Torts Reviewer

KMISRLBHN Student no.
2012-0692 Arellano University School of Law

TORTS AND DAMAGES SUMMARY REVIEWER Page 1

TORTS and DAMAGES

Tort - Unlawful violation of a private right
Private or civil wrong

Kinds of Tort Liabilities:

Intentional Torts
Negligence
Strict Liability

Catch all provision
Article 19,20,21 NCC

Purposes of Tort Law:

1. To provide peaceful means for
adjusting rights of parties
2. Deter wrongful conduct
3. Encourage socially responsible
behavior
4. To restore injured parties to their
original condition

NEGLIGENCE

Types of negligence:

1. Culpa Aquiliana
2. Criminal negligence
3. Culpa Contractual

Quasi Delict = Culpa Aquiliana

Obligation arises from breach of duty to
society as imposed by law.

Article 2176 Whoever by act or
omission causes damage to another, there
being fault or negligence, is obliged to pay for
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

Requisites of Quasi- delict

1. An act or omission constituting fault or
negligence
2. Damage caused by said act or omission
3. Causal relation between the damage
and the act or omission

Criminal negligence = Ex Delicto
(governed by Art 365 of the RPC)

Requisites:
1. The offender does or fails to do an
act
2. The doing or failure is voluntary
3. It is without malice
4. The material damage results from
reckless imprudence
5. There is inexcusable lack of
precaution on the part of the
offender

Contractual obligation = Culpa Contractual

Obligation arises from breach of
contract.
Governed by Article 1170 to 1174 of the
NCC also in relation to Article 2178.
(the conceptual framework of negligence is the
same in contract as well as in quasi delict)

Concept of Negligence

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

If the law or contract does not state the
diligence which is to be observed in the
performance, that which is expected of a good
father of a family shall be required.
KMISRLBHN Student no. 2012-0692 Arellano University School of Law

Jurisprudential definitions of negligence:

1. The doing or not doing of something
that a reasonable prudent man would
or would not do
2. Failure to observe for the protection of
the interest of another person.
3. Want of care required by the
circumstances.
4. Conduct which creates undue risk of
harm to others

UNDUE RISK reasonably foreseeable risk
Extraordinary risk requires Extraordinary care
Negligence is conduct, Even if he 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.
TEST OF NEGLIGENCE in the PHILIPPINES
a. Cost of precaution
b. Circumstances of the case
c. Circumstances of the statute
Circumstances to consider in determining
Negligence:
a. Time - time of the day may affect
the diligence required of the actor
b. Place - place may affect the
diligence required
c. Emergency rule an actor
confronted with an emergency is
not to be held up to the standard of
conduct normally applied.(provided
the actor did not cause the
emergency)
d. Gravity of harm to be avoided if
the circumstances poses harm,
regardless of its gravity, proper
diligence is still required.
e. Alternative Course of action the
gravity that may result if the actor
took the alternative course of
action in a given circumstance
f. Social Value or Utility of Activity
the diligence and assumption of risk
involved may vary depending on
the importance or social value of
the act.
g. Persons exposed to the risk The
character of the person exposed to
the risk is also a circumstance which
should be considered in
determining negligence.
Children- the law imposes a
higher degree of diligence over
children
STANDARD OF CONDUCT : GOOD FATHER OF
THE FAMILY reasonable conduct of a man
with an ordinary intelligence and prudence.
Child -this conduct would be subjective to a
child depending on the circumstance, in our
jurisdiction, a person under 9 years of age is
conclusively presumed to have acted without
discernment, The child, as defined in our penal
law, may only be held civilly liable.
Physically disabled persons must act in a way
that a reasonable and prudent disabled person
would do.
Expert and professional An expert should
exhibit the care and skill of one ordinarily skilled
in the particular field that he is in.

NATURE OF ACTIVITY - is also considered in
determining negligence, the nature of the act,
in its default, is considered.

INTOXICATION one of the circumstances to
prove negligence.


INSANITY - also adjudged according to the
standard test of a reasonable man

STANDARD vs SPECIFIC rules Standards are
flexible, context sensitive legal norms that
require evaluative judgments in their
application while Rules are formal and
mechanical.

Other factors to consider in determining
negligence:

VIOLATION OF STATUTES AND ORDINANCES

A. Negligence Per se negligence of
the law
B. Violation gives rise to presumption
in Motor Vehicle Mishaps (prima
facie)Art.2184 and art.2185is done
may be

PROXIMATE CAUSE is indispensable in quasi-
delict cases

PRACTICE and CUSTOM what usually is done
may be evidence of what ought to be done, but
what ought to be done is fixed by a standard of
reasonable prudence, whether it usually is
complied with or not

COMPLIANCE WITH RULES AND STATUTES
One cannot avoid a charge of negligence by
showing that the act or omission complained of
was of itself lawful or not violative of any
statute or ordinance.

DEGREES of DILIGENCE:

a. Extraordinary Diligence
b. Ordinary Diligence (Good father of
a family)

DEGREES of NEGLIGENCE

a. Gross Negligence
b. Simple Negligence
PROOF OF NEGLIGENCE the one who alleges
negligence must prove the same unless the case
when negligence is presumed.

Presumptive Negligence:

a. RES IPSA LOQUITUR the thing
speaks for itself
The doctrine gives a prima facie
case for plaintiff against defendant.

