CANDIDA VIRATA, TOMAS VIRATA,
MANOLITO VIRATA, EDERLINDA VIRATA,
NAPOLEON VIRATA, ARACELY VIRATA,
ZENAIDA VIRATA, LUZMINDA VIRATA,
PACITA VIRATA, and EVANGELINA
VIRATA, petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and
THE COURT OF FIRST INSTANCE OF CAVITE,
7th JUDICIAL DISTRICT, BRANCH V,
stationed at BACOOR, CAVITE, respondents.
Remulla, Estrella & Associates for petitioners
Exequil C. Masangkay for respondents.
FERNANDEZ, J.:
This is an appeal by certiorari, from the order of
the Court of First Instance of Cavite, Branch V, in
Civil Case No. B-134 granting the motion of the
defendants to dismiss the complaint on the
ground that there is another action pending
between the same parties for the same cause. 1
The record shows that on September 24, 1975
one Arsenio Virata died as a result of having been
bumped while walking along Taft Avenue, Pasay
City by a passenger jeepney driven by Maximo
Borilla and registered in the name Of Victoria
Ochoa; that Borilla is the employer of Ochoa; that
for the death of Arsenio Virata, a action for
homicide through reckless imprudence was
instituted on September 25, 1975 against Maximo
Borilla in the Court of First Instance of Rizal at
Pasay City, docketed as C Case No. 3162-P of
said court; that at the hearing of the said criminal
case on December 12, 1975, Atty. Julio
Francisco, the private prosecutor, made a
reservation to file a separate civil action for
damages against the driver on his criminal
liability; that on February 19, 1976 Atty. Julio
Francisco filed a motion in said c case to
withdraw the reservation to file a separate civil or extraordinary when we
action; that thereafter, the private prosecutor consider the exact nature of
actively participated in the trial and presented criminal and civil negligence.
evidence on the damages; that on June 29, 1976 The former is a violation of the
the heirs of Arsenio Virata again reserved their criminal law, while the latter is a
right to institute a separate civil action; that on 'culpa aquiliana' or quasi-delict,
July 19, 1977 the heirs of Arsenio Virata, of ancient origin, having always
petitioners herein, commenced Civil No. B-134 in had its own foundation and
the Court of First Instance of Cavite at Bacoor, individuality, separate from
Branch V, for damages based on quasi-delict criminal negligence. Such
against the driver Maximo Borilla and the distinction between criminal
registered owner of the jeepney, Victorio Ochoa; negligence and 'culpa extra-
that on August 13, 1976 the defendants, private contractual' or quasi-delito has
respondents filed a motion to dismiss on the been sustained by decision of
ground that there is another action, Criminal Case the Supreme Court of Spain and
No. 3162-P, pending between the same parties maintained as clear, sound and
for the same cause; that on September 8, 1976 perfectly tenable by Maura, an
the Court of First Instance of Rizal at Pasay City outstanding Spanish jurist.
a decision in Criminal Case No. 3612-P acquitting Therefore, under the proposed
the accused Maximo Borilla on the ground that he Article 2177, acquittal from an
caused an injury by name accident; and that on accusation of criminal
January 31, 1977, the Court of First Instance of negligence, whether on
Cavite at Bacoor granted the motion to Civil Case reasonable doubt or not, shall
No. B-134 for damages. 2 not be a bar to a subsequent civil
action, not for civil liability arising
The principal issue is weather or not the of the from criminal negligence, but for
Arsenio Virata, can prosecute an action for the damages due to a quasi-delict or
damages based on quasi-delict against Maximo 'culpa aquiliana'. But said article
Borilla and Victoria Ochoa, driver and owner, forestalls a double recovery.
respectively on the passenger jeepney that (Report of the Code
bumped Arsenio Virata. Commission, p. 162.)
It is settled that in negligence cases the aggrieved Although, again, this Article 2177
parties may choose between an action under the does seem to literally refer to
Revised Penal Code or of quasi-delict under only acts of negligence, the
Article 2176 of the Civil Code of the Philippines. same argument of Justice
What is prohibited by Article 2177 of the Civil Bocobo about construction that
Code of the Philippines is to recover twice for the upholds 'the spirit that given life'
same negligent act. rather than that which is literal
that killeth the intent of the
lawmaker should be observed in
The Supreme Court has held that:
applying the same. And
considering that the preliminary
According to the Code chapter on human relations of
Commission: 'The foregoing the new Civil Code definitely
provision (Article 2177) though at establishes the separability and
first sight startling, is not so novel
independence of liability in a civil
action for acts criminal in
character (under Articles 29 to
32) from the civil responsibility
arising from crime fixed by Article
100 of the Penal Code, and, in a
sense, the Rules of Court, under
Sections 2 and 3(c), Rule 111,
contemplate also the same
separability, it is 'more
congruent' with the spirit of law,
equity and justice, and more in
harmony with modern progress',
to borrow the felicitous language
in Rakes vs. Atlantic Gulf and
Pacific Co., 7 Phil. to 359, to hod
as We do hold, that Article 2176,
where it refers to 'fault covers not
only acts 'not punishable by law'
but also criminal in character,
whether intentional and
voluntary or consequently, a
separate civil action lies against
the in a criminal act, whether or
not he is criminally prosecuted
and found guilty and acquitted,
provided that the offended party
is not allowed, if he 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. In other
words the extinction of civil
liability refereed to in Par. (c) of
Section 13, Rule 111, refers
exclusively to civil liability
founded on Article 100 of the
Revised Penal Code, whereas
the civil liability for the same act
considered as a quasi-delict only
and not as a crime is not
extinguished even by a
declaration in the criminal case
that the criminal act charged has
not happened or has not been
committed by the accused. Brief
stated, We hold, in reitration of
Garcia, that culpa aquilina
includes voluntary and negligent
acts which may be punishable by
law. 3
The petitioners are not seeking to recover twice
for the same negligent act. Before Criminal Case
No. 3162-P was decided, they manifested in said
criminal case that they were filing a separate civil
action for damages against the owner and driver
of the passenger jeepney based on quasi-
delict. The acquittal of the driver, Maximo Borilla,
of the crime charged in Criminal Case No. 3162-
P is not a bar to the prosecution of Civil Case No.
B-134 for damages based on quasi-delict The
source of the obligation sought to be enforced in
Civil Case No. B-134 is quasi-delict, not an act or
omission punishable by law. Under Article 1157
of the Civil Code of the Philippines, quasi-delict
and an act or omission punishable by law are two
different sources of obligation.
Moreover, for the petitioners to prevail in the
action for damages, Civil Case No. B-134, they
have only to establish their cause of action by
preponderance of the evidence.
WHEREFORE, the order of dismissal appealed
from is hereby set aside and Civil Case No. B-134
is reinstated and remanded to the lower court for
further proceedings, with costs against the private
respondents.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee,
vs.
DOMINGO PANITERCE, Accused-Appellant.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Before Us is an appeal filed by Domingo
Paniterce y Martinez (Paniterce) assailing the
Decision1 dated August 22, 2008 of the Court of
Appeals in CA-G.R. CR-H.C. No. 01001, entitled
People of the Philippines v. Domingo Paniterce,"
which affirmed with modification the Decision
dated March 2, 2005 of the Regional Trial Court
(RTC) of Iriga City, Branch 37, in Criminal Case
Nos. 6076, 6077, 6078, 6079, 6080 and
6081.2 The RTC found Paniterce guilty beyond
reasonable doubt of the crimes of Rape and Acts
of Lasciviousness.
In four Informations, all dated February 11, 2002,
4th Assistant Provincial Prosecutor Hedy S.
Aganan charged Paniterce with four counts of
rape of his daughter AAA. Except for the dates3 of
the commission of the rapes, the four
Informations identically read:
Criminal Case Nos. 6076, 6077, 6078 and 6079
That sometime in the year 1997 in x x x
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
with grave abuse of confidence being the father
of the offended party with lewd designs by means
of force and intimidation, did then and there
willfully, unlawfully and feloniously succeed in
having carnal knowledge with his daughter AAA,
a 10 year-old minor, against her will and without
her consent, to her damage and prejudice in such
amount as may be awarded by the Honorable
Court.4
In two Amended Informations, both dated
December 3, 2002, Assistant Provincial
Prosecutor Daniel M. Salvadora charged
Paniterce with two counts of rape of his other
daughter BBB. Aside from the dates5 of the
commission of the rapes, the Informations
similarly state:
Criminal Case Nos. 6080 and 6081
That on or about 6:00 o’clock in the morning of
August 26, 2000 x x x Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, with grave abuse of confidence
being the father of the offended party with lewd
designs by means of force and intimidation, did
then and there willfully, unlawfully and feloniously
committed RAPE upon his 12- year old daughter
BBB by then and there, caressing and inserting
his finger inside her vagina against her will and
without her consent, to her damage and prejudice
in such amount as may be awarded by the
Honorable Court.6
When arraigned, Paniterce pleaded not guilty to
all the charges.
After trial on the merits, the RTC rendered a
Decision on March 2, 2005, with the following
dispositive portion:
WHEREFORE, in view of all the foregoing, the
prosecution having proved the guilt of accused
Domingo Paniterce of the crimes of Rape as
charged in the aforementioned Informations, he
is hereby sentenced to suffer the penalties of
imprisonment, to wit:
In Criminal Case No. 6076, he is hereby
sentenced to suffer the penalty of imprisonment
ranging from FOUR (4) MONTHS and ONE (1)
DAY of arresto mayor as minimum to FOUR (4)
YEARS, TWO (2) MONTHS AND ONE (1) DAY
of prision correccional as maximum for Acts of
Lasciviousness under Article 336 of the Revised
Penal Code as the alleged molestation took place
in April 1997 and RA 8353 took effect only on
October 22, 1997;
In Criminal Cases Nos. 6077, 6078, 6080 and
6081, he is hereby sentenced to suffer in each
every case the penalty of imprisonment ranging
from FOUR (4) YEARS, TWO (2) MONTHS and
ONE (1) DAY of prision correccional as minimum
to EIGHT (8) YEARS and ONE (1) DAY of prision
mayor as maximum and to pay AAA and BBB
Fifty Thousand Pesos (₱50,000.00) each as
moral damages and Fifty Thousand Pesos
(₱50,000.00) as exemplary damages;
In Criminal Case No. 6079, he is hereby
sentenced to suffer the penalty of DEATH and to
pay AAA the amount of Fifty Thousand Pesos
(₱50,000.00) as moral damages and Fifty
Thousand Pesos (₱50,000.00) as exemplary
damages.7
On June 4, 2005, Paniterce was committed to the
Bureau of Corrections in Muntinlupa City.
Paniterce filed an appeal with the Court of
Appeals, which was docketed as CA-G.R. CR-
H.C. No. 01001. The appellate court rendered a
Decision on August 22, 2008 affirming the RTC
judgment with modifications, to wit:
WHEREFORE, the Decision of the trial court
convicting DOMINGO PANITERCE is hereby
AFFIRMED with the following modifications:
1. For Acts of Lasciviousness, in Criminal
Cases Nos. 6077, 6078, 6080 and 6081,
appellant is hereby sentenced to suffer in
each [and] every case an indeterminate
prison term of six (6) months of arresto
mayor, as minimum, to six (6) years
of prision correccional, as maximum and
to pay AAA and BBB Fifty Thousand
Pesos (₱50,000.00) each as moral
damages and Fifty Thousand Pesos
 (₱50,000.00) as exemplary damages;
and
2. For Rape, in Criminal Case No. 6079,
appellant is hereby sentenced to suffer
the penalty of Reclusion Perpetua and to
pay AAA the amount of Fifty Thousand
Pesos (₱50,000.00) as moral damages
and Fifty Thousand Pesos (₱50,000.00)
as exemplary damages.
The decision of the trial court finding appellant
guilty for Acts of Lasciviousness in Criminal Case
No. 6076 is AFFIRMED without any
modification.8
On 16 September 2008, Paniterce, through
counsel, filed a Notice of Appeal with the Court of
Appeals conveying his intention to appeal to us
the aforementioned Decision dated August 22,
2008 of the appellate court. The Court of Appeals
gave due course to Paniterce’s Notice of Appeal
on September 23, 2008,9 and directed its Judicial
Records Division to elevate to us the original
records in CA-G.R. CR-H.C. No. 01001.
On 15 April 2009, we required10 the parties to file
their supplemental briefs, and the Director of the
Bureau of Corrections to confirm the commitment
of Paniterce at the Bureau of Corrections and
submit his report thereon within 10 days from
notice.
Paniterce filed his Supplemental Brief11 on June
16, 2009, while the Office of the Solicitor General
filed a Manifestation12 on June 18, 2009 stating
that it would no longer file a supplemental brief
considering that Paniterce did not raise any new
issue in his appeal. On July 22, 2009, we
submitted G.R. No. 186382 for resolution.
However, in a letter dated October 12, 2009, Julio
A. Arciaga, the Assistant Director for Prisons and
Security of the Bureau of Corrections, informed
us that Paniterce had died on August 22, 2009 at
the New Bilibid Prison Hospital. Paniterce’s
Death Certificate was attached to said letter.
Given Paniterce’s death, we are now faced with
the question of the effect of such death on the
present appeal.
Paniterce’s death on August 22, 2009, during the
pendency of his appeal, extinguished not only his
criminal liabilities for the rape and acts of
lasciviousness committed against his daughters,
but also his civil liabilities solely arising from or
based on said crimes.1awphi1
According to Article 89(1) of the Revised Penal
Code, criminal liability is totally extinguished:
1. By the death of the convict, as to the personal
penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of
the offender occurs before final judgment.
Applying the foregoing provision, we laid down
the following guidelines in People v. Bayotas13:
1. Death of the accused pending appeal
of his conviction extinguishes his criminal
liability as well as the civil liability based
solely thereon. As opined by Justice
Regalado, in this regard, "the death of the
accused prior to final judgment
terminates his criminal liability and only
the civil liability directly arising from and
based solely on the offense committed,
i.e., civil liability ex delicto in senso
strictiore."
2. Corollarily, the claim for civil liability
survives notwithstanding the death of
(the) accused, if the same may also be
predicated on a source of obligation other
than delict. Article 1157 of the Civil Code
enumerates these other sources of
obligation from which the civil liability
may arise as a result of the same act or
omission:
a) Law
b) Contracts
c) Quasi-contracts
xxxx
e) Quasi-delicts
3. Where the civil liability survives, as
explained in Number 2 above, an action
for recovery therefor may be pursued but
only by way of filing a separate civil
action and subject to Section 1, Rule 111
of the 1985 Rules on Criminal Procedure
as amended. This separate civil action
may be enforced either against the
executor/administrator or the estate of
the accused, depending on the source of
obligation upon which the same is based
as explained above.
4. Finally, the private offended party need
not fear a forfeiture of his right to file this
separate civil action by prescription, in
cases where during the prosecution of
the criminal action and prior to its
extinction, the private-offended party
instituted together therewith the civil
action. In such case, the statute of
limitations on the civil liability is deemed
interrupted during the pendency of the
criminal case, conformably with the
provisions of Article 1155 of the Civil
Code that should thereby avoid any
apprehension on a possible privation of
right by prescription.14
Clearly, it is unnecessary for the Court to rule on
Paniterce’s appeal. Whether or not he was guilty
of the crimes charged has become irrelevant
since, following Article 89(1) of the Revised Penal
Code and our disquisition in Bayotas, even
assuming Paniterce had incurred criminal
liabilities, they were totally extinguished by his
death. Moreover, because Paniterce’s appeal
was still pending and no final judgment of
conviction had been rendered against him when
he died, his civil liabilities arising from the crimes,
being civil liabilities ex delicto, were likewise
extinguished by his death.

