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TORTS AND DAMAGES

KATHRYN PINEDA DELA SERNA I. GENERAL CONSIDERATIONS WHAT IS THE MEANING OF THE WORD TORT? The word tort is taken directly from the French and is a derivation of the Latin word torquere meaning to twist. HOW IS TORT DEFINED IN COMMON LAW? In common law, tort is an unlawful violation of rivate right, not created !y contract, and which gives rise to an action for damages. It is an act or omission roducing in"ury to another, without any revious e#isting lawful relation of which said act or omission may !e said to !e a natural outgrowth or incident. It is a rivate or civil wrong or in"ury, other than !reach of contract, for which the court will rovide a remedy in the form of an action for damages. It is a violation of a duty im osed !y general law or otherwise u on all ersons occu ying the relation to each other which is involved in a given transaction. There must always !e violation of some duty that must give rise y o eration of law and not !y mere agreement of the arties. $ tort is a wrong inde endent of a contract, which arises from an act or omission of a erson which causes some in"ury or damage directly or indirectly to another erson. It may either !e %&' a direct invasion of some legal right of the individual( %)' the infraction of some u!lic duty !y which s ecial damage accrues to the individual( %*' the violation of some rivate o!ligation !y which like damage accrues to the individual. WHAT ARE THE KINDS OF TORTS IN COMMON LAW? Tort in common law includes+ &. I,T-,TI.,$L T./T0 which include conduct where the actor desires to cause the conse1uences of his act or !elieves the conse1uences are su!stantially certain to result from it. It includes assault, !attery, false im risonment, defamation, invasion of rivacy and interference of ro erty. ). ,-2LI2-,3- involves voluntary acts or omissions which result in in"ury to others, without intending to cause the same. The actor fails to e#ercise due care in erforming such acts or omissions. *. 0T/I3T LI$4ILIT5 I, T./T where the erson is made lia!le inde endent of fault or negligence u on su!mission of roof of certain facts. WHAT ARE THE ELEMENTS OF TORT?

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There are three most im ortant elements of tort+ &. /ight and duty( ). $ct or omission( and *. 8amage WHAT IS QUASI-DELICT? 9hoever !y act or omission causes damage to another, there !eing fault or negligence is o!liged to ay for the damage done. 0uch fault or negligence, if there is no re:e#isting contractual relation !etween the arties, is called quasi-delict and is governed !y the rovisions of $rticle )&;< of the 3ivil 3ode. HOW IS TORT DISTINGUISHED FROM QUASI-DELICT? Quasi-delict is what is known as T./T in $nglo:$merican law. Tort is !roader than the 0 anish:6hili ine conce t of quasi-delict which is /oman in origin. Tort in $nglo: $merican Law includes not only negligence !ut also intentional criminal acts, such as assault and !attery, false im risonment and deceit. Quasi-delict, on the other hand, covers only acts or omissions which cause damage to another !ecause of fault or negligence, there !eing no re: e#isting contractual relation !etween the arties. This is referred to as non:contractual negligence. The conce t of tort came to our legal system after the 6hili ines !ecame a colony of the =nited 0tates of $merica as a result of the Treaty of 6aris signed on 8ecem!er &>, &?@?. The 3ode commission deli!erately used the term quasi-delicts to designate those o!ligations which do not arise from law, contracts, quasi-contracts, or criminal offenses, !ecause this term more nearly corres onds to the /oman law classification of o!ligations and is in harmony with the nature of this kind of lia!ility. It re"ected to use the term Tort, which is !roader, !ecause in the general lan of the 6hili ine legal system, intentional and malicious acts, which certain e#ce tions, are governed !y the 6enal 3ode. WHAT ARE THE SOURCES OF THE LAW ON TORTS AND DAMAGES? The law on Torts and 8amages is !ased on several articles s read in the ,ew 3ivil 3ode and s ecial laws, articularly the following+ &. 3ha ter on Quasi-Delicts %$rticles )&;< to )&@A' ). 3ha ter on Quasi-Contracts %$rticles )&AA, )&AB, )&A<, )&A;, )&A?, )&B>, )&B& and )&B@' *. 3ha ter on Cuman /elations %$rticles &@ to *<' A. $rticles &&;) to &&;A of the ,ew 3ivil 3ode which are made a lica!le to quasi-delicts %0ee $rticle )&;?' B. $rticle &;)*, ,ew 3ivil 3ode %0ee $rticle )&@)' <. $rticle *>@, ,ew 3ivil 3ode %0ee $rticle ))&@ D@E' ;. $rticle &*&A ,33 %3ontractual Interference'

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?. Family 3ode of the 6hili ines @. $rticles &>> to &>* of the /evised 6enal 3ode %see $rticle )&;;, ,33' &>. Title FGIII %8amages' covering $rticles )&@B to ))*B, ,33. &&. 3ha ter on ,uisance %$rticles <@A to ;>;, ,33' &). 3ha ter III, 0ection A %3ommon 3arriers' covering $rticles &;BB to &;<*, ,33 &*. /.$. ,o. ;?;; %$nti:0e#ual Carassment $ct' &A. 0u reme 3ourt decisions &B. $merican law and "uris rudence( and &<. . inion of legal authors WHAT ARE THE MAJOR PURPOSES OF TORT LAW? The ma"or ur oses of tort law include the following+ &. To rovide a eaceful means for ad"usting the rights of arties who might otherwise take the law into their own hands( ). 8eter wrongful conduct( *. To encourage socially res onsi!le !ehavior( and A. To restore in"ured arties to their original condition, insofar as the law can do this, !y com ensating them from their in"ury WHAT ARE THE KINDS OF INTERESTS PROTECTED BY TORT LAWS UNDER THE CIVIL CODE AND WHAT ARE THE SPECIFIC PROVISIONS WHICH PROTECT SUCH INTEREST? I,T-/-0T 6/.T-3T-8 6erson &. Freedom from contract and movement ). Freedom from distress 8ignity &. /e utation ). 6rivacy *. Freedom from wrongful actions 6ro erty &. /eal ro erty -conomicI6ecuniary &. 3ontracts ). Freedom form dece tion T./T0 $,8 6/.GI0I.,0 I,G.LG-8 of &. 6hysical In"uries %$rt. *)', Quasi Delict %$rt. )&;<' ). Horal 8amages %$rts. ))&;:)))>' &. 8efamation %$rt. **' ). Giolation of 6rivacy %$rt. )<' *. Halicious 6rosecution %$rts. )>, )&' &. ,uisance %$rts. <@A:;;>', Quasi Delict %$rticle )&;<' &. Interference with contractual rights %$rt. &*&A' ). Fraud %$rt. **

WHAT ARE THE DISTINCTIONS BETWEEN CULPA CONTRACTUAL, CULPA AQUILIANA AND CULPA CRIMINAL? CULPA CONTRACTUAL CULPA AQUILIANA CULPA CRIMINAL There is a re:e#isting There is no re:e#isting There is nor re:e#isting

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o!ligation %a contract, either e# ressed or im lied' 6re onderance of evidence is re1uired. 8efense of good father of a family in the selection and su ervision of em loyees is not a ro er and com lete defense !ut this can mitigate lia!ility for damages The e#istence of a contract must !e roven. If it is roven and it is also roven that the contract was not com lied with, it is resumed that the de!tor is at fault. ,egligence is only incidental to the erformance of an e#isting o!ligation !ased on contract.

o!ligation. 6re onderance of evidence is needed. 8efense of a good father of a family in the selection of the em loyees is a ro er defense of the em loyer.

contractual o!ligation. The crime must !e roven !eyond reasona!le dou!t. This defense cannot !e inter osed. If the em loyee is insolvent or inca a!le to ay the civil as ect or lia!ility, the em loyer is su!sidiarily lia!le

The fault or negligence of the The innocence of the accused defendant must !e roven. is resumed until the contrary is roven.

,egligence is direct, ,egligence is direct, su!stantive and inde endent. su!stantive and inde endent.

HOW IS QUASI-DELICT DISTINGUISHED FROM DELICT OR CRIME? 4$0I0 &. Legal !asis of lia!ility J=$0I:8-LI3T There can !e a quasi-delict as long as there is fault or negligence resulting in damage or in"ury to another. It is !roader in sco e than crime. 3riminal intent is no necessary for quasi-delict to e#ist. Fault or negligence without intent will suffice. /ight violated is a rivate right. Quasi-delict is a wrongful act against a rivate individual. -very quasi-delict gives rise to lia!ility for damages. 8-LI3T ./ 3/IHThere can !e no crime unless there is a law unishing the act. 3riminal intent is essential for criminal lia!ility to e#ist. /ight violated is a u!lic one. 3rime is a wrong against the 0tate.

). 3riminal intent

*. ,ature of right violated

A. Lia!ility for damages

B. 6roofs needed <. 0anction or enalty

0ome crimes %like contem t, illegal ossession of firearm' do not give rise to lia!ility for damages. 6roof of the fault or The guilt of the accused must negligence re1uires only !e roved !eyond reasona!le re onderance of evidence. dou!t. /e aration or indemnification 6unishment is either

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of the in"ury or damage.

im risonment, fine or !oth( sometimes other accessory enalties are im osed.

HOW IS QUASI-DELICT DISTINGUISHED FROM CULPA CONTRACTUAL? 4$0I0 &. ,ature of negligence Juasi:8elict ,egligence is direct, su!stantive and inde endent %Rakes vs. Atlantic ! P"il. #$%' 3ul a 3ontractual ,egligence is merely incidental to the erformance of the contractual o!ligation. There is a re:e#isting contract or o!ligation. %Rakes vs. Atlantic su&ra' This is not a com lete and ro er defense in the selection and su ervision of em loyees. %Can'co vs. MRC in(ra.' There is resum tion of negligence as long as it can !e roved that there was !reach of the contract. The defendant must rove that there was no negligence in the carrying out of the terms of the contract. %Can'co vs. MRC su&ra'

). 8efense of good father of a This is a com lete and ro er family defense insofar as arents, guardians, em loyers are concerned %$rt. )&?>, last ar.' *. 6resum tion of negligence There is no resum tion of negligence. The in"ured arty must rove the negligence of the defendant %Can'co vs. MRC #) P"il. !*)'. .therwise, the com laint of in"ured arty will !e dismissed. APPLICATION: F$3T0+ F, I,3. K 6=4LI3 =TILIT5 3.H6$,5 5 K 4=0 8/IG-/, /-37L-00 8/IGI,2 L K 6$00-,2-/ I,M=/-8 3$=0-0 .F $3TI.,+ &. Cul&a contractual K negligence !ased on contract ). Cul&a aquiliana K negligence !ased on tort *. Cul&a cri+inal K negligence !ased on a crime 3=L6$ 3.,T/$3T=$L

In the contract of carriage of assengers, it is the o!ligation of the carrier to convey the assengers safely to the oint of destination. In case a assenger is not !rought safely thereto, there will !e a !reach of contract. $ny case !rought !ased on cul&a contractual will !e ca tioned

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Passen'er , vs. - Inc !ecause the contract is !etween them. The driver is not to !e included as a arty to the action, !ecause he is not a arty to the contract. $s to him, there is no rivity. 3=L6$ $J=ILI$,$ 8amage caused to another due to negligence. The case will !e entitled Passen'er , vs. - Inc. and Driver ./ %the defendants will !e solidarily lia!le as "oint:tortfeasors' 3=L6$ 3/IHI,$L The drivers act may amount to a crime % hysical in"uries through reckless im rudence'. The case will !e entitled Peo&le o( t"e P"ili&&ines vs. Driver ./ and if the latter is convicted !ut is insolvent, 6assenger L may ursue against F, Inc. to enforce the latters su!sidiary lia!ility. ,$T=/- .F TC- 3$0-0+ The weakest cause of action is cul&a aquiliana where the em loyer may raise the defense of due diligence in the selection and su ervision of the driver. Cul&a cri+inal is a stronger cause of action !ecause as to the com anys su!sidiary lia!ility the latters defense are limited, however the 1uantum of evidence needed to convict the em loyee would have to !e guilt !eyond reasona!le dou!t. Cul&a contractual %!reach of contractual of carriage' is a stronger cause of action !ecause if death or in"ury occurs, the resum tion of negligence automatically arises and the common carrier can !e held lia!le if he fails to rove the e#tra:ordinary diligence for the duration of the carriage. II. QUASI-DELICT UNDER THE CIVIL CODE A. ARTICLE !"#
$rticle )&;< : 9hoever !y act or omission causes damage to another, there !eing fault or negligence, is o!liged to ay for the damage done. 0uch fault or negligence, if there is no re: e#isting contractual relation !etween the arties, is called a 1uasi:delict and is governed !y the rovisions of this 3ha ter.

The article covers all wrongful acts or omissions as along as K &. They are not constitutive of !reach of contract( and ). They are not unisha!le as offenses. WHAT ARE THE ELEMENTS OF QUASI-DELICT? &. $ct or omission( ). 6resence of fault or negligence *. 8amage suffered !y the laintiff(

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A. 3ausal connection !etween the fault or negligence and the damage B. ,o re:e#isting contractual relation !. ACT OR OMISSION WHAT IS ACT OR OMISSION? 9hen a erson !y reason of his act or omission causes damage or re"udice to another, a "uridical relation is created !y virtue of which the in"ured erson ac1uires a right to !e indemnified and the erson causing the damage is charged with the corres onding duty of re airing the damaged. . FAULT OR NEGLIGENCE A. NEGLIGENCE WHAT IS NEGLIGENCE? $rticle &&;* of the ,ew 3ivil 3ode e# lains negligence as follows K
$rt. &&;*. The fault or negligence of the o!ligor consists in the omission of that diligence which is re1uired !y the nature of the o!ligation and corres onds with the circumstances of the ersons, of the time and of the lace. FFF If the law or contract does not state the diligence which is to !e o!served in the erformance, that which I e# ected of a good father of a family shall !e re1uired.

The 0u reme 3ourt has defined negligence as the failure to o!serve for the rotection of the interests of another erson, that degree of care, recaution and vigilance which the circumstances "ustly demand, where!y such other erson suffers in"ury % United 0tates vs. Arias 1# P"il. 2#23 4an vs. Court o( A&&eals 5*% 0CRA #!)' WHAT IS THE DEGREE OF CARE OF DILIGENCE REQUIRED? 4ased on the definition of $rticle &&;*, the degree of care, recaution, and vigilance that should !e o!served de ends on the circumstance of a' ersons, !' lace, and c' time. That which may !e considered therefore as sufficient care and recaution in a set of circumstances, may !e insufficient in another set of circumstances that confront the same individual. WHAT IS THE STANDARD OF CARE OR DILIGENCE REQUIRED? The standard or degree of care or diligence that should !e o!served is that which is e# ected of a good father of a family unless the law or sti ulation of the arties re1uires another standard of care.

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The 0u reme 3ourt e# lained in Picart vs. 0+it" in(ra that the standard of conduct used in the 6hili ines is that of &ater (a+ilias in /oman law or that what is referred to in $rticle &&;* of the ,33, in relation to $rticle )&;? as a good father of a family. 9hat should !e determined in negligence cases is what is foreseea!le to a good father of a family. $ good father of a family is likewise referred to as the reasona!le man, a man of ordinary intelligence and rudence, or ordinary reasona!le rudent man. WHAT OF CARE?
ARE E$AMPLES OF PROVISIONS OF LAW THAT REQUIRES ANOTHER STANDARD

a. $rticle &;** rovides that common carriers are !ound to o!serve e#traordinary diligence according to all circumstances of each case. !. $rticle &;BB rovides that common carrier is !ound to carry the assenger safely as far as human care and foresight can rovide, suing the utmost diligence of very cautious ersons, with due regard for all the circumstances. c. Cighest degree of diligence is re1uired in ractice of medicine Dlikened to the diligence re1uired of a common carrierE %Ra+os vs. CA Au'ust 55 1661 ' Res i&sa loquitor doctrine is a lica!le to ractice of medicine. CAN THERE BE A TORT IN MALPRACTICE IN LAW? 5es, while lawyers are no re1uired to e#ercise the e#traordinary diligence of a common carrier, they must e#ercise diligence not lesser than the diligence of a good father of a family in handling of cases which they acce ted from clients. %7entilla vs. Centeno 5 0CRA 15% &' In fact, a lawyer commits the crime of !etrayal of trust if he would maliciously !reach his rofessional duty, or is guilty of ine#cusa!le negligence or ignorance to the re"udice of his client. %$rticle )>@, /63' WHAT IS THE TEST OF DETERMINING NEGLIGENCE? In Picart vs. 0+it" #! P"il. )6$, the test of negligence is ca suliNed as follows K 9ould a rudent man, in the osition of the erson to whom negligence is attri!uted, foresee harm to the erson in"ured as a reasona!le conse1uence of the course a!out to !e ursuedO If so, the law im osed a duty on the actor to refrain from the course or take recaution against its mischievous results, and failure to do so constitutes negligence. WHAT ARE THE KINDS OF ACTIONABLE NEGLIGENCE? $ctiona!le negligence may either !e a' cul&a contractual, !' cul&a aquiliana, and c' criminal negligence. Thus an action fro damages for the negligent acts of the defendant may !e !ased on contract, delict, or quasi-delict. The !ases of lia!ility are se arate and distinct from each other even if only one act or omission is involved. WHAT IS THE COVERAGE OF NEGLIGENCE IN ARTICLE !"#?
1

$ lawyer was made lia!le for nominal damages for failure to erfect an a eal.

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$rticle )&;<, whenever it refers to fault or negligence, covers not only acts not unisha!le !y law !ut also acts criminal in character, whether intentional or voluntary or negligent. 3onse1uently, a se arate civil action lies against the offender in a criminal act, whether or not he is criminally rosecuted and found guilty or ac1uitted, rovided that the offended arty is not allowed %if the torfeasor is actually charged also criminally', to recover damages on !oth scores, and would !e entitled in such eventuality only to the !igger award of the two, assuming the awards made in the two cases vary %Anda+o vs. IAC 5$5 0CRA 161'. WHAT CIRCUMSTANCES ARE CONSIDERED IN DETERMINING NEGLIGENCE? &. ). *. A. B. <. ;. Time 6lace -mergency 2ravity of harm to !e avoided $lternative cause of action 0ocial value or utility of activity 6erson e# osed to the risk

.TC-/ F$3T./0 T. 3.,0I8-/ I, 8-T-/HI,I,2 ,-2LI2-,3-+ a. Giolation of rules and statutes !. 6ractice and custom c. 3om liance with rules and statutes WHAT ARE THE DEGREES OF NEGLIGENCE? a. .rdinary negligence !. 2ross negligence This is recogniNed in $rticle ))*& of the ,33 which rovides that in quasi-delicts e#em lary damages may !e granted if the defendant acted with gross negligence 2ross negligence is defined as want of even slight care of diligence. It is also characteriNed as im lying conscious indifference to conse1uence( ursuing a course of conduct which would naturally and ro!a!ly result to in"ury( utter disregard of conse1uences. PROOF OF NEGLIGENCE %. B&'()* +, -'++, WHO HAS THE BUDEN TO PROVE NEGLIGENCE? The laintiff must rove the elements of a quasi-delict, the most im ortant of which is the element of fault or negligence attri!uta!le to the defendant. If this is not roven, the laintiff cannot recover damages from the defendant. It is even resumed that a erson takes ordinary care of his concerns. The 1uantum of roof re1uired is re onderance of evidence.

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B.

PRESUMPTIONS WHAT ARE THE PRESUMPTIONS UNDER THE CIVIL CODE ON NEGLIGENCE?

The 3ivil 3ode rovides for the following cases when the e#istence of negligence is resumed. &. $rticle )&?A. It is dis uta!ly resumed that a driver was negligent, if he had !een found guilty of reckless driving or violating traffic regulations at least twice within the ne#t receding two months. ). $rticle )&?B. =nless there is roof to the contrary, it is resumed that a erson driving a motor vehicle has !een negligent if at the time of the misha , he was violating any traffic regulation. *. $rticle )&??. There is &ri+a (acie resum tion of negligence on the art of the defendant if the death or in"ury results from his ossession of dangerous wea ons or su!stances, such as firearm and oison, e#ce t when the ossession or use thereof is indis ensa!le in his occu ation or !usiness. A. 6resum tion of negligence may also arise !ecause of certain contractual relationshi !etween the arties. Thus the 3ivil 3ode rovides for a resum tion of negligence in case a assenger was in"ured in an accident involving his carrier. %$rticle &;*B'
C.

RES IPSA LOQUITOR. WHAT IS RES IPSA LOQUITOR?

