with the person responsible for him. 2 REQUISITES ACCORDING TO CHIRONI (1) The duty of supervision (2) The possibility of making such supervision

effective PRESUMPTION OF NEGLIGENCE ON PERSONS INDIRECTLY RESPONSIBLE Liability arises by virtue of a presumption juris tantum of negligence on the part of the persons made responsible under the article, derived from their failure to exercise due care and vigilance over the acts of the subordinates to prevent them from causing damage. The non-performance of certain duties of precaution and prudence imposed upon the persons who become responsible by civil bond uniting the actor to them.

Tamargo v. CA (1992): The basis of this vicarious, although primary, liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the causative act or omission. The presumption is merely prima facie and may therefore be rebutted. NATURE OF LIABILITY The liability of the vicarious obligor is PRIMARY and DIRECT (solidarily liable with the tortfesor), not subsidiary. His responsibility is not conditioned upon the insolvency of or prior recourse against the negligent tortfeasor. PERSONS VICARIOUSLY LIABLE (ART. 2180) WHO ARE LIABLE FOR MINORS? (a) Parents (the father, and in case of his death or

incapacity, the mother) (b) Adopters (c) Court-appointed guardians (d) Substitute Parental Authorities

(1) Grandparents (2) Oldest qualified sibling over 21 years old (3) Child’s actual custodian, provided he is

qualified and over 21 years old. (e) Special Parental Authorities

(1) School (2) Administrators (3) Teachers (4) Individual, entity, or institution engaged in

child care PARENTS AND ADOPTERS BASIS OF LIABILITY It is based on the presumption of failure on their part to properly exercise their parental authority for the good education of their children and exert adequate vigilance over them. It is imposed only when children are living with the parents. If there is just cause for separation, the responsibility ceases. Note: The responsibility of the father and mother is not simultaneous but alternate. WHEN RESPONSIBILITY CEASES When parent is not in the position to exercise authority and supervision over the child MEANING OF “MINORITY” Par. 2 and 3 of Art. 2180 speak of minors. Minors here refer to those who are below 21 years of age, NOT below 18 years. The law reducing the majority age from 21 to 18 years old did not amend these pars. Art. 236, par. 3 of the FC, as amended by RA 6809, provides:

“Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below 21 years of age mentioned in the second and third paragraphs of 2180 of the Civil Code.”

ADOPTED CHILDREN Judicially adopted children are considered legitimate children of their adopting parents. Thus, adopters are civilly liable for their tortious/ criminal acts if the children live with them and are below 21 years of age. ILLEGITIMATE CHILDREN Responsibility is with the mother whom the law vests parental authority. REASON FOR VICARIOUS LIABILITY Exconde vs. Capuno (1957): The civil liability which the law imposes upon the father and, in case of his death or incapacity, the mother, for any damages that may be


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caused by the minor children who live with them, is obvious. This is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the 'duty of supporting them, keeping them in their company, educating them in proportion to their means', while, on the other hand, gives them the 'right to correct and punish them in moderation.'

Tamargo vs. CA (1992): The basis of parental authority for the torts of a minor child is the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and control. To hold that parental authority had been retroactively lodged in the adoptive parents so as to burden them with the liability for a tortious act that they could not have foreseen and prevented would be unfair. Parental liability is, in other words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is, of course, only presumed and the presumption can be overturned under Article 2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father of a family to prevent the damage (NOTE: Art 2180, par 2 of the Civil Code which holds the father liable for damages has been modified by the Family Code and PD 603. Art. 211 of the FC declares joint parental authority of the mother and father over common children. The parent(s) exercising parental authority are liable for the torts of their children.

Libi vs. IAC (1992): The parent's liability under 2180 should be primary and not subsidiary. If it were subsidiary, the parents cannot invoke due diligence as a defense. Such interpretation reconciles 2180 with 2194 which calls for solidary liability of joint tortfeasors. REQUISITES FOR LIABILITY TO ATTACH (1) The child is below 21 years old (2) The child is under the parental authority of the

parents The child is living in the company of the parents

PARENTAL AUTHORITY OVER FOUNDLINGS, ABANDONED, NEGLECTED OR ABUSED AND OTHER SIMILARLY SITUATED CHILDREN In case of foundlings, abandoned, neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency. (FC Art. 217) GUARDIANS LIABILITY OF GUARDIANS Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. [Art. 2180, par. 3] (a) The liability of guardians with respect to their

wards is governed by the same rule as in the liability of parents with respect to their children below 21 years and who live with them

(b) “Incompetent” includes (1) those suffering the penalty of civil interdiction,

or (2) prodigals, (3) deaf and dumb who are unable to read and

write (4) unsound mind, even though they have lucid

intervals (5) being of sound mind, but by reason of age,

disease, weak mind, and other similar causes, cannot take care of themselves or manage their property [Rule 92, ROC]

Liability of minor or insane tortfeasor without a parent or guardian He shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. [Art. 2182] SCHOOL, TEACHERS AND ADMINISTRATORS Teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. [Art. 2180, par. 7]

Who are liable For whose Acts Requisite for Liability to

Attach Teacher-in-charge (the one designated to exercise supervision over students)

Pupils and students

Pupils and students remain in teacher’s custody regardless of the age

Head of establishment

Apprentices Custody regardless of


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Who are liable For whose Acts Requisite for Liability to

Attach of arts and trades

the age

School (generally not held liable)

If the tortfeasor is a student of the school (Art 218 FC)

If the tortfeasor is a teacher/ employee of the school, it is liable as employer under 2180 (5) of CC (St. Francis vs. CA)

If the tortfeasor is a stranger, it is liable for breach of contract. (PSBA vs. CA)

Must be below 18

Parental Authority of Special Parental Authorities may only be exercised while under their supervision, instruction, or custody. This attaches to all authorized activities, whether inside or outside the school, entity, or institution.

Palisoc v. Brillantes: “Custody” means the protective and supervisory custody that the school, its head and teachers exercise over the pupils, for as long as they are in attendance in school, which includes recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and in the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by this decision.

Amadora v. CA: As long as it is shown that the student is in the school premises pursuant to a legitimate student objective, in the exercise of a legitimate right, or the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues.

Salvosa v. IAC (1988): A student not “at attendance in the school” cannot be in “recess” thereat. A “recess,” as the concept is embraced in the phrase “at attendance in the school,” contemplates a situation of temporary adjournment of school activities where the student still remains within call of his mentor and is not permitted to leave the school premises, or the area within which the school activity is

conducted. Recess by its nature does not include dismissal. Mere fact of being enrolled or being in the premises of a school without more does not constitute “attending school” or being in the “protective and supervisory custody” of the school, as concemplated by law.

Ylarde vs. Aquino (1988): The principal of the school cannot be held liable for the reason that the school he leads is an academic school and not a school of arts and trades. OWNERS AND MANAGERS OF ESTABLISHMENTS AND ENTERPRISES The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. (Art. 2180, par. 4)

Who are liable For whose

acts Requisites for

liability to attach Owners and managers of an establishment or enterprise

Their employees

The damage was caused in the service of the branches in which the employees are employed -OR- The damage was caused on the occasion of their functions

Philippine Rabbit vs. Philam Forwarders (1975): “Owners and managers of an establishment or enterprise” does not include a manager of a corporation. (Spanish term “directores” connotes “employer.” But manager of a corporation is not an employer, but rather merely an employee of the owner.) EMPLOYERS (in general) Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. (Art 2180, par. 5) MEANING OF EMPLOYER: Art. 97 (b) (Labor Code). "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches,


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subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations.

Professional Services vs. CA and Agana (2010): This Court still employs the "control test" to determine the existence of an employer-employee relationship between hospital and doctor. Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls both the means and the details of the process by which the physician is to accomplish his task. INDEPENDENT CONTRACTOR General Rule: Master not generally liable for the fault or negligence of an independent contractor performing some work for him Exception: One who hires an independent contractor, but controls the latter’s work is also responsible for the independent contractor’s negligence. The existence of the employer-employee relationship must first be established before an employer may be made vicariously liable under Art. 2180, CC. REQUISITES: (1) Employee chosen by employer or through

another (2) Services rendered in accordance with orders

which employer has authority to give (3) Illicit act of employee was on the occasion or by

reason of the functions entrusted to him (4) Presumption of negligence To make the employer liable, it must be established that the injurious or tortious act was committed at the time that the employee was performing his functions.

Filamer vs. IAC (1992): “Within the scope of their assigned task” in Art. 2180 includes any act done by an employee in furtherance of the interests, or for the account of the employer at the time of the infliction of the injury or damage.

De Leon Brokerage vs. CA (1962): Employer need not be riding in the vehicle to become liable for a driver’s negligence. Article 2184 mandating that the owner is only held solidarily liable if he is riding in the vehicle at the time of the mishap, only applies to those owners of vehicles, who do not come within the ambit of Article 2180 (as owners of an establishment or enterprise.)

Basis of liability Employer’s negligence in (1) The selection of their employees (culpa in

eligiendo) (2) The supervision over their employees (culpa in

vigilando) Cuison vs. Norton & Harrison (1930): Basis for civil liability of employers is pater familias. Presumption of Negligence The presentation of proof of the negligence of its employee gives rise to the presumption that the defendant employer did not exercise the diligence of a good father of a family in the selection and supervision of its employees.

Ramos vs. C.O.L. Realty Corp. (2009): For the employer to avoid the solidary liability for a tort committed by his employee, an employer must rebut the presumption by presenting adequate and convincing proof that in the selection and supervision of his employee, he or she exercised the care and diligence of a good father of a family. Employers must submit concrete proof, including documentary evidence, that they complied with everything that was incumbent on them. Necessity of presumption of negligence It is difficult for any person injured to prove the employer’s negligence as they would be proving negative facts. EMPLOYER NEED NOT BE ENGAGED IN BUSINESS OR INDUSTRY Castilex Industrial Corp. vs. Vasquez (1999): The phrase "even though the former are not engaged in any business or industry" found in the fifth paragraph should be interpreted to mean that it is not necessary for the employer to be engaged in any business or industry to be liable for the negligence of his employee who is acting within the scope of his assigned task. A distinction must be made between the two provisions to determine what is applicable. Both provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business or industry. The fourth paragraph covers negligent acts of employees committed either in the service of the branches or on the occasion of their functions, while the fifth paragraph encompasses negligent acts of employees acting within the scope of their assigned task. The latter is an expansion of the former in both employer coverage and acts included. Negligent acts


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of employees, whether or not the employer is engaged in a business or industry, are covered so long as they were acting within the scope of their assigned task, even though committed neither in the service of the branches nor on the occasion of their functions. For, admittedly, employees oftentimes wear different hats. They perform functions which are beyond their office, title or designation but which, nevertheless, are still within the call of duty. Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an employer is liable for the torts committed by employees within the scope of his assigned tasks. But it is necessary to establish the employer-employee relationship; once this is done, the plaintiff must show, to hold the employer liable, that the employee was acting within the scope of his assigned task when the tort complained of was committed. It is only then that the employer may find it necessary to interpose the defense of due diligence in the selection and supervision of the employee. Distinction between 4th and 5th paragraph of 2180

4th paragraph 5th paragraph

Liable persons Owners and managers of an establishment or an enterprise

Employers in general, whether or not engaged in business or industry

Covered acts Negligent acts of employees committed either in the service of the branches or on the occasion of their functions

Negligent acts of employees acting within the scope of their assigned task

DEFENSE OF DILIGENCE IN SELECTION AND SUPERVISION Metro Manila Transit vs. CA (1993): Due diligence in the SUPERVISION of employees includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or her employees and the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure performance of acts as indispensable to the business of and beneficial to their employee. Due diligence in the SELECTION of employees require that the employer carefully examined the

applicant for employment as to his qualifications, his experience and record of service. Metro Manila Transit vs. CA (1998): The responsibility of employers for the negligence of their employees in the performance of their duties is primary, that is, the injured party may recover from the employers directly, regardless of the solvency of their employees. The rationale for the rule on vicarious liability of the employer for the torts of the employees is that this is a required cost of doing business. They are placed upon the employer because, having engaged in the enterprise, which will on the basis of all past experience involve harm to others through the tort of employees, and sought to profit by it, it is just that he, rather than the innocent plaintiff, should bear them; and because he is better able to absorb them, through prices, rates or liability or insurance, and so to shift them to society, to the community at large.

Nature of Employer’s Liability The employer is PRIMARILY and SOLIDARILY liable for the tortious act of the employee. The employer may recover from the employee, the amount it will have to pay the offended party’s claim. Such recovery, however, is NOT for the entire amount. To allow such would be as if to say that the employer was not negligent.

Philtranco vs. CA (1997): The liability of the registered owner and driver is solidary, primary and direct. Criminal Negligence

Fernando v. Franco: The vicarious liability of the employer for criminal negligence of his employee is governed by RPC 103. Conviction of the employee conclusively binds the employer. Defense of due diligence in the selection and supervision of the employee is NOT available. The employer cannot appeal the conviction.

Soliman v. Tuazon (1992): Liability for illegal or harmful acts committed by security guards attaches to the employer agency, not to the clients or customers of such agency. Registered Owner Rule (1) The registered owner of the vehicle is primarily

responsible to the public for whatever damage or injury the vehicle may have caused, even if he had already sold the same to someone else. The policy is the easy identification of the owner who can be held responsible so as not to


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inconvenience or prejudice the third party injured. (Cadiente v. Macas, 2008)

(2) This rule applies even if the vehicle is leased to

third persons. Remedy of the registered owner His liability is subject to his right of recourse against the transferee or buyer. THE STATE The State may not be sued without its consent. (Sec 3, Art XVI, 1987 Constitution) The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. (Art 2180, par. 6)

Merritt vs. Government of the Philippine Islands (1960): A special agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office. The responsibility of the state is limited to that which it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged with some definite purpose which gives rise to the claim. General Rule: The State cannot be sued. Exceptions: (1) There is express legislative consent (2) The State filed the case (because here, it is

deemed to have waived its immunity.) INSTANCES WHERE THE STATE GIVES ITS CONSENT TO BE SUED (1) Art. 2180 (6) is an example of an express

legislative consent. Here, the State assumes a limited liability for the acts of its special agents.

(2) Art. 2189 provides for state liability for damages caused by defective condition of public works.

(3) Local Government Code provides for the liability of local government units for wrongful exercise of its proprietary (as opposed to its governmental) functions. The latter is the same as that of a

private corporation or individual. (Mendoza vs. De Leon, 1916)

The State agencies or subdivisions, in the pursuance of proprietary functions, are akin to any other private corporation. They may be sued for: (1) Torts committed by them (Art. 2176) or (2) Torts committed by their employees (art 2180). As long as it is performing proprietary functions, it can be held liable for the acts of its employees, both regular and special. Notes: (a) As a governmental entity: Liable only for acts of

its special agents (b) As a corporate entity: May be held liable just as

any other employer for the acts of its employees (c) Special Agent: One duly empowered by a definite

order or commission to perform some act or one charged with some definite purpose which give rise to the claim; if he is a government employee or official, he must be acting under a definite and fixed order or commission, foreign to the exercise of the duties of his office

JOINT TORTFEASORS The responsibility of two or more persons who are liable for quasi-delict is solidary. (Art. 2194) DEFINITION OF “JOINT TORTFEASORS”

Filipinas Broadcasting Network vs. AMEC-BCCM (2005): They are all persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet in the commission of a tort, or who approve of it after it is done, if done for their benefit. APPLICABILITY OF THE PROVISION The provision applies when there are 2 or more persons who have participated in the commission of a single quasi-delict. The injury must be indivisible. NATURE OF LIABILITY Solidary – The person injured may sue all of them, or any number less than all, and they are all together solidarily liable for the whole damage.