Consequently, the appealed Decision dated

August 22, 2008 of the Court of Appeals – finding
Paniterce guilty of rape and acts of
lasciviousness, sentencing him to imprisonment,
and ordering him to indemnify his victims – had
become ineffectual.

WHEREFORE, in view of the death of accused-

appellant Domingo Paniterce y Martinez, the
Decision dated August 22, 2008 of the Court of
Appeals in CA-G.R. CR-H.C. No. 01001 is SET
ASIDE and Criminal Case Nos. 6076, 6077,
6078, 6079, 6080, and 6081 before the Regional
Trial Court of Iriga City are DISMISSED. Costs de
oficio.

SO ORDERED.
PAZ T. BERNARDO v. PEOPLE
BRION, J.:
We resolve the Petition for Review on Certiorari
filed by accused petitioner Paz T. Bernardo
(Bernardo) under Rule 45 of the Rules of Court,
assailing the Court of Appeals (CA) August 31,
2007 decision[1] and the March 14, 2008
resolution[2] in CA-G.R. CR 28721, entitled
"People of the Philippines v. Paz T. Bernardo."
The appellate court affirmed the decision of the
Regional Trial Court (RTC), Branch 56, Makati
City, finding Bernardo guilty beyond reasonable
doubt of five (5) counts of violation of Batas
Pambansa Blg. 22 (B.P. 22).
The Factual Antecedents
In June 1991, Bernardo obtained a loan from the
private complainant Carmencita C. Bumanglag
(Bumanglag) in the amount of P460,000.00
payable on or before its maturity on November
30, 1991. That loan was evidenced by a
promissory note[3] Bernardo and her husband
had executed, whereby the couple solidarity
bound themselves to pay the loan with
corresponding interest at 12% per annum
payable upon default.[4] As additional security,
Bernardo gave Bumanglag the owner's duplicate
copy of Transfer Certificate of Title No. (T-1034)
151841.
Prior to the loan's maturity, Bernardo took back
the title from Bumanglag to use as a collateral in
another transaction. In place of the title, Bernardo
issued to Bumanglag the following five (5) Far
East Bank and Trust Company (FEBTC)
checks,[5] posted on different dates in June 1992,
covering the loan's aggregate amount:
Check No. Amount Date
FEBTC No.Php
June 1, 1992
391033 100,000.00
FEBTC No.Php
June 8, 1992
391034 100,000.00 Following Bernardo's cross-examination, the
FEBTC No.Php June 15, RTC reset the hearing for redirect examination to
391035 100,000.00 1992 September 4, 1996.[6] That hearing, however,
FEBTC No.Php June 22, was again reset to April 3, 1997, in view of the
391036 100,000.00 1992 absence of Bernardo's counsel. When Bernardo
FEBTC No. June 29, and her counsel again failed to appear during the
Php 60,000.00
391037 1992 April 3, 1997 hearing, and in view of the
In September 1992, Bumanglag deposited these numerous previous postponements the defense
checks to Bernardo's account but they were had asked for, the RTC considered her right to
dishonored; the reason given was "Account present additional evidence waived.
Closed." Bumanglag thus sent Bernardo a notice
informing her of the dishonor of the checks. The Bernardo moved for reconsideration but the RTC
demand went unheeded, prompting Bumanglag denied her motion. The RTC, however, gave her
to initiate a criminal complaint against Bernardo ten (10) days within which to submit her formal
with the Office of the City Prosecutor of Makati for offer of evidence, which she failed to do. As a
five (5) counts of violation of B.P. 22. result, the RTC declared that Bernardo had
waived her right to submit her formal offer of
After the requisite preliminary investigation, the evidence.
Office of the City Prosecutor of Makati City found
probable cause to indict Bernardo for the
offenses charged. Bernardo entered a not guilty RTC Ruling
plea on arraignment.
On May 28, 2003, the RTC issued its ruling
The prosecution rested its case on September finding Bernardo guilty of five counts of violation
21, 1994. Bernardo took the witness stand only of B.P. 22.[7] The RTC held that Bernardo failed
on May 9, 1996, to present her defense evidence. to substantiate her claim of payment. The RTC
further ruled that it is not the nonpayment of the
In her testimony, Bernardo argued that she could obligation but the issuance of a worthless check
not be held liable for violation of B.P. 22 because that B.P. 22 punishes.
the questioned checks were presented beyond
the 90-day period provided under the law. She The RTC sentenced Bernardo to one (1) year
also denied having received any notice of imprisonment for each count of the offense
dishonor, which she insisted was essential to charged and ordered her to indemnify Bumanglag
prove the material element of knowledge of the amount of P460,000.00, plus 12% interest
insufficiency of funds. and 5% penalty charges, from December 1, 1991,
until full payment.[8]
In any case, she maintained that the checks were
never meant to be presented as she had always
paid her loans in cash, which she claimed to have CA Ruling
done in the aggregate amount of P717,000.00.
According to Bernardo, although Bumanglag On appeal, the CA affirmed Bernardo's conviction
returned to her the title to the property after but deleted the penalty of imprisonment and in
payment, Bumanglag never bothered to issue her lieu thereof, imposed a P460,000.00 fine.[9] The
receipts. Bumanglag did not return the checks CA also retained the civil indemnity of
either. P460,000.00 that the lower court imposed, plus
12% interest from the time of the institution of the
criminal charges until full payment.[10]
In denying Bernardo's appeal, the CA noted that
Bernardo failed to adduce sufficient evidence of
payment. The CA further held that the 90-day
period within which to present a check under B.P.
22 is not an element of the crime.
The CA also did not recognize any merit in
Bernardo's claim that she had been denied due
process, in view of the RTC's order waiving her
right to present additional evidence.[11] To the CA,
Bernardo had sufficient opportunity to present her
defense but did not avail of these opportunities.
Instead, she and her counsel moved for
postponement at least nine (9) times, not to
mention their subsequent failure to appear four
(4) times despite due notice of the scheduled
hearings. These developments led the RTC to
consider Bernardo's right to present additional
evidence waived.[12]
Bernardo moved for reconsideration but the CA
denied her motion;[13] hence, the present
petition.[14]
The Petition and Comment
Bernardo insists in her present petition[15] that the
CA erred in finding that she had been accorded
due process; she was denied the full opportunity
to present her defense and was thus deprived of
the chance to prove her innocence of the crime
charged.
She likewise avers that the CA erred in affirming
her criminal and civil liabilities because the
prosecution failed to prove her knowledge of
insufficiency of funds. According to Bernardo,
there was no violation of B.P. 22 because the
checks were presented beyond the mandatory
90-day period. Moreover, Bernardo claimed that
these subject checks were issued without
consideration as she had already paid the loan.
The Office of the Solicitor General (OSG) posits
in its Comment that Bernardo was given the
opportunity to present her defense
evidence.[16] Citing Wong v. CA,[17] the OSG
further points out that the 90-day period provided
in the law is not an element of the offense;[18] it is
simply one of the conditions to establish a prima
facie presumption of knowledge of lack of
funds.[19]
The OSG also claims that Bumanglag failed to
substantiate her claim that she had settled the
obligation.[20] In any event, the OSG asserted
B.P. 22 penalizes the act of making and issuing a
worthless check, not the nonpayment of the
obligation.[21]
Subsequent Developments
On March 14, 2011, Bernardo's counsel informed
the Court of the petitioner's death on February 3,
2011, and provided, as well, the names of her
heirs (her widower, Mapalad Bernardo, and
children: Emilie B. Ko, Marilou B. Valdez, Edwin
T. Bernardo, and Gervy B. Santos), and their
address (26 Magdiwang St., Real Village 2,
Tandang Sora, Quezon City). In due course, in
our March 7, 2012 Resolution,[22] we required
Bernardo's heirs to appear as substitutes for the
deceased Bernardo in the present petition for
purposes of Bernardo's civil liability.
Bernardo's heirs moved to reconsider our March
7, 2012 resolution. They argued that Bernardo's
death extinguished her civil liability. In the
alternative, they contended that any civil liability
should be settled in a separate civil case.
We denied the heirs' motion in our June 27, 2012
resolution. We explained that Bernardo's civil
liability survived her death as it is based on
contract. Moreover, we observed that it would be
costly, burdensome, and time-consuming to
dismiss the present case and require the
Bumanglags to file a separate civil action.
The Court's Ruling
We deny the petition for lack of merit.
Preliminary Matters
Classes of Civil Liabilities
An act or omission causing damage to another
may give rise to several distinct civil liabilities on
the part of the offender.[23] If the conduct
constitutes a felony, the accused may be held
civilly liable under Article 100 of the Revised
Penal Code (ex delicto).[24] This particular civil
liability due the offended party is rooted on facts
that constitute a crime.[25] Otherwise stated, civil
liability arises from the offense charged.[26] It
is not required that the accused be convicted to
be entitled to civil liability based on delict. As long
as the facts constituting the offense charged are
established by preponderance of evidence, civil
liability may be awarded.[27] Moreover, the civil
liability based on delict is 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.[28]
The same act or omission, however, may also
give rise to independent civil liabilities based
on other sources of obligation. Article 1157 of the
Civil Code enumerates these other sources of
obligation from which the civil liability may arise
as a result of the same act or omission: (a) law
(b) contracts; (c) quasi-contracts, and (d) quasi-
delicts. Among these are the civil liabilities for
intentional torts under Articles 32[29] and 34[30] of
the Civil Code and for quasi-delicts under Article
2176 of Civil Code.[31] For conduct constituting
defamation, fraud, and physical injuries, the Civil
Code likewise grants the offended party the right
to institute a civil action independently of the
criminal action under Article-33 of the Civil Code.
Thus, it is entirely possible for one to be free from
civil ability directly arising from a violation of the
penal law and to still be liable civilly based on
contract or by laws other than the criminal
law.[32] Such civil actions may proceed
independently of the criminal proceedings and
regardless of the result of the criminal
action,[33] subject however, to the caveat that the
offended party cannot recover damages twice for
the same act or omission.[34]
Bernardo's civil liability may be enforced in the
present case despite her death.
As a general rule, the death of an accused
pending appeal extinguishes her criminal liability
and the corresponding civil liability based solely
on the offense (delict). The death amounts to an
acquittal of the accused based on the
constitutionally mandated presumption of
innocence in her favor, which can be overcome
only by a finding of guilt - something that death
prevents the court from making.[35] In a sense,
death absolves the accused from any earthly
responsibility arising from the offense — a
divine act that no human court can reverse,
qualify, much less disregard.[36] The intervention
of death of the accused in any case is an
injunction by fate itself so that no criminal liability
and the corresponding civil liability arising from
the offense should be imposed on him.[37]
The independent civil liabilities, however, survive
death and an action for recovery therefore may
be generally pursued but only by filing a
separate civil action and subject to Section 1,
Rule 111 of the Rules on Criminal Procedure as
amended.[38] This separate civil action may be
enforced against the estate of the accused.[39]
In B.P. 22 cases, the criminal action shall be
deemed to include the corresponding civil
actions. Instead of instituting two separate cases,
only a single suit is filed and tried.[40] This rule was
enacted to help declog court dockets, which had
been packed with B.P. 22 because creditors used
the courts as collectors. As we observed in Hyatt
v. Asia Dynamic Electrix Corp.:[41]
Because ordinarily no filing fee is charged in
criminal cases for actual damages, the payee
uses the intimidating effect of a criminal charge to
collect his credit gratis and sometimes, upon
being paid, the trial court is not even informed
thereof. The inclusion of the civil action in the
criminal case is expected to significantly lower the
number of cases filed before the courts for
collection based on dishonored checks. It is also
expected to expedite the disposition of these
cases. Instead of instituting two separate cases,
one for criminal and another for civil, only a single
suit shall be filed and tried. It should be stressed
that the policy laid down by the Rules is to
discourage the separate filing of the civil action.
As a necessary consequence of this special rule,
the civil liabilities arising from the issuance of a
worthless check are deemed instituted in a case
for violation of B.P. 22; the death of Bernardo did
not automatically extinguish the action. The
independent civil liability based on contract,
which was deemed instituted in the criminal
action for B.P. 22, may still be enforced against
her estate in the present case. We thus rule on
the present action to determine Bumanglag's civil
liability.
Substantive Aspect
Bernardo was not denied due process.
We meticulously went over the entire record, and
confirmed that Bernardo had not at all been
deprived of her day in court. She was afforded
ample opportunity to present evidence in her
defense but she did not give this case the serious
attention it deserved. For good reason - i.e., the
repeated absences of Bernardo and her counsel
- the trial court eventually considered her right to
present defense evidence waived.
To be sure, the postponement of the trial of a
case to allow the presentation of evidence is a
matter that lies with the discretion of the trial
court; but it is a discretion that must be exercised
wisely, considering the peculiar circumstances of
each case and with a view to doing substantial
justice.[42] In the present case, the records show
that the RTC took all the steps necessary to
safeguard Bernardo's rights and to accord her the
opportunity to present whatever evidence she
had in her defense.
In particular, the prosecution formally rested its
case on September 21, 1994. Bernardo, through
counsel, thereupon moved for leave to file a
demurrer to evidence prompting the RTC to reset
the hearing for initial presentation of defense
evidence to December 15 and 20,
1994.[43] Bernardo filed her demurrer to evidence
on November 10, 1994,[44] after previously
requesting the RTC for a 10-day extension.
The pendency of the demurrer to evidence
prompted several resettings until the RTC finally
denied it on March 30, 1995.[45] The RTC then set
the initial presentation of defense evidence on
April 11, 18, and 25, 1995,[46] but these were reset
to May 9, 18, and 25, 1995,[47]at the motion of
Bernardo's counsel who expressed his desire to
seek relief from the CA for the denial of the
demurrer.
Despite the RTC's accommodation, Bernardo's
counsel failed to appear during the May 9,
1995 hearing as he was busy attending to the
canvassing of votes in Quezon
City.[48] Eventually, the initial presentation of
defense evidence was reset to July 20, 1995, and
August 3, 1995.[49]
Notably, during the July 20, 1995 hearing,
Bernardo's counsel again moved for another
resetting as he was not prepared to conduct a
direct examination.[50] Despite this flimsy
ground, the RTC granted the request and allowed
Bernardo to testify on August 3, 1995.