This is one of the rules relied u on in negligence cases K the thing s eaks for itself. Its function is to aid the laintiff in roving the elements of a negligence case !y circumstantial evidence. In t"e case o( 0&ouses 8erna9e A(rica and 0oledad C. A(rica vs. CALT:- ;P"il.< Inc. , 2./. ,o. L:&)@?<, Harch *&, &@<<, ) the 0u reme 3ourt a lied the resum tion of negligence under the doctrine of Res I&sa Loquitur P 9here the thing which caused the in"ury com lained of is shown to !e under the management defendant or his servants and the accident is such as in the ordinary course of things does not ha en if those who have its management or control use ro er care, it affords reasona!le evidence, in a!sence of e# lanation !y defendant, that the accident arose from want of care. B. FAULT WHAT IS FAULT?
The gasoline station, with all its a liances, e1ui ment and em loyees, was under the control of a ellees. $ fire occurred therein and s read to and !urned the neigh!oring houses. The ersons who knew or could have known how the fire started were a ellees and their em loyees, !ut they gave no e# lanation thereof whatsoever. It is a fair and reasona!le inference that the incident ha ened !ecause of want of care.
2

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It is that condition where a erson acts in a way or manner contrary to what normally should have done. Fault is negligence, !reach of statutory duty or other act or omission which gives rise to a lia!ility in torts or would, a art from this act, give rise to the defense of contri!utory negligence WHAT ARE THE TWO KINDS OF FAULT? &. F$=LT 0=40T$,TIG- $,8 I,8-6-,8-,T, which on account of its origin, gives rise to an o!ligation !etween two ersons not similarly !ound !y any o!ligation, or ). $0 I, I,3I8-,T I, TC- 6-/F./H$,3- .F $, .4LI2$TI., 9CI3C $L/-$85 -FI0T-8 , which cannot !e resumed to e#ist without the other, and which increases the lia!ility arising from the already e#isting o!ligation. WHAT KIND OF FAULT IS REFERRED TO IN ARTICLE !"#? The fault referred to in $rticle )&;< is fault su!stantive and inde endent and which in itself a source of o!ligation. .. DAMAGE WHAT IS DAMAGE? 8amage is the loss, hurt or harm which results from in"ury. It differs from da+a'es which term refers to the recom ense or com ensation awarded for the damage suffered % 0o Pin' 8un vs. CA #52 0CRA !%5' /. CAUSAL CONNECTION BETWEEN THE FAULT OR NEGLIGENCE AND THE DAMAGE WHAT IS CAUSAL CONNECTION? The fault or negligence of the defendant must !e the ro#imate cause of the in"ury of the laintiff. If the cause of the in"ury is due to the laintiffs sole negligence, he cannot recover. There must !e clear evidence that the cause of the damage is the fault or negligence of the defendant. WHAT IS PRO$IMATE CAUSE? The ro#imate cause of in"ury is that cause which, in natural and continuous se1uence, un!roken !y any efficient intervening cause, roduces the in"ury, and without which the result would not have occurred. Hore com rehensively, the ro#imate legal cause is that acting first and roducing the in"ury, either immediately or !y setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with the redecessor, the final event in the chain immediately effecting the in"ury as a natural and ro!a!le result of the cause

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which first acted, under such circumstance, that the erson res onsi!le for the first event should, as an ordinarily rudent and intelligent erson, have reasona!le ground to e# ect at the moment of his act or default that an in"ury to some erson might ro!a!ly result therefrom. %7da De 8ataclan vs. Medina 561 P"il. 5)53 Tea'ue vs. =ernande> %5 0CRA 5)5'. 0. NO PRE1E$ISTING CONTRACT BETWEEN THE PARTIES STATE THE GENERAL RULE AS TO CONTRACTUAL RELATION OF THE PARTIES. If there is re:e#isting contractual relation !etween the arties and the same is violated, the ro er cause of action is not anchored on quasi-delict !ut !reach of contract or cul&acontractual. WHAT IS THE E$CEPTION TO THE ABOVE RULE? Cowever, there may !e cases of contractual relations like a contract of carriage !y air lane where quasi-delict may arise when the contract was grossly violated %Air =rance vs. Carrascoso 5) 0CRA 5%% *'. The tort lia!ility here is not !ased on the contract of carriage !ut on some other !ases like deli!erate and malicious violation of the contract. In other words, the e#istence of contract does not !ar the commission of a tort !y one against the other and the conse1uent recovery of damages. 9here the act that !reaks the contract may also !e a tort, the contractual relation of the arties does not !ar the recovery of damages. %0in'son vs. 8ank o( P.I. 5#1 P"il. %$! A' B. ARTICLE !""
/es onsi!ility for fault or negligence under the roceeding article is entirely se arate and distinct from the civil lia!ility arising from negligence under the 6enal 3ode. 4ut the laintiff cannot recover damages twice for the same act or omission of the defendant.

WHAT ARE THE KINDS OF NEGLIGENCE MENTIONED IN ARTICLE !""? The $rticle distinguishes two kinds of negligence K &. 3riminal negligence K is a violation of criminal law

In $ir France vs. 3arrascoso, a assenger was ousted from his first class accommodation and was com elled to take a seat in the tourist com artment. Ce was allowed to recover damages from the carrier notwithstanding the fact that the relation !etween the carrier and the assenger is contractual !oth in origin and nature. The 0u reme 3ourt held that the act itself of !reaking the contract creates a tort lia!ility. 4 In Mulian 3. 0ingson and /amona 8el 3astillo vs. 46I and 0antiago FreNas, the !ank clerk committed a mistake that caused the freeNing of the current account of Mulian 0ingson. $s a result, his checks were dishonored. The !ank a ologiNed to 0ingson and restored the checking account. ,evertheless, 0ingson sued the !ank for damages. The !ank inter osed the defense that there could !e no lia!ility for negligence or 1uasi:delict on account of the contractual relations !etween the !ank and 0ingson, and that the error was immediately corrected. The 0u reme 3ourt held that 0ingson can recover damages from the !ank des ite the e#istence of contractual relations !etween the arties !ecause the act itself that !reaks the contract may also !e a tort or 1uasi:delict.

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). 3ivil negligence K it is a distinct and inde endent negligence which is cul&a aquiliana or quasi-delict of ancient origin, having always its own foundation, se arate from criminal negligence. The article makes a distinction !etween a civil lia!ility arising from a quasi-delict, and civil lia!ility arising from a crime, that is, if the act or omission is unisha!le !y the /evised 6enal 3ode, or may create an action for quasi-delict or cul&a e?tra-contractual under the 3ivil 3ode %Anda+o vs. IAC 5$5 0CRA 5$%'.
ARE THE MODES OF ENFORCING CIVIL LIABILITY DUE TO FAULT OR NEGLIGENCE UNDER THE ARTICLE?

WHAT

The in"ured arty has the o tion K &. To ursue a criminal action which includes the claim for civil lia!ility arising from the crime !ased on $rticle &>> of the /evised 6enal 3ode( or ). To ursue an inde endent civil action !ased on quasi-delict under $rticles )&;< to )&@A of the ,ew 3ivil 3ode %:lcano vs. @ill !! 0CRA $)'. If the action is filed against the em loyer of the negligent em loyee, the offended arty may choose the remedy of rimary lia!ility allowed in $rticle )&?> or the su!sidiary lia!ility under the /evised 6enal 3ode. There is however, a limitation K he cannot recover damages twice for the same act or omission. A--234%53+*: B6 A FIVE YEAR1OLD1BOY6 WAS RUN OVER BY A PASSENGER JEEPNEY RESULTING IN HIS DEATH. O IS THE OWNER OF THE JEEPNEY. D IS THE DRIVER OF THE JEEPNEY. THE PARENTS OF B WANT TO SUE. WHAT ARE THEIR OPTIONS? &. They can sue 8 alone for homicide through reckless im rudence( or ). They can sue 5 for quasi-delict. CAN D BE CONVICTED OF HOMICIDE THROUGH RECKLESS IMPRUDENCE6 AND AT THE SAME TIME6 BE ORDERED TO INDEMNIFY THE PARENTS OF B? 5es, !ecause every erson criminally lia!ility is civilly lia!le. WHAT PROOF IS NEEDED TO SECURE CONVICTION OF D? The guilt of 8 should !e roven !eyond reasona!le dou!t. SUPPOSE THE GUILT OF D IS NOT PROVEN BEYOND REASONABLE DOUBT6 AND HE IS ACQUITTED6 CAN THE PARENTS OF B STILL SUE D FOR QUASI-DELICT?

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5es. The ac1uittal of 8 is not a !ar to a su!se1uent civil action. This is so !ecause the evidence in the criminal case may not !e sufficient for a conviction, !ut sufficient for a civil lia!ility, where mere re onderance of evidence is enough. CAN THE PARENTS OF B SUE O AND Y FOR QUASI-DELICT? 5es, !ut . can inter ose the defense that he e#ercised due diligence in the selection and su ervision of 8. If . roves this, he will !e e#cused from civil lia!ility.
WAS ABLE TO PROVE THAT THE E$ERCISE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF D6 CAN O STILL BE HELD LIABLE?

SUPPOSE O

5es, if it was roven for instance, that . was also in the "ee ney at the time of accident, and he could have, !y use of diligence, revented the misfortune, !ut he did not. % 7ide first ar, $rt. )&?A' IF D IS CONVICTED IN THE CRIMINAL CASE AND A WRIT OF E$ECUTION WAS ISSUED AGAINST HIM WITH RESPECT TO THE CIVIL LIABILITY6 BUT IT TURNED OUT THAT D IS INSOLVENT6 CAN THE WRIT OF E$ECUTION BE ENFORCED AGAINST O? 5es. The guilt of 8 is automatically the civil guilt of ., if 8 is insolvent. . is su!sidiarily lia!le as em loyer under $rticle &>* of the /evised 6enal 3ode and he cannot inter ose the defense that he e#ercised due diligence in the selection and su ervision of his driver.
THEY OPT TO SUE FOR QUASI-DELICT, WHAT PROOF IS NEEDED TO PROVE THEIR CASE AGAINST D AND O?

IF

The roof needed is a mere re onderance of evidence. $s against 8, the arents of 4 should rove the fault or negligence of 8. In other words, the elements of quasi-delict should !e roven. $s against ., the arents of 4 should rove that . has not e#ercised due diligence in the selection and su ervision of 8. HOW CAN O BE E$CUSED FROM LIABILITY? . can !e e#cused form lia!ility rovided he roves that he e#ercised due diligence in the selection and su ervision of 8 CAN O STILL BE HELD LIABLE EVEN IF HE PROVES DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF D? 5es, if it is roven that he was inside the "ee ney at the time of accident, and he could have, !y use of diligence, revented the misfortune, !ut which he did not e#ercise. P'+4)(&'%2 A7-)45 8C+*4&'')*4) +, C%&7)7 +, A453+* %*( R)9)(3)7:

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-nforcement of the civil lia!ility arising from crime is governed !y /ule &&& of the /evised /ules of 3ourt effective 8ecem!er &, )>>>. 0ections &, ), * and B rovide as follows+
0ec. &. Institution o( cri+inal and civil actions . K %a' 9hen a criminal action is instituted, the civil action for the recovery of civil lia!ility arising from the offense charged shall !e deemed instituted with the criminal action unless the offended arty waives the civil action, reserves his right to institute it se arately, or institutes the civil action rior to the criminal action. The reservation of the right to institute se arately the civil action shall !e made !efore the rosecution starts resenting its evidence and under circumstances affording the offended arty a reasona!le o ortunity to make such reservation. 9hen the offended arty seeks to enforce civil lia!ility against the accused !y way of moral, nominal, tem erate or e#em lary damages without s ecifying the amount thereof in the com laint or information, the filing fees thereof shall constitute a first lien on the "udgment awarding such damages. 9here the amount of damages, other that actual, is s ecified in the com laint or information, the corres onding filing fees shall !e aid !y the offended arty u on the filing thereof in court. -#ce t as otherwise rovided in these rules, no filing fees shall !e re1uired for actual damages. ,o counterclaim, cross:claim or third: arty com laint may !e filed !y the accused in the criminal case, !ut any cause of action which could have !een the su!"ect thereof may !e litigated in a se arate civil action. %!' The criminal action for violation of 4atas 6am!ansa 4lg. )) shall !e deemed to include the corres onding civil action. ,o reservation to file such civil action se arately shall !e allowed. = on filing of the aforesaid "oint criminal and civil action, the offended arty shall ay in full the filing fees !ased on the amount of the check involved, which shall !e considered as the actual damages claimed. 9here the com laint or information also seeks to recover li1uidated, moral, nominal tem erate or e#em lary damages, the offended arty shall ay additional filing fees cased on the amounts alleged therein. If the amount are so alleged !ut any of these damages are su!se1uently awarded !y the court, the filing fees !ased on the amount awarded shall constitute a first lien on the "udgment. 9hen the civil action has !een filed se arately and trial thereof has not yet commenced, it may !e consolidated with the criminal action u on a lication with the court trying the latter case. If the a lication is granted, the trial of !oth actions shall roceed in accordance with section ) of this /ule governing consolidation of the civil and criminal action. 0ec. ). A"en se&arate civil action is sus&ended . K $fter the criminal action has !een commenced, the se arate civil action arising therefrom cannot !e instituted until final "udgment has !een entered in the criminal action. If the criminal action is filed after the said civil action has already !een instituted, the latter shall !e sus ended in whatever stage it may !e found !efore "udgment on the merits. The sus ension shall last until final "udgment is rendered in the criminal action. ,evertheless, !efore "udgment on the merits is rendered in the civil action, the same may, u on motion of the offended arty, !e consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall !e deemed automatically

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re roduced in the criminal action without re"udice to the right of the rosecution to cross: e#amine the witnesses resented !y the offended arty in the criminal case and of the arties to resent additional evidence. The consolidated criminal and civil actions shall !e tried and decided "ointly. 8uring the endency of the criminal action, the running of the eriod of rescri tion of the civil action which cannot !e instituted se arately or whose roceeding has !een sus ended shall !e tolled. The e#tinction of the enal action does not carry with it the e#tinction of the civil action. Cowever, the civil action !ased on delict shall !e deemed e#tinguished if there is a finding in a final "udgment in the criminal action that the act or omission from which the civil lia!ility may arise did not e#ist. 0ec. *. A"en civil action +aB &roceed inde&endentlB . K In the cases rovided in $rticles *), **, *A and )&;< of the 3ivil 3ode of the 6hili ines, the inde endent civil action may !e !rought !y the offended arty. It shall roceed inde endently of the criminal action and shall re1uire only a re onderance of evidence. In no case, however, may the offended arty recover damages twice for the same act or omission charged in the criminal action. 0ec. B. Cud'+ent in civil action not a 9ar. K $ final "udgment rendered in a civil action a!solving the defendant from civil lia!ility is not a !ar to a criminal action against the defendant for the same act or omission su!"ect of the civil action.

SIMPLIFICATION OF THE RULES STATE THE RULE ON CONCURRENCE OF ACTION. 9hen a criminal action is instituted, the civil action for the recovery of civil lia!ility arising from the offense charged shall !e deemed instituted with the criminal action. STATE THE E$CEPTIONS. The civil lia!ility arising from the offense charged shall not !e deemed instituted together with the criminal action if+ &. The offended arty waives the civil action( or ). If the offended arty reserves his right to institute it se arately( or *. If the offended arty institutes the civil action rior to the criminal action. WHAT IS THE E$CEPTION TO THE E$CEPTION? $fter the criminal action has !een commenced, the se arate civil action arising therefrom cannot !e instituted until final "udgment has !een entered in the criminal action. PROVISO: In the cases rovided in $rticles *), **, *A and )&;< of the 3ivil 3ode of the 6hili ines, the inde endent civil action may !e !rought !y the offended arty. It shall roceed inde endently of the criminal action and shall re1uire only a re onderance of evidence. In no

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case, however, may the offended arty recover damages twice for the same act or omission charged in the criminal action. A--234%53+*: AFTER A CRIMINAL ACTION HAS BEEN COMMENCED6 IS IT STILL POSSIBLE THAT A CIVIL ACTION CAN BE FILED BY THE INJURED PARTY? 5es, if the case to !e filed falls under $rticles *), **, *A and )&;< of the ,ew 3ivil 3ode.
THE CASE FALLS EITHER UNDER ANY OF THE SITUATIONS REFERRED TO IN SAID ARTICLES AND THE CRIMINAL ACTION HAS ALREADY COMMENCED6 WHEN SHALL THE CIVIL ACTION BE FILED?

IF

It may !e filed during the endency of the criminal case. IF SAID CIVIL ACTION IS FILED DURING THE PENDENCY OF THE CRIMINAL CASE6 CAN BOTH ACTIONS BE TRIED AND HEARD INDEPENDENTLY OF EACH OTHER? 5es, !y e# ress rovision of law which says that such civil action ### shall roceed inde endently of the criminal action, and shall re1uire only a re onderance of evidence. %0ection *, /ule &&&' WHAT HAPPENS IF A CIVIL ACTION IS NOT E$PRESSLY INSTITUTED? The civil action shall !e im liedly "oined with the criminal action. This means that the two actions are "oined in one action as twins, and the civil action may !e tried and rosecuted with all the ancillary rocess rovided !y law. WHAT HAPPENS IF THE TRIAL COURT CONVICTS THE ACCUSED OF THE CRIME CHARGED BUT FAILS TO DECIDE ON HIS CIVIL LIABILITY? The civil lia!ility may !e im osed in a su!se1uent roceeding without transgressing the rohi!ition against dou!le "eo ardy. WHAT IS THE EFFECT OF ACQUITTAL OF THE ACCUSED ON HIS CIVIL LIABILITY? The ac1uittal of the accused in the criminal case will not necessarily e#onerate him from civil lia!ility %$rticle )@ B'.
$/TI3L- )@. 9hen the accused in a criminal rosecution is ac1uitted on the ground that his guilt has not !een roved !eyond reasona!le dou!t, a civil action for damages for the same act or omission may !e instituted. 0uch action re1uires only a re onderance of evidence. = on motion of the defendant, the court may re1uire the laintiff to file a !ond to answer for damages in case the com laint should !e found to !e malicious. If in a criminal case the "udgment of ac1uittal is !ased u on reasona!le dou!t, the court shall so declare. In the a!sence of any declaration to that effect, it may !e inferred from the te#t of the decision whether or not the ac1uittal is due to that ground.
5

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The civil lia!ility which may arise from cul&a aquiliana or quasi-delict was never intended !y law to !e merged in the criminal action. The criminal rosecution is not a condition recedent to the enforcement of the civil rights. To su!ordinate the civil action contem lated in $rticle ** < and )&;; to the result of the criminal action would render meaningless the inde endent civil action and the in"unction in $rticle *& ; that such civil action may roceed inde endently of the criminal roceeding.
TO THE RULE THAT THE JUDGMENT OF ACQUITAL DOES NOT NECESSARILY E$TINGUISH THE CIVIL LIABILITY OF THE ACCUSED?

WHAT ARE THE E$CEPTIONS

&. ). *. A.

9hen it declares that the facts from which the civil lia!ility might arise did not e#ist( when it declares that the accused is not the author of the crime( when the "udgment e# ressly declares that the lia!ility is only civil in nature( 9here the civil lia!ility is not derived or !ased on the criminal act of which the accused was ac1uitted( B. where the ac1uittal is !ased on reasona!le dou!t( and <. where the civil action has rescri!ed.
THERE IS NO SEPARATE CIVIL ACTION6 WHAT SHOULD THE COURT TRYING THE CRIMINAL CASE FIND OUT TO ENABLE IT TO DETERMINE FULLY THE CIVIL LIABILITY OF THE OFFENDER?

IF

The court should find out if there is evidence to rove the civil lia!ility of the offender, and it should also determine who the heirs of the deceased are entitled to receive ayment of the indemnity in case of conviction. This is necessary to avoid ayment to wrong ersons. WHAT SHOULD THE OFFENDED PARTY DO IN THE CRIMINAL ACTION ;WHERE CIVIL ACTION IS IMPLIEDLY INSTITUTED< TO ENABLE HIM TO RECOVER? The offended arty must resent evidence in su ort of his claim for damages. .therwise, the court cannot award damages in the "udgment of conviction. SHOULD THE CLAIM FOR DAMAGES BE ALLEGED IN THE INFORMATION? -ven without any allegation as to damages, the offender shall !e lia!le for them if the offended arty was a!le to rove that he is entitled to damages. This is redicated on the rinci le that every erson criminally lia!le is also civilly lia!le.

6 $/TI3L- **. In cases of defamation, fraud, and hysical in"uries a civil action for damages, entirely se arate and distinct from the criminal action, may !e !rought !y the in"ured arty. 0uch civil action shall roceed inde endently of the criminal rosecution, and shall re1uire only a re onderance of evidence. 7 $/TI3L- *&. 9hen the civil action is !ased on an o!ligation not arising from the act or omission com lained of as a felony, such civil action may roceed inde endently of the criminal roceedings and regardless of the result of the latter. acd

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JUDGMENT OF CONVICTION IS RENDERED AND THE ACCUSED DECIDES TO APPEAL THE SAME TO SEEK A REVIEW OF HIS CRIMINAL AND CIVIL LIABILITY6 WHAT ARE THE COURSES OF ACTION?

IF

Ce may a eal !oth with res ect to the "udgment in the civil and criminal lia!ility, or he may a eal only with res ect to the civil action or criminal action.
DOES THE PHRASE IN NO CASE6 HOWEVER6 MAY THE OFFENDED PARTY RECOVER DAMAGES TWICE FOR THE SAME ACT OR OMISSION CHARGED IN THE CRIMINAL ACTION MEAN?