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Acts of Omission and its Modalities Human conduct can be described alternatively as acts or omission. In relation to the existence of a legal duty, conduct may be described in terms of action or inaction, or “misfeasance” or “nonfeasance.” Manresa; “liability for personal acts or omission is founded on that indisputable principle of justice recognized by all legislators that when a person by his act or omission causes damage or prejudice to another, a juridical relation is created by virtue of which the injured person acquires a right to be indemnified and the person causing the damage is charged with the corresponding duty of repairing the damage. The reason for this is found in the obvious truth that man should subordinate his acts to the precepts of prudence and if he fails to observe them and cause damage to another, he must repair the damage.”

Proximate Cause CONCEPT OF PROXIMATE CAUSE In order that civil liability for negligence may arise, there must be a direct causal connection between the damage suffered by the plaintiff and the act or omission of the defendant. In other words, the act or omission of the defendant must be the proximate cause of the loss or damage of the plaintiff. DEFINITION Bataclan v. Medina: PROXIMATE CAUSE: that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. PROXIMATE LEGAL CAUSE: that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom

Quezon City vs. Dacara (2005): Proximate cause is determined from the facts of each case, upon a combined consideration of logic, common sense, policy or precedent. DIFFERENTIATED FROM: REMOTE CAUSE

Manila Electric v. Remonquillo: A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. Concurrent Cause – Several causes producing the injury, and each is an efficient cause without which the injury would not have happened. The injury is attributed to any or all the causes, and recovery may be had against any or all of those responsible.

Far Eastern Shipping v. CA: Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage. INTERVENING CAUSE

Phoenix Construction v. IAC: If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances. The defendant may be negligent, among other reasons, because of failure to guard against it. There is an intervening cause combining with the defendant’s conduct to produce the result, and the defendant’s negligence consists in failure to protect the plaintiff against that very risk. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence.


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EFFICIENT INTERVENING CAUSE

Teague vs. Fernandez (1973): The test is not in the number of intervening causes, but in their character and in the natural and probable connection between the wrong done and the injurious consequence. TESTS TO DETERMINE PROXIMATE CAUSE CAUSE IN FACT: The first step is to determine whether the defendant’s conduct, in point of fact, was a factor in causing plaintiff’s damage. EFFECTIVENESS OF THE CAUSE; “BUT FOR” RULE: whether such negligent conduct is a cause without which the injury would not have taken place (sine qua non rule) or is the efficient cause which set in motion the chain of circumstances leading to the injury. (Bataclan v. Medina) SUBSTANTIAL FACTOR TEST: If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresees nor should have foreseen the harm or the manner in which it occurred, does not prevent him from being liable. (Philippine Rabit v. IAC)

FORESEEABILITY TEST: Anticipation of consequence is a necessary element in determining not only whether a particular act or omission was negligent, but also whether the injury complained of was proximately caused by such act or omission. NATURAL AND PROBABLE CONSEQUENCE TEST: A natural consequence of an act is the consequence which ordinarily follows it. A probable consequence is one that is more likely to follow than fail to follow its supposed cause but it need not be one which necessarily follows such cause. ORDINARY AND NATURAL OR DIRECT CONSEQUENCE TEST: If negligence is a cause in fact of the injury, the liability of the wrongdoer extends to all the injurious consequences. HINDSIGHT TEST: A party guilty of negligence or omission of duty is responsible for all the consequences which a prudent and experienced party, fully acquainted with all the circumstances which in fact exist, whether they could have been ascertained by reasonable diligence, or not, would have thought at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind.

ORBIT OF THE RISK TEST: If the foreseeable risk to plaintiff created a duty which the defendant breached, liability is imposed for any resulting injury within the orbit or scope of such injury. It is not the

unusual nature of the act resulting in injury to plaintiff that is the test of foreseeability, but whether the result of the act is within the ambit of the hazards covered by the duty imposed upon the defendant. CAUSE V. CONDITION Many courts have sought to distinguish between the active “cause” of the harm and the existing “conditions” upon which that cause operated. If the defendant has created only a passive, static condition which made the damage possible, he is said not to be liable.

Phoenix Construction vs. IAC (1987): The distinction between cause and condition has already been almost entirely discredited. Prosser and Keeton: So far as the fact of causation is concerned, in the sense of necessary antecedents which could have played an important part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularly since the latter are the result of other active forces which have gone before. (NOTE: active force is the cause while the passive situation is the condition) It is not the distinction which is important but the nature of the risk and the character of the intervening cause. LEGAL CAUSE NATURAL AND PROBABLE CONSEQUENCES A natural consequence of an act is the consequence which ordinarily follows it. A probable consequence is one that is more likely to follow than fail to follow its supposed cause but it need not be one which necessarily follows such cause. FORESEEABILITY Anticipation of consequence is a necessary element in determining not only whether a particular act or omission was negligent, but also whether the injury complained of was proximately caused by such act or omission. Jarencio: Where the particular harm sustained was reasonably foreseeable at the time of the defendant’s misconduct, his act or omission is the legal cause thereof. Foreseeability is the fundamental basis of the law of negligence. To be negligent, the defendant must have acted or failed to act in such a way that an ordinary reasonable man would have realized that certain interests of certain persons were reasonably subjected to a general but definite class of risks.


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DOCTRINE OF LAST CLEAR CHANCE Also known as: "doctrine of discovered peril” or “doctrine of supervening negligence” or “humanitarian doctrine” The negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s (own) negligence. (Sangco, Torts and Damages.)

Consolidated Bank v. CA: The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. The antecedent negligence of the plaintiff does not preclude him from recovering damages caused by the supervening negligence of the defendant, who had the last fair chance to prevent the impending harm by the exercise of due diligence.

Picart v. Smith: If both parties are found to be negligent; but, their negligence are not contemporaneous, 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. ELEMENTS: (1) Plaintiff’s own negligence puts himself in a

dangerous situation; (2) Defendant saw or discovered, by exercising

reasonable care, the perilous position of plaintiff; (3) In due time to avoid injuring him (4) Despite notice and imminent peril, defendant

failed to employ care to avoid injury; and (5) Injury of plaintiff resulted. COVERS SUCCESSIVE ACTS OF NEGLIGENCE Primary negligence of the defendant contributory negligence of the plaintiff subsequent negligence of the defendant in failing to avoid the injury to the plaintiff INAPPLICABLE TO JOINT TORTFEASORS However, the doctrine cannot be extended into the field of joint tortfeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter’s peril, and it cannot be invoked as between defendants concurrently negligent.

Note: (a) If plaintiff is the proximate cause: NO RECOVERY

can be made. (b) If plaintiff is NOT the proximate cause: Recovery

can be made but such will be mitigated. (c) If negligence of parties is equal in degree, then

each bears his own loss.)

Pantranco vs. Baesa (1989): Last clear chance applies only if the person who allegedly had the last opportunity to avert the accident was aware of the existence of peril or should, with exercise of due care, have been aware of it.

Ong vs. Metropolitan (1958): Last clear chance does not apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered.

Bustamante vs. CA (1991): The doctrine of last clear chance, as enunciated in Anuran v. Buno, applies in a suit between the owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. It will be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence.

Phoenix vs. IAC (1987): Doctrine of last clear chance does not seem to have a role to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in 2179 of CC. CONTRIBUTORY NEGLIGENCE

Valenzuela v. CA: Conduct on the part of the injured party, which contributed as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection.

MH Rakes v. Atlantic: Contributory negligence – does not defeat an action if it can be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence. Petitioner’s negligence contributed only to his own injury and not to the principal occurrence — it was merely an element to the damage caused upon him.


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WHEN IS IT A BAR TO RECOVERY? Only when the proximate cause is on the part of the plaintiff. Where the plaintiff contributes to the principal occurrence, as one of its determining factors, he cannot recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.

Legal Injury Injury is the illegal invasion of a legal right. Legal Right – A legal claim enforced by sanctions Legal Duty – That which the law requires to be done to a determinate person ELEMENTS: (1) Legal right in favor of a person (2) Correlative legal duty on the part of another (3) Wrong in the form of an act or omission or

violation of said legal right and duty with consequent injury or damage

Custodio vs. CA (1996): To warrant recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law. The law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. The act must not only be hurtful, but wrongful (damnum et injuria).

Amonoy vs. Gutierrez (2001): The exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others. The mask of a right without the spirit of justice which gives it life, is repugnant to the modern concept of social law. It cannot be said that a person exercises a right when he unnecessarily prejudices another xxx. Over and above the specific precepts of positive law are the supreme norms of justice; and he who violates them violates the law. For this reason it is not permissible to abuse our rights to prejudice others.

CLASSES OF INJURY INJURY TO PERSONS

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same.

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. INJURY TO PROPERTY

Art. 23. Even when an act or event causing damage to another’s property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. INJURY TO RELATIONS

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief; (1) Prying into the privacy of another’s residence; (2) Meddling with or disturbing the private life or

family relations of another; (3) Intriguing to cause another to be alienated from

his friends; (4) Vexing or humiliating another on account of his

religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

Intentional Torts CONCEPT Under Article 2176, a person is also held liable for intentional and malicious acts. The liability is


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founded on the indisputable principle of justice recognized by all legislations that when a person, by his act or omission, causes damage or prejudice to another, a juridical relation is created by virtue of which the injured person acquires a right to be indemnified and the person causing the damage is charged with the corresponding duty of repairing the damage.

PNB v. CA, 1978: (NCC 21-36) serve as catch all provisions or dragnet clauses. They cover any imaginable tort action, because these articles were intended to expand the concept of torts in out jurisdiction. It grants adequate legal remedies for the (otherwise) untold number of moral wrongs, which is impossible for human foresight to provide in our statutes. VIOLATIONS OF A PERSON’S SECURITY AND PHYSICAL INJURIES (NCC 33) BATTERY (PHYSICAL INJURY) The actual infliction of any unlawful or unauthorized violence on the person of another, irrespective of its degree. The least touching of another in anger, or in any manner which amounts to an unlawful setting upon his person,” may subject one to an action for battery. INTERESTS PROTECTED BY LAW: (1) Interest of the individual in freedom from bodily

harm or any impairment whatever of the physical integrity of the body

(2) Interest in freedom from offensive bodily touching although no actual harm is done.

Carandang vs. Santiago and Valenton (1955): Defamation and fraud (in Art. 33) are used in their ordinary sense because there are no specific provisions in the Revised Penal Code using these terms as names of offenses defined therein, so that these two terms defamation and fraud must have been used not to impart to them any technical meaning in the laws of the Philippines, but in their generic sense. With these apparent circumstances in mind, it is evident that the term “physical injuries” could not have been used in its specific sense as a crime defined in the Revised Penal Code, for it is difficult to believe that the Code Commission would have used terms in same article—some in this general and others in its technical sense. In other words, the term “physical injuries” should be understood to mean bodily injury, not the crime of physical injuries, because the terms used with the latter are general terms.

ASSAULT (GRAVE THREAT) An intentional, unlawful offer of physical injury to another by force unlawfully directed toward the person of another, under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented. The wrong is committed when unreasonable fear is inspired in the plaintiff by threatening gestures, especially when these are connected with unlawful, sinister, and wicked conduct on the part of the defendant. FALSE IMPRISONMENT (ILLEGAL DETENTION)

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom from arbitrary or illegal detention xxx INTERFERENCE WITH PERSONAL PROPERTY TRESPASS TO LAND Any intentional use of another’s real property, without authorization and without a privilege by law to do so, is actionable as a trespass without regard to harm. (Prosser and Keeton, p. 70) Elements An invasion (1) which interfered with the right of exclusive

possession of the land, and (2) which was a direct result of some act committed

by the defendant. (Prosser and Keeton, p. 67) TRESPASS TO CHATTELS Any direct and immediate intentional interference with a chattel in the possession of another. (Prosser and Keeton, p. 85) CONVERSION Major interferences with the chattel, or with the plaintiff’s rights in it, which are so serious, and so important, as to justify the forced judicial sale to the defendant. (Prosser and Keeton, p. 90) INTENTIONAL NON-PHYSICAL HARMS

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief;


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(1) Prying into the privacy of another’s residence; (2) Meddling with or disturbing the private life or




The principal rights protected under this provision are the following: (1) The right to personal dignity (2) The right to personal security (3) The right to family relations (4) The right to social intercourse (5) The right to privacy (6) The right to peace of mind VIOLATION OF PERSONAL DIGNITY In order to be actionable it is not necessary that the act constitutes a criminal offense. The remedy afforded by the law is not only the recovery of damages. “Prevention and other relief” is also available. In other words, injunction and other appropriate reliefs may also be obtained by the aggrieved party. St. Louis Realty Corporation vs. CA (Illustration of a “similar act”): The acts and omissions of the firm fall under Article 26. Persons who know the residence of Doctor Aramil were confused by the distorted, lingering impression that he was renting his residence from Arcadio or that Arcadio had leased it from him. Either way, his private life was mistakenly and unnecessarily exposed. INFLICTION OF EMOTIONAL DISTRESS MVRS Publications vs. Islamic Da'wah Council (2003): Article 26 specifically applies to intentional acts which fall short of being criminal offenses. It itself expressly refers to tortious conduct which "may not constitute criminal offenses." The purpose is precisely to fill a gap or lacuna in the law where a person who suffers injury because of a wrongful act not constituting a crime is left without any redress. Under Article 26, the person responsible for such act becomes liable for "damages, prevention and other relief." In short, to preserve peace and harmony in the family and in the community, Article 26 seeks to eliminate cases of damnum absque injuria in human relations. Consequently, the elements that qualify the same acts as criminal offenses do not apply in determining responsibility for tortious conduct under Article 26.