Bernardo and her counsel, however, failed to
appear during the August 3, 1995 hearing
despite due notice, prompting the RTC to waive
their right to present defense
evidence.[51] Bernardo moved for reconsideration
and the RTC granted her motion in the interest of
substantial justice.[52] Thus, the hearing for the
presentation of defense evidence was reset to
November 28, 1995.[53]
Bernardo and her counsel again failed to
appear during the November 28, 1995 hearing,
despite due notice, prompting the RTC again to
consider that Bernardo had waived her right to
present defense evidence.[54]
Bernardo again moved for reconsideration on
the ground that it was the first time she and
her counsel were absent at the same
time.[55] Despite this hollow excuse, the RTC
granted the motion in the spirit of compassionate
justice and gave Bernardo the final
opportunity to present her defense
evidence.[56] The parties mutually agreed to set
the hearing for initial presentation of defense
evidence on April 18, 1996.[57]
Bernardo again failed to appear during the
scheduled April 18, 1996 hearing.58 Although
Bernardo did not offer any excuse for this
absence,[59] RTC exercised compassion and
permitted Bernardo to testify, as she did in fact
testify, on May 9, 1996,[60] - one (1) year and eight
(8) months after the prosecution had rested its
case. At the conclusion of the cross-
examination, the parties mutually agreed to
adjourn the hearing for September 4, 1996, for
redirect examination.[61]
Bernardo's counsel, however, failed to appear
during the scheduled September 4, 1996 hearing,
prompting the RTC to consider her failure as a
waiver on her part to present additional
evidence.[62] Bernardo moved for
reconsideration; she claimed that her counsel
had to attend another hearing in a different sala.
Why Bernardo's counsel accepted another
engagement on the same day, which was in
conflict with the RTC's hearing dates, was never
properly explained. Nonetheless, the RTC
granted the motion to give her the last
chanceto complete the presentation of
evidence on April 3, 17, and 22, 1997.[63]
Despite the RTC's warning, Bernardo and her
counsel again failed to appear at the April
3,1997 hearing.[64] Instead, they filed a motion to
reset because Bernardo's counsel was to attend
a wedding in the United States of
America.[65] This time, the RTC, mindful that there
should be a limit to postponements, ordered the
case submitted for decision sans the presentation
of evidence from the defense.[66]
Under these facts, the RTC was clearly driven by
Bernardo and her counsel's repeated failure,
without justifiable reason, to appear at the
scheduled hearing dates.[67] The order
considering Bernardo's right to present evidence
waived, followed as a necessary and unavoidable
consequence. As we held in People v. Angco:[68]
His failure to appear with counsel of his choice at
the hearing of the case, notwithstanding repeated
postponements and warnings that failure to so
appear would be deemed a waiver to present
evidence in his defense, and that the case would
be deemed submitted for judgment upon the
evidence presented by the prosecution, was
sufficient legal justification for the trial court to
proceed and render judgment upon the evidence
before it.
The records show that the RTC leniently granted
repeated continuances to safeguard Bernardo's
rights as an accused. But Bernardo obviously did
not recognize the need for expeditious handling
of her case and was already trifling with judicial
process.[69]
Bernardo failed to adduce sufficient
evidence of payment; thus she is civilly
liable.
Bernardo's death pending appeal converted the
present action to purely an enforcement of the
civil liability incurred. In particular, the focal
issue in the present petition is no longer
Bernardo's criminal liability for violation of
B.P. 22 but her civil liability, which is
principally based on contract and the
corresponding damage Bumanglag suffered
due to Bernardo's failure to pay. Under these
circumstances, Bernardo's B.P. 22 defense (that
the checks were presented beyond the 90-day
period and that she never received a notice of
dishonor) were no longer relevant.
Jurisprudence tells us that one who pleads
payment carries the burden of proving
it.[70] Indeed, once the existence of an
indebtedness is established by evidence, the
burden of showing with legal certainty that the
obligation has been discharged by payment rests
with the debtor.[71] After the debtor introduces
evidence of payment, the burden of going forward
with the evidence - as distinct from the general
burden of proof - again shifts to the creditor, who
then labors under a duty to produce evidence to
show nonpayment.[72]
In the present case, the existence of the
obligation to pay has sufficiently been established
through the promissory note[73] and the
checks[74] submitted in evidence. Notably,
Bernardo even confirmed due execution of these
instruments during her testimony. During the offer
of Bernardo's testimony, her counsel stated:
ATTY. MIRAVITE:
With the court's permission. Your Honor, we are
presenting the witness for the following purposes:
to x x x show that she borrowed money from
[Bumanglag] x x x and that in 1991 her total
obligation reached Php460,000.000; x x x that Bumanglag, who had to demand the satisfaction
all the checks issued by the accused were Bernardo's principal defense rests on the of Bernardo's obligation when the checks
only as proof of her obligation to the private supposition that she had settled the obligation, became due and were subsequently dishonored
complainant x x x.[75] [emphasis supplied] which settlement led Bumanglag to return to her by the drawee bank. Bumanglag's possession of
the title to the property.[77] A meticulous review, of the promissory note, coupled with the dishonored
the records, however, firmly dissuades us from checks, strongly buttresses her claim that
In the course of Bernardo's testimony, she even believing Bernardo's bare allegation. Bernardo's obligation had not been
confirmed the issuance of the checks and extinguished.[81]
promissory note. In particular, she stated: At the outset, the handwritten note[78] evidencing
that transaction, which was submitted by the We thus find that the weight of evidence
prosecution in evidence, states that: preponderates in favor of Bumanglag's position
ATTY. MIRAVITE: that Bernardo has not yet settled her
obligation.[82]
Q: I am showing to you this promissory note
marked as Exhibit H for the prosecution and 10/28/91 WHEREFORE, premises considered, the August
Exhibit 2 for the defense. There appears a Received original copy of Title No. T-151841 in 31, 2007 decision of the Court of Appeals in CA-
signature over the name Paz T. Bernardo at the the name of Mapalad Bernardo for loan purposes G.R.' CR No. 28721
middle portion thereof, do you know whose to pay Mrs. Carmencita Bumanglag is AFFIRMEDwith MODIFICATION. The heirs of
signature is that? Paz T. Bernardo are ordered to pay the amount
of P460,000.00, with interest at 12% per annum
A: It is mine sir. Sgd from the time of the institution of criminal charges
in court.
xxxx Paz T. Bernardo
The total amount adjudged shall earn interest at
Q: This document, Madame Witness, mentions of 10/28/91 the rate of 6% per annum on the balance and
your loan obligations of Php 460,000.00. Can you interest due, from the finality of this Decision until
tell us, Madame Witness, what is covered by this fully paid.
promissory note? The document evidencing this transaction
strongly suggests that she asked for the title from The fine in the amount of P460,000.00
xxxx Bumanglag to obtain another loan whose is DELETED.
proceeds she would use to pay Bumanglag.
A: The promissory note covers the principal loan, Notably, the defense even admitted the SO ORDERED.
plus interest and penalties, sir. genuineness of Bernardo's signature in this
document.[79] When Bernardo therefore failed to
Q: So, are you saying that this promissory note of fulfill her promise to pay, Bumanglag had to
Php 460,000.00 was your total obligation as of request for checks to secure the obligation, which
June 1991 and includes all other charges? checks were eventually dishonored upon
presentment.
A: Yes, sir.
Under the circumstances, we find that Bernardo's
x xxx claim of payment was nothing more than an
allegation unsupported by adequate proof. If
Q: Madam Witness, can you remember when you indeed there had been payment, she should have
issued the checks subject of these cases? redeemed or taken back the checks and the
promissory note, in the ordinary course of
A: It was on June 20, 1991, sir.[76] business.[80] Instead, the checks and the
promissory note remained in the possession of
THE OFFICE OF THE SOLICITOR
GENERAL, Petitioner,
vs.
AYALA LAND INCORPORATED, ROBINSON'S
LAND CORPORATION, SHANGRI-LA PLAZA
CORPORATION and SM PRIME HOLDINGS,
INC., Respondents.
DECISION
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on
Certiorari,1 under Rule 45 of the Revised Rules of
Court, filed by petitioner Office of the Solicitor
General (OSG), seeking the reversal and setting
aside of the Decision2 dated 25 January 2007 of
the Court of Appeals in CA-G.R. CV No. 76298,
which affirmed in toto the Joint Decision3 dated
29 May 2002 of the Regional Trial Court (RTC) of
Makati City, Branch 138, in Civil Cases No. 00-
1208 and No. 00-1210; and (2) the
Resolution4 dated 14 March 2007 of the appellate
court in the same case which denied the Motion
for Reconsideration of the OSG. The RTC
adjudged that respondents Ayala Land
Incorporated (Ayala Land), Robinsons Land
Corporation (Robinsons), Shangri-la Plaza
Corporation (Shangri-la), and SM Prime
Holdings, Inc. (SM Prime) could not be obliged to
provide free parking spaces in their malls to their
patrons and the general public.
Respondents Ayala Land, Robinsons, and
Shangri-la maintain and operate shopping malls
in various locations in Metro Manila. Respondent
SM Prime constructs, operates, and leases out
commercial buildings and other structures,
among which, are SM City, Manila; SM
Centerpoint, Sta. Mesa, Manila; SM City, North
Avenue, Quezon City; and SM Southmall, Las
Piñas.
The shopping malls operated or leased out by
respondents have parking facilities for all kinds of
motor vehicles, either by way of parking spaces purposes: (1) to inquire into the legality of the
inside the mall buildings or in separate buildings prevalent practice of shopping malls of charging
and/or adjacent lots that are solely devoted for parking fees; (2) assuming arguendo that the
use as parking spaces. Respondents Ayala Land, collection of parking fees was legally authorized,
Robinsons, and SM Prime spent for the to find out the basis and reasonableness of the
construction of their own parking facilities. parking rates charged by shopping malls; and (3)
Respondent Shangri-la is renting its parking to determine the legality of the policy of shopping
facilities, consisting of land and building malls of denying liability in cases of theft, robbery,
specifically used as parking spaces, which were or carnapping, by invoking the waiver clause at
constructed for the lessor’s account. the back of the parking tickets. Said Senate
Committees invited the top executives of
Respondents expend for the maintenance and respondents, who operate the major malls in the
administration of their respective parking country; the officials from the Department of
Trade and Industry (DTI), Department of Public
facilities. They provide security personnel to
protect the vehicles parked in their parking Works and Highways (DPWH), Metro Manila
Development Authority (MMDA), and other local
facilities and maintain order within the area. In
government officials; and the Philippine Motorists
turn, they collect the following parking fees from
Association (PMA) as representative of the
the persons making use of their parking facilities,
consumers’ group.
regardless of whether said persons are mall
patrons or not:
After three public hearings held on 30 September,
3 November, and 1 December 1999, the afore-
Respondent Parking Fees
mentioned Senate Committees jointly issued
Ayala Land On weekdays, ₱25.00 Senate Committee
for the first four hours Report No. 2255 on 2 May
and ₱10.00
2000, in which they concluded:
for every succeeding hour; on weekends, flat rate of
₱25.00 per day
In view of the foregoing, the Committees find that
Robinsons ₱20.00 for the first three hours and
the collection ₱10.00fees
of parking for by
every
shopping malls is
succeeding hour
contrary to the National Building Code and is
Shangri-la Flat rate of ₱30.00 per therefor
day [sic] illegal. While it is true that the Code
merely requires malls to provide parking spaces,
SM Prime ₱10.00 to ₱20.00 (depending on whether
without specifying the parking
whether it is free or not, both
space is outdoors or indoors)
Committeesfor thebelieve
first three
thathours
the and
reasonable and
59 minutes, and ₱10.00 for interpretation
logical every succeeding of thehour or is that the
Code
fraction thereof parking spaces are for free. This interpretation is
not only reasonable and logical but finds support
in the actual practice in other countries like the
The parking tickets or cards issued by
United States of America where parking spaces
respondents to vehicle owners contain the
owned and operated by mall owners are free of
stipulation that respondents shall not be
charge.
responsible for any loss or damage to the
vehicles parked in respondents’ parking facilities.
Figuratively speaking, the Code has
"expropriated" the land for parking – something
In 1999, the Senate Committees on Trade and
similar to the subdivision law which require
Commerce and on Justice and Human Rights
developers to devote so much of the land area for
conducted a joint investigation for the following
parks.
Moreover, Article II of R.A. No. 9734 (Consumer
Act of the Philippines) provides that "it is the
policy of the State to protect the interest of the
consumers, promote the general welfare and
establish standards of conduct for business and
industry." Obviously, a contrary interpretation
(i.e., justifying the collection of parking fees)
would be going against the declared policy of
R.A. 7394.
Section 201 of the National Building Code gives
the responsibility for the administration and
enforcement of the provisions of the Code,
including the imposition of penalties for
administrative violations thereof to the Secretary
of Public Works. This set up, however, is not
being carried out in reality.
In the position paper submitted by the
Metropolitan Manila Development Authority
(MMDA), its chairman, Jejomar C. Binay,
accurately pointed out that the Secretary of the
DPWH is responsible for the
implementation/enforcement of the National
Building Code. After the enactment of the Local
Government Code of 1991, the local government
units (LGU’s) were tasked to discharge the
regulatory powers of the DPWH. Hence, in the
local level, the Building Officials enforce all rules/
regulations formulated by the DPWH relative to
all building plans, specifications and designs
including parking space requirements. There is,
however, no single national department or
agency directly tasked to supervise the
enforcement of the provisions of the Code on
parking, notwithstanding the national character of
the law.6
Senate Committee Report No. 225, thus,
contained the following recommendations:
In light of the foregoing, the Committees on Trade
and Commerce and Justice and Human Rights
hereby recommend the following:
1. The Office of the Solicitor General
should institute the necessary action to
enjoin the collection of parking fees as
well as to enforce the penal sanction
provisions of the National Building Code.
The Office of the Solicitor General should
likewise study how refund can be
exacted from mall owners who continue
to collect parking fees.
2. The Department of Trade and Industry
pursuant to the provisions of R.A. No.
7394, otherwise known as the Consumer
Act of the Philippines should enforce the
provisions of the Code relative to parking.
Towards this end, the DTI should
formulate the necessary implementing
rules and regulations on parking in
shopping malls, with prior consultations
with the local government units where
these are located. Furthermore, the DTI,
in coordination with the DPWH, should
be empowered to regulate and supervise
the construction and maintenance of
parking establishments.
3. Finally, Congress should amend and
update the National Building Code to
expressly prohibit shopping malls from
collecting parking fees by at the same
time, prohibit them from invoking the
waiver of liability.7
Respondent SM Prime thereafter received
information that, pursuant to Senate Committee
Report No. 225, the DPWH Secretary and the
local building officials of Manila, Quezon City, and
Las Piñas intended to institute, through the OSG,
an action to enjoin respondent SM Prime and
similar establishments from collecting parking
fees, and to impose upon said establishments