WHAT

This means that if the laintiff succeeded to recover damages from the defendant the 3ivil 3ode, he can no longer recover damages for the same negligent act under the /evised 6enal 3ode. 3onversely, if the offended arty takes the o tion of merely filing a criminal case and su!mits his damage claim for decision in the criminal action, and thereafter, he succeeded to recover damages from the accused in the civil action, he can no longer recover damages from the accused in a criminal action !ased on cul&a aquiliana or quasi-delict. IS RESERVATION REQUIRED IN THE CRIMINAL CASE FOR THE FILING OF CIVIL ACTION ARISING FROM QUASI-DELICT? =nder the &@<A, &@?B and &@?? amendments of the /evised /ules of 3riminal rocedure, it was re1uired that the in"ured arty must make a reservation in the criminal case for the filing of a civil action !ased on quasi-delict. The failure to do so will result in the inclusion of the claim for civil lia!ility in the criminal case and !ars any se arate civil action !ased on the same act or omission. %7ideD Cam!on vs. 3$, 2./. ,o. &))&B>, Harch &;, )>>*' Cowever, under the )>>> amendments of the /evised /ules of 3riminal 6rocedure, the reservation re1uired !efore was deleted. %7ide+ 0ection *, /ule &&&' The new amendment now conforms to the e# ress mandate of the ,ew 3ivil 3ode that a quasi-delict may !e rosecuted se arately and inde endently of the criminal case arising from the same act or omission, "ust like the other inde endent civil actions under $rticles *), **, *A of the ,ew 3ivil 3ode %7ide+ $rticle )&;;'. MORE DISCUSSION: $rticle )&;; of the 3ivil 3ode makes a distinction !etween a civil lia!ility arising from a quasi-delict, and civil lia!ility arising from a crime, that is, an act or omission may !e unisha!le !y the /evised 6enal 3ode, or may create an action for quasi-delict or cul&a e?tra-contractual under the 3ivil 3ode. ? $rticle )&;< of the 3ivil 3ode im oses a civil lia!ility on a erson for damage caused !y his act or omission constituting fault or negligence, and whenever $rticle )&;< refers to Qfault or negligenceQ, it covers not only acts Qnot unisha!le !y lawQ !ut also acts criminal in character, whether intentional and voluntary or negligent. 3onse1uently, a se arate civil action lies against the offender in a criminal act, whether or not he is criminally rosecuted and found guilty or ac1uitted, rovided that the offended arty is not allowed, %if the tortfeasor is actually charged also criminally', to recover damages on !oth scores, and would !e entitled in
8

0ee+ $ndamo vs. I$3, &@& 03/$ &@B( /afael /eyes Trucking 3or . vs. 6eo le, *)@ 03/$ <>>

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such eventuality only to the !igger award of the two, assuming the awards made in the two cases vary. @ The 0u reme 3ourt in the case of Anda+o vs. IAC 5$5 0CRA 5$% e# lained that+ $ccording to the /e ort of the 3ode 3ommission, $rticle )&;; of the 3ivil 3ode though at first sight startling, is not so novel or e#traordinary when we consider the e#act nature of criminal and civil negligence. The former is a violation of the criminal law, while the latter is a distinct and inde endent negligence, which is a Qcul&a aquilianaQ or quasi-delict, of ancient origin, having always had its own foundation and individuality, se arate from criminal negligence. 0uch distinction !etween criminal negligence and Qcul&a e?tracontractualQ or Qcuasi-delitoQ has !een sustained !y decisions of the 0u reme 3ourt of 0 ain . . . ### ### ###

In $Nucena vs. 6otenciano, %B 03/$ A<?, A;>:A;&', the 3ourt declared that in quasi-delicts, Q%t'he civil action is entirely inde endent of the criminal case according to $rticles ** and )&;; of the 3ivil 3ode. There can !e no logical conclusion than this, for to su!ordinate the civil action contem lated in the said articles to the result of the criminal rosecution P whether it !e conviction or ac1uittal P would render meaningless the inde endent character of the civil action and the clear in"unction in $rticle *&, that his action may roceed inde endently of the criminal roceedings and regardless of the result of the latter.Q ### ### ###

In the case of 3astillo vs. 3ourt of $ eals %&;< 03/$ B@&', this 3ourt held that a quasi-delict or cul&a aquiliana is a se arate legal institution under the 3ivil 3ode with a su!stantivity all its own, and individuality that is entirely a art and inde endent from a delict or crime P a distinction e#ists !etween the civil lia!ility arising from a crime and the res onsi!ility for quasi-delicts or cul&a e?tra-contractual. The same negligence causing damages may roduce civil lia!ility arising from a crime under the 6enal 3ode, or create an action for quasidelicts or cul&a e?tra-contractual under the 3ivil 3ode. Therefore, the ac1uittal or conviction in the criminal case is entirely irrelevant in the civil case, unless, of course, in the event of an ac1uittal where the court has declared that the fact from which the civil action arose did not e#ist, in which case the e#tinction of the criminal lia!ility would carry with it the e#tinction of the civil lia!ility. The 0u reme 3ourt has already laid a fundamental remise clearly enunciated as early as the case of 4arredo vs. 2arcia, et al., ;* 6hil. <>; %&@A)', thus+ Q$ distinction e#ists !etween the civil lia!ility arising from a crime and the res onsi!ility for cuasi-delitos or cul&a-e?tra-contractual. The same negligent
9

Girata vs. .choa, 2./. ,o. L:A<&;@, Manuary *&, &@;?, ?& 03/$ A;)

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act causing damages may roduce civil lia!ility arising from a crime under article &>> of the /evised 6enal 3ode, or create an action for cuasi-delito or cul&a e?tracontractual under articles &@>):&@&> of the 3ivil 3ode. 6laintiffs were free to choose which remedy to enforce.Q The o tions of the laintiffs %offended arties' therefore are+ %&' To ursue a criminal action which includes the claim for civil lia!ility arising from the crime !ased on $rticle &>> of the /evised 6enal 3ode( or %)' To ursue an inde endent civil action !ased on quasi-delict under $rticles )&;< to )&@A of the ,ew 3ivil 3ode. &> $s it is 1uite a arent that the laintiffs had redicated their resent claim for damages on quasi-delict, they are not !arred from roceeding with this inde endent civil suit. The institution of a criminal action cannot have the effect of interru ting the civil action !ased on quasi-delict. && $nd the se arate civil action for quasi-delict may roceed inde endently and regardless of the result of the criminal case, &) e#ce t that the laintiffs cannot recover damages twice for the same act or commission of the defendant. &* The civil action referred to in 0ections *%a' and %!' of /ule &&& of the /ules of 3ourt, which should !e sus ended after the institution of the criminal action, is that arising from delict, and not the civil action !ased on quasi-delict or cul&a aquiliana. &A The civil lia!ility which may arise from cul&a aquiliana or quasi-delict was never intended !y law to !e merged in the criminal action. The criminal rosecution is not a condition recedent to the enforcement of the civil rights. &B To su!ordinate the civil action contem lated in $rticle ** and )&;; to the result of the criminal action would render meaningless the inde endent civil action and the in"unction in $rticle *& that such civil action may roceed inde endently of the criminal roceeding. &< =nder 0ection & of the resent /ule &&&, the inde endent civil action in $rticles *), **, *A and )&;< of the 3ivil 3ode is not deemed instituted with the criminal action !ut may !e filed se arately !y the offended arty even without reservation. The commencement of the criminal action does not sus end the rosecution of the inde endent civil action under these articles of the 3ivil 3ode. The sus ension in 0ection ) of the resent /ule &&& refers only to the civil action arising from the crime, if such civil action is reserved or filed !efore the commencement of the criminal action. &; Thus, the offended arty can file two se arate suits for the same act or omission. The first a criminal case where the civil action to recover civil lia!ility e?-delicto is deemed instituted, and the other a civil case for quasi-delict P without violating the rule on non:forum sho ing. The
10 11

-lcano vs. Cill, ;; 03/$ @?( ce Caulers 3o r. Gs. 3$, **? 03/$ B;)( Girata vs. .choa, ?& 03/$ A;) 3a uno vs. 6e si:3ola 4ottling 3o., &* 03/$ <B? %&@<B'. 12 3han vs. 5atco, &>* 6hil. &&)< %&@B?'. 13 $rticle )&;;, 3ivil 3ode. 14 Feli# LanuNo vs. 0y 4on 6ing and 0alvador HendoNa, 2./. ,o. L:B*><A, 0e tem!er )B, &@?>. 15 4LT4 vs. 3$, <A 03/$ A); 16 $Nucena vs. 6otenciano, &&B 6hil A<B. 0ee also+ 8yogi vs. 5atco, &>> 6hil. &>@B( 4achrach Hotor 3o., Inc. vs. 2am!oa, &>& 6hil. &)&@( /oa vs. 8e la 3ruN, &>; 6hil. ?( 0tandard Gacuum .il Go. Gs. tan, &>; 6hil. &>@( 6acholo vs. 5umangday, &>? 6hil. )*?( 3alo vs. 6eggy, &>* 6hil. &&&). 17 $velino 3asu anan and /o!erto 3a itulo vs. Hario Llavore Laroya, 2./. ,o. &AB*@&, $ugust )<, )>>).

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two cases can roceed simultaneously and inde endently of each other. The commencement or rosecution of the criminal action will not sus end the civil action for quasi-delict. The only limitation is that the offended arty cannot recover damages twice for the same act or omission of the defendant. &? In P"ili&&ine Ra99it 8us Lines Inc. vs. Peo&le o( t"e P"ili&&ines 4.R. No. 52!!6# A&ril 52 1662, the 0u reme 3ourt e# lained the conce t of inde endent civil action in this wise+ $t the outset, we must e# lain that the )>>> /ules of 3riminal 6rocedure has clarified what civil actions are deemed instituted in a criminal rosecution. 0ection & of /ule &&& of the current /ules of 3riminal 6rocedure rovides+ Q9hen a criminal action is instituted, the civil action for the recovery of civil lia!ility arising from the offense charged shall !e deemed instituted with the criminal action unless the offended arty waives the civil action, reserves the right to institute it se arately or institutes the civil action rior to the criminal action.Q ### ### ###Q .nly the civil lia!ility of the accused arising from the crime charged is deemed im liedly instituted in a criminal action( that is, unless the offended arty waives the civil action, reserves the right to institute it se arately, or institutes it rior to the criminal action. ### ### ### It is clear that the )>>> /ules deleted the re1uirement of reserving inde endent civil actions and allowed these to roceed se arately from criminal actions. Thus, the civil actions referred to in $rticles *), **, *A and )&;< of the 3ivil 3ode shall remain Qse arate, distinct and inde endentQ of any criminal rosecution !ased on the same act. Cere are some direct conse1uences of such revision and omission+ &. The right to !ring the foregoing actions !ased on the 3ivil 3ode need not !e reserved in the criminal rosecution, since they are not deemed included therein. ). The institution or the waiver of the right to file a se arate civil action arising from the crime charged does not e#tinguish the right to !ring such action. *. The only limitation is that the offended arty cannot recover more than once for the same act or omission. 9hat is deemed instituted in every criminal rosecution is the civil lia!ility arising from the crime or delict &er se %civil lia!ility e? delicto', !ut not those lia!ilities arising from quasi-delicts, contracts or quasi-contracts. In fact, even if a civil action is filed se arately, the e? delicto civil lia!ility in the criminal rosecution remains, and the offended arty may P su!"ect to the control of the rosecutor P still intervene in the criminal action, in order to rotect the remaining civil interest therein. This discussion is com letely in accord with the /evised 6enal 3ode, which states that QDeEvery erson criminally lia!le for a felony is also civilly lia!le.Q C. ARTICLE !"=
$/T. )&;?. The rovisions of $rticles &&;) to &&;A are also a lica!le to a quasidelict. $/T. &&;). /es onsi!ility arising from negligence in the erformance of every kind of o!ligation is also demanda!le, !ut such lia!ility may !e regulated !y the courts, according to the circumstances.
18

I!id.

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$/T. &&;*. The fault or negligence of the o!ligor consists in the omission of that diligence which is re1uired !y the nature of the o!ligation and corres onds with the circumstances of the ersons, of the time and of the lace. 9hen negligence shows !ad faith, the rovisions of $rticles &&;& and ))>&, ar. ), shall a ly. $/T. &&;A. -#ce t in case e# ressly s ecified !y the law, or when it is otherwise declared !y sti ulation, or when the nature of the o!ligation re1uires the assum tion of risk, no erson shall !e res onsi!le for those events which could not !e foreseen, or which though foreseen, were inevita!le. $/T. ))>&. 6ar. ). # # # In case of fraud, !ad faith, malice or wanton attitude, the o!ligor shall !e res onsi!le for all damages which may !e reasona!ly attri!uted to the non: erformance of the o!ligation.

$rticle &&;) rovides that one incurs a res onsi!ility (or 9ein' ne'li'ent in t"e &er(or+ance o( everB o9li'ation. WHAT ARE THE TWO KINDS OF NEGLIGENCE MENTIONED BY ARTICLE !!" ? &. 9hen an o!ligor does not o!serve diligence which is re1uired !y the nature of the o!ligation and corres onds with the circumstances of the ersons, time and lace, there is fault or negligence( and ). In case of fraud, !ad faith, malice or wanton attitude, the o!ligor shall !e res onsi!le for all damages which may !e reasona!ly attri!uted to the erformance of the o!ligation. %$rticle &&;* in relation to $rticle ))>&, last aragra h' A--234%53+*: A.< A 5++> %* ABC ?&7 ?+&*( ,+' B&5&%* C35@. I* G3*A++A C35@6 7%3( ?&7 4+223()( B35C %* $YD L3*)'. A B%7 C&'5. !. WHAT CASE CAN A FILE AGAINST ABC? This is a case of contractual negligence or cul&a contractual. $ may file a civil case against $43 !ecause there is a contract of carriage !etween him and $43. . WHAT
IS THE EFFECT IF ABC PROVES THAT IT E$ERCISED DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS DRIVER?

-ven if $43 roves that it e#ercised diligence in the selection and su ervision of its driver, $43 is still lia!le. That defense is not a ro er and com lete defense in cul&a contractual. Cowever, the diligence of $43 makes it a de!tor in good faith, and the damages would !e mitigated % Can'co vs. MRL co. #) P"il. !*$'.

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.. IS ABC

LIABLE IF IT TURNED OUT THAT THE TIME OF THE ACCIDENT?

HAS NOT YET PAID HIS FARE AT

5es. This is a case of cul&a contractual and for as long as $ was a!le to rove that he was a assenger of the !us at the time of the accident and that he failed to reach his destination safely, there is already a !reach of the contract of carriage. /. IS ABC
LIABLE IF IT TURNED OUT THAT IMMEDIATELY BEFORE THE SAID ACCIDENT?

HAS JUST BOARDED THE BUS

5es, for the same reason. B.< A 5++> %* ABC ?&7 ?+&*( ,+' D%E%+ C35@. T+ %E+3( % C)%( +* 4+22373+* B35C %* $YD L3*)'6 ABCF7 ('3E)' 7B)'E)( 5+ 5C) '3AC5 4%&73*A 35 5+ C35 % sari-sari 75+'). A B%7 C&'5. $ %*( Y BC+ B)') 5%>3*A 7*%4>7 3* 5C) sari-sari 75+') B)') %27+ C35 %*( 5C)@ (3)(. !. IS ABC LIABLE TO A FOR DAMAGES? For as long as $ can rove that he was a assenger of $43 at the time of the accident and that he failed to reach his destination safely, $43 is lia!le. If $43 wants to esca e lia!ility, it should rove that its driver was really careful and e#traordinary diligent. . IN THIS CASE6 IS ABC PRESUMED NEGLIGENT? $s a rule, a common carrier is resumed negligent in case of death or hysical in"uries to assengers unless it roves the e#ercise of e#traordinary diligence. .. CAN $ AND Y FILE A CASE OF CULPA CONTRACTUAL AGAINST ABC? ,o. This is now a case of cul&a aquiliana which can !e filed !oth against the driver and $43. F and 5 have the !urden of roving that the driver was negligent and that $43 did not e#ercise diligence in the selection and su ervision of its driver. If $43 is a!le to rove that it e#ercised diligence and su ervision in the selection and su ervision of its driver, it will !e e#em t from lia!ility. This is a ro er defense in cul&a aquiliana. If F and 5 fail to rove the negligence of the driver, then there is no cul&a aquiliana. The reason for this is !ecause fault or negligence is an essential element of a quasi-delict, and if this is not roved, then there is no quasi-delict.

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C.< CAN THE PARTIES STIPULATE REGARDING FUTURE NEGLIGENCE? 0im le negligence may in certain cases !e e#cused or mitigated !ut gross negligence can never !e e#cused in advance !ecause this is contrary to u!lic olicy. !. A
SHIPPED ITS GOODS TO A VESSEL OWNED BY $YD6 INC. THERE APPEARS A PROVISION IN THE BILL OF LADING WHICH STATES THAT NO MATTER HOW NEGLIGENT IS SAID VESSEL6 $YD6 INC.6 SHALL NOT BE RESPONSIBLE FOR DAMAGES CAUSED TO THE GOODS. A SIGNED THE BILL OF LADING. IS SAID STIPULATION VALID?

It is void, for !eing contrary to u!lic olicy. . SAME PARTIES BUT THE PROVISION IN THE BILL OF LADING IS DIFFERENT. THIS TIME6 THE PROVISION STATES THAT NO MATTER HOW NEGLIGENT IS SAID VESSEL6 $YD6 INC.6 SHALL BE LIABLE ONLY FOR P.GG.OO6 REGARDLESS OF THE VALUE OF THE GOODS. IS THE STIPULATION VALID? It is also void. This kind of sti ulation is, in effect, allowing F5L, Inc., to !e negligent knowing that its lia!ility will !e limited to 6*>>.>>, regardless of the amount of the goods. .. SAME PARTIES BUT THE PROVISION OF THE BILL OF LADING STATES THAT THE $YD6 INC.FS LIABILITY IS LIMITED TO P.GG. GG6 NO MATTER HOW NEGLIGENT IT IS6 UNLESS A DECLARES A HIGHER VALUE AND PAYS A HIGHER COST OF FREIGHT. IS THE STIPULATION VALID? This time the sti ulation is valid !ecause the definition of their res ective o!ligations and lia!ilities. D. ARTICLE !"H
9hen the laintiffs own negligence was the immediate and ro#imate cause of his in"ury, he cannot recover damages. 4ut if his negligence was only contri!utory, the immediate and ro#imate cause of the in"ury !eing the defendants lack of due care, the laintiff may recover damages, !ut the courts shall mitigate the damages to !e awarded.

arties made an honest

WHAT ARE THE SITUATIONS COVERED BY THE ARTICLE !"H? &. 6laintiffs own negligence was the immediate and ro#imate cause of his in"ury K he cannot recover damages. %TaBlor vs. Meralco 5* P"il. )' ). 6laintiffs own negligence is only contri!utory( and the immediate and ro#imate cause of his in"ury is defendants lack of due care K laintiff can recover damages !ut the courts shall mitigate the damages to !e awarded % Rakes vs. Atlantic 4ul( and Paci(ic Co. ! P"il. #%$'.

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WHAT IS PRO$IMATE CAUSE? $ ro#imate cause is that ade1uate and efficient cause which in the natural order of events, and under the articular circumstances surrounding the case would naturally roduce the event. In Gda de 4ataclan vs. Hedina, &>) 6hil.&?& and Teague vs. FernandeN, B& 03/$ &?&, &@ the ro#imate cause was defined as the ro#imate legal cause, acting first and roducing the in"ury, either immediately or !y setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with the redecessor, the final event to the chain immediately effecting the in"ury as a natural and ro!a!le circumstance, that the erson res onsi!le for the first event should, as an ordinarily rudent and intelligent erson, have reasona!le ground to e# ect at the moment of his act or default that an in"ury to some erson might ro!a!ly result therefrom.
PRO$IMATE CAUSE DISTINGUISHED FROM OTHER TERMS

!. HOW

IS PRO$IMATE CAUSE DISTINGUISHED FROM IMMEDIATE CAUSE OR NEAREST CAUSE?

The ro#imate cause is not necessarily the immediate cause( it is not necessarily the nearest time, distance or s ace. $s distinguished from immeditate or nearest cause, ro#imate cause is not necessarily the last link in the chain of events !ut that which is the rocuring efficient and redominant cause. The re1uirement is that the act was the ro#imate cause, not im lying, however, the nearest in oint of time or relation, !ut rather the efficient cause, which may !e the most remote of an o erative chain. It must !e that which sets the others in motion and is to !e distinguished from a mere re:e#isting condition u on which the effective cause o erates, and must have !een ade1uate to roduce the resultant damage with out the intervention of an inde endent cause % T"e Atlantic 4ul( and Paci(ic Co+&anB vs. T"e 4overn+ent o( t"e P"ili&&ine Islands 4.R. No. L-25$% =e9ruarB 5) 5$6)'. . HOW IS PRO$IMATE CAUSE DISTINGUISHED FROM PRIOR AND REMOTE CAUSE? $ remote cause is that cause which some inde endent force merely took advantage of to accom lish something not the natural effect thereof. $ rior and remote cause can not !e made the !asis of an action, if such remote cause did nothing more than furnish the condition or give rise to the occasion !y which the in"ury was made ossi!le, if there intervened !etween such rior or remote cause and the in"ury, a distinct, successive, unrelated, and efficient cause of the in"ury, even though such in"ury would not have ha ened !ut for such condition of occasion. If no damage e#isted in the condition e#ce t !ecause of the inde endent cause, such condition was not the ro#imate cause. $nd if an inde endent negligent act or defective condition sets into
19

0ee also+ 63I4 vs. 3$, *B> 03/$ A<A.

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o eration the circumstances which results in in"ury !ecause of the condition, such act or condition is the ro#imate cause.

rior defective

.. HOW IS PRO$IMATE CAUSE DISTINGUISHED FROM CONCURRENT CAUSES? The ro#imate cause is not necessarily the sole cause of the accident. The defendant is still lia!le in case there are concurrent causes !rought a!out !y acts or omissions of third ersons. Thus, the rimary cause remains the ro#imate cause even if there is an intervening cause which merely coo erated with the rimary cause and which did not !reak the chain of causation. WHAT ARE THE TESTS OF PRO$IMATE CAUSE? $. 3$=0-:I,:F$3T T-0T In determining the ro#imate cause of the in"ury, it is first necessary to determine if the defendants negligence was the cause-in-(act of the damage to the laintiff. If the defendants negligence was not a cause:in:fact, the in1uiry sto s( !ut if it is a cause:in:fact, the in1uiry shifts to the 1uestion of limit of lia!ility of the defendant. The latter determination of the e#tent of lia!ility involves a 1uestion of &olicB. In other words, the 1uestion of ro#imate cause does not only involve cause and effect analysis. It also involves olicy considerations that limit the lia!ility of the defendants in negligence cases. The mere fact that the negligence of the defendant is a factor in !ringing a!out the in"ury does not necessarily means that he shall !e lia!le. WHAT ARE THE KINDS OF CAUSE1IN1FACT TESTS? &. 0I,- J=$ ,., T-0T %4=T F./ T-0T' K this is a 1uestion of causal connection. 9here the defendants own conduct will not !e considered as ro#imate cause of the event if the event "ust the same would have occurred without it. 0im ly stated, defendants conduct is the cause in fact of the in"ury under the !ut for test if the damage would not have resulted had there !een no negligence on the art of the defendant. 3onversely, defendants negligent conduct is not the cause in fact of the laintiffs damage if the accident could not have !een avoided in the a!sence thereof. ). 0=40T$,TI$L F$3T./ T-0T K makes the negligent conduct the cause in fact of the damage if it was a su!stantial factor in roducing the in"uries. This test is es ecially im ortant where there are concurrent causes. Cere, the issues are not factual !ut conce tual. *. ,-00 T-0T K $ condition may still !e considered a cause where it is shown to !e a necessary element in "ust one of several co: resent sets each inde endently sufficient for the effect. A. 6.LI35 T-0T0 WHAT ARE THE KINDS OF POLICY TESTS? &. F./-0I2CT 6-/06-3TIG-

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It is a test that determines whether the chain of events that in fact occurred was sufficiently foreseea!le, natural or ro!a!le at the outset for the defendant to !e held lia!le.
ARE THE TESTS TO DETERMINE THE E$TENT OF THE DEFENDANTFS LIABILITY FOR NEGLIGENCE UNDER THIS TEST?