In intentional infliction of mental distress, the gravamen of the tort is not the injury to plaintiff's reputation, but the harm to plaintiff's mental and emotional state. In libel, the gist of the action is the injury to plaintiff's reputation. Reputation is the community's opinion of what a person is. In intentional infliction of mental distress, the opinion of the community is immaterial to the existence of the action although the court can consider it in awarding damages. What is material is the disturbance on the mental or emotional state of the plaintiff who is entitled to peace of mind. VIOLATION OF PRIVACY It is the right to be let alone, or to be free from unwarranted publicity, or to live without unwarranted interference by the public in matters in which the public is not necessarily concerned. Reasonableness of Expectation of Privacy (The 2-prong test) (1) Whether by one’s conduct, the individual has

exhibited an expectation of privacy (2) Whether this expectation is one that society

recognizes and accepts as reasonable Note: Coverage of Art. 26 is not limited to those enumerated therein, the enumeration being merely examples of acts violative of a person’s rights to dignity, personality, privacy and peace of mind. Other “similar acts” are also covered within the scope of the article. Persons who can invoke privacy General Rule: The right to privacy may only be invoked by natural persons. Juridical persons cannot invoke this because the basis to this right is an injury to the feelings and sensibilities of the injured party, and a corporation has none of those Exception: The right to privacy may be invoked along with the right against unreasonable searches and seizures. General Rule: The right to privacy is purely personal in nature: (1) It can be invoked only by the person actually

injured (2) It is subject to a proper waiver (3) It ceases upon death Exception: The privilege may be given to the heirs of a deceased to protect his memory, but this privilege exists for the benefit of the living. It enables the protection of their feelings, and prevents the


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violation of their own rights regarding the character and memory of the deceased. Invasion of Privacy Types: (1) Publication of embarrassing private facts – The

interest here is the right to be free from unwarranted publicity, wrongful publicizing of private affairs and activities, as these are outside the ambit of legitimate public concern.

Ayer v. Capulong (1988): Public figures enjoy a limited right to privacy as compared to ordinary individuals. (2) Intrusion upon plaintiff’s private affairs – This is

not limited to situations where the wrongdoer physically trespasses into one’s property.

(a) Generally, there is no invasion of privacy when journalists report something that occurs in the public realm, except when the acts of the journalist are to an extent that it constitutes harassment.

(b) RA 4200: it is illegal for any person not authorized by both parties to any private communication to secretly record such communication.

(c) Limitations to Right to Information v. Right to Privacy:

(i) Must be of public interest (ii) Must not be excluded by law

(3) Publicity which puts one in a false light in the

public eye – To protect the interest of one in not being made or forced to appear before the public in an objectionable false light or position.

Tort of putting in false light

Defamation

The embarrassment of a person being portrayed as something he is not

Concerns the reputational harm to a person

Statement should be actually made in public

Publication is satisfied even if communicated to only one specific third person

(4) Commercial appropriation of likeness of image It consists of appropriation, for the defendant’s benefit or advantage (ex. It was used in the defendant’s advertisement), of the plaintiff’s name or likeness (picture or portrait).

DISTURBANCE OF PEACE OF MIND The disturbance of the mental and emotional tranquility of the plaintiff by the defendant is a legal injury in itself and, therefore, a sufficient cause of action for damages, injunction, and other relief. A person, however, cannot be held liable for damages for the mental or emotional disturbance of the plaintiff which was due to the latter’s susceptibility to such disturbance, where the defendant had no knowledge of such peculiar susceptibility. The tendency of the law is to secure an interest in mental comfort only to the extent of the ordinary sensibilities of men. MALICIOUS PROSECUTION

Art. 2219. Moral damages may be recovered in the following and analogous cases: xxx (8) Malicious prosecution

Art. 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Malicious prosecution is the institution of any action or proceeding either civil or criminal against another, maliciously and without probable cause. Elements: (1) That the defendant was himself the prosecutor

or that he instigated its commencement (2) That the action was finally terminated with an

acquittal (3) That in bringing the action, the prosecutor acted

without probable cause (4) That he was actuated or impelled by legal

malice, that is, by improper and sinister motives. (Lao v. CA)

Drilon vs. CA (1997): Malicious Prosecution defined: An action for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit or other proceeding in favor of the defendant herein. The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury.

Buenaventura vs. Domingo and Ignacio (1958): The provisions of the Civil Code in taking reference to malicious prosecutions must necessarily imply that the person to be held liable to pay moral damages should have acted deliberately and with knowledge


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that his accusation of the person subject to such malicious prosecution, was false and groundless. xxx Proof and motive that the prosecution or institution of the action was prompted by a sinister design to vex and humiliate a person and to cast dishonor and disgrace must be clearly and preponderantly established to entitle the victims to damages and other rights granted by law; otherwise, there would always be a civil action for damages after every prosecution's failure to prove its cause resulting in the consequent, acquittal of the accused therein. DEFAMATION, FRAUD AND PHYSICAL INJURIES

Art. 33. In case of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. DEFAMATION

Cojuangco vs. CA (1991): Separate civil action may be consolidated with the criminal action.

MVRS vs. Islamic Da'wah (2003): Defamation is that which tends to injure reputation or diminish esteem, respect, good will, or confidence of the plaintiff, or excite derogatory feelings about him. It must be personal. (What is definitive is not the level of hurt, but the effect of the statement on the reputation or standing of the person.)

Arafiles vs. Philippine Journalists (2004): In actions for damages for libel, it is axiomatic that the published work alleged to contain libelous material must be examined and viewed as a whole. The article must be construed in its entirety including the headlines, as they may enlarge, explain, or restrict or be enlarged, explained or strengthened or restricted by the context. Whether or not it is libelous, depends upon the scope, spirit and motive of the publication taken in its entirety. A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. DEFENSES: (1) Absence of elements (2) Privilege

FRAUD OR MISREPRESENTATION (FORMERLY DECEIT) Salta vs. De Veyra (1982): Independent civil actions are permitted to be filed separately regardless of the result of the criminal action. Samson vs. Daway (2004): Unfair competition under the Intellectual Property Code and fraud under Art. 33 are independent actions. Art. 33 does not operate as a prejudicial question to justify the suspension of the criminal cases at bar. SEDUCTION Sangco: Seduction is sexual intercourse with an unmarried woman of chaste character whose consent was obtained through abuse of confidence or through deceit. Seduction under the RPC (criminal seduction) is different from seduction under the NCC (civil seduction, Art. 21) (a) In criminal seduction, either qualified or simple,

the offended woman must be less than 18 years of age.

(b) In civil seduction, the offended woman may be over 18 years of age.

Tanjanco vs. CA (1966): The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded. To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction. UNJUST DISMISSAL The employer’s right to dismiss his employee differs from, and should not be confused with the manner in which the right is exercised. When the manner in which the company exercised its right to dismiss was abusive, oppressive or malicious, it is liable for damages.

Quisaba vs. Sta. Ines-Melale Veneer & Plywood (1974): Although the acts complained of seemingly appear to constitute "matters involving employee-employer relations" as Quisaba's dismissal was the severance of a pre-existing employee-employer relation, his complaint is grounded not on his dismissal per se as in fact he does not ask for reinstatement or


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backwages, but on the manner of his dismissal and the consequent effects of such dismissal. The case at bar is intrinsically concerned with a civil (not a labor) dispute; it has to do with an alleged violation of Quisaba's rights as a member of society, and does not involve an existing employee-employer relation within the meaning of section 2(1) of Presidential Decree No. 21. The complaint is thus properly and exclusively cognizable by the regular courts of justice, not by the National Labor Relations Commission. Note: The foregoing decision thus states that where the employee does not seek reinstatement or expressly or impliedly accepts the employer’s right to terminate the contract of employment but questions the manner in which said right was exercised and predicates thereon his claim for moral and exemplary damages, the claim is one for tort under the Civil Code and not one arising from employer-employee relation under the Labor Code even if he also demands in the action therefor payment of termination pay which unquestionably derives from their prior employer-employee relation. INTERFERENCE WITH RELATIONS An interference with the continuance of unimpaired interests founded upon the relation in which the plaintiff stands toward one or more third persons. (Prosser and Keeton, p. 915) KINDS (1) Family relations (2) Social relations (3) Economic relations (4) Political relations FAMILY RELATIONS The three causes of action enumerated below are offenses against marital relations. ALIENATION OF AFFECTION This is a cause of action in favor of a husband against one who wrongfully alienates the affection of his wife, depriving him of his conjugal rights to her consortium, that is, her society, affection, and assistance. Elements: (1) Wrongful conduct of the defendant: intentional

and malicious enticing of a spouse away from the other spouse Note: Where the alienation or separation of the spouses is caused by the plaintiff’s own conduct

and not by reason of the wrongful conduct of the defendant, there is no liability on the defendant. However, if the defendant interferes and by his wrongful conduct prevents a reconciliation between the spouses, or destroys the possibility thereof, the defendant is liable for alienation of affection.

(2) Loss of affection or consortium Note: Complete absence of affection between the spouses is not a defense.

(3) Causal connection between such conduct and loss

Tenchavez vs. Escaño (1965): There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved. LIABILITY OF PARENTS, GUARDIANS OR KIN The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction between the liability of parents and that of strangers is only in regard to what will justify interference. A parent is liable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare and happiness even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away,


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from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son. LOSS OF CONSORTIUM Lilius vs. Manila Railroad Company (1934): The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal companionship", as a result of personal injuries which she had received from the accident now under consideration. In the case of Goitia vs. Campos Rueda, this court, interpreting the provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows:

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. . . .

Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's assistance. This assistance comprises the management of the home and the performance of household duties, including the care and education of the children and attention to the husband upon whom primarily devolves the duty of supporting the family of which he is the head. When the wife's mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that she performed all the said tasks and her physical incapacity always redounded to the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be more useful to society and to the nation, are demanding greater civil rights and are aspiring to become man's equal in all the activities of life, commercial and industrial, professional and political, many of them spending their time outside the home, engaged in their businesses, industry, profession and within a short time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions which take charge of young children while their mothers are at work, marriage has ceased to create the presumption that a woman complies with the duties to her husband and children, which the law imposes upon her, and he

who seeks to collect indemnity for damages resulting from deprivation of her domestic services must prove such services. Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and voluntary acts which neither of the spouses may be compelled to render, it is necessary for the party claiming indemnity for the loss of such services to prove that the person obliged to render them had done so before he was injured and that he would be willing to continue rendering them had he not been prevented from so doing. CRIMINAL CONVERSATION (ADULTERY) Interference with the marital relations by committing adultery with one of the spouses. This is obvious enough in the case of rape but also applies where the adulterous spouse consented to or initiated the intercourse. (Prosser and Keeton, p. 917) SOCIAL RELATIONS

MEDDLING WITH OR DISTURBING FAMILY RELATIONS

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief; xxx 2) Meddling with or disturbing the private life or family relations of another; Developed as an offshoot of the action for enticing away a servant and depriving the master of the proprietary interest in [the servant’s] services until there has been a gradual shift of emphasis away from “services” and toward a recognition of more intangible elements in the domestic relations, such as companionship and affection. (Prosser and Keeton, p. 916) INTRIGUING TO CAUSE ANOTHER TO BE ALIENATED FROM HIS FRIENDS A person who committed affirmative acts intended to alienate the existing friendship of one with his friends is liable for damages. A man is a social being and for being so, he needs friends to socialize with and to depend upon in case of need. To alienate him wrongfully or with malice from his friends is to cause him suffering for which he is entitled to damages.


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ECONOMIC RELATIONS

INTERFERENCE WITH CONTRACTUAL RELATIONS

Art 1314. Any third person who induces another to violate his contract shall be liable for damages to the other contracting party.

Gilchrist vs. Cuddy (1915): Everyone has a right to enjoy the fruits of his enterprise. He has no right to be protected from competition, but he has the right to be free from malicious and wanton interference. If the injury is a result of competition, it is a case of damnum absque injuria, unless superior right by contract is interfered with. Injunction is the proper remedy to prevent wrongful interference with contracts by strangers, where other legal remedies are insufficient and the resulting injury is irreparable. So Ping Bun vs. CA (1999): Bad faith/Malice is required to make the defendant liable for DAMAGES in cases of tortuous interference. Elements of Interference (1) Existence of a valid contract; (2) Knowledge of the third person of the existence

of such contract; and (3) Interference without legal justification or excuse.

Lagon vs. CA (2005): If there is no bad faith, there is no tortious interference; Actual knowledge of the contract is not required so long as there are facts leading one to investigate. Proper business interest provides a legal justification to negate the presence of the third element. UNFAIR COMPETITION Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage. Free competition in agricultural, commercial or industrial enterprises and in labor is essential in a democracy and should be encouraged. Monopolies, generally speaking, are prejudicial to public interest. However, the right of free competition is not unlimited.

Permissible competition There is a privilege to interfere with prospects of advantageous economic relations of others when: (1) The defendant’s purpose is justifiable, and (2) He employs no means which may be regarded as

unfair. Prohibited competition In order to qualify as “unfair,” it must have 2 characteristics: (1) It must involve an injury to a trade or rival (2) It must involve acts which are characterized as

“contrary to good conscience,” or “shocking to judicial sensibilities,” or otherwise unlawful

Note: Jarencio: Unfair competition dealt with in Art. 28 is different from the unfair competition under Sec. 29 of RA 166. Unfair competition under Sec. 29 of Rep. Act 166 consists in giving the same general appearance to the goods manufactured or dealt in or the services rendered by one person as the goods or services of another who has already acquired a public goodwill for such goods or services. Unfair competition under Art. 28 of the Civil Code refers to unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method. Unfair competition under the Civil Code covers a broader area than Rep. Act 166. POLITICAL RELATIONS VIOLATION OF RIGHT TO SUFFRAGE (NCC, ART. 32) Art 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion (2) Freedom of speech (3) Freedom to write for the press or to maintain a

periodical publication (4) Freedom from arbitrary or illegal detention (5) Freedom of suffrage (6) The right against deprivation of property without

due process of law (7) The right to just compensation when property is

taken for public use (8) The right to equal protection of the laws (9) The right to be secure in one’s person, house,

papers and effects against unreasonable searches and seizures

(10) The liberty of abode and of changing the same


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(11) The right to privacy of communication and correspondence

(12) The right to become a member of associations and societies for purposes not contrary to law

(13) The right to take part in a peaceable assembly and petition the government for redress of grievances

(14) The right to be free from involuntary servitude in any form

(15) The right of the accused against excessive bail (16) The right of the accused to be heard by himself

and counsel, to be informed of the nature and the cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, to have compulsory process to secure the attendance of witnesses on is behalf;

(17) Freedom form being compelled to be a witness against one’s self, or from being forced to confess his guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness.

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional;

(19) Freedom of access to the courts In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted) and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal code or any other penal statute. VIOLATION OF OTHER POLITICAL RIGHTS (FREEDOM OF SPEECH, PRESS, ASSEMBLY AND PETITION, ETC.) Jarencio: Article 32 of the Civil Code holds any public officer, employee or private individual civilly liable for the violation of civil liberties, political liberties and other basic rights under the Constitution. The aggrieved party may recover actual, moral and exemplary damages and other relief. The civil action is separate and distinct and shall proceed independently of a criminal prosecution if one is instituted. Only a preponderance of evidence is

required. If the violation of the civil or political rights constitutes a crime and a criminal action is instituted the civil action is also deemed instituted with the criminal action unless the same is reserved. Cojuangco vs. CA (1999): The purpose of article 32 is to remind us that basic rights are immutable. Thus, absence of bad faith or malice is not a defense. Vinzons-Chato vs. Fortune (2007): A public officer may be sued under Art. 32 even if his acts were not so tainted with malice, as long as there is a violation of a constitutional right. Its precise object is to put an end to official abuse, done on the plea of good faith.

