Republic of the Philippines

REGIONAL TRIAL COURT

9th Judicial Region
Branch 13
City of Zamboanga

MARIA ISABELLE CLIMACO, Civil Case No. 46456

Plaintiff For: Collection of Sum of
Money and Damages

-versus-

CELSO LOBREGAT,
Defendant.
x----------------------------------------------------------x

MOTION TO DISMISS

COME NOW, DEFENDANTS, by counsel and unto this Honorable Court, most
respectfully moved for the dismissal of the above captioned case upon the following
arguments:

I. GROUNDS

THIS CASE IS UNENFORCEABLE UNDER THE PROVISIONS OF THE

SATUTE OF FRAUDS

II.DISCUSSION

1. In support of his claim the plaintiff alleged that, in the month of November, 2015, he and
the defendant entered into a contract by virtue of the terms of which he was to pay to the
defendant the sum of P500,000.00 upon the marriage of his son Cipriano Climaco with
the daughter of the defendant, Bonifacia Lobregat.

2. In the month of August, 2016, the Plaintiff completed his obligation under said contract
by paying to the defendant the said sum of P500,000.00, "as hansel or token of future
marriage".

3. Notwithstanding said agreement, the said Bonifacia Lobregat, in the month of September,
2016, was joined in lawful wedlock to Laureano Sisi. Climaco demanded of the
defendant the return of the said sum of P500,000.00 together with the interest and
damages

4. To the complaint the defendant presented a general denial. He also alleged that the facts
stated in the complaint do not constitute a cause of action.

5. The Defendant have examined the complaint in vain and found that the plaintiff did not
show any proof or any part of a written contract thereof.

6. Thus, Defendant move for the Dismissal of this complaint in violation of the Rules of
court which provided grounds for motion to dismiss when the claim on which the action
 is founded is enforceable under the provisions of the statute of frauds 1 under Article 1403
of the Civil Code of the Philippines:

(2) Those that do not comply with the Statute of Frauds as set forth in this number. In the
following cases an agreement hereafter made shall be unenforceable by action, unless the
same, or some note or memorandum, thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement cannot be received
without the writing, or a secondary evidence of its contents:

(c) An agreement made in consideration of marriage, other than a mutual promise to

marry; 2

6. Supreme Court in the case of Domalagan vs Bolifer held that a father who verbally
agreed and gave money to his sons fianc cannot seek the return thereof because the
agreement was not evidenced by a note or memorandum.3

7. Said Article 1403 of the Civil Code does not render oral contracts invalid. A contract
may be valid and yet, by virtue of said Article, the parties will be unable to prove it. The
said Article provides that the contract shall not be enforced by an action, and it will be
just as binding upon the parties as if it had been reduced to writing.

1 Rule 16 Section 1 (i), Rules od Court

2 Article 1403 (2) (c), Civil Code of the Philippines
3 Domalagan v. Bolifer, G.R. No. 8166, 8 February 1916
 RELIEF

WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court to

dismiss this case, which is unenforceable under the provisions of the Statue of Frauds.

Other reliefs and remedies just and equitable under the premises are likewise prayed for.

City of Zamboanga, Zamboanga del Sur, 15 April 2017.

ATTY. JUANITO JAMES DACUYCUY

Counsel for Defendant
Satellite St., Tumaga, Zamboanga City
Roll No. 75432, 05/05/10
PTR No. 334255, 02/10/13, Zamboanga City
IBP No. 98776, 01/04/13, Zamboanga Chapter
MCLE COMPLAINCE No. 887649
 NOTICE OF HEARING

THE CLERK OF COURT

Regional Trial Court
Branch 13
Zamboanga City

GREETINGS!

Please submit the foregoing motion for the consideration of the Honorable Court and set the
same for hearing on April 22, 2017 at 2:00 o'clock in the afternoon sans oral arguments and
without need of appearance of counsels.

ATTY. JUANITO JAMES DACUYCUY

NOTICE TO COUNSEL

ATTY. QUENNIE MAY ISIDRO

Counsel for Plaintiff
Tumaga, Zamboanga City

GREETINGS!

Please be informed that the foregoing motion was submitted for the consideration of the
Honorable Court and the same has been set for hearing on April 22, 2017 at 2:00 o'clock in the
afternoon sans oral arguments and without need of appearance of counsels.

ATTY. JUANITO JAMES DACUYCUY