WHAT &'

F./0--$4ILIT5 T-0T K where the articular harm was reasona!ly foreseea!le at the time of the defendants misconduct, his act or omission is the legal cause thereof. The defendant is not lia!le for unforeseea!le conse1uences of his act. The lia!ility is limited within the risk created !y the defendants negligence act. ,$T=/$L $,8 6/.4$4L- 3.,0-J=-,3- T-0TK where the defendants lia!ility is recogniNed only if the harm or in"ury suffered is the natural and ro!a!le conse1uence of his act or omission com lained of.

)'

). 8I/-3T,-00 6-/06-3TIGIt does not re1uire that the in"ury is within the foreseea!le risk created !y the defendant. This second a roach starts with the in"ury and works towards the wrongful action of the defendant, seeking to determine whether any act of a third arty or the laintiff, or any event, severed the causal connection !etween the harm and the defendants wrongful conduct. Cere, the 1uestion is only whether, when all the evidence is in, it is ermissi!le to say that the defendant did it, that is, !rought a!out the laintiffs harm. WHAT ARE THE KINDS OF TESTS UNDER THE DIRECTNESS PERSPECTIVE? &' ,$T=/$L $,8 ./8I,$/5 ./ 8I/-3T 3.,0-J=-,3- T-0T K makes the defendant lia!le for damages which are !eyond the risk. 8irect conse1uences are those that follow in the se1uence from the effect of the defendants act u on condition e#isting and forces already in o eration at the time, without the intervention of any e#ternal forces, which come into active o eration later. Cindsight test .r!it of risk test 0u!stantial factor test

)' *' A'

DISTINGUISH BETWEEN CAUSE AND CONDITION. $ distinction is made !etween the active cause of the harm or in"ury and the e#isting conditions u on which that cause o erated. If the defendant has created only a assive %not active' static condition, which made the damage ossi!le, he is not lia!le. Hany courts have sought to distinguish !etween the active QcauseQ of the harm and the e#isting QconditionsQ u on which that cause o erated. If the defendant has created only a assive

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static condition which made the damage ossi!le, the defendant is said not to !e lia!le. 4ut so far as the fact of causation is concerned, in the sense of necessary antecedents which have layed an im ortant art in roducing the result, it is 1uite im ossi!le to distinguish !etween active forces and assive situations, articularly since, as is invaria!ly the case, the latter are the result of other active forces which have gone !efore. The defendant who s ills gasoline a!out the remises creates a Qcondition,Q !ut the act may !e cul a!le !ecause of the danger of fire. 9hen a s ark ignites the gasoline, the condition has done 1uite as much to !ring a!out the fire as the s ark( and since that is the very risk which the defendant has created, the defendant will not esca e res onsi!ility. -ven the la se of a considera!le time during which the QconditionQ remains static will not necessarily affect lia!ility( one who digs a trench in the highway may still !e lia!le to another who falls into it a month afterward. Q3auseQ and QconditionQ still find occasional mention in the decisions( !ut the distinction is now almost entirely discredited. 0o far as it has any validity at all, it must refer to the ty e of case where the forces set in o eration !y the defendant have come to rest in a osition of a arent safety, and some new force intervenes. 4ut even in such cases, it is not the distinction !etween QcauseQ and QconditionQ which is im ortant, !ut the nature of the risk and the character of the intervening causeQ %P"oeni? Construction vs. IAC 4.R. No. L-*%1$% Marc" 56 5$)!'. WHAT IS EFFICIENT INTERVENING CAUSE? It is one that destroys the causal connection !etween the negligent act and in"ury and there!y negatives lia!ility. $n intervening cause will not !e regarded as the ro#imate cause and the first cause as too remote, where the chain of events is so !roken that they !ecome inde endent and the result cannot !e said to !e the conse1uence of the rimary cause. Cowever, a cause is not an intervening cause if it is already in o eration at the time the negligent act is committed. WHAT ARE FORESEEABLE INTERVENING CAUSES? If the intervening cause is one which in ordinary human e# erience is reasona!ly to !e antici ated, or one which the defendant has reason to antici ate under the articular circumstances, the defendant may !e negligent, among other reasons, !ecause of failure to guard against it( or the defendant may !e negligent only for that reason. Thus one who sets a fire may !e re1uired to foresee that an ordinary, usual and customary wind arising later will s read it !eyond the defendantRs own ro erty, and therefore to take recautions to revent that event. The erson who leaves the com!usti!le or e# losive material e# osed in a u!lic lace may foresee the risk of fire from some inde endent source. . . . In all of these cases there is an intervening cause com!ining with the defendantRs conduct to roduce the result, and in each case the defendantRs negligence consists in failure to rotect the laintiff against that very risk % P"oeni? Construction vs. IAC su&ra'. IS
CAUSE? A FORESEEABLE INTERVENING CAUSE CONSIDERED A SUFFICIENT INTERVENING

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$ (oreseea9le intervenin' cause however, cannot !e considered sufficient intervening cause. If the intervening cause is foreseea!le, the defendant may still !e considered negligent !ecause of the failure to guard against it. $lso, the intervention of an un(oreseen and une?&ected cause, is not sufficient to relieve a wrongdoer from conse1uences of negligence, if such negligence directly and ro#imately coo erates with the inde endent cause in the resulting in"ury % 0&ouses 8erna9e A(rica vs. Calte? su&ra'. APPLICATION
AND Y6 PASSENGERS OF JAM LINER6 INC.6 HAD A HEATED ALTERCATION INSIDE THE BUS RESULTING IN A FIST FIGHT. IN THE PROCESS6 $ THREW A SOLID PUNCH AGAINST Y AND AS A RESULT6 Y FELL ON THE DRIVERFS SCAT. THE DRIVER LOST CONTROL OF THE WHEEL AND THE BUS HIT AN ELECTRIC POST. WHAT IS THE PRO$IMATE CAUSE OF THE ACCIDENT?

Cere, the ro#imate cause is the fist fight !etween F and 5. A WAS ON HIS WAY HOME6 AFTER A SHOT OR TWO OF LIQUOR IN A BIRTHDAY PARTY. HIS WAY HOME AFTER CROSSING AN INTERSECTION6 HIS CAR HEADLIGHTS SUDDENLY FAILED. HE SWITCHED HIS HEADLIGHTS TO BRIGHT6 AND THEN AND THERE6 HE SAW A DUMP TRUCK WHICH IS ABOUT I METERS AWAY FROM HIS CAR. A TRIED TO AVOID A COLLISION BY SWERVING HIS CAR TO THE LEFT BUT TO NO AVAIL. HIS CAR SMASHED INTO THE DUMP TRUCK. WHO IS NEGLIGENT AND WHO IS THE IMMEDIATE AND PRO$IMATE CAUSE OF THE INJURY? ;PHOENI$ CONSTRUCTION6 INC. VS. IAC6 G.R. NO. #0 H06 MARCH !G6 ON !H="< 4oth were negligent !ut the immediate and ro#imate cause of the accident and of $s in"uries was the wrongful and negligent manner in which the truck was arked or the truck drivers lack of due care. The collision of $s car with the dum truck was a natural and foreseea!le conse1uence of the truck drivers negligence. The negligence of the truck driver, far from !eing a assive and static condition was an indis ensa!le and efficient cause. The accident would not have occurred were it not for the fact that it was arked askew and without warning lights and reflector devices. The im ro er arking of the dum truck created an unreasona!le risk of in"ury for anyone driving, and for having created this risk, the truck driver must !e held res onsi!le. $s negligence, although later in oint of time than the truck drivers negligence, is merely contri!utory and the damages therefore that he will recover is su!"ect to mitigation !y the courts, in accordance with $rticle )&;@ of the 3ivil 3ode.

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.n the issue of damages K In a suit for damages arising from a quasi-delict, where the laintiffs negligence was contri!utory, the demands of su!stantial "ustice may !e satisfied !y allocating most of the damages on a )>:?> ratio. 4ased on this, the following were awarded+ &. )>S of the damages awarded !y the a ellate court shall !e !orne !y the laintiff( ). ?>S shall !e aid !y the driver and his em loyer who shall !e solidarily lia!le to $( and *. The award of e#em lary damages shall !e !orne e#clusively !y the defendant 6hoeni#. WHAT IS THE CONCEPT OF CONTRIBUTORY NEGLIGENCE? 3ontri!utory negligence has !een defined as the act or omission amounting to want of ordinary care on the art of the erson in"ured which, concurring with the defendants negligence, is the ro#imate cause of the in"ury. To hold a erson as having contri!uted to his in"uries, it must !e shown that he erformed an act that !rought a!out his in"uries in disregard of warnings or signs of an im ending danger to health and !ody %Mao-ao 0u'ar Central Co. Inc. vs. CA 5)$ 0CRA $#3 MMTC vs. CA Au'ust 5 1661'. ARE CHILDREN BELOW H YEARS CAPABLE OF CONTRIBUTORY NEGLIGENCE? ,o, a child under @ years of age is conclusively resumed inca a!le of contri!utory negligence as a matte of law. In our "urisdiction, a erson under @ years of age is conclusively resumed to have acted without discernment, and is, on that account, e#em t from criminal lia!ility. The same resum tion and a like e#em tion from criminal lia!ility o!tains in a case of a erson over @ and under &B years of age, unless it is shown that he has acted with discernment. 0ince negligence may !e a felony and a quasi-delict and re1uired discernment as a condition of lia!ility, either criminal or civil, a child under @ years of age is, !y analogy, conclusively resumed to !e inca a!le of negligence( and that the resum tion of lack of discernment or inca acity for negligence in the case of a child over @ !ut under &B years of age is a re!utta!le one, under our law. T"e rule t"ere(ore is t"at a c"ild under $ Bears o( a'e +ust 9e conclusivelB &resu+ed inca&a9le o( contri9utorB ne'li'ence as a +atter o( laE. %Carco Marketin' Cor&. vs. CA #15 0CRA #!!' WHAT ARE THE EFFECTS OF PLAINTIFFFS CONTRIBUTORY NEGLIGENCE? If the ro#imate cause of the in"ury is the contri!utory negligence of the laintiff, there can !e no recovery for damages %TaBlor vs. Meralco 5* P"il. )' $ laintiff is !arred from recovering the damages for loss or in"ury caused !y the negligence of defendant only when laintiffs negligence is the sole le'al cause of the damage,

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or the negligence of the laintiff and some defendants was the sole cause of the damage.

erson or

ersons other that the defendant or

If the laintiff and the defendant are !oth at fault, the former may recover, !ut the amount of his recovery may only !e such ro ortion of the entire damage laintiff sustained as the defendants negligence !ears to the com!ined negligence of !oth the laintiff and the defendant. For e#am le, when it is found that the laintiffs negligence is at least e1ual to that of the defendant, the amount awarded to the laintiff should !e reduced !y one:half from what it otherwise would have !een entitled. If the ro#imate cause of the in"uries is still the negligence of the defendant, des ite the contri!utory negligence of the laintiff, the latter can still recover damages from the former. Cowever, damages will !e reduced due to the contri!utory negligence of the laintiff %/akes vs. $tlantic, su ra.' This is a ortionment of lia!ility also known as the 8.3T/I,- .F 3.H6$/$TIG,-2LI2-,3-. =nder said doctrine, the negligence of !oth the laintiff and of the defendant are com ared for the ur ose of reaching an e1uita!le a ortionment of their res ective lia!ilities for the damage caused and suffered !y the laintiff. 3ontri!utory negligence in common carriers does not !ar recovery of damages if the ro#imate cause of the death of the assenger is the negligence of the common carrier K
$rt. &;<). The contri!utory negligence of the assenger does not !ar recovery of damages fro the death or in"uries, if the ro#imate cause thereof is the negligence of the common carrier, !ut the amount of damages shall !e e1uita!ly reduced.

CAN THE PRINCIPLE OF CONTRIBUTORY NEGLIGENCE APPLY IN CRIMINAL CASES? The rinci le of contri!utory negligence cannot !e sued as defense in criminal cases through reckless im rudence !ecause one cannot allege the negligence of another to evade the effects of his own negligence. It may, however, mitigate the civil lia!ility of the defendant !ut cannot affect his criminal lia!ility. IS THE PRINCIPLE OF PRO$IMATE CAUSE APPLICABLE TO ACTIONS INVOLVING BREACH OF CONTRACT? The doctrine of ro#imate cause is a lica!le only for actions of quasi-delict, not in actions involving !reach of contract. The doctrine is a device for im uting lia!ility to a erson where there is no relation !etween him and another arty. In such a case, the o!ligation is created !y the law itself. 4ut, where there is a re:e#isting contractual relation !etween the arties, it is the arties themselves who create the o!ligation, and the function of the law is merely to regulate the relation thus created. E. ARTICLE !=G

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$rticle )&?>. The o!ligation im osed !y article )&;< is demanda!le not only for oneRs own acts or omissions, !ut also for those of ersons for whom one is res onsi!le. The father and, in case of his death or inca acity, the mother, are res onsi!le for the damages caused !y the minor children who live in their com any. 2uardians are lia!le for damages caused !y the minors or inca acitated ersons who are under their authority and live in their com any. The owners and managers of an esta!lishment or enter rise are likewise res onsi!le for damages caused !y their em loyees in the service of the !ranches in which the latter are em loyed or on the occasion of their functions. -m loyers shall !e lia!le for the damages caused !y their em loyees and household hel ers acting within the sco e of their assigned tasks, even though the former are not engaged in any !usiness or industry. The 0tate is res onsi!le in like manner when it acts through a s ecial agent( !ut not when the damage has !een caused !y the official to whom the task done ro erly ertains, in which case what is rovided in article )&;< shall !e a lica!le. Lastly, teachers or heads of esta!lishments of arts and trades shall !e lia!le for damages caused !y their u ils and students or a rentices, so long as they remain in their custody. The res onsi!ility treated of in this article shall cease when the ersons herein mentioned rove that they o!served all the diligence of a good father of a family to revent damage. 6.8. <>*, $/TI3L- B?. TortsK 6arents and guardians are res onsi!le for the damage caused !y the child under arental authority in accordance with the 3ivil 3ode.

WHAT IS THE PRINCIPLE OF VICARIOUS LIABLITY OR IMPUTED LIABLITY? The article rovides that one is not only lia!le for his own quasi-delictual acts !ut also for those ersons for whom he is res onsi!le under the law. WHAT IS THE BASIS OF VICARIOUS LIABILITY? The !asis of vicarious lia!ility under $rticle )&?> is not res&ondeat su&erior, which under $merican "uris rudence means that the negligence of the servant is conclusively the negligence of the master. /ather, the !asis of $rticle )&?> is the rinci le of &ater (a+ilias. The reason for the masters lia!ility is negligence in the su ervision of his su!ordinates. The master, however, in &ater (a+ilias under $rticle )&?> will !e freed from lia!ility if he can rove that he had o!served all the diligence of a good father of a family to revent the damage. IS THE ACTUAL TORTFEASOR ;MINOR6 WARD6 EMPLOYEE6 SPECIAL AGENT6 PUPIL6 STUDENT OR APPRENTICE< E$EMPT FROM LIABILITY? ,o, they are not e#em t from ersonal res onsi!ility. They may !e sued and made lia!le alone as when the erson res onsi!le for them or the vicarious o!ligor roves that he e#ercised the diligence re1uired of a good father of a family or when the minor or insane erson has no

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arents or guardians. In the latter instance, they are answera!le with their own ro erty %$rticle )&?)'. WHAT IS THE DEFENSE AGAINST VICARIOUS LIABILITY? The res onsi!ility im osed !y $rticle )&?> is not !ased on res&ondeat su&erior. It arises !y virtue of a legal resum tion of negligence on the art of the ersons made res onsi!le for the tortious conduct if another. 0uch resum tion is only Furis tantu+ not Furis et de Fure, and may !e re!utted !y showing that they o!served all the diligence of a good father of a family to revent damage %last ar.', which in the case of em loyers, means due diligence in the selection and su ervision of em loyees. WHAT IS THE MEANING OF DILIGENCE OF A GOOD FATHER OR A FAMILY? The hrase may !e e1uated with ./8I,$/5 3$/- or that diligence which an average or a reasona!ly rudent erson e#ercises over his own affairs. This standard of care is also referred to as that a man of ordinary rudence, or a man using ordinary care and skill.
PROVISION OF LAW GOVERNS THE VICARIOUS LIABILITY OF THE EMPLOYER FOR THE CRIMINAL NEGLIGENCE OF HIS EMPLOYEE?

WHAT

The vicarious lia!ility of the em loyer for the criminal negligence of his em loyee is governed !y $rticle &>* of the /evised 6enal 3ode. The conviction of the em loyee for criminal negligence conclusively !inds the em loyer who is automatically made su!sidiarily lia!le, to answer for the damages awarded. The defense that the em loyer e#ercised due diligence in the selection and su ervision of the em loyee is not availa!le under said article. 0ince the em loyers civil lia!ility is su!sidiary, and not direct, his res onsi!ility will arise only if the em loyee cannot or is una!le to ay the indemnity awarded. Furthermore, his lia!ility cannot !e more than that of the em loyee. The em loyer stands in the osition of a guarantor. The in"ured arty, however, can sue !oth at the same time, although he has a choice of remedy either under the /evised 6enal 3ode or under $rticle )&?>. LIABILITY OF FATHERJMOTHER WHAT IS THE REASON OF THE LAW IN MAKING THEM LIABLE? It is a necessary conse1uence of the arents authority they e#ercise over their children. WHAT ARE THE REQUISITES TO HOLD THE PARENTS LIABLE UNDER ARTICLE !=G? &. The child is !elow )& years( ). The child committed a tortious act to the damage and re"udice of another erson( and *. The child lives in the com any of the arent concerned whether single or married. WHAT IS THE NATURE OF THE RESPONSIBILITY OF THE FATHER AND MOTHER?

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Their res onsi!ility is not simultaneous, !ut alternative, the father !eing res onsi!le, and the mother answering only in case of death or inca acity.

rimarily

68 <>*, $/TI3L- )>&. 3ivil Lia!ility of 5outhful .ffenders. P The civil lia!ility for acts committed !y a youthful offender shall devolve u on the offenderRs father and, in case of his death or inca acity, u on the mother, or in case of her death or inca acity, u on the guardian. 3ivil lia!ility may also !e voluntarily assumed !y a relative or family friend of the youthful offender.

Cowever, under the Family 3ode, this civil lia!ility is now, without such alternative 1ualification %Li9i vs. IAC 152 0CRA 5* G5$$1H<. In other words, !oth arents are rimarily lia!le for the damages caused !y their child. The lia!ility is rimary and not su!sidiary. WHAT IS THE E$TENT OF THE PARENTSF LIABILITY? 6arents lia!ility e#tends to intentional crimes committed !y their minor children.
/evised 6enal 3ode, $/TI3L- &>&. /ules regarding civil lia!ility in certain cases. P The e#em tion from criminal lia!ility esta!lished in su!divisions &, ), *, B and < of article &) and in su!division A of article && of this 3ode does not include e#em tion from civil lia!ility, which shall !e enforced su!"ect to the following rules+ First. In cases of su!divisions &, ), and * of article &), the civil lia!ility for acts committed !y an im!ecile or insane erson, and !y a erson under nine years of age, or !y one over nine !ut under fifteen years of age, who has acted without discernment, shall devolve u on those having such erson under their legal authority or control, unless it a ears that there was no fault or negligence on their art. 0hould there !e no erson having such insane, im!ecile or minor under his authority, legal guardianshi , or control or if such erson !e insolvent, said insane, im!ecile, or minor shall res ond with their own ro erty, e#ce ting ro erty e#em t from e#ecution, in accordance with the civil law. 0econd. In cases falling within su!division A of article &&, the ersons for whose !enefit the harm has !een revented shall !e civilly lia!le in ro ortion to the !enefit which they may have received. The courts shall determine, in their sound discretion, the ro ortionate amount for which each one shall !e lia!le. 9hen the res ective shares cannot !e e1uita!ly determined, even a ro#imately, or when the lia!ility also attaches to the 2overnment, or to the ma"ority of the inha!itants of the town, and, in all events, whenever the damage has !een caused with the consent of the authorities or their agents, indemnification shall !e made in the manner rescri!ed !y s ecial laws or regulations. Third. In cases falling within su!divisions B and < of article &), the ersons using violence or causing the fear shall !e rimarily lia!le and secondarily, or, if there !e no such ersons, those doing the act shall !e lia!le, saving always to the latter that art of their ro erty e#em t from e#ecution.

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WHAT ARTICLE?

