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TORT DEFINED EFFECT OF ROMAN LAW

 An unlawful violation of private right, not created by contract, and which gives right to an The influence of Roman Law is quite evident in the field of quasi-delict. It should be noted that the
action for damages “Institutes” in Roman law added the category of obligations that arise quasi ex delicto.
 An act or omission producing an injury to another, without any previous existing unlawful
relation of which the said act or omission may be said to be a natural outgrowth or incident The ff. are listed in the category:
 “A private or civil wrong or injury, other than breach of contract,” for which the court will a. Liability of a judge who misconducts a case or gives a wrong decision
provide a remedy in the form of an action for damages b. The liability of an occupier of a building for double the damage caused by anything thrown or
 It is a violation of a duty imposed by general law or otherwise upon all persons occupying the forced out of the building, no matter by whom, on to a public place
relation to each other that is involved in a given traction. There must always be a violation of c. Liability of the occupier if he keeps any object suspended from the building which would do
some duty that must arise by operation of law and not by mere agreement of the parties damage if it fell
 It is a legal wrong committed upon person or property independent of contract d. The liability of the shop keeper, innkeeper or keeper of a stable for any theft or damage caused
 The SC defined it as a breach of legal duty. It explained that tort essentially consists in the by slaves or employees, or in case of the innkeepers, of permanent residents
violation of a right given or omission of statutory duty imposed by law
The second torts in the list of obligations arising quasi ex delicto in Roman Law is recognized in Article
KINDS OF TORTS LIABILITIES 2193 of the NCC. It provides that “the head of a family that lives in a building or part thereof is
1. Intentional torts responsible for damages caused by things thrown or falling from the same.”
 Include conduct where the actor desires to cause the consequences of his act or - On the other hand, the last liability is recognized in the NCC under the
believe the consequences of his act or believe the consequences are substantially provisions of the contract of deposit
certain to result from it
 It includes: CATCH ALL PROVISIONS
- Assault (SEE ARTICLES 19 TO 21 OF THE NCC)
- Battery
- False imprisonment Under such broad concept of torts, PH laws include the ff. torts, some of which are also considered torts
- Defamation in American Law:
- Invasion of privacy a) Defamation
- Interference of property b) Fraud
c) Physical injuries
2. Negligence d) Violation of Constitutional Rights
 Involves voluntary acts or omissions that result in injury to others, without intending e) Negligence
to cause the same f) Interference with Contractual Relations
 The actor fails to exercise due care in performing such act or omissions g) Violation of Privacy
h) Malicious prosecution
3. Strict liability i) Product liability
 The person is made liable independent of fault or negligence upon submission of j) Strict liability for possession of animals
proof of certain facts k) Abuse of rights
 When strict liability is imposed, the conduct is generally not wrongful in itself but l) Acts which violate good morals and customs
the wrong consists in causing harm by engaging in certain types of risky activities
Articles 19 to 21 of the NCC provide for general concepts that make persons liable for every
PHILIPPINE TORT LAW conceivable wrongful act. There is a general duty owed to every person not to cause harm either wilfully
or negligently.
SOURCES
The NCC is the primary statute that governs torts in the PH. Article 1157 of the NCC includes quasi- (SEE ARTICLE 1902)
delict as a source of obligation. This source of obligation is classified as “extra-contractual obligation.”
The Court takes the rule to be that a person is liable for damage done to another by any culpable act; and
Other provisions that are considered “tort” provisions can be found in other titles of the Code and in by “culpable act” the Court means any act which is blameworthy when judged by accepted legal
special laws. standards.

