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 private right, not created by contract, and
which gives rise to an action for damages. It is an act or omission producing injury to another,
without any previous existing lawful relation of which said act or omission may be said to be a
natural outgrowth or incident.

It is a private or civil wrong or injury, other than breach of contract, for which the court will
provide a remedy in the form of an action for damages. It is a violation of a duty imposed by general
law or otherwise upon all persons occupying the relation to each other which is involved in a given
transaction. There must always be violation of some duty that must give rise y operation of law and
not by mere agreement of the parties.

A tort is a wrong independent of a contract, which arises from an act or omission of a person
which causes some injury or damage directly or indirectly to another person. It may either be (1) a
direct invasion of some legal right of the individual; (2) the infraction of some public duty by which
special damage accrues to the individual; (3) the violation of some private obligation by which like
damage accrues to the individual.

WHAT ARE THE KINDS OF TORTS IN COMMON LAW?

Tort in common law includes:

1. INTENTIONAL TORTS which include conduct where the actor desires to cause the consequences of
his act or believes the consequences are substantially certain to result from it. It includes assault,
battery, false imprisonment, defamation, invasion of privacy and interference of property.
2. NEGLIGENCE involves voluntary acts or omissions which result in injury to others, without
intending to cause the same. The actor fails to exercise due care in performing such acts or
omissions.
3. STRICT LIABILITY IN TORT where the person is made liable independent of fault or negligence upon
submission of proof of certain facts.
WHAT ARE THE ELEMENTS OF TORT?

There are three most important elements of tort:

1. Right and duty;

2. Act or omission; and
3. Damage
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WHAT IS QUASI-DELICT?
Whoever by act or omission causes damage to another, there being fault or negligence is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called quasi-delict and is governed by the provisions of Article 2176 of
the Civil Code.

HOW IS TORT DISTINGUISHED FROM QUASI-DELICT?

Quasi-delict is what is known as TORT in Anglo-American law. Tort is broader than the
Spanish-Philippine concept of quasi-delict which is Roman in origin. Tort in Anglo-American Law
includes not only negligence but also intentional criminal acts, such as assault and battery, false
imprisonment and deceit. Quasi-delict, on the other hand, covers only acts or omissions which cause
damage to another because of fault or negligence, there being no pre-existing contractual relation
between the parties. This is referred to as non-contractual negligence.

The concept of tort came to our legal system after the Philippines became a colony of the
United States of America as a result of the Treaty of Paris signed on December 10, 1898.

The Code commission deliberately used the term quasi-delicts to designate those obligations
which do not arise from law, contracts, quasi-contracts, or criminal offenses, because this term more
nearly corresponds to the Roman law classification of obligations and is in harmony with the nature
of this kind of liability. It rejected to use the term Tort, which is broader, because in the general plan
of the Philippine legal system, intentional and malicious acts, which certain exceptions, are governed
by the Penal Code.

WHAT ARE THE SOURCES OF THE LAW ON TORTS AND DAMAGES?

The law on Torts and Damages is based on several articles spread in the New Civil Code and
special laws, particularly the following:

1. Chapter on Quasi-Delicts (Articles 2176 to 2194)

2. Chapter on Quasi-Contracts (Articles 2144, 2145, 2146, 2147, 2148, 2150, 2151 and 2159)
3. Chapter on Human Relations (Articles 19 to 36)
4. Articles 1172 to 1174 of the New Civil Code which are made applicable to quasi-delicts (See
Article 2178)
5. Article 1723, New Civil Code (See Article 2192)
6. Article 309, New Civil Code (See Article 2219 [9])
7. Article 1314 NCC (Contractual Interference)
8. Family Code of the Philippines
9. Articles 100 to 103 of the Revised Penal Code (see Article 2177, NCC)
10. Title XVIII (Damages) covering Articles 2195 to 2235, NCC.
11. Chapter on Nuisance (Articles 694 to 707, NCC)
12. Chapter III, Section 4 (Common Carriers) covering Articles 1755 to 1763, NCC
13. R.A. No. 7877 (Anti-Sexual Harassment Act)
14. Supreme Court decisions
15. American law and jurisprudence; and
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K. P. Dela Serna
16. Opinion of legal authors

WHAT ARE THE MAJOR PURPOSES OF TORT LAW?

The major purposes of tort law include the following:

1. To provide a peaceful means for adjusting the rights of parties who might otherwise take the
law into their own hands;
2. Deter wrongful conduct;
3. To encourage socially responsible behavior; and
4. To restore injured parties to their original condition, insofar as the law can do this, by
compensating them from their injury

WHAT ARE THE KINDS OF INTERESTS PROTECTED BY TORT LAWS UNDER THE CIVIL CODE AND
WHAT ARE THE SPECIFIC PROVISIONS WHICH PROTECT SUCH INTEREST?

INTEREST PROTECTED TORTS AND PROVISIONS INVOLVED

Person
1. Freedom from contract and of 1. Physical Injuries (Art. 32), Quasi
movement Delict (Art. 2176)
2. Freedom from distress 2. Moral Damages (Arts. 2217-2220)
Dignity
1. Reputation 1. Defamation (Art. 33)
2. Privacy 2. Violation of Privacy (Art. 26)
3. Freedom from wrongful actions 3. Malicious Prosecution (Arts. 20, 21)
Property
1. Real property 1. Nuisance (Arts. 694-770), Quasi
Delict (Article 2176)
Economic/Pecuniary
1. Contracts 1. Interference with contractual rights
(Art. 1314)
2. Freedom form deception 2. Fraud (Art. 33

WHAT ARE THE DISTINCTIONS BETWEEN CULPA CONTRACTUAL, CULPA AQUILIANA AND CULPA
CRIMINAL?

CULPA CONTRACTUAL CULPA AQUILIANA CULPA CRIMINAL

There is a pre-existing There is no pre-existing There is nor pre-existing
obligation (a contract, obligation. contractual obligation.
either expressed or
implied)
Preponderance of evidence Preponderance of evidence The crime must be proven
is required. is needed. beyond reasonable doubt.
Defense of good father of a Defense of a good father of This defense cannot be
family in the selection and a family in the selection of interposed. If the employee
supervision of employees is the employees is a proper is insolvent or incapable to
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K. P. Dela Serna
not a proper and complete defense of the employer. pay the civil aspect or
defense but this can liability, the employer is
mitigate liability for subsidiarily liable
damages
The existence of a contract The fault or negligence of The innocence of the
must be proven. If it is the defendant must be accused is presumed until
proven and it is also proven proven. the contrary is proven.
that the contract was not
complied with, it is
presumed that the debtor is
at fault.
Negligence is only Negligence is direct, Negligence is direct,
incidental to the substantive and substantive and
performance of an existing independent. independent.
obligation based on
contract.

HOW IS QUASI-DELICT DISTINGUISHED FROM DELICT OR CRIME?

BASIS QUASI-DELICT DELICT OR CRIME

1. Legal basis of liability
2. Criminal intent
3. Nature of right violated
4. Liability for damages
5. Proofs needed
6. Sanction or penalty
There can be a quasi-delict
as long as there is fault or
negligence resulting in
damage or injury to
another. It is broader in
scope than crime.
Criminal intent is no
necessary for quasi-delict to
exist. Fault or negligence
without intent will suffice.
Right violated is a private
right. Quasi-delict is a
wrongful act against a
private individual.
Every quasi-delict gives rise
to liability for damages.
Proof of the fault or
negligence requires only
preponderance of evidence.
Reparation or
indemnification of the
injury or damage.
There can be no crime
unless there is a law
punishing the act.
Criminal intent is essential
for criminal liability to
exist.
Right violated is a public
one. Crime is a wrong
against the State.
Some crimes (like
contempt, illegal possession
of firearm) do not give rise
to liability for damages.
The guilt of the accused
must be proved beyond
reasonable doubt.
Punishment is either
imprisonment, fine or both;
sometimes other accessory
penalties are imposed.
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K. P. Dela Serna

HOW IS QUASI-DELICT DISTINGUISHED FROM CULPA CONTRACTUAL?

BASIS Quasi-Delict Culpa Contractual

1. Nature of negligence Negligence is direct, Negligence is merely
substantive and incidental to the
independent (Rakes vs. performance of the
Atlantic, 7 Phil. 395) contractual obligation.
There is a pre-existing
contract or obligation.
(Rakes vs. Atlantic, supra)
2. Defense of good father of This is a complete and This is not a complete and
a family proper defense insofar as proper defense in the
parents, guardians, selection and supervision of
employers are concerned employees. (Cangco vs.
(Art. 2180, last par.) MRC, infra.)
3. Presumption of There is no presumption of There is presumption of
negligence negligence. The injured negligence as long as it can
party must prove the be proved that there was
negligence of the defendant breach of the contract. The
(Cangco vs. MRC, 38 Phil. defendant must prove that
768). Otherwise, the there was no negligence in
complaint of injured party the carrying out of the
will be dismissed. terms of the contract.
(Cangco vs. MRC, supra)

APPLICATION:

FACTS:

X, INC. PUBLIC UTILITY COMPANY

Y BUS DRIVER, RECKLESS DRIVING
Z PASSENGER INJURED

CAUSES OF ACTION:

1. Culpa contractual negligence based on contract

2. Culpa aquiliana negligence based on tort
3. Culpa criminal negligence based on a crime

CULPA CONTRACTUAL

In the contract of carriage of passengers, it is the obligation of the carrier to convey the
passengers safely to the point of destination. In case a passenger is not brought safely thereto, there
will be a breach of contract. Any case brought based on culpa contractual will be captioned Passenger
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K. P. Dela Serna
Z vs. X, Inc because the contract is between them. The driver is not to be included as a party to the
action, because he is not a party to the contract. As to him, there is no privity.

CULPA AQUILIANA

Damage caused to another due to negligence. The case will be entitled Passenger Z vs. X, Inc.
and Driver Y (the defendants will be solidarily liable as joint-tortfeasors)

CULPA CRIMINAL

The drivers act may amount to a crime (physical injuries through reckless imprudence). The
case will be entitled People of the Philippines vs. Driver Y, and if the latter is convicted but is
insolvent, Passenger Z may pursue against X, Inc. to enforce the latters subsidiary liability.

NATURE OF THE CASES:

The weakest cause of action is culpa aquiliana where the employer may raise the defense of due
diligence in the selection and supervision of the driver. Culpa criminal is a stronger cause of action
because as to the companys subsidiary liability the latters defense are limited, however the quantum
of evidence needed to convict the employee would have to be guilt beyond reasonable doubt.

Culpa contractual (breach of contractual of carriage) is a stronger cause of action because if

death or injury occurs, the presumption of negligence automatically arises and the common carrier
can be held liable if he fails to prove the extra-ordinary diligence for the duration of the carriage.

II. QUASI-DELICT UNDER THE CIVIL CODE

A. ARTICLE 2176

Article 2176 - Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

The article covers all wrongful acts or omissions as along as

1. They are not constitutive of breach of contract; and

2. They are not punishable as offenses.

WHAT ARE THE ELEMENTS OF QUASI-DELICT?

1. Act or omission;
2. Presence of fault or negligence
3. Damage suffered by the plaintiff;
4. Causal connection between the fault or negligence and the damage
5. No pre-existing contractual relation
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1. ACT OR OMISSION

WHAT IS ACT OR OMISSION?

When a person by reason of his act or omission causes damage or prejudice to another, a
juridical relation is created by virtue of which the injured person acquires a right to be indemnified
and the person causing the damage is charged with the corresponding duty of repairing the
damaged.

2. FAULT OR NEGLIGENCE

A. NEGLIGENCE

WHAT IS NEGLIGENCE?

Article 1173 of the New Civil Code explains negligence as follows

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which
is required by the nature of the obligation and corresponds with the circumstances of the persons, of the
time and of the place.

XXX

If the law or contract does not state the diligence which is to be observed in the performance, that
which I expected of a good father of a family shall be required.

The Supreme Court has defined negligence as the failure to observe for the protection of the
interests of another person, that degree of care, precaution and vigilance which the circumstances
justly demand, whereby such other person suffers injury (United States vs. Arias, 23 Phil. 434; Gan vs.
Court of Appeals, 165 SCRA 378)

WHAT IS THE DEGREE OF CARE OF DILIGENCE REQUIRED?

Based on the definition of Article 1173, the degree of care, precaution, and vigilance that
should be observed depends on the circumstance of a) persons, b) place, and c) time. That which may
be considered therefore as sufficient care and precaution in a set of circumstances, may be 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 be observed is that which is expected
of a good father of a family unless the law or stipulation of the parties requires another standard of
care.

The Supreme Court explained in Picart vs. Smith, infra that the standard of conduct used in the
Philippines is that of pater familias in Roman law or that what is referred to in Article 1173 of the NCC,
in relation to Article 2178 as a good father of a family. What should be determined in negligence cases
is what is foreseeable to a good father of a family. A good father of a family is likewise referred to as
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the reasonable man, a man of ordinary intelligence and prudence, or ordinary reasonable prudent
man.

WHAT ARE EXAMPLES OF PROVISIONS OF LAW THAT REQUIRES ANOTHER STANDARD OF CARE?

a. Article 1733 provides that common carriers are bound to observe extraordinary diligence
according to all circumstances of each case.
b. Article 1755 provides that common carrier is bound to carry the passenger safely as far as
human care and foresight can provide, suing the utmost diligence of very cautious persons,
with due regard for all the circumstances.
c. Highest degree of diligence is required in practice of medicine [likened to the diligence
required of a common carrier] (Ramos vs. CA, August 11, 2002) Res ipsa loquitor doctrine is
applicable to practice of medicine.

CAN THERE BE A TORT IN MALPRACTICE IN LAW?

Yes, while lawyers are no required to exercise the extraordinary diligence of a common carrier,
they must exercise diligence not lesser than the diligence of a good father of a family in handling of
cases which they accepted from clients. (Ventilla vs. Centeno, 1 SCRA 215 1) In fact, a lawyer commits
the crime of betrayal of trust if he would maliciously breach his professional duty, or is guilty of
inexcusable negligence or ignorance to the prejudice of his client. (Article 209, RPC)

WHAT IS THE TEST OF DETERMINING NEGLIGENCE?

In Picart vs. Smith, 37 Phil. 809, the test of negligence is capsulized as follows

Would a prudent man, in the position of the person to whom negligence is attributed, foresee
harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the
law imposed a duty on the actor to refrain from the course or take precaution against its mischievous
results, and failure to do so constitutes negligence.

WHAT ARE THE KINDS OF ACTIONABLE NEGLIGENCE?

Actionable negligence may either be a) culpa contractual, b) culpa aquiliana, and c) criminal
negligence. Thus an action fro damages for the negligent acts of the defendant may be based on
contract, delict, or quasi-delict. The bases of liability are separate and distinct from each other even if
only one act or omission is involved.

WHAT IS THE COVERAGE OF NEGLIGENCE IN ARTICLE 2176?

Article 2176, whenever it refers to fault or negligence, covers not only acts not punishable
by law but also acts criminal in character, whether intentional or voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed
(if the torfeasor is actually charged also criminally), to recover damages on both scores, and would be

1 A lawyer was made liable for nominal damages for failure to perfect an appeal.
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K. P. Dela Serna
entitled in such eventuality only to the bigger award of the two, assuming the awards made in the
two cases vary (Andamo vs. IAC, 191 SCRA 202).

WHAT CIRCUMSTANCES ARE CONSIDERED IN DETERMINING NEGLIGENCE?

1. Time
2. Place
3. Emergency
4. Gravity of harm to be avoided
5. Alternative cause of action
6. Social value or utility of activity
7. Person exposed to the risk

OTHER FACTORS TO CONSIDER IN DETERMINING NEGLIGENCE:

a. Violation of rules and statutes

b. Practice and custom
c. Compliance with rules and statutes

WHAT ARE THE DEGREES OF NEGLIGENCE?

a. Ordinary negligence
b. Gross negligence

This is recognized in Article 2231 of the NCC which provides that in quasi-delicts exemplary
damages may be granted if the defendant acted with gross negligence

Gross negligence is defined as want of even slight care of diligence. It is also characterized as
implying conscious indifference to consequence; pursuing a course of conduct which would naturally
and probably result to injury; utter disregard of consequences.

PROOF OF NEGLIGENCE

a. Burden of proof

WHO HAS THE BUDEN TO PROVE NEGLIGENCE?

The plaintiff must prove the elements of a quasi-delict, the most important of which is the
element of fault or negligence attributable to the defendant. If this is not proven, the plaintiff cannot
recover damages from the defendant. It is even presumed that a person takes ordinary care of his
concerns. The quantum of proof required is preponderance of evidence.

b. PRESUMPTIONS

WHAT ARE THE PRESUMPTIONS UNDER THE CIVIL CODE ON NEGLIGENCE?