penal sanctions under Presidential Decree No.
1096, otherwise known as the National Building
Code of the Philippines (National Building Code),
and its Implementing Rules and Regulations
(IRR). With the threatened action against it,
respondent SM Prime filed, on 3 October 2000, a
Petition for Declaratory Relief8 under Rule 63 of
the Revised Rules of Court, against the DPWH
Secretary and local building officials of Manila,
Quezon City, and Las Piñas. Said Petition was
docketed as Civil Case No. 00-1208 and
assigned to the RTC of Makati City, Branch 138,
presided over by Judge Sixto Marella, Jr. (Judge
Marella). In its Petition, respondent SM Prime
prayed for judgment:
a) Declaring Rule XIX of the
Implementing Rules and Regulations of
the National Building Code as ultra vires,
hence, unconstitutional and void;
b) Declaring [herein respondent SM
Prime]’s clear legal right to lease parking
spaces appurtenant to its department
stores, malls, shopping centers and other
commercial establishments; and
c) Declaring the National Building Code
of the Philippines Implementing Rules
and Regulations as ineffective, not
having been published once a week for
three (3) consecutive weeks in a
newspaper of general circulation, as
prescribed by Section 211 of Presidential
Decree No. 1096.
[Respondent SM Prime] further prays for such
other reliefs as may be deemed just and equitable
under the premises.9
The very next day, 4 October 2000, the OSG filed
a Petition for Declaratory Relief and Injunction
(with Prayer for Temporary Restraining Order and
Writ of Preliminary Injunction)10 against
respondents. This Petition was docketed as Civil
Case No. 00-1210 and raffled to the RTC of
Makati, Branch 135, presided over by Judge
Francisco B. Ibay (Judge Ibay). Petitioner prayed
that the RTC:
 1. After summary hearing, a temporary
restraining order and a writ of preliminary
injunction be issued restraining
respondents from collecting parking fees
from their customers; and
2. After hearing, judgment be rendered
declaring that the practice of respondents
in charging parking fees is violative of the
National Building Code and its
Implementing Rules and Regulations
and is therefore invalid, and making
permanent any injunctive writ issued in
this case.
Other reliefs just and equitable under the
premises are likewise prayed for.11
On 23 October 2000, Judge Ibay of the RTC of
Makati City, Branch 135, issued an Order
consolidating Civil Case No. 00-1210 with Civil
Case No. 00-1208 pending before Judge Marella
of RTC of Makati, Branch 138.
As a result of the pre-trial conference held on the
morning of 8 August 2001, the RTC issued a Pre-
Trial Order12 of even date which limited the issues
to be resolved in Civil Cases No. 00-1208 and No.
00-1210 to the following:
1. Capacity of the plaintiff [OSG] in Civil
Case No. 00-1210 to institute the present
proceedings and relative thereto whether
the controversy in the collection of
parking fees by mall owners is a matter
of public welfare.
2. Whether declaratory relief is proper.
3. Whether respondent Ayala Land,
Robinsons, Shangri-La and SM Prime
are obligated to provide parking spaces
in their malls for the use of their patrons
or the public in general, free of charge.
4. Entitlement of the parties of [sic] award
of damages.13
On 29 May 2002, the RTC rendered its Joint
Decision in Civil Cases No. 00-1208 and No. 00-
1210.
The RTC resolved the first two issues
affirmatively. It ruled that the OSG can initiate
Civil Case No. 00-1210 under Presidential
Decree No. 478 and the Administrative Code of
1987.14 It also found that all the requisites for an
action for declaratory relief were present, to wit:
The requisites for an action for declaratory relief
are: (a) there is a justiciable controversy; (b) the
controversy is between persons whose interests
are adverse; (c) the party seeking the relief has a
legal interest in the controversy; and (d) the issue
involved is ripe for judicial determination.
SM, the petitioner in Civil Case No. 001-1208 [sic]
is a mall operator who stands to be affected
directly by the position taken by the government
officials sued namely the Secretary of Public
Highways and the Building Officials of the local
government units where it operates shopping
malls. The OSG on the other hand acts on a
matter of public interest and has taken a position
adverse to that of the mall owners whom it sued.
The construction of new and bigger malls has
been announced, a matter which the Court can
take judicial notice and the unsettled issue of
whether mall operators should provide parking
facilities, free of charge needs to be resolved.15
As to the third and most contentious issue, the
RTC pronounced that:
The Building Code, which is the enabling law and
the Implementing Rules and Regulations do not
impose that parking spaces shall be provided by
the mall owners free of charge. Absent such
directive[,] Ayala Land, Robinsons, Shangri-la
and SM [Prime] are under no obligation to provide
them for free. Article 1158 of the Civil Code is
clear:
"Obligations derived from law are not presumed.
Only those expressly determined in this Code or
in special laws are demandable and shall be
regulated by the precepts of the law which
establishes them; and as to what has not been
foreseen, by the provisions of this Book (1090).["]
xxxx
The provision on ratios of parking slots to several
variables, like shopping floor area or customer
area found in Rule XIX of the Implementing Rules
and Regulations cannot be construed as a
directive to provide free parking spaces, because
the enabling law, the Building Code does not so
provide. x x x.
To compel Ayala Land, Robinsons, Shangri-La
and SM [Prime] to provide parking spaces for free
can be considered as an unlawful taking of
property right without just compensation.
Parking spaces in shopping malls are privately
owned and for their use, the mall operators collect
fees. The legal relationship could be either lease
or deposit. In either case[,] the mall owners have
the right to collect money which translates into
income. Should parking spaces be made free,
this right of mall owners shall be gone. This,
without just compensation. Further, loss of
effective control over their property will ensue
which is frowned upon by law.
The presence of parking spaces can be viewed in
another light. They can be looked at as necessary
facilities to entice the public to increase
patronage of their malls because without parking
spaces, going to their malls will be inconvenient.
These are[,] however[,] business considerations
which mall operators will have to decide for
themselves. They are not sufficient to justify a
legal conclusion, as the OSG would like the Court
to adopt that it is the obligation of the mall owners
to provide parking spaces for free.16
The RTC then held that there was no sufficient
evidence to justify any award for damages.
The RTC finally decreed in its 29 May 2002 Joint
Decision in Civil Cases No. 00-1208 and No. 00-
1210 that:
FOR THE REASONS GIVEN, the Court declares
that Ayala Land[,] Inc., Robinsons Land
Corporation, Shangri-la Plaza Corporation and
SM Prime Holdings[,] Inc. are not obligated to
provide parking spaces in their malls for the use
of their patrons or public in general, free of
charge.
All counterclaims in Civil Case No. 00-1210 are
dismissed.
No pronouncement as to costs.17
CA-G.R. CV No. 76298 involved the separate
appeals of the OSG18 and respondent SM
Prime19 filed with the Court of Appeals. The sole
assignment of error of the OSG in its Appellant’s
Brief was:
THE TRIAL COURT ERRED IN HOLDING THAT
THE NATIONAL BUILDING CODE DID NOT
INTEND MALL PARKING SPACES TO BE FREE
OF CHARGE[;]20
while the four errors assigned by respondent SM
Prime in its Appellant’s Brief were:
I
THE TRIAL COURT ERRED IN FAILING TO
DECLARE RULE XIX OF THE IMPLEMENTING
RULES AS HAVING BEEN ENACTED ULTRA
VIRES, HENCE, UNCONSTITUTIONAL AND
VOID.
II
THE TRIAL COURT ERRED IN FAILING TO
DECLARE THE IMPLEMENTING RULES
INEFFECTIVE FOR NOT HAVING BEEN
PUBLISHED AS REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN FAILING TO
DISMISS THE OSG’S PETITION FOR
DECLARATORY RELIEF AND INJUNCTION
FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES.
IV
THE TRIAL COURT ERRED IN FAILING TO
DECLARE THAT THE OSG HAS NO LEGAL
CAPACITY TO SUE AND/OR THAT IT IS NOT A
REAL PARTY-IN-INTEREST IN THE INSTANT
CASE.21
Respondent Robinsons filed a Motion to Dismiss
Appeal of the OSG on the ground that the lone
issue raised therein involved a pure question of
law, not reviewable by the Court of Appeals.
The Court of Appeals promulgated its Decision in
CA-G.R. CV No. 76298 on 25 January 2007. The
appellate court agreed with respondent
Robinsons that the appeal of the OSG should
suffer the fate of dismissal, since "the issue on
whether or not the National Building Code and its
implementing rules require shopping mall
operators to provide parking facilities to the public
for free" was evidently a question of law. Even so,
since CA-G.R. CV No. 76298 also included the
appeal of respondent SM Prime, which raised
issues worthy of consideration, and in order to
satisfy the demands of substantial justice, the
Court of Appeals proceeded to rule on the merits
of the case.
In its Decision, the Court of Appeals affirmed the
capacity of the OSG to initiate Civil Case No. 00-
1210 before the RTC as the legal representative
of the government,22 and as the one deputized by
the Senate of the Republic of the Philippines
through Senate Committee Report No. 225.
The Court of Appeals rejected the contention of
respondent SM Prime that the OSG failed to
exhaust administrative remedies. The appellate
court explained that an administrative review is
not a condition precedent to judicial relief where
the question in dispute is purely a legal one, and
nothing of an administrative nature is to be or can
be done.
The Court of Appeals likewise refused to rule on
the validity of the IRR of the National Building
Code, as such issue was not among those the
parties had agreed to be resolved by the RTC
during the pre-trial conference for Civil Cases No.
00-1208 and No. 00-1210. Issues cannot be
raised for the first time on appeal. Furthermore,
the appellate court found that the controversy
could be settled on other grounds, without
touching on the issue of the validity of the IRR. It
referred to the settled rule that courts should
refrain from passing upon the constitutionality of
a law or implementing rules, because of the
principle that bars judicial inquiry into a
constitutional question, unless the resolution
thereof is indispensable to the determination of
the case.
Lastly, the Court of Appeals declared that Section
803 of the National Building Code and Rule XIX
of the IRR were clear and needed no further
construction. Said provisions were only intended
to control the occupancy or congestion of areas
and structures. In the absence of any express
and clear provision of law, respondents could not
be obliged and expected to provide parking slots
free of charge.
The fallo of the 25 January 2007 Decision of the
Court of Appeals reads:
WHEREFORE, premises considered, the instant
appeals are DENIED. Accordingly, appealed
Decision is hereby AFFIRMED in toto.23
In its Resolution issued on 14 March 2007, the
Court of Appeals denied the Motion for
Reconsideration of the OSG, finding that the
grounds relied upon by the latter had already
been carefully considered, evaluated, and
passed upon by the appellate court, and there
was no strong and cogent reason to modify much
less reverse the assailed judgment.
The OSG now comes before this Court, via the
instant Petition for Review, with a single
assignment of error:
THE COURT OF APPEALS SERIOUSLY
ERRED IN AFFIRMING THE RULING OF THE
LOWER COURT THAT RESPONDENTS ARE
NOT OBLIGED TO PROVIDE FREE PARKING
SPACES TO THEIR CUSTOMERS OR THE
PUBLIC.24
The OSG argues that respondents are mandated
to provide free parking by Section 803 of the
National Building Code and Rule XIX of the IRR.
According to Section 803 of the National Building
Code:
SECTION 803. Percentage of Site Occupancy
(a) Maximum site occupancy shall be
governed by the use, type of
construction, and height of the building
and the use, area, nature, and location of
the site; and subject to the provisions of
the local zoning requirements and in
accordance with the rules and
regulations promulgated by the
Secretary.
In connection therewith, Rule XIX of the old
IRR,25 provides:
RULE XIX – PARKING AND LOADING SPACE
REQUIREMENTS
Pursuant to Section 803 of the National Building
Code (PD 1096) providing for maximum site
occupancy, the following provisions on parking
and loading space requirements shall be
observed:
1. The parking space ratings listed below are
minimum off-street requirements for specific
uses/occupancies for buildings/structures:
1.1 The size of an average automobile parking
slot shall be computed as 2.4 meters by 5.00
meters for perpendicular or diagonal parking,
2.00 meters by 6.00 meters for parallel parking. A
truck or bus parking/loading slot shall be
computed at a minimum of 3.60 meters by 12.00
meters. The parking slot shall be drawn to scale
and the total number of which shall be indicated
on the plans and specified whether or not parking
accommodations, are attendant-managed. (See
Section 2 for computation of parking
requirements).
xxxx
1.7 Neighborhood shopping center – 1 slot/100
sq. m. of shopping floor area
The OSG avers that the aforequoted provisions
should be read together with Section 102 of the
National Building Code, which declares:
SECTION 102. Declaration of Policy
It is hereby declared to be the policy of the State
to safeguard life, health, property, and public
welfare, consistent with the principles of sound
environmental management and control; and to
this end, make it the purpose of this Code to
provide for all buildings and structures, a
framework of minimum standards and
requirements to regulate and control their
location, site, design, quality of materials,
construction, use, occupancy, and maintenance.
The requirement of free-of-charge parking, the
OSG argues, greatly contributes to the aim of
safeguarding "life, health, property, and public
welfare, consistent with the principles of sound
environmental management and control."
Adequate parking spaces would contribute
greatly to alleviating traffic congestion when
complemented by quick and easy access thereto
because of free-charge parking. Moreover, the
power to regulate and control the use,
occupancy, and maintenance of buildings and
structures carries with it the power to impose fees
and, conversely, to control -- partially or, as in this
case, absolutely -- the imposition of such fees.
The Court finds no merit in the present Petition.
The explicit directive of the afore-quoted statutory
and regulatory provisions, garnered from a plain
reading thereof, is that respondents, as
operators/lessors of neighborhood shopping
centers, should provide parking and loading
spaces, in accordance with the minimum ratio of
one slot per 100 square meters of shopping floor
area. There is nothing therein pertaining to the
collection (or non-collection) of parking fees by
respondents. In fact, the term "parking fees"
cannot even be found at all in the entire National
Building Code and its IRR.
Statutory construction has it that if a statute is
clear and unequivocal, it must be given its literal
meaning and applied without any attempt at
interpretation.26 Since Section 803 of the National
Building Code and Rule XIX of its IRR do not
mention parking fees, then simply, said
provisions do not regulate the collection of the
same. The RTC and the Court of Appeals
correctly applied Article 1158 of the New Civil
Code, which states:
Art. 1158. Obligations derived from law are not
presumed. Only those expressly determined in
this Code or in special laws are demandable, and
shall be regulated by the precepts of the law
which establishes them; and as to what has not
been foreseen, by the provisions of this Book.
(Emphasis ours.)
Hence, in order to bring the matter of parking fees
within the ambit of the National Building Code and
its IRR, the OSG had to resort to specious and
feeble argumentation, in which the Court cannot
concur.
The OSG cannot rely on Section 102 of the
National Building Code to expand the coverage
of Section 803 of the same Code and Rule XIX of
the IRR, so as to include the regulation of parking
fees. The OSG limits its citation to the first part of
Section 102 of the National Building Code
declaring the policy of the State "to safeguard life,
health, property, and public welfare, consistent
with the principles of sound environmental
management and control"; but totally ignores the
second part of said provision, which reads, "and
to this end, make it the purpose of this Code to
provide for all buildings and structures, a
framework of minimum standards and
requirements to regulate and control their
location, site, design, quality of materials,
