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NOTES

Tuesday, 13 August 2019 1:55 PM

Aug 13, 2019

Art 2207. if the plaintiff's property has been insured, and he has received indemnity from the in
loss arising out of the wrong of breach of contract complained of, the insurance company shall
insured against the wrongdoer or the person who has violated the contract. If the amount paid
fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from

DH: what does subrogation result in? For example, MR X took out a life insurance with insuranc
when MR X was coming home robbers chanced upon him and stole his stuff and stabbed him t
insurance company and basic insurance contract will say "since his life was taken by way of rob
Insurance company pays 1M pesos. What are the rights of the insurance company?
A: You cannot rely on 2207, because the example is life insurance and this only pertains t

Parties in a insurance contract:


1. Insurer
2. Insured

Art 2207- pertains to property

Property insurance example


DH: lets say I purchase steel pipes from US and I want to bring to PH, so I contract with shippin
obligation is to bring to pipes to me. The insurance company agreed to give me protection to m
say the goods are worth 1M dollars, in the middle of the sea a typhoon occurs causing the vess
with the goods. Can I collect from the insurance company?
A: Yes, the nature of insurance policy, in that situation the insurance company has to pay
DH: does he have a right under Art 2207?
A: yes, he has the right of subrogation
- Under the civil code this is the right of succession, the insurer acquires the right au
insured of the premium to the insurer
- Thus, the insurer is entitled to collect from the shipping company (he steps into the
- How much can the insurer collect? The amount that the insured can collect form th
this case the insurer can collect 1M
DH: is the shipper a party? NO! So who are bound by the contract? Only the party excluding the
DH: should the shipper be made liable to pay anything? But there is a fortuitous event. Under t
performance of an obligation in a fortuitous event. Again, will the shipper be liable again and d
nsurance company for the injury or
l be subrogated to the rights of the
d by the insurance company does not
m the person causing the loss or injury.

ce company for 1M pesos, one day


to death, beneficiary makes a claim to
bbers, insurance company should pay"

to property insurance.

ng company. Shipping company's


my goods while they are in transit, lets
sel to submerge in the ocean together

utomatically after payment by the

e rights of the insured)


he shipper, it cannot go above that. In

e shipper.
the CC, parties are excused from
does the insurer have subrogation
- Thus, the insurer is entitled to collect from the shipping company (he steps into the
- How much can the insurer collect? The amount that the insured can collect form th
this case the insurer can collect 1M
DH: is the shipper a party? NO! So who are bound by the contract? Only the party excluding the
DH: should the shipper be made liable to pay anything? But there is a fortuitous event. Under t
performance of an obligation in a fortuitous event. Again, will the shipper be liable again and d
rights under 2207?
DH: in this case, can it be argued that there was no wrongdoing? -- YES, what does Art 2207 req
A: that he has a subrogation rights against the wrongdoer or someone who has breached
DH: In this case, if there is no question that it was a fortuitous event that caused it (typhoon) w
rights of the insurer if it paid the insured?
A: the insurer might file a case against the shipping company but the shipping company m
In this case, by successfully arguing that defense he has not breached his contract this no

IN CONCLUSION: In this case, the insurer has no subrogation rights to succeed because the ship
any wrong doing the fault was caused by typhoon

DH: In the boat of the shipper, the old rope snapped and cause the boat to sink. I paid the insu
can the insurance corporation claim?
A: Yes, pursuant to subrogation right the insurer can sue the shipping 1M
DH: if the insurance contract provided for a policy 7OOK, how much is the insurer entitled to cl
deficiency?
A: only 7OOK, and any deficiency can only be claimed by the insured and not the insurer.
- The shipper is liable to pay the insured the 300k
DH: Let’s say same facts as above-mentioned, I put under you care good worth 1M, because of
I collect 1M and not claim from insurance company, can I do that?
A: yes, I can sue you for 1M
DH: if I win that case and win 1M from you can I still collect the 700k from the insurance compa
A: no, because I received 1M from you and under the concept of insurance it is not just a
of indemnity, it is supposed to indemnify me but since I was already indemnified there ar
collection
DH: does the insurance company have subrogation rights in that case?
A: yes, insurance company can collect the full amount of 1M (it is not the amount of the
ACTUALLY PAID)