The Civil Code provides for the following cases when the existence of negligence is presumed.
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K. P. Dela Serna
1. Article 2184. It is disputably presumed that a driver was negligent, if he had been found
guilty of reckless driving or violating traffic regulations at least twice within the next
preceding two months.
2. Article 2185. Unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was violating any
traffic regulation.
3. Article 2188. There is prima facie presumption of negligence on the part of the defendant
if the death or injury results from his possession of dangerous weapons or substances,
such as firearm and poison, except when the possession or use thereof is indispensable
in his occupation or business.
4. Presumption of negligence may also arise because of certain contractual relationship
between the parties. Thus the Civil Code provides for a presumption of negligence in
case a passenger was injured in an accident involving his carrier. (Article 1735)

c. RES IPSA LOQUITOR.

WHAT IS RES IPSA LOQUITOR?

This is one of the rules relied upon in negligence cases the thing speaks for itself. Its function
is to aid the plaintiff in proving the elements of a negligence case by circumstantial evidence.

In the case of Spouses Bernabe Africa and Soledad C. Africa vs. CALTEX (Phil.) Inc., G.R. No. L-
12986, March 31, 1966, 2 the Supreme Court applied the presumption of negligence under the doctrine
of Res Ipsa Loquitur Where the thing which caused the injury complained of is shown to be under
the management defendant or his servants and the accident is such as in the ordinary course of things
does not happen if those who have its management or control use proper care, it affords reasonable
evidence, in absence of explanation by defendant, that the accident arose from want of care.

B. FAULT

WHAT IS FAULT?

It is that condition where a person acts in a way or manner contrary to what normally should
have done. Fault is negligence, breach of statutory duty or other act or omission which gives rise to a
liability in torts or would, apart from this act, give rise to the defense of contributory negligence

WHAT ARE THE TWO KINDS OF FAULT?

1. FAULT SUBSTANTIVE AND INDEPENDENT, which on account of its origin, gives rise to an
obligation between two persons not similarly bound by any obligation, or

2
The gasoline station, with all its appliances, equipment and employees, was under the control of appellees. A
fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known
how the fire started were appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and
reasonable inference that the incident happened because of want of care.
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2. AS IN INCIDENT IN THE PERFORMANCE OF AN OBLIGATION WHICH ALREADY EXISTED, which cannot
be presumed to exist without the other, and which increases the liability arising from the
already existing obligation.

WHAT KIND OF FAULT IS REFERRED TO IN ARTICLE 2176?

The fault referred to in Article 2176 is fault substantive and independent and which in itself a
source of obligation.

3. DAMAGE

WHAT IS DAMAGE?

Damage is the loss, hurt or harm which results from injury. It differs from damages which term
refers to the recompense or compensation awarded for the damage suffered (So Ping Bun vs. CA, 314
SCRA 751)

4. CAUSAL CONNECTION BETWEEN THE FAULT OR NEGLIGENCE AND THE DAMAGE

WHAT IS CAUSAL CONNECTION?

The fault or negligence of the defendant must be the proximate cause of the injury of the
plaintiff. If the cause of the injury is due to the plaintiffs sole negligence, he cannot recover. There
must be clear evidence that the cause of the damage is the fault or negligence of the defendant.

WHAT IS PROXIMATE CAUSE?

The proximate cause of injury is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result
would not have occurred.

More comprehensively, the proximate legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with the predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first acted,
under such circumstance, that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom. (Vda De Bataclan vs. Medina, 102 Phil.
181; Teague vs., Fernandez, 51 SCRA 181).

5. NO PRE-EXISTING CONTRACT BETWEEN THE PARTIES

STATE THE GENERAL RULE AS TO CONTRACTUAL RELATION OF THE PARTIES.

If there is pre-existing contractual relation between the parties and the same is violated, the
proper cause of action is not anchored on quasi-delict but breach of contract or culpa-contractual.

WHAT IS THE EXCEPTION TO THE ABOVE RULE?

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However, there may be cases of contractual relations like a contract of carriage by airplane
where quasi-delict may arise when the contract was grossly violated (Air France vs. Carrascoso, 18
SCRA 155 3). The tort liability here is not based on the contract of carriage but on some other bases
like deliberate and malicious violation of the contract.

In other words, the existence of contract does not bar the commission of a tort by one against
the other and the consequent recovery of damages. Where the act that breaks the contract may also be
a tort, the contractual relation of the parties does not bar the recovery of damages. (Singson vs. Bank of
P.I., 132 Phil. 597 4)

B. ARTICLE 2177

Responsibility for fault or negligence under the proceeding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant.

WHAT ARE THE KINDS OF NEGLIGENCE MENTIONED IN ARTICLE 2177?

The Article distinguishes two kinds of negligence

1. Criminal negligence is a violation of criminal law

2. Civil negligence it is a distinct and independent negligence which is culpa aquiliana or quasi-
delict of ancient origin, having always its own foundation, separate from criminal negligence.

The article makes a distinction between a civil liability arising from a quasi-delict, and civil
liability arising from a crime, that is, if the act or omission is punishable by the Revised Penal Code,
or may create an action for quasi-delict or culpa extra-contractual under the Civil Code (Andamo vs. IAC,
191 SCRA 195).

WHAT ARE THE MODES OF ENFORCING CIVIL LIABILITY DUE TO FAULT OR NEGLIGENCE UNDER THE
ARTICLE?

The injured party has the option

1. To pursue a criminal action which includes the claim for civil liability arising from the crime
based on Article 100 of the Revised Penal Code; or

3 In Air France vs. Carrascoso, a passenger was ousted from his first class accommodation and was compelled to
take a seat in the tourist compartment. He was allowed to recover damages from the carrier notwithstanding the fact that
the relation between the carrier and the passenger is contractual both in origin and nature. The Supreme Court held that
the act itself of breaking the contract creates a tort liability.
4 In Julian C. Singson and Ramona Del Castillo vs. BPI and Santiago Frezas, the bank clerk committed a mistake

that caused the freezing of the current account of Julian Singson. As a result, his checks were dishonored. The bank
apologized to Singson and restored the checking account. Nevertheless, Singson sued the bank for damages. The bank
interposed the defense that there could be no liability for negligence or quasi-delict on account of the contractual relations
between the bank and Singson, and that the error was immediately corrected. The Supreme Court held that Singson can
recover damages from the bank despite the existence of contractual relations between the parties because the act itself that
breaks the contract may also be a tort or quasi-delict.
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2. To pursue an independent civil action based on quasi-delict under Articles 2176 to 2194 of the
New Civil Code (Elcano vs. Hill, 77 SCRA 98).

If the action is filed against the employer of the negligent employee, the offended party may
choose the remedy of primary liability allowed in Article 2180 or the subsidiary liability under the
Revised Penal Code. There is however, a limitation he cannot recover damages twice for the same
act or omission.

Application:

B, A FIVE YEAR-OLD-BOY, 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?

1. They can sue D alone for homicide through reckless imprudence; or

2. They can sue Y for quasi-delict.

CAN D BE CONVICTED OF HOMICIDE THROUGH RECKLESS IMPRUDENCE, AND AT THE SAME TIME,
BE ORDERED TO INDEMNIFY THE PARENTS OF B?

Yes, because every person criminally liability is civilly liable.

WHAT PROOF IS NEEDED TO SECURE CONVICTION OF D?

The guilt of D should be proven beyond reasonable doubt.

SUPPOSE THE GUILT OF D IS NOT PROVEN BEYOND REASONABLE DOUBT, AND HE IS ACQUITTED,
CAN THE PARENTS OF B STILL SUE D FOR QUASI-DELICT?

Yes. The acquittal of D is not a bar to a subsequent civil action. This is so because the evidence
in the criminal case may not be sufficient for a conviction, but sufficient for a civil liability, where
mere preponderance of evidence is enough.

CAN THE PARENTS OF B SUE O AND Y FOR QUASI-DELICT?

Yes, but O can interpose the defense that he exercised due diligence in the selection and
supervision of D. If O proves this, he will be excused from civil liability.

SUPPOSE O WAS ABLE TO PROVE THAT THE EXERCISE OF DUE DILIGENCE IN THE SELECTION AND
SUPERVISION OF D, CAN O STILL BE HELD LIABLE?

Yes, if it was proven for instance, that O was also in the jeepney at the time of accident, and he
could have, by use of diligence, prevented the misfortune, but he did not. (Vide first par, Art. 2184)
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IF D IS CONVICTED IN THE CRIMINAL CASE AND A WRIT OF EXECUTION WAS ISSUED AGAINST HIM
WITH RESPECT TO THE CIVIL LIABILITY, BUT IT TURNED OUT THAT D IS INSOLVENT, CAN THE WRIT OF
EXECUTION BE ENFORCED AGAINST O?

Yes. The guilt of D is automatically the civil guilt of O, if D is insolvent. O is subsidiarily liable
as employer under Article 103 of the Revised Penal Code and he cannot interpose the defense that he
exercised due diligence in the selection and supervision of his driver.

IF THEY OPT TO SUE FOR QUASI-DELICT, WHAT PROOF IS NEEDED TO PROVE THEIR CASE AGAINST D
AND O?

The proof needed is a mere preponderance of evidence.

As against D, the parents of B should prove the fault or negligence of D. In other words, the
elements of quasi-delict should be proven. As against O, the parents of B should prove that O has not
exercised due diligence in the selection and supervision of D.

HOW CAN O BE EXCUSED FROM LIABILITY?

O can be excused form liability provided he proves that he exercised due diligence in the
selection and supervision of D

CAN O STILL BE HELD LIABLE EVEN IF HE PROVES DUE DILIGENCE IN THE SELECTION AND
SUPERVISION OF D?

Yes, if it is proven that he was inside the jeepney at the time of accident, and he could have, by
use of diligence, prevented the misfortune, but which he did not exercise.

Procedural Aspect [Concurrence of Causes of Action and Remedies]

Enforcement of the civil liability arising from crime is governed by Rule 111 of the Revised
Rules of Court effective December 1, 2000. Sections 1, 2, 3 and 5 provide as follows:

Sec. 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil
action for the recovery of civil liability arising from the offense charged shall be deemed instituted with
the criminal action unless the offended party waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.

When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate or exemplary damages without specifying the amount thereof in the complaint or
information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages.

Where the amount of damages, other that actual, is specified in the complaint or information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court.

Except as otherwise provided in these rules, no filing fees shall be required for actual damages.
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K. P. Dela Serna

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal
case, but any cause of action which could have been the subject thereof may be litigated in a separate civil
action.

(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.

Upon filing of the aforesaid joint criminal and civil action, the offended party shall pay in full the
filing fees based on the amount of the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal temperate
or exemplary damages, the offended party shall pay additional filing fees cased on the amounts alleged
therein. If the amount are so alleged but any of these damages are subsequently awarded by the court,
the filing fees based on the amount awarded shall constitute a first lien on the judgment.

When the civil action has been filed separately and trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule
governing consolidation of the civil and criminal action.

Sec. 2. When separate civil action is suspended. After the criminal action has been commenced, the
separate civil action arising therefrom cannot be instituted until final judgment has been entered in the
criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall
be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon motion of the offended party, be 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 be deemed automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party
in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil
action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

The extinction of the penal action does not carry with it the extinction of the civil action.
However, the civil action based on delict shall be deemed extinguished if there is a finding in a final
judgment in the criminal action that the act or omission from which the civil liability may arise did not
exist.

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

Sec. 5. Judgment in civil action not a bar. A final judgment rendered in a civil action absolving the
defendant from civil liability is not a bar to a criminal action against the defendant for the same act or
omission subject of the civil action.

SIMPLIFICATION OF THE RULES

STATE THE RULE ON CONCURRENCE OF ACTION.

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K. P. Dela Serna

When a criminal action is instituted, the civil action for the recovery of civil liability arising
from the offense charged shall be deemed instituted with the criminal action.

STATE THE EXCEPTIONS.

The civil liability arising from the offense charged shall not be deemed instituted together with
the criminal action if:

1. The offended party waives the civil action; or

2. If the offended party reserves his right to institute it separately; or
3. If the offended party institutes the civil action prior to the criminal action.

WHAT IS THE EXCEPTION TO THE EXCEPTION?

After the criminal action has been commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action.

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

Application:

AFTER A CRIMINAL ACTION HAS BEEN COMMENCED, IS IT STILL POSSIBLE THAT A CIVIL ACTION
CAN BE FILED BY THE INJURED PARTY?

Yes, if the case to be filed falls under Articles 32, 33, 34 and 2176 of the New Civil Code.

IF THE CASE FALLS EITHER

UNDER ANY OF THE SITUATIONS REFERRED TO IN SAID ARTICLES AND
THE CRIMINAL ACTION HAS ALREADY COMMENCED, WHEN SHALL THE CIVIL ACTION BE FILED?

It may be filed during the pendency of the criminal case.

IF SAID CIVIL ACTION IS FILED DURING THE PENDENCY OF THE CRIMINAL CASE, CAN BOTH ACTIONS
BE TRIED AND HEARD INDEPENDENTLY OF EACH OTHER?

Yes, by express provision of law which says that such civil action xxx shall proceed
independently of the criminal action, and shall require only a preponderance of evidence. (Section 3,
Rule 111)

WHAT HAPPENS IF A CIVIL ACTION IS NOT EXPRESSLY INSTITUTED?

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K. P. Dela Serna
The civil action shall be impliedly joined with the criminal action. This means that the two
actions are joined in one action as twins, and the civil action may be tried and prosecuted with all the
ancillary process provided by law.

WHAT HAPPENS IF THE TRIAL COURT CONVICTS THE ACCUSED OF THE CRIME CHARGED BUT FAILS
TO DECIDE ON HIS CIVIL LIABILITY?

The civil liability may be imposed in a subsequent proceeding without transgressing the
prohibition against double jeopardy.

WHAT IS THE EFFECT OF ACQUITTAL OF THE ACCUSED ON HIS CIVIL LIABILITY?

The acquittal of the accused in the criminal case will not necessarily exonerate him from civil
liability (Article 29 5).

The civil liability which may arise from culpa aquiliana or quasi-delict was never intended by
law to be merged in the criminal action. The criminal prosecution is not a condition precedent to the
enforcement of the civil rights.

To subordinate the civil action contemplated in Article 33 6 and 2177 to the result of the
criminal action would render meaningless the independent civil action and the injunction in Article
31 7 that such civil action may proceed independently of the criminal proceeding.

WHAT ARE THE EXCEPTIONS TO THE RULE THAT THE JUDGMENT OF ACQUITAL DOES NOT
NECESSARILY EXTINGUISH THE CIVIL LIABILITY OF THE ACCUSED?

1. When it declares that the facts from which the civil liability might arise did not exist;
2. when it declares that the accused is not the author of the crime;
3. when the judgment expressly declares that the liability is only civil in nature;
4. Where the civil liability is not derived or based on the criminal act of which the accused was
acquitted;
5. where the acquittal is based on reasonable doubt; and
6. where the civil action has prescribed.

5 ARTICLE 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action
requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due
to that ground.
6 ARTICLE 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate

and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently
of the criminal prosecution, and shall require only a preponderance of evidence.
7 ARTICLE 31. When the civil action is based on an obligation not arising from the act or omission complained of

as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the
latter. acd
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K. P. Dela Serna
IF THERE IS NO SEPARATE CIVIL ACTION, WHAT SHOULD THE COURT TRYING THE CRIMINAL CASE
FIND OUT TO ENABLE IT TO DETERMINE FULLY THE CIVIL LIABILITY OF THE OFFENDER?

The court should find out if there is evidence to prove the civil liability of the offender, and it
should also determine who the heirs of the deceased are entitled to receive payment of the indemnity
in case of conviction. This is necessary to avoid payment to wrong persons.

WHAT SHOULD THE OFFENDED PARTY DO IN THE CRIMINAL ACTION (WHERE CIVIL ACTION IS
IMPLIEDLY INSTITUTED) TO ENABLE HIM TO RECOVER?

The offended party must present evidence in support of his claim for damages. Otherwise, the
court cannot award damages in the judgment of conviction.

SHOULD THE CLAIM FOR DAMAGES BE ALLEGED IN THE INFORMATION?

Even without any allegation as to damages, the offender shall be liable for them if the offended
party was able to prove that he is entitled to damages. This is predicated on the principle that every
person criminally liable is also civilly liable.

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

He may appeal both with respect to the judgment in the civil and criminal liability, or he may
appeal only with respect to the civil action or criminal action.

WHAT DOES THE PHRASE IN NO CASE, HOWEVER, MAY THE OFFENDED PARTY RECOVER DAMAGES
TWICE FOR THE SAME ACT OR OMISSION CHARGED IN THE CRIMINAL ACTION MEAN?

This means that if the plaintiff succeeded to recover damages from the defendant the Civil
Code, he can no longer recover damages for the same negligent act under the Revised Penal Code.
Conversely, if the offended party takes the option of merely filing a criminal case and submits 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 based on culpa aquiliana or quasi-delict.

IS
RESERVATION REQUIRED IN THE CRIMINAL CASE FOR THE FILING OF CIVIL ACTION ARISING
FROM QUASI-DELICT?