Negligence

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. ELEMENTS (1) Legal duty (2) Breach (3) Causation (4) Damages Layugan vs. IAC (1988): Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. TEST OF NEGLIGENCE Philippine National Railways vs. Brunty (2006): Did defendant, in doing the alleged negligent act, use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, the person is guilty of negligence. The law, in effect, adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law.


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GOOD FATHER OF A FAMILY (BONUS PATER FAMILIAS) A standard man does not mean an ideal or perfect man, but an ordinary member of the community. He is usually spoken of as an ordinarily reasonable, careful, and prudent man. WHAT CONSTITUTES THE CONDUCT OF A PRUDENT MAN IN

A GIVEN SITUATION?

Picart vs. Smith (1918): Conduct determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot be of much value here; instead, reasonable men govern their conduct by the circumstances which are known before them. They are not supposed to be omniscient of the future. STANDARD OF CARE

Picart vs. Smith (1918): Test: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent man would have used in the same situation? If not, then he is negligent. Negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him, but is determined in the light of human experience and the facts involved in the particular case. 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 its consequences. Note: Only the KIND of injury needs to be foreseen, NOT the actual specific injury. STANDARD OF CARE REQUIRED OF BANKS

Philippine Bank of Commerce vs. CA (1997): In the case of banks, however, the degree of diligence required is more than that of a good father of a family. Considering the fiduciary nature of their relationship with their depositors, banks are duty bound to treat the accounts of their clients with the highest degree of care.

Simex International (Manila), Inc. v. CA: In every case, the depositor expects the bank to treat his account with the utmost fidelity, whether such account consists only of a few hundred pesos or of millions. xxx A blunder on the part of the bank, such as the failure to duly credit him his deposits as soon as they are made, can cause the depositor not a little

embarrassment if not financial loss and perhaps even civil and criminal litigation. The point is that as a business affected with public interest and because of the nature of its functions, the bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship. STANDARD OF CARE OF CHILDREN

Taylor vs. Manila Railroad (1910): Children must be expected to act upon childlike instincts and impulses and others chargeable with a duty of care and caution toward them must take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to play with, they should expect that liberty to be taken. (But the child in this case was still negligent because of his experience).

Jarco v. CA (1999): The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. The presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one.

Ylarde vs. Aquino (1988): The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience: that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances. STANDARD OF CARE OF EXPERTS/PROFESSIONALS

Culion vs. Philippine (1930): When a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do.

Cruz vs. CA (1997): Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced


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state of the profession at the time of treatment or the present state of medical science. IN CASE OF INSANE PERSONS

Art. 2180. …Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company…

Art. 2182. If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed.

US vs. Baggay (1911): A lunatic or insane person who, in spite of his irresponsibility on account of the deplorable condition of his deranged mind, is still reasonably and justly liable with his property for the consequences of his acts. EMERGENCY RULE OR SUDDEN PERIL DOCTRINE

Valenzuela vs. CA (1996): An individual, who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. UNREASONABLE RISK OR HARM

Art 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees even though the event may have been purely accidental or entirely due to fortuitous cause, if the death or personal injury arose out of and in the course of employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as a 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

Art. 1712. If the death or injury is due to the negligence of a fellow-worker, the latter and the employer shall be solidarily liable for compensation. If a fellow-worker’s intentional or malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the

selection or supervision of the plaintiff’s fellow-worker.

Amedo vs. Rio (1954): By jumping into the sea, the employee failed to exercise even slight care and diligence and displayed a reckless disregard of the safety of his person. His death was caused by his notorious negligence. Notorious negligence has been held to be tantamount to gross negligence which is want of even slight care and diligence. EVIDENCE QUANTUM OF PROOF IN QUASI-DELICT VS. QUANTUM OF

PROOF IN BREACH OF CONTRACT

Calalas vs. CA: In quasi-delict, the negligence or fault should be clearly established because it is the basis of action, whereas in breach of contract, the action can be prosecuted merely by proving the existence of a contract and the fact that the obligor, in this case a common carrier, failed to transport his passenger safely to his destination. PRESUMPTION OF NEGLIGENCE

Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputable presumed that the driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months.

Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.

Art. 2188. There is prima facie presumption of negligence if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the use or possession thereof is indispensable in his occupation or business.

Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article (calamity, act of public enemy in war, act of owner of the goods, character of the goods, order of competent public authority), if the goods are lost destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required under Art. 1733.


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PRESUMED NEGLIGENCE OR NEGLIGENCE PER SE Teague vs. Fernandez (1973): Violation of a statute or ordinance constitutes negligence as a matter of law or negligence per se because non-observance of what the law provides as a suitable precaution is failure to observe that care which an ordinarily prudent man would observe. When the standard of care is fixed by law, failure conform to such standard is negligence, negligence per se or negligence in and of itself, in the absence of a legal excuse. RES IPSA LOQUITUR The doctrine of res ipsa loquitur (“the thing speaks for itself”) is a rule of evidence (not of substantive law) peculiar to the law of negligence. 3 conditions for applicability: F.F. Cruz vs. CA (1988): Res ipsa loquitur is applicable when: (1) The thing causing the injury is under the control

of the defendant or his servant; (2) In the ordinary cause of things, the accident does

not happen if those who have control used proper care;

(3) In the absence of explanation from the defendant, a presumption of negligence results.

Layugan vs. IAC 1988): Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care.

Ramos vs. CA (1999): The injury itself, taken together with the circumstances, raises the presumption of negligence that the defendant must meet with an explanation. Elements (1) The accident is such that it would not have

happened in the ordinary course of events without the negligence of someone;

(2) The defendant exercises control and management.

(3) There is no contributory negligence on the part of the plaintiff.

DM Consunji vs. CA (2001): The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the

accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. Note: For the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident. DEFENSES DUE DILIGENCE Art. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible. xxx Par. 8. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Ramos vs. PEPSI (1967): The presumption of negligence on the part of the master or employer, either in the selection of servant/employee or in the supervision, when an injury is caused by the negligence of a servant/employee may be rebutted if the employer shows to the satisfaction of the court that in the selection and supervision, he has exercised the care and diligence of a good father of a family

Metro Manila vs. CA (1993): The defense of due diligence is plausible when defendant has presented enough evidence to overcome the presumption of negligence. It is not enough that it is alleged. ACTS OF PUBLIC OFFICERS

Vinzons-Chato vs. Fortune (2008): When what is involved is a duty owing to the public in general, an individual cannot have a cause of action against the public officer although he may have been injured by the action or inaction of the officer, except when the individual suffers a particular or special injury. ACCIDENT OR FORTUITOUS EVENT

Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be seen


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responsible for those events which, could not foreseen, or which, though foreseen, were inevitable. Elements Juntilla vs. Fontanar (1985): The elements of caso fortuito are: (1) 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;

(2) It must be impossible to foresee the event or if it can be foreseen, it must be impossible to avoid;

(3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and

(4) The obligor must be free from any participation in the aggravation of the injury resulting to the creditor.

Hernandez vs. COA (1984): The robbery that happened to him cannot be said to be the result of his imprudence and negligence. This was undoubtedly a fortuitous event covered by the said provisions, something that could not have been reasonably foreseen although it could have happened. DAMNUM ABSQUE INJURIA

Custodio vs. CA (1996): Right to recover damages does not arise from the mere fact that the plaintiff suffered losses. To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without damage, or damage without wrong, does not constitute a cause of action, since damages are merely part of the remedy allowed for the injury caused by a breach or wrong.

Injury Damage Damages

Illegal invasion of a legal right

Loss, hurt, harm resulting from the injury

Recompense or compensation awarded

Damnum absque injuria. There can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In order that the law will give redress for an act causing damage, that act must be not only hurtful, but wrongful. There must be damnum et injuria. If, as may happen in many cases, a person sustains actual damage, that is, harm or loss to his person or property, without sustaining any legal injury, that is, an act or omission which the law does not deem an

injury, the damage is regarded as damnum absque injuria. AUTHORITY OF LAW Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

Art. 11. (RPC) The following do not incur any criminal liability: (5) Any person who acts in the fulfillment of a duty

or in the lawful exercise of a right or office (8) Any person who acts in obedience to an order

issued by a superior for some lawful purpose ASSUMPTION OF RISK (VOLENTI NON FIT INJURA) General rule: One who voluntarily assumed the risk of injury from a known danger is debarred from recovery. A plaintiff who, by his conduct, brought himself within the operation of the maxim, “volenti non fit injuria” (that to which a person assents is not presumed in law an injury), cannot recover on the basis of the defendant’s negligence. One who knows, appreciates, and deliberately exposes himself to a danger assumes the risk thereof. Where the defense of assumption of risk is based on this principle, it negates negligence or liability on the part of the defendant, even though his conduct would otherwise have constituted actionable negligence, and without regard to the fact that the plaintiff may have acted with due care. The defense bars recovery without regard to whether the plaintiff’s conduct was reasonable, because, in theory, the plaintiff’s acceptance of the risk has wiped out the defendant’s duty, and as to the plaintiff the defendant’s negligence is not a legal wrong. Afialda vs. Hisole (1958): It is the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. It was a risk he voluntarily assumed. Requisites (1) That the plaintiff had actual knowledge of the

danger; (2) That he understood and appreciated the risk from

the danger (3) That he voluntarily exposed himself to such risk


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Exception: Ilocos Norte vs. CA (1989): A person is excused from the force of the rule (volenti non fit injuria), that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril or when he seeks to rescue his endangered property. LAST CLEAR CHANCE The doctrine is also known as: (1) The doctrine of discovered peril; (2) The doctrine of supervening negligence; (3) Humanitarian doctrine A negligent defendant is liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if the defendant, aware of the plaintiff’s peril, had in fact a later opportunity than the plaintiff to avoid the accident. Picart vs. Smith (1918): 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. Bustamante vs. CA (1991): Negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s negligence. Consolidated Bank vs. CA (2003): This is a case of culpa contractual where neither contributory negligence nor last clear chance will exonerate defendant from liability. (NOTE: This means that Last Clear Chance is not a defense in culpa contractual.) PRESCRIPTION – NCC, ART. 1144, 1146, AND 1150

Art. 1144. The following actions must be brought within ten years from the time the right of action accrues: (1) Upon a written contract; (2) Upon an obligation created by law; (3) Upon a judgment.

Art. 1146. The following actions must be instituted within four years: (1) Upon an injury to the rights of the plaintiff; (2) Upon a quasi-delict; However, when the action arises from or out of any act, activity, or conduct of any public officer involving the exercise of powers or authority arising from

Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year.

Art. 1150. The time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted from the day they may be brought. Prescription periods: (a) years for QD (b) 1 year for defamation

Kramer vs. CA (1989): It is clear that the prescriptive period must be counted from the time of the commission of an act or omission violative of the right of the plaintiff, which is the time when the cause of action arises.

Allied Banking vs. CA (1989): Relations Back Doctrine (footnote 17 of Allied Banking case): That principle of law by which an act done at one time is considered by a fiction of law to have been done at some antecedent period. WAIVER

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with a right recognized by law.

Art. 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void. DOUBLE RECOVERY – NCC ART. 2177 Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.

Art. 100 (RPC). Civil liability of a person guilty of felony. - Every person criminally liable for a felony is also civilly liable. Art. 2177 distinguishes 2 kinds of negligence: (1) Civil and (2) Criminal. The same negligence causing damage may produce liability arising from crime, if the act or omission is punished by the RPC, or may create an action for quasi-delict under the NCC.


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ACTIONS AVAILABLE TO VICTIMS OF NEGLIGENCE (1) An action to enforce the civil liability arising from

culpa criminal under Art. 100 of the RPC (2) An action for quasi-delict under Art. 2176-2194 of

the NCC. The only limitation is that the injured party cannot recover twice for the same act or omission. EFFECT OF ACQUITTAL OF THE ACCUSED ON HIS CIVIL

LIABILITY

Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. The acquittal of the accused in the criminal case will not necessarily exonerate him from civil liability. The judgment of acquittal does not necessarily extinguish the civil liability of the accused EXCEPT: (1) When it declares that the facts from which the

civil liability might arise did not exist; (2) When it declares that the accused is not the

author of the crime; (3) When the judgment expressly declares that the

liability is only civil in nature; (4) Where the civil liability is not derived or based on

the criminal act of which the accused was acquitted;

(5) Where the acquittal is based on reasonable doubt;

(6) Where the civil action has prescribed. NO RESERVATION IS REQUIRED IN THE CRIMINAL CASE FOR

THE FILING OF CIVIL ACTION ARISING FROM QUASI-DELICT

Rule 111, Sec. 3, ROC. When civil action may proceeded independently. — In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.

Question As a result of a collision between a taxicab owned by A and another taxicab owned by B, X, a passenger of the first taxicab, was seriously injured. X later filed a criminal action against both drivers. (a) Is it necessary for X to reserve his right to institute a civil action for damages against both taxicab owners before he can file a civil action for damages against them? Why? (b) May both taxicab owners raise the defense of due diligence in the selection and supervision of their drivers to be absolved from liability for damages to X? Reason. Suggested Answer: It depends. If the separate civil action is to recover damages arising from the criminal act, reservation is necessary. If the civil action against the taxicab owners is based on culpa contractual or on quasi-delict, there is no need for reservation. It depends. If the civil action is based on quasi-delict, the taxicab owners may raise the defense of diligence of a good father of a family in the selection and supervision of the driver; if the action against them is based on culpa contractual or civil liability arising from a crime, they cannot raise the defense. Alternative Answer: No such reservation is necessary. Under Section 1 Rule 111 of the 2000 Rules on Criminal Procedure, what is “deemed instituted” with the criminal action is only the action to recover civil liability arising from the crime or ex delicto. All the other civil actions under Articles 32, 33, 34, 2176 of the New Civil Code are no longer “deemed instituted,” and may be filed separately and prosecuted independently even without any reservation in the criminal action (Section 3, Rule 111, 2000 Rules on Criminal Procedure). The failure to make a reservation of the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the New Civil Code (Casupanan vs. Laroya, G.R. No. 145391, August 26, 2002)

Special Liability in Particular Cases In some cases tort law imposes liability on defendants who are neither negligent nor guilty of intentional wrongdoing. Known as Strict Liability, or liability without fault, this branch of torts seeks to


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regulate those activities that are useful and necessary but that create abnormally dangerous risks to society. PRODUCTS LIABILITY

Art. 2187. Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers. Under the foregoing provision, liability is not made to depend upon fault or negligence of the manufacturer or processor. The provision likewise dispensed with any contractual relation between the manufacturer and the consumer, thereby clearly implying that liability is imposed by law as a matter of PUBLIC POLICY. Proof of negligence under this provision is not necessary; as such, traditional contract and warranty defenses as (1) lack of privity; (2) lack of reliance on a warranty; (3) lack of notice to the defendant of the breach of warranty; and (4) disclaimer of implied warranties are INAPPLICABLE. REQUISITES OF LIABILITY (1) Defendant is a manufacturer or possessor of

foodstuff, drinks, toilet articles and similar goods;

(2) He used noxious or harmful substances in the manufacture or processing of the foodstuff, drinks or toilet articles consumed or used by the plaintiff;

(3) Plaintiff’s death or injury was caused by the product so consumed or used; and

(4) The damages sustained and claimed by the plaintiff and the amount thereof.