LIMIT:
1. INSURANCE CONTRACTS ARE CONTRACT OF INDEMNITY - No unjust enrichment

Note: subrogation in art 2207, is legal subrogation (occurs by operation of law) as opposed to c
by parties)

SMITHKLINE:
Limits to collect by insurance contract?
1. That which the insured is entitled to collect
e rights of the insured)
he shipper, it cannot go above that. In

e shipper.
the CC, parties are excused from
does the insurer have subrogation

quire?
d the contract
what will happen to the subrogation

may raise defenses like force majeure.


ot liable.

pper did not breach the contract or do

urance company 1M and the loss is 1M,

laim? Who is entitled to claim the

f your negligence goods were lost, can

any?
a pure obligation to pay, it is contract
re principles which will bar double

policy but it is the amount the insurer

conventional subrogation (agreed to


by parties)

SMITHKLINE:
Limits to collect by insurance contract?
1. That which the insured is entitled to collect
2. That actually paid

What is an insurance contract?


- Sec. 2 - Contract of insurance is an agreement whereby one
undertakes for a consideration to indemnify another against loss, damage or liability aris
event

DH: are all surety contracts deemed to be insurance contracts?


A: The surety must be engaged in the insurance business

DH: According to De Leon, what does the definition above fail in? - the concept of indemnity fo

Aug 20, 2019


What is suretyship? -solidary liable to person it is guaranteeing
What is its difference with insurance?
- Insurance contract, the insured may have another agreement with another party to ship
- How may parties are there in a suretyship? - 3 parties unlike in insurance there are only 2

When is a contract of suretyship deemed an insurance contract?


When:
1. Making or proposing to make, as insurer, and contract of insurance
2. Making or proposing to make, as surety, any contract of suretyship, as a vocation and no
legitimate business or activity of the surety
3. Doing any kind of business, including a reinsurance business, specifically recognized as co
business within the meaning of this code
4. Doing or proposing to do any business in substance equivalent to any of the foregoing in
provisions of this code

NATURE AND CHARACTERISTIC (define each, he will give the characteristic)


1. Consensual
2. Voluntary
3. Aleatory
4. Executed and executory
5. Conditional
6. Contract of indemnity
7. Personal contract

Q: what does contract of indemnity mean? - THERE IS A LIMIT, to make good only the loss of th
sing from an unknown or contingent

or death (has no value at all)

his goods
2 parties

ot merely incidental to any other

onstitution the doing of an insurance

n a manner designed to evade the

he insured
5. Conditional
6. Contract of indemnity
7. Personal contract

Q: what does contract of indemnity mean? - THERE IS A LIMIT, to make good only the loss of th

ELEMENTS OF INSURANCE
1. Insured possess an interest of some kind susceptible of pecuniary estimation known as "i
2. Insured is subject to a risk of loss through the destruction or impairment of that interest
3. Insurer assumes risk of loss
4. Such assumption of risk is part of a general scheme to distribute actual losses among a la
persons bearing similar risks
5. As consideration for the insurer's promise, the insure makes a ratable contribution called
fund

What do you mean by there is insurable interest?


- Kind of interest that under the law is insurable, not all interest is insurable

It is said that insurance contract is a risk-distribution scheme rather than risk-shifting

RISK - SHIFTING
GUARANTOR - when the obligee does not pay the guarantor the liable shifts to the guarantor

RISK -DISTRIBUTION
INSURANCE COMPANY
- there are a lot of insured which pays premium to an insurance company, that becomes th
experience by its members
- Why risk? "ondoy" can make the insurance company bankrupt

Life vs non-life insurance


Classification of insurance based on who is protected?
1. Where the insured himself is protected
2. There are kind of insurance where third party can benefit
3. The risk that you cover, there are insurance contracts which has the term "all-risk contra
a. ALL RISK - Covers all risk which may be suffered by the insured
b. SPECIFIED - earthquake, etc