Under the 1964, 1985 and 1988 amendments of the Revised Rules of Criminal procedure, it was
required that the injured party must make a reservation in the criminal case for the filing of a civil
action based on quasi-delict. The failure to do so will result in the inclusion of the claim for civil
liability in the criminal case and bars any separate civil action based on the same act or omission.
(Vide: Hambon vs. CA, G.R. No. 122150, March 17, 2003)
However, under the 2000 amendments of the Revised Rules of Criminal Procedure, the
reservation required before was deleted. (Vide: Section 3, Rule 111) The new amendment now
conforms to the express mandate of the New Civil Code that a quasi-delict may be prosecuted
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K. P. Dela Serna
separately and independently of the criminal case arising from the same act or omission, just like the
other independent civil actions under Articles 32, 33, 34 of the New Civil Code (Vide: Article 2177).

MORE DISCUSSION:

Article 2177 of the Civil Code makes a distinction between a civil liability arising from a quasi-
delict, and civil liability arising from a crime, that is, an act or omission may be punishable by the
Revised Penal Code, or may create an action for quasi-delict or culpa extra-contractual under the Civil
Code. 8 Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his
act or omission constituting fault or negligence, and whenever Article 2176 refers to "fault or
negligence", it covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the
offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, (if the tortfeasor is actually charged also criminally),
to recover damages on both scores, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary. 9 The Supreme Court in the case
of Andamo vs. IAC, 191 SCRA 195 explained that:

According to the Report of the Code Commission, Article 2177 of the Civil
Code though at first sight startling, is not so novel or extraordinary when we consider
the exact nature of criminal and civil negligence. The former is a violation of the
criminal law, while the latter is a distinct and independent negligence, which is a
"culpa aquiliana" or quasi-delict, of ancient origin, having always had its own foundation
and individuality, separate from criminal negligence. Such distinction between
criminal negligence and "culpa extra-contractual" or "cuasi-delito" has been sustained by
decisions of the Supreme Court of Spain . . .

xxx xxx xxx

In Azucena vs. Potenciano, (5 SCRA 468, 470-471), the Court declared that in
quasi-delicts, "(t)he civil action is entirely independent of the criminal case according to
Articles 33 and 2177 of the Civil Code. There can be no logical conclusion than this, for
to subordinate the civil action contemplated in the said articles to the result of the
criminal prosecution whether it be conviction or acquittal would render
meaningless the independent character of the civil action and the clear injunction in
Article 31, that his action may proceed independently of the criminal proceedings and
regardless of the result of the latter."

xxx xxx xxx

In the case of Castillo vs. Court of Appeals (176 SCRA 591), this Court held that
a quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a
substantivity all its own, and individuality that is entirely apart and independent from a
delict or crime a distinction exists between the civil liability arising from a crime and

8 See: Andamo vs. IAC, 191 SCRA 195; Rafael Reyes Trucking Corp. vs. People, 329 SCRA 600
9 Virata vs. Ochoa, G.R. No. L-46179, January 31, 1978, 81 SCRA 472
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K. P. Dela Serna
the responsibility for quasi-delicts or culpa extra-contractual. The same negligence causing
damages may produce civil liability arising from a crime under the Penal Code, or
create an action for quasi-delicts or culpa extra-contractual under the Civil Code.
Therefore, the acquittal or conviction in the criminal case is entirely irrelevant in the
civil case, unless, of course, in the event of an acquittal where the court has declared
that the fact from which the civil action arose did not exist, in which case the extinction
of the criminal liability would carry with it the extinction of the civil liability.

The Supreme Court has already laid a fundamental premise clearly enunciated as early as the
case of Barredo vs. Garcia, et al., 73 Phil. 607 (1942), thus:

"A distinction exists between the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa-extra-contractual. The same negligent act causing
damages may produce civil liability arising from a crime under article 100 of the
Revised Penal Code, or create an action for cuasi-delito or culpa extra-contractual under
articles 1902-1910 of the Civil Code. Plaintiffs were free to choose which remedy to
enforce."

The options of the plaintiffs (offended parties) therefore are: (1) To pursue a criminal action
which includes the claim for civil liability arising from the crime based on Article 100 of the Revised
Penal Code; or (2) To pursue an independent civil action based on quasi-delict under Articles 2176 to
2194 of the New Civil Code. 10

As it is quite apparent that the plaintiffs had predicated their present claim for damages on
quasi-delict, they are not barred from proceeding with this independent civil suit. The institution of a
criminal action cannot have the effect of interrupting the civil action based on quasi-delict. 11 And the
separate civil action for quasi-delict may proceed independently and regardless of the result of the
criminal case, 12 except that the plaintiffs cannot recover damages twice for the same act or
commission of the defendant. 13 The civil action referred to in Sections 3(a) and (b) of Rule 111 of the
Rules of Court, which should be suspended after the institution of the criminal action, is that arising
from delict, and not the civil action based on quasi-delict or culpa aquiliana. 14

The civil liability which may arise from culpa aquiliana or quasi-delict was never intended by
law to be merged in the criminal action. The criminal prosecution is not a condition precedent to the
enforcement of the civil rights. 15 To subordinate the civil action contemplated in Article 33 and 2177
to the result of the criminal action would render meaningless the independent civil action and the
injunction in Article 31 that such civil action may proceed independently of the criminal proceeding.
16

10 Elcano vs. Hill, 77 SCRA 98; ce Haulers Copr. Vs. CA, 338 SCRA 572; Virata vs. Ochoa, 81 SCRA 472
11 Capuno vs. Pepsi-Cola Bottling Co., 13 SCRA 658 (1965).
12 Chan vs. Yatco, 103 Phil. 1126 (1958).
13 Article 2177, Civil Code.
14 Felix Lanuzo vs. Sy Bon Ping and Salvador Mendoza, G.R. No. L-53064, September 25, 1980.
15 BLTB vs. CA, 64 SCRA 427
16 Azucena vs. Potenciano, 115 Phil 465. See also: Dyogi vs. Yatco, 100 Phil. 1095; Bachrach Motor Co., Inc. vs.
Gamboa, 101 Phil. 1219; Roa vs. De la Cruz, 107 Phil. 8; Standard Vacuum Oil Vo. Vs. tan, 107 Phil. 109; Pacholo vs.
Yumangday, 108 Phil. 238; Calo vs. Peggy, 103 Phil. 1112.
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K. P. Dela Serna

Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and
2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately
by the offended party even without reservation. The commencement of the criminal action does not
suspend the prosecution of the independent civil action under these articles of the Civil Code. The
suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if
such civil action is reserved or filed before the commencement of the criminal action. 17

Thus, the offended party can file two separate suits for the same act or omission. The first a
criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the
other a civil case for quasi-delict without violating the rule on non-forum shopping. The two cases
can proceed simultaneously and independently of each other. The commencement or prosecution of
the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the
offended party cannot recover damages twice for the same act or omission of the defendant. 18

In Philippine Rabbit Bus Lines, Inc. vs. People of the Philippines, G.R. No. 147703, April 14, 2004, the
Supreme Court explained the concept of independent civil action in this wise:
At the outset, we must explain that the 2000 Rules of Criminal Procedure has
clarified what civil actions are deemed instituted in a criminal prosecution. Section 1 of
Rule 111 of the current Rules of Criminal Procedure provides: "When a criminal action
is instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action." xxx xxx xxx" Only the civil liability
of the accused arising from the crime charged is deemed impliedly instituted in a
criminal action; that is, unless the offended party waives the civil action, reserves the
right to institute it separately, or institutes it prior to the criminal action. xxx xxx xxx
It is clear that the 2000 Rules deleted the requirement of reserving independent civil
actions and allowed these to proceed separately from criminal actions. Thus, the civil
actions referred to in Articles 32, 33, 34 and 2176 of the Civil Code shall remain
"separate, distinct and independent" of any criminal prosecution based on the same act.
Here are some direct consequences of such revision and omission: 1. The right to bring
the foregoing actions based on the Civil Code need not be reserved in the criminal
prosecution, since they are not deemed included therein. 2. The institution or the waiver
of the right to file a separate civil action arising from the crime charged does not
extinguish the right to bring such action. 3. The only limitation is that the offended
party cannot recover more than once for the same act or omission. What is deemed
instituted in every criminal prosecution is the civil liability arising from the crime or
delict per se (civil liability ex delicto), but not those liabilities arising from quasi-delicts,
contracts or quasi-contracts. In fact, even if a civil action is filed separately, the ex delicto
civil liability in the criminal prosecution remains, and the offended party may subject
to the control of the prosecutor still intervene in the criminal action, in order to
protect the remaining civil interest therein. This discussion is completely in accord with

17 Avelino Casupanan and Roberto Capitulo vs. Mario Llavore Laroya, G.R. No. 145391, August 26, 2002.
18 Ibid.
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K. P. Dela Serna
the Revised Penal Code, which states that "[e]very person criminally liable for a felony
is also civilly liable."

C. ARTICLE 2178

ART. 2178. The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict.

ART. 1172. Responsibility arising from negligence in the performance of every kind of
obligation is also demandable, but such liability may be regulated by the courts, according to the
circumstances.

ART. 1173. The fault or negligence of the obligor consists in the omission of that diligence which
is required by the nature of the obligation and corresponds with the circumstances of the persons, of the
time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, par. 2,
shall apply.

ART. 1174. Except in case expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be
responsible for those events which could not be foreseen, or which though foreseen, were inevitable.

ART. 2201. Par. 2. x x x In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the non-performance of the
obligation.

Article 1172 provides that one incurs a responsibility for being negligent in the performance of
every obligation.

WHAT ARE THE TWO KINDS OF NEGLIGENCE MENTIONED BY ARTICLE 1172?

1. When an obligor does not observe diligence which is required by the nature of the
obligation and corresponds with the circumstances of the persons, time and place, there is
fault or negligence; and
2. In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to the performance of the obligation. (Article
1173 in relation to Article 2201, last paragraph)

Application:

A.) A took an ABC bus bound for Butuan City. In Gingoog City, said bus collided with an XYZ
Liner. A was hurt.

1. WHAT CASE CAN A FILE AGAINST ABC?

This is a case of contractual negligence or culpa contractual. A may file a civil case
against ABC because there is a contract of carriage between him and ABC.

2. WHAT IS THE EFFECT IF ABC PROVES THAT IT EXERCISED DILIGENCE IN THE SELECTION AND
SUPERVISION OF ITS DRIVER?
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K. P. Dela Serna
Even if ABC proves that it exercised diligence in the selection and supervision of
its driver, ABC is still liable. That defense is not a proper and complete defense in culpa
contractual. However, the diligence of ABC makes it a debtor in good faith, and the
damages would be mitigated (Cangco vs. MRL co., 38 Phil. 769).

3. IS ABC LIABLE IF IT TURNED OUT THAT A HAS NOT YET PAID HIS FARE AT THE TIME OF THE
ACCIDENT?

Yes. This is a case of culpa contractual and for as long as A was able to prove that
he was a passenger of the bus at the time of the accident and that he failed to reach his
destination safely, there is already a breach of the contract of carriage.

4. IS ABC LIABLE IF IT TURNED OUT THAT A HAS JUST BOARDED THE BUS IMMEDIATELY
BEFORE THE SAID ACCIDENT?

Yes, for the same reason.

B.) A took an ABC bus bound for Davao City. To avoid a head on collision with an XYZ Liner,
ABCs driver swerved to the right causing it to hit a sari-sari store. A was hurt. X and Y who
were taking snacks in the sari-sari store were also hit and they died.

1. IS ABC LIABLE TO A FOR DAMAGES?

For as long as A can prove that he was a passenger of ABC at the time of the
accident and that he failed to reach his destination safely, ABC is liable. If ABC wants to
escape liability, it should prove that its driver was really careful and extraordinary
diligent.

2. IN THIS CASE, IS ABC PRESUMED NEGLIGENT?

As a rule, a common carrier is presumed negligent in case of death or physical

injuries to passengers unless it proves the exercise of extraordinary diligence.

3. CAN X AND Y FILE A CASE OF CULPA CONTRACTUAL AGAINST ABC?

No. This is now a case of culpa aquiliana which can be filed both against the driver
and ABC. X and Y have the burden of proving that the driver was negligent and that
ABC did not exercise diligence in the selection and supervision of its driver.

If ABC is able to prove that it exercised diligence and supervision in the selection
and supervision of its driver, it will be exempt from liability. This is a proper defense in
culpa aquiliana.

If X and Y fail to prove the negligence of the driver, then there is no culpa
aquiliana. The reason for this is because fault or negligence is an essential element of a
quasi-delict, and if this is not proved, then there is no quasi-delict.
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K. P. Dela Serna
C.) CAN THE PARTIES STIPULATE REGARDING FUTURE NEGLIGENCE?

Simple negligence may in certain cases be excused or mitigated but gross negligence
can never be excused in advance because this is contrary to public policy.

1. A SHIPPED ITS GOODS TO A VESSEL OWNED BY XYZ, INC. THERE APPEARS A PROVISION IN
THE BILL OF LADING WHICH STATES THAT NO MATTER HOW NEGLIGENT IS SAID VESSEL,
XYZ, INC., SHALL NOT BE RESPONSIBLE FOR DAMAGES CAUSED TO THE GOODS. A SIGNED
THE BILL OF LADING. IS SAID STIPULATION VALID?

It is void, for being contrary to public policy.

2. SAME PARTIES BUT THE PROVISION IN THE BILL OF LADING IS DIFFERENT.

THIS TIME, THE
PROVISION STATES THAT NO MATTER HOW NEGLIGENT IS SAID VESSEL, XYZ, INC., SHALL BE
LIABLE ONLY FOR P300.OO, REGARDLESS OF THE VALUE OF THE GOODS. IS THE STIPULATION
VALID?

It is also void. This kind of stipulation is, in effect, allowing XYZ, Inc., to be
negligent knowing that its liability will be limited to P300.00, regardless of the amount
of the goods.

3. SAME PARTIES BUT THE PROVISION OF THE BILL OF LADING STATES THAT THE XYZ, INC.S
LIABILITY IS LIMITED TO P300. 00, NO MATTER HOW NEGLIGENT IT IS, UNLESS A DECLARES A
HIGHER VALUE AND PAYS A HIGHER COST OF FREIGHT. IS THE STIPULATION VALID?

This time the stipulation is valid because the parties made an honest definition of
their respective obligations and liabilities.

D. ARTICLE 2179

When the plaintiffs own negligence was the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause
of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.

WHAT ARE THE SITUATIONS COVERED BY THE ARTICLE 2179?

1. Plaintiffs own negligence was the immediate and proximate cause of his injury he cannot
recover damages. (Taylor vs. Meralco, 16 Phil. 8)
2. Plaintiffs own negligence is only contributory; and the immediate and proximate cause of
his injury is defendants lack of due care plaintiff can recover damages but the courts
shall mitigate the damages to be awarded (Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. 359).

WHAT IS PROXIMATE CAUSE?

A proximate cause is that adequate and efficient cause which in the natural order of events,
and under the particular circumstances surrounding the case would naturally produce the event.
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K. P. Dela Serna

In Vda de Bataclan vs. Medina, 102 Phil.181 and Teague vs. Fernandez, 51 SCRA 181, 19 the
proximate cause was defined as the proximate legal cause, acting first and producing the injury,
either immediately or by setting other events in motion, all constituting a natural and continuous
chain of events, each having a close causal connection with the predecessor, the final event to the
chain immediately effecting the injury as a natural and probable circumstance, that the person
responsible for the first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person might
probably result therefrom.

PROXIMATE CAUSE DISTINGUISHED FROM OTHER TERMS

1. HOW IS PROXIMATE CAUSE DISTINGUISHED FROM IMMEDIATE CAUSE OR NEAREST CAUSE?

The proximate cause is not necessarily the immediate cause; it is not necessarily the
nearest time, distance or space. As distinguished from immeditate or nearest cause, proximate
cause is not necessarily the last link in the chain of events but that which is the procuring
efficient and predominant cause. The requirement is that the act was the proximate cause, not
implying, however, the nearest in point of time or relation, but rather the efficient cause, which
may be the most remote of an operative chain. It must be that which sets the others in motion
and is to be distinguished from a mere pre-existing condition upon which the effective cause
operates, and must have been adequate to produce the resultant damage with out the
intervention of an independent cause (The Atlantic Gulf and Pacific Company vs. The Government
of the Philippine Islands, G.R. No. L-4195, February 18, 1908).

2. HOW IS PROXIMATE CAUSE DISTINGUISHED FROM PRIOR AND REMOTE CAUSE?

A remote cause is that cause which some independent force merely took advantage of
to accomplish something not the natural effect thereof.

A prior and remote cause can not be made the basis of an action, if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the injury
was made possible, if there intervened between such prior or remote cause and the injury, a
distinct, successive, unrelated, and efficient cause of the injury, even though such injury would
not have happened but for such condition of occasion. If no damage existed in the condition
except because of the independent cause, such condition was not the proximate cause. And if
an independent negligent act or defective condition sets into operation the circumstances
which results in injury because of the prior defective condition, such act or condition is the
proximate cause.