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The SC applied the same provision to a tort case involving fraud. The plaintiff in the said case was STATUTORY BASIS AND REQUISITES
induced to live with one of the defendants by deceiving her that he was not married. 5 sources of obligations:
VIEW THAT ARTICLE 2176 IS LIMITED TO NEGLIGENCE 1. Law
There are authorities for the view that quasi-delict covers merely negligent acts. Under this view, quasi- 2. Contracts
delict is homologous but not identical to tort of common law. 3. Quasi-contracts
4. Delict
Cangco case: The liability arising from extra-contractual culpa is always based upon a voluntary act or 5. Quasi-delict
omission which, without wilful intent, but by mere negligence or inattention, has caused damaged to
another. Fault or negligence is an indispensable requirement of an obligation based on quasi-delict. Of these
sources of obligations, only law, delict and quasi-delict may be appropriately cited as sources of tort law
The proposition is that the entire notion of quasi-delict is founded on fault or negligence that excludes liability.
all notions of intent, deliberateness, bad faith, or malice.
QUASI DELICT
Art. 2176 is limited to negligent acts or omissions and excludes the notion of willingness or intent. Torts Quasi-delict was used by the Code Commission to designate negligence as a separate source of
is much broader than culpa aquiliana because it includes not only negligence, but intentional criminal obligation because it “more nearly corresponds to the Roman Law classification of obligations and is in
acts as well such as assault and battery, false imprisonment, and deceit. harmony with the nature of this kind of liability. It was called “culpa aquiliana”.

JUSTIFICATION FOR INCLUSION OF INTENTIONAL ACTS (SEE ART. 2176)

In addition, another justification that may be offered for the inclusion of intentional acts in quasi-delict
is the aim to make the system of liabilities or obligations in this jurisdiction more coherent. REQUISITES
(1) There must be an act or omission constituting fault or negligence
PURPOSES OF TORT LAW (2) Damage caused by the said act or omission
(3) Causal relation between the damage and the act or omission
MAJOR PURPOSES
1. To provide a peaceful means of adjusting the rights of parties who might otherwise take the ABSENCE OF CONTRACT NOT A REQUISITE
law into their own hands
2. Deter wrongful conduct CASES WHEN THERE IS CONCURRENCE
3. To encourage socially responsible behaviour Cangco case: “When such contractual relation exists the obligor may break the contract under such
4. To restore injured parties to their original condition, insofar as the law can do this, by conditions that the same act which constitutes a breach of the contract would have constituted the source
compensating them for their injury of an extra-contractual obligation had no contract existed between the parties.”

CHAPTER 2: NEGLIGENCE The test whether a quasi-delict can be deemed to underlie the breach of a contract:
o Where, without a pre-existing contract between two parties, an act or omission can
Actionable negligence may either be: nonetheless amount to an actionable tort by itself, the fact that the parties are contractually
1. Culpa contractual bound is no bar to the application of quasi-delict provisions to the case
2. Culpa aquiliana
3. Criminal negligence Justice Vitug:
o Quasi-delict could be the cause for breaching a contract that might thereby permit the
Thus, an action for damages for the negligent act of the defendant may be based on contract, quasi delict application of applicable principles on tort even where there is a pre-existing contract between
or delict. The bases of liability are separate and distinct from each other even if only one act or omission the plaintiff and the defendant. However, he believed that the doctrine governs only where the
is involved. act or omission complained of would constitute an actionable tort independently of the
contract
Manresa’s view:
- He believe that there is a difference between culpa, substantive and Sir John Salmonds:
independent, which of itself constitutes the source of an obligation between o Example: A physician who harms his patient by negligently administering a deleterious drug:
persons not formerly connected by any legal tie and culpa considered as an the physician is guilty of a wrong that is both a breach of contract and a torts
incident in the performance of an obligation already existing

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o First mode of case: When a person may be required to perform some duty which already lies contract general obligation or duty to observe the standards
upon him independently of any contract. The breach of such a contract is also a tort, inasmuch of care set by society in dealing with other persons
as liability would equally have existed in such a case had there been no contract Does not create the vinculum juris between the The wrongful or negligent act or omission creates
o Second mode: the cases where the defendant has taken upon himself a duty by contract that parties. a vinculum juris and gives rise to an obligation
did not previously exist except by virtue of the contract even between two persons are not formally bound
o Example: If I lend my horse to one who injured it by overdriving, he is, as we have already by any other obligation
seen, guilty of a tort as well as of a breach of contract; for the duty not to overdrive another
person’s horse exists independently of any contract CUPLA AQUILIANA DISTINGUISED FROM CRIMES