construction, use, occupancy, and maintenance."
While the first part of Section 102 of the National
Building Code lays down the State policy, it is the
second part thereof that explains how said policy
shall be carried out in the Code. Section 102 of
the National Building Code is not an all-
encompassing grant of regulatory power to the
DPWH Secretary and local building officials in the
name of life, health, property, and public welfare.
On the contrary, it limits the regulatory power of
said officials to ensuring that the minimum
standards and requirements for all buildings and
structures, as set forth in the National Building
Code, are complied with.
Consequently, the OSG cannot claim that in
addition to fixing the minimum requirements for
parking spaces for buildings, Rule XIX of the IRR
also mandates that such parking spaces be
provided by building owners free of charge. If
Rule XIX is not covered by the enabling law, then
it cannot be added to or included in the
implementing rules. The rule-making power of
administrative agencies must be confined to
details for regulating the mode or proceedings to
carry into effect the law as it has been enacted,
and it cannot be extended to amend or expand
the statutory requirements or to embrace matters
not covered by the statute. Administrative
regulations must always be in harmony with the
provisions of the law because any resulting
discrepancy between the two will always be
resolved in favor of the basic law.27
From the RTC all the way to this Court, the OSG
repeatedly referred to Republic v.
Gonzales28 and City of Ozamis v. Lumapas29 to
support its position that the State has the power
to regulate parking spaces to promote the health,
safety, and welfare of the public; and it is by virtue
of said power that respondents may be required
to provide free parking facilities. The OSG,
though, failed to consider the substantial
differences in the factual and legal backgrounds
of these two cases from those of the Petition at
bar.
In Republic, the Municipality of Malabon sought
to eject the occupants of two parcels of land of
the public domain to give way to a road-widening
project. It was in this context that the Court
pronounced:
Indiscriminate parking along F. Sevilla Boulevard
and other main thoroughfares was prevalent; this,
of course, caused the build up of traffic in the
surrounding area to the great discomfort and
inconvenience of the public who use the streets.
Traffic congestion constitutes a threat to the
health, welfare, safety and convenience of the
people and it can only be substantially relieved by
widening streets and providing adequate parking
areas.
The Court, in City of Ozamis, declared that the
City had been clothed with full power to control
and regulate its streets for the purpose of
promoting public health, safety and welfare. The
City can regulate the time, place, and manner of
parking in the streets and public places; and
charge minimal fees for the street parking to
cover the expenses for supervision, inspection
and control, to ensure the smooth flow of traffic in
the environs of the public market, and for the
safety and convenience of the public.
Republic and City of Ozamis involved parking in
the local streets; in contrast, the present case
deals with privately owned parking facilities
available for use by the general public. In
Republic and City of Ozamis, the concerned local
governments regulated parking pursuant to their
power to control and regulate their streets; in the
instant case, the DPWH Secretary and local
building officials regulate parking pursuant to their
authority to ensure compliance with the minimum
standards and requirements under the National
Building Code and its IRR. With the difference in
subject matters and the bases for the regulatory
powers being invoked, Republic and City of
Ozamis do not constitute precedents for this
case.
Indeed, Republic and City of Ozamis both contain
pronouncements that weaken the position of the
OSG in the case at bar. In Republic, the Court,
instead of placing the burden on private persons
to provide parking facilities to the general public,
mentioned the trend in other jurisdictions wherein
the municipal governments themselves took the
initiative to make more parking spaces available
so as to alleviate the traffic problems, thus:
Under the Land Transportation and Traffic Code,
parking in designated areas along public streets
or highways is allowed which clearly indicates
that provision for parking spaces serves a useful
purpose. In other jurisdictions where traffic is at
least as voluminous as here, the provision by
municipal governments of parking space is not
limited to parking along public streets or
highways. There has been a marked trend to
build off-street parking facilities with the view to
removing parked cars from the streets. While the
provision of off-street parking facilities or carparks
has been commonly undertaken by private
enterprise, municipal governments have been
constrained to put up carparks in response to
public necessity where private enterprise had
failed to keep up with the growing public demand.
American courts have upheld the right of
municipal governments to construct off-street
parking facilities as clearly redounding to the
public benefit.30
In City of Ozamis, the Court authorized the
collection by the City of minimal fees for the
parking of vehicles along the streets: so why then
should the Court now preclude respondents from
collecting from the public a fee for the use of the
mall parking facilities? Undoubtedly, respondents
also incur expenses in the maintenance and
operation of the mall parking facilities, such as
electric consumption, compensation for parking
attendants and security, and upkeep of the
physical structures.
It is not sufficient for the OSG to claim that "the
power to regulate and control the use,
occupancy, and maintenance of buildings and
structures carries with it the power to impose fees
and, conversely, to control, partially or, as in this
case, absolutely, the imposition of such fees."
Firstly, the fees within the power of regulatory
agencies to impose are regulatory fees. It has
been settled law in this jurisdiction that this broad
and all-compassing governmental competence to
restrict rights of liberty and property carries with it
the undeniable power to collect a regulatory fee.
It looks to the enactment of specific measures
that govern the relations not only as between
individuals but also as between private parties
and the political society.31 True, if the regulatory
agencies have the power to impose regulatory
fees, then conversely, they also have the power
to remove the same. Even so, it is worthy to note
that the present case does not involve the
imposition by the DPWH Secretary and local
building officials of regulatory fees upon
respondents; but the collection by respondents of
parking fees from persons who use the mall
parking facilities. Secondly, assuming arguendo
that the DPWH Secretary and local building
officials do have regulatory powers over the
collection of parking fees for the use of privately
owned parking facilities, they cannot allow or
prohibit such collection arbitrarily or whimsically.
Whether allowing or prohibiting the collection of
such parking fees, the action of the DPWH
Secretary and local building officials must pass
the test of classic reasonableness and propriety
of the measures or means in the promotion of the
ends sought to be accomplished.32
Keeping in mind the aforementioned test of
reasonableness and propriety of measures or
means, the Court notes that Section 803 of the
National Building Code falls under Chapter 8 on
Light and Ventilation. Evidently, the Code deems
it necessary to regulate site occupancy to ensure
that there is proper lighting and ventilation in
every building. Pursuant thereto, Rule XIX of the
IRR requires that a building, depending on its
specific use and/or floor area, should provide a
minimum number of parking spaces. The Court,
however, fails to see the connection between
regulating site occupancy to ensure proper light
and ventilation in every building vis-à-vis
regulating the collection by building owners of
fees for the use of their parking spaces. Contrary
to the averment of the OSG, the former does not
necessarily include or imply the latter. It totally
escapes this Court how lighting and ventilation
conditions at the malls could be affected by the
fact that parking facilities thereat are free or paid
for.
The OSG attempts to provide the missing link by
arguing that:
Under Section 803 of the National Building Code,
complimentary parking spaces are required to
enhance light and ventilation, that is, to avoid
traffic congestion in areas surrounding the
building, which certainly affects the ventilation
within the building itself, which otherwise, the
annexed parking spaces would have served.
Free-of-charge parking avoids traffic congestion
by ensuring quick and easy access of legitimate
shoppers to off-street parking spaces annexed to
the malls, and thereby removing the vehicles of
these legitimate shoppers off the busy streets
near the commercial establishments.33
The Court is unconvinced. The National Building
Code regulates buildings, by setting the minimum
specifications and requirements for the same. It
does not concern itself with traffic congestion in
areas surrounding the building. It is already a
stretch to say that the National Building Code and
its IRR also intend to solve the problem of traffic
congestion around the buildings so as to ensure
that the said buildings shall have adequate
lighting and ventilation. Moreover, the Court
cannot simply assume, as the OSG has
apparently done, that the traffic congestion in
areas around the malls is due to the fact that
respondents charge for their parking facilities,
thus, forcing vehicle owners to just park in the
streets. The Court notes that despite the fees
charged by respondents, vehicle owners still use
the mall parking facilities, which are even fully
occupied on some days. Vehicle owners may be
parking in the streets only because there are not
enough parking spaces in the malls, and not
because they are deterred by the parking fees
charged by respondents. Free parking spaces at
the malls may even have the opposite effect from
what the OSG envisioned: more people may be
encouraged by the free parking to bring their own
vehicles, instead of taking public transport, to the
malls; as a result, the parking facilities would
become full sooner, leaving more vehicles
without parking spaces in the malls and parked in
the streets instead, causing even more traffic
congestion.
Without using the term outright, the OSG is
actually invoking police power to justify the
regulation by the State, through the DPWH
Secretary and local building officials, of privately
owned parking facilities, including the collection
by the owners/operators of such facilities of
parking fees from the public for the use thereof.
The Court finds, however, that in totally
prohibiting respondents from collecting parking
fees from the public for the use of the mall parking
facilities, the State would be acting beyond the
bounds of police power.
Police power is the power of promoting the public
welfare by restraining and regulating the use of
liberty and property. It is usually exerted in order
to merely regulate the use and enjoyment of the
property of the owner. The power to regulate,
however, does not include the power to prohibit.
A fortiori, the power to regulate does not include
the power to confiscate. Police power does not
involve the taking or confiscation of property, with
the exception of a few cases where there is a
necessity to confiscate private property in order
to destroy it for the purpose of protecting peace
and order and of promoting the general welfare;
for instance, the confiscation of an illegally
possessed article, such as opium and firearms. 34
When there is a taking or confiscation of private
property for public use, the State is no longer
exercising police power, but another of its
inherent powers, namely, eminent domain.
Eminent domain enables the State to forcibly
acquire private lands intended for public use upon
payment of just compensation to the owner.35
Normally, of course, the power of eminent domain
results in the taking or appropriation of title to, and
possession of, the expropriated property; but no
cogent reason appears why the said power may
not be availed of only to impose a burden upon
the owner of condemned property, without loss of
title and possession.36 It is a settled rule that
neither acquisition of title nor total destruction of
value is essential to taking. It is usually in cases
where title remains with the private owner that
inquiry should be made to determine whether the
impairment of a property is merely regulated or
amounts to a compensable taking. A regulation
that deprives any person of the profitable use of
his property constitutes a taking and entitles him
to compensation, unless the invasion of rights is
so slight as to permit the regulation to be justified
under the police power. Similarly, a police
regulation that unreasonably restricts the right to
use business property for business purposes
amounts to a taking of private property, and the
owner may recover therefor.371avvphi1
Although in the present case, title to and/or
possession of the parking facilities remain/s with
respondents, the prohibition against their
collection of parking fees from the public, for the
use of said facilities, is already tantamount to a
taking or confiscation of their properties. The
State is not only requiring that respondents
devote a portion of the latter’s properties for use
as parking spaces, but is also mandating that
they give the public access to said parking
spaces for free. Such is already an excessive
intrusion into the property rights of respondents.
Not only are they being deprived of the right to
use a portion of their properties as they wish, they
are further prohibited from profiting from its use or
even just recovering therefrom the expenses for
the maintenance and operation of the required
parking facilities.
The ruling of this Court in City Government of
Quezon City v. Judge Ericta38 is edifying.
Therein, the City Government of Quezon City
passed an ordinance obliging private cemeteries
within its jurisdiction to set aside at least six
percent of their total area for charity, that is, for
burial grounds of deceased paupers. According
to the Court, the ordinance in question was null
and void, for it authorized the taking of private
property without just compensation:
There is no reasonable relation between the
setting aside of at least six (6) percent of the total
area of all private cemeteries for charity burial
grounds of deceased paupers and the promotion
of' health, morals, good order, safety, or the
general welfare of the people. The ordinance is
actually a taking without compensation of a
certain area from a private cemetery to benefit
paupers who are charges of the municipal
corporation. Instead of' building or maintaining a
public cemetery for this purpose, the city passes
the burden to private cemeteries.
'The expropriation without compensation of a
portion of private cemeteries is not covered by
Section 12(t) of Republic Act 537, the Revised
Charter of Quezon City which empowers the city
council to prohibit the burial of the dead within the
center of population of the city and to provide for
their burial in a proper place subject to the
provisions of general law regulating burial
grounds and cemeteries. When the Local
Government Code, Batas Pambansa Blg. 337
provides in Section 177(q) that a sangguniang
panlungsod may "provide for the burial of the
dead in such place and in such manner as
prescribed by law or ordinance" it simply
authorizes the city to provide its own city owned
land or to buy or expropriate private properties to
construct public cemeteries. This has been the
law, and practise in the past. It continues to the
present. Expropriation, however, requires
payment of just compensation. The questioned
ordinance is different from laws and regulations
requiring owners of subdivisions to set aside
certain areas for streets, parks, playgrounds, and
other public facilities from the land they sell to
buyers of subdivision lots. The necessities of
public safety, health, and convenience are very
clear from said requirements which are intended
to insure the development of communities with
salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made
to pay by the subdivision developer when
individual lots are sold to homeowners.
In conclusion, the total prohibition against the
collection by respondents of parking fees from
persons who use the mall parking facilities has no
basis in the National Building Code or its IRR.
The State also cannot impose the same
prohibition by generally invoking police power,
since said prohibition amounts to a taking of
respondents’ property without payment of just
compensation.