IS THE MEANING OF MINORITY IN PARAGRAPHS

AND

OF THE

Hinors in the said article refer to those who are !elow twenty:one and not to those !elow &? years. The law reducing the ma"ority from )& to &? years did not amend these aragra hs. $rticle )*< of the Family 3ode as amended !y /.$. ,o. <?>@ rovides K
$/TI3L- )*<. -manci ation shall terminate arental authority over the erson and ro erty of the child who shall then !e 1ualified and res onsi!le for all acts of civil life, save the e#ce tions esta!lished !y e#isting laws in s ecial cases. 3ontracting marriage shall re1uire arental consent until the age of twenty one. ,othing in this 3ode shall !e construed to derogate from the duty or res onsi!ility of arents and guardians for children and wards !elow twenty one years of age mentioned in the second and third aragra h of )&?> of the 3ivil 3ode %/.$. ,o. <?>@'.

ARE PARENTS RESPONSIBLE FOR MINOR ADOPTED CHILDRENJ ILLEGITIMATE CHILDREN? Mudicially ado ted children are considered legitimate children of their ado ting arents %0ection &;, /.$. ,o. ?BB), 8omestic $do tion $ct of &@??', thus the ado ters are civilly lia!le for their tortious and criminal acts if the children live with them and are !elow )& years. If the child is illegitimate and acknowledged !y the father and lives with the latter, the father shall !e res onsi!le. Cowever, an illegitimate child who is not recogniNed !y the utative father !ut is under the custody and su ervision of the mother, it is the latter who is vicariously lia!le. HOW CAN THE PARENTS AVOID CIVIL LIABLITY? 4y leading and roving the defense that there was no fault or negligence on their art.
THE MOTHER BE IMPLEADED AS CO1DEFENDANT OF HER HUSBAND FOR THE NEGLIGENT ACTS OR OMISSION OF THEIR CHILD?

SHOULD

,o. The mother is lia!le only if the father is dead or inca acitated. IS THE FATHER LIABLE FOR DAMAGES FOR THE CRIME OF HIS MINOR SON WHO IS ALREADY MARRIED BUT LIVING WITH AND RECEIVING SUPPORT FROM HIM? 5es. The marriage of a minor child, while still a minor, does not relieve the arents of the duty to see to it that the child, while still a minor, does not give cause to any litigation, in the same manner that the arents are answera!le for the !orrowings of money and alienation or encum!ering of real ro erty which cannot !e done !y their minor married child without their consent %:lcano vs. @ill !! 0CRA0 566'.

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< LIABILITY OF GUARDIANS The vicarious lia!ility of the guardians with res ect to their wards is governed !y the same rule as in the lia!ility of arents with res ect to their children !elow twenty:one and who live with them. In guardianshi , however, the ward may !e an adult or of age, like an incom etent or inca acitated adult. The age limit of !eing !elow )& years does not a ly. 9hat is im ortant is that the guardianshi is su!sisting. If the ward has two %)' guardians, one over his erson and the other over his ro erty, only the former shall !e lia!le !ecause he is under o!ligation to su ervise the ersonal acts of the ward. WHAT IS THE E$TENT OF RESPONISBILITY OF GUARDIANS? The res onsi!ility of guardians e#tends to inca acitated ersons even if they are already of age. 0ection ) of /ule @) uses the word incom etent. It includes+ &. ). *. A. B. <. 6ersons suffering the enalty of civil interdiction Cos italiNed le ers 6rodigals 8eaf and dum! who are una!le to read and write Those who are of unsound mind, even though they have lucid intervals 6ersons not !eing of unsound mind, !ut !y reason of age, disease, weak mind, and other similar cases, cannot, without outside aid, take care of themselves and manage their ro erty. The guardians stand in loco &arentis ARE GUARDIANS DE FACTO RESPONSIBLE? If a erson is not legally a ointed as guardian, the de (acto guardian would generally not !e res onsi!le, !ecause of the a!sence of one of the !ases for the res onsi!ility, namely, the duty to take care of the ward. 4ut if the in"ury caused is the result of !ad education or training !y the guardian de (acto, the latter should !e held lia!le. It is !ut "ust that the law should !e a lied !y analogy. This is to com el them to e#ercise control and su ervision over the or hans whom they voluntary assumed the duties of arenthood. .< LIABILITY
EMPLOYERS OF OWNERS AND MANAGERS OF ESTABLISHMENT OR ENTERPRISE AND

ARE MANAGERS OF A CORPORATION INCLUDED WITHIN THE MEANING OF THE TERMS OWNERS AND MANAGERS?

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The terms owners and managers % ar. A' and em loyer % ar. B' do not include the manager of a cor oration. The term manager %director in the 0 anish version' is used in the sense of em loyer. Thus, a mere manager, who does not own the !usiness is not to !e considered an em loyer !ecause he is "ust an em loyee. Cowever, a manager who is not an owner !ut who assumes the res onsi!ility if su ervision over the em loyees of the owner may !e held lia!le for the acts of the em loyees. The e#istence of em loyer:em loyee relationshi must !e esta!lished !y the laintiff in a satisfactory manner. It cannot !e resumed. .ne who hires an inde endent contractor !ut controls the latters work us res onsi!le also for his negligence. $lso, negligence of a rofessor is negligence of the school. WHAT ARE THE DISTINCTIONS BETWEEN PARS. / AND 0? $. $rticle )&?> has a se arate rovisions for owners and managers of an esta!lishment or enter rise % ar. A' and em loyers % ar. B'. 4oth are em loyers, however, it is not necessary that the em loyer under the B th aragra h !e engaged in any !usiness or industry. 4. 4oth are made lia!le for damages if they are caused !y their em loyees acting in their service or on the occasion of their functions, or acting within the sco e of their assigned tasks at the time of the commission of the tortious act or negligence. 3. The Ath aragra h covers negligent acts of em loyees committed either in the service of the !ranches or on the occasion of their functions, while the B th aragra h encom asses negligent acts of em loyees acting within the sco e of their assigned task whether or not the em loyer is engaged in an !usiness or industry . The latter is an e# ansion of the former in !oth em loyer coverage and acts included. WHAT IS THE NATURE OF THE LIABILITY OF THE EMPLOYER? The lia!ility of the em loyer is rimary and solidary with the em loyee although the former can recover from the latter whatever it ays to the laintiff %Article 15)6' The res onsi!ility of the owner and manager is only with res ect to damages caused !y their em loyees in the service of the !ranches or on the occasion of their functions, and not with res ect to acts of strangers who committed unauthoriNed acts and in doing so, caused damages to others. The same thing is true with res ect to the em loyer in relation to the unauthoriNed acts of strangers. WHAT PAR. /?
ARE THE REQUISITES IN ORDER THAT AN EMPLOYER MAY BE LIABLE UNDER

&. The em loyee was chosen !y the em loyer ersonally or through another( ). The service is to !e rendered in accordance with the orders which the em loyer has the authority to give at all times( *. The illicit act of the em loyee was on the occasion or !y reason of the functions entrusted to him( and at the time the em loyee was erforming his functions.

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PAR.

WHAT 0?

ARE THE REQUISITES IN ORDER THAT AN EMPLOYER MAY BE LIABLE UNDER

&. The act was committed !y em loyees and household hel ers %including family cooks, gardeners, yayas, servants, etc.'( ). The said act was committed while they were acting within their assigned tasks( *. 8amage was caused as a result of said act.
IS THE PRESUMPTION CREATED BY LAW IF AN INJURY OR DAMAGE IS CAUSED BY AN EMPLOYEE? HOW CAN THE EMPLOYER REBUT THIS PRESUMPTION?

WHAT

If an in"ury or damage is caused !y an em loyee, it is resumed that the em loyer % ars. A and B' was negligent either in the selection of the em loyee or in his su ervision over him, or !oth. The em loyer can overcome the resum tion !y a clear showing that in the selection and su ervision he o!served all the diligence of a good father of a family to revent damage %last ar.' $llegations of negligence against the em loyee and that of em loyer:em loyee relations in the com laint are enough to make out a case of quasi-delict under $rticle )&?>. ,ote that to !e e#em t from lia!ility, the em loyer must esta!lish that he e#ercised due care not only in the selection !ut also in the su ervision of the em loyee. DISTINGUISH BETWEEN PRIMARY LIABILITY AND SUBSIDIARY LIABILITY EMPLOYERS. WHAT ARE THE OPTIONS ON REMEDIES OF THE INJURED PARTY?
OF

The in"ured arty has two %)' o tions in ursuing the civil lia!ility of the em loyer for the acts of his em loyee+ $. If he chooses to file a civil action for damages !ased on quasi-delict under article )&?> and succeeds in roving the negligence of the em loyee, the lia!ility of the em loyer is rimary, direct and solidary. It is not conditioned on the insolvency of the em loyee. The res onsi!ility of em loyers for the negligence of their em loyees in the erformance of their duties is rimary, that is, the in"ured arty may recover from the em loyers directly, regardless of the solvency of their em loyees. 4. If he chooses to file a criminal case against the offender and the offender was found guilty !eyond reasona!le dou!t, the civil lia!ility of the em loyer is su!sidiary. The em loyer cannot use as a defense the e#ercise of the diligence of a good father of a family. The "udgment in the criminal action ronouncing the em loyee to !e also civilly lia!le is conclusive on the em loyer not only as to the actuality of that lia!ility !ut also as to the amount.

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.nce there is conviction for a felony, final in character, the em loyer under $rticle &>* of the /evised 6enal 3ode, is su!sidiarily lia!le, if it !e shown that the commission thereof was in the discharge of the duties of the em loyee. $nd a revious dismissal of an action !ased on cul&a aquiliana could not !e a !ar to the enforcement of the su!sidiary lia!ility re1uired !y said $rticle &>) of the 6enal 3ode. WHAT ARE THE REQUISITES SO THAT THE SUBSIDIARY LIABILITY OF THE EMPLOYER MAY BE ENFORCED? To enforce the em loyers su!sidiary lia!ility, there must !e ade1uate evidence esta!lishing that+ &. ). *. A. Ce is indeed the em loyer of the convict( Ce is engage in some kind of industry( The crime was committed !y the em loyee in the discharge of his duties( and -#ecution against the em loyee is unsatisfied.

The em loyer who is made lia!le may seek reim!ursement from his em loyee for the amount he aid to the offended arty for the satisfaction of the claim. /< STATEFS IMPUTED LIABILITY FOR THE ACTS OF ITS SPECIAL AGENTS WHAT ARE THE TWO ACTS OF THE STATE THAT MAY GIVE RISE TO LIABILITY? The state may act as+ &. $ government entity % u!lic as ect' e#ercising governmental functions, where it is lia!le for the acts of its s ecial agents. Cere, the state is engaged in u!lic or government functions, through its s ecial agent( or ). In a cor orate ca acity % rivate or !usiness as ect', as when it engages in some rivate enter rises, where it may !e held lia!le "ust as any other em loyer for the acts of its em loyees. WHAT IS A SPECIAL AGENT? 4y s ecial agent is meant one s ecifically commissioned to carry out the acts com lained of outside of such agents regular duties. Ce is one who receives definite and fi#ed order or commission, foreign to the e#ercise of the duties of his office if he is a s ecial official. HOW IS A SPECIAL AGENT DISTINGUISHED FROM AN OFFICIAL WITH SPECIFIC DUTY OR DUTIES TO PERFORM? =nder the meaning of aragra h < of $rticle )&?>, the word official com rises all officials and em loyees of the government who e#ercise duties of their res ective u!lic offices. $ll others who are acting !y commission of the government !elong to the class of s ecial agents, whether individual or "uridical !odies.

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In 1ualifying the s ecial agent with the ad"ective s ecial, the 3ivil 3ode aimed at distinguishing it from the regular or ordinary agent of government, which refers to all officers and em loyees in u!lic service. WHEN IS THE STATE LIABLE AS AN ORDINARY EMPLOYER? &. 9hen the state is engaged in rivate !usiness or enter rise( ). If the s ecial agent is not a u!lic official and is commissioned to erform non: governmental functions( *. If the s ecial agent a ointed !y the state is assigned to erform acts for rivate and !usiness interests of the state. WHEN IS THE STATE RESPONSIBLE FOR ITS SPECIAL AGENT? =nder $rticle )&?> % ar. <', the state has voluntarily assumed lia!ility for acts done through s ecial agent if+ &. The states agent is a u!lic official, who must not only !e es ecially commissioned to do a articular task !ut such task must !e foreign to said officials usual governmental functions. ). The state commissioned a rivate individual to erform a s ecial governmental task %=ontanilla vs. Malia+en'. WHEN IS THE PUBLIC OFFICER OR OFFICIAL PERSONALLY LIABLE FOR HIS ACTS? 0ince the state authoriNes only legal acts !y its officers, the state shall not !e lia!le and an action against the officials or officers !y one whose rights have !een invaded or violated !y such acts, for the rotection of his rights, is not a suit against the state within the rule of immunity of the state from suit for+ &. =nauthoriNed acts of government officials or officers( ). $cts of a u!lic officer that goes !eyond the sco e of his duty articularly when acting tortiously( *. Tortious acts committed !y the u!lic officers unrelated to his s ecial assignment( A. $cts erformed !y an official u on whom reviously devolved the duty of doing the act erformed( B. $cts erformed in the discharge of the official duties of a u!lic officer. 0< LIABILITY OF TEACHERS OR HEADS OF ESTABLISHMENT OF ARTS AND TRADES WHAT IS THE BASIS OF LIABILITY OF TEACHERS OR HEADS OF ESTABLISHMENTS? The teachers and heads mentioned in aragra h ; of $rticle )&?> stand, to a certain e#tent, in loco &arentis to their u ils and students.

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9here the arent laces a child under the effective authority of the teacher, the latter together with the school head %and the school itself for the fault of the teacher and head', not the arent, should !e the one answera!le for the torts committed while under their custody, for the very reason that the arent is not su osed to interfere with the authority and su ervision of the teacher while the child is under instructions. WHAT DOES THE PHRASE AS LONG AS THEY REMAIN IN THEIR CUSTODY MEAN? The hrase was held to contem late a situation where the u il lives and !oards with the teacher such that the control and influence over the conduct and actions of the u il would ass from the father to the teacher, and so would the res onsi!ility for the torts of the u il % Mercado vs. CA 56) P"il. 252'. This inter retation was a!andoned in Palisoc vs. 8rillantes 25 0CRA %%!G5$!5H , where the 0u reme 3ourt ruled that the hrase means the rotective and su ervisory custody that the school and its head and teacher e#ercise over the u ils and students for as long as they are in the school including recess time. There is nothing in the law which re1uires that for such lia!ility to attach, the u l or student who commits the tortious act must live and !oard in the school. The student is in the custody of the school authorities as long as he is under the control and influence of the school and within its remises, whether the semester has not yet !egun or has already ended %A+adora vs. CA 5*6 0CRA #5% '. =nder $rticle )&? of the Family 3ode, custody e#tends to activities even outside the remises as long as they are authoriNed activities. It is not necessary that at the time of the in"ury the teacher !e hysically resent and at the osition to revent it. 3ustody does not connote immediate and actual hysical control !ut it refers more to the influence e#erted on the child and the disci line instilled in him as a result of such influence. IS THE SCHOOL LIABLE IF THE STUDENT IS OVER ! YEARS OF AGE? $ student over )& years of age, !y enrolling and attending a school, laces himself under the custodial su ervision and disci linary authority of the school authorities, which is the !asis of the latters correlative res onsi!ility for his torts, committed while under such authority. Thus, unlike the arent, who will !e lia!le only if the child is still a minor, the teacher is held answera!le !y the law for the act of the student under him regardless of the age of the student. $rticle )&?> treats the arents more favora!ly than the teacher. Cowever, the teachers control is not as lenary as when the student is a minor( !ut the circumstances can only affect the degree of the res onsi!ility !ut cannot negate the e#istence thereof. It is only a factor to !e a reciated in determining whether or not the defendant has e#ercised due diligence in endeavoring to revent the in"ury, as rescri!ed in the last aragra h of $rticle )&?> %Palisoc vs. 8rillantes su&ra'. UNDER THE FAMILY CODE6 WHAT IS THE RULE WITH RESPECT TO MINORS?

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$/TI3L- )&?. The school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have s ecial arental authority and res onsi!ility over the minor child while under their su ervision, instruction or custody. $uthority and res onsi!ility shall a ly to all authoriNed activities whether inside or outside the remises of the school, entity or institution. %*A@a' $/TI3L- )&@. Those given the authority and res onsi!ility under the receding $rticle shall !e rinci ally and solidarily lia!le for damages caused !y the acts or omissions of the unemanci ated minor. The arents, "udicial guardians or the ersons e#ercising su!stitute arental authority over said minor shall !e su!sidiarily lia!le. The res ective lia!ilities of those referred to in the receding aragra h shall not a ly if it is roved that they e#ercised the ro er diligence re1uired under the articular circumstances. cda $ll other cases not covered !y this and the receding articles shall !e governed !y the rovisions of the 3ivil 3ode on 1uasi:delicts. %n'

These two rovisions control with res ect to u ils and students or a rentices who are minors. The !asis of lia!ility is the 06-3I$L arental authority and res onsi!ility assumed over the minor for whose acts or omissions those given such authority and res onsi!ility are rinci ally and solidarily lia!le for damages, with the arents, "udicial guardians, or the ersons e#ercising su!stitute arental authority !eing su!sidiarily lia!le. )> DOES THE LIABILITY E$TEND TO NON1ACADEMIC SCHOOLS? There is really no su!stantial distinction !etween the academic and the non:academic schools insofar as torts committed !y their students are concerned. The same vigilance is e# ected from the teacher over the students under his control and su ervision, whatever the nature of the school where he is teaching %A+adora vs CA'. Cowever, where the law is academic rather than vocational or technical in nature, res onsi!ility for the tort committed !y the u il or student will attach to the teacher in charge of such u il or student, following the first art of aragra h ; of $rticle )&?>. This is the general rule. In the case of esta!lishments for arts and trades, it is the head thereof, and only he, who shall !e held lia!le as an e#ce tion to the general rule. In other words, teachers in general shall !e lia!le for the acts of their students e#ce t where the school is technical in nature( in which case it is the head thereof who shall !e answera!le. WHAT IS THE STATUS OF WORKING SCHOLARS?

20

$/TI3L- )&< %Family 3ode'. In default of arents or a "udicially a ointed guardian, the following ersons shall e#ercise su!stitute arental authority over the child in the order indicated+ cd i %&' The surviving grand arent, as rovided in $rt. )&A( %)' The oldest !rother or sister, over twenty:one years of age, unless unfit or dis1ualified( and %*' The childRs actual custodian, over twenty:one years of age, unless unfit or dis1ualified. 9henever the a ointment of a "udicial guardian over the ro erty of the child !ecomes necessary, the same order of reference shall !e o!served. %*A@a, *B&a, *BAa'

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0ection &A, /ule F %68 AA)' rovides+ There is no em loyer:em loyee relationshi !etween students on one hand, and schools, colleges or universities on the other, where students work for the latter in e#change for the rivilege to study free of charge rovided the students are given real o ortunity, including such facilities as may !e reasona!le, necessary to finish their chosen courses under said arrangement. F. OTHER PROVISIONS ON VICARIOUS LIABILITY WHAT IS THE RIGHT OF THE PERSONS ENUMERATED IN THE DAMAGE CAUSED BY THEIR DEPENDENTS OR EMPLOYEES? ARTICLE !=G WHO PAID FOR

$/TI3L- )&?&. 9hoever ays for the damage caused !y his de endents or em loyees may recover from the latter what he has aid or delivered in satisfaction of the claim. %&@>A'

The hrase de endents or em loyees in $rticle )&?& should !e construed to include all ersons for whom another is lia!le under $rticle )&?>. WHAT IS THE RULE IF THE TORTFEASOR IS A MINOR OR INSANE PERSON WITHOUT A PARENT OR GUARDIAN?
$/TI3L- )&?). If the minor or insane erson causing damage has no arents or guardian, the minor or insane erson shall !e answera!le with his own ro erty in an action against him where a guardian ad litem shall !e a ointed. %n'

G. STRICT LIABILITY WHAT IS STRICT LIABILITY? 0trict lia!ility is defined as lia!ility without fault. $ case is one of strict lia!ility when neither care nor negligence, neither good faith nor !ad faith, neither knowledge or ignorance will save the defendant. WHEN IS THERE STRICT LIABILITY UNDER THE CIVIL CODE? There is strict lia!ility if one is made lia!le inde endent of fault, negligence or intent after esta!lishing certain facts s ecified !y law. 0trict lia!ility tort can !e committed even if reasona!le care was e#ercised and regardless of the state of mind of the actor at that time. WHAT ARE THE INSTANCES UNDER THE LIABILITY? &. ). *. A. CIVIL CODE
WHERE THERE IS STRICT

Lia!ility of ossessors of animals %$rticle )&?*'( Lia!ility for falling o!"ects %$rticle )&@*'( Lia!ility of em loyers %$rticle &&;&'( Lia!ility of manufacturers and rocessors %$rticle )&?;'

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B. Lia!ility for nuisance %To !e discussed se arately' A. LIABILITY OF POSSESSORS OF ANIMALS


$/TI3L- )&?*. The ossessor of an animal or whoever may make use of the same is res onsi!le for the damage which it may cause, although it may esca e or !e lost. This res onsi!ility shall cease only in case the damage should come from force ma"eure or from the fault of the erson who has suffered damage. %&@>B'

WHY IS ARTICLE !=. AN INSTANCE OF STRICT LIABILITY? The language of $rticle )&?* reveals an evident intent to make the ossessor or whoever makes use of the animal, lia!le inde endent of fault. $dditionally, the owner or ossessor of the animal is lia!le even if the damage was caused !y the animal through the fault of third ersons. There is also lia!ility even in a case in which it could not !e avoided !ecause the animal is not in his ossession for having esca ed or gone astray, and for this reason, it does not admit in this class of damages, unlike in damages caused !y a erson other than the one res onsi!le, evidence of diligence of a good father of a family. WHO IS MADE LIABLE UNDER ARTICLE !=.? Lia!ility is im osed only on the ossessor or user of the animal, since he is the one who has custody and control, he is, therefore in a osition to revent the animal from causing damage. The law used the word &ossessor instead of oEner. Thus, if the animal, like a horse or cara!ao was !orrowed !y someone for his own use, the latter alone, should !e held lia!le for the damage caused while the animal was under his control. WHAT IS THE RATIONALE BEHIND ARTICLE !=.? The o!ligation im osed !y $rticle )&?* is !ased on natural e1uity and on the rinci le of social interest that he who ossesses animals for his utility, leasure or service must answer for the damage which may !e caused !y such animals, even if such damage was not due to their fault or negligence. WHAT ARE THE E$CEPTIONS TO ARTICLE !=.? &. 9hen the damage was caused !y (orce +aFeure3 ). 9hen the damage is caused !y the erson who suffered the damage( *. If the acts of a third erson cannot !e foreseen or revented, then the situation is similar to a force ma"eure and the ossessor is not lia!le. WHAT ARE THE ANIMALS COVERED UNDER ARTICLE !=.? $rticle )&?* makes no distinction as to what kind of animal is used or ossessed. Cence, it may !e construed as a lica!le generally to all animals, whether domestic,

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domesticated, or wild. It would seem that !irds are covered since they can also cause damage.
B.