DUTY NEED NOT BE ALLEGED AND PROVED CULPA AQUILIANA CRIMES

There are decisions of the SC where the elements of tort liability for negligence are said to include: Only of private concern Affect the public interest
(1) Duty By means of indemnification, merely repairs the RPC punishes or corrects criminal act
(2) Breach damage
(3) Injury
(4) Proximate cause CONCURRENCE OF CAUSES OF ACTION
A single act or omission may give rise to two or more causes of action. The obligation based on one is
The last 3 elements are the elements that are often cited as the requisites of liability based on quasi- separate and distinct from the other. That is, an act or omission may give rise to an action based on
delict. delict, quasi-delict and even contract.
Breach: When an act which constitutes a breach of contract would have itself constituted the source of a quasi-
 Refers to the negligent act or omission delictual liability had no contract existed between the parties, the contract can be said to have been
breached by tort, thereby allowing the rules on tort to apply.
Injury:
 Corresponds to the damage suffered by the plaintiff ONE DEFENDANT, TWO OR MORE SOURCES OF OBLIGATION
There may be concurrence of causes of action even if only one person is sought to be held liable. Thus, a
CONTRACT common carrier’s liability may arise ex contractu and at the same time quasi ex-delicto and ex delicto
Art. 1170 provides that those, who in the performance of the obligation are guilty of fraud, negligence, even if there is only a single act or omission.
or delay, are liable for damages. Negligence is therefore only one of the ways of breaching a contract
and the presence of negligence is not indispensable for a finding of breach of contract. TWO OR MORE DEFENDANTS
Whenever a contractual obligation can be breached by tort, it is also possible that two persons are liable
Actions for damages based on contracts are not tort actions. Action for damages filed by the passengers for such breach even if there is only once act or omission that causes the injury. The simultaneous or
against common carriers are actions to enforce an obligation ex contractu. even successive acts or omissions of the two or more persons may result in both culpa contractual and
culpa aquiliana, in which event, Art. 2194 of the NCC apples.
DISTINCTIONS
Example: The same negligence of a guard who is employed by an independent contractor to man a
CULPA AQUILIANA DISTINGUISHED FROM CULPA CONTRACTUAL common carrier mat result in the solidary liability of the carrier and the independent contractor that
directly employs the guard.
CULPA CONTRACTUAL CULPA AQUILIANA
The foundation of the liability of the defendant is A separate source of obligation independent of PROSCRIPTION AGAINST DOUBLE RECOVERY
the contract. contract. The 2 causes of action may be availed in proper cases subject to the caveat that the offended party
cannot recover twice for the same act or omission or under both causes of action. Since these two civil
The obligation to answer for the damage that the When breach of contract was committed through liabilities are distinct and independent of each other, the failure to recover in one will not necessarily
plaintiff has suffered arises from breach of the the negligence of an employee, the employer preclude recovery in the other.
contract by reason of defendant’s failure to cannot erase his primary and direct liability by
exercise due care in its performance. setting up the defense of the diligence of a good (SEE ART. 2177)
father of a family in the selection and supervision
of the employee.
The pre-existing obligation is derived from The pre-existing obligation is derived from the