Requisites:
1. The accident is of a kind
which ordinarily does not
occur in the absence of
someones negligence.
2. It is caused by an
instrumentality within the
exclusive control of the
defendant
3. The possibility of
contributing conduct which
would make the plaintiff
responsible is eliminated

b. Presumptions by the New Civil
Code:
1. Art 2184, Art 2185 and Art 2188

c. Contractual Relationship -(carrier
and passenger relationship)

AFFIRMATIVE DUTIES

There is no general positive duty of care
towards others, but there is a negative duty of
care.

MISFEASANCE breach of general duty.
(being negligent is misfeasance)

NONFEASANCE breach of affirmative duties.

(omission of an act that would
benefit and avoid damage to
others)
DUTY to RESCUE not an affirmative duty
imposed by law.(Prudence over Charity)

Liability might actually reduce the number of
altruistic responses by depriving people of
credit for altruism. People would be deterred
by threat of liability from putting themselves
in a position where they might be called upon
to attempt a rescue.

EXECPTIONS:
a. ART 275 of the RPC (abandonment
of persons in danger and
abandonment of ones victim)
b. RA 4136 Land Transportation and
Traffic code, Sec. 55 Duty of Driver
in case of accident.

OWNERS, PROPRIETORS and POSSERSORS

Duty of care or liability to:
a. Trespassers the owner does not
have to take a reasonable care
towards a trespassers or even
protect him from concealed danger.

b. Tolerated Possessor - The owner is
liable if the plaintiff is inside his
property by tolerance or by implied
permission.

c. Visitors the owner has a duty to
care for visitors inside his premises.
d. Passengers the common carriers
owe duty of care to its passengers
who stay in their premises even if
they are not passengers.

CHILDREN and ATTRACTIVE NUISANCE RULE -
an owner is liable if he maintains in his premises
dangerous instrumentalities or appliances of a
character likely to lure children in play and he
fails to exerciser ordinary care to prevent
children of tender age from playing therewith
or resorting thereto, even if the child is a
trespasser.
Example of attractive nuisance:
Railway turntables, explosives, electrical
conduits, smoldering fires and rickety
structures.

STATE OF NECESSITY The owner of a thing has
no right to prohibit the interference of
another with the same, if the
interference is necessary to avert an
imminent danger and the threatened
damage, compared to the damage
arising to the owner from the
interference is much greater. The
owner may demand from the person
benefited indemnity for the damage to
him (Article 432 of the NCC)

LIABILITY TO NEIGHBORS and THIRDS PERSONS

Art. 431. NCC The owner of the thing cannot
make use thereof in such a manner as to injure
the rights of a third person.

LIABILITY OF PROPRIETORS OF BUILDINGS

Art.2190. NCC The proprietor of the building or
structure is responsible for the damages
resulting from its partial collapse, if it should
be due to the lack of necessary repairs.

EMPLOYERS and EMPLOYEE The employers
has a duty for the proper maintenance of the
work place of its employee

The employees are bound to exercise due care
in the performance of their functions for the
employers.


MALPRACTICE

Medical Malpractice is a particular form of
negligence which consists in the failure of a
physician or surgeon to apply to his practice of
medicine that degree of care and skill which is
ordinarily employed by the profession generally
under similar conditions, and in like surrounding
circumstances.

Elements of medical malpractice:
a. Duty
b. Breach
c. Injury
d. Proximate Causation

Medical Negligence cases are best proved by
opinions of expert belonging in the same
general neighborhood and in the same general
line of practice as defendant physician or
surgeon.

DOCTORS/GENERAL PRACTITIONERS

A physician is under a duty to exercise that
degree of care, skill and diligence which
physicians in the same general neighborhood
and in the same general line of practice
ordinarily possess and exercise in like cases.

GENERAL PRACTITIONERS v. SPECIALIST

General practitioners are bound to exercise due
care and diligence like an average general
practitioner would do in a particular situation.

NATIONAL STANDARDS

Each physician may with reason and fairness be
expected to possess or have reasonable access
to such medical knowledge as is commonly
possessed or reasonably available to competent
physician in the same specialty or general field
of practice in the Philippines.

DOCTORS ARE NOT WARRANTORS

Physicians are not warrantors of cures or
insurers against personal injuries or death of
the patient.

Doctors are not liable to patients if proximate
cause of the injury was not due to the fault of
the doctor but due to other circumstances.

BURDEN OF PROOF

The burden of proving the negligence of the
doctors rests on the plaintiff who alleges such
negligence.
Courts defer to the expert opinion of qualified
physicians because of the courts realization
that the qualified physicians possess unusual
technical skills which laymen in most instances
are incapable of intelligently evaluating.

RES IPSA LOQUITUR

Res ipsa loquitur can also be relied upon on
medical malpractice cases, though it is
restricted to situations where a layman is able
to say, as a matter of consequences of
professional care were not as such as would
ordinarily have followed if due care had been
exercised.

LOST CHANCE RULE

When a plaintiff prays for damages for lost
chance, the essence of the plaintiffs claim is
that prior to negligence, there was a chance
that he would have been better off with
adequate care. Because of the negligence, this
chance has been lost. Loss of chance is the lost
opportunity for better result.