Given the foregoing, the Court finds no more

need to address the issue persistently raised by
respondent SM Prime concerning the
unconstitutionality of Rule XIX of the IRR. In
addition, the said issue was not among those that
the parties, during the pre-trial conference for
Civil Cases No. 12-08 and No. 00-1210, agreed
to submit for resolution of the RTC. It is likewise
axiomatic that the constitutionality of a law, a
regulation, an ordinance or an act will not be
resolved by courts if the controversy can be, as in
this case it has been, settled on other grounds.39

WHEREFORE, the instant Petition for Review on

Certiorari is hereby DENIED. The Decision dated
25 January 2007 and Resolution dated 14 March
2007 of the Court of Appeals in CA-G.R. CV No.
76298, affirming in toto the Joint Decision dated
29 May 2002 of the Regional Trial Court of Makati
City, Branch 138, in Civil Cases No. 00-1208 and
No. 00-1210 are hereby AFFIRMED. No costs.

SO ORDERED.
SPOUSES INOCENCIO AND ADORACION
SAN ANTONIO, petitioners,
vs.
COURT OF APPEALS AND SPOUSES MARIO
AND GREGORIO GERONIMO, respondents.
QUISUMBING, J.:
This is a petition for review seeking the reversal
of the decision1 dated April 28, 1995, of the Court
of Appeals in CA-G.R. SP No. 35271 affirming the
orders dated May 5, 1994,2 July 12, 19943 and
September 1, 1994,4 respectively, of the
Regional Trial Court of Malolos Bulacan, Branch
22, granting the motion for execution of
compromise judgment dated September 22,
1993 in Civil Case No. 233-M-92.
The facts, as culled from the records, are as
follows:
Private respondents spouses Mario and Gregoria
Geronimo obtained a loan in the amount of One
Million Twenty Eight Thousand Pesos
(P1,028,000) from petitioners, the spouses
Inocencio and Adoracion San Antonio. To secure
the loan, private respondents mortgaged two
parcels of land covered by TCT No. RT-6653 with
an area of 10,390 square meters and TCT No.
RT-6652 with an area of 2,556 square meters,
both situated in Barrio Tabe, Guiguinto, Bulacan.
Subsequently, private respondents obtained an
additional loan of Nine Hundred Fifty Nine Pesos
(P991,859) with an interest of 3.33% per month,
thus making their total obligation in the amount of
Two Million Nineteen Thousand Eight Hundred
Fifty Nine Pesos (P2,019,859), payable on or
before February 15, 1991. Private respondents
failed to pay the loan and the interest on the due
date, hence, the mortgage was extra-judicially
foreclosed. During the auction sale, petitioners,
being the highest bidder bought the two parcels
of land.
Before the one-year redemption period expired,
private respondents filed a complaint for
annulment of extra-judicial foreclosure with
preliminary mandatory injunction, docketed as
Civil Case No. 233-M-92, with the Regional Trial
Court of Bulacan, Branch 22. After the parties
presented their respective evidence, they
submitted to the court on September 16, 1993, a
compromise agreement dated August 25, 1993,
the terms and conditions of which are quoted as
follows:
COME NOW parties assisted by their
respective counsels and before the
Honorable Court most respectfully
submit this compromise agreement, the
terms and conditions of which are:
1. For a consideration of TWO MILLION
PESOS (P2,000,000.00) Philippine
Currency in hand received today by the
defendants spouses Inocencio and
Adoracion San Antonio from the
plaintiffs, defendants San Antonio will
execute a deed of
resale/reconveyance/redemption of that
subject property covered by TCT No. RT-
6653 (T-209250) of the Registry of
Deeds of Bulacan including its
improvements;
2. For the release/resale/reconveyance
of the other property involved in the case
described in TCT No. RT-6652 (T-
296744) of the other property involved in
the case described in TCT No. RT-6652
(T-296744) of the Registry of Deeds of
Bulacan together with its improvements,
plaintiffs obligate themselves to transfer
the ownership of the following to the
defendants San Antonio.
a. That lot including its
improvements situated in Brgy.
Tuctucan, Municipality of
Guiguinto, Bulcan, covered by
TCT No. 29832, Blk. 4, Lot No. 3
consisting of 135 square meters;
b. That lot situated in Brgy.
Tuctucan, Municipality of
Guiguinto, Bulcan covered by
TCT No. 30078, Blk. 9, Lot 27
consisting of 78 square meters;
c. Another lot situated in Brgy.
Tuctucan, Municipality of
Guiguinto, Bulcan, covered by
TCT No. 30079, Blk. No. 38
consisting of 75 square meters.
Within six (6) months from signing of this
compromise agreement simultaneous to
which delivery of the title to the afore-
mentioned properties in the names of the
defendants San Antonio, the defendants
San Antonio will execute the
corresponding instrument of
resale/reconveyance/redemption over
that properly together with its
improvements covered by TCT No. RT-
6652 (T-296744), for the purpose of the
cancellation of the annulment of the sale
in the title subject to the condition that
should plaintiffs fail to deliver the titles to
the three lots heretofore mentioned to the
defendants San Antonio, the said
plaintiffs shall be deemed to have waived
and renounced any all rights, claims and
demands whatsoever they may have
over that property covered by TCT No.
RT-6652 (T-296744) including its
improvements and thenceforth bind
themselves to respect the right of
ownership, and possession of the
defendants San Antonio over said
property, or to pay Two Million Pesos
(P2,000,000.00) within the same period;
3. That the parties further agree to set
aside any claim, damages and counter-
claims they may have against each other;
 4. That in the meantime, the possession
of the plaintiffs of the subject property
covering TCT No. 6652 (T-296744) and
TCT No. RT-6653 (T-209250) shall it be
respect; (SIC)
5. This compromise agreement shall be
in full settlement of the obligations of the
plaintiffs with respect to Kasulatan ng
Sanglaan dated February 14, 1989 and
the Susog ng Kasulatan ng Sanglaan
dated July 16, 1990, subject matter of the
complaint, and those related there.
6. This compromise agreement
is immediately executory (underscoring
supplied).5
Finding the above to be in order, the trial court
approved the same in its order dated September
22, 1993, thus:
A careful perusal of the Compromise
Agreement dated August 25, 1993
reveals that the terms and conditions
thereof are not contrary to law, morals
and public policy.
ACCORDINGLY, the compromise
agreement dated August 25, 1993 is
hereby APPROVED. The parties are
enjoined to comply faithfully with their
obligation under said agreement.
SO ORDERED.6
In accordance with the stipulations in paragraph
1 of the Compromise Agreement, petitioners
executed a Certificate of Redemption and
Cancellation of Sale covering TCT No. RT-6653
after private respondents paid them Two Million
Pesos (P2,000,000). Private respondents,
however, failed to transfer the ownership and
deliver the titles of the three parcels of land
described in paragraph 2 of the agreement or to
pay 2 Million Pesos within the six-month period RENDERED BASED ON A
from August 25, 1993. It was only on March 4, COMPROMISE AGREEMENT.
1994, after the lapse of six months that private
respondents delivered the three titles to II. …RULING THAT THE PRINCIPLE OF
petitioners. As the delivery was beyond the EQUITY IS A GROUND TO JUSTIFY
agreed six-month period, petitioners refused to THE AMENDMENT OF A FINAL AND
accept the same or execute an instrument for the EXECUTORY JUDGMENT.
resale, reconveyance or redemption of the
property covered by TCT No. RT-6652. III. …RULING THAT THE DELAY IN
Consequently, TCT No. RT-6652 was cancelled
THE DELIVERY OF THE TITLES IS
and in lieu thereof, TCT No. T-47229 was issued
ATTRIBUTABLE TO THE REGISTER
in the names of petitioners.
OF DEEDS OF BULACAN.
Private respondents filed a motion for execution IV. …APPLYING ARTICLE 1191 OF
of the September 22, 1993 order with the trial
THE NEW CIVIL CODE.
court. This was granted on May 5, 1994.
Petitioners filed a motion for reconsideration but
this was denied on July 12, 1994. A second V. …NOT RULING THAT THE
motion for reconsideration by petitioners was COMPROMISE AGREEMENT IS
IMMEDIATELY EXECUTORY AS
likewise denied in an order dated September 1,
1994. PROVIDED IN PARAGRAPH 6
THEREOF.
Petitioners filed a Petition for Certiorari with
VI. … NOT RULING THAT
application for a Temporary Restraining Order
and/or Writ of Preliminary Injunction with the PETITIONERS HAVE ALREADY
COMPLIED WITH PARAGRAPH 1 OF
Court of Appeals. As said earlier, the Court of
THE COMPROMISE AGREEMENT.8
Appeals denied the petition on April 28, 1995,
thus:
In sum, petitioners raise the following issues for
our resolution:
WHEREFORE, the petition for certiorari
is hereby DENIED DUE COURSE, and is
DISMISSED. The Orders of respondent 1. Did the trial court err in granting the writ
to execute the compromise judgment?
court dated May 1[5], July 12, and
September 1, 1994 are AFFIRMED.
2. Is Article 1191 of the New Civil Code
SO ORDERED.7 applicable in this case?
On the first issue, did the trial court err in granting
Hence this petition for review wherein petitioners
aver that the Court of Appeals erred in: the writ to execute the compromise judgment?
Petitioners claim that the trial court did. The
I. …RULING THAT THE ORDER DATED compromise agreement approved by the trial
MAY 5, 1994 DID NOT court in its order dated September 22, 1993,
provided that private respondents had six months
SUBSTANTIALLY AMEND THE FINAL
AND EXECUTORY JUDGMENT within which to deliver the titles. If they failed,
ownership of the land covered by TCT No. RT-
6652 would be transferred to petitioners.
Petitioners contend that judgement based on a
compromise is conclusive upon the parties and is
immediately executory. It has the force and effect
of res judicata, hence it cannot be modified. The
trial court therefore, cannot compel petitioners,
via a writ of execution, to accept the three titles
beyond the six-month period, because it is in
effect an amendment to the compromise
agreement, petitioners said. They explain that
even on equitable considerations this was not
allowed because once a decision becomes final,
the court which rendered it loses jurisdiction over
the case and it can no longer be modified except
for clerical errors.
Petitioners also contend that private respondents
should not blame the Register of Deeds for the
delay in the delivery of the three titles since
private respondents submitted the registration
documents to the Register of Deeds only on
March 2, 1994, beyond the six-month period
deadline.
Further, petitioners deny that they are guilty of
delay for not executing the deed of resale,
reconveyance or redemption despite their receipt
of two million pesos. They said that as early as
August 25, 1993, they already executed a
Certificate of Redemption and Cancellation of
Sale of the land covered by TCT No. RT-6653.
Private respondents counter that there has been
no modification of the final judgment when the
trial judge issued the writ of execution, as the
judge issued the writ of execution, as the judge
was merely performing a ministerial duty. Also,
private respondents deny that they delivered the
three titles late and if ever the delivery was
delayed it was the Register of Deeds who was to
blame. Private respondents additionally point out
that in reciprocal obligations, like the ones in this
case, delay sets in only when one part fulfills his
obligation and the other is unable to perform his
part of the obligation. Likewise, a person
obligated to deliver something incurs in delay only
after demand. As herein petitioners have not yet
made demand and as they have not yet
performed their part of the agreement, which was
the execution of the deed of reconveyance, delay
by private respondents has not yet occurred.
We find petitioners' petition impressed with merit.
A compromise agreement, once approved by
final order of the court, has the force of res
judicata between the parties and should not be
disturbed except for vices of consent or
forgery.9 In this case, the compromise agreement
clearly provided private respondents six months,
i.e., from August 25, 1993 to February 25, 1994,
to deliver the titles to the three parcels of land
described in the agreement. If after the lapse of
the said period and no delivery is yet made by
private respondents, ownership over the land
covered by TCT No. RT-6652 would be
transferred to petitioners. As the facts of this case
show, private respondents failed to deliver the
titles on February 25, 1994, as it was only on
March 4, 1994, when they gave the titles to
petitioners. Hence, pursuant to the terms of the
compromise agreement, petitioners could
rightfully refuse acceptance of the titles. It was
error therefore for the trial court to grant the writ
of execution in favor of private respondents
because it effectively compelled petitioners to
accept delivery of the three titles in exchange for
the release of the land covered by TCT No. RT-
6652 even after the lapse of the six-month period.
Private respondents claim that the trial court, in
issuing the writ, was merely performing a
ministerial duty. While it becomes the trial court's
ministerial duty to issue a writ of execution may
be refused on equitable grounds.10 In this case, it
will be unjust to petitioners if we compel them to
accept the three titles despite the lapse of the
agreed period. Contractual obligations between
parties have the force of law between them and
absent any allegation that the same are contrary
to law, morals, good customs, public order or
public policy, they must be complied with in good
faith.11
Both the trial court and the Court of Appeals
attributed to the Register of Deeds private
respondents' delay in the delivery of the three
titles. But as shown in their decisions, private
respondents submitted to the Register of Deeds
the pertinent documents for registration of the
three titles in petitioners' name only on March 2,
1994, beyond the six-month period.12 Private
respondents could have done so earlier, but they
did not. This only shows that private respondents
did not intend to truly comply with their
obligations.
As to the alleged delay on the part of petitioners
in executing the Deed of Resale and
Reconveyance, we find that this point serves only
to confuse the Court on the real facts of the case.
Despite the fact that the compromise agreement
involved two parcels of land up for redemption,
private respondents did not indicate as to which
parcel of land petitioners did not execute a deed
of resale.13 Nevertheless, private respondents
admitted that petitioners already executed a
Certificate of Redemption.14 For us, this was
sufficient compliance of petitioners' duty under
the Compromise Agreement.
Lastly, is Article 1191 of the New Civil
Code15 applicable in this case? According to
petitioners, the Court of Appeals erred when it
found that private respondents' delay did not
constitute substantial breach to warrant
rescission of the compromise agreement. They
assert that they were not seeking rescission of
the compromise agreement but its full
enforcement regardless of whether the delay is
slight or substantial.
While indeed private respondents did not meet
head on this issue, we find that it should be
properly addressed. In filing the petition before
the Court of Appeals, petitioners sought the
appellate court's declaration that the trial court
committed grave abuse of discretion. In their
view, the trial court should have enforced the
compromise agreement instead of rescinding it.
Thus, it was error for the Court of Appeals to
apply Article 1191 of the New Civil Code which
concerns rescission of contract. Applicable here
is Article 1159 which enjoins compliance in good
faith by the parties who entered into a valid
contract.16 Compromise agreements are
contracts, whereby the parties undertake
reciprocal obligations to avoid litigation, or put an
end to one already commenced.17

WHEREFORE, the petition is GRANTED. The

decision dated April 28, 1995, and resolution
dated September 11, 1995, of the Court of
Appeals in CA-G.R. SP No. 35271
are REVERSED AND SET ASIDE. Accordingly,
the orders dated May 5, 1994, July 12, 1994 and
September 1, 1994, of the Regional Trial Court of
Malolos, Bulacan, Branch 22, are hereby
declared NULL AND VOID. Private respondents
are ordered to cease and desist from disturbing
the ownership and possession by petitioners of
the parcel of land covered by TCT No. RT-6652.
Costs against private respondents.