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CONCEPT OF NEGLIGENCE
The same test and definition apply to criminal negligence. Although the RPC distinguishes between
simple imprudent and reckless imprudent, they are conceptually compatible with negligence arising
from quasi-delict.
DEFINITION
Negligence:
 The omission of that degree of diligence which is required by the nature of the obligation and
corresponding to the circumstances of persons, time and place
 The omission to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would not
 The failure to observe for the protection of the interests of another person, that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other person
suffers injury
 Want of care required by the circumstances. It is a relative or comparative, not absolute term
and its application depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonable require
 Conduct which creates undue risk of harm to other
TEST OF NEGLIGENCE
Did the defendant in doing the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation>
Could a person man, in the case under consideration, foresee harm as a result of the courses actually
pursued?
FORESEEABILITY
Since the unreasonableness of the risk means danger than is apparent or should be apparent, the
determination of negligence is a question of foresight on the part of the actor. Foreseeability is the
fundamental test of negligence.
The test to determine the existence of negligence is to ask if the defendant used reasonable care and
caution which an ordinarily prudent person would have used. However, to determine what a reasonable
man would have done requires the application of the test of foreseeability.
UNDUE RISK
Negligence, as it is commonly understood is a conduct that creates an undue risk of harm to others.
If a driver of a vehicle recklessly drove his vehicle thereby causing damage to another’s vehicle, the
reckless driving created an undue risk that resulted in such damage.
What is undue risk is determined by the test of foreseeability. In negligence, risk means a danger which
is apparent, or should be apparent, to one in the position of the actor. It is a risk that is reasonable
foreseeable. Such type of risk is unreasonable risk and if the same results in injury o the plaintiff, the
latter can recover from the defendant.
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PROBABILITY
The SC explained that there is negligence “if a prudent man in the position of the tortfeasor would have
foreseen that the effect harmful to another was sufficiently probable to warrant his conduct or guarding
against its consequence.” If there is a great probability and risk that damages will result, a person is
negligent if he did not exercise due diligence in the face of such great probability.
Generally, the degree of care required is graduated according to the danger a person or property
attendant upon the activity which the actor pursues or the instrumentality he uses.
However, foreseeability is not the same as probability. Even if there is lesser degree of probability that
damage will result, the damage may still be considered foreseeable.
NEGLIGENCE IS CONDUCT
What is important in the determination of the presence or absence of negligence is whether the person
who is ought to be held liable omitted to do something which is a reasonable man would do or did
something which a reasonable man would not do. The state of the mind of the actor is not important:
good faith or use of sound judgment is immaterial.
o Hence, the existence of negligence in a given case is not determined by reference to the
personal judgment but by the behaviour of the actor in the situation before him
o Even if the actor believed that he exercised proper diligence, he will still be liable if his
conduct did not correspond to what a reasonable man would have done under the same
circumstances
MOTIVE NOT MATERIAL
PURELY MORAL FAULT NOT COVERED
A person who does not give assistance to a person who is in danger of death is guilty of moral
negligence, but not of juridical negligence.
PRIOR CONDUCT
The conduct that should be examined in negligence cases is prior conduct.
Prior conduct:
 Conduct prior to the injury that resulted or the aggravation thereof
“Diligence before the fact” may include the duty to investigate. Where the situation suggests
investigation and inspection in order that its danger may fully appear, the duty to make such
investigation and inspection is imposed.
NOT NECESSARILY THE SAFEST CONDUCT
The fact that there may have been a safer method than that employed or danger may have been avoided
in a different manner, does not make an act negligent.
RISK BENEFIT ANALYSIS
The ff. circumstances should be considered:
a) Gravity of the harm to be avoided
b) Utility of conduct or the social value it seeks to advance
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c) Alternative course of action, dangers and advantages to the person or property of the actor
himself and to others

Reasonableness may depend upon 5 factors:

1) The magnitude of risk
2) The value or importance of that which is exposed to the risk, which is the object that the law
desires to protect
3) A person who takes a risk of injuring the principal object usually does so because he has some
reason of his own for such conduct
4) The probability that the collateral object will be attained by the conduct which involves risk to
the principal
5) The probability that the collateral object will be attained without taking the risk

THE HAND TEST

Since there are occasions when every vessel will break from her moorings, and since, if she does, she
becomes a menace to those about her, the owner’s duty, as in other similar situations, to provide against
resulting injuries is a function of 3 variables:
(1) That the probability that she will break away
(2) The gravity of the resulting injury, if she does
(3) The burden of adequate precaution

*Not applicable In the PH.

COST OF PRECAUTION
It is only one of the circumstances that should be considered in determining negligence in this
jurisdiction. The reasonable response of a reasonable man depends on the magnitude of the risk.

CIRCUMSTANCES IN STATUES
Statutory provisions applicable to negligence cases specify circumstances that should be considered in
determining negligence.

CIRCUMSTANCES TO CONSIDER IN DETERMINING NEGLIGENCE

1. TIME
2. PLACE
3. EMERGENCY RULE
4. GRAVUTY OF HARM TO BE AVOIDED
5. ALTERNATIVE COURSE OF ACTION
6. SOCIAL VALUE OR UTILITY OF ACTIVITY
7. PERSON EXPOSED TO THE RISK

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