LIABILITY FOR FALLING OBJECTS

$/TI3L- )&@*. The head of a family that lives in a !uilding or a art thereof, is res onsi!le for damages caused !y things thrown or falling from the same. %&@&>a'

WHY IS THERE STRICT LIABILITY IN ARTICLE !H.? It is evident in $rticle )&@* that the lia!ility is a!solute. It does not indicate a resum tion or admit roof of care. =nlike $rticle )&?*, the +aFeure. rovision does not e#em t cases involving (orce

WHAT IS THE NATURE OF LIABILITY UNDER ARTICLE !H.? The nature of the lia!ility of the head of the family is !oth a9solute and e?clusive. It is a!solute in the sense that as long as he is head of the family that lives in the !uilding or art thereof like a rented room, he is lia!le even if he is not resent at the time of the incident. It is e#clusive in the sense that it is only the head of the family who is made lia!le. WHAT ARE THE PURPOSES OF THE ABSOLUTENESS OF THE ARTICLE? The o!vious ur oses of the law in making it a!solute are+ a' To com el the head of the family to see to it that no dangerous things are laced on the window sills and other arts of their dwelling lace which may !e thrown or fall !y accident( !' To com el him to su ervise the mem!ers of the family or guests from doing acts or activities which may result in the throwing or falling of things from their house or lace of dwelling( c' To relieve the victim of the difficult !urden of identifying the ersons who caused the throwing or falling of the in"urious thing. WHAT DOES THE TERM HEAD OF THE FAMILY INCLUDE? The head of the family is usually the father( in his a!sence, the mother. $ single erson may also !e the head of the family if he is the one su orting his family which may include as mem!ers, ado ted children, unem loyed arents, !rothers and sisters. The term head of the family is not limited to the owner of the !uilding and it may even include the lessee thereof %Din'con' vs. Ianaan !1 P"il. 52'.

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IS THE REMEDY OF THE HEAD OF THE FAMILY WHO MAY HAVE BEEN OBLIGED TO PAY INDEMNITY TO THE INJURED PARTY?

WHAT

The head of the family who may have !een o!liged to ay indemnity to the in"ured arty may recover from the erson res onsi!le for the damage. Their lia!ility is solidary %$rticle )&@A'. D. LIABILITY OF EMPLOYERS ;ARTICLE !"!!<
$/TI3L- &;&&. .wners of enter rises and other em loyers are o!liged to ay com ensation for the death of or in"uries to their la!orers, workmen, mechanics or other em loyees, even though the event may have !een urely accidental or entirely due to a fortuitous cause, if the death or ersonal in"ury arose out of and in the course of the em loyment. The em loyer is also lia!le for com ensation if the em loyee contracts any illness or disease caused !y such em loyment or as the result of the nature of the em loyment. If the misha was due to the em loyeeRs own notorious negligence, or voluntary act, or drunkenness, the em loyer shall not !e lia!le for com ensation. 9hen the em loyeeRs lack of due care contri!uted to his death or in"ury, the com ensation shall !e e1uita!ly reduced.

WHY IS THERE STRICT LIABILITY IN ARTICLE !"!!? The language of the rovision indicates that the same is strict lia!ility !ecause lia!ility e#ists even if the cause if urely accidental. It should !e noted, however, that if the death or in"ury is due to the negligence of a fellow:worker, the latter and the em loyer shall !e solidarily lia!le for com ensation. If a fellow:workers intentional or malicious act is the only cause of the death or in"ury, the em loyer shall not !e answera!le, unless it should !e shown that the latter did not e#ercise due diligence in the selection or su ervision of the laintiffs fellow:worker %$rticle &;&)'. E. LIABILITY OF MANUFATURERS AND PROCESSORS ;ARTICLE !="<
$/TI3L- )&?;. Hanufacturers and rocessors of foodstuffs, drinks, toilet articles and similar goods shall !e lia!le for death or in"uries caused !y any no#ious or harmful su!stances used, although no contractual relation e#ists !etween them and the consumers. %n'

WHY IS THERE STRICT LIABILITY IN ARTICLE !="? There is strict lia!ility in $rticle )&?; !ecause it im oses lia!ility for death or in"ury without fault or negligence on the art of the manufacturers and rocessors and without rivity of contract !etween them and the consumers. The rinci le of strict lia!ility in tort means that roof of negligence is not necessary. It a lies even if the defendant manufacturer or rocessor has e#ercised all the ossi!le care in the re aration and sale of his roduct. The ur ose of such lia!ility is to insure that the !urdens of such accidental deaths or in"uries resulting from defective roducts intended for u!lic consum tion

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!e laced u on those who market them, and can !e treated as cost of roduction rather than !y the in"ured ersons who are owerless to rotect themselves. WOULD THE PRESENCE OF CONTRACT BETWEEN THE MANUFACTURER OR PROCESSOR AND THE PLAINTIFF PRECLUDE THE LATTER FROM FILING OF A DAMAGE SUIT? If there is a contractual relation !etween the arties, the laintiff us not recluded from filing a suit !ased on the !reach of warranty whether e# ress or im lied. The rinci le of strict lia!ility still a lies. The consumers cause of action does not de end u on the validity of his contract with the erson from whom he ac1uires the roduct, and it is not affected !y any disclaimer or other agreement, whether it !e !etween the seller and the immediate !uyer, or attached to and accom anying the roduct into the consumers hands. WHAT ARE THE REQUISITES FOR STRICT LIABILITY UNDER THIS ARTICLE? To esta!lish the lia!ility of manufacturers or rocessors under the $rticle, the following re1uisites must !e esta!lished+ a' The defendant is the manufacturer or rocessor of foodstuff, drinks, toilet articles and similar goods involved( !' The defendant used no#ious or harmful su!stances in the manufacture or rocessing of the foodstuff, drinks, toilet articles and similar goods( c' 6laintiff used or consumed such roduct unaware of the in"urious condition of the roduct( d' 6laintiffs in"ury or death was caused !y the roduct used or consumed( e' The forms or kinds of damages suffered and the amount thereof. The laintiff has the !urden of roof that at the time the roduct left the hands of the defendant, the roduct was in a defective or in"urious condition. .therwise, his case will fall. WHAT ARE THE OPTIONS ON REMEDIES OF THE PLAINTIFF? The laintiff has four %A' o tions if he desires to ursue a com laint against the manufacturer or rocessor under $rticle )&?;. Ce may !ase his com laint on the+ a' !' c' d' Theory of strict lia!ility in torts( Fault or negligence( 4reach of warranty( or 3rime anchored on violation of the Foods and 8rugs $ct wherein the enforcement of which is the doctrine of a!solute criminal lia!ility may !e a lied % Peo&le vs. 0iB Con' 8ien #6 P"il. %!!'.

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F. OTHER PROVISIONS !. LIABILITY OF OWNER IN MOTOR VEHICLE MISHAPS ;ARTICLE !=/<K PRESUMPTION OF NEGLIGENCE ;ARTICLE !=0<K AND BOND REQUIRED BY MOTOR VEHICLE OWNERS ;ARTICLE !=#<
$/TI3L- )&?A. In motor vehicle misha s, the owner is solidarily lia!le with his driver, if the former, who was in the vehicle, could have, !y the use of the due diligence, revented the misfortune. It is dis uta!ly resumed that a driver was negligent, if he had !een found guilty of reckless driving or violating traffic regulations at least twice within the ne#t receding two months. cd i If the owner was not in the motor vehicle, the rovisions of article )&?> are a lica!le. %n' $/TI3L- )&?B. =nless there is roof to the contrary, it is resumed that a erson driving a motor vehicle has !een negligent if at the time of the misha , he was violating any traffic regulation. %n' $/TI3L- )&?<. -very owner of a motor vehicle shall file with the ro er government office a !ond e#ecuted !y a government:controlled cor oration or office, to answer for damages to third ersons. The amount of the !ond and other terms shall !e fi#ed !y the com etent u!lic official. %n'

WHO ARE THE OWNERS GOVERNED BY THE ARTICLE? $rticle )&?A refers to owners of vehicles who are not included in the terms of $rticle )&?> as owners of an esta!lishment or enter rise % De Leon 8rokera'e Co. Inc. vs. Court o( A&&eals 2 0CRA %5!'. It is intended to cover only owners of motor vehicles for rivate use. It is generally not a lica!le to motor vehicles for u!lic use and convenience !ecause the o erator thereof, usually a cor oration, cannot, in the very nature of things, !e in the motor vehicle at the time of misha . Cowever, if the manager of the !us com any was in the !us at the time of the misha , $rticle )&?A may !e a lied !y analogy %Cor&us vs. PaFe 1) 0CRA 56*1'. WHEN IS ARTICLE !=/ APPLICABLE? $rticle )&?A a lies if the owner was in the vehicle at the time of the misha ( otherwise, the rovisions of $rticle )&?> would !e a lica!le % ar. )' where the owner even if he was not in the vehicle would !e lia!le unless he e#ercised due diligence to revent the damage. If the causative factor was the drivers negligence, the owner of that car, who was resent, is likewise held lia!le if he could have revented the misha !y the e#ercise of due diligence. ,egligence under $rticle )&?A is, to a certain degree, necessarily su!"ective %Caedo vs. .u I"e Tai 1* P"il. 256'. The owner should not !e held lia!le for the negligence of a com etent driver, if !y the sudden act of negligence, the owner could not have a reasona!le o ortunity to revent the act or its continuance % C"a&+an vs. UnderEood 1! P"il. #!23 Co"nson vs. David % P"il. **#'. WHAT IS THE RATIONALE BEHIND ARTICLES !=/ TO !=#?

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The rationale for the inclusion of $rticles )&?A to )&?< is to co e with the alarming increase of vehicular misha s. IS THERE A PRESUMPTION THAT A DRIVER WAS NEGLIGENT? There is no resum tion that a driver was negligent unless he has !een found guilty of reckless driving or violating traffic regulations at least twice within two months ne#t receding the misha %$rticle )&?A, ar. )', or was violating any traffic violation at the time of the motor vehicle misha %$rticle )&?B'. WHAT ARTICLE?
IS THE TEST OF NEGLIGENCE OF THE CAR OWNER UNDER THE

The law does not re1uire that a erson must ossess a certain measure of skill or roficiency either in the mechanics of driving or in the o!servance of traffic rules !efore he may own a motor vehicle. The test of his negligence, within the meaning of $rticle )&?A, is his omission to do that which the evidence of his own senses tells him he should do in order to avoid the accident. $nd as far as erce tion is concerned, a!sent a minimum level im osed !y law, a maneuver that a ears to !e fraught with danger to one assenger may a ear to !e entirely safe and common lace to another. 9here the law re1uire a uniform standard of erce tiveness, em loyment of rofessional drivers !y car owners who, !y their very inade1uacies have real need of drivers services, would !e effectively rescri!ed %Caedo vs. .u I"e Tai su&ra.'. . DEATH RESULTING FROM POSSESSION OF DANGEROUS WEAPONS OR SUBSTANCES ;ARTICLE !==<
$/TI3L- )&??. There is rima facie resum tion of negligence on the art of the defendant if the death or in"ury results from his ossession of dangerous wea ons or su!stances, such as firearms and oison, e#ce t when the ossession or use thereof is indis ensa!le in his occu ation or !usiness. %n'

9hen death or in"ury results from the defendants ossession of dangerous wea on or su!stances, there is a re!utta!le resum tion that he is negligent. The !urden of evidence is on him to esta!lish that he was not negligent at all. The resum tion revails if he fails to overcome it !y clear strong and convincing evidence. 9hen the ossession or use of the wea on or su!stances is indis ensa!le in the defendants occu ation or !usiness, no resum tion arises. The laintiff has the !urden of roving defendants negligence. .. DEFECTIVE !=H<
$/TI3L- )&?@. 6rovinces, cities and munici alities shall !e lia!le for damages for the death of, or in"uries suffered !y, any erson !y reason of the defective condition of roads, streets, !ridges, u!lic !uildings, and other u!lic works under their control or su ervision. %n'
CONDITIONS OF THE ROADS6 STREETS6 BRIDGES6 PUBLIC BUILDINGS6 AND OTHER PUBLIC WORKS ;ARTICLE

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WHO ARE MADE LIABLE FOR DEFECTIVE CONDITION OF ROADS6 ETC? $rticle )&?@ does not re1uire the defective roads, streets, etc. to !elong to the rovince, city or munici ality for lia!ility to attach. It only re1uires that either control or su ervision is e#ercised over the road, street, etc. % 4uilatco vs. CitB o( Da'u&an 5!5 0CRA #)1'. /. LIABILITY
OF PROPRIETOR OF A BUILDING OR STRUCTURE DUE TO ITS COLLAPSE ;ARTICLE !HG<K OTHER LIABILITIES ;ARTICLES !H! L !H <

$/TI3L- )&@>. The ro rietor of a !uilding or structure is res onsi!le for the damages resulting from its total or artial colla se, if it should !e due to the lack of necessary re airs. %&@>;' aisa dc $/TI3L- )&@&. 6ro rietors shall also !e res onsi!le for damages caused+ %&' 4y the e# losion of machinery which has not !een taken care of with due diligence, and the inflammation of e# losive su!stances which have not !een ke t in a safe and ade1uate lace( %)' 4y e#cessive smoke, which may !e harmful to ersons or ro erty( %*' 4y the falling of trees situated at or near highways or lanes, if not caused !y force ma"eure( %A' 4y emanations from tu!es, canals, sewers or de osits of infectious matter, constructed without recautions suita!le to the lace. %&@>?' $/TI3L- )&@). If damage referred to in the two receding articles should !e the result of any defect in the construction mentioned in article &;)*, the third erson suffering damages may roceed only against the engineer or architect or contractor in accordance with said article, within the eriod therein fi#ed. %&@>@'

$rticle )&@> su

lements $rticle A?) which rovides+

$/TI3L- A?). If a !uilding, wall, column, or any other construction is in danger of falling, the owner shall !e o!liged to demolish it or to e#ecute the necessary work in order to revent it from falling. If the ro rietor does not com ly with this o!ligation, the administrative authorities may order the demolition of the structure at the e# ense of the owner, or take measures to insure u!lic safety. %*?@a' acd

WHAT ARE THE LIABILITIES OF PROPRIETORS OF BUILDINGS AND STRUCTURES DUE TO ITS COLLAPSE? &. 9here the damage is caused !y the total or artial colla se of a !uilding or other structure, the ro rietor or owner is &ri+a (acie deemed negligent and is made lia!le, if it should !e due to lack of necessary re airs, !ecause it is his duty to maintain his ro erty in goods condition at all times to avoid causing in"ury or damage to another erson or ro erty. To relieve himself from lia!ility, he must rove that the ro erty was in a goods state of re air or that the colla se was due to a defect in its construction in which case the engineer or architect andIor contractor may !e held res onsi!le for the damage %0ee $rticle &;)*'.

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). The fact that the ro erty is leased or in usufruct will not e#em t the owner from lia!ility for his duty to make necessary re airs remains although the ro erty is legally in the ossession and control of another. =nder the law, the lessee or the usufructuary is o!liged to notify or advise the owner of the need for urgent or e#traordinary re airs %$rticle B@*, &<<*'. The failure of the lessee or usufructuary to give notice will entitle the owner to reim!ursement, for the damages he may have !een re1uired to ay third arties in"ured !y the colla se of the ro erty. WHAT IS THE PRESUMPTION OF NEGLIGENCE UNDER ARTICLE !H!? If any of the four %A' enumerated events occurred, the ro rietor of the machinery, not necessarily of the owner of the tenement where it is located, is resumed negligent. Ce has to overcome the resum tion with sufficient evidence to avoid res onsi!ility.
IS LIABLE IF THE DAMAGE SHOULD BE THE RESULT OF ANY DEFECT IN THE CONSTRUCTION?

WHO

If the !uilding or structure referred to in $rticles )&@> and )&@& were constructed with su!stantial defects which defects are the cause of the damage or in"ury, the in"ured arty may roceed only against the engineer or architect or contractor in accordance with $rticle &;)* which rovides that+
$/TI3L- &;)*. The engineer or architect who drew u the lans and s ecifications for a !uilding is lia!le for damages if within fifteen years from the com letion of the structure, the same should colla se !y reason of a defect in those lans and s ecifications, or due to the defects in the ground. The contractor is likewise res onsi!le for the damages if the edifice falls, within the same eriod, on account of defects in the construction or the use of materials of inferior 1uality furnished !y him, or due to any violation of the terms of the contract. If the engineer or architect su ervises the construction, he shall !e solidarily lia!le with the contractor. cda $cce tance of the !uilding, after com letion, does not im ly waiver of any of the causes of action !y reason of any defect mentioned in the receding aragra h. The action must !e !rought within ten years following the colla se of the !uilding. %n'

0. SOLIDARY LIABILITY FOR QUASI DELICT ;ARTICLE !H/<


$/TI3L- )&@A. The res onsi!ility of two or more ersons who are lia!le for 1uasi:delict is solidary. %n' aisa dc

NUISANCE
$/TI3L- <@A. $ nuisance is any act, omission, esta!lishment, !usiness, condition of anything else which+ %&' %)' %*' %A' ro erty, or

In"ures or endangers the health or safety of others( or $nnoys or offends the senses( or 0hocks, defies or disregards decency or morality( or .!structs or interferes with the free assage of any u!lic highway or street, or any !ody of water( or

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%B'

Cinders or im airs the use of ro erty.

$/TI3L- <@B. ,uisance is either u!lic or rivate. $ u!lic nuisance affects a community or neigh!orhood or any considera!le num!er of ersons, although the e#tent of the annoyance, danger or damage u on individuals may !e une1ual. $ rivate nuisance is one that is not included in the foregoing definition. cda $/TI3L- <@<. -very successive owner or ossessor of ro erty who fails or refuses to a!ate a nuisance in that ro erty started !y a former owner or ossessor is lia!le therefor in the same manner as the one who created it. $/TI3L- <@;. The a!atement of a nuisance does not reclude the right of any erson in"ured to recover damages for its ast e#istence. $/TI3L- <@?. La se of time cannot legaliNe any nuisance, whether u!lic or rivate. $/TI3L- <@@. The remedies against a u!lic nuisance are+ %&' %)' %*' $ rosecution under the 6enal 3ode or any local ordinance+ or $ civil action( or acd $!atement, without "udicial roceedings. $/TI3L- ;>>. The district health officer shall take care that one or all of the remedies against a u!lic nuisance are availed of. $/TI3L- ;>&. If a civil action is !rought !y reason of the maintenance of a u!lic nuisance, such action shall !e commenced !y the city or munici al mayor. $/TI3L- ;>). The district health officer shall determine whether or not a!atement, without "udicial roceedings, is the !est remedy against a u!lic nuisance. $/TI3L- ;>*. $ rivate erson may file an action on account of a u!lic nuisance, if it is s ecially in"urious to himself. $/TI3L- ;>A. $ny rivate erson may a!ate a u!lic nuisance which is s ecially in"urious to him !y removing, or if necessary, !y destroying the thing which constitutes the same, without committing a !reach of the eace, or doing unnecessary in"ury. 4ut it is necessary+ %&' That demand !e first made u on the owner or ossessor of the ro erty to a!ate the nuisance( %)' That such demand has !een re"ected( %*' That the a!atement !e a roved !y the district health officer and e#ecuted with the assistance of the local olice( and cda %A' That the value of the destruction does not e#ceed three thousand esos. $/TI3L- ;>B. The remedies against a rivate nuisance are+ %&' %)' $ civil action( or $!atement, without "udicial roceedings.

$/TI3L- ;><. $ny erson in"ured !y a rivate nuisance may a!ate it !y removing, or if necessary, !y destroying the thing which constitutes the nuisance, without committing a !reach of the eace or doing unnecessary in"ury. Cowever, it is indis ensa!le that the rocedure for e#tra"udicial a!atement of a u!lic nuisance !y a rivate erson !e followed. $/TI3L- ;>;. $ rivate erson or a u!lic official e#tra"udicially a!ating a nuisance shall !e lia!le for damages+ %&' %)' If he causes unnecessary in"ury( or If an alleged nuisance is later declared !y the courts to !e not a real nuisance.