CASE DOCTRINED
1. UNITED DOCTORS MEDICAL CENTER VS BERNADAS
a. Retirement benefits and insurance contract are two separate and distinct benefits
b. DH: The benefits that he had was both insurance and retirement. When the court s
different things, they are not precluded from claiming both
i. Insurance contract - indemnity for the risk of loss, life or loss to restore the p
he insured

insurable interest"
by the happening of designated perils

arge group or substantial number of

d "premium", to a general insurance

he fund which pays for the risk

acts" as opposed to "specified risk"

said there are two completely

parties
CASE DOCTRINED
1. UNITED DOCTORS MEDICAL CENTER VS BERNADAS
a. Retirement benefits and insurance contract are two separate and distinct benefits
b. DH: The benefits that he had was both insurance and retirement. When the court s
different things, they are not precluded from claiming both
i. Insurance contract - indemnity for the risk of loss, life or loss to restore the p
ii. Retirement benefits - something paid to the employee because he served a p
c. What was insured? -it was the life insurance, when the employee died, Cecario's be
d. Life is not a contract of indemnity, so there is something wrong with the definition
2. CCC INSURANCE VS CA
a. Insurance contract are liberally construed in favor of the insured and strictly agains
b. If damage is caused because someone else is driving the car, can the insurance still
not be required by the insurance policy to pay for it because it only states (only if c
driver)
c. They were contending that the driver cannot read or write thus will cause more ac
time: issuance of a driver's license without previous examination)
d. Authorized driver - is one duly issued a license
3. ASSOCIATION OF BAPTISTS FOR WORLD EVANGELISM INC VS FIELDMAN'S INSURANCE
a. In order to interpret the word theft in an insurance contract, what did the court re
under the RPC
b. They are trying to see the intent of the party for the use of word
c. If you see the word theft in an insurance policy, can you look at theft in a generic s
RPC? - if it is not defined in the contract then you can look at theft in a generic sens
the contract here
d. The court has to look at the language used in order to see whether or not the insur
4. MAYER STEEL PIPE VS CA
a. An "all-risk" insurance policy covers all kinds of loss, except:
i. Due to willful and fraudulent acts of the insured
b. Contract of carriage vs contract of insurance are two different contracts
c. If the insurer pays then he is subrogated to the rights of the insured
d. What was being insured? Steel pipes (subject matter)
e. What was covered? All - risk: comprehensive of an loss, damage or liability
f. The condition of the pipes were good but when it was shipped, a part of it was dam
establish with absolute certainty what it is that caused the damage? - in this case, s
5. GREAT PACIFIC LIFE VS CA
a. The insurer is claiming that it is not liable because it did not consent to the contrac
is no contract
b. Like all other contract, a meeting of the mind is necessary
c. An insurance contract is a contract of utmost good faith -> the parties have to com
i. He didn’t make a disclosure with respect to his daughter being sick, the SC sa
dealing with each other in an insurance contract
6. AMERICAN HOME ASSURANCE COMPANY VS TANTUCO
a. Not talking about the risk covered, but the problem here was the subject matter (w
b. Contract was not perfectly written, because it is not clear
c. IF A CONTRACT IS NOT CLEAR, follow the intent of the parties
said there are two completely

parties
particular number of years
eneficiaries will receive the benefits
n of insurance contract

st the insurer
l be paid? - the insurance company will
car is driven by owner and authorized

ccidents (the motor vehicles law at that

esort to? - used the definition of theft

sense or do you have to look at the


se, there are many ways to interpret

rer should be held liable

maged. Is it necessary to recover to


since it was an all-risk insurance

ct and if there is no consent then there

mply with what is stated in the contract


aid the parties must be upfront when

whether it is covered or not?)