DOCTRINE OF INFORMED CONSENT

The doctor must secure the consent of his
patient to a particular treatment or an
investigative procedure. Consent is an integral
part of the physician-patient relationship and

doctors are duty bound to obtain authorization
for care carried out in their offices or
elsewhere. However, consent of the patient
may be express or implied.

Elements to be held liable to the doctrine of
Informed Consent

a. The physician has a duty to disclose
material risks
b. The physician failed to disclose or
inadequately disclosed those risks
c. As a direct and proximate result of
the failure to disclose, the patient
consented to treatment she
otherwise would not have
consented to, and;
d. The plaintiff was injured by the
proposed treatment

CAPTAIN OF THE SHIP DOCTRINE

The doctor has the responsibility to see to it
that those under him perform the task in the
proper manner.

The surgeon is likened to a ship captain who
must not only be responsible for the safety of
the crew but also of the passenger of the vessel.

LIABILITY OF HOSPITALS

The liability of hospitals to the acts of its
doctors must first presuppose an employer-
employee relationship between the doctor and
hospital.

DOCTRINE OF CORPORATE RESPONSIBILITY

Regardless of its relationship with the doctor,
the hospital may be held directly liable to the
patient for its own negligence or failure to
follow established standard of conduct to which
it should conform as a corporation.

A hospital conducted for private gain is under a
duty to exercise ordinary care in furnishing its
patients a suitable and safe place.

LIABILITY FOR UNLAWFUL RESTRAINT

If the patient chooses to abscond or leave
without the consent of the hospital may
nonetheless register its protest and may choose
to pursue the legal remedies available under
the law, provided that the hospital may not
physically detain the patient, unless the case
falls under the exceptions above stated.

NURSES

Section 28 of RA 9173 expressly provides that a
nurse must uphold the standards of safe
nursing practice. The standard is national
standard.

Examples of negligence of nurses:

a. Medication error
b. Burns of patients
c. Assessment and Monitoring Errors
d. Leaving Foreign Objects
e. Failure to protect the patient

The hospital is vicariously liable as an employer
of the nurse under Art.2180. of the NCC

PHARMACISTS

Pharmacists are bound to observe the highest
degree of care of diligence, for their profession
involves dispensing of medicines which the
public safety is concerned.

The doctrine of Res Ipsa Loquitur applies in
negligence of pharmacists. Proof of a mistake or
inadvertence upon the part of the druggist
furnishes an inference sufficient to establish a
prima facie case. It raises a presumption of
negligence against defendant.


NEGLIGENCE of LAWYERS

Prone to err like any other human being, he is
not answerable to every error or mistake, and
will be protected as long as he acts honestly and
in good faith to the best of his skill and
knowledge.

Proof of Damage is Necessary

ACCOUNTANT

The standard required is of an ordinary
accountant with skills and knowledge in the
field.

Proof of Damage is Necessary

NEGLIGENCE OF
SELECTED BUSINESS
ORGANIZATIONS

Schools and administrators

The liability of schools, due to its negligence,
may be based on contract or quasi-delict.
a. Based on contract The school
must ensure that adequate steps
are taken to maintain peace and
order within the campus premises
and to prevent the breakdown
thereof.
b. Based on Quasi-delict In the
Absence of a contract the school
may be held liable as an employer
under Article 2176

BANKS

A Bank is under obligation to treat the accounts
of its depositors with meticulous care. The
stability of banks largely depends on the
confidence of the people in the honesty and
efficiency of banks.
FIREARMS DEALER

A business dealing with dangerous weapon
requires the exercise of a higher degree of care.
A gun storeowner is presumed to be
knowledgeable about firearms safety and
should know never to keep a loaded weapon in
his store to avoid unreasonable risk of harm or
injury to others.

SECURITY AGENCY AND GUARDS

The guard and his security agency are liable for
the formers negligence in handling his firearms.

RESORT AND SWIMMING POOL OPERATOR

The rule is well-settled that the owners of
resorts to which people generally are expressly
or by implication invited are legally bound to
exercise ordinary care and prudence in the
management and maintenance of such resorts,
to the end of making them reasonably safe for
visitors.

THEATER

Due diligence is required because it serves the
public.

ELECTRIC AND POWER COMPANIES

Electric companies are liable for illegal
disconnection of electrical lines or termination
of their services without complying with legal
requirements.
The cases discussed hereunder involve liability
for quasi-delict :
a. Burning wires
b. Sagging and Dangling Lines
c. Dangerous place of installation and
Uninsulated Wires


BUILDING CONTRACTORS

a. Contractual Obligations

Contractors of buildings are
contractually bound to the owners of buildings
that they are constructing. In relation to
contractual obligation,
The New Civil Code provides a warranty
against collapse of the building under Article
1723 which provides

Art. 1723 The engineer or architect
who drew up the plans and specifications for a
building is liable for damages if within fifteen
years from the completion of the structure, the
same should collapse by reason of a defect in
those plans and specifications, or due to the
defects in the construction or the use of
materials of inferior quality furnished by him,
or due to any violation of the terms of the
contract. If the engineer or architect supervises
the construction, he shall be solidarily liable
with the contractor.
Acceptance of the building, after
completion, does not imply waiver of any of
the cause of action by reason of any defect
mentioned in the preceding paragraph
The action must be brought within ten
hears following the collapse of the building.

b. Liability for quasi-delict to the owner

The defect in the building may be a design
defect or a construction defect. The third
person suffering damages may proceed only
against the engineer or architect or contractor
in accordance with the said article, within the
period therein fixed.
The damage must be due to the negligence
of the Contractor.

c. Liability to third persons

Article 1728 of the new civil code provides
that the contractor is liable for all the
claims of laborers and others employed by
him, and of third persons for death or
physical injuries during the construction. It
follows, however, that the contractor is
liable for injuries that occur after the
construction of the building caused b y the
negligent construction of the building.
Privity is dispensable.