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HUMAN RELATIONS ;INTENTIONAL TORTS< DEFINE HUMAN RELATIONS. It is the interaction or interrelation of one erson to another erson or ersons and vice versa, in accordance with mores, ha!its, customs, and u!lic olicy not contrary to laws. It refers to the rules needed to govern the interrelationshi s of human !eings in a society for the ur ose of maintaining social order It is !ased on the old adage or golden rule+ 8o not do unto others, what others dont do unto you, and the Latin ma#im+ 0ic uture tu ut alteriu+ non laedas/ %0o use your ro erty as not to in"ure others. !. CATCH ALL PROVISIONS ARE THE ARTICLES COVERED IN THE CATCH1ALL PROVISIONS ON RELATIONS? WHAT HUMAN

&. $rticle &@+ -very must, in the e#ercise of his rights and in the erformance of his duties, act with "ustice, give everyone his due, and o!serve honesty and good faith. ). $rticle )>+ -very erson, contrary to law, willfully or negligently causes damage to another, shall indemnify the latte for the same. *. $rticle )&+ $ny erson who willfully causes loss or in"ury to another in a manner that is contrary to morals, good customs, or u!lic olicy shall com ensate the latter for the damage. WHAT ARE THE DIFFERENCESJDISTINCTIONS OF THE THREE ARTICLES? &. $rticle &@ declares a rinci le of law and $rticle )& gives flesh to its rovisions, while $rticle )> s eaks of the general sanction for all other rovisions of law which do not es ecially rovide for their own sanction( ). There is a common element under $rticles &@ and )&, that is, the act must !e intentional, however, $rticle )> does not distinguish, in that the act may !e done either willfully or negligently( *. =nder any of the three articles, an act which causes in"ury to another may !e made the !asis for an award of damages( A. =nder $rticle )&, the act is contrary to morals, good customs or u!lic olicy( in $rticle )&, the act is contrary to law. =nder $rticle )&, the act is done willfully, in $rticle )>, the act is done either willfully or negligently. ARTICLE !H

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$rticle &@ is commonly referred to as the rinci le of a!use of rights. The law recogniNes the norms of human on all rights+ that in their e#ercise, the norms of human conduct set forth in $rticle &@ must !e o!served. The article sets standards which may !e o!served not only in the e#ercise of ones rights !ut also in the erformance of ones duties. These standards are+ a' to act with "ustice, !' to give everyone his due( and c' to o!serve honesty and good faith. $rticle &@ re"ects the classical and traditional theory that he who uses a right in"ures no one. $ right, though !y itself legal !ecause recogniNed or granted !y law as such, may nevertheless !ecome the source of some illegality. 9hen a right is e#ercised in a manner which does not conform with the norms enshrined in $rticle &@ and results in damage to another, a legal wrong is there!y committed for which the wrongdoer must !e held res onsi!le. $rticle &@ is intended to e# and the conce t of torts !y granting ade1uate remedy for the untold num!er of moral wrongs which is im ossi!le for human foresight to rovide s ecifically in statutory law. $rticle &@ lays down a rule of conduct for the regulation of human relations and for the maintenance of social order. It does not rovide a remedy for its violation. 2enerally, an action for damages under either $rticles )> and )& would !e ro er D% 4lo9e MackaB vsJ CA 5!* 0CRA !!) ;5$)$'.E WHAT ARE THE ELEMENTS OF AN ABUSE OF RIGHT UNDER ARTICLE !H? &. -#ercise of a right which is o!"ective and a arently legal( ). 8amage or in"ury to an interest not s ecifically rotected !y a legal rece t( and *. Immorality or anti:social character of the damage or in"ury manifested either su!"ectively, i.e., when the right is e#ercised with the intent to in"ure or sim ly without legal or legitimate ur ose. WHAT ARE THE E$TERNAL LIMITATIONS OF ABUSE OF RIGHTS? &. Those in favor of third ersons who acted in good faith( and ). Those arising from the concurrence or conflict with the tight of others. -#ercise of right. The e#ercise of rights must !e done within certain limits. The limitations in the e#ercise of a right are classified into+ a. Intrinsic limitations K that which emanate from the right itself, that is, from its nature and ur ose. !. -#trinsic limitations which are the following+

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*. Those derived from the nature of the right itself A. Limitations arising from good faith( and B. Limitations im osed !y the economic and social ends for the right which re1uire the holder of the right to e#ercise it in accordance with the end for which it was granted or created. IN WHAT ARTICLES IS ELABORATED? &. ). *. A. ACTING
WITH JUSTICE AND GIVING ANOTHER HIS DUE

$rticle )> K indemnification of another due to illegal acts $rticle )& K indemnification due to immoral acts $rticle )A K unfair com etition $rticle )) K un"ust enrichment IN
WHAT ARTICLE IS

OBSERVANCE

OF HONESTY AND GOOD FAITH

ELABORATED?

&. $rticle )< K res ect for the ersonality and dignity of others ). $rticle )B K restraint of due e#travagance *. $rticle *& et se1. K inde endent civil actions ARTICLE G WHAT IS BEING PUNISHED UNDER ARTICLE G? This article unishes illegal acts whether done willfully or negligently. The article is !road enough to cover all legal %not moral' wrongs in violation of law, whether willfully or negligently. Thus, in the law of torts or 1uasi:delict K 9hoever !y act or omission causes damages to another, there !eing fault or negligence, is o!liged to ay for the damage done. %$rticle )&;<' It em!races the 0 anish:6hili ine conce t of quasi-delict which is !ased on negligence and the tort in $nglo:$mercian "uris rudence which is !ased on malice. This article serves as a sanction to all violations of right which cause damage to another irres ective of whether the articular law that is violated rovides for damages or not. The rule in $rticle )> com liments the rinci le of a!use of rights enumerated in $rticle &@. The conduct may !e !oth a crime and a quasi-delict. $ny erson who willfully or negligently causes damage to another in his erson, his ro erty, or in any right shall !e o!liged to indemnify the latter. $ felony may !e committed !y means of deceit or !y means of fault or negligence %Article # Revised Penal Code'. If the fault or negligence does not constitute a enal offense, the actor is lia!le only for quasi-delict under $rticle )&;<. In either case, it is essential that the act is voluntary for the o!ligation to indemnify to arise. ARTICLE !

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$rticle )& seeks to remedy the countless ga s in the statutes, which leave so may victims of moral wrongs hel less, even though they have actually suffered material and moral in"ury. $rticle )& deals with acts contra 9onus. WHAT ARE THE ELEMENTS OF ACTS CONTRA BONUS? &. There is an act which is legal( ). 4ut which is contrary to morals, good customs, u!lic order, or u!lic olicy( and *. It is done with intent to in"ure =nder this article, damages are recovera!le even though no ositive law was violated. $rticle )& resu oses losses or in"uries material or otherwise, which one may suffer as a result of the violation. Thus, the com laint must asks for damages. E$AMPLES OF ACTS CONTRA BONUS MORES: &. 4reach of romise to marry $s a general rule, !reach of romise to marry !y itself is not actiona!le. Cowever, it !ecomes actiona!le if there are additional circumstances which make it fall within the urview of $rticles &@, )>, )& or )&;< of the 3ivil 3ode. In such cases, there is another act inde endent of the !reach of romise to marry which gives rise to lia!ility. These include cases where+ &. If the !reach of romise to marry is accom anied !y a tortuous act ). If the !reach of romise to marry is accom anied !y a 1uasi:contract as when on the strength of the romise to marry, money or ro erty is given. $n action will lie to recover such money or ro erty *. If the !reach of romise to marry constitutes an a!use of right. A. There was financial damage( B. 0ocial humiliation was caused to one of the arties( and <. 9here there was moral seduction ). 0eduction and se#ual assault 0eduction, !y itself, without !reach of romise to marry is an act which is contrary to morals, good custom and u!lic olicy. The defendant is lia!le if he em loyed deceit, enticement, su erior ower or a!use of confidence in successfully having se#ual intercourse with another. The defendant would !e lia!le for all forms of se#ual assault. These include the crimes defined under the /evised 6enal 3ode as ra e, acts of lasciviousness and seduction. *. 8esertion !y a s ouse

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$ s ouse has a legal o!ligation to live with his or her s ouse. If a s ouse does not erform his or her duty to the other, he may !e held lia!le for damages for such omission !ecause the same is contrary to law, morals and good customs. A. Tres ass and de rivation of ro erty Tres ass to real ro erty is a tort that is committed when a erson unlawfully invades the real ro erty of another. The /evised 6enal 3ode unishes different forms of tres ass. .n the other hand, the 3ivil 3ode rovides that damages may !e awarded to the real owner if he suffered such damages !ecause he was de rived of ossession of his ro erty !y a ossessor in !ad faith or !y a erson who does not have any right whatsoever over the ro erty. %$rticle AB&' $ny!ody who !uilds, lants or sows on the land of another knowing full well that there is a defect in his title is lia!le for damages. Lia!ility for damages under the rovisions of the revised 6enal 3ode and the 3ivil 3ode re1uires intent or !ad faith. 9ith res ect to ersonal ro erty, the commission of the crimes of theft or ro!!ery is o!viously tres ass. In the field of tort, however, tres ass e#tends to all cases where a erson is de rived of his ersonal ro erty even in the a!sence of criminal lia!ility. B. 8isconnection of electricity or gas service $ usual form of de rivation of access to ro erty is the un"ustified disconnection of electricity service. The right to disconnect and de rive the customer of electricity should !e e#ercised in accordance with law and rules. <. $!ortion and wrongful death ;. Illegal dismissal The e#ercise of the right to terminate must !e consistent with the general rinci les rovided for under $rticles &@ and )&. If there is non:com liance with the said articles, the em loyer may !e held lia!le for damages. ?. Halicious rosecution $ tort action for malicious rosecution has !een defined as $n action for damages !rought !y one against another whom a criminal rosecution, civil suit, or other legal roceedings has !een instituted maliciously and without ro!a!le cause, after the termination of such rosecution, suit or roceeding in favor of the defendant therein. The statutory !ases of the action are not only $rticles &@, )> and )& !ut also $rticles )<, *), ** *B, ))&; and ))&@%?' of the 3ivil 3ode. WHAT ARE THE ELEMENTS OF MALICIOUS PROSECUTION?

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a. The fact of the rosecution and the further fact that the defendant was himself the rosecutor, !. That the action was finally terminated with an ac1uittal( c. That in !ringing the action, the rosecutor acted without ro!a!le cause( d. The rosecutor was actuated or im elled !y legal malice.
ORDER FOR THE MALICIOUS PROSECUTION SUIT TO PROSPER6 WHAT MUST THE PLAINTIFF PROVE?

IN

a. The fact of the rosecution and the further fact that the defendant was himself the rosecutor, and that the action finally terminated with an ac1uittal( !. That in !ringing the action, the rosecutor acted without ro!a!le cause( and c. That the rosecutor was actuated or im elled !y legal malice, that is !y im ro er or sinister motive. %Lao v. 3ourt of $ eals, &@@ 03/$ B? D&@@&E( /eha!ilitation Finance 3or oration v. 7oh, A 03/$ B*B D&@<)E( 4uchanan v. Giuda de -ste!an, *) 6hil. *<* D&@&BE' The foregoing re1uisites are necessary safeguards to reserve a ersonRs right to litigate which may otherwise !e emasculated !y the undue filing of malicious rosecution cases. Thus, as further held in the aforecited case of 4uchanan v. Giuda. de -ste!an, su ra+ QHalice is essential to the maintenance of an action for malicious rosecution and not merely to the recovery of e#em lary damages. 4ut malice alone does not make one lia!le for malicious rosecution, where ro!a!le cause is shown, even where it a ears that the suit was !rought for the mere ur ose of ve#ing, harassing and in"uring his adversary. In other words malice and want of ro!a!le cause must !oth e#ist in order to "ustify the action.Q %see also /eha!ilitation Finance 3or . v. 7oh, su ra' 6ro!a!le cause is the e#istence of such facts and circumstances as would e#cite the !elief, in a reasona!le mind, acting on the facts within the knowledge of the rosecutor, that the erson charged was guilty of the crime %or in this case, the wrongdoing' for which he was rosecuted. %0ee 4uchanan v. Giuda de -ste!an, su ra'. The general rule is well settled that one cannot !e held lia!le in damages for maliciously instituting a rosecution where he acted with ro!a!le cause. In other words, a suit will lie only in cases where a legal rosecution has !een carried on without ro!a!le cause. %Id.' @. 6u!lic humiliation -#am le+ sla ing in u!lic

A. $ction In re+ 7erso and Lia!ility 9ithout Fault


A453+* in rem verso

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$rticle ))+ -very erson who through an act or erformance !y another, or !y any other means, ac1uires or comes into ossession of something at the e# ense of the latter without "ust cause or legal ground, shall return the same to him This article is designated as action in re+ verso. 9hat are the re1uisites of action in re+ versoO a. !. c. d. e. .ne arty must !e enriched and the other made oorer( There must !e a causal relation !etween the two( The enrichment must not !e "ustifia!le( There must !e no other way to recover( and The indemnity can not e#tend the loss of enrichment whichever is less

LIABILITY WITHOUT FAULT $rticle )*+ -ven when an ac or event causing damage to anothers ro erty was not due to the fault or negligence of the defendant, the latter shall !e lia!le for indemnity if through the act or event was !enefited. =nless there is a duty to indemnify, un"ust enrichment will occur. The conce t of lia!ility without fault is introduced in this article. It is !ased on e1uity.

B. Cuman 8ignity
TORTS MIND
THAT INVOLVE THE

RIGHT

OF A

PERSON

TO

DIGNITY6 PRIVACY

AND

PEACE

OF

$rticle )< K -very erson shall res ect the dignity, ersonality, rivacy and eace if mind of his neigh!ors and other ersons. The following and other similar acts, though they may not constitute a criminal offense shall roduce a cause of action for damages, revention and other relief+ %&' %)' %*' %A' 6rying into the rivacy of anothers residence( Heddling with or distur!ing the rivate life or family relations of another( Intriguing to cause another to !e alienated from his friends( Ge#ing or humiliating another on account of his religious !eliefs, lowly station in life, lace of !irth, hysical defect, or other ersonal condition.

WHAT ARE THE PRINCIPAL RIGHTS PROTECTED UNDER THIS ARTICLE? a. !. c. d. right to ersonal dignity( right to ersonal security( right to family relations( right to social intercourse(

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e. right to rivacy and f. right to eace of mind WHAT ARE THE REMEDIES AVAILABLE IN THIS ARTICLE? a. $n action for damages !. $n action for revention c. $ny other relief $ civil action may !e instituted even if no crime is involved, and moral damages may !e o!tained 0co e+

a. 6rying into the rivacy of anothers residence K includes !y im lication res ect for anothers name, icture, or ersonality e#ce t insofar as is needed for u!lication of information and ictures of legitimate news value. !. Heddling with or distur!ing the rivate life or family relations of another K includes alienation of the affection of the hus!and or the wife. c. Intriguing to cause another to !e alienated from his friends K includes gossi ing, and reliance on hearsay. d. Ge#ing or humiliating K includes criticism of ones health or features without "ustifia!le legal cause.

<. 6u!lic .fficers


TORTS COMMITTED BY PUBLIC OFFICERS UNDER HUMAN RELATIONS $rticle ); K $ny erson suffering material or moral loss !ecause a u!lic servant or em loyee refuses or neglects, without "ust cause, to erform his official duty may file an action for damages and other relief against the latter, without re"udice to any disci linary administrative action that may !e taken. WHAT ARE THE REQUISITES FOR ACTION UNDER THIS ARTICLE? a. That the defendant !e a u!lic official charged with the erformance of official duties( !. That there !e a violation of an official duty in favor of an individual( c. That there !e willfulness or negligence in the violation of such official duty( d. That there !e an in"ury to the individual

;. =nfair 3om etition


$rticle )? K =nfair com etition in agricultural, commercial or industrial enter rises or in la!or through the use of force, intimidation, deceit, machination, or any other un"ust,

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o ressive or high handed method shall give rise to a right of action !y the erson who there!y suffer damage. WHEN IS THERE UNFAIR COMPETITION? =nfair com etition consists in em loying dece tion or any other means contrary to good faith !y which any erson shall ass off the goods manufactured !y him or in which he deals, or his !usiness, or services to those of the one having esta!lished goodwill, or committing any acts calculated to roduce such result. WHAT IS THE SCOPE OF THE PROHIBITION? i. ii. iii. iv. $gricultural enter rises 3ommercial enter rises Industrial enter rises La!or

!. -#am les i. ii. iii. iv. v. vi. vii. viii. 0trike rematurely declared 0trike for trivial, un"ust or unreasona!le cause 0trike carried out thru force, intimidation or other unlawful means 0trike in order to circumvent valid o!ligations entered into a collective !argaining contracts 3ut:throat com etition The making of false statement in the course of trade to discredit the goods, !usiness or services of another The making of goods so as to deceive urchasers 0elling of goods a!ove the ma#imum rices set !y the state

WHAT ARE THE ELEMENTS OF UNFAIR COMPETITION? &. That the offender gives his goods the general a earance of the goods of another manufacturer or dealer( ). That the general a earance is shown in the %&' goods themselves, or in the %)' wra ing of their ackages, or in the %*' device or words therein, or in %A' any other feature of their a earance( *. That the offender offers to sell or sells those goods or gives other ersons a chance or o ortunity to do the same with a like ur ose( A. That there is actual intent to deceive the u!lic or defraud a com etition. WHAT IS THE NATURE OF A COMPLAINT FOR UNFAIR COMPETITION?

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It is !asically a suit for in"unction and damages.

e. 3ivil $ction $fter $c1uittal In a 3riminal 3ase


$rticle )@ K 9hen the accused in a criminal rosecution is ac1uitted on the ground that his guilt has not !een roved !eyond reasona!le dou!t, a civil action for damages for the same act or omission may !e instituted. 0uch action re1uires only a re onderance of evidence. = on motion of the defendant, the court may re1uire the laintiff to file a !ond to answer for damages in case the com laint should !e found to !e malicious. If in a criminal case the "udgment of ac1uittal is !ased u on reasona!le dou!t, the court shall so declare. In the a!sence of any declaration to that effect, it may !e inferred from the te#t of the decision whether or not the ac1uittal is due to that ground. WHAT ARE THE REASONS OF THE PROVISION IN ALLOWING THE FILING OF A CIVIL ACTION FOR DAMAGES EVEN THOUGH THE ACCUSED HAS BEEN ACQUITTED ON REASONABLE DOUBT? a. The reason is found in $rticle )&;; which states that res onsi!ility for fault or negligence is entirely se arate and distinct form the civil lia!ility arising form negligence under the enal code !ut the laintiff cannot recover damages twice for the same act or omission of the defendant. !. $lso, under the /evised 6enal 3ode, a erson criminally lia!le is also civilly lia!le %$rticle &>>'. The two lia!ilities are se arate and distinct form each other( the criminal as ect affects social order( the civil, rivate rights. .ne is for the unishment or correction of the offender, while the other is for re aration of damages suffered !y the aggrieved arty. WHAT ARE THE INSTANCES WHERE NO CIVIL ACTION MAY BE INSTITUTED? %a' 9hen the accused is ac1uitted on the ground that he did not commit the act, or %!' That no crime was committed, or %c' 4ecause he is "ustified or e#em t from criminal lia!ility, /eason+ 4ecause the ac1uittal on these grounds constitutes res ad"udication. 9hen such civil action is instituted, only a re onderance of evidence is re1uired. Cowever, to rotect ersons form harassment, the rovision authoriNes the defendant t file a motion in court re1uiring the laintiff to file a !ond to answer for damages in case the com laint should !e found to !e malicious. ,ote that $rticle )@ does no s eak of an inde endent civil action.

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f. Institution of 3ivil $ction for 8amages $rising out of a 3riminal .ffense !efore a 3riminal $ction is Instituted for the 3riminal .ffense
$rticle *> K 9hen a se arate civil action is !rought to demand civil lia!ility arising from a criminal offense, and no criminal roceedings are instituted during the endency of the civil case, a re onderance of evidence shall likewise !e sufficient to rove the act com lained of. If however, a criminal action is instituted while the civil action is ending, the civil action will !e sus ended until final "udgment in the criminal case has !een rendered. $s in $rticle )@, this article does not s eak of an inde endent civil action.

g. Torts with Inde endent 3ivil $ctions.


WHAT IS THE BASIS OF TORTS WITH INDEPENDENT CIVIL ACTIONS? $rticle *& K 9hen the civil action is !ased on an o!ligation not arising from the act or omission com lained of as a felony, such civil action may roceed inde endently of the criminal roceedings and regardless of the result of the later. WHAT IS THE SCOPE OF ARTICLE .!? This article refers to a civil action !ased not on the act or omission charged as a felony in a criminal case, !ut to one !ased on an o!ligation arising from other sources, such as law or contract %-#am le+ 4reach of contract of carriage. /eason+ The civil action !ased on contractual lia!ility of a common carrier is distinct from the criminal action instituted against the carrier or its em loyee !ased on the latters negligence'. Heaning of inde endent civil actions K $n inde endent civil action is one that is !rought distinctly and se arately from a criminal case allowed for considerations of u!lic olicy, !ecause the roof needed for civil cases is less than that re1uired for criminal cases( !ut with the in"unction in general that success in financially recovering in one case should revent a recovery of damages in the other. ,ote that the !ringing of the inde endent civil action is com ulsory ermissive, not

WHAT ARE THE INSTANCES OF INDEPENDENT CIVIL ACTIONS? %a' $rticle )& K $cts contra !onus mores %!' $rticle *) K !reach of constitutional and other rights

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%c' $rticle ** K 8efamation, fraud, hysical in"uries %d' $rticle *A K /efusal or failure of city or munici al olice to give rotection %e' $rticle )&;; K Juasi:delict WHAT IS THE EFFECT OF ACQUITTAL IN THE CIVIL CASE? The dismissal of the civil action cannot constitute a !ar to the criminal suit for the two actins are entirely distinct from each other, and may therefore !e litigated inde endently. PROSECUTION PROCEDURE:
OF INDEPENDENT CIVIL ACTION

8RULE !!!6 RULES

OF

CRIMINAL

WC%5 %') 5C) A)*)'%2 '&2)7 3* 3*7535&53+* +, 4'393*%2 %*( 43E32 %453+*7? 9hen a criminal action is instituted, the civil action for the recovery of civil lia!ility arising from the offense charged shall !e deemed instituted with the criminal action unless + %&' the offended arty waives the civil action, %)' reserves the right to institute it se arately or %*' institutes the civil action rior to the criminal action. DThe reservation of the right to institute se arately the civil action shall !e made !efore the rosecution starts resenting evidence and under circumstances affording the offended arty reasona!le o ortunity to make such reservation. 0ection &, /ule &&&E 9hen the civil action has !een filed se arately and trial thereof has not yet commenced, it may !e consolidated with the criminal action u on a lication with the court trying the latter case. If the a lication is granted, the trial of !oth actions shall roceed in accordance with section ) of this /ule governing consolidation if the criminal and civil action. $fter the criminal action has !een commenced, the se arate civil action arising therefrom cannot !e instituted until final "udgment has !een entered in the criminal action. If the criminal action is filed after the said civil action has already !een instituted, the latter shall !e sus ended in whatever stage it may !e found !efore "udgment on the merits. The sus ension shall last until final "udgment is rendered in the criminal action. ,evertheless, !efore "udgment on the merits is rendered in the civil action, the same may, u on motion of the offended arty, !e consolidated with the criminal action in the court trying the criminal action. D0ection ), I!id.E WHAT ARE THE RULES ON INDEPENDENT CIVIL ACTIONS?