i. He didn’t make a disclosure with respect to his daughter being sick, the SC sa
dealing with each other in an insurance contract
6. AMERICAN HOME ASSURANCE COMPANY VS TANTUCO
a. Not talking about the risk covered, but the problem here was the subject matter (w
b. Contract was not perfectly written, because it is not clear
c. IF A CONTRACT IS NOT CLEAR, follow the intent of the parties
i. How will you find out the intent of the parties? - you will read the contract as
d. In a case where you didn’t have as many aids to ascertain the intent, the language
i. Ex: I own a building, the office building is located in 1234, I also have my resid
policy saying the structure is to be insured but the address that I wrote is 123
1) SOMETIMES you can look at extrinsic aids (acts before the contract wa
ii. What if both parties are in the same situation?
1) Contracts are liberally construed in favor of the insured and against the
7. RIZAL SURETY VS CA
a. For it to be covered by the insurance policy: (1) said property must be contained or
(2) forms part of the building
b. When contracts are not perfectly written, and there is doubt: The SC pointed out ->
or stipulation in a contract shall not favor the party who caused the obscurity"
c. As a lawyer, make sure you're very accurate in the way you describe
8. PERLA COMPANIA VS CA
a. So even as we saw that there is a principle that insurance contract should be const
favor of insured? Why was it not applied here?
i. Because the contract was clear
b. Doctrine: contracts which are the private laws of the contracting parties should be
of their stipulations, if their terms are clear and leave no room for doubt as to the i
9. ZENITH INSURANCE VS CA
a. In so far as the amount due is concerned based on the agreement of the parties, th
take out certain amount as your deductibles .
i. What was the mistake of the insurance company? - they did not mention any
cannot deduct
ii. What do we see here that is essential now the obligation of the insurance co
then he should do so without unreasonable delay
10. STRONGHOLD INSURANCE
a. Since the insurance company was denying liability then the proof of denying liabilit
have the burden of proving that they have no liability under the insurance policy
b. Lessons here:
i. What's the burden proof? The one who makes the allegation has the burden
1) In this case, they are not liable because under the contract -> the drive
ii. If an insurance company is claiming exemption or violation, it has the burden
1) What quality is essential? It must be clear, convincing and credible
11. WHITE GOLD MARINE SERVIES INC VS PIONEER
a. Insurance business -> were you doing insurance business or not?
i. In the definition of insurance contract - what they were doing fell within that
ii. Rule: you look at the nature of the business and not what they call it
aid the parties must be upfront when

whether it is covered or not?)

s a whole
can be used to either
dence close by in 125, I enter into a
34
as executed)

e insurer

r stored in areas occupied by trans and

> "the interpretation of obscure words

trued strictly against the insurer and in

e fulfilled according to the literal sense


intention of the contracting parties.

he insurance company said we have to

ything about deductible this they

ompany who is liable to pay an amount

ty should be clear, convincing and they

n of proof
er was intoxicated.
n of proof.

t
ii. If an insurance company is claiming exemption or violation, it has the burden
1) What quality is essential? It must be clear, convincing and credible
11. WHITE GOLD MARINE SERVIES INC VS PIONEER
a. Insurance business -> were you doing insurance business or not?
i. In the definition of insurance contract - what they were doing fell within that
ii. Rule: you look at the nature of the business and not what they call it

AUG 27, 2019


What is the proper subject matter of insurance?
- Property
- Life
- Liability
What can you insure those against?
1. Contingent
a. To occur in the future
b. May or may not happen
c. You can insure those that are certain to happen (ex. Life insurance)
2. Unknown event
a. May be past or future
b. Must be unknown

For you to insure your car must there have been there in the past occurring in your neighborho

Lets say your house burns on Monday, on Tuesday can you insure your property and collect da
be a contingent evet (has not happen, may happen)

A contingent event is necessarily one, if it occurs at all should be in the future


How about past event? And we said that you cannot insure that?
-> it can be insured provided that such past event is unknown

Future is easy, damage has no occurred because event is contingent. When it comes to past ev
to a past event which has not yet occurred? The past or future event must be contingent or un

When the law says past event, it has to be coupled with the unknown
-if you are insuring against something that may have incurred before it, it should be unknown
- Caveat, these days insurance company will not insure you for past events anymore

Such contingent or unknown event, whether past or future must:


1. Damnify a person having an insurable interest
2. Create a liability against him

What cant you insure?


1. Gambling
n of proof.

ood? -no

amages for that prior fire? - NO, it must

vent, if the law allows us to get insured


nknown
Such contingent or unknown event, whether past or future must:
1. Damnify a person having an insurable interest
2. Create a liability against him

What cant you insure?


1. Gambling
a. Law expressly states that the risk of loss due to gambling cannot be insured

REQUISIRES OF INSURANCE CONTRACT:


1. Subject matter which contains the insurable interest
2. Consideration -> "premium"
3. Meeting of the mind
4. Unknown or contingent event
5. Undertaking to indemnify

CODE & book: while you may be able to insure a past risk, it must be a past risk that is unknow
The rule today: (Pan Malayan, it is crucial to establish when the policy was entered into becaus
that had already occurred before the contract of insurance was executed

Ø Who can be an insurer?


- Corporation
- Partnership
- Association
- Must be a juridical entity

Can a foreign corporation be an insurer?