Approval of Plans by building official or City
Engineer cannot prove the non-existence of
defects in the construction

TOWAGE

The party that provides the service in a contract
of towage is required to observe the due
diligence of good father of a family.

STEVEDORING

The party that provides this service is required
to observe the due diligence of good father of a
family.

COMMON CARRIERS

Common carriers, from the nature of their
business and for the reasons of public policy,
are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety
of passengers.

The presumption is that the common carrier
have been at fault or have acted negligently in
case of death or injuries to passengers based on
Contractual obligation. The presumption does
not apply if the action is one based on quasi-
delict, (passengers or third persons who may be
injured thereby)

The duty to exercise extraordinary diligence of
common carriers is usually owed to persons
with whom he has contractual relation, that is,
the passenger and the shipper of goods.


TRAINS

The duty of care of train operators extends not
only to passenger but also to third persons.
Thus, train operators must exercise due
diligence not only in the performance of its
contractual duties but also in the maintenance
of its facilities and equipment.

DEFENSE IN NEGLIGENCE
CASES

Defenses in negligence cases may either be
PARTIAL or COMPLETE defense, defense that
may either mitigate or bar recovery.

PARTIAL DEFENSE

a. Plaintiffs own negligence Art
2179. When the plaintiffs own
negligence was the immediate and
proximate cause of his injury, he
cannot recover damages. But if his
negligence was only contributory,
the immediate and proximate
cause of the injury being the
defendants lack of due care, the
plaintiff may recover damages, but
the courts shall mitigate the
damages to be awarded

b. Contributory Negligence
contributory negligence can reduce
or mitigate the damages that the
plaintiff may recover.

There is contributory negligence
when the partys act showed lack of
ordinary care and foresight that
such act could cause harm or put
his life in danger.

c. Imputed Contributory Negligence
Negligence is imputed if the actor is
different from the person who is
being made liable.

COMPLETE DEFENSE

1. Assumption of Risk
Requisites:
1. The plaintiff must know the
risk is present
2. He must further understand
its nature
3. His choice to incur it is free
and voluntary
There are Express and Implied waiver of
right to recover.

a. Contractual Relations There may be
implied assumption of risk if the
plaintiff entered into a relation with the
defendant.

b. Dangerous Activities or Dangerous
Condition Persons who voluntarily
participate in dangerous activities or
condition assume risks which are
usually present in such activities or
condition

c. Defendants negligence Situations
wherein the plaintiff is aware of the risk
created by defendants negligence.

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


Elements of Fortuitous Event:

a. The cause of the unforeseen and
unexpected occurrence, or of the
failure of the debtor to comply with
his obligation, must be independent
of the human will
b. It must be impossible to foresee, or
if it can be foreseen it must be
impossible to avoid
c. The occurrence must be such as to
render it impossible for the debtor
to fulfill his obligation in a normal
manner
d. The obligor must be free from any
participation in the aggravation of
the injury resulting to the creditor.

3. PRESCRIPTION -The prescriptive period
for quasi-delict is four years counted
from the date of the accident.

4. INVOLUNTARINESS Defendant is not
liable if force was exerted to him.

DEATH OF DEFENDANT

The death of defendant will not extinguish the
obligation based on quasi-delict. The case will
continue through the legal representative who
will substitute the deceased.

CAUSATION

PROXIMATE CAUSE

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

DISTINGUISHED FROM REMOTE CAUSE

Remote cause- that cause which some
independent force merely took advantage of to
accomplish something not that natural effect
thereof.
A remote cause cannot be considered the legal
cause of damage. Not all causes that occur
before the damages can be considered
proximate.

Distinguished from Nearest Cause

Proximate cause is not necessarily the nearest
cause. It is not necessarily the last link in the
chain of events but that which is the procuring
efficient and predominant cause.

Concurrent Causes

The proximate cause is not necessarily the sole
cause of the accident. The defendant is still
liable in case there are concurrent causes
brought about by acts or omissions of third
persons. The actor is not protected from liability
even if the active and substantially
simultaneous operation of the effects of a third
persons innocent, tortious or criminal act is
also a substantial factor in bringing about the
harm so long as the actors negligent conduct
actively and continuously operate to bring
about harm to another.

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

Plaintiffs Negligence as Concurrent Proximate
Cause

The plaintiff cannot recover if the negligence of
both the plaintiff and the defendant can be
considered the concurrent proximate cause of the
injury. This ruling on concurrent proximate cause is
consistent with Article 2179 of the New Civil Code
that provides that the plaintiff cannot recover if his

negligent act or omission is the proximate cause of
his damage or injury.

Proof of Causation

There must be proof of the causal connection
before the alleged tortfeasor may be made
liable. Possibility is not an actual fact,
probability is not certainty, and certainty
requires proof.