3. HOW IS PROXIMATE CAUSE DISTINGUISHED FROM CONCURRENT CAUSES?

The proximate cause is not necessarily the sole cause of the accident. The defendant is
still liable in case there are concurrent causes brought about by acts or omissions of third
persons. Thus, the primary cause remains the proximate cause even if there is an intervening

19 See also: PCIB vs. CA, 350 SCRA 464.

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K. P. Dela Serna
cause which merely cooperated with the primary cause and which did not break the chain of
causation.

WHAT ARE THE TESTS OF PROXIMATE CAUSE?

A. CAUSE-IN-FACT TEST

In determining the proximate cause of the injury, it is first necessary to determine if the
defendants negligence was the cause-in-fact of the damage to the plaintiff. If the defendants
negligence was not a cause-in-fact, the inquiry stops; but if it is a cause-in-fact, the inquiry shifts to
the question of limit of liability of the defendant. The latter determination of the extent of liability
involves a question of policy. In other words, the question of proximate cause does not only involve
cause and effect analysis. It also involves policy considerations that limit the liability of the
defendants in negligence cases. The mere fact that the negligence of the defendant is a factor in
bringing about the injury does not necessarily means that he shall be liable.

WHAT ARE THE KINDS OF CAUSE-IN-FACT TESTS?

1. SINE QUA NON TEST (BUT FOR TEST) this is a question of causal connection. Where the
defendants own conduct will not be considered as proximate cause of the event if the event
just the same would have occurred without it. Simply stated, defendants conduct is the cause
in fact of the injury under the but for test if the damage would not have resulted had there
been no negligence on the part of the defendant. Conversely, defendants negligent conduct is
not the cause in fact of the plaintiffs damage if the accident could not have been avoided in
the absence thereof.
2. SUBSTANTIAL FACTOR TEST makes the negligent conduct the cause in fact of the damage if it
was a substantial factor in producing the injuries. This test is especially important where there
are concurrent causes. Here, the issues are not factual but conceptual.
3. NESS TEST A condition may still be considered a cause where it is shown to be a necessary
element in just one of several co-present sets each independently sufficient for the effect.
4. POLICY TESTS

WHAT ARE THE KINDS OF POLICY TESTS?

1. FORESIGHT PERSPECTIVE

It is a test that determines whether the chain of events that in fact occurred was sufficiently
foreseeable, natural or probable at the outset for the defendant to be held liable.

WHAT ARE THE TESTS TO DETERMINE THE EXTENT OF THE DEFENDANTS LIABILITY FOR
NEGLIGENCE UNDER THIS TEST?

1) FORSEEABILITY TEST where the particular harm was reasonably foreseeable at the
time of the defendants misconduct, his act or omission is the legal cause thereof.
The defendant is not liable for unforeseeable consequences of his act. The liability is
limited within the risk created by the defendants negligence act.
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K. P. Dela Serna
2) NATURAL AND PROBABLE CONSEQUENCE TEST where the defendants liability is
recognized only if the harm or injury suffered is the natural and probable
consequence of his act or omission complained of.

2. DIRECTNESS PERSPECTIVE

It does not require that the injury is within the foreseeable risk created by the defendant. This
second approach starts with the injury and works towards the wrongful action of the defendant,
seeking to determine whether any act of a third party or the plaintiff, or any event, severed the causal
connection between the harm and the defendants wrongful conduct. Here, the question is only
whether, when all the evidence is in, it is permissible to say that the defendant did it, that is,
brought about the plaintiffs harm.

WHAT ARE THE KINDS OF TESTS UNDER THE DIRECTNESS PERSPECTIVE?

1) NATURAL AND ORDINARY OR DIRECT CONSEQUENCE TEST makes the defendant liable
for damages which are beyond the risk. Direct consequences are those that follow in
the sequence from the effect of the defendants act upon condition existing and
forces already in operation at the time, without the intervention of any external
forces, which come into active operation later.
2) Hindsight test
3) Orbit of risk test
4) Substantial factor test

DISTINGUISH BETWEEN CAUSE AND CONDITION.

A distinction is made between the active cause of the harm or injury and the existing
conditions upon which that cause operated. If the defendant has created only a passive (not active)
static condition, which made the damage possible, he is not liable.

Many courts have sought to distinguish between the active "cause" of the harm and the
existing "conditions" upon which that cause operated. If the defendant has created only a passive
static condition which made the damage possible, the defendant is said not to be liable. But so far as
the fact of causation is concerned, in the sense of necessary antecedents which have played an
important part in producing the result, it is quite impossible to distinguish between active forces and
passive situations, particularly since, as is invariably the case, the latter are the result of other active
forces which have gone before. The defendant who spills gasoline about the premises creates a
"condition," but the act may be culpable because of the danger of fire. When a spark ignites the
gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is
the very risk which the defendant has created, the defendant will not escape responsibility. Even the
lapse of a considerable time during which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be liable to another who falls into it a month
afterward. "Cause" and "condition" still find occasional mention in the decisions; but the distinction is
now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case
where the forces set in operation by the defendant have come to rest in a position of apparent safety,
and some new force intervenes. But even in such cases, it is not the distinction between "cause" and
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K. P. Dela Serna
"condition" which is important, but the nature of the risk and the character of the intervening cause"
(Phoenix Construction vs. IAC, G.R. No. L-65295, March 10, 1987).

WHAT IS EFFICIENT INTERVENING CAUSE?

It is one that destroys the causal connection between the negligent act and injury and thereby
negatives liability. An intervening cause will not be regarded as the proximate cause and the first
cause as too remote, where the chain of events is so broken that they become independent and the
result cannot be said to be the consequence of the primary cause. However, a cause is not an
intervening cause if it is already in operation at the time the negligent act is committed.

WHAT ARE FORESEEABLE INTERVENING CAUSES?

If the intervening cause is one which in ordinary human experience is reasonably to be

anticipated, or one which the defendant has reason to anticipate under the particular circumstances,
the defendant may be negligent, among other reasons, because of failure to guard against it; or the
defendant may be negligent only for that reason. Thus one who sets a fire may be required to foresee
that an ordinary, usual and customary wind arising later will spread it beyond the defendant's own
property, and therefore to take precautions to prevent that event. The person who leaves the
combustible or explosive material exposed in a public place may foresee the risk of fire from some
independent source. . . . In all of these cases there is an intervening cause combining with the
defendant's conduct to produce the result, and in each case the defendant's negligence consists in
failure to protect the plaintiff against that very risk (Phoenix Construction vs. IAC, supra).

IS A FORESEEABLE INTERVENING CAUSE CONSIDERED A SUFFICIENT INTERVENING CAUSE?

A foreseeable intervening cause however, cannot be considered sufficient intervening cause. If the
intervening cause is foreseeable, the defendant may still be considered negligent because of the
failure to guard against it.

Also, the intervention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury (Spouses Bernabe Africa vs. Caltex, supra).

APPLICATION

X AND Y, JAM LINER, INC., HAD A HEATED ALTERCATION INSIDE THE BUS
PASSENGERS OF
RESULTING IN A FIST FIGHT. IN THE PROCESS, X THREW A SOLID PUNCH AGAINST Y AND AS A RESULT, Y
FELL ON THE DRIVERS SCAT. THE DRIVER LOST CONTROL OF THE WHEEL AND THE BUS HIT AN ELECTRIC
POST. WHAT IS THE PROXIMATE CAUSE OF THE ACCIDENT?

Here, the proximate cause is the fist fight between X and Y.

A WAS ON HIS WAY HOME, AFTER A SHOT OR TWO OF LIQUOR IN A BIRTHDAY PARTY. ON HIS WAY
HOME AFTER CROSSING AN INTERSECTION, HIS CAR HEADLIGHTS SUDDENLY FAILED. HE SWITCHED HIS
HEADLIGHTS TO BRIGHT, AND THEN AND THERE, HE SAW A DUMP TRUCK WHICH IS ABOUT 2 METERS
AWAY FROM HIS CAR. A TRIED TO AVOID A COLLISION BY SWERVING HIS CAR TO THE LEFT BUT TO NO
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K. P. Dela Serna
AVAIL. HIS CAR SMASHED INTO THE DUMP TRUCK. WHO IS NEGLIGENT AND WHO IS THE IMMEDIATE AND
PROXIMATE CAUSE OF THE INJURY? (PHOENIX CONSTRUCTION, INC. VS. IAC, G.R. NO. 65295, MARCH 10,
1987)

Both were negligent but the immediate and proximate cause of the accident and of As injuries
was the wrongful and negligent manner in which the truck was parked or the truck drivers lack of
due care.

The collision of As car with the dump truck was a natural and foreseeable consequence of the
truck drivers negligence. The negligence of the truck driver, far from being a passive and static
condition was an indispensable and efficient cause. The accident would not have occurred were it
not for the fact that it was parked askew and without warning lights and reflector devices.

The improper parking of the dump truck created an unreasonable risk of injury for anyone
driving, and for having created this risk, the truck driver must be held responsible.

As negligence, although later in point of time than the truck drivers negligence, is merely
contributory and the damages therefore that he will recover is subject to mitigation by the courts, in
accordance with Article 2179 of the Civil Code.

On the issue of damages In a suit for damages arising from a quasi-delict, where the plaintiffs
negligence was contributory, the demands of substantial justice may be satisfied by allocating most of
the damages on a 20-80 ratio.

Based on this, the following were awarded:

1. 20% of the damages awarded by the appellate court shall be borne by the plaintiff;
2. 80% shall be paid by the driver and his employer who shall be solidarily liable to A; and
3. The award of exemplary damages shall be borne exclusively by the defendant Phoenix.

WHAT IS THE CONCEPT OF CONTRIBUTORY NEGLIGENCE?

Contributory negligence has been defined as the act or omission amounting to want of
ordinary care on the part of the person injured which, concurring with the defendants negligence, is
the proximate cause of the injury.

To hold a person as having contributed to his injuries, it must be shown that he performed an
act that brought about his injuries in disregard of warnings or signs of an impending danger to health
and body (Mao-ao Sugar Central Co., Inc. vs. CA, 189 SCRA 93; MMTC vs. CA, August 1, 2002).

ARE CHILDREN BELOW 9 YEARS CAPABLE OF CONTRIBUTORY NEGLIGENCE?

No, a child under 9 years of age is conclusively presumed incapable of contributory negligence
as a matte of law.

In our jurisdiction, a person under 9 years of age is conclusively presumed to have acted
without discernment, and is, on that account, exempt from criminal liability. The same presumption
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K. P. Dela Serna
and a like exemption from criminal liability obtains in a case of a person over 9 and under 15 years of
age, unless it is shown that he has acted with discernment. Since negligence may be a felony and a
quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under
9 years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in the case of a child over 9 but
under 15 years of age is a rebuttable one, under our law. The rule therefore, is that a child under 9 years of
age must be conclusively presumed incapable of contributory negligence as a matter of law. (Jarco Marketing
Corp. vs. CA, 321 SCRA 377)

WHAT ARE THE EFFECTS OF PLAINTIFFS CONTRIBUTORY NEGLIGENCE?

If the proximate cause of the injury is the contributory negligence of the plaintiff, there can be
no recovery for damages (Taylor vs. Meralco, 16 Phil. 8)

A plaintiff is barred from recovering the damages for loss or injury caused by the negligence of
defendant only when plaintiffs negligence is the sole legal cause of the damage, or the negligence of
the plaintiff and some person or persons other that the defendant or defendants was the sole cause of
the damage.

If the plaintiff and the defendant are both at fault, the former may recover, but the amount of
his recovery may only be such proportion of the entire damage plaintiff sustained as the defendants
negligence bears to the combined negligence of both the plaintiff and the defendant. For example,
when it is found that the plaintiffs negligence is at least equal to that of the defendant, the amount
awarded to the plaintiff should be reduced by one-half from what it otherwise would have been
entitled.

If the proximate cause of the injuries is still the negligence of the defendant, despite the
contributory negligence of the plaintiff, the latter can still recover damages from the former.
However, damages will be reduced due to the contributory negligence of the plaintiff (Rakes vs.
Atlantic, supra.)

This is apportionment of liability also known as the DOCTRINE OF COMPARATIVE NEGLIGENCE.

Under said doctrine, the negligence of both the plaintiff and of the defendant are compared for the
purpose of reaching an equitable apportionment of their respective liabilities for the damage caused
and suffered by the plaintiff.

Contributory negligence in common carriers does not bar recovery of damages if the
proximate cause of the death of the passenger is the negligence of the common carrier

Art. 1762. The contributory negligence of the passenger does not bar recovery of
damages fro the death or injuries, if the proximate cause thereof is the negligence of the
common carrier, but the amount of damages shall be equitably reduced.

CAN THE PRINCIPLE OF CONTRIBUTORY NEGLIGENCE APPLY IN CRIMINAL CASES?

The principle of contributory negligence cannot be sued as defense in criminal cases through
reckless imprudence because one cannot allege the negligence of another to evade the effects of his
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K. P. Dela Serna
own negligence. It may, however, mitigate the civil liability of the defendant but cannot affect his
criminal liability.

IS THE PRINCIPLE OF PROXIMATE CAUSE APPLICABLE TO ACTIONS INVOLVING BREACH OF

CONTRACT?

The doctrine of proximate cause is applicable only for actions of quasi-delict, not in actions
involving breach of contract. The doctrine is a device for imputing liability to a person where there is
no relation between him and another party. In such a case, the obligation is created by the law itself.
But, where there is a pre-existing contractual relation between the parties, it is the parties themselves
who create the obligation, and the function of the law is merely to regulate the relation thus created.

E. ARTICLE 2180

Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages
caused by the minor children who live in their company.

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

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any business
or industry.

The State is responsible in like manner when it acts through a special agent; but not when the
damage has been caused by the official to whom the task done properly pertains, in which case what is
provided in article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused
by their pupils and students or apprentices, so long as they remain in their custody.

The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.

P.D. 603, ARTICLE 58. Torts Parents and guardians are responsible for the damage caused by
the child under parental authority in accordance with the Civil Code.

WHAT IS THE PRINCIPLE OF VICARIOUS LIABLITY OR IMPUTED LIABLITY?

The article provides that one is not only liable for his own quasi-delictual acts but also for those
persons for whom he is responsible under the law.

WHAT IS THE BASIS OF VICARIOUS LIABILITY?

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K. P. Dela Serna
The basis of vicarious liability under Article 2180 is not respondeat superior, which under
American jurisprudence means that the negligence of the servant is conclusively the negligence of the
master. Rather, the basis of Article 2180 is the principle of pater familias. The reason for the masters
liability is negligence in the supervision of his subordinates. The master, however, in pater familias
under Article 2180 will be freed from liability if he can prove that he had observed all the diligence of
a good father of a family to prevent the damage.

ISTHE ACTUAL TORTFEASOR (MINOR, WARD, EMPLOYEE, SPECIAL AGENT, PUPIL, STUDENT OR
APPRENTICE) EXEMPT FROM LIABILITY?

No, they are not exempt from personal responsibility. They may be sued and made liable alone
as when the person responsible for them or the vicarious obligor proves that he exercised the
diligence required of a good father of a family or when the minor or insane person has no parents or
guardians. In the latter instance, they are answerable with their own property (Article 2182).

WHAT IS THE DEFENSE AGAINST VICARIOUS LIABILITY?

The responsibility imposed by Article 2180 is not based on respondeat superior. It arises by
virtue of a legal presumption of negligence on the part of the persons made responsible for the
tortious conduct if another. Such presumption is only juris tantum, not juris et de jure, and may be
rebutted by showing that they observed all the diligence of a good father of a family to prevent
damage (last par.), which in the case of employers, means due diligence in the selection and
supervision of employees.

WHAT IS THE MEANING OF DILIGENCE OF A GOOD FATHER OR A FAMILY?

The phrase may be equated with ORDINARY CARE or that diligence which an average or a
reasonably prudent person exercises over his own affairs. This standard of care is also referred to as
that a man of ordinary prudence, or a man using ordinary care and skill.

WHAT PROVISION OF LAW GOVERNS THE VICARIOUS LIABILITY OF THE EMPLOYER FOR THE
CRIMINAL NEGLIGENCE OF HIS EMPLOYEE?

The vicarious liability of the employer for the criminal negligence of his employee is governed
by Article 103 of the Revised Penal Code. The conviction of the employee for criminal negligence
conclusively binds the employer who is automatically made subsidiarily liable, to answer for the
damages awarded. The defense that the employer exercised due diligence in the selection and
supervision of the employee is not available under said article.

Since the employers civil liability is subsidiary, and not direct, his responsibility will arise
only if the employee cannot or is unable to pay the indemnity awarded. Furthermore, his liability
cannot be more than that of the employee. The employer stands in the position of a guarantor. The
injured party, however, can sue both at the same time, although he has a choice of remedy either
under the Revised Penal Code or under Article 2180.

LIABILITY OF FATHER/MOTHER
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K. P. Dela Serna
WHAT IS THE REASON OF THE LAW IN MAKING THEM LIABLE?

It is a necessary consequence of the parents authority they exercise over their children.

WHAT ARE THE REQUISITES TO HOLD THE PARENTS LIABLE UNDER ARTICLE 2180?
1. The child is below 21 years;
2. The child committed a tortious act to the damage and prejudice of another person; and
3. The child lives in the company of the parent concerned whether single or married.