- It can the law does not distinguish
- A foreign or domestic can be an insurer

If a corporation wants to engage in the business in insurance, who must he get authorization fr
- The government in charge of regulating insurance is: insurance commission

Ø Who can be insured


- Can be anyone even natural person unlike insurer
- Except: public enemy
○ A nation with whom the Philippines is at war and it includes every citizen or subjec
§ Must be declaration of war
- How about those with pending insurance policy with public enemy?

"all rights, title and interest in the policy of insurance taken out by the original owner on the lif
automatically vest in the latter upon the death of the original owner, unless otherwise provide
insured ("owner)" --> insurer
- If I take out life insurance on my son, I will be the owner of the policy, the person whose
yung insured hindi siya yung nagcocontrata)
wn
se there can be no insurance on a risk

rom?

ct of such nation

fe or health of the person insured shall


ed for in the policy"

life is insured is my son (technically


"all rights, title and interest in the policy of insurance taken out by the original owner on the lif
automatically vest in the latter upon the death of the original owner, unless otherwise provide
insured ("owner)" --> insurer
- If I take out life insurance on my son, I will be the owner of the policy, the person whose
yung insured hindi siya yung nagcocontrata)
○ If the original owner takes out an insurance on another person as "insured"
§ If insured dies, the proceeds are given our by the insurance policy
§ But what if the original owner is the one who dies?
□ Insurer still has no obligation to pay the proceeds
□ The policy will go to the insured
□ If the owner dies before the insured -> the insurance policy vests autom
□ "peculiar contract"

Insurer and insured enters into a contract which protects the insured from an unknown or cont
risk occurs, is it always the case the case that the payment is always given to the insured?
- NO
○ Ex: life insurance policy, insurer pays the beneficiaries
§ IN LIFE INSURANCE POLICY, the person to whom the proceeds of the life insu
§ Insured takes insurance on house , can he say that if my house burns give the
□ Yes, you can have an assignee
® Insured (mortgagor) borrows money from the bank (mortgagee)
bank, in that case:
◊ can the insured enter into a insurance policy? - yes
◊ Can the bank enter into an insurance policy even though h
because he has an interest in the house
◊ Can the insurance policy of (mortgagor and insurer) and (m
same time? - yes
} Mortgagor: owner
} Mortgagee: has an interest in that house

On the mortgagor side, he can instruct that the loss is payable to the mortgagee or assign the p
- The code says the mortgagor continues to remain a party and therefore anything his doe
there is an obligation of the mortgagor required to fulfill, the mortgagee may perform it
has an interest
- OPEN OR LOSS PAYABLE CLAUSE - proceeds just being assigned
- STANDARD UNION CLAUSE - the above-mentioned situation

Valenzuela vs CA
- Valenzuela is not a privy to the contract because he is just an agent of the insurer
- They wanted to revoke the agency but they cant because this was agency coupled with a
not in a position as a matter of right to unilaterally revoke the agency
- Valenzuela is responsible for non collection of premium, philamgen cannot claim such pa
the insured's obligation to pay the premium
fe or health of the person insured shall
ed for in the policy"

life is insured is my son (technically

matically to the insured

tingent past events so whenever the

urance policy is the beneficiary


e proceeds to someone else?

), insured mortgages his house to the

he does not own the house? - yes,

mortgagee and insurer) exist at the

proceeds to the mortgagee


es will and may affect the contract if
on behalf of the mortgagor since he

an interest so therefore philamgen was

ayment from Valenzuela because it is


Valenzuela vs CA
- Valenzuela is not a privy to the contract because he is just an agent of the insurer
- They wanted to revoke the agency but they cant because this was agency coupled with a
not in a position as a matter of right to unilaterally revoke the agency
- Valenzuela is responsible for non collection of premium, philamgen cannot claim such pa
the insured's obligation to pay the premium

RCBC vs CA
- In this case RCBC was mortgagee/ creditor as against goyo
- Part of the loan was they had to acquire an insurance policy and indorse it to the mortga
- When the risk occurred, does the mortgagee have the right to go after the insurer? - yes
was assigned to him
- The reason why malayaan did not disburse the proceeds of the policy to RCBC, because o
the proceeds and according to the court it was not proper because under the insurance c
proceeds of insurance goes to the exclusive interest to the person to whom it was intend
attachment will not attach
- Because proceeds of insurance are supposed to be applied exclusively for the benefit of t
- Even on the basis of the civil code, this should be enough to exclude other creditors beca