Tests of Proximate Cause

Quasi-delictual actions involve three
requirements:
1. negligence
2. damage
3. the causal connection between the damage
and the negligent act or omission

In other words, proof of negligence and damage is
not enough. It is still required that the plaintiff
presents proof that the proximate cause of the
damage to the plaintiff is negligent act or omission
of the defendant. It was observed that proximate
cause is determined by the facts of each case upon
mixed considerations of logic, common sense,
policy and precedent

CAUSE-IN-FACT AND POLICY TESTS

In determining the proximate cause of the
injury, it is first necessary to determine if the
defendants negligence was the cause-in-fact of
the damage to the plaintiff. If it was not a
cause-in-fact, the inquiry stops; but if it is a
cause-in-fact, the inquiry shifts to the question
of limit of liability of the defendant. The latter
determination of the extent of liability involves
a question of policy.

Holding and Rule (Cardozo Zone of Danger
rule):
A duty that is owed must be determined from
the risk that can reasonably be foreseen under
the circumstances.
A defendant owes a duty of care only to those
who are in the reasonably foreseeable zone of
danger.
Different Cause-In-Fact Tests

The initial step in determining proximate cause
is to determine if the negligent act or omission
of the defendant is the cause-in-fact of
plaintiffs damage or injury.

Under the rubric of cause-in-fact, courts
address generally the empirical question of
causal connection. It is necessary that there is
proof that the defendants conduct is a factor in
causing a plaintiffs damage. What needs to be
determined is whether the defendants act or
omission is a causally relevant factor.

SINE QUA NON TEST

The basic conception of the cause is the
alternative definition of David Hume in Inquiry
on Human Understanding. He said: Or in other
words, where if the first object had not been,
the second never had existed. This concept is
the foundation of what is known as the but-for
test.

SUBSTANTIAL FACTOR TEST

The substantial factor test makes the negligent
conduct the cause in fact of the damage if it
was a substantial factor in producing the
injuries.

In order to be a substantial factor in producing the
harm, the causes set in motion by defendant must
continue until the moment of the damage or at
least down the setting in motion of the final active
injurious force which immediately produced or
preceded the damage.

NECESSARY ELEMENT OF SUFFICIENT SET
(NESS) TEST

The NESS test is especially effective in solving
problems regarding concurrent causes. Under
this test, the negligent act or omission is a
cause-in-fact of the damage if it is a necessary
element of a sufficient set. The test is based on
the concept of causation by Hume and Mill, and
systematically elaborated for legal purposes by
Professors Hart and Honore in Causation in Law
and Professor Wright in Causation in Tort Law.

There are two ways by which co-presence may
manifest itself:

a. Duplicative causation
When two or more sets operate simultaneously
to produce the effect; the effect is over-
determined.

b. Pre-emptive causation
When, though coming about first in time, one
causal set trumps another potential set lurking
in the background; the causal potency of the
latter is frustrated.

FIRST STAGE ONLY

The first stage of causation is primarily a matter
of historical mechanics although it necessarily
involves the questions about what would have
happened in different circumstances.

Policy Tests

Foreseeability test

Negligence involves a foreseeable risk, a threatened
danger or injury and conduct unreasonable in
proportion to danger.

Natural and probable consequence test

This test is designed to limit the liability
of a negligent actor by holding him responsible
only for injuries which are the probable
consequences of his conduct as distinguished
from consequences that are merely possible.
For this purpose, the term probable is used in
the sense of foreseeable

Ordinary and natural or direct consequences

This test states that, as a matter of legal
policy, if negligence is a cause in fact of the
injury under the criteria previously discussed,
the liability of the wrongdoer extends to all the
injurious consequences

Hindsight test

The hindsight test eliminates foreseeability as an
element.

A party guilty of negligence or omission of duty is
responsible for all the consequences which a
prudent and experienced party, fully acquainted
with all the circumstances which in fact exist,
whether they could have been ascertained by
reasonable diligence, or not, would have thought at
the time of the negligent act as reasonably possible
to follow, if they had been suggested to his mind.


Orbit of the risk test

This was intended to be a test of duty and not a test
of proximate cause.

If the foreseeable risk to plaintiff created a duty
which the defendant breached, liability is imposed
for any resulting injury within the orbit or scope of
such injury, it is not the unusual nature of the of the
act resulting in injury to plaintiff that is the test of
foreseeability but whether the result of the act is
within the ambit of the hazards covered by the duty
imposed upon the defendant.

Tests in the Philippines

The New Civil Code has a chapter on Damages
which specifies the kind of damage for which
the defendant may be held liable and the extent
of damage to be awarded to the plaintiff.
Applicable Cause-In-Fact Test in the Philippines
- But-for Test/ Sine Qua Non Test
o Concurrent causes
o Sufficient Combined causes
- Substantial Factor Test
- Ness Test
Sine Qua Non Test

Concurrent causes
Where two separate acts of negligence combine
to cause an injury to a third party, each actor is
liable.
Sufficient combined causes
Where an injury results from two separate acts
of negligence, either of which would have been
sufficient to cause the injury, both actors are
liable