BURDEN OF PROOF The burden of proof that the product was in a defective condition at the time it left the hands of the manufacturer and particular seller is upon the INJURED PLAINTIFF. WHO MAY RECOVER Although the article used the term “consumer”, such term includes a “user” and “purchaser” of the injuriously defective food product or toilet article. The person who may recover NEED NOT BE THE PURCHASER of the foodstuff or toilet article. CONSUMER ACT –RA 7394, SECS. 92-107 (CH. 1)

Consumer Act Provisions Article 4. Definition of Terms.

(n) "Consumer" means a natural person who is a purchaser, lessee, recipient or prospective purchaser, lessor or recipient of consumer products, services or credit. (as) "Manufacturer" means any person who manufactures, assembles or processes consumer products, except that if the goods are manufactured, assembled or processed for another person who attaches his own brand name to the consumer products, the latter shall be deemed the manufacturer. In case of imported products, the manufacturer's representatives or, in his absence, the importer, shall be deemed the manufacturer. Article 92. Exemptions. – If the concerned department finds that for good or sufficient reasons, full compliance with the labeling requirements otherwise applicable under this Act is impracticable or is not necessary for the adequate protection of public health and safety, it shall promulgate regulations exempting such substances from these requirements to the extent it deems consistent with the objective of adequately safeguarding public health and safety, and any hazardous substance which does not bear a label in accordance with such regulations shall be deemed mislabeled hazardous substance. Article 93. Grounds for Seizure and Condemnation of Mislabeled Hazardous Substances. – (a) Any mislabeled hazardous substance when

introduced into commerce or while held for sale shall be liable to be proceeded against and condemned upon order of the concerned department in accordance with existing procedure for seizure and condemnation of articles in commerce: Provided, That this Article shall not apply to a hazardous substance intended for export to any foreign country if: (1) it is in a package labeled in accordance with the specifications of the foreign purchaser;

(2) it is labeled in accordance with the laws of the foreign country;

(3) it is labeled on the outside of the shipping package to show that it is intended for export; and

(4) it is so exported, (b) any hazardous substance condemned under this

Article shall after entry of order of condemnation be disposed of by destruction or sale as the concerned department may direct, and the proceeds thereof, if sold, less the legal cost and charges, shall be paid into the treasury of the Philippines; but such hazardous substance shall not be sold under any order which is contrary to


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the provisions of this Act; Provided, That, after entry of the order and upon the payment of the costs of such proceedings and the execution of a good and sufficient bond conditioned that such hazardous substance shall not be sold or disposed of contrary to the provisions of this Act, the concerned department may direct that such hazardous substance be delivered to or retained by the owner thereof for destruction or for alteration to comply with the provisions of this Act under the supervision of an officer or employee duly designated by the concerned department. The expenses for such supervision shall be paid by the person obtaining release of the hazardous substance under bond.

(c) all expenses in connection with the destruction

provided for in paragraphs (a) and (b) of this Article and all expenses in connection with the storage and labor with respect to such hazardous substance shall be paid by the owner or consignee, and default in such payment shall constitute a lien against any importation by such owner or consignee.

Article 94. Labeling Requirements of Cigarettes. – All cigarettes for sale or distribution within the country shall be contained in a package which shall bear the following statement or its equivalent in Filipino: "Warning" Cigarette Smoking is Dangerous to Your Health". Such statement shall be located in conspicuous place on every cigarette package and shall appear in conspicuous and legible type in contrast by typography, layout or color with other printed matter on the package. Any advertisement of cigarette shall contain the name warning as indicated in the label. Article 95. Penalties. – (a) Any person who shall violate the provisions of

Title III, Chapter IV of this Act, or its implementing rules and regulations, except Articles 81 to 83 of the same Chapter, shall be subject to a fine of not less than Five hundred pesos (P500.00) but not more than Twenty thousand pesos (P20,000.00) or imprisonment of not less than three (3) months but not more than two (2) years or both, at the discretion of the court: Provided, That, if the consumer product is one which is not a food, cosmetic, drug, device or hazardous substance, the penalty shall be a fine of not less than Two hundred pesos (P200.00) but not more than Five thousand pesos (P5,000.00) or imprisonment of not less than one (1) month but not more than one (1) year or both, at the discretion of the court.

(b) Any person who violates the provisions of Article

81 to 83 for the first time shall be subject to a fine of not less than Two hundred pesos (P200.00) but not more than Five thousand pesos (P5,000.00) or by imprisonment of not less than one (1) month but not more than six (6) months or both, at the discretion of the court. A second conviction under this paragraph shall also carry with it the penalty of revocation of business permit and license.

Article 96. Implementing Agency. – The Department of Trade and Industry shall enforce the provisions of this Chapter and its implementing rules and regulations. Article 97. Liability for the Defective Products. – Any Filipino or foreign manufacturer, producer, and any importer, shall be liable for redress, independently of fault, for damages caused to consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and handling and making up, presentation or packing of their products, as well as for the insufficient or inadequate information on the use and hazards thereof. A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: (a) presentation of product (b) use and hazards reasonably expected of it; (c) the time it was put into circulation. A product is not considered defective because another better quality product has been placed in the market. The manufacturer, builder, producer or importer shall not be held liable when it evidences: (a) that it did not place the product on the market; (b) that although it did place the product on the

market such product has no defect; (c) that the consumer or a third party is solely at

fault. Article 98. Liability of Tradesman or Seller. – The tradesman/seller is likewise liable, pursuant to the preceding article when: (a) it is not possible to identify the manufacturer,

builder, producer or importer; (b) the product is supplied, without clear

identification of the manufacturer, producer, builder or importer;

(c) he does not adequately preserve perishable goods. The party making payment to the damaged party may exercise the right to recover a part of the whole of the payment made


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against the other responsible parties, in accordance with their part or responsibility in the cause of the damage effected.

Article 99. Liability for Defective Services. – The service supplier is liable for redress, independently of fault, for damages caused to consumers by defects relating to the rendering of the services, as well as for insufficient or inadequate information on the fruition and hazards thereof. The service is defective when it does not provide the safety the consumer may rightfully expect of it, taking the relevant circumstances into consideration, including but not limited to: (a) the manner in which it is provided; (b) the result of hazards which may reasonably be

expected of it; (c) the time when it was provided. A service is not considered defective because of the use or introduction of new techniques. The supplier of the services shall not be held liable when it is proven: (a) that there is no defect in the service rendered; (b) that the consumer or third party is solely at

fault. Article 100. Liability for Product and Service Imperfection. – The suppliers of durable or nondurable consumer products are jointly liable for imperfections in quality that render the products unfit or inadequate for consumption for which they are designed or decrease their value, and for those resulting from inconsistency with the information provided on the container, packaging, labels or publicity messages/advertisement, with due regard to the variations resulting from their nature, the consumer being able to demand replacement to the imperfect parts. If the imperfection is not corrected within thirty (30) days, the consumer may alternatively demand at his option: a) the replacement of the product by another of

the same kind, in a perfect state of use; b) the immediate reimbursement of the amount

paid, with monetary updating, without prejudice to any losses and damages;

c) a proportionate price reduction. The parties may agree to reduce or increase the term specified in the immediately preceding paragraph; but such shall not be less than seven (7) nor more than one hundred and eighty (180) days.

The consumer may make immediate use of the alternatives under the second paragraph of this Article when by virtue of the extent of the imperfection, the replacement of the imperfect parts may jeopardize the product quality or characteristics, thus decreasing its value. If the consumer opts for the alternative under sub-paragraph (a) of the second paragraph of this Article, and replacement of the product is not possible, it may be replaced by another of a different kind, mark or model: Provided, That any difference in price may result thereof shall be supplemented or reimbursed by the party which caused the damage, without prejudice to the provisions of the second, third and fourth paragraphs of this Article. Article 101. Liability for Product Quantity Imperfection. – Suppliers are jointly liable for imperfections in the quantity of the product when, in due regard for variations inherent thereto, their net content is less than that indicated on the container, packaging, labeling or advertisement, the consumer having powers to demand, alternatively, at his own option: a) the proportionate price b) the supplementing of weight or measure

differential; c) the replacement of the product by another of

the same kind, mark or model, without said imperfections;

d) the immediate reimbursement of the amount paid, with monetary updating without prejudice to losses and damages if any.

The provisions of the fifth paragraph of Article 99 shall apply to this Article. The immediate supplier shall be liable if the instrument used for weighing or measuring is not gauged in accordance with official standards. Article 102. Liability for Service Quality Imperfection. – The service supplier is liable for any quality imperfections that render the services improper for consumption or decrease their value, and for those resulting from inconsistency with the information contained in the offer or advertisement, the consumer being entitled to demand alternatively at his option: a) the performance of the services, without any

additional cost and when applicable; b) the immediate reimbursement of the amount

paid, with monetary updating without prejudice to losses and damages, if any;

c) a proportionate price reduction.


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Reperformance of services may be entrusted to duly qualified third parties, at the supplier's risk and cost. Improper services are those which prove to be inadequate for purposes reasonably expected of them and those that fail to meet the provisions of this Act regulating service rendering. Article 103. Repair Service Obligation. – When services are provided for the repair of any product, the supplier shall be considered implicitly bound to use adequate, new, original replacement parts, or those that maintain the manufacturer's technical specifications unless, otherwise authorized, as regards to the latter by the consumer. Article 104. Ignorance of Quality Imperfection. – The supplier's ignorance of the quality imperfections due to inadequacy of the products and services does not exempt him from any liability. Article 105. Legal Guarantee of Adequacy. – The legal guarantee of product or service adequacy does not require an express instrument or contractual exoneration of the supplier being forbidden. Article 106. Prohibition in Contractual Stipulation. – The stipulation in a contract of a clause preventing, exonerating or reducing the obligation to indemnify for damages effected, as provided for in this and in the preceding Articles, is hereby prohibited, if there is more than one person responsible for the cause of the damage, they shall be jointly liable for the redress established in the pertinent provisions of this Act. However, if the damage is caused by a component or part incorporated in the product or service, its manufacturer, builder or importer and the person who incorporated the component or part are jointly liable. Article 107. Penalties. – Any person who shall violate any provision of this Chapter or its implementing rules and regulations with respect to any consumer product which is not food, cosmetic, or hazardous substance shall upon conviction, be subject to a fine of not less than Five thousand pesos (P5,000.00) and by imprisonment of not more than one (1) year or both upon the discretion of the court. In case of juridical persons, the penalty shall be imposed upon its president, manager or head. If the offender is an alien, he shall, after payment of fine and service of sentence, be deported without further deportation proceedings.

NUISANCE

Art. 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.

Art. 696. Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it.

Art. 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence.

Art. 698. Lapse of time cannot legalize any nuisance, whether public or private. LIABILITY FOR NEGLIGENCE VS. LIABILITY FOR NUISANCE

Negligence Nuisance Basis

Liability is based on lack of proper care and diligence

Liability attaches regardless of the skill exercised to avoid the injury

Condition of the Act Act complained of is already done which caused injury to the plaintiff

There is continuing harm being suffered by the aggrieved party by the maintenance of the act or thing which constitutes the nuisance

Remedy Action for damages Abatement NUISANCE PER SE It is recognized as a nuisance under any and all circumstances because it constitutes a direct menace to public health and safety and, for that reason, may be abated summarily under the undefined law of necessity. To become a nuisance per se, the thing must, of itself, because of its inherent qualities, without complement, be productive of injury, or, by reason of


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the matter of its use or exposure, threaten or be dangerous to life or property. NUISANCE PER ACCIDENCE It becomes a nuisance depending upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance. PUBLIC NUISANCE

Art. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition. A public nuisance is the doing of or the failure to do something that injuriously affects safety, health, or morals of the public, or works some substantial annoyance, inconvenience or injury to the public. It causes hurt, inconvenience, or damage to the public generally, or such part of the public as necessarily comes in contact with it in the exercise of a public or common right.

Art. 699. The remedies against a public nuisance are: (1) A prosecution under the Penal Code or any local

ordinance: or (2) A civil action; or (3) Abatement, without judicial proceedings.

Art. 700. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of.

Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor. Art. 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance.

Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself.

Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a

breach of the peace, or doing unnecessary injury. But it is necessary: (1) That demand be first made upon the owner or

possessor of the property to abate the nuisance; (2) That such demand has been rejected; (3) That the abatement be approved by the district

health officer and executed with the assistance of the local police; and

(4) That the value of the destruction does not exceed three thousand pesos.

PRIVATE NUISANCE It is one which violates only private rights and produces damage to but one or a few persons, and cannot be said to be public.

Art. 705. The remedies against a private nuisance are: (1) A civil action; or (2) Abatement, without judicial proceedings.

Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed.

Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: (1) If he causes unnecessary injury; or (2) If an alleged nuisance is later declared by the

courts to be not a real nuisance. ATTRACTIVE NUISANCE Contributory negligence of a minor does not bar recovery, where his immaturity and natural curiosity impelled him to act to his injury; but discretion shown by the child is the decisive factor. Del Rosario vs. Manila Electric Co. (1932): It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to his immature years and the natural curiosity which a child would feel to do something out of the ordinary, and the mere fact that the deceased ignored the caution of a companion of the age of 8 years does not, in our opinion, alter the case. Hidalgo Enterprises vs. Balandan (1952): One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing


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therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children VIOLATION OF CONSTITUTIONAL RIGHTS VIOLATION OF CIVIL LIBERTIES

Art 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion (2) Freedom of speech (3) Freedom to write for the press or to maintain a

periodical publication (4) Freedom from arbitrary or illegal detention (5) Freedom of suffrage (6) The right against deprivation of property without

due process of law (7) The right to just compensation when property is

taken for public use (8) The right to equal protection of the laws (9) The right to be secure in one’s person, house,

papers and effects against unreasonable searches and seizures

(10) The liberty of abode and of changing the same (11) The right to privacy of communication and

correspondence (12) The right to become a member of associations

and societies for purposes not contrary to law (13) The right to take part in a peaceable assembly

and petition the government for redress of grievances

(14) The right to be free from involuntary servitude in any form

(15) The right of the accused against excessive bail (16) The right of the accused to be heard by himself

and counsel, to be informed of the nature and the cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, to have compulsory process to secure the attendance of witnesses on is behalf;

(17) Freedom form being compelled to be a witness against one’s self, or from being forced to confess his guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness.