SO ORDERED.
WILLIAM GOLANGCO CONSTRUCTION
CORPORATION, Petitioner,
vs.
PHILIPPINE COMMERCIAL INTERNATIONAL
BANK*, Respondent
DECISION
CORONA, J.:
The facts of this case are straightforward.1
William Golangco Construction Corporation
(WGCC) and the Philippine Commercial
International Bank (PCIB) entered into a contract
for the construction of the extension of PCIB
Tower II (denominated as PCIB Tower II,
Extension Project [project])2 on October 20,
1989. The project included, among others, the
application of a granitite wash-out finish3 on the
exterior walls of the building.
PCIB, with the concurrence of its consultant TCGI
Engineers (TCGI), accepted the turnover of the
completed work by WGCC in a letter dated June
1, 1992. To answer for any defect arising within a
period of one year, WGCC submitted a guarantee
bond dated July 1, 1992 issued by Malayan
Insurance Company, Inc. in compliance with the
construction contract.4
The controversy arose when portions of the
granitite wash-out finish of the exterior of the
building began peeling off and falling from the
walls in 1993. WGCC made minor repairs after
PCIB requested it to rectify the construction
defects. In 1994, PCIB entered into another
contract with Brains and Brawn Construction and
Development Corporation to re-do the entire
granitite wash-out finish after WGCC manifested
that it was "not in a position to do the new
finishing work," though it was willing to share part
of the cost. PCIB incurred expenses amounting
to P11,665,000 for the repair work.
PCIB filed a request for arbitration with the
Construction Industry Arbitration Commission
(CIAC) for the reimbursement of its expenses for
the repairs made by another contractor. It
complained of WGCC’s alleged non-compliance
with their contractual terms on materials and
workmanship. WGCC interposed a counterclaim
for P5,777,157.84 for material cost adjustment.
The CIAC declared WGCC liable for the
construction defects in the project.5 WGCC filed
a petition for review with the Court of Appeals
(CA) which dismissed it for lack of merit.6 Its
motion for reconsideration was similarly denied.7
In this petition for review on certiorari, WGCC
raises this main question of law: whether or not
petitioner WGCC is liable for defects in the
granitite wash-out finish that occurred after the
lapse of the one-year defects liability period
provided in Art. XI of the construction contract.8
We rule in favor of WGCC.
The controversy pivots on a provision in the
construction contract referred to as the defects
liability period:
ARTICLE XI – GUARANTEE
Unless otherwise specified for specific works, and
without prejudice to the rights and causes of
action of the OWNER under Article 1723 of the
Civil Code, the CONTRACTOR hereby
guarantees the work stipulated in this Contract,
and shall make good any defect in materials and
workmanship which [becomes] evident within one
(1) year after the final acceptance of the
work. The CONTRACTOR shall leave the work in
perfect order upon completion and present the
final certificate to the ENGINEER promptly.
If in the opinion of the OWNER and ENGINEER,
the CONTRACTOR has failed to act promptly in
rectifying any defect in the work which appears
within the period mentioned above, the OWNER
and the ENGINEER may, at their own discretion,
using the Guarantee Bond amount for
corrections, have the work done by another
contractor at the expense of the CONTRACTOR
or his bondsmen.
However, nothing in this section shall in any way
affect or relieve the CONTRACTOR’S
responsibility to the OWNER. On the completion
of the [w]orks, the CONTRACTOR shall clear
away and remove from the site all constructional
plant, surplus materials, rubbish and temporary
works of every kind, and leave the whole of the
[s]ite and [w]orks clean and in a workmanlike
condition to the satisfaction of the ENGINEER
and OWNER.9 (emphasis ours)
Although both parties based their arguments on
the same stipulations, they reached conflicting
conclusions. A careful reading of the stipulations,
however, leads us to the conclusion that WGCC’s
arguments are more tenable.
Autonomy of contracts
The autonomous nature of contracts is
enunciated in Article 1306 of the Civil Code.
Article 1306. The contracting parties may
establish such stipulations, clauses, terms and
conditions as they may deem convenient,
provided they are not contrary to law, morals,
good customs, public order, or public policy.
Obligations arising from contracts have the force
of law between the parties and should be
complied with in good faith.10 In characterizing
the contract as having the force of law between
the parties, the law stresses the obligatory nature
of a binding and valid agreement.
The provision in the construction contract
providing for a defects liability period was not
shown as contrary to law, morals, good customs,
pubic order or public policy. By the nature of the
obligation in such contract, the provision limiting
liability for defects and fixing specific guaranty
periods was not only fair and equitable; it was
also necessary. Without such limitation, the
contractor would be expected to make a
perpetual guarantee on all materials and
workmanship.
The adoption of a one-year guarantee, as done
by WGCC and PCIB, is established usage in the
Philippines for private and government
construction contracts.11 The contract did not
specify a different period for defects in the
granitite wash-out finish; hence, any defect
therein should have been brought to WGCC’s
attention within the one-year defects liability
period in the contract.
We cannot countenance an interpretation that
undermines a contractual stipulation freely and
validly agreed upon. The courts will not relieve a
party from the effects of an unwise or unfavorable
contract freely entered into.12
[T]he inclusion in a written contract for a piece of
work [,] such as the one in question, of a provision
defining a warranty period against defects, is not
uncommon. This kind of a stipulation is of
particular importance to the contractor, for as a
general rule, after the lapse of the period agreed
upon therein, he may no longer be held
accountable for whatever defects, deficiencies or
imperfections that may be discovered in the work
executed by him.13
Interpretation of contracts
To challenge the guarantee period provided in
Article XI of the contract, PCIB calls our attention
to Article 62.2 which provides:
62.2 Unfulfilled Obligations
Notwithstanding the issue of the Defects Liability
Certificate[,] the Contractor and the Owner shall
remain liable for the fulfillment of any obligation[,]
incurred under the provisions of the Contract prior
to the issue of the Defects Liability Certificate[,]
which remains unperformed at the time such
Defects Liability Certificate is issued[. And] for the
purpose of determining the nature and extent of
any such obligation, the Contract shall be
deemed to remain in force between the parties of
the Contract. (emphasis ours)
The defects in the granitite wash-out finish were
not the "obligation" contemplated in Article 62.2.
It was not an obligation that remained
unperformed or unfulfilled at the time the defects
liability certificate was issued. The alleged
defects occurred more than a year from the final
acceptance by PCIB.
An examination of Article 1719 of the Civil Code
is enlightening:
Art. 1719. Acceptance of the work by the
employer relieves the contractor of liability for any
defect in the work, unless:
(1) The defect is hidden and the
employer is not, by his special
knowledge, expected to recognize the
same; or
(2) The employer expressly reserves his
rights against the contractor by reason of
the defect.
The lower courts conjectured that the peeling off
of the granitite wash-out finish was probably due
to "defective materials and workmanship." This
they characterized as hidden or latent defects.
We, however, do not agree with the conclusion
that the alleged defects were hidden.
First, PCIB’s team of experts14 (who were
specifically employed to detect such defects early
on) supervised WGCC’s workmanship. Second,
WGCC regularly submitted progress reports and
photographs. Third, WGCC worked under fair
and transparent circumstances. PCIB had access
to the site and it exercised reasonable
supervision over WGCC’s work. Fourth, PCIB
issued several "punch lists" for WGCC’s
compliance before the issuance of PCIB’s final
certificate of acceptance. Fifth, PCIB supplied the
materials for the granitite wash-out finish. And
finally, PCIB’s team of experts gave their
concurrence to the turnover of the project.
The purpose of the defects liability period was
precisely to give PCIB additional, albeit limited,
opportunity to oblige WGCC to make good any
defect, hidden or otherwise, discovered within
one year.
Contrary to the CA’s conclusion, the first
sentence of the third paragraph of Article XI on
guarantee previously quoted did not operate as a
blanket exception to the one-year guarantee
period under the first paragraph. Neither did it
modify, extend, nullify or supersede the
categorical terms of the defects liability period.
Under the circumstances, there were no hidden
defects for which WGCC could be held liable.
Neither was there any other defect for which
PCIB made any express reservation of its rights
against WGCC. Indeed, the contract should not
be interpreted to favor the one who caused the
confusion, if any. The contract was prepared by
TCGI for PCIB.15
WHEREFORE, the petition is hereby GRANTED.
The decision of the Court of Appeals in CA-G.R.
SP No. 41152 is ANNULED and SET ASIDE.
SO ORDERED.
PHILIPPINE CHARTER INSURANCE
CORPORATION, Petitioner,
vs.
PHILIPPINE NATIONAL CONSTRUCTION
CORPORATION, Respondent.
RESOLUTION
BRION, J.:
Petitioner Philippine Charter Insurance
Corporation (PCIC) submits the present motion
for the reconsideration1 of our Resolution dated
December 17, 2008, which denied due course to
its petition for review on certiorari.2 It seeks to
reinstate the petition and effect a reversal of the
Court of Appeals (CA) Decision3 and
4
Resolution dated January 7, 2008 and October
29, 2008, respectively, in CA-G.R. CV No. 86948.
In its petition, the petitioner imputes reversible
error on the appellate court for ruling that it is
liable under PCIC Bond No. 27547 and under
PCIC Bond No. 27546, as the latter bond was not
covered by the complaint for collection of sum of
money filed by respondent Philippine National
Construction Corporation (PNCC).5
The facts, as drawn from the records, are briefly
summarized below.
PNCC is engaged in the construction business
and tollway operations. On October 16, 1997,
PNCC conducted a public bidding for the supply
of labor, materials, tools, supervision, equipment,
and other incidentals necessary for the
fabrication and delivery of 27 tollbooths to be
used for the automation of toll collection along the
expressways. Orlando Kalingo (Kalingo) won in
the bidding and was awarded the contract.
On November 13, 1997, PNCC issued – in favor
of Kalingo – Purchase Order (P.O.) No. 71024L
for 25 units of tollbooths for a total of
₱2,100,000.00, and P.O. No. 71025L for two
units of tollbooths amounting to ₱168,000.00.
These issuances were subject to the condition,
among others, that each P.O. shall be covered by
a surety bond equivalent to 100% of the total
down payment (50% of the total cost reflected on
the P.O.), and that the surety bond shall continue
in full force until the supplier shall have complied
with all the undertakings and covenants to the full
satisfaction of PNCC.
Kalingo, hence, posted surety bonds – Surety
Bond Nos. 27546 and 27547 – issued by the
PCIC and whose terms and conditions read:
Surety Bond No. 27546
To supply labor, materials, tools, supervision
equipment, and other incidentals necessary for
the fabrication and delivery of Two (2) Units Toll
Booth at San Fernando Interchange SB Entry as
per Purchase Order No. 71025L, copy of which is
attached as Annex "A." This bond also
guarantees the repayment of the down payment
or whatever balance thereof in the event of failure
on the part of the Principal to finish the project due
to his own fault.
It is understood that the liability of the Surety
under this bond shall in no case exceed the sum
of P84,000.00, Philippine Currency.6
Surety Bond No. 27547
To supply labor, materials, tools, supervision
equipment, and other incidentals necessary for
the fabrication and delivery of Twenty-five (25)
Units Toll Booth at designated Toll Plaza as per
Purchase Order No. 71024L, copy of which is
attached as Annex "A." This bond also
guarantees the repayment of the down payment
or whatever balance thereof in the event of failure
on the part of the Principal to finish the project due
to his own fault.
It is understood that the liability of the Surety
under this bond shall in no case exceed the sum
of P1,050,000.00, Philippine Currency.7
To illustrate, the PCIC surety bonds are in the
amounts corresponding to down payments on
each P.O., as follows:
Surety Bond No. Purchase Order Units
Covere
Bond No. 27547 P.O. No. 71024L 25
Bond No. 27546 P.O. No. 71025L 2
Both surety bonds also contain the following
conditions: (1) the liability of PCIC under the
bonds expires on March 16, 1998; and (2) a
written extrajudicial demand must first be
tendered to the surety, PCIC, within 15 days
from the expiration date; otherwise PCIC shall
not be liable thereunder and the obligee
waives the right to claim or file any court
action to collect on the bond. The following
stipulation appears in the last paragraph of these
bonds:
The liability of PHILIPPINE CHARTER
INSURANCE CORPORATION under this bond
will expire on March 16, 1998. Furthermore, it is
hereby agreed and understood that PHILIPPINE
CHARTER INSURANCE CORPORATIONwill
not be liable for any claim not presented to it
in writing within FIFTEEN (15) DAYS from the
expiration of this bond, and that the Obligee
hereby waives its right to claim or file any
court action against the Surety after the
termination of FIFTEEN (15) DAYS from the
time its cause of action accrues.8 (Emphasis
supplied.)
PNCC released two checks to Kalingo
representing the down payment of 50% of the
total project cost, which were properly receipted
by Kalingo.9 Kalingo in turn submitted the two
PCIC surety bonds securing the down payments,
which bonds were accepted by PNCC.
On March 3, 4, and 5, 1998, Kalingo made
partial/initial delivery of four units of tollbooths
under P.O. No. 71024L. However, the tollbooths
delivered were incomplete or were not fabricated
according to PNCC specifications. Kalingo failed
to deliver the other 23 tollbooths up to the time of
filing of the complaint; despite demands, he failed
and refused to comply with his obligation under
the POs.
On March 9, 1998, six days before the expiration
of the surety bonds and after the expiration of the
delivery period provided for under the award,
PNCC filed a written extrajudicial claim against
PCIC notifying it of Kalingo’s default and
demanding the repayment of the down payment
on P.O. No. 71024L as secured by PCIC Bond
No. 27547, in the amount of ₱1,050,000.00. The
claim went unheeded despite repeated demands.
For this reason, on April 24, 2001, PNCC filed
with the Regional Trial Court (RTC),
Mandaluyong City a complaint for collection of a
sum of money against Kalingo and
PCIC.10 PNCC's complaint against PCIC called
solely on PCIC Bond No. 27547; it did not raise
or plead collection under PCIC Bond No. 27546
which secured the down payment of ₱84,000.00
on P.O. No. 71025L.
PCIC, in its answer, argued that the partial
delivery of four out of the 25 units of tollbooth by
Kalingo under P.O. No. 71024L should reduce
Kalingo's obligation.
The RTC, by Decision of October 31, 2005, ruled
in favor of PNCC and ordered PCIC and Kalingo
to jointly and severally pay the latter
₱1,050,000.00, representing the value of PCIC
Bond No. 27547, plus legal interest from last
demand, and ₱50,000.00 as attorney's fees.
Reconsideration of the trial court's decision was
denied. The trial court made no ruling on PCIC’s
liability under PCIC Bond No. 27546, a claim that
was not pleaded in the complaint.
On appeal, the CA, by Decision11 of January 7,
2008, held that the RTC erred in ruling that
PCIC's liability is limited only to the payment of
₱1,050,000.00 under PCIC Bond No. 27547
which secured the down payment on P.O. No.
71024L. The appellate court held that PCIC, as
surety, is liable jointly and severally with Kalingo
for the amount of the two bonds securing the two
POs to Kalingo; thus, the CA also held PCIC
liable under PCIC Bond No. 27546 which secured
the ₱84,000.00 down payment on P.O. No.
71025L.
Reconsideration having been denied by the
appellate court in its Resolution12 of October 29,
2008, the PCIC lodged a petition for review
on certiorari13 before this Court.
The Court, by Resolution of December 17, 2008,
denied due course to the petition.14 Hence, the
PCIC filed the present motion for reconsideration
submitting the following issues for our resolution:
I. WHETHER THE APPELLATE COURT
ERRED IN RULING THAT PCIC
SHOULD ALSO BE HELD LIABLE
UNDER BOND NO. 27546,
COLLECTION UNDER WHICH WAS
NOT SUBJECT OF RESPONDENT
PNCC's COMPLAINT FOR
COLLECTION OF SUM OF MONEY;
II. WHETHER THE CHECKS ISSUED IN
"1997" BY RESPONDENT PNCC TO
KALINGO WERE GIVEN 10 MONTHS
PRIOR TO THE AWARD OF THE
PROJECT AND AMOUNTS TO
CONCEALMENT OF MATERIAL FACT
VITIATING THE SURETY BONDS
ISSUED BY THE PETITIONER; and
III. WHETHER THE APPELLATE
COURT ERRED IN HOLDING
PETITIONER PCIC LIABLE FOR
ATTORNEY'S FEES.
The second issue is a factual matter not proper in
proceedings before this Court. The PCIC’s
position that the checks were issued 10 months
prior to the award had already been rejected by
both the RTC and the CA; both found that the
year "1997" appearing on the checks was a mere
typographical error which should have been
written as "1998."15 Consequently, we shall no
longer discuss the PCIC's allegation of material
concealment; the factual findings of the RTC, as
affirmed by the CA, are conclusive on us.
Our consideration shall focus on the remaining
two issues.
The PCIC presents, as its first issue, the
argument that "[w]hen the Court of Appeals
rendered judgment on Bond No. 27546, which
was not subject of respondent's complaint, on the
ground that respondent was incorrect in not filing
suit for Bond No. 27546, the Court of Appeals
virtually acted as lawyer for respondent."16
We find the PCIC’s position meritorious.
The issue before us calls for a discussion of a
court’s basic appreciation of allegations in a
complaint. The fundamental rule is that reliefs
granted a litigant are limited to those specifically
prayed for in the complaint; other reliefs prayed
for may be granted only when related to the
specific prayer(s) in the pleadings and supported
by the evidence on record. Necessarily, any such
relief may be granted only where a cause of
action therefor exists, based on the complaint, the
pleadings, and the evidence on record.
Section 2, Rule 2 of the 1997 Rules of Civil
Procedure defines a cause of action as the act or
omission by which a party violates the right of
another. It is the delict or the wrongful act or
omission committed by the defendant in violation
of the primary right of the plaintiff.17 Its essential
elements are as follows:
1. A right in favor of the plaintiff by whatever
means and under whatever law it arises or is
created;
2. An obligation on the part of the named
defendant to respect or not to violate such right;
and
3. Act or omission on the part of such defendant