Applicable Policy Tests in the Philippines
1) Policy Test under the 1889 Civil
Code
2) Rule under the New Civil Code
Article. 2202. In crimes and quasi-delicts, the
defendant shall be liable for all the damages
which are the natural and probable
consequences of the act or omission
complained of. It is not necessary that such
damages have been foreseen or could have
reasonably been foreseen by the defendant.
The rule in contracts is different from the rule
in quasi-delict if the person sought to be held
liable ex contractu acted in good faith.
Art. 2201. In contracts and quasi-contracts, the
damages for which the obligor who acted in
good faith is liable shall be those that are the
natural and probable consequences of the
breach of the obligation, and which the parties
have foreseen or could have reasonably
foreseen at the time the obligation was
constituted.In case of fraud, bad faith, malice
or wanton attitude, the obligor shall be
responsible for all damages which may be
reasonably attributed to the non-performance
of the obligation. (1107a)
Natural and Probable under Article 2202
involves causality and adequacy

Types of Dangerous Conditions
1. Those that are inherently dangerous
2. Those where a person places a thing
which is not dangerous in itself, in a
dangerous position; and
3. Those involving products and other
things which are dangerous because
they are defective.

EGG-SKULL or THIN SKULL Rule
It increases the liability of a person who may
commit a tort against another, from results
arising out of those tortuous acts.
Efficient and Intervening Cause (Novus Actus
Interviens)
An efficient intervening cause is the new and
independent act which itself is a proximate
cause of an injury and which breaks the causal
connection between the original wrong and the
injury
Medical Treatment as Intervening Cause.
A tortfeasor is liable for the consequence of
negligence, mistake, or lack of skill of a
physician or surgeon whose treatment
aggravated the original injury.
Unforeseen or Unexpected Act or Cause
An unforeseen and unexpected act of a third
person may not therefore be considered
efficient intervening cause if it is duplicative in
nature or if it merely aggravated the injury that
resulted because of a prior
Contributory Negligence
PLAINTIFFs NEGLIGENCE IS THE CAUSE
In this situation defendants act or omission is
not causally relevant; it is neither necessary nor
sufficient to cause damage or injury. This
situation may include when only the plaintiff
was negligent while the defendant is not
negligent or defendants negligence is not part
of the causal set.

COMPOUND CAUSES
In this situation, the plaintiffs negligence occurs
simultaneously with that of the defendant. The
latters negligence is equally sufficient but not
necessary for the effect because the damage
would still have resulted due to the negligence
of the plaintiff. In this case, no recovery can be
had. The plaintiffs negligence is not merely
contributory because it is concurring proximate
cause
PART OF THE SAME CAUSAL SET
In this situation, the plaintiffs negligence,
together with the defendants is part of the
same causal set. Plaintiffs negligence is not
sufficient to cause the injury while defendants
negligence is also not equally sufficient. The
effect would result only if both are present
together with normal background conditions.
The effect would not have resulted without the
concurrence of all of them.
DEFENDANTS NEGLIGENCE IS THE ONLY
CAUSE.
In this situation the defendants negligence may
be sufficient and necessary to cause the
damage and plaintiffs act or omission is neither
necessary nor sufficient. Damage to the plaintiff
was solely the result of the defendants
negligence. However, the plaintiffs negligence
may have
Doctrine of the Last Clear Chance
Alternative Views on last Clear Chance
Prevailing View
The Supreme Court ruled that even if
the plaintiff was guilty of antecedent
negligence, the defendant is still liable
because he had the last clear chance of

avoiding injury. The law is that the
person who has the last fair chance to
avoid the impending harm and fails to
do is chargeable with the
consequences
HUMAN RELATIONS:
INTENTIONAL TORTS

This chapter and the next two chapters deal
with torts covered by chapter 2 of the
preliminary title of the new civil code of the
Philippines entitled human relations.

CONCEPT OF INTENT IN TORT

INTENT -- the actor desires to cause the
consequences of his act or believes the
consequences are substantially certain to result
from it. (Blacks Law Dictionary; Same def. -
Section 8 of Restatement (Second) of Torts.)

Represents the common usage with the ff.
Elements:

(1)State of mind; (2) about consequences of an
act and not about the act itself, and (3) it
extends not only to having in mind the purpose
but also the belief that given consequences are
substantially certain to result from the act.
(Prosser and Keeton)

MEANS EMPLOYED ACT ITSELF IS INCLUDED IN
INTENT

The end may not be wrongful under normal
circumstances but the wrongful means
employed makes it wrongful. Intentional tort
likewise includes cases of this nature.

Distinguished from negligence

Involves foreseeablility of risk not certainty of
harm; involves knowledge which is short of
substantial certainty; hence, distinction is a
matter of degree.

Manifestation of Intent

Appears by way of malice, bad faith or fraud.

Specific Content of Intent:
May be content specific in some tort cases. For
example, in the tort of malicious prosecution
inexcusable intent to injure, vex, oppress on
the part of the private prosecutor while malice
in the sense of ill-will is not essential in the
interference of a contract.

CATCH ALL PROVISIONS:

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

Art. 20. Every person who, contrary to law,
wilfully or negligently causes damage to
another shall indemnify the latter for the
same.

Art. 21. Any person who wilfully causes loss or
injury to another in a manner that is contrary
to morals, good customs or public policy shall
compensate the latter for damages.