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In the cases rovided in $rticles *), **, *A and )&;< of the 3ivil 3ode, the inde endent civil action may !e !rought !y the offended arty. It shall roceed inde endently of the criminal action and shall re1uire only a re onderance of evidence. In no case, however, may the offended arty recover damages twice for the same act or omission charged in the criminal action. D0ection *, I!id.E The inde endent civil actions contem lated in the resent /ule &&& include 1uasi:delicts rovided for in $rticle )&;<, in addition to $rticles *), ** and *A. It is necessary, however, that the civil lia!ility under the said articles arise from the same act or omission of the accused. Further, a reservation of the right to institute these se arate actions are im liedly instituted with the criminal action, unless the former are waived or filed ahead of the criminal action. 9here an inde endent civil action is ermitted, the result of the criminal action, whether of ac1uittal or conviction is entirely irrelevant to the civil action. Thus under $rticle *& of the 3ivil 3ode, the civil action may roceed inde endently of the criminal action regardless of the result of the latter. 6rior to the case of /oa vs. 8e la 3ruN %&>& 6hil. ?', it was held that where the law authoriNes a se arate and inde endent civil action, there was no need for making a reservation, however, in su!se1uent cases, the 0u reme 3ourt has decided that reservation is needed !ecause of the s ecific rovision of 0ection *, /ule &&& re1uiring such reservation to !e made even where the law rovides for inde endent civil actions.

WC%5 %') 5C) >3*(7 +, 3*()-)*()*5 43E32 %453+*7? a. $rticle )& D0u raE !. $rticle *) K $ny u!lic officer or em loyee, or any rivate individual, who directly or indirectly o!structs, defeats, violates or in any manner im edes or im airs any of the following rights and li!erties of another erson shall !e lia!le to the latter for damages+ #### In any of the cases referred to in this article, whether or not the defendants act or omission constitutes a criminal offense, the aggrieved arty has a right to commence an entirely se arate and distinct civil action for damages, and for other relief. 0uch civil action shall roceed inde endently of any criminal rosecution, and may !e roved !y a re onderance of evidence. The indemnity shall include moral and e#em lary damages.

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9here a u!lic officer is charged with violation of any of the !asic rights of an individual rovided for in this article, it is deemed that the action is against him in his rivate ca acity and not a suit against the state which re1uires its consent.

c. $rticle ** K In cases of defamation, fraud, and hysical in"uries, a civil action for damages, entirely se arate and distinct from the civil action, may !e !rought !y the in"ured arty. 0uch civil action shall roceed inde endently of the criminal rosecution, and shall re1uire only a re onderance of evidence. This article s eaks of inde endent civil action in cases of+ defamation, li!el or slander or intriguing against honor fraud, including estafa and swindling, and hysical in"uries, including attem ted and frustrated homicide so long as there was in"ury. d. $rticle *A K 9hen a mem!er of a city or munici al olice force refuses or fails to render aid or rotection to any erson in case of danger to life or ro erty, such eace officer shall !e rimarily lia!le for damages, and the city or munici ality shall !e su!sidiarily res onsi!le therefore. The civil action recogniNed shall !e inde endent of any criminal roceedings, and a re onderance of evidence shall suffice to su ort such action. The lia!ility of the city or munici ality !eing su!sidiary can only !e enforced when the guilty officer is insolvent. Cowever, it can not !e avoided !y roving that the city or munici ality has e#ercised due diligence in the selection and su ervision of its olicemen. This defense, allowed under $rticle )&?>, in favor of em loyers for the fault or negligence of their em loyees, is availa!le only to rivate em loyers( it would !e availa!le to the city or munici ality if the function involved is a cor orate function, !ut not when, as contem lated !y the resent article, it is a governmental function.

e. $rticle )&;; K /es onsi!ility for fault or negligence under $rticle )&;< is entirely se arate and distinct from the civil lia!ility arising form negligence under the enal code. 4ut the laintiff cannot recover twice for the same act or omission of the defendant.

DAMAGES

WHAT ARE THE DAMAGES THAT MAY BE AWARDED? =nder $rticle )&@;, damages may !e+ &. ). *. A. $ctual or com ensatory( Horal( ,ominal( Tem erate or moderate(

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B. Li1uidated( or <. -#em lary or corrective. WHAT DAMAGES MAY BE RECOVERED IN CASE OF DEATH OF A PASSENGER? 9hen death occurs, the following items of damages may !e recovered+ &. ). *. A. B. $n indemnity for the death of the victim( $n indemnity for loss of earning ca acity of the deceased( Horal damages( $ttorneys fee and e# enses of litigation( Interest in ro er cases %8rinas vs. Peo&le 51% 0CRA *)!'. IN

FI$ING A GREATER AMOUNT OF DAMAGES FOR DEATH OF A PASSENGER THAN THAT PROVIDED BY LAW WHAT MAY THE COURTS CONSIDER?

$rticle ))>< a lies in case of death caused !y !reach of contract !y the common carrier %$rticle &;<A'. It fi#es the minimum indemnity for death at 6TTTT which the courts may increase according to circumstances. It is in fi#ing a greater amount of indemnity that courts may consider the financial ca acity of the common carrier, along with such other factors as+ &. ). *. A. B. <. ;. Life e# ectancy of the deceased or of the !eneficiary, whichever is shorter( 6ecuniary loss to the laintiff or !eneficiary( Loss of su ort( Loss of service( Loss of society( Hental suffering of !eneficiaries( and Hedical and funeral e# enses %Pan'asinan Trans&ortation Co. Inc. vs. Le'as&i 51 0CRA %$1'.

In awarding com ensatory damages, the age of the laintiff, his e# ected life s an, and his earning ca acity within that life s an must !e taken into consideration. Thus, the fact that the laintiff was only in his twenties, when through the negligence of the defendant, he lost the use of his lim!s, !eing condemned for the remainder of his life to !e a aralytic, in effect leading a maimed, well:nigh useless e#istence, were taken into account in fi#ing com ensatory damages %Marc"an vs. Mendo>a 12 0CRA ))$'. HOW MAY LIFE E$PECTANCY OF A PERSON BE DETERMINED FOR PUPROSES OF FI$ING THE AMOUNT OF DAMAGES THAT MAY BE RECOVERED? In determining the num!er of years on the !asis of which the damages shall !e com uted and the rate which the losses sustained !y said heirs should !e fi#ed, the following formula was ado ted in the $merican -# ectancy Ta!le of Hortality or the actual 3om!ined -# erience Ta!le of Hortality+ )I* # %?> K age of the decedent' U life e# ectancy.

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Thus, the life e# ectancy of the assenger who died when he was over )@ years of age %or around *> for ur oses of com utation' was laced at ** &I* years, following the foregoing formula %7illa ReB Transit Inc. vs. Court o( A&&eals #5 0CRA %52 '. $nd where the assenger was *; years old when he died, he had a life e# ectancy of )? )I* more years % =ortune :?&ress Inc. vs. Court o( A&&eals 4.R. No. 55$!%* Marc" 5) 5$$$'. In the com utation of the damages to !e awarded, it should !e life e# ectancy of the assenger who died and not the life e# ectancy of the !eneficiary which should !e considered %P"ili&&ine Airlines vs. Court o( A&&eals 5)% 0CRA 556'. ACTUAL OR COMPENSATORY DAMAGES $ctual damages are ade1uate com ensation for ecuniary loss suffered and roved. It includes attorneys fees.
$/TI3L- )&@@. -#ce t as rovided !y law or !y sti ulation, one is entitled to an ade1uate com ensation only for such ecuniary loss suffered !y him as he has duly roved. 0uch com ensation is referred to as actual or com ensatory damages. $/TI3L- ))>>. Indemnification for damages shall com rehend not only the value of the loss suffered, !ut also that of the rofits which the o!ligee failed to o!tain. %&&><' $/TI3L- ))>&. In contracts and 1uasi:contracts, the damages for which the o!ligor who acted in good faith is lia!le shall !e those that are the natural and ro!a!le conse1uences of the !reach of the o!ligation, and which the arties have foreseen or could have reasona!ly foreseen at the time the o!ligation was constituted. In case of fraud, !ad faith, malice or wanton attitude, the o!ligor shall !e res onsi!le for all damages which may !e reasona!ly attri!uted to the non: erformance of the o!ligation. %&&>;a' $/TI3L- ))>). In crimes and 1uasi:delicts, the defendant shall !e lia!le for all damages which are the natural and ro!a!le conse1uences of the act or omission com lained of. It is not necessary that such damages have !een foreseen or could have reasona!ly !een foreseen !y the defendant. cdasia $/TI3L- ))>*. The arty suffering loss or in"ury must e#ercise the diligence of a good father of a family to minimiNe the damages resulting from the act or omission in 1uestion. $/TI3L- ))>A. In crimes, the damages to !e ad"udicated may !e res ectively increased or lessened according to the aggravating or mitigating circumstances. $/TI3L- ))>B. 8amages may !e recovered+ %&' %)' For loss or im airment of earning ca acity in cases of tem orary or ermanent ersonal in"ury( For in"ury to the laintiffRs !usiness standing or commercial credit.

$/TI3L- ))><. The amount of damages for death caused !y a crime or 1uasi:delict shall !e at least three thousand esos, even though there may have !een mitigating circumstances. In addition+ %&' The defendant shall !e lia!le for the loss of the earning ca acity of the deceased, and the indemnity shall !e aid to the heirs of the latter( such indemnity shall in every case !e assessed and awarded !y the court, unless the deceased on account of ermanent hysical disa!ility not caused !y the defendant, had no earning ca acity at the time of his death(

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%)' If the deceased was o!liged to give su ort according to the rovisions of article )@&, the reci ient who is not an heir called to the decedentRs inheritance !y the law of testate or intestate succession, may demand su ort from the erson causing the death, for a eriod not e#ceeding five years, the e#act duration to !e fi#ed !y the court( %*' The s ouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish !y reason of the death of the deceased. cdtai $/TI3L- ))>;. If the laintiffRs ro erty has !een insured, and he has received indemnity from the insurance com any for the in"ury or loss arising out of the wrong or !reach of contract com lained of, the insurance com any shall !e su!rogated to the rights of the insured against the wrongdoer or the erson who has violated the contract. If the amount aid !y the insurance com any does not fully cover the in"ury or loss, the aggrieved arty shall !e entitled to recover the deficiency from the erson causing the loss or in"ury. $/TI3L- ))>?. In the a!sence of sti ulation, attorneyRs fees and e# enses of litigation, other than "udicial costs, cannot !e recovered, e#ce t+ %&' 9hen e#em lary damages are awarded( %)' 9hen the defendantRs act or omission has com elled the laintiff to litigate with third ersons or to incur e# enses to rotect his interest( casia %*' In criminal cases of malicious rosecution against the laintiff( %A' In case of a clearly unfounded civil action or roceeding against the laintiff( %B' 9here the defendant acted in gross and evident !ad faith in refusing to satisfy the laintiffRs lainly valid, "ust and demanda!le claim( %<' In actions for legal su ort( %;' In actions for the recovery of wages of household hel ers, la!orers and skilled workers( %?' In actions for indemnity under workmenRs com ensation and em loyerRs lia!ility laws( %@' In a se arate civil action to recover civil lia!ility arising from a crime( %&>' 9hen at least dou!le "udicial costs are awarded( %&&' In any other case where the court deems it "ust and e1uita!le that attorneyRs fees and e# enses of litigation should !e recovered. In all cases, the attorneyRs fees and e# enses of litigation must !e reasona!le. $/TI3L- ))>@. If the o!ligation consists in the ayment of a sum of money, and the de!tor incurs in delay, the indemnity for damages, there !eing no sti ulation to the contrary, shall !e the ayment of the interest agreed u on, and in the a!sence of sti ulation, the legal interest, which is si# er cent er annum. %&&>?' casia $/TI3L- ))&>. Interest may, in the discretion of the court, !e allowed u on damages awarded for !reach of contract. $/TI3L- ))&&. In crimes and 1uasi:delicts, interest as a art of the damages may, in a ro er case, !e ad"udicated in the discretion of the court. $/TI3L- ))&). Interest due shall earn legal interest from the time it is "udicially demanded, although the o!ligation may !e silent u on this oint. %&&>@a' $/TI3L- ))&*. Interest cannot !e recovered u on unli1uidated claims or damages, e#ce t when the demand can !e esta!lished with reasona!le certainty. $/TI3L- ))&A. In 1uasi:delicts, the contri!utory negligence of the laintiff shall reduce the damages that he may recover. $/TI3L- ))&B. In contracts, 1uasi:contracts, and 1uasi:delicts, the court may e1uita!ly mitigate the damages under circumstances other than the case referred to in the receding article, as in the following instances+ cdtai %&' That the laintiff himself has contravened the terms of the contract(

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%)' %*' %A' %B'

That the laintiff has derived some !enefit as a result of the contract( In cases where e#em lary damages are to !e awarded, that the defendant acted u on the advice of counsel( That the loss would have resulted in any event( That since the filing of the action, the defendant has done his !est to lessen the laintiffRs loss or in"ury.

OTHER KINDS OF DAMAGES


$/TI3L- ))&<. ,o roof of ecuniary loss is necessary in order that moral, nominal, tem erate, li1uidated or e#em lary damages, may !e ad"udicated. The assessment of such damages, e#ce t li1uidated ones, is left to the discretion of the court, according to the circumstances of each case. cda

MORAL DAMAGES
$/TI3L- ))&;. Horal damages include hysical suffering, mental anguish, fright, serious an#iety, !esmirched re utation, wounded feelings, moral shock, social humiliation, and similar in"ury. Though inca a!le of ecuniary com utation, moral damages may !e recovered if they are the ro#imate result of the defendantRs wrongful act or omission. $/TI3L- ))&?. In the ad"udication of moral damages, the sentimental value of ro erty, real or ersonal, may !e considered. $/TI3L- ))&@. Horal damages may !e recovered in the following and analogous cases+ %&' %)' %*' %A' %B' %<' %;' %?' %@' %&>' $ criminal offense resulting in hysical in"uries( Juasi:delicts causing hysical in"uries( 0eduction, a!duction, ra e, or other lascivious acts( $dultery or concu!inage( Illegal or ar!itrary detention or arrest( Illegal search( Li!el, slander or any other form of defamation( Halicious rosecution( $cts mentioned in article *>@( $cts and actions referred to in articles )&, )<, );, )?, )@, *>, *), *A, and *B. casia

The arents of the female seduced, a!ducted, ra ed, or a!used, referred to in ,o. * of this article, may also recover moral damages. The s ouse, descendants, ascendants, and !rothers and sisters may !ring the action mentioned in ,o. @ of this article, in the order named. $/TI3L- )))>. 9illful in"ury to ro erty may !e a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are "ustly due. The same rule a lies to !reaches of contract where the defendant acted fraudulently or in !ad faith.

AS A GENERAL RULE6 MAY MORAL DAMAGES BE RECOVERED IN BREACH OF CONTRACT OF TRANSPORTATION? Horal damages are not recovera!le in damage actions redicated on a !reach of contract of trans ortation in view of the rovisions of $rticles ))&@ and )))>. The said rovisions limited the award of moral damages to those enumerated therein and analogous cases. $ !reach of contract cannot !e considered included in the descri tive term analogous cases used in $rticle ))&@, not only !ecause $rticle )))> s ecifically rovided for damages that are caused !y

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contractual !reach, !ut !ecause the definition of quasi delict in $rticle )&;< e# ressly e#cludes the cases where there is a re:e#isting contractual relation !etween the arties % 7er>osa vs. 8aBtan 56! P"il. 56563 Martine> vs. 4on>ales * 0CRA ##5'. WHAT ARE THE E$CEPTIONS TO THE FOREGOING RULE WHEN MORAL DAMAGES MAY BE RECOVERED IN BREACH OF CONTRACT OF TRANSPORTATION? Horal damages may !e recovered in an action for !reach of contract of trans ortation in the following cases+ &. 9hen the misha results in the death of a assenger % M. Rui> @i'"EaB Transit Inc. vs. Court o( A&&eals 55 0CRA $)'( ). 9here it is roved that the carrier was guilty of fraud or !ad faith, even if death does not result %Re? Ta?ica9 Co. Inc. vs. 8autista L-5%#$1 0e&te+9er #6 5$*63 0in'son vs. Court o( A&&eals 1)1 0CRA 52$'. 4ad faith means a !reach of a known duty through some motive or ill:will. 0elf enrichment or fraternal interest, and not ersonal ill:will, may have !een the motive, !ut it is malice nevertheless which may !e the ground for awarding moral damages for !reach of contract of carriage %Lo&e> vs. Pan A+erican Aorld AirEaBs 5* 0CRA 2#5 '. The !ad faith referred to may !e !ad faith in the securing and in the e#ecution of the contract and in the enforcement of its terms or any other kind of deceit which may have !een used !y the carrier % Ta+aBo vs. Aquino L-51*#2 and 51!16 +aB 1$ 5$%$'.
MORAL DAMAGES BE GRANTED IN CASE OF BREACH OF CONTRACT OF TRANSPORTATION WHICH MERELY CAUSES PHYSICAL INJURIES TO PASSENGERS?

MAY

In case of !reach of contract of carriage resulting only to hysical in"uries of assengers, moral damages are not recovera!le %La'una TaBa9as 8us Co. vs. Cornista 55 0CRA 5)1', unless the carrier acted fraudulently or with malice or in !ad faith % Roque vs. 8uan 15 0CRA *%53 8ulante vs. C"u Liante 1# 0CRA *62'. NOMINAL DAMAGES ,ominal damages are awarded not to com ensate !ut to vindicate a right of the laintiff that has !een violated !y the defendant. Tem erate damages, on the other hand, refers to ecuniary loss suffered !ut cannot !e roven with certainty.
$/TI3L- )))&. ,ominal damages are ad"udicated in order that a right of the laintiff, which has !een violated or invaded !y the defendant, may !e vindicated or recogniNed, and not for the ur ose of indemnifying the laintiff for any loss suffered !y him. cd $/TI3L- )))). The court may award nominal damages in every o!ligation arising from any source enumerated in article &&B;, or in every case where any ro erty right has !een invaded. $/TI3L- )))*. The ad"udication of nominal damages shall reclude further contest u on the right involved and all accessory 1uestions, as !etween the arties to the suit, or their res ective heirs and assigns. cdtai

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TEMPERATE OR MODERATE DAMAGES


$/TI3L- )))A. Tem erate or moderate damages, which are more than nominal !ut less than com ensatory damages, may !e recovered when the court finds that some ecuniary loss has !een suffered !ut its amount can not, from the nature of the case, !e roved with certainty. $/TI3L- )))B. Tem erate damages must !e reasona!le under the circumstances.

LIQUIDATED DAMAGES
$/TI3L- )))<. Li1uidated damages are those agreed u on !y the arties to a contract, to !e aid in case of !reach thereof. aisa dc $/TI3L- )));. Li1uidated damages, whether intended as an indemnity or a enalty, shall !e e1uita!ly reduced if they are ini1uitous or unconsciona!le. $/TI3L- )))?. 9hen the !reach of the contract committed !y the defendant is not the one contem lated !y the arties in agreeing u on the li1uidated damages, the law shall determine the measure of damages, and not the sti ulation.

E$EMPLARY OR CORRECTIVE DAMAGES


$/TI3L- )))@. -#em lary or corrective damages are im osed, !y way of e#am le or correction for the u!lic good, in addition to the moral, tem erate, li1uidated or com ensatory damages. $/TI3L- ))*>. In criminal offenses, e#em lary damages as a art of the civil lia!ility may !e im osed when the crime was committed with one or more aggravating circumstances. 0uch damages are se arate and distinct from fines and shall !e aid to the offended arty. $/TI3L- ))*&. In 1uasi:delicts, e#em lary damages may !e granted if the defendant acted with gross negligence. $/TI3L- ))*). In contracts and 1uasi:contracts, the court may award e#em lary damages if the defendant acted in a wanton, fraudulent, reckless, o ressive, or malevolent manner. $/TI3L- ))**. -#em lary damages cannot !e recovered as a matter of right( the court will decide whether or not they should !e ad"udicated. cdt $/TI3L- ))*A. 9hile the amount of the e#em lary damages need not !e roved, the laintiff must show that he is entitled to moral, tem erate or com ensatory damages !efore the court may consider the 1uestion of whether or not e#em lary damages should !e awarded. In case li1uidated damages have !een agreed u on, although no roof of loss is necessary in order that such li1uidated damages may !e recovered, nevertheless, !efore the court may consider the 1uestion of granting e#em lary in addition to the li1uidated damages, the laintiff must show that he would !e entitled to moral, tem erate or com ensatory damages were it not for the sti ulation for li1uidated damages. cdtai $/TI3L- ))*B. $ sti ulation where!y e#em lary damages are renounced in advance shall !e null and void.

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