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional;

(19) Freedom of access to the courts In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted) and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal code or any other penal statute. Aberca, et al. vs. Ver, et al. (1988): It is obvious that the purpose of the above codal provision (Art. 32) is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. VIOLATIONS OF RIGHTS COMMITTED BY PUBLIC OFFICERS Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

Art. 32, supra. Dereliction of Duty Amaro vs. Samanguit: Requisites: (1) Defendant is a public officer charged with a

performance of a duty in favor of the plaintiff; (2) He refused or neglected without just cause to

perform the duty;


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(3) Plaintiff sustained material or moral loss as a consequence of such non-performance;

(4) The amount of such damages, if material. Coverage Applies only to acts of nonfeasance or the nonperformance of some acts which a person is obliged or has responsibility to perform. The duty of the public servant must be ministerial in character. If the duty is discretionary, he is not liable unless he acted in a notoriously arbitrary manner. Defense of Good Faith is not available The reason of its unavailability is that an officer is under constant obligation to discharge the duties of his office, and it is not necessary to show that his failure to act was due to malice or willfulness.

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Art. 34 covers a situation where: (a) There is danger to the life or property of person; (b) A member of a city or municipal police force who

is present in the scene refused or failed to render aid or protection to the person; and

(c) Damages are caused wither to the person and/or property of the victim.

Nature of liability (1) Of the police officer – Primary (2) City or municipality - Susidiary The defense of having observed the diligence of a good father of a family to prevent the damage is not available to the city/municipality. PROVINCES, CITIES, AND MUNICIPALITIES

Art. 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. Ownership of Roads, etc. is not required City of Manila vs. Teotico (1968): It is not necessary for the liability therein established to attach that the

defective roads or streets belong to the province, city or municipality. What said article requires is that the province, city or municipality have either "control or supervision" over said street or road. OWNERS OF MOTOR VEHICLES

Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. If the owner was not in the motor vehicle, the provisions of article 2180 are applicable.

Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.

Art. 2186. Every owner of a motor vehicle shall file with the proper government office a bond executed by a government-controlled corporation or office, to answer for damages to third persons. The amount of the bond and other terms shall be fixed by the competent public official. The owner is SOLIDARILY liable with the driver for motor vehicle mishaps when: (1) The owner was IN the vehicle at the time, AND (2) The owner could have, by the use of due

diligence, prevented the misfortune. Owner of the vehicle “Owner” shall mean the actual legal owner of the motor vehicle, in whose name such vehicle is duly registered with the LTO. Registration of motor vehicles is required not because it is the operative act which transfers ownership in vehicles, but because it is the means by which the owner can be identified so that if any accident occurs, or damage or injury is caused in the operation of the vehicle, responsibility can be fixed. As held in Vargas vs. Langcay, “the registered owner/operator of a passenger vehicle is jointly and severally liable with the driver for damages incurred by passengers or third persons as a consequence of injuries or death sustained in the operation of said vehicles. Regardless of who the actual owner of a vehicle is, the operator of record continues to be the operator of the vehicle as regards the public and


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third persons and as such is directly and primarily responsible for the consequences incident to its operation, so that in contemplation of law, such owner/operator of record is the employer of the driver, the actual operator and employer being considered merely as his agent.” The registered owner of a motor vehicle is primarily liable for the damage or injury caused to another, but he has a right to be indemnified by the real owner of the amount he was required to pay (Tamayo vs, Aquino) This rule applies both to private and to common carriers with respect to their passengers. Note: If the owner was NOT inside the vehicle, Art. 2180 applies. The presumption is AGAINST the owner of the motor vehicle. He has the burden of proving due diligence. Thus, once a driver is proven negligent in causing damage, the law presumes the vehicle owner equally negligent and imposes upon the latter the burden of proving proper selection of employee as a defense. Summary:

Owner PRESENT in the Vehicle

Owner NOT PRESENT in the Vehicle

Owner is liable if he could have prevented the mishap by the exercise of due diligence.

Owner may be held liable under Art. 2180, par. 5.

Caedo vs. Yu Khe Tai (1968): Car owners are not held to a uniform and inflexible standard of diligence as are professional drivers. In many cases they refrain from driving their own cars and instead hire other persons to drive for them precisely because they are not trained or endowed with sufficient discernment to know the rules of traffic or to appreciate the relative dangers posed by the different situations that are continually encountered on the road. What would be a negligent omission under aforesaid Article on the part of a car owner who is in the prime of age and knows how to handle a motor vehicle is not necessarily so on the part, say, of an old and infirm person who is not similarly equipped. The law does not require that a person must possess a certain measure of skill or proficiency either in the mechanics of driving or in the observance of traffic rules before he may own a motor vehicle. The test of his negligence, within the meaning of Article 2184, is his omission to do that which the evidence of his own senses tells him he should do in order to avoid the

accident. And as far as perception is concerned, absent a minimum level imposed by law, a maneuver that appears to be fraught with danger to one passenger may appear to be entirely safe and commonplace to another. Were the law to require a uniform standard of perceptiveness, employment of professional drivers by car owners who, by their very inadequacies, have real need of drivers' services, would be effectively proscribed.

Duavit vs. CA (1989): An owner of a vehicle cannot be held liable for an accident involving the said vehicle if the same was driven without his consent or knowledge and by a person not employed by him. PROPRIETOR OF BUILDING OR STRUCTURE

Art. 2190. The proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.

Art. 2191. Proprietors shall also be responsible for damages caused: (1) By the explosion of machinery which has not

been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place;

(2) By excessive smoke, which may be harmful to persons or property;

(3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure;

(4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place.

Art. 2192. If damage referred to in the two preceding articles should be the result of any defect in the construction mentioned in article 1723, the third person suffering damages may proceed only against the engineer or architect or contractor in accordance with said article, within the period therein fixed. Ownership of a building imposes on the proprietor thereof the duty to maintain it in good condition at all times to the end that it may not collapse either totally or partially as to cause damage or injury to another’s person or property. This duty obtains whether the building is leased or held in usufruct. Considering, however, that the lessee or usufructuary has direct and immediate control of the building, the law imposes on him the duty to notify the proprietor


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of such urgent or extra-ordinary repairs AND where the proprietor’s failure to make the necessary repairs was due to the failure of the lessee or usufructuary to notify him, the proprietor is entitled to indemnification for damages he may have been required to pay to the parties.

Gotesco Investment Corp. vs. Chatto (1992): The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances and amusement devices are safe for the purpose for which they are designed, the doctrine being subject to no other exception or qualification than that he does not contract against unknown defects not discoverable by ordinary or reasonable means. HEAD OF FAMILY

Art 2193. The head of a family that lives in a building or a part thereof, is responsible for damages caused by things thrown or falling from the same. Purpose of the law To relieve the injured party of the difficulty of determining and proving who threw the thing or what caused it to fall, or that either was due to the fault or negligence of any particular individual. Dingcong vs. Kanaan (1941): Lessee is considered as the head of the family. It is enough that he lives in and has control over it.

Strict Liability POSSESSOR AND USER OF AN ANIMAL

Art. 2183. The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease only in case the damage should come from force majeure or from the fault of the person who has suffered damage. APPLICABILITY OF PROVISION Since the law makes no distinction, this is applicable to both wild (in case the wild animal is kept) and domestic animals. It is enough that defendant is the possessor, owner, or user of the animal at the time it caused the damage complained of, to hold him liable therefor. BASIS Vestil vs. IAC (1989): Possession of the animal, not ownership, is determinative of liability under Art. 2183. The obligation imposed by said article is not

based on the negligence or on the presumed lack of vigilance of the possessor or user of the animal causing damage. It is based on natural equity and on the principle of social interest that he who possesses animals for his utility, pleasure, or service, must answer for any damage which such animal may cause. POSSIBLE DEFENSES AGAINST THIS LIABILITY (1) Force Majeure (2) Fault of person suffering damage (3) Act of third persons

SCOPE OF PROVISION Contention that the defendant could not be expected to exercise remote control of the animal is not acceptable. In fact, Art. 2183 holds the possessor liable even if the animal should “escape or be lost” and so be removed from his control. It is likewise immaterial that the animal was tame and was merely provoked by the victim. The law does not speak only of vicious animals but covers even tame ones as long as they cause injury. NUISANCE Sangco: A person who creates or maintains a nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid the injury. The creation or maintenance of a nuisance is a violation of an absolute duty. Nuisance is a condition and not an act or failure to act, so that if a wrongful condition exists, the person responsible for its existence is responsible for the resulting damages to others. CLASSES (1) Nuisance per se; Nuisance per accidence (2) Public nuisance; private nuisance

Iloilo Ice and Cold Storage Co. vs. Municipal Council (1913): A nuisance is, according to Blackstone, "Any thing that worketh hurt, inconvenience, or damages." They arise from pursuing particular trades or industries in populous neighborhoods; from acts of public indecency, keeping disorderly houses, and houses of ill fame, gambling houses, etc. Nuisances have been divided into two classes: Nuisances per se, and nuisances per accidens. To the first belong those which are unquestionably and under all circumstances nuisances, such as gambling houses, houses of ill fame, etc. The number of such nuisances is necessarily limited, and by far the greater number of nuisances are such because of particular facts and circumstances surrounding the otherwise harmless cause of the nuisance. For this


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reason, it will readily be seen that whether a particular thing is a nuisance is generally a question of fact, to be determined in the first instance before the term nuisance can be applied to it.

Salao and Lucas vs. Santos (1939): Nuisances are of two kinds: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances because it constitutes a direct menace to public health or safety and, for that reason, may ‘be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance. EASEMENT AGAINST NUISANCE

Art. 682. Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes.

Art. 683. Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood. The provisions impose a prohibition upon owners of buildings of land from committing therein a nuisance or using such buildings or lands in a manner as will constitute a nuisance. It is based on the maxim sic utere tuo ut alienum non laedas (so use your own as not to injure another’s property).

Velasco vs. Manila Electric Co. (1971): The general rule is that everyone is bound to bear the habitual or customary inconveniences that result from the proximity of others, and so long as this level is not surpassed, he may not complain against them. But if the prejudice exceeds the inconveniences that such proximity habitually brings, the neighbor who causes such disturbances is held responsible for the resulting damage, being guilty of causing nuisance. While no previous adjudications on the specific issue have been made in the Philippines, our law of nuisances is of American origin, and a review of authorities clearly indicates the rule to be that the causing or maintenance of disturbing noise or sound may constitute an actionable nuisance.

There can be no doubt that commercial and industrial activities which are lawful in themselves may become nuisances if they are so offensive to the senses that they render the enjoyment of life and property uncomfortable. It is no defense that skill and care have been exercised and the most improved methods and appliances employed to prevent such result. PRODUCTS LIABILITY (SUPRA)

Art 2187. Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers. CONSUMER ACT

Consumer Act Provisions (supra)

Coca-Cola v. CA (1993): While it may be true that the pre-existing contract between the parties may, as a general rule, bar the applicability of the law on quasi-delict, the liability may itself be deemed to arise from quasi-delict if the act which breaks the contract is also a quasi-delict. Summary: Person Strictly

Liable For What Defenses or

Exceptions Possessor of an animal or whoever makes use of them even if the animal is lost or escaped

For the damage it may cause

Force majeure Fault of the person who suffered damage

Owner of Motor Vehicle

Motor vehicle mishaps

Solidary liability only if the owner was in the vehicle and if he could have prevented it thru due diligence If not in vehicle 2180

Manufacturers and Processors of foodstuffs, drinks, toilet articles and similar goods (FDTAS)

Death and injuries caused by any noxious or harmful substances used

Absence on contractual relation NOT a defense

Defendant in possession of dangerous

Death or injury results from such possession

possession or use thereof is indispensable in


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Person Strictly Liable

For What Defenses or Exceptions

weapons/ substances such as firearms and poison

his occupation or business

Provinces, Cities and Municipalities

The death or injuries suffered by any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works

Public works must be under their supervisions

Proprietor of building/ structure

a) Total or partial collapse of building or structure if due to lack of necessary repairs

b) Explosion of machinery which has not been taken cared of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place

c) By excessive smoke, which may be harmful to persons or property

d) By falling of trees situated at or near highways or lanes, if not caused by force majeure

e) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed

Responsibility for collapse should be due to the lack of necessary repairs

Person Strictly Liable

For What Defenses or Exceptions

without precautions suitable to the place

Engineer, Architect or Contractor

if damage of building or structure is caused by defect in construction which happens within 15 years from construction; action must be brought within 10 years from collapse

Head of the Family that lives in a building or any part thereof

Liable for damages caused by things thrown or falling from the same

UP COLLEGE OF LAW DAMAGES BAR OPERATIONS COMMISSION

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Damages DEFINITION People vs. Ballesteros: Damages may be defined as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or the violation of some right. DAMAGES VS. INJURY Custodio v. CA (1996): Injury is the illegal invasion of a legal right. Damage is the loss, hurt, or harm which results from the injury. Damages are the recompense or compensation awarded for the damage suffered. Ocena vs. Icamina: The obligation to repair the damages exists whether done intentionally or negligently and whether or not punishable by law. ELEMENTS FOR RECOVERY OF DAMAGES (1) Right of action (2) For a wrong inflicted by the defendant (3) Damage resulting to the plaintiff CLASSIFICATION

Art. 2197. Damages may be: (1) Actual or compensatory; (2) Moral; (3) Nominal; (4) Temperate or moderate; (5) Liquidated; or (6) Exemplary or corrective. ACCORDING TO PURPOSE (1) For adequate reparation of the injury

a) Compensatory (reparation of pecuniary losses)

b) Moral (reparation for non-pecuniary losses: injury to feelings; physical suffering, etc.)

(2) For vindication of the right violated: Nominal (3) For less than adequate reparation: Moderate (4) For deterring future violations: Exemplary or

corrective ACCORDING TO MANNER OF DETERMINATION (1) Conventional (or liquidated) (2) Non-conventional, which may either be:

(a) Statutory (fixed by law, as in moratory interest)

(b) Judicial (determined by the courts) SPECIAL AND ORDINARY General damages Those which are the natural and necessary result of the wrongful act or omission asserted as the

foundation of liability, and include those which follow as a conclusion of law from the statement of the facts of the injury. Special damages Damages that arise from the special circumstance of the case, which, if properly pleaded, may be added to the general damages which the law presumes or implies from the mere invasion of the plaintiff’s rights. Special damages are the natural, but NOT the necessary result of an injury. These are not implied by law.