WHAT IS THE NATURE OF THE RESPONSIBILITY OF THE FATHER AND MOTHER?

Their responsibility is not simultaneous, but alternative, the father being primarily responsible,
and the mother answering only in case of death or incapacity.

PD 603, ARTICLE 201. Civil Liability of Youthful Offenders. The civil liability for acts
committed by a youthful offender shall devolve upon the offender's father and, in case of his death or
incapacity, upon the mother, or in case of her death or incapacity, upon the guardian. Civil liability may
also be voluntarily assumed by a relative or family friend of the youthful offender.

However, under the Family Code, this civil liability is now, without such alternative
qualification (Libi vs. IAC, 214 SCRA 16 [1992]). In other words, both parents are primarily liable for
the damages caused by their child.

The liability is primary and not subsidiary.

WHAT IS THE EXTENT OF THE PARENTS LIABILITY?

Parents liability extends to intentional crimes committed by their minor children.

Revised Penal Code, ARTICLE 101. Rules regarding civil liability in certain cases. The
exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of article 12 and in
subdivision 4 of article 11 of this Code does not include exemption from civil liability, which shall be
enforced subject to the following rules:

First. In cases of subdivisions 1, 2, and 3 of article 12, the civil liability for acts committed by an
imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen
years of age, who has acted without discernment, shall devolve upon those having such person under
their legal authority or control, unless it appears that there was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control or if such person be insolvent, said insane, imbecile, or minor shall respond with
their own property, excepting property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of article 11, the persons for whose benefit the harm
has been prevented shall be civilly liable in proportion to the benefit which they may have received.

The courts shall determine, in their sound discretion, the proportionate amount for which each
one shall be liable.

When the respective shares cannot be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all
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K. P. Dela Serna
events, whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or
causing the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the
act shall be liable, saving always to the latter that part of their property exempt from execution.

WHAT IS THE MEANING OF MINORITY IN PARAGRAPHS 2 AND 3 OF THE ARTICLE?

Minors in the said article refer to those who are below twenty-one and not to those
below 18 years. The law reducing the majority from 21 to 18 years did not amend these
paragraphs. Article 236 of the Family Code as amended by R.A. No. 6809 provides

ARTICLE 236. Emancipation shall terminate parental authority over the person and property of
the child who shall then be qualified and responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.

Contracting marriage shall require parental consent until the age of twenty one.

Nothing in this Code shall be construed to derogate from the duty or responsibility of parents
and guardians for children and wards below twenty one years of age mentioned in the second and third
paragraph of 2180 of the Civil Code (R.A. No. 6809).

ARE PARENTS RESPONSIBLE FOR MINOR ADOPTED CHILDREN/ ILLEGITIMATE CHILDREN?

Judicially adopted children are considered legitimate children of their adopting parents
(Section 17, R.A. No. 8552, Domestic Adoption Act of 1988), thus the adopters are civilly liable
for their tortious and criminal acts if the children live with them and are below 21 years.

If the child is illegitimate and acknowledged by the father and lives with the latter, the
father shall be responsible. However, an illegitimate child who is not recognized by the
putative father but is under the custody and supervision of the mother, it is the latter who is
vicariously liable.

HOW CAN THE PARENTS AVOID CIVIL LIABLITY?

By pleading and proving the defense that there was no fault or negligence on their part.

SHOULD THE MOTHER BE IMPLEADED AS CO-DEFENDANT OF HER HUSBAND FOR THE NEGLIGENT
ACTS OR OMISSION OF THEIR CHILD?

No. The mother is liable only if the father is dead or incapacitated.

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?

Yes. The marriage of a minor child, while still a minor, does not relieve the parents 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 parents are answerable for the borrowings of money and alienation or encumbering of real
property which cannot be done by their minor married child without their consent (Elcano vs. Hill, 77
SCRAS 100).
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K. P. Dela Serna

2) LIABILITY OF GUARDIANS

The vicarious liability of the guardians with respect to their wards is governed by the same
rule as in the liability of parents with respect to their children below twenty-one and who live with
them.

In guardianship, however, the ward may be an adult or of age, like an incompetent or

incapacitated adult. The age limit of being below 21 years does not apply. What is important is that
the guardianship is subsisting.

If the ward has two (2) guardians, one over his person and the other over his property, only
the former shall be liable because he is under obligation to supervise the personal acts of the ward.

WHAT IS THE EXTENT OF RESPONISBILITY OF GUARDIANS?

The responsibility of guardians extends to incapacitated persons even if they are already of
age. Section 2 of Rule 92 uses the word incompetent. It includes:

1. Persons suffering the penalty of civil interdiction

2. Hospitalized lepers
3. Prodigals
4. Deaf and dumb who are unable to read and write
5. Those who are of unsound mind, even though they have lucid intervals
6. Persons not being of unsound mind, but by reason of age, disease, weak mind, and other
similar cases, cannot, without outside aid, take care of themselves and manage their property.

The guardians stand in loco parentis

ARE GUARDIANS DE FACTO RESPONSIBLE?

If a person is not legally appointed as guardian, the de facto guardian would generally not be
responsible, because of the absence of one of the bases for the responsibility, namely, the duty to take
care of the ward. But if the injury caused is the result of bad education or training by the guardian de
facto, the latter should be held liable. It is but just that the law should be applied by analogy. This is to
compel them to exercise control and supervision over the orphans whom they voluntary assumed the
duties of parenthood.

3) LIABILITY OF OWNERS AND MANAGERS OF ESTABLISHMENT OR ENTERPRISE AND EMPLOYERS

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

The terms owners and managers (par. 4) and employer (par. 5) do not include the
manager of a corporation. The term manager (director in the Spanish version) is used in the sense
of employer. Thus, a mere manager, who does not own the business is not to be considered an
employer because he is just an employee. However, a manager who is not an owner but who assumes
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K. P. Dela Serna
the responsibility if supervision over the employees of the owner may be held liable for the acts of the
employees.
The existence of employer-employee relationship must be established by the plaintiff in a
satisfactory manner. It cannot be presumed.

One who hires an independent contractor but controls the latters work us responsible also for
his negligence. Also, negligence of a professor is negligence of the school.

WHAT ARE THE DISTINCTIONS BETWEEN PARS. 4 AND 5?

A. Article 2180 has a separate provisions for owners and managers of an establishment or
enterprise (par. 4) and employers (par. 5). Both are employers, however, it is not necessary
that the employer under the 5th paragraph be engaged in any business or industry.
B. Both are made liable for damages if they are caused by their employees acting in their service
or on the occasion of their functions, or acting within the scope of their assigned tasks at the
time of the commission of the tortious act or negligence.
C. The 4th paragraph covers negligent acts of employees committed either in the service of the
branches or on the occasion of their functions, while the 5th paragraph encompasses negligent
acts of employees acting within the scope of their assigned task whether or not the employer is
engaged in an business or industry . The latter is an expansion of the former in both employer
coverage and acts included.

WHAT IS THE NATURE OF THE LIABILITY OF THE EMPLOYER?

The liability of the employer is primary and solidary with the employee although the former
can recover from the latter whatever it pays to the plaintiff (Article 2180)

The responsibility of the owner and manager is only with respect to damages caused by their
employees in the service of the branches or on the occasion of their functions, and not with respect to
acts of strangers who committed unauthorized acts and in doing so, caused damages to others. The
same thing is true with respect to the employer in relation to the unauthorized acts of strangers.

WHAT ARE THE REQUISITES IN ORDER THAT AN EMPLOYER MAY BE LIABLE UNDER PAR. 4?

1. The employee was chosen by the employer personally or through another;

2. The service is to be rendered in accordance with the orders which the employer has the
authority to give at all times;
3. The illicit act of the employee was on the occasion or by reason of the functions entrusted to
him; and at the time the employee was performing his functions.

WHAT ARE THE REQUISITES IN ORDER THAT AN EMPLOYER MAY BE LIABLE UNDER PAR. 5?

1. The act was committed by employees and household helpers (including family cooks,
gardeners, yayas, servants, etc.);
2. The said act was committed while they were acting within their assigned tasks;
3. Damage was caused as a result of said act.
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K. P. Dela Serna
WHAT IS THE PRESUMPTION CREATED BY LAW IF AN INJURY OR DAMAGE IS CAUSED BY AN
EMPLOYEE? HOW CAN THE EMPLOYER REBUT THIS PRESUMPTION?

If an injury or damage is caused by an employee, it is presumed that the employer (pars. 4 and
5) was negligent either in the selection of the employee or in his supervision over him, or both. The
employer can overcome the presumption by a clear showing that in the selection and supervision he
observed all the diligence of a good father of a family to prevent damage (last par.) Allegations of
negligence against the employee and that of employer-employee relations in the complaint are
enough to make out a case of quasi-delict under Article 2180.

Note that to be exempt from liability, the employer must establish that he exercised due care
not only in the selection but also in the supervision of the employee.

DISTINGUISH BETWEEN PRIMARY LIABILITY AND SUBSIDIARY LIABILITY OF EMPLOYERS. WHAT ARE
THE OPTIONS ON REMEDIES OF THE INJURED PARTY?

The injured party has two (2) options in pursuing the civil liability of the employer for the acts
of his employee:

A. If he chooses to file a civil action for damages based on quasi-delict under article 2180 and
succeeds in proving the negligence of the employee, the liability of the employer is primary,
direct and solidary. It is not conditioned on the insolvency of the employee.

The responsibility of employers for the negligence of their employees in the performance of
their duties is primary, that is, the injured party may recover from the employers directly,
regardless of the solvency of their employees.

B. If he chooses to file a criminal case against the offender and the offender was found guilty
beyond reasonable doubt, the civil liability of the employer is subsidiary. The employer cannot
use as a defense the exercise of the diligence of a good father of a family.

The judgment in the criminal action pronouncing the employee to be also civilly liable is
conclusive on the employer not only as to the actuality of that liability but also as to the
amount.

Once there is conviction for a felony, final in character, the employer under Article 103 of the
Revised Penal Code, is subsidiarily liable, if it be shown that the commission thereof was in
the discharge of the duties of the employee. And a previous dismissal of an action based on
culpa aquiliana could not be a bar to the enforcement of the subsidiary liability required by said
Article 102 of the Penal Code.

WHAT ARE THE REQUISITES SO THAT THE SUBSIDIARY LIABILITY OF THE EMPLOYER MAY BE
ENFORCED?

To enforce the employers subsidiary liability, there must be adequate evidence establishing
that:
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1. He is indeed the employer of the convict;
2. He is engage in some kind of industry;
3. The crime was committed by the employee in the discharge of his duties; and
4. Execution against the employee is unsatisfied.

The employer who is made liable may seek reimbursement from his employee for the amount
he paid to the offended party for the satisfaction of the claim.

4) STATES 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:

1. A government entity (public aspect) exercising governmental functions, where it is liable for
the acts of its special agents. Here, the state is engaged in public or government functions,
through its special agent; or
2. In a corporate capacity (private or business aspect), as when it engages in some private
enterprises, where it may be held liable just as any other employer for the acts of its
employees.

WHAT IS A SPECIAL AGENT?

By special agent is meant one specifically commissioned to carry out the acts complained of
outside of such agents regular duties. He is one who receives definite and fixed order or commission,
foreign to the exercise of the duties of his office if he is a special official.

HOW IS A SPECIAL AGENT DISTINGUISHED FROM AN OFFICIAL WITH SPECIFIC DUTY OR DUTIES TO
PERFORM?

Under the meaning of paragraph 6 of Article 2180, the word official comprises all officials and
employees of the government who exercise duties of their respective public offices. All others who
are acting by commission of the government belong to the class of special agents, whether individual
or juridical bodies.

In qualifying the special agent with the adjective special, the Civil Code aimed at
distinguishing it from the regular or ordinary agent of government, which refers to all officers and
employees in public service.

WHEN IS THE STATE LIABLE AS AN ORDINARY EMPLOYER?

1. When the state is engaged in private business or enterprise;

2. If the special agent is not a public official and is commissioned to perform non-governmental
functions;
3. If the special agent appointed by the state is assigned to perform acts for private and business
interests of the state.
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WHEN IS THE STATE RESPONSIBLE FOR ITS SPECIAL AGENT?

Under Article 2180 (par. 6), the state has voluntarily assumed liability for acts done through
special agent if:

1. The states agent is a public official, who must not only be especially commissioned to do a
particular task but such task must be foreign to said officials usual governmental functions.
2. The state commissioned a private individual to perform a special governmental task (Fontanilla
vs. Maliamen).

WHEN IS THE PUBLIC OFFICER OR OFFICIAL PERSONALLY LIABLE FOR HIS ACTS?

Since the state authorizes only legal acts by its officers, the state shall not be liable and an
action against the officials or officers by one whose rights have been invaded or violated by such acts,
for the protection of his rights, is not a suit against the state within the rule of immunity of the state
from suit for:

1. Unauthorized acts of government officials or officers;

2. Acts of a public officer that goes beyond the scope of his duty particularly when acting
tortiously;
3. Tortious acts committed by the public officers unrelated to his special assignment;
4. Acts performed by an official upon whom previously devolved the duty of doing the act
performed;
5. Acts performed in the discharge of the official duties of a public officer.

5) 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 paragraph 7 of Article 2180 stand, to a certain extent, in
loco parentis to their pupils and students.

Where the parent places 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 parent,
should be the one answerable for the torts committed while under their custody, for the very reason
that the parent is not supposed to interfere with the authority and supervision of the teacher while
the child is under instructions.

WHAT DOES THE PHRASE AS LONG AS THEY REMAIN IN THEIR CUSTODY MEAN?

The phrase was held to contemplate a situation where the pupil lives and boards with the
teacher such that the control and influence over the conduct and actions of the pupil would pass from
the father to the teacher, and so would the responsibility for the torts of the pupil (Mercado vs. CA, 108
Phil. 414).

This interpretation was abandoned in Palisoc vs. Brillantes, 41 SCRA 557[1971], where the
Supreme Court ruled that the phrase means the protective and supervisory custody that the school
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and its head and teacher exercise over the pupils and students for as long as they are in the school
including recess time. There is nothing in the law which requires that for such liability to attach, the
pupl or student who commits the tortious act must live and board 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 premises, whether the semester has not yet begun or has
already ended (Amadora vs. CA, 160 SCRA 315). Under Article 218 of the Family Code, custody
extends to activities even outside the premises as long as they are authorized activities.

It is not necessary that at the time of the injury the teacher be physically present and at the
position to prevent it. Custody does not connote immediate and actual physical control but it refers
more to the influence exerted on the child and the discipline instilled in him as a result of such
influence.

IS THE SCHOOL LIABLE IF THE STUDENT IS OVER 21 YEARS OF AGE?

A student over 21 years of age, by enrolling and attending a school, places himself under the
custodial supervision and disciplinary authority of the school authorities, which is the basis of the
latters correlative responsibility for his torts, committed while under such authority.

Thus, unlike the parent, who will be liable only if the child is still a minor, the teacher is held
answerable by the law for the act of the student under him regardless of the age of the student.
Article 2180 treats the parents more favorably than the teacher.

However, the teachers control is not as plenary as when the student is a minor; but the
circumstances can only affect the degree of the responsibility but cannot negate the existence thereof.
It is only a factor to be appreciated in determining whether or not the defendant has exercised due
diligence in endeavoring to prevent the injury, as prescribed in the last paragraph of Article 2180
(Palisoc vs. Brillantes, supra).

UNDER THE FAMILY CODE, WHAT IS THE RULE WITH RESPECT TO MINORS?

ARTICLE 218. The school, its administrators and teachers, or the individual, entity or institution
engaged in child care shall have special parental authority and responsibility over the minor child while
under their supervision, instruction or custody.

Authority and responsibility shall apply to all authorized activities whether inside or outside the
premises of the school, entity or institution. (349a)

ARTICLE 219. Those given the authority and responsibility under the preceding Article shall be
principally and solidarily liable for damages caused by the acts or omissions of the unemancipated
minor. The parents, judicial guardians or the persons exercising substitute parental authority over said
minor shall be subsidiarily liable.

The respective liabilities of those referred to in the preceding paragraph shall not apply if it is
proved that they exercised the proper diligence required under the particular circumstances. cda

All other cases not covered by this and the preceding articles shall be governed by the provisions
of the Civil Code on quasi-delicts. (n)
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These two provisions control with respect to pupils and students or apprentices who
are minors. The basis of liability is the SPECIAL parental authority and responsibility assumed over the
minor for whose acts or omissions those given such authority and responsibility are principally and
solidarily liable for damages, with the parents, judicial guardians, or the persons exercising substitute
parental authority being subsidiarily liable. 20

DOES THE LIABILITY EXTEND TO NON-ACADEMIC SCHOOLS?

There is really no substantial distinction between the academic and the non-academic schools
insofar as torts committed by their students are concerned. The same vigilance is expected from the
teacher over the students under his control and supervision, whatever the nature of the school where
he is teaching (Amadora vs CA).