PALILEO
- If the mortgagee takes out insurance and the mortgage property is destroyed, in so far as
insurance takes place of the mortgagee and the mortgagor is now supposed to pay the m
- Subrogation
- If the loan is not yet due and the loan is payable one year from now 6 months from the li
the insurer pays the mortgagee the insurer's rights is to go after mortgagor, when might
mortgagor? - at the end of the contract when it matures
- B lent money to A 12K , provided that house will be insured by A = conditional sale
○ But court ruled that it was an Equitable mortgage

PREMIUM

POLICY
DH: definition as a written instrument in which the insurance contract is set for
Contract - just requires meeting of the minds
Policy - must be reduced into writing

Policy
-must be in written form and it must be filled up essentially, it must be in a form approved by t
-this reflects the meeting of the minds of the party
-in practice
Ø Applicant will sign insurance form
Ø Etc
an interest so therefore philamgen was

ayment from Valenzuela because it is

agor
he has a cause of action because it

other credits have already attached


code, sec 53 which says that the
ded (i.e. beneficiary) because of that

the person to whom it was intended


ause the mortgagee has a right

s mortgagor is concerned, the


mortgagee

ife of the loan the house burns, after


the insurer be able to collect from the

the isnurance comission


Policy
-must be in written form and it must be filled up essentially, it must be in a form approved by t
-this reflects the meeting of the minds of the party
-in practice
Ø Applicant will sign insurance form
Ø Etc

A policy of insurance can be expanded later on


1. Expand
2. Amend increase the loss payable
-this amendements can be called
1. Rider
2. Amdnedment
3. Clause
-it must also consitutte the meeting of the ind of the party

What does the law say as a measure to determine the meeting of the mind
1. Has to be attached to the policy
2. Must be signed by the parties

While the law says that it must be in printed form. It also takes it back, printed ut electronic pw
effect of electronic commerce

Policy insurance must specificy things in the minimum:


1. Parties
a. Insurance proceeds should be aplied exclusively to the proper person to who is nam
the party
2. Amount to be insured
3. Preimuim to be paid

At the time of the effectivity


-there must be insurable interest

In loss
In life vs in property

Three kinds of policy in relation to value


1. Open
a. One where you determine the amount of indemnification upon the occurrence of t
b. You pay the actual loss so no certain price, can have a maximum
2. Valued
a. Ahead of time the parties can say this is the amount to be paid only in case of loss
b. If you insure your house and you agreed, two years your house burns so you are tr
house and you are trying to determine how much to put up the house again but by
and the road and materials have changed and if you build the house again with the
the isnurance comission

wede because it recognizes the legal

med or who is otherwise designatef by

the loss

rying to determine the value of your


y that time they discovered a fault line
e value of the surroundings may be
b. You pay the actual loss so no certain price, can have a maximum
2. Valued
a. Ahead of time the parties can say this is the amount to be paid only in case of loss
b. If you insure your house and you agreed, two years your house burns so you are tr
house and you are trying to determine how much to put up the house again but by
and the road and materials have changed and if you build the house again with the
800,000 but you agreed 1m
c. Even though valued allows party to agree to the value thee has to be a good faith v
not and parties are free to decide then the intent is not to indemnify anymore
3. Running
a. The object of the policy from time to time may be fined?
b. You own a dept store it just runs with the subject matter or so

Covernote

Q: is delivery necessary to make insurance policy valid? - no, you can have an effective contrac
agree to make it a requirement
Delivery is also not essential in acceptance of a policy because the minds can meet

CONCEALMENT
- Sec 26. is a neglect to communicate that wihch a party knows or ought to communicate
- You can be guilty of concealment if you know something and you did not disclose it, som
communicated
○ What you have to communicate -> material facts
§ If the other party ought to have known or had means of knowing then the pa
- You don’t have to disclose
○ That which a party waives
○ Makes a warranty
§ If you make a warranty of somehting it becomes part of the contract and if th
warranty
rying to determine the value of your
y that time they discovered a fault line
e value of the surroundings may be

value in the amount because if it was

ct without delivery unless the parties

mething that you ought to have

arty is not guilty of concealment

hat is breach the ground is breach of