Actual and Compensatory Damages Compensatory damages are damages in satisfaction of, or in recompense for, loss or injury sustained. The phrase “actual damages” is sometimes used as synonymous with compensatory damages. REQUISITES

Asilio, Jr. v. People and Sps. Bombasi (2011): To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable. WHEN IS A PERSON ENTITLED? (1) When there is a pecuniary loss suffered by him; (2) When he has alleged and prayed for such relief

(Manchester Dev’t Corp vs. CA); (3) When he has duly proved it; (4) When provided by law or by stipulation. No proof of pecuniary loss is necessary for: moral, nominal, temperate, liquidated or exemplary damages. The assessment of such damages is discretionary upon the court, except liquidated ones. (Art. 2216) ALLEGED AND PROVED WITH CERTAINTY Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. THE DAMAGES MUST BE PROVEN BY COMPETENT EVIDENCE (ADMISSIBLE OR

PROBATIVE)

Integrated Packaging Corp. vs. CA; Fuentes vs. CA: It is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on


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the best evidence obtainable by the injured party, the actual amount of loss. Damages must be proved and cannot be presumed. It must be established by clear evidence. Valencia vs. Tantoco (1956): Damages must be proved with reasonable accuracy, even when not denied. DEGREE OF CERTAINTY REQUIRED AS TO: FACT, CAUSE AND AMOUNT OF DAMAGES Damages are not rendered uncertain just because they cannot be calculated with absolute exactness or because the consequences of the wrong are not precisely definite in pecuniary amount. The principle which will disallow recovery of damages when their existence rests solely on speculation applies both to the fact and cause of damages. (1) The requirement of certainty does not prevent the

drawing of reasonable inferences from the fact and circumstance in evidence.

(2) Events which occur after the wrong complained of may serve to render the damage sufficiently certain.

(3) The damages must be susceptible of ascertainment in some manner other than by mere speculation, conjecture or surmise and by reference to some fairly definite standard, such as market value, established experience or direct inference from known circumstances.

Talisay-Silay vs. Associacion: Where, however, it is reasonably certain that injury consisting of failure to realize otherwise reasonably expected profits had been incurred, uncertainty as to the precise amount of such unrealized profits will not prevent recovery or the award of damages. NOT SPECULATIVE Actual damages to be compensable must be proved by clear evidence, a court cannot rely on speculation, conjectures or guesswork as to the fact and amount of damages, but must depend on actual proof that damages has been suffered and on evidence of the actual amount. COMPONENTS Actual damage covers the following: (1) Value of loss; unrealized profit (2) Attorney’s fees and expenses of litigation (3) Interest

VALUE OF LOSS; UNREALIZED PROFIT

Art. 2200. Indemnification for damages shall comprehend not only the value of the loss suffered, but also that of the profits which the obligee failed to obtain. In other words, indemnification for damages is not limited to damnum emergens (actual loss) but extends to lucrum cessans (a cession of gain or amount of profit lost). ATTORNEY’S FEES AND EXPENSES OF

LITIGATION

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (1) When exemplary damages are awarded; (2) When the defendant's act or omission has

compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just and demandable claim;

(6) In actions for legal support; (7) In actions for the recovery of wages of household

helpers, laborers and skilled workers; (8) In actions for indemnity under workmen's

compensation and employer's liability laws; (9) In a separate civil action to recover civil liability

arising from a crime; (10) When at least double judicial costs are awarded; (11) In any other case where the court deems it just

and equitable that attorney's fees and expenses of litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable. General Rule Attorney’s fees and costs of litigation are recoverable IF stipulated. Exceptions If there is no stipulation, they are recoverable only in the following cases: (1) By reason of malice or bad faith

(a) When exemplary damages are awarded (b) In case of a clearly unfounded civil action (c) Where defendant acted in gross and evident

bad faith


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(d) When at least double judicial costs are awarded

(2) By reason of plaintiff’s indigence in (a) Actions for legal support (b) Actions for recovery of wages of laborers,

etc. (c) Actions for workmen’s compensation

(3) By reason of crimes in (a) Criminal cases of malicious prosecution (b) Separate actions to recover civil liability

arising from crime (4) By reason of equity

(a) Where the defendant’s act compelled plaintiff to litigate with third persons

(b) Where the Court deems it just and equitable Note: In all cases, attorney’s fees and costs of litigation must be reasonable. Even if expressly stipulated, attorney’s fees are subject to control by the Courts. INTEREST

Art. 2209. If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is six per cent per annum.

Art. 2210. Interest may, in the discretion of the court, be allowed upon damages awarded for breach of contract.

Art. 2211. In crimes and quasi-delicts, interest as a part of the damages may, in a proper case, be adjudicated in the discretion of the court.

Art. 2212. Interest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent upon this point.

Art. 2213. Interest cannot be recovered upon unliquidated claims or damages, except when the demand can be established with reasonable certainty. INTEREST ACCRUES WHEN: (1) The obligation consists in the payment of a sum

of money (2) Debtor incurs in delay (3) There being no stipulation to the contrary

No interest may be recovered on unliquidated (not fixed in amount) claims or damages, except when the demand can be established with reasonable certainty at the Court’s discretion. COMPOUNDING OF INTEREST Interest due shall earn legal interest from the time it is judicially demanded, although the obligation may be silent on the point. Note that interest due can earn only at 6%, whether the rate of interest of the principal is greater than 6%. DETERMINATION OF LEGAL INTEREST (1) When an obligation, regardless of its source (i.e.,

law, contracts, quasi-contracts, delicts or quasi-delicts) is breached, the contravenor can be held liable for damages.

(2) With regard particularly to an AWARD OF INTEREST in the concept of actual and compensatory damages, the RATE of interest, as well as the ACCRUAL thereof, is imposed, as follows (Eastern Shipping Lines vs. CA, 1994):

Base

Rate

Accrual

(a) When the obligation is breached, and it consists in the PAYMENT OF A SUM OF MONEY, i.e., a loan or forbearance of money, the interest due should be

(a) That which may have been stipulated in writing. b) In the absence of stipulation, the rate of interest shall be 12% per annum (legal interest)

to be computed from default, i.e., from JUDICIAL or EXTRAJUDICIAL demand under and subject to the provisions of Article 1169 of the Civil Code.

(b) Furthermore, the INTEREST DUE shall itself earn

legal interest from the time it is JUDICIALLY demanded.

(c) When an obligation, NOT constituting a loan or forbearance of money, is breached, an interest on the AMOUNT OF DAMAGES awarded may be imposed at

at the rate of 6% per annum.

If claim or damages are LIQUIDATED, from default, i.e., from judicial or extrajudicial demand. (Art. 1169, Civil Code) If UNLIQUIDATED, from the time the demand can be


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Base

Rate

Accrual

the discretion of the court. The actual base for the computation of legal interest shall be on the amount finally adjudged.

established with reasonable certainty. Hence, the interest shall begin to run only FROM THE DATE THE JUDGMENT OF THE COURT IS MADE (at which time the quantification of damages may be deemed to have been reasonably ascertained).

(d) When the JUDGMENT of the court awarding a sum of money becomes final and executory,

the rate of legal interest, whether the case falls under a,b, or c, above, shall be 12% per annum

from FINALITY UNTIL ITS SATISFACTION, this period being deemed to be an equivalent to a forbearance of credit.

START OF DELAY (1) Extrajudicial: demand letter (2) Judicial: Filing of complaint (3) Award EXTENT OR SCOPE OF ACTUAL DAMAGES Art. 2201

Contracts and quasi contracts

Liability extends to those: (1) natural and

probable consequences of the breach

(2) those that have been foreseen

(3) those that could have been reasonably foreseen

Provided: obligor in good faith

Note: Liability extends to all damages which may be reasonably attributed to the non-performance of the obligation in case of fraud, bad faith, malice or wanton attitude (FBM-WA).

Art. 2202 Crimes

and quasi-delicts

Liability extends to all damages which are the natural and probable consequence

Note: WON damage is foreseen is irrelevant

IN CONTRACTS AND QUASI-CONTRACTS

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted. In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation.

Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.

Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the

terms of the contract; (2) That the plaintiff has derived some benefit as a

result of the contract; (3) In cases where exemplary damages are to be

awarded, that the defendant acted upon the advice of counsel;

(4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant

has done his best to lessen the plaintiff's loss or injury.

(a) The obligor IN GOOD FAITH is liable for such

damages (1) That are the natural and probable

consequences of the breach of the obligation; and

(2) That the parties have foreseen (or could have reasonably foreseen) such damages at the time the obligation was constituted “Natural and probable” consequence requires: (1) Causality: That the damage would not

have resulted without fault or negligence of the defendant (but for rule)

(2) Adequacy: That the fault of the obligor would normally (ordinarily) result in the damage suffered by the obligee

(b) In case of FRAUD, BAD FAITH, MALICE OR

WANT OF ATTITUDE, the obligor answers for


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(1) All damages which may be reasonably attributed to the non-performance of the obligation, whether foreseen or not

(2) Exemplary or corrective damages Note: Interest may be allowed on damages awarded, in the discretion of the court. Daywalt vs. Recoletos et al.: The damages recoverable upon breach of contract are, primarily, the ordinary, natural and in a sense the necessary damages resulting from the breach. Other damages, known as special damages, are recoverable where it appears that the particular conditions which made such damages a probable consequence of the breach were known to the delinquent party at the time the contract was made. IN CRIMES AND QUASI-DELICTS

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant.

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the

earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

Defendant is liable for all damages which are the natural and probable consequences of the act or omission complained of; it is not necessary that such

damages were foreseen, or reasonably foreseeable by the defendant. Algarra vs. Sandejas: Actual damages for a negligent act or omission are confined to those which "were foreseen or might have been foreseen," or those which were "the natural and probable consequences" or "the direct and immediate consequences" of the act or omission. Note: Damages are to be increased or decreased (in case of crimes only) according to aggravating or mitigating circumstances present. Interest, as part of damages, may be adjudicated in a proper case, in the Court’s discretion. Contributory negligence of the plaintiff, in case of quasi-delicts, shall reduce the damages to which he may be entitled. Note: In crimes, no mitigation for contributory negligence.

Moral Damages

Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission.

Art. 2218. In the adjudication of moral damages, the sentimental value of property, real or personal, may be considered. Visayan Sawmill vs. CA: Moral damages are emphatically not intended to enrich a complainant at the expense of the defendant. Its award is aimed at the restoration, within the limits of the possible, of the spiritual status quo ante, and it must be proportional to the suffering inflicted. Bagumbayan Corp. vs. IAC (1984): Mental suffering means distress or serious pain as distinguished from annoyance, regret or vexation. Mental anguish is intense mental suffering. Generally, damages for mental anguish are limited to cases in which there has been a personal physical injury or where the defendant willfully, wantonly,


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recklessly, or intentionally caused the mental anguish. WHEN AWARDED Awarded when injury consists of: (PBMF-MWSSS) (a) Physical suffering (b) Besmirched reputation (c) Mental anguish (d) Fright (e) Moral shock (f) Wounded feelings (g) Social humiliation (h) Serious anxiety (i) Similar injury (1) Though incapable of pecuniary computation (2) If such is the proximate result of defendant’s act

or omission. REQUISITES FOR AWARDING MORAL DAMAGES Villanueva vs. Salvador: Requisites for awarding moral damages: (1) there must be an injury, whether physical, mental

or psychological, clearly sustained by the claimant;

(2) there must be a culpable act or omission factually established;

(3) the wrongful act or omission of the defendant must be the proximate cause of the injury sustained by the claimant; and

(4) the award of damages is predicated on any of the cases stated in ART. 2219 NCC.

GENERAL PRINCIPLES OF RECOVERY: (1) Moral damages must somehow be proportional

to the suffering inflicted.

(2) In culpa contractual or breach of contract, moral damages may be recovered when the defendant acted in bad faith or was guilty of gross negligence (amounting to bad faith) or in wanton disregard of his contractual obligation and, exceptionally, when the act of breach of contract itself is constitutive of tort resulting in physical injuries.

(3) By special rule in Article 1764, in relation to

Article 2206, moral damages may also be awarded in case the death of a passenger results from a breach of carriage.

(4) In culpa aquiliana or quasi-delict,

(a) when an act or omission causes physical injuries, or

(b) where the defendant is guilty of intentional tort, moral damages may aptly be recovered. This rule also applies to

contracts when breached by tort.

(5) In culpa criminal, moral damages could be lawfully due when the accused is found guilty of physical injuries, lascivious acts, adultery or concubinage, illegal or arbitrary detention, illegal arrest, illegal search, or defamation.

(6) Malicious prosecution can also give rise to a claim for moral damages. The term "analogous cases," referred to in Article 2219, following the ejusdem generis rule, must be held similar to those expressly enumerated by the law.

(7) Although the institution of a clearly unfounded

civil suit can at times be a legal justification for an award of attorney's fees, such filing, however, has almost invariably been held not to be a ground for an award of moral damages. (Expertravel& Tours vs. CA, 1 to 7)

(8) The burden rests on the person claiming moral

damages to show convincing evidence for good faith is presumed. In a case involving simple negligence, moral damages cannot be recovered. (Villanueva vs. Salvador)

(9) Failure to use the precise legal terms or

"sacramental phrases" of "mental anguish, fright, serious anxiety, wounded feelings or moral shock" does not justify the denial of the claim for damages. It is sufficient that these exact terms have been pleaded in the complaint and evidence has been adduced (Miranda-Ribaya vs. Bautista)

(10) Even if the allegations regarding the amount of

damages in the complaint are not specifically denied in the answer, such damages are not deemed admitted. (Raagas, et al. vs. Traya et al).

(11) An appeal in a criminal case opens the whole

case for review and this 'includes the review of the penalty, indemnity and damages. Even if the offended party had not appealed from said award, and the only party who sought a review of the decision of said court was the accused, the court can increase damages awarded. (Sumalpong vs. CA)

(12) It can only be awarded to natural persons.

ABS-CBN vs. CA: The award of moral damages cannot be granted in favor of a corporation because, being an artificial person and having existence only in legal contemplation, it has no feelings, no emotions, no senses, It cannot, therefore, experience


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physical suffering and mental anguish, which can be experienced only by one having a nervous system. The statement in People vs. Manero and Mambulao Lumber Co. vs. PNB that a corporation may recover moral damages if it "has a good reputation that is debased, resulting in social humiliation" is an obiter dictum.

NAPOCOR vs. Philipp Brothers: While it is true that besmirched reputation is included in moral damages, it cannot cause mental anguish to a corporation, unlike in the case of a natural person, for a corporation has no reputation in the sense that an individual has, and besides, it is inherently impossible for a corporation to suffer mental anguish. Question Ortillo contracts Fabricato, Inc. to supply and install tile materials in a building he is donating to his province. Ortillo pays 50% of the contract price as per agreement. It is also agreed that the balance would be payable periodically after every 10% performance until completed. After performing about 93% of the contract, for which it has been paid an additional 40% as per agreement, Fabricato, Inc. did not complete the project due to its sudden cessation of operations. Instead, Fabricato, Inc. demands payment of the last 10% of the contract despite its non-completion of the project. Ortillo refuses to pay, invoking the stipulation that payment of the last amount of 10% shall be upon completion. Fabricato, Inc. brings suit for the entire 10% plus damages. Ortillo counters with claims for (a) moral damages for Fabricato, Inc.’s unfounded suit which has damaged his reputation as a philanthropist and respected businessman in his community, and (b) attorney’s fees. (a) Does Ortillo have a legal basis for his claim for

moral damages? (b) How about his claim for attorney’s fees, having

hired a lawyer to defend him? Suggested Answer: (a) There is no legal basis to Ortillo’s claim for

moral damages. It does not fall under the coverage of Article 2219 of the New Civil Code.