However, where the law is academic rather than vocational or technical in nature,
responsibility for the tort committed by the pupil or student will attach to the teacher in charge of
such pupil or student, following the first part of paragraph 7 of Article 2180. This is the general rule.
In the case of establishments for arts and trades, it is the head thereof, and only he, who shall be held
liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts
of their students except where the school is technical in nature; in which case it is the head thereof
who shall be answerable.

WHAT IS THE STATUS OF WORKING SCHOLARS?

Section 14, Rule X (PD 442) provides: There is no employer-employee relationship between
students on one hand, and schools, colleges or universities on the other, where students work for the
latter in exchange for the privilege to study free of charge provided the students are given real
opportunity, including such facilities as may be reasonable, necessary to finish their chosen courses
under said arrangement.

F. OTHER PROVISIONS ON VICARIOUS LIABILITY

WHAT IS THE RIGHT OF THE PERSONS ENUMERATED IN ARTICLE 2180 WHO PAID FOR THE DAMAGE
CAUSED BY THEIR DEPENDENTS OR EMPLOYEES?

ARTICLE 2181. Whoever pays for the damage caused by his dependents or employees may
recover from the latter what he has paid or delivered in satisfaction of the claim. (1904)

The phrase dependents or employees in Article 2181 should be construed to include all
persons for whom another is liable under Article 2180.

20 ARTICLE 216 (Family Code). In default of parents or a judicially appointed guardian, the following persons
shall exercise substitute parental authority over the child in the order indicated: cd i
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of
preference shall be observed. (349a, 351a, 354a)
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K. P. Dela Serna
WHAT IS THE RULE IF THE TORTFEASOR IS A MINOR OR INSANE PERSON WITHOUT A PARENT OR
GUARDIAN?

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

G. STRICT LIABILITY

WHAT IS STRICT LIABILITY?

Strict liability is defined as liability without fault. A case is one of strict liability when
neither care nor negligence, neither good faith nor bad faith, neither knowledge or ignorance
will save the defendant.

WHEN IS THERE STRICT LIABILITY UNDER THE CIVIL CODE?

There is strict liability if one is made liable independent of fault, negligence or intent
after establishing certain facts specified by law. Strict liability tort can be committed even if
reasonable care was exercised and regardless of the state of mind of the actor at that time.

WHAT ARE THE INSTANCES UNDER THE CIVIL CODE WHERE THERE IS STRICT LIABILITY?

1. Liability of possessors of animals (Article 2183);

2. Liability for falling objects (Article 2193);
3. Liability of employers (Article 1171);
4. Liability of manufacturers and processors (Article 2187)
5. Liability for nuisance (To be discussed separately)

A. LIABILITY OF POSSESSORS OF ANIMALS

ARTICLE 2183. The possessor of an animal or whoever may make use of the same is responsible for the
damage which it may cause, although it may escape or be lost. This responsibility shall cease only in case the
damage should come from force majeure or from the fault of the person who has suffered damage. (1905)

WHY IS ARTICLE 2183 AN INSTANCE OF STRICT LIABILITY?

The language of Article 2183 reveals an evident intent to make the possessor or
whoever makes use of the animal, liable independent of fault.

Additionally, the owner or possessor of the animal is liable even if the damage was
caused by the animal through the fault of third persons. There is also liability even in a case in
which it could not be avoided because the animal is not in his possession for having escaped
or gone astray, and for this reason, it does not admit in this class of damages, unlike in
damages caused by a person other than the one responsible, evidence of diligence of a good
father of a family.

WHO IS MADE LIABLE UNDER ARTICLE 2183?

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K. P. Dela Serna

Liability is imposed only on the possessor or user of the animal, since he is the one who
has custody and control, he is, therefore in a position to prevent the animal from causing
damage. The law used the word possessor instead of owner. Thus, if the animal, like a horse or
carabao was borrowed by someone for his own use, the latter alone, should be held liable for
the damage caused while the animal was under his control.

WHAT IS THE RATIONALE BEHIND ARTICLE 2183?

The obligation imposed by Article 2183 is based on natural equity and on the principle
of social interest that he who possesses animals for his utility, pleasure or service must answer
for the damage which may be caused by such animals, even if such damage was not due to
their fault or negligence.

WHAT ARE THE EXCEPTIONS TO ARTICLE 2183?

1. When the damage was caused by force majeure;

2. When the damage is caused by the person who suffered the damage;
3. If the acts of a third person cannot be foreseen or prevented, then the situation is
similar to a force majeure and the possessor is not liable.

WHAT ARE THE ANIMALS COVERED UNDER ARTICLE 2183?

Article 2183 makes no distinction as to what kind of animal is used or possessed. Hence,
it may be construed as applicable generally to all animals, whether domestic, domesticated, or
wild. It would seem that birds are covered since they can also cause damage.

B. LIABILITY FOR FALLING OBJECTS

ARTICLE 2193. The head of a family that lives in a building or a part thereof, is responsible for damages
caused by things thrown or falling from the same. (1910a)

WHY IS THERE STRICT LIABILITY IN ARTICLE 2193?

It is evident in Article 2193 that the liability is absolute. It does not indicate a
presumption or admit proof of care.

Unlike Article 2183, the provision does not exempt cases involving force majeure.

WHAT IS THE NATURE OF LIABILITY UNDER ARTICLE 2193?

The nature of the liability of the head of the family is both absolute and exclusive. It is
absolute in the sense that as long as he is head of the family that lives in the building or part
thereof like a rented room, he is liable even if he is not present at the time of the incident. It is
exclusive in the sense that it is only the head of the family who is made liable.

WHAT ARE THE PURPOSES OF THE ABSOLUTENESS OF THE ARTICLE?

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K. P. Dela Serna
The obvious purposes of the law in making it absolute are:

a) To compel the head of the family to see to it that no dangerous things are placed on the
window sills and other parts of their dwelling place which may be thrown or fall by
accident;
b) To compel him to supervise the members of the family or guests from doing acts or
activities which may result in the throwing or falling of things from their house or place of
dwelling;
c) To relieve the victim of the difficult burden of identifying the persons who caused the
throwing or falling of the injurious thing.

WHAT DOES THE TERM HEAD OF THE FAMILY INCLUDE?

The head of the family is usually the father; in his absence, the mother. A single person
may also be the head of the family if he is the one supporting his family which may include as
members, adopted children, unemployed parents, brothers and sisters.

The term head of the family is not limited to the owner of the building and it may
even include the lessee thereof (Dingcong vs. Kanaan, 72 Phil. 14).

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

The head of the family who may have been obliged to pay indemnity to the injured
party may recover from the person responsible for the damage. Their liability is solidary
(Article 2194).

D. LIABILITY OF EMPLOYERS (ARTICLE 1711)

ARTICLE 1711. Owners of enterprises and other employers are obliged to pay compensation for the
death of or injuries to their laborers, workmen, mechanics or other employees, even though the event may have
been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the
course of the employment. The employer is also liable for compensation if the employee contracts any illness or
disease caused by such employment or as the result of the nature of the employment. If the mishap was due to
the employee's own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for
compensation. When the employee's lack of due care contributed to his death or injury, the compensation shall be
equitably reduced.

WHY IS THERE STRICT LIABILITY IN ARTICLE 1711?

The language of the provision indicates that the same is strict liability because liability
exists even if the cause if purely accidental.

It should be noted, however, that if the death or injury is due to the negligence of a
fellow-worker, the latter and the employer shall be solidarily liable for compensation. If a
fellow-workers intentional or malicious act is the only cause of the death or injury, the
employer shall not be answerable, unless it should be shown that the latter did not exercise
due diligence in the selection or supervision of the plaintiffs fellow-worker (Article 1712).
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K. P. Dela Serna

E. LIABILITY OF MANUFATURERS AND PROCESSORS (ARTICLE 2187)

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

WHY IS THERE STRICT LIABILITY IN ARTICLE 2187?

There is strict liability in Article 2187 because it imposes liability for death or injury
without fault or negligence on the part of the manufacturers and processors and without
privity of contract between them and the consumers.

The principle of strict liability in tort means that proof of negligence is not
necessary. It applies even if the defendant manufacturer or processor has exercised all the
possible care in the preparation and sale of his product.

The purpose of such liability is to insure that the burdens of such accidental deaths or
injuries resulting from defective products intended for public consumption be placed upon
those who market them, and can be treated as cost of production rather than by the injured
persons who are powerless to protect 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 between the parties, the plaintiff us not precluded from
filing a suit based on the breach of warranty whether express or implied. The principle of strict
liability still applies. The consumers cause of action does not depend upon the validity of his
contract with the person from whom he acquires the product, and it is not affected by any
disclaimer or other agreement, whether it be between the seller and the immediate buyer, or
attached to and accompanying the product into the consumers hands.

WHAT ARE THE REQUISITES FOR STRICT LIABILITY UNDER THIS ARTICLE?

To establish the liability of manufacturers or processors under the Article, the following
requisites must be established:

a) The defendant is the manufacturer or processor of foodstuff, drinks, toilet articles

and similar goods involved;
b) The defendant used noxious or harmful substances in the manufacture or
processing of the foodstuff, drinks, toilet articles and similar goods;
c) Plaintiff used or consumed such product unaware of the injurious condition of
the product;
d) Plaintiffs injury or death was caused by the product used or consumed;
e) The forms or kinds of damages suffered and the amount thereof.
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K. P. Dela Serna
The plaintiff has the burden of proof that at the time the product left the hands of the
defendant, the product was in a defective or injurious condition. Otherwise, his case will fall.

WHAT ARE THE OPTIONS ON REMEDIES OF THE PLAINTIFF?

The plaintiff has four (4) options if he desires to pursue a complaint against the
manufacturer or processor under Article 2187. He may base his complaint on the:

a) Theory of strict liability in torts;

b) Fault or negligence;
c) Breach of warranty; or
d) Crime anchored on violation of the Foods and Drugs Act wherein the
enforcement of which is the doctrine of absolute criminal liability may
be applied (People vs. Siy Cong Bien, 30 Phil. 577).

F. OTHER PROVISIONS

1. LIABILITY OF OWNER IN MOTOR VEHICLE MISHAPS (ARTICLE 2184);

PRESUMPTION OF NEGLIGENCE (ARTICLE 2185); AND BOND REQUIRED BY
MOTOR VEHICLE OWNERS (ARTICLE 2186)

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

If the owner was not in the motor vehicle, the provisions of article 2180 are applicable. (n)

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

ARTICLE 2186. Every owner of a motor vehicle shall file with the proper government office a bond
executed by a government-controlled corporation or office, to answer for damages to third persons. The amount
of the bond and other terms shall be fixed by the competent public official. (n)

WHO ARE THE OWNERS GOVERNED BY THE ARTICLE?

Article 2184 refers to owners of vehicles who are not included in the terms of Article
2180 as owners of an establishment or enterprise (De Leon Brokerage Co., Inc. vs. Court of
Appeals, 4 SCRA 517). It is intended to cover only owners of motor vehicles for private use. It is
generally not applicable to motor vehicles for public use and convenience because the operator
thereof, usually a corporation, cannot, in the very nature of things, be in the motor vehicle at
the time of mishap. However, if the manager of the bus company was in the bus at the time of
the mishap, Article 2184 may be applied by analogy (Corpus vs. Paje, 28 SCRA 1062).

WHEN IS ARTICLE 2184 APPLICABLE?

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K. P. Dela Serna
Article 2184 applies if the owner was in the vehicle at the time of the mishap; otherwise,
the provisions of Article 2180 would be applicable (par. 2) where the owner even if he was not
in the vehicle would be liable unless he exercised due diligence to prevent the damage.

If the causative factor was the drivers negligence, the owner of that car, who was
present, is likewise held liable if he could have prevented the mishap by the exercise of due
diligence. Negligence under Article 2184 is, to a certain degree, necessarily subjective (Caedo vs.
Yu Khe Tai, 26 Phil. 410). The owner should not be held liable for the negligence of a competent
driver, if by the sudden act of negligence, the owner could not have a reasonable opportunity
to prevent the act or its continuance (Chapman vs. Underwood, 27 Phil. 374; Johnson vs. David, 5
Phil. 663).

WHAT IS THE RATIONALE BEHIND ARTICLES 2184 TO 2186?

The rationale for the inclusion of Articles 2184 to 2186 is to cope with the alarming
increase of vehicular mishaps.

IS THERE A PRESUMPTION THAT A DRIVER WAS NEGLIGENT?

There is no presumption that a driver was negligent unless he has been found guilty of
reckless driving or violating traffic regulations at least twice within two months next
preceding the mishap (Article 2184, par. 2), or was violating any traffic violation at the time of
the motor vehicle mishap (Article 2185).

WHAT IS THE TEST OF NEGLIGENCE OF THE CAR OWNER UNDER THE ARTICLE?

The law does not require that a person must possess a certain measure of skill or
proficiency either in the mechanics of driving or in the observance of traffic rules before he
may own a motor vehicle. The test of his negligence, within the meaning of Article 2184, is his
omission to do that which the evidence of his own senses tells him he should do in order to
avoid the accident. And as far as perception is concerned, absent a minimum level imposed by
law, a maneuver that appears to be fraught with danger to one passenger may appear to be
entirely safe and commonplace to another.

Where the law require a uniform standard of perceptiveness, employment of

professional drivers by car owners who, by their very inadequacies have real need of drivers
services, would be effectively prescribed (Caedo vs. Yu Khe Tai, supra.).
2. DEATH RESULTING FROM POSSESSION OF DANGEROUS WEAPONS OR
SUBSTANCES (ARTICLE 2188)

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

When death or injury results from the defendants possession of dangerous weapon or
substances, there is a rebuttable presumption that he is negligent. The burden of evidence is on
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K. P. Dela Serna
him to establish that he was not negligent at all. The presumption prevails if he fails to
overcome it by clear strong and convincing evidence.

When the possession or use of the weapon or substances is indispensable in the

defendants occupation or business, no presumption arises. The plaintiff has the burden of
proving defendants negligence.

3. DEFECTIVE CONDITIONS OF THE ROADS, STREETS, BRIDGES, PUBLIC

BUILDINGS, AND OTHER PUBLIC WORKS (ARTICLE 2189)

ARTICLE 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings,
and other public works under their control or supervision. (n)

WHO ARE MADE LIABLE FOR DEFECTIVE CONDITION OF ROADS, ETC?

Article 2189 does not require the defective roads, streets, etc. to belong to the province,
city or municipality for liability to attach. It only requires that either control or supervision is
exercised over the road, street, etc. (Guilatco vs. City of Dagupan, 171 SCRA 382).

4. LIABILITY OF PROPRIETOR OF A BUILDING OR STRUCTURE DUE TO ITS

COLLAPSE (ARTICLE 2190); OTHER LIABILITIES (ARTICLES 2191 & 2192)

ARTICLE 2190. The proprietor of a building or structure is responsible for the damages resulting from its
total or partial collapse, if it should be due to the lack of necessary repairs. (1907) aisa dc

ARTICLE 2191. Proprietors shall also be responsible for damages caused:

(1) By the explosion of machinery which has not been taken care of with due diligence, and the
inflammation of explosive substances which have not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to persons or property;
(3) By the falling of trees situated at or near highways or lanes, if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without
precautions suitable to the place. (1908)

ARTICLE 2192. If damage referred to in the two preceding articles should be the result of any defect in
the construction mentioned in article 1723, the third person suffering damages may proceed only against the
engineer or architect or contractor in accordance with said article, within the period therein fixed. (1909)

Article 2190 supplements Article 482 which provides:

ARTICLE 482. If a building, wall, column, or any other construction is in danger of falling, the owner
shall be obliged to demolish it or to execute the necessary work in order to prevent it from falling.

If the proprietor does not comply with this obligation, the administrative authorities may order the
demolition of the structure at the expense of the owner, or take measures to insure public safety. (389a) acd

WHAT ARE THE LIABILITIES OF PROPRIETORS OF BUILDINGS AND STRUCTURES DUE TO ITS
COLLAPSE?
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K. P. Dela Serna
1. Where the damage is caused by the total or partial collapse of a building or other
structure, the proprietor or owner is prima facie deemed negligent and is made
liable, if it should be due to lack of necessary repairs, because it is his duty to
maintain his property in goods condition at all times to avoid causing injury or
damage to another person or property. To relieve himself from liability, he must
prove that the property was in a goods state of repair or that the collapse was
due to a defect in its construction in which case the engineer or architect and/or
contractor may be held responsible for the damage (See Article 1723).
2. The fact that the property is leased or in usufruct will not exempt the owner from
liability for his duty to make necessary repairs remains although the property is
legally in the possession and control of another. Under the law, the lessee or the
usufructuary is obliged to notify or advise the owner of the need for urgent or
extraordinary repairs (Article 593, 1663). The failure of the lessee or usufructuary
to give notice will entitle the owner to reimbursement, for the damages he may
have been required to pay third parties injured by the collapse of the property.

WHAT IS THE PRESUMPTION OF NEGLIGENCE UNDER ARTICLE 2191?