Art. 19
Abuse of Rights

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


The elements of an abuse of right
/cause of action under Article 19 are the
following

(1) There is a legal right or duty;
(2) Which is exercised in bad faith;
(3) For the sole intent of prejudicing or injuring
another.

No Wrong Without A Remedy :
Under Article 21, damages are recoverable even
though no positive law was violated.
Damage Essential Element of Cause of Action:
An action can only prosper when the plaintiff
suffers damage, material or otherwise. For
instance, an action based on Article 19, 20 and
21 will be dismissed if the plaintiff merely seeks
recognition.

Good Faith Not Necessarily an Excuse: The
Supreme Court ruled that the defendant may
likewise be guilty of tort under Article 19 and 21
even if tortfeasor did not act with ill-will.
Liability to pay exemplary damages may not be
imposed on the defendant who acted in good
faith.

CONCEPT OF ABUSE OF RIGHT

The rule allowing recovery for abuse of right is a
departure from the traditional view that a
person is not liable for damages resulting from
the exercise of one's right-qui jure suo utitur
neminem laedit.
A person is protected only if he acts in
legitimate exercise of his right with prudence
and good faith.

EXAMPLES OF CASES WHEN THERE IS ABUSE
OF RIGHT.

There is no rigid test that can be applied in
determining whether or not the principle of
abuse of rights may be invoked.

A.Abuse of Rights of Creditors

Taking advantage of his knowledge that
insolvency proceedings were to be instituted by
the debtor if the creditors did not come to an
understanding as to the manner of distribution
of the insolvent's asset among them, and
believing it most probable that they would not
arrive at such understanding---schemed and
transferred its credit to a sister company in the
United States which, in turn, secured a writ of
attachment in the court therein thereby gaining
control over the said plane. As a consequence,
the other creditors was deprived of their lawful
share thereto and the assignee that was later
appointed was deprived of his right to recover
the plane.

B. Abuse of Right of Principal

There is abuse of right if the principal
unreasonably terminated an agency agreement
for selfish reasons. Even if the agency can be
terminated at will, termination should not be
done with bad faith or abuse of right.

C. Abuse of Right of Agents

Agents violation of the trust reposed on them
as officers and negotiators in behalf of the
tenants.

D. Abuse of Right of Public Officers

The abuse of right committed by a superior
officer in preventing a subordinate from doing
her assigned task from being officially
recognized for it.

E. Abuse of Court Processes

Respondents would not have suffered the
loss that engendered the suit before the
RTC. Verily, his acts constituted not only an
abuse of a right, but an invali d exercise of
a right that had been suspended when he

received the TRO from this Court on June
4, 1986.

F. Abuse of Right by Contracting Parties

The agreement was for the immediate payment
of the outstanding account. A check is not
considered as cash especially when it i s
postdated sent to BPI. Thus, the issuance
of the postdated check was not
ef f ec t i ve payment . BPI was
t her ef or e j us t i f i ed i n suspending his
credit card. BPI did not capriciously and
arbitrarily canceled the use of the card.

G. Abuse of Rights of Schools

UE had a contractual obligation to inform his
students a s t o w h e t h e r o r n o t
t h e y h a v e m e t a l l t h e
requirements for the conferment of a degree.
Thus, UE in belatedly informing
respondent of the result of the removal
examination, particularly at a time when
he had already commenced preparing for the
bar exams, cannot be said to have acted in good
faith.

EXAMPLES OF CASES WHEN THERE IS NO
ABUSE OF RIGHT

Exercise of a right in good faith does not
generally justify the filing of an action for
damages. Even if inconvenience results, no
action for damages will, as a rule, prosper.

A.Absolute rights can never be the basis of
liability.

Example: The refusal to enter into a contract is
an absolute right and courts cannot inquire into
the motive in refusing to enter into a contracts.
Hence, refusal to enter into a contract, bu itself,
cannot be a ground for the filing of an action for
damages.

B. Rights of the Corporation and its Officers
and Directors

The court rules that the ending of demand
letters by non-stock corporation to its member
for the payment unpaid charges cannot be
considered abuse of right if the tenor of letters
do not deviate from the standard practice of
pursuing the satisfaction of the obligation of the
member. The non-stock corporation, which is
an exclusive organization, primarily derives its
life from membership fees and charges and the
corporation is expected to enforce claims
against members.

C. Exercise of Rights Included in Ownership

There is no abuse of right when an owner of a
lot that adjoins the highway fenced his
property. No abuse of right was committed
although the tenants in the inner lot ca no
longer pass through his property. In the
absence of an easement of right of way, the
owner is free to enclose his property even if
damage to another will result. It is a case of
damage without injury.
The proper exercise of a lawful right cannot
constitute a legal wrong for which an action will
lie, although the act may result in damage to
another, for no legal right has been invaded.
reasonably calculated to achieve a lawful
means.

D. Rights of Schools, Teachers and
Administrator.

There is no abuse of right if the defendants are
legitimately exercising their constitutional
rights. The majority of the directors of a school
reinstated a teacher who was previously
terminated from service. Later, the
President,Vice-President, Secretary and three
board members resigned because of such
action.