in violation of the right of the plaintiff or
constituting a breach of the obligation of the
defendant to the plaintiff for which the latter may
maintain an action for recovery of damages or
other appropriate relief.18
Only upon the occurrence of the last element
does a cause of action arise, giving the plaintiff
the right to maintain an action in court for
recovery of damages or other appropriate relief.19
Each of the surety bonds issued by PCIC created
a right in favor of PNCC to collect the repayment
of the bonded down payments made on the two
POs if contractor Kalingo defaults on his
obligation under the award to fabricate and
deliver to PNCC the tollbooths contracted for.
Concomitantly, PCIC, as surety, had the
obligation to comply with its undertaking under
the bonds to repay PNCC the down payments the
latter made on the POs if Kalingo defaults.
It must be borne in mind that each of the two
bonds is a distinct contract by itself, subject to its
own terms and conditions. They each contain a
provision that the surety, PCIC, will not be liable
for any claim not presented to it in writing within
15 days from the expiration of the bond, and that
the obligee (PNCC) thereby waives its right to
claim or file any court action against the surety
(PCIC) after the termination of 15 days from the
time its cause of action accrues. This written
claim provision creates a condition precedent
for the accrual of: (1) PCIC’s obligation to
comply with its promise under the particular
bond, and of (2) PNCC's right to collect or sue
on these bonds. PCIC’s liability to repay the
bonded down payments arises only upon
PNCC's filing of a written claim – notifying
PCIC of principal Kalingo’s default and
demanding collection under the bond – within
15 days from the bond’s expiry date. PNCC’s
failure to comply with the written claim
provision has the effect of extinguishing
PCIC’s liability and constitutes a waiver by
PNCC of the right to claim or sue under the
bond.
Liability on a bond is contractual in nature and is
ordinarily restricted to the obligation expressly
assumed therein. We have repeatedly held that
the extent of a surety's liability is determined only
by the clause of the contract of suretyship and by
the conditions stated in the bond. It cannot be
extended by implication beyond the terms of the
contract.20 Equally basic is the principle that
obligations arising from contracts have the force
of law between the parties and should be
complied with in good faith.21 Nothing can stop
the parties from establishing stipulations,
clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law,
morals, good customs, public order, or public
policy.22 Here, nothing in the records shows the
invalidity of the written claim provision; therefore,
the parties must strictly and in good faith comply
with this requirement.
The records reveal that PNCC complied with the
written claim provision, but only with respect to
PCIC Bond No. 27547. PNCC filed an
extrajudicial demand with PCIC informing it of
Kalingo’s default under the award and demanding
the repayment of the bonded down payment on
P.O. No. 71024L. Conversely, nothing in the
records shows that PNCC ever complied with the
provision with respect to PCIC Bond No. 27546.
Why PNCC complied with the written claim
provision with respect to PCIC Bond No. 27547,
but not with respect to PCIC Bond No. 27546, has
not been explained by PNCC. Under the
circumstances, PNCC’s cause of action with
respect to PCIC Bond No. 27546 did not and
cannot exist, such that no relief for collection
thereunder may be validly awarded.
Hence, the trial court’s decision finding PCIC
liable solely under PCIC Bond No. 27547 is
correct – not only because collection under
the other bond, PCIC Bond No. 27546, was not
raised or pleaded in the complaint, but for the
more important reason that no cause of action
arose in PNCC’s favor with respect to this
bond. Consequently, the appellate court was
in error for including liability under PCIC
Bond No. 27546.
PNCC insists that conformably with the ruling of
the CA, it should be entitled to collection under
PCIC Bond No. 27546, although collection
thereunder was not specifically raised or pleaded
in its complaint, because the bond was attached
to the complaint and formed part of the records.
Also, considering that PCIC’s liability as surety
has been duly proven before the trial and
appellate courts, PNCC posits that it is entitled to
repayment under PCIC Bond No. 27546.
PNCC might be alluding to Section 2(c), Rule 7 of
the Rules of Court, which provides that a pleading
shall specify the relief sought, but may add a
general prayer for such further or other reliefs as
may be deemed just and equitable. Under this
rule, a court can grant the relief warranted by the
allegation and the proof even if it is not
specifically sought by the injured party;23 the
inclusion of a general prayer may justify the grant
of a remedy different from or together with the
specific remedy sought,24 if the facts alleged in
the complaint and the evidence introduced so
warrant.25
We find PNCC’s argument to be misplaced. A On the third issue, we hold that PCIC should be
general prayer for "other reliefs just and held liable for the attorney's fees PNCC incurred
equitable" appearing on a complaint or pleading in bringing suit. PCIC’s unjust refusal to pay
normally enables the court to award reliefs despite PNCC’s written claim compelled the latter
supported by the complaint or other pleadings, by to hire the services of an attorney to collect on
the facts admitted at the trial, and by the evidence PCIC Bond No. 27547.
adduced by the parties, even if these reliefs are
not specifically prayed for in the complaint. We WHEREFORE, premises considered, we SET
cannot, however, grant PNCC the "other relief" of ASIDE our Resolution of December 17, 2008
recovering under PCIC Bond No. 27546 because and GRANT the present motion for
of the respect due the contractual stipulations of reconsideration. The petition for review
the parties. While it is true that PCIC’s liability on certiorari is PARTLY GRANTED. The
under PCIC Bond No. 27546 would have been assailed Court of Appeals Decision of January 7,
clear under ordinary circumstances (considering 2008 and Resolution of October 29, 2008 are
that Kalingo's default under his contract with hereby AFFIRMED with
PNCC is now beyond dispute), it cannot be MODIFICATION, deleting petitioner PCIC's
denied that the bond contains a written claim liability under PCIC Bond No. 27546. All other
provision, and compliance with it is essential for matters in the assailed Court of Appeals decision
the accrual of PCIC’s liability and PNCC’s right to and resolution are AFFIRMED.
collect under the bond.
SO ORDERED.
As already discussed, this provision is the law
between the parties on the matter of liability and
collection under the bond. Knowing fully well that
PCIC Bond No. 27546 is a matter of record, duly
proven and susceptible of the court’s scrutiny, the
trial and appellate courts must respect the terms
of the bond and cannot just disregard its terms
and conditions in the absence of any showing that
they are contrary to law, morals, good customs,
public order, or public policy. For its failure to file
a written claim with PCIC within 15 days from the
bond’s expiry date, PNCC clearly waived its right
to collect under PCIC Bond No. 27546. That,
wittingly or unwittingly, PNCC did not collect
under one bond in favor of calling on the other
creates no other conclusion than that the right to
collect under the former had been lost.
Consequently, PNCC’s cause of action with
respect to PCIC Bond No. 27546 cannot
juridically exist and no relief therefore may be
validly given. Hence, the CA invalidly rendered
judgment with respect to PCIC Bond No. 27546,
and its award based on this bond must be
deleted.
ALFREDO P. PACIS and CLEOPATRA D.
PACIS, Petitioners,
vs.
JEROME JOVANNE MORALES, Respondent.
DECISION
CARPIO, J.:
The Case
This petition forreview1assails the 11 May 2005
Decision2 and the 19 August 2005 Resolution of
the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis
and Cleopatra D. Pacis (petitioners) filed with the
trial court a civil case for damages against
respondent Jerome Jovanne Morales
(respondent). Petitioners are the parents of Alfred
Dennis Pacis, Jr. (Alfred), a 17-year old student
who died in a shooting incident inside the Top
Gun Firearms and Ammunitions Store (gun store)
in Baguio City. Respondent is the owner of the
gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then
17 years old and a first year student at the Baguio
Colleges Foundation taking up BS Computer
Science, died due to a gunshot wound in the head
which he sustained while he was at the Top Gun
Firearm[s] and Ammunition[s] Store located at
Upper Mabini Street, Baguio City. The gun store
was owned and operated by defendant Jerome
Jovanne Morales.
With Alfred Pacis at the time of the shooting were
Aristedes Matibag and Jason Herbolario. They
were sales agents of the defendant, and at that
particular time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was
fired from a gun brought in by a customer of the
gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire
Magnum with Serial No. SN-H34194 (Exhibit
"Q"), was left by defendant Morales in a drawer of
a table located inside the gun store.
Defendant Morales was in Manila at the time. His
employee Armando Jarnague, who was the
regular caretaker of the gun store was also not
around. He left earlier and requested sales
agents Matibag and Herbolario to look after the
gun store while he and defendant Morales were
away. Jarnague entrusted to Matibag and
Herbolario a bunch of keys used in the gun store
which included the key to the drawer where the
fatal gun was kept.
It appears that Matibag and Herbolario later
brought out the gun from the drawer and placed
it on top of the table. Attracted by the sight of the
gun, the young Alfred Dennis Pacis got hold of
the same. Matibag asked Alfred Dennis Pacis to
return the gun. The latter followed and handed
the gun to Matibag. It went off, the bullet hitting
the young Alfred in the head.
A criminal case for homicide was filed against
Matibag before branch VII of this Court. Matibag,
however, was acquitted of the charge against him
because of the exempting circumstance of
"accident" under Art. 12, par. 4 of the Revised
Penal Code.
By agreement of the parties, the evidence
adduced in the criminal case for homicide against
Matibag was reproduced and adopted by them as
part of their evidence in the instant case.3
On 8 April 1998, the trial court rendered its
decision in favor of petitioners. The dispositive
portion of the decision reads:
WHEREFORE, premises considered, judgment
is hereby rendered in favor of the plaintiffs
[Spouses Alfredo P. Pacis and Cleopatra D.
Pacis] and against the defendant [Jerome
Jovanne Morales] ordering the defendant to pay
plaintiffs —
(1) ₱30,000.00 as indemnity for the death
of Alfred Pacis;
(2) ₱29,437.65 as actual damages for the
hospitalization and burial expenses
incurred by the plaintiffs;
(3) ₱100,000.00 as compensatory
damages;
(4) ₱100,000.00 as moral damages;
(5) ₱50,000.00 as attorney’s fees.
SO ORDERED.4
Respondent appealed to the Court of Appeals. In
its Decision5 dated 11 May 2005, the Court of
Appeals reversed the trial court’s Decision and
absolved respondent from civil liability under
Article 2180 of the Civil Code.6
Petitioners filed a motion for reconsideration,
which the Court of Appeals denied in its
Resolution dated 19 August 2005.
Hence, this petition.
The Trial Court’s Ruling
The trial court held respondent civilly liable for the
death of Alfred under Article 2180 in relation to
Article 2176 of the Civil Code.7 The trial court held
that the accidental shooting of Alfred which
caused his death was partly due to the
negligence of respondent’s employee Aristedes
Matibag (Matibag). Matibag and Jason
Herbolario (Herbolario) were employees of
respondent even if they were only paid on a
commission basis. Under the Civil Code,
respondent is liable for the damages caused by
Matibag on the occasion of the performance of
his duties, unless respondent proved that he
observed the diligence of a good father of a family
to prevent the damage. The trial court held that
respondent failed to observe the required
diligence when he left the key to the drawer
containing the loaded defective gun without
instructing his employees to be careful in
handling the loaded gun.
The Court of Appeals’ Ruling
The Court of Appeals held that respondent
cannot be held civilly liable since there was no
employer-employee relationship between
respondent and Matibag. The Court of Appeals
found that Matibag was not under the control of
respondent with respect to the means and
methods in the performance of his work. There
can be no employer-employee relationship where
the element of control is absent. Thus, Article
2180 of the Civil Code does not apply in this case
and respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even
if respondent is considered an employer of
Matibag, still respondent cannot be held liable
since no negligence can be attributed to him. As
explained by the Court of Appeals:
Granting arguendo that an employer-employee
relationship existed between Aristedes Matibag
and the defendant-appellant, we find that no
negligence can be attributed to him.
Negligence is best exemplified in the case of
Picart vs. Smith (37 Phil. 809). The test of
negligence is this:
"x x x. Could 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 imposes a duty on the actor to
refrain from that course or take precaution
against its mischievous results, and the failure to
do so constitutes negligence. x x x."
Defendant-appellant maintains that he is not
guilty of negligence and lack of due care as he
did not fail to observe the diligence of a good
father of a family. He submits that he kept the
firearm in one of his table drawers, which he
locked and such is already an indication that he
took the necessary diligence and care that the
said gun would not be accessible to anyone. He
puts [sic] that his store is engaged in selling
firearms and ammunitions. Such items which are
per se dangerous are kept in a place which is
properly secured in order that the persons coming
into the gun store would not be able to take hold
of it unless it is done intentionally, such as when
a customer is interested to purchase any of the
firearms, ammunitions and other related items, in
which case, he may be allowed to handle the
same.
We agree. Much as We sympathize with the
family of the deceased, defendant-appellant is
not to be blamed. He exercised due diligence in
keeping his loaded gun while he was on a
business trip in Manila. He placed it inside the
drawer and locked it. It was taken away without
his knowledge and authority. Whatever
happened to the deceased was purely
accidental.8
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED
SERIOUS ERROR IN RENDERING THE
DECISION AND RESOLUTION IN QUESTION
IN DISREGARD OF LAW AND
JURISPRUDENCE BY REVERSING THE
ORDER OF THE REGIONAL TRIAL COURT
(BRANCH 59) OF BAGUIO CITY
NOTWITHSTANDING CLEAR, AUTHENTIC
RECORDS AND TESTIMONIES PRESENTED
DURING THE TRIAL WHICH NEGATE AND
CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED
GRAVE, REVERSIBLE ERROR IN RENDERING
THE DECISION AND RESOLUTION IN
QUESTION BY DEPARTING FROM THE
ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS THEREBY
IGNORING THE FACTUAL FINDINGS OF THE
REGIONAL TRIAL COURT (BRANCH 59) OF
BAGUIO CITY SHOWING PETITIONER’S
CLEAR RIGHTS TO THE AWARD OF
DAMAGES.9
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental
shooting of petitioners’ son. Under Article
116110 of the Civil Code, petitioners may enforce
their claim for damages based on the civil liability
arising from the crime under Article 100 11 of the
Revised Penal Code or they may opt to file an
independent civil action for damages under the
Civil Code. In this case, instead of enforcing their
claim for damages in the homicide case filed
against Matibag, petitioners opted to file an
independent civil action for damages against
respondent whom they alleged was Matibag’s
employer. Petitioners based their claim for
damages under Articles 2176 and 2180 of the
Civil Code.
Unlike the subsidiary liability of the employer
under Article 10312 of the Revised Penal
Code,13 the liability of the employer, or any
person for that matter, under Article 2176 of the
Civil Code is primary and direct, based on a
person’s own negligence. Article 2176 states:
Art. 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 quasi-delict and is governed by the
provisions of this Chapter.
This case involves the accidental discharge of a
firearm inside a gun store.1avvphi1 Under PNP
Circular No. 9, entitled the "Policy on Firearms
and Ammunition Dealership/Repair," a person
who is in the business of purchasing and selling
of firearms and ammunition must maintain basic
security and safety requirements of a gun dealer,
otherwise his License to Operate Dealership will
be suspended or canceled.14
Indeed, a higher degree of care is required of
someone who has in his possession or under his
control an instrumentality extremely dangerous in
character, such as dangerous weapons or
substances. Such person in possession or control
of dangerous instrumentalities has the duty to
take exceptional precautions to prevent any injury
being done thereby.15 Unlike the ordinary affairs
of life or business which involve little or no risk, a
business dealing with dangerous weapons
requires the exercise of a higher degree of care.
was not loaded. In the first place, the defective
gun should have been stored in a vault. Before
accepting the defective gun for repair, respondent
should have made sure that it was not loaded to
prevent any untoward accident. Indeed,
respondent should never accept a firearm from
another person, until the cylinder or action is open
and he has personally checked that the weapon
is completely unloaded.17 For failing to insure that
the gun was not loaded, respondent himself was
negligent. Furthermore, it was not shown in this
case whether respondent had a License to Repair
which authorizes him to repair defective firearms
to restore its original composition or enhance or
upgrade firearms.18
Clearly, respondent did not exercise the degree
of care and diligence required of a good father of
a family, much less the degree of care required of
someone dealing with dangerous weapons, as
would exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET
ASIDE the 11 May 2005 Decision and the 19
August 2005 Resolution of the Court of Appeals
in CA-G.R. CV No. 60669. We REINSTATE the
trial court’s Decision dated 8 April 1998.
SO ORDERED.

As a gun store owner, respondent is presumed to

be knowledgeable about firearms safety and
should have known never to keep a loaded
weapon in his store to avoid unreasonable risk of
harm or injury to others. Respondent has the duty
to ensure that all the guns in his store are not
loaded. Firearms should be stored unloaded and
separate from ammunition when the firearms are
not needed for ready-access defensive
use.16 With more reason, guns accepted by the
store for repair should not be loaded precisely
because they are defective and may cause an
accidental discharge such as what happened in
this case. Respondent was clearly negligent
when he accepted the gun for repair and placed
it inside the drawer without ensuring first that it