If any of the four (4) enumerated events occurred, the proprietor of the machinery, not
necessarily of the owner of the tenement where it is located, is presumed negligent. He has to
overcome the presumption with sufficient evidence to avoid responsibility.

WHO IS LIABLE IF THE DAMAGE SHOULD BE THE RESULT OF ANY DEFECT IN THE
CONSTRUCTION?

If the building or structure referred to in Articles 2190 and 2191 were constructed with
substantial defects which defects are the cause of the damage or injury, the injured party may
proceed only against the engineer or architect or contractor in accordance with Article 1723
which provides that:

ARTICLE 1723. The engineer or architect who drew up the plans and specifications for a building is
liable for damages if within fifteen years from the completion of the structure, the same should collapse by reason
of a defect in those plans and specifications, or due to the defects in the ground. The contractor is likewise
responsible for the damages if the edifice falls, within the same period, on account of defects in the construction
or the use of materials of inferior quality furnished by him, or due to any violation of the terms of the contract. If
the engineer or architect supervises the construction, he shall be solidarily liable with the contractor. cda

Acceptance of the building, after completion, does not imply waiver of any of the causes of action by
reason of any defect mentioned in the preceding paragraph.

The action must be brought within ten years following the collapse of the building. (n)

5. SOLIDARY LIABILITY FOR QUASI DELICT (ARTICLE 2194)

ARTICLE 2194. The responsibility of two or more persons who are liable for quasi-delict is solidary. (n)
aisa dc

NUISANCE
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ARTICLE 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else
which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.

ARTICLE 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or
any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be
unequal. A private nuisance is one that is not included in the foregoing definition. cda

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

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

ARTICLE 698. Lapse of time cannot legalize any nuisance, whether public or private.

ARTICLE 699. The remedies against a public nuisance are:

(1) A prosecution under the Penal Code or any local ordinance: or

(2) A civil action; or acd
(3) Abatement, without judicial proceedings.
ARTICLE 700. The district health officer shall take care that one or all of the remedies against a public nuisance
are availed of.
ARTICLE 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.

ARTICLE 702. The district health officer shall determine whether or not abatement, without judicial
proceedings, is the best remedy against a public nuisance.

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

ARTICLE 704. Any private person may abate a public nuisance which is specially injurious to him by removing,
or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing
unnecessary injury. But it is necessary:

(1) That demand be first made upon the owner or possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and executed with the assistance of the local police;
and cda
(4) That the value of the destruction does not exceed three thousand pesos.

ARTICLE 705. The remedies against a private nuisance are:

(1) A civil action; or

(2) Abatement, without judicial proceedings.

ARTICLE 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by
destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary
injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private
person be followed.
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ARTICLE 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages:

(1) If he causes unnecessary injury; or

(2) If an alleged nuisance is later declared by the courts to be not a real nuisance.

HUMAN RELATIONS (INTENTIONAL TORTS)

DEFINE HUMAN RELATIONS.

It is the interaction or interrelation of one person to another person or persons and vice versa,
in accordance with mores, habits, customs, and public policy not contrary to laws. It refers to the
rules needed to govern the interrelationships of human beings in a society for the purpose of
maintaining social order

It is based on the old adage or golden rule: Do not do unto others, what others dont do unto
you, and the Latin maxim: Sic uture tu ut alterium non laedas (So use your property as not to injure
others.

1. CATCH ALL PROVISIONS

WHAT ARE THE ARTICLES COVERED IN THE CATCH-ALL PROVISIONS ON HUMAN RELATIONS?

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

2. Article 20: Every person, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latte for the same.

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

WHAT ARE THE DIFFERENCES/DISTINCTIONS OF THE THREE ARTICLES?

1. Article 19 declares a principle of law and Article 21 gives flesh to its provisions, while Article
20 speaks of the general sanction for all other provisions of law which do not especially
provide for their own sanction;
2. There is a common element under Articles 19 and 21, that is, the act must be intentional,
however, Article 20 does not distinguish, in that the act may be done either willfully or
negligently;
3. Under any of the three articles, an act which causes injury to another may be made the basis
for an award of damages;
4. Under Article 21, the act is contrary to morals, good customs or public policy; in Article 21, the
act is contrary to law. Under Article 21, the act is done willfully, in Article 20, the act is done
either willfully or negligently.

ARTICLE 19
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Article 19 is commonly referred to as the principle of abuse of rights. The law recognizes the
norms of human on all rights: that in their exercise, the norms of human conduct set forth in Article
19 must be observed.

The article sets standards which may be observed not only in the exercise of ones rights but
also in the performance of ones duties. These standards are: a) to act with justice, b) to give everyone
his due; and c) to observe honesty and good faith.

Article 19 rejects the classical and traditional theory that he who uses a right injures no one.

A right, though by itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. When a right is exercised in a manner which does
not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong
is thereby committed for which the wrongdoer must be held responsible.

Article 19 is intended to expand the concept of torts by granting adequate remedy for the
untold number of moral wrongs which is impossible for human foresight to provide specifically in
statutory law.

Article 19 lays down a rule of conduct for the regulation of human relations and for the
maintenance of social order. It does not provide a remedy for its violation. Generally, an action for
damages under either Articles 20 and 21 would be proper [(Globe Mackay vs/ CA, 176 SCRA 778
(1989).]

WHAT ARE THE ELEMENTS OF AN ABUSE OF RIGHT UNDER ARTICLE 19?

1. Exercise of a right which is objective and apparently legal;

2. Damage or injury to an interest not specifically protected by a legal precept; and
3. Immorality or anti-social character of the damage or injury manifested either subjectively, i.e.,
when the right is exercised with the intent to injure or simply without legal or legitimate
purpose.

WHAT ARE THE EXTERNAL LIMITATIONS OF ABUSE OF RIGHTS?

1. Those in favor of third persons who acted in good faith; and

2. Those arising from the concurrence or conflict with the tight of others.

Exercise of right. The exercise of rights must be done within certain limits.

The limitations in the exercise of a right are classified into:

a. Intrinsic limitations that which emanate from the right itself, that is, from its nature and
purpose.
b. Extrinsic limitations which are the following:

3. Those derived from the nature of the right itself

4. Limitations arising from good faith; and
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5. Limitations imposed by the economic and social ends for the right which require the holder of
the right to exercise it in accordance with the end for which it was granted or created.

IN WHAT ARTICLES IS ACTING WITH JUSTICE AND GIVING ANOTHER HIS DUE ELABORATED?

1. Article 20 indemnification of another due to illegal acts

2. Article 21 indemnification due to immoral acts
3. Article 24 unfair competition
4. Article 22 unjust enrichment

IN WHAT ARTICLE IS OBSERVANCE OF HONESTY AND GOOD FAITH ELABORATED?

1. Article 26 respect for the personality and dignity of others

2. Article 25 restraint of due extravagance
3. Article 31 et seq. independent civil actions

ARTICLE 20

WHAT IS BEING PUNISHED UNDER ARTICLE 20?

This article punishes illegal acts whether done willfully or negligently. The article is broad
enough to cover all legal (not moral) wrongs in violation of law, whether willfully or negligently.
Thus, in the law of torts or quasi-delict Whoever by act or omission causes damages to another,
there being fault or negligence, is obliged to pay for the damage done. (Article 2176) It embraces the
Spanish-Philippine concept of quasi-delict which is based on negligence and the tort in Anglo-
Amercian jurisprudence which is based on malice.

This article serves as a sanction to all violations of right which cause damage to another
irrespective of whether the particular law that is violated provides for damages or not. The rule in
Article 20 compliments the principle of abuse of rights enumerated in Article 19.

The conduct may be both a crime and a quasi-delict. Any person who willfully or negligently
causes damage to another in his person, his property, or in any right shall be obliged to indemnify the
latter. A felony may be committed by means of deceit or by means of fault or negligence (Article 3,
Revised Penal Code). If the fault or negligence does not constitute a penal offense, the actor is liable
only for quasi-delict under Article 2176. In either case, it is essential that the act is voluntary for the
obligation to indemnify to arise.

ARTICLE 21

Article 21 seeks to remedy the countless gaps in the statutes, which leave so may victims of
moral wrongs helpless, even though they have actually suffered material and moral injury.

Article 21 deals with acts contra bonus.

WHAT ARE THE ELEMENTS OF ACTS CONTRA BONUS?

1. There is an act which is legal;

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2. But which is contrary to morals, good customs, public order, or public policy; and
3. It is done with intent to injure

Under this article, damages are recoverable even though no positive law was violated.

Article 21 presupposes losses or injuries material or otherwise, which one may suffer as a result
of the violation. Thus, the complaint must asks for damages.

EXAMPLES OF ACTS CONTRA BONUS MORES:

1. Breach of promise to marry

As a general rule, breach of promise to marry by itself is not actionable. However, it becomes
actionable if there are additional circumstances which make it fall within the purview of Articles 19,
20, 21 or 2176 of the Civil Code. In such cases, there is another act independent of the breach of
promise to marry which gives rise to liability.

These include cases where:

1. If the breach of promise to marry is accompanied by a tortuous act

2. If the breach of promise to marry is accompanied by a quasi-contract as when on the
strength of the promise to marry, money or property is given. An action will lie to
recover such money or property
3. If the breach of promise to marry constitutes an abuse of right.
4. There was financial damage;
5. Social humiliation was caused to one of the parties; and
6. Where there was moral seduction

2. Seduction and sexual assault

Seduction, by itself, without breach of promise to marry is an act which is contrary to morals,
good custom and public policy. The defendant is liable if he employed deceit, enticement, superior
power or abuse of confidence in successfully having sexual intercourse with another.

The defendant would be liable for all forms of sexual assault. These include the crimes defined
under the Revised Penal Code as rape, acts of lasciviousness and seduction.

3. Desertion by a spouse

A spouse has a legal obligation to live with his or her spouse. If a spouse does not perform his
or her duty to the other, he may be held liable for damages for such omission because the same is
contrary to law, morals and good customs.

4. Trespass and deprivation of property

Trespass to real property is a tort that is committed when a person unlawfully invades the real
property of another. The Revised Penal Code punishes different forms of trespass. On the other hand,
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the Civil Code provides that damages may be awarded to the real owner if he suffered such damages
because he was deprived of possession of his property by a possessor in bad faith or by a person who
does not have any right whatsoever over the property. (Article 451) Anybody who builds, plants or
sows on the land of another knowing full well that there is a defect in his title is liable for damages.

Liability for damages under the provisions of the revised Penal Code and the Civil Code
requires intent or bad faith.

With respect to personal property, the commission of the crimes of theft or robbery is
obviously trespass. In the field of tort, however, trespass extends to all cases where a person is
deprived of his personal property even in the absence of criminal liability.

5. Disconnection of electricity or gas service

A usual form of deprivation of access to property is the unjustified disconnection of electricity

service. The right to disconnect and deprive the customer of electricity should be exercised in
accordance with law and rules.

6. Abortion and wrongful death

7. Illegal dismissal

The exercise of the right to terminate must be consistent with the general principles provided
for under Articles 19 and 21. If there is non-compliance with the said articles, the employer may be
held liable for damages.

8. Malicious prosecution

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

The statutory bases of the action are not only Articles 19, 20 and 21 but also Articles 26, 32, 33
35, 2217 and 2219(8) of the Civil Code.

WHAT ARE THE ELEMENTS OF MALICIOUS PROSECUTION?

a. The fact of the prosecution and the further fact that the defendant was himself the
prosecutor,
b. That the action was finally terminated with an acquittal;
c. That in bringing the action, the prosecutor acted without probable cause;
d. The prosecutor was actuated or impelled by legal malice.

IN ORDER FOR THE MALICIOUS PROSECUTION SUIT TO PROSPER, WHAT MUST THE PLAINTIFF
PROVE?
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a. The fact of the prosecution and the further fact that the defendant was himself the
prosecutor, and that the action finally terminated with an acquittal;
b. That in bringing the action, the prosecutor acted without probable cause; and
c. That the prosecutor was actuated or impelled by legal malice, that is by improper or
sinister motive. (Lao v. Court of Appeals, 199 SCRA 58 [1991]; Rehabilitation Finance
Corporation v. Koh, 4 SCRA 535 [1962]; Buchanan v. Viuda de Esteban, 32 Phil. 363 [1915])

The foregoing requisites are necessary safeguards to preserve a person's right to litigate which
may otherwise be emasculated by the undue filing of malicious prosecution cases. Thus, as further
held in the aforecited case of Buchanan v. Viuda. de Esteban, supra: "Malice is essential to the
maintenance of an action for malicious prosecution and not merely to the recovery of exemplary
damages. But malice alone does not make one liable for malicious prosecution, where probable cause
is shown, even where it appears that the suit was brought for the mere purpose of vexing, harassing
and injuring his adversary. In other words malice and want of probable cause must both exist in
order to justify the action." (see also Rehabilitation Finance Corp. v. Koh, supra)

Probable cause is the existence of such facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime (or in this case, the wrongdoing) for which he was prosecuted. (See Buchanan
v. Viuda de Esteban, supra).

The general rule is well settled that one cannot be held liable in damages for maliciously
instituting a prosecution where he acted with probable cause. In other words, a suit will lie only in
cases where a legal prosecution has been carried on without probable cause. (Id.)

9. Public humiliation

Example: slapping in public

4. Action In rem Verso and Liability Without Fault

Action in rem verso

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

This article is designated as action in rem verso.

What are the requisites of action in rem verso?

a. One party must be enriched and the other made poorer;

b. There must be a causal relation between the two;
c. The enrichment must not be justifiable;
d. There must be no other way to recover; and
e. The indemnity can not extend the loss of enrichment whichever is less
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LIABILITY WITHOUT FAULT

Article 23: Even when an ac or event causing damage to anothers property was not due to
the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or
event was benefited.

Unless there is a duty to indemnify, unjust enrichment will occur.

The concept of liability without fault is introduced in this article. It is based on equity.

5. Human Dignity

TORTS THAT INVOLVE THE RIGHT OF A PERSON TO DIGNITY, PRIVACY AND PEACE OF MIND

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

(1) Prying into the privacy of anothers residence;

(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition.

WHAT ARE THE PRINCIPAL RIGHTS PROTECTED UNDER THIS ARTICLE?

a. right to personal dignity;

b. right to personal security;
c. right to family relations;
d. right to social intercourse;
e. right to privacy and
f. right to peace of mind

WHAT ARE THE REMEDIES AVAILABLE IN THIS ARTICLE?

a. An action for damages

b. An action for prevention
c. Any other relief

A civil action may be instituted even if no crime is involved, and moral damages may
be obtained

Scope:
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a. Prying into the privacy of anothers residence includes by implication respect for anothers
name, picture, or personality except insofar as is needed for publication of information and
pictures of legitimate news value.
b. Meddling with or disturbing the private life or family relations of another includes alienation
of the affection of the husband or the wife.
c. Intriguing to cause another to be alienated from his friends includes gossiping, and reliance
on hearsay.
d. Vexing or humiliating includes criticism of ones health or features without justifiable legal
cause.

6. Public Officers

TORTS COMMITTED BY PUBLIC OFFICERS UNDER HUMAN RELATIONS

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

WHAT ARE THE REQUISITES FOR ACTION UNDER THIS ARTICLE?

a. That the defendant be a public official charged with the performance of official duties;
b. That there be a violation of an official duty in favor of an individual;
c. That there be willfulness or negligence in the violation of such official duty;
d. That there be an injury to the individual

7. Unfair Competition

Article 28 Unfair competition in agricultural, commercial or industrial enterprises or in

labor through the use of force, intimidation, deceit, machination, or any other unjust, oppressive or
high handed method shall give rise to a right of action by the person who thereby suffer damage.

WHEN IS THERE UNFAIR COMPETITION?

Unfair competition consists in employing deception or any other means contrary to good faith
by which any person shall pass off the goods manufactured by him or in which he deals, or his
business, or services to those of the one having established goodwill, or committing any acts
calculated to produce such result.

WHAT IS THE SCOPE OF THE PROHIBITION?

i. Agricultural enterprises
ii. Commercial enterprises
iii. Industrial enterprises
iv. Labor
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b. Examples

i. Strike prematurely declared

ii. Strike for trivial, unjust or unreasonable cause
iii. Strike carried out thru force, intimidation or other unlawful means
iv. Strike in order to circumvent valid obligations entered into a collective
bargaining contracts
v. Cut-throat competition
vi. The making of false statement in the course of trade to discredit the goods,
business or services of another
vii. The making of goods so as to deceive purchasers
viii. Selling of goods above the maximum prices set by the state

WHAT ARE THE ELEMENTS OF UNFAIR COMPETITION?

1. That the offender gives his goods the general appearance of the goods
of another manufacturer or dealer;
2. That the general appearance is shown in the (1) goods themselves, or
in the (2) wrapping of their packages, or in the (3) device or words
therein, or in (4) any other feature of their appearance;
3. That the offender offers to sell or sells those goods or gives other
persons a chance or opportunity to do the same with a like purpose;
4. That there is actual intent to deceive the public or defraud a
competition.

WHAT IS THE NATURE OF A COMPLAINT FOR UNFAIR COMPETITION?