(b) Ortillo is entitled to attorney’s fees because Fabricato’s complaint is a case of malicious prosecution or a clearly unfounded civil action (Art. 2208 [4] and [11], NCC).

WHEN RECOVERABLE Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious

acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27,

28, 29, 30, 32, 34, and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.

Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. IN SEDUCTION, ABDUCTION, RAPE AND OTHER LASCIVIOUS

ACTS

People vs. Calongui: Anent the award of damages, civil indemnity ex delicto is mandatory upon finding of the fact of rape while moral damages is awarded upon such finding without need of further proof because it is assumed that a rape victim has actually suffered moral injuries entitling the victim to such award. If without factual and legal bases, no award of exemplary damages should be allowed. Note: Recovery may be had by the offended party and also by her parents. IN ACTS REFERRED TO IN ARTS. 21, 26, 27, 28, 29, 32,

34 &35, NCC

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:


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(1) Prying into the privacy of another's residence: (2) Meddling with or disturbing the private life or




Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken.

Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.

Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground.

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a

periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without

due process of law;

(7) The right to a just compensation when private property is taken for public use;

(8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house,

papers, and effects against unreasonable searches and seizures;

(10) The liberty of abode and of changing the same; (11) The privacy of communication and

correspondence; (12) The right to become a member of associations

or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly

to petition the government for redress of grievances;

(14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself

and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein


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recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complaint may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. Please refer to previous discussions on the provisions. IN CASES OF MALICIOUS PROSECUTION

Mijares vs. CA: Moral damages cannot be recovered from a person who has filed a complaint against another in good faith, or without malice or bad faith. If damage results from the filing of the complaint, it is damnum absque injuria. Castillo vs. Castillo: The adverse result of an action does not per se make the act wrongful and subject the actor to the payment of moral damages. The law could not have meant to impose a penalty on the right to litigate; such right is so precious that moral damages may not be charged on those who may exercise it erroneously.

Nominal Damages Nominal damages consist in damages awarded, not for purposes of indemnifying the plaintiff for any loss suffered, but for the vindication or recognition of a right violated by the defendant. REQUISITES AND CHARACTERISTICS (1) Invasion or violation of any legal or property right. (2) No proof of loss is required. (3) The award is to vindicate the right violated. WHEN AWARDED

Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.

Art. 2222. The court may award nominal damages in every obligation arising from any source enumerated in article 1157, or in every case where any property right has been invaded.

Art. 2223. The adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns. General Rule: One does not ask for nominal damages, and it is in lieu of the actual, moral, temperate, or liquidated damages. Nominal damages are incompatible with: actual, temperate and exemplary damages. Armovit vs. CA: Nominal damages cannot co-exist with actual or compensatory damages. Francisco v. Ferrer: No moral or exemplary damages was awarded. Nevertheless, when confronted with their failure to deliver on the wedding day the wedding cake ordered and paid for, petitioners gave the lame excuse that delivery was probably delayed because of the traffic, when in truth, no cake could be delivered because the order slip got lost. For such prevarication, petitioners must be held liable for nominal damages for insensitivity, inadvertence or inattention to their customer's anxiety and need of the hour.

Temperate Damages

Art. 2224. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be provided with certainty.

Art. 2225. Temperate damages must be reasonable under the circumstances.


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These damages are awarded for pecuniary loss, in an amount that, from the nature of the case, cannot be proved with certainty. REQUISITES (1) Actual existence of pecuniary loss (2) The nature and circumstances of the loss

prevents proof of the exact amount (3) They are more than nominal and less than

compensatory. (4) Causal connection between the loss and the

defendant’s act or omission. (5) Amount must be reasonable. In cases where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur are difficult to predict, temperate damages can and should be awarded on top of actual or compensatory damages; in such cases there is no incompatibility between actual and temperate damages.

Citytrust Bank vs. IAC: Temperate damages are incompatible with nominal damages hence, cannot be granted concurrently.

Pleno vs. CA: Temperate damages are included within the context of compensatory damages (RCPI vs. CA). There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is convinced that there has been such loss. For instance, injury to one's commercial credit or to the goodwill of a business firm is often hard to show certainty in terms of money. (NOTE: In this case actual and temperate damages were awarded. It is postulated that the actual damages is for the car while the temperate damages is for the lost actual income not sufficiently proved.)

Liquidated Damages

Art. 2226. Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof.

Art. 2227. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable.

Liquidated damages are those damages agreed upon by the parties to a contract to be paid in case of breach thereof. It differs from a penal clause in that in the latter case the amount agreed to be paid may bear no relation to the probable damages resulting from the breach. Basically, a penalty is “ad terrorem,” while liquidated damages are “ad reparationem.” REQUISITES AND CHARACTERISTICS (1) Liquidated damages must be validly stipulated. (2) There is no need to prove the amount of actual

damages. (3) Breach of the principal contract must be proved. RULES GOVERNING BREACH OF CONTRACT

Art. 2228. When the breach of the contract committed by the defendant is not the one contemplated by the parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the stipulation. (a) These damages are agreed upon in a contract in

case of breach thereof. (b) There is no need to prove the amount, only the

fact of the breach. (c) The amount can be reduced if:

(1) unconscionable as determined by the court (2) partial or irregular performance.

General Rule: The penalty shall substitute the indemnity for damages and the payment of the interests in case or breach. Exceptions (1) When there is a stipulation to the contrary. (2) When the obligor is sued for refusal to pay the

agreed penalty. (3) When the obligor is guilty of fraud.

Exemplary Or Corrective Damages

Art. 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. In common law, these damages were termed “punitive.”


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PNB vs. CA: However, the award of P1,000,000 exemplary damages is also far too excessive and should likewise be reduced to an equitable level. Exemplary damages are imposed not to enrich one party or impoverish another but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions. WHEN RECOVERABLE IN CRIMINAL OFFENSES; NCC ART. 2230

Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party. Award of exemplary damages is part of the civil liability, not of the penalty. Damages are paid to the offended party separately from the fines. IN QUASI-DELICTS; NCC ART. 2231

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. IN CONTRACTS AND QUASI-CONTRACTS; NCC ART. 2232

Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. REQUISITES ARTS. 2233, 2234

Art. 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated.

Art. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in addition to the liquidated damages, the

plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages.

Art. 2235. A stipulation whereby exemplary damages are renounced in advance shall be null and void. Requisites to recover exemplary damages and liquidated damages agreed upon The plaintiff must show that he/she is entitled to moral, temperate or compensatory damages:

If arising from When exemplary damages are granted

Art. 2230

Crimes

the crime was committed with an aggravating circumstance/s

Art. 2231

Quasi-delicts defendant acted with gross negligence

Art. 2232

Contracts and Quasi- contracts

defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner (WFROMM)

General Principles (1) Exemplary damages cannot be awarded alone:

they must be awarded IN ADDITION to moral, temperate, liquidated or compensatory damages.

(2) The purpose of the award is to deter the defendant (and others in a similar condition) from a repetition of the acts for which exemplary damages were awarded; hence, they are not recoverable as a matter of right.

(3) The defendant must be guilty of other malice or else negligence above the ordinary.

(4) Plaintiff is not required to prove the amount of exemplary damages. a. But plaintiff must show that he is entitled to

moral, temperate, or compensatory damage; that is, substantial damages, not purely nominal ones. This requirement applies even if the contract stipulates liquidated damages.

b. The amount of exemplary damage need not be pleaded in the complaint because the same cannot be proved. It is merely incidental or dependent upon what the court may award as compensatory damages.


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DAMAGES IN CASE OF DEATH RE. CRIMES AND QUASI-DELICTS

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the

earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

In death caused by breach of conduct by a common crime Heirs of Raymundo Castro vs. Bustos (1969): when death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages: (1) As indemnity for the death of the victim of the

offense — P12,000.00, without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense.

(2) As indemnity for loss of earning capacity of the deceased — an amount to be fixed by the Court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court.

(3) As moral damages for mental anguish, — an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased.

(4) As exemplary damages, when the crime is attended by one or more aggravating circumstances, — an amount to be fixed in the discretion of the court, the same to be considered separate from fines.

(5) As attorney's fees and expresses of litigation, — the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded).

(6) Interests in the proper cases. (7) It must be emphasized that the indemnities for

loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons.

Formula for the net earning capacity People vs. Aringue (1997): Net earning capacity = Life expectancy * (Gross annual income – Reasonable living expenses) Where: Life expectancy = 2/3 * (80 – age of victim at the time of death) Tan, et al. vs. OMC Carriers, Inc. (2011): As a rule, documentary evidence should be presented to substantiate the claim for loss of earning capacity. By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when: (1) the deceased is self-employed and earning less than the minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in the deceased's line of work, no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum wage under current labor laws.

Graduation of Damages DUTY OF THE INJURED PARTY

Art. 2203. The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question.

Lim and Gunnaban vs. CA (2002): Article 2203 of the Civil Code exhorts parties suffering from loss or injury


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to exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question. One who is injured then by the wrongful or negligent act of another should exercise reasonable care and diligence to minimize the resulting damage. Anyway, he can recover from the wrongdoer money lost in reasonable efforts to preserve the property injured and for injuries incurred in attempting to prevent damage to it. BURDEN OF PROOF The DEFENDANT has the burden of proof to establish that the victim, by the exercise of the diligence of a good father of a family, could have mitigated the damages. In the absence of such proof, the amount of damages cannot be reduced. Note: The victim is required only to take such steps as an ordinary prudent man would reasonably adopt for his own interest. RULES IN CRIMES Art. 2204. In crimes, the damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances. IN QUASI-DELICTS

Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. CONTRIBUTORY NEGLIGENCE

Genobiagon vs. CA (1989): The alleged contributory negligence of the victim, if any, does not exonerate the accused in criminal cases committed through reckless imprudence, since one cannot allege the negligence of another to evade the effects of his own negligence. Rakes vs. Atlantic (1907): If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a proximate, although not as its primary cause. (Supreme Court in this case cited numerous foreign precedents, mostly leaning towards the doctrine that contributory negligence on the part of the plaintiff did not exonerate defendant from liability, but it led to the reduction of damages awarded to the plantiff.)

Cangco vs. Manila Railroad Co. (1918): In determining the question of contributory negligence in performing such act — that is to say, whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the passenger are circumstances necessarily affecting the safety of the passenger, and should be considered. PLAINTIFF’S NEGLIGENCE Manila Electric vs. Remonquillo (1956): Even if Manila Electric is negligent, in order that it may be held liable, its negligence must be the proximate and direct cause of the accident. Bernardo vs. Legaspi (1914): Both of the parties contributed to the proximate cause; hence, they cannot recover from one another. IN CONTRACTS, QUASI-CONTRACTS AND QUASI-DELICTS

Art. 2215 In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the

terms of the contract; (2) That the plaintiff has derived some benefit as a

result of the contract; (3) In cases where exemplary damages are to be

awarded, that the defendant acted upon the advice of counsel;

(4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant

has done his best to lessen the plaintiff's loss or injury.

INSTANCES OF GROUNDS FOR MITIGATION OF DAMAGES (a) For Contracts:

(1) Violation of terms of the contract by the plaintiff himself;

(2) Obtention or enjoyment of benefit under the contract by the plaintiff himself;

(3) Defendant acted upon advice of counsel in cases where exemplary damages are to be awarded such as under Articles 2230, 2231, and 2232;

(4) Defendant has done his best to lessen the plaintiff’s injury or loss.

(b) For Quasi-Contracts:

(1) In cases where exemplary damages are to be awarded such as in Art. 2232;


(c) For Quasi-Delicts:


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(1) That the loss would have resulted in any event because of the negligence or omission of another, and where such negligence or omission is the immediate and proximate cause of the damage or injury;


RULE WHEN CONTRACTING PARTIES ARE IN PARI DELICTO Generally, parties to a void agreement cannot expect the aid of the law; the courts leave them as they are, because they are deemed in pari delicto or "in equal fault." In pari delicto is "a universal doctrine which holds that no action arises, in equity or at law, from an illegal contract; no suit can be maintained for its specific performance, or to recover the property agreed to be sold or delivered, or the money agreed to be paid, or damages for its violation; and where the parties are in pari delicto, no affirmative relief of any kind will be given to one against the other." This rule, however, is subject to exceptions that permit the return of that which may have been given under a void contract to: (a) the innocent party (Arts. 1411-1412, Civil Code); (b) the debtor who pays usurious interest (Art. 1413,

Civil Code); (c) the party repudiating the void contract before

the illegal purpose is accomplished or before damage is caused to a third person and if public interest is subserved by allowing recovery (Art. 1414, Civil Code);

(d) the incapacitated party if the interest of justice so demands (Art. 1415, Civil Code);

(e) the party for whose protection the prohibition by law is intended if the agreement is not illegal per se but merely prohibited and if public policy would be enhanced by permitting recovery (Art. 1416, Civil Code); and

(f) the party for whose benefit the law has been intended such as in price ceiling laws (Art. 1417, Civil Code) and labor laws (Arts. 1418-1419, Civil Code).

LIQUIDATED DAMAGES

Art. 2227. Liquidated damages, whether intended as an indemnity or a penalty, shall be equitably reduced if they are iniquitous or unconscionable. COMPROMISE

Art. 2031. The courts may mitigate the damages to be paid by the losing party who has shown a sincere desire for a compromise.

Miscellaneous Rules DAMAGES THAT CANNOT CO-EXIST NOMINAL WITH OTHER DAMAGES

Art. 2223. The adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns.

Vda. De Medina vs. Cresencia (1956): The propriety of the damages awarded has not been questioned, Nevertheless, it is patent upon the record that the award of P10,000 by way of nominal damages is untenable as a matter of law, since nominal damages cannot co-exist with compensatory damages. The purpose of nominal damages is to vindicate or recognize a right that has been violated, in order to preclude further contest thereon; “and not for the purpose of indemnifying the Plaintiff for any loss suffered by him” (Articles 2221, 2223, new Civil Code.) Since the court below has already awarded compensatory and exemplary damages that are in themselves a judicial recognition that Plaintiff’s right was violated, the award of nominal damages is unnecessary and improper. Anyway, ten thousand pesos cannot, in common sense, be deemed “nominal”. ACTUAL AND LIQUIDATED

Art. 2226. Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof.

DAMAGES THAT MUST CO-EXIST EXEMPLARY WITH MORAL, TEMPERATE, LIQUIDATED OR

COMPENSATORY

Francisco vs. GSIS (1963): There is no basis for awarding exemplary damages either, because this species of damages is only allowed in addition to moral, temperate, liquidated, or compensatory damages, none of which have been allowed in this case, for reasons herein before discussed.

Scott Consultants & Resource Development Corp. vs. CA (1995): There was, therefore, no legal basis for the award of exemplary damages since the private respondent was not entitled to moral, temperate, or compensatory damages and there was no agreement on stipulated damages. DAMAGES THAT MUST STAND ALONE


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NOMINAL DAMAGES

Art. 2223. The adjudication of nominal damages shall preclude further contest upon the right involved and all accessory questions, as between the parties to the suit, or their respective heirs and assigns.

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