It is basically a suit for injunction and damages.

e. Civil Action After Acquittal In a Criminal Case

Article 29 When the accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or
omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of
the defendant, the court may require the plaintiff to file a bond to answer for damages in case the
complaint should be found to be malicious.

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall
so declare. In the absence of any declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground.

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?
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a. The reason is found in Article 2177 which states that responsibility for fault or
negligence is entirely separate and distinct form the civil liability arising form
negligence under the penal code but the plaintiff cannot recover damages twice for
the same act or omission of the defendant.

b. Also, under the Revised Penal Code, a person criminally liable is also civilly liable
(Article 100). The two liabilities are separate and distinct form each other; the
criminal aspect affects social order; the civil, private rights. One is for the
punishment or correction of the offender, while the other is for reparation of
damages suffered by the aggrieved party.

WHAT ARE THE INSTANCES WHERE NO CIVIL ACTION MAY BE INSTITUTED?

(a) When the accused is acquitted on the ground that he did not commit the act,
or
(b) That no crime was committed, or
(c) Because he is justified or exempt from criminal liability,

Reason: Because the acquittal on these grounds constitutes res adjudication.

When such civil action is instituted, only a preponderance of evidence is required.

However, to protect persons form harassment, the provision authorizes the defendant t
file a motion in court requiring the plaintiff to file a bond to answer for damages in case
the complaint should be found to be malicious.

Note that Article 29 does no speak of an independent civil action.

f. Institution of Civil Action for Damages

Arising out of a Criminal Offense before a Criminal
Action is Instituted for the Criminal Offense

Article 30 When a separate civil action is brought to demand civil liability arising from a
criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a
preponderance of evidence shall likewise be sufficient to prove the act complained of.

If however, a criminal action is instituted while the civil action is pending, the civil action
will be suspended until final judgment in the criminal case has been rendered.

As in Article 29, this article does not speak of an independent civil action.

g. Torts with Independent Civil Actions.

WHAT IS THE BASIS OF TORTS WITH INDEPENDENT CIVIL ACTIONS?

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Article 31 When the civil action is based on an obligation not arising from the act or
omission complained of as a felony, such civil action may proceed independently of the criminal
proceedings and regardless of the result of the later.

WHAT IS THE SCOPE OF ARTICLE 31?

This article refers to a civil action based not on the act or omission charged as a felony in a
criminal case, but to one based on an obligation arising from other sources, such as law or contract
(Example: Breach of contract of carriage. Reason: The civil action based on contractual liability of a
common carrier is distinct from the criminal action instituted against the carrier or its employee
based on the latters negligence).

Meaning of independent civil actions An independent civil action is one that is

brought distinctly and separately from a criminal case allowed for considerations of
public policy, because the proof needed for civil cases is less than that required for
criminal cases; but with the injunction in general that success in financially recovering
in one case should prevent a recovery of damages in the other.

Note that the bringing of the independent civil action is permissive, not compulsory

WHAT ARE THE INSTANCES OF INDEPENDENT CIVIL ACTIONS?

(a) Article 21 Acts contra bonus mores

(b) Article 32 breach of constitutional and other rights
(c) Article 33 Defamation, fraud, physical injuries
(d) Article 34 Refusal or failure of city or municipal police to give protection
(e) Article 2177 Quasi-delict

WHAT IS THE EFFECT OF ACQUITTAL IN THE CIVIL CASE?

The dismissal of the civil action cannot constitute a bar to the criminal suit for the two actins
are entirely distinct from each other, and may therefore be litigated independently.

PROSECUTION OF INDEPENDENT CIVIL ACTION [RULE 111, RULES OF CRIMINAL PROCEDURE]

What are the general rules in institution of criminal and civil actions?

When a criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with the criminal action
unless :

(1) the offended party waives the civil action,

(2) reserves the right to institute it separately or
(3) institutes the civil action prior to the criminal action.

[The reservation of the right to institute separately the civil action shall be
made before the prosecution starts presenting evidence and under
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circumstances affording the offended party reasonable opportunity to make
such reservation. Section 1, Rule 111]

When the civil action has been filed separately and trial thereof has not yet commenced,
it may be consolidated with the criminal action upon application with the court trying
the latter case. If the application is granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing consolidation if the criminal and civil
action.

After the criminal action has been commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in the criminal
action.

If the criminal action is filed after the said civil action has already been instituted, the
latter shall be suspended in whatever stage it may be found before judgment on the
merits. The suspension shall last until final judgment is rendered in the criminal action.
Nevertheless, before judgment on the merits is rendered in the civil action, the same
may, upon motion of the offended party, be consolidated with the criminal action in the
court trying the criminal action. [Section 2, Ibid.]

WHAT ARE THE RULES ON INDEPENDENT CIVIL ACTIONS?

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

The independent civil actions contemplated in the present Rule 111 include
quasi-delicts provided for in Article 2176, in addition to Articles 32, 33 and 34. It
is necessary, however, that the civil liability under the said articles arise from the
same act or omission of the accused. Further, a reservation of the right to
institute these separate actions are impliedly instituted with the criminal action,
unless the former are waived or filed ahead of the criminal action.

Where an independent civil action is permitted, the result of the criminal action,
whether of acquittal or conviction is entirely irrelevant to the civil action. Thus
under Article 31 of the Civil Code, the civil action may proceed independently of
the criminal action regardless of the result of the latter.

Prior to the case of Roa vs. De la Cruz (101 Phil. 8), it was held that where the law
authorizes a separate and independent civil action, there was no need for making
a reservation, however, in subsequent cases, the Supreme Court has decided that
reservation is needed because of the specific provision of Section 3, Rule 111
requiring such reservation to be made even where the law provides for
independent civil actions.
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What are the kinds of independent civil actions?

a. Article 21 [Supra]

b. Article 32 Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:
xxxx

In any of the cases referred to in this article, whether or not the defendants act or
omission constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and for other relief. Such civil
action shall proceed independently of any criminal prosecution, and may be proved by
a preponderance of evidence.

The indemnity shall include moral and exemplary damages.

Where a public officer is charged with violation of any of the basic rights of an
individual provided for in this article, it is deemed that the action is against him in his
private capacity and not a suit against the state which requires its consent.

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

This article speaks of independent civil action in cases of:

defamation, libel or slander or intriguing against honor

fraud, including estafa and swindling, and
physical injuries, including attempted and frustrated homicide so long as
there was injury.

d. Article 34 When a member of a city or municipal police force refuses or fails to render aid or
protection to any person in case of danger to life or property, such peace officer shall be
primarily liable for damages, and the city or municipality shall be subsidiarily responsible
therefore. The civil action recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action.

The liability of the city or municipality being subsidiary can only be enforced when the
guilty officer is insolvent. However, it can not be avoided by proving that the city or
municipality has exercised due diligence in the selection and supervision of its
policemen. This defense, allowed under Article 2180, in favor of employers for the fault
or negligence of their employees, is available only to private employers; it would be
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available to the city or municipality if the function involved is a corporate function, but
not when, as contemplated by the present article, it is a governmental function.

e. Article 2177 Responsibility for fault or negligence under Article 2176 is entirely separate
and distinct from the civil liability arising form negligence under the penal code. But the
plaintiff cannot recover twice for the same act or omission of the defendant.

DAMAGES

WHAT ARE THE DAMAGES THAT MAY BE AWARDED?

Under Article 2197, damages may be:

1. Actual or compensatory;
2. Moral;
3. Nominal;
4. Temperate or moderate;
5. Liquidated; or
6. Exemplary or corrective.

WHAT DAMAGES MAY BE RECOVERED IN CASE OF DEATH OF A PASSENGER?

When death occurs, the following items of damages may be recovered:

1. An indemnity for the death of the victim;

2. An indemnity for loss of earning capacity of the deceased;
3. Moral damages;
4. Attorneys fee and expenses of litigation;
5. Interest in proper cases (Brinas vs. People, 125 SCRA 687).

IN FIXING A GREATER AMOUNT OF DAMAGES FOR DEATH OF A PASSENGER THAN THAT PROVIDED
BY LAW WHAT MAY THE COURTS CONSIDER?

Article 2206 applies in case of death caused by breach of contract by the common carrier
(Article 1764). It fixes the minimum indemnity for death at P____ which the courts may increase
according to circumstances. It is in fixing a greater amount of indemnity that courts may consider the
financial capacity of the common carrier, along with such other factors as:

1. Life expectancy of the deceased or of the beneficiary, whichever is shorter;

2. Pecuniary loss to the plaintiff or beneficiary;
3. Loss of support;
4. Loss of service;
5. Loss of society;
6. Mental suffering of beneficiaries; and
7. Medical and funeral expenses (Pangasinan Transportation Co., Inc. vs. Legaspi, 12 SCRA 592).
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K. P. Dela Serna

In awarding compensatory damages, the age of the plaintiff, his expected life span, and his
earning capacity within that life span must be taken into consideration. Thus, the fact that the
plaintiff was only in his twenties, when through the negligence of the defendant, he lost the use of his
limbs, being condemned for the remainder of his life to be a paralytic, in effect leading a maimed,
well-nigh useless existence, were taken into account in fixing compensatory damages (Marchan vs.
Mendoza, 24 SCRA 889).

HOW MAY LIFE EXPECTANCY OF A PERSON BE DETERMINED FOR PUPROSES OF FIXING THE AMOUNT
OF DAMAGES THAT MAY BE RECOVERED?

In determining the number of years on the basis of which the damages shall be computed and
the rate which the losses sustained by said heirs should be fixed, the following formula was adopted
in the American Expectancy Table of Mortality or the actual Combined Experience Table of Mortality:

2/3 x (80 age of the decedent) = life expectancy.

Thus, the life expectancy of the passenger who died when he was over 29 years of age (or
around 30 for purposes of computation) was placed at 33 1/3 years, following the foregoing formula
(Villa Rey Transit, Inc. vs. Court of Appeals, 31 SCRA 514). And where the passenger was 37 years old
when he died, he had a life expectancy of 28 2/3 more years (Fortune Express, Inc. vs. Court of Appeals,
G.R. No. 119756, March 18, 1999).

In the computation of the damages to be awarded, it should be life expectancy of the passenger
who died and not the life expectancy of the beneficiary which should be considered (Philippine
Airlines vs. Court of Appeals, 185 SCRA 110).

ACTUAL OR COMPENSATORY DAMAGES

Actual damages are adequate compensation for pecuniary loss suffered and proved. It
includes attorneys fees.

ARTICLE 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory
damages.

ARTICLE 2200. Indemnification for damages shall comprehend not only the value of the loss suffered, but also
that of the profits which the obligee failed to obtain. (1106)

ARTICLE 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is
liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties
have foreseen or could have reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may
be reasonably attributed to the non-performance of the obligation. (1107a)

ARTICLE 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural
and probable consequences of the act or omission complained of. It is not necessary that such damages have been
foreseen or could have reasonably been foreseen by the defendant. cdasia
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K. P. Dela Serna
ARTICLE 2203. The party suffering loss or injury must exercise the diligence of a good father of a family to
minimize the damages resulting from the act or omission in question.

ARTICLE 2204. In crimes, the damages to be adjudicated may be respectively increased or lessened according to
the aggravating or mitigating circumstances.

ARTICLE 2205. Damages may be recovered:

(1) For loss or impairment of earning capacity in cases of temporary or permanent personal injury;
(2) For injury to the plaintiff's business standing or commercial credit.

ARTICLE 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on
account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an
heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the
person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages
for mental anguish by reason of the death of the deceased. cdtai

ARTICLE 2207. If the plaintiff's property has been insured, and he has received indemnity from the insurance
company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall
be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the
amount paid by the insurance company does not fully cover the injury or loss, the aggrieved party shall be entitled to
recover the deficiency from the person causing the loss or injury.

ARTICLE 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs,
cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest; casia
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just
and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should
be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.

ARTICLE 2209. If the obligation consists in the payment of a sum of money, and the debtor incurs in delay, the
indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and
in the absence of stipulation, the legal interest, which is six per cent per annum. (1108) casia

ARTICLE 2210. Interest may, in the discretion of the court, be allowed upon damages awarded for breach of
contract.
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K. P. Dela Serna
ARTICLE 2211. In crimes and quasi-delicts, interest as a part of the damages may, in a proper case, be
adjudicated in the discretion of the court.

ARTICLE 2212. Interest due shall earn legal interest from the time it is judicially demanded, although the
obligation may be silent upon this point. (1109a)

ARTICLE 2213. Interest cannot be recovered upon unliquidated claims or damages, except when the demand can
be established with reasonable certainty.

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

ARTICLE 2215. In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages
under circumstances other than the case referred to in the preceding article, as in the following instances: cdtai

(1) That the plaintiff himself has contravened the terms of the contract;
(2) That the plaintiff has derived some benefit as a result of the contract;
(3) In cases where exemplary damages are to be awarded, that the defendant acted upon the advice of counsel;
(4) That the loss would have resulted in any event;
(5) That since the filing of the action, the defendant has done his best to lessen the plaintiff's loss or injury.

OTHER KINDS OF DAMAGES

ARTICLE 2216. No proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or
exemplary damages, may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion
of the court, according to the circumstances of each case. cda

MORAL DAMAGES

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

ARTICLE 2218. In the adjudication of moral damages, the sentimental value of property, real or personal, may be
considered.

ARTICLE 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. casia

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also
recover moral damages.
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K. P. Dela Serna
The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this
article, in the order named.

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

AS A GENERAL RULE, MAY MORAL DAMAGES BE RECOVERED IN BREACH OF CONTRACT OF

TRANSPORTATION?

Moral damages are not recoverable in damage actions predicated on a breach of contract of
transportation in view of the provisions of Articles 2219 and 2220. The said provisions limited the
award of moral damages to those enumerated therein and analogous cases. A breach of contract
cannot be considered included in the descriptive term analogous cases used in Article 2219, not
only because Article 2220 specifically provided for damages that are caused by contractual breach,
but because the definition of quasi delict in Article 2176 expressly excludes the cases where there is a
pre-existing contractual relation between the parties (Verzosa vs. Baytan, 107 Phil. 1010; Martinez vs.
Gonzales, 6 SCRA 331).

WHAT ARE THE EXCEPTIONS TO THE FOREGOING RULE WHEN MORAL DAMAGES MAY BE
RECOVERED IN BREACH OF CONTRACT OF TRANSPORTATION?

Moral damages may be recovered in an action for breach of contract of transportation in the
following cases:

1. When the mishap results in the death of a passenger (M. Ruiz Highway Transit, Inc. vs. Court of
Appeals, 11 SCRA 98);
2. Where it is proved that the carrier was guilty of fraud or bad faith, even if death does not
result (Rex Taxicab Co., Inc. vs. Bautista, L-15392, September 30, 1960; Singson vs. Court of Appeals,
282 SCRA 149).

Bad faith means a breach of a known duty through some motive or ill-will. Self enrichment or
fraternal interest, and not personal ill-will, may have been the motive, but it is malice nevertheless
which may be the ground for awarding moral damages for breach of contract of carriage (Lopez vs.
Pan American World Airways, 16 SCRA 431). The bad faith referred to may be bad faith in the securing
and in the execution of the contract and in the enforcement of its terms or any other kind of deceit
which may have been used by the carrier (Tamayo vs. Aquino, L-12634 and 12720, may 29, 1959).

MAY MORAL DAMAGES BE GRANTED IN CASE OF BREACH OF CONTRACT OF TRANSPORTATION

WHICH MERELY CAUSES PHYSICAL INJURIES TO PASSENGERS?

In case of breach of contract of carriage resulting only to physical injuries of passengers, moral
damages are not recoverable (Laguna Tayabas Bus Co. vs. Cornista, 11 SCRA 182), unless the carrier
acted fraudulently or with malice or in bad faith (Roque vs. Buan, 21 SCRA 651; Bulante vs. Chu Liante,
23 SCRA 604).

NOMINAL DAMAGES
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K. P. Dela Serna
Nominal damages are awarded not to compensate but to vindicate a right of the plaintiff that
has been violated by the defendant. Temperate damages, on the other hand, refers to pecuniary loss
suffered but cannot be proven with certainty.

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

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

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

TEMPERATE OR MODERATE DAMAGES

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

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

LIQUIDATED DAMAGES

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

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

ARTICLE 2228. When the breach of the contract committed by the defendant is not the one contemplated by the
parties in agreeing upon the liquidated damages, the law shall determine the measure of damages, and not the
stipulation.

EXEMPLARY OR CORRECTIVE DAMAGES

ARTICLE 2229. Exemplary or corrective damages are imposed, by way of example or correction for the public
good, in addition to the moral, temperate, liquidated or compensatory damages.

ARTICLE 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the
crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines
and shall be paid to the offended party.

ARTICLE 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross
negligence.

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

ARTICLE 2233. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not
they should be adjudicated. cdt
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K. P. Dela Serna
ARTICLE 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he
is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not
exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is
necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the
question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled
to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages. cdtai

ARTICLE 2235. A stipulation whereby exemplary damages are renounced in advance shall be null and void.

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