E. Right to Sue

In this case, bad faith on the part of
Phelps was not pr oved. Mor e
i mpor t ant l y , Phel ps was dr i ven by
legitimate reasons for rejecting Barons offer. It
merely wanted to avoid a situation
wherein its cash position woul d be
compromised, making it harder for them
to pay its own obligations. Cl ear l y, t hi s
( t he r eques t of Bar ons ) woul d be
inimical to the interests of any enterprise,
especially a profit-oriented one like Phelps. It is
plain to see that what we have here i s a
mere exercise of ri ghts, not an abuse
thereof.

F. Contracting Parties

When a right is exercised in a manner which
does not conform with the norms enshrined in
Article 19 and results in damage to another, a
legal wrong is thereby committed for which the
wrongdoer must be responsible. Article 21
states that any person who willfully causes loss
or injury to another in a manner that is contrary
to morals, good customs or public policy shall
compensate the latter for the damage.
Without proof of any ill-motive on her part, Ms.
Lims act cannot amount to abusive conduct.
The maxim Volenti Non Fit Injuria (self-
inflicted injury) was upheld by the Court, that is,
to which a person assents is not esteemed in
law as injury, that consent to injury precludes
the recovery of damages by one who has
knowingly and voluntarily exposed himself to
danger.

III- Acts Contra Bonos Mores

GENERAL CONCEPT

Acts Contra Bonos Mores - Harmful to the
moral welfare of the society.

The Following Elements of Acts Contra Bonos
Mores:

1. There is an act which is legal.
2. The act is contrary to morals, good
customs, public order, public policy, and
3. The act is done with intent to injure.

Article 19: Every person must, in the exercise
of his rights and in the performance of his
duties, act with justice, give everyone his due,
observe honesty and good faith.
Article 21: Any person who wilfully causes loss
or injury to another in a manner that is
contrary to morals, good customs or public
policy shall compensate the latter for the
damage.

Note: Article 21 of the Civil Code further
expands torts in this jurisdiction. And its a
provision that fleshes out the principles
expressed in Article 19.

Broad Coverage

There is no formula that can be used to
determine what is contrary to morals. Neither is
there any formula to establish what is good
custom or what is consistent with public order
or public policy.

In many cases, breach is self evident especially
if there is fraud, oppression, deceit, abuse of
power or confidence and other human follies.

Rationale
Article 21 may also be justified by these words
of Eugen Huber author of the Swiss Civil Code of
1907 Moral Law has in law such a
penetrating and valuable significance that we
cannot speak of positive law without referring
to moral law. The Moral Law and the law of the
State have the same object and purpose, and
together they govern human aims and conduct,
which constitute human society itself.


Breach Of Promise to Marry

General Rule Breach of promise to marry by
itself is not actionable. However it become
actionable if there are additional circumstances
that make it fall within the purview of article 19
20-21 or 2176 of the new civil code

In such cases there is another act independent
of the breach of promise to marry which gives
rise to liability.

These include cases where 1. There was
financial damage 2. Social humiliation was
caused to one of the parties. 3. Where there
was moral seduction.

An action is also warranted if the defendant and
the plaintiff formally set the wedding and went
through all the preparations and publicity but
the defendant walked out of it when the
matrimony was about to be solemnized.

A civil case for damages may also prosper if
there is seduction. Seduction may be criminal or
mere moral seduction. Moral seduction
although not punishable, connotes essentially
the idea of deceit, enticement, superior power
or abuse of confidence on the part of the
seducer to which the woman has yielded.

The action may prosper if the breach was done
in such a manner that is clearly contrary to good
morals.

The acts of petitioner in forcibly abducting
private respondent and having carnal
knowledge with her against her will, and
thereafter promising to marry her in order to
escape criminal liability, only to thereafter
renege on such promise after cohabiting with
her for 21 days. Irremissibly constitutes acts
contrary to morals and good customs. These
are grossly insensate and reprehensible
transgressions which indisputably warrant and
abundantly justify the award of moral and
exemplary damages pursuant to article 21 in
relation to paragraph 3 and 10 article 2219 and
2229 2234 of the civil code.

The Supreme Court explained that the action
for damages for breach of promise to marry will
prosper if there is fraud

Pari Delicto Rule When Inapplicable

The In Pari Delicto Rule does not apply in
breach of promise to marry cases where the
defendant is guilty of moral seduction.
Pari Delicto means equal fault; in a similar
offense or crime;equal in guilt or in legal fault.

Seduction and Sexual Assault
Seduction by itself, without breach of promise
to marry is also an act that is contrary to
morals, good customs, and public policy.

Desertion by a Spouse

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

Trespass to and / or Deprivation of Real
Property

trespass to real property is a tort that is
committed when a person unlawfully invades
the real property of another.

There is authority for view however that the
tort of trespass may be committed even in good
faith ( Republic of the Philippines vs. Hon Jaime
delos Angeles ) dissenting opinion of Chief
Justice Concepcion) or / Accession continua- A
person in good faith is not liable but
responsible.


Trespass to Personal Property

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

It may also cover cases where the defendant
deprived the plaintiff of personal property for
the purpose of obtaining possession of a real
property.

Disconnection of Electricity or Gas Services

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

Abortion and Wrongful Death

The Supreme Court recognized the right to
recover damages against a physician who
caused an abortion. Damages are available to
both spouses if the abortion was caused
through the physicians negligence. Both
spouses may also recover damages if the
abortion was done intentionally without their
consent.

Illegal DISMISSAL

The sphere of application of Article 21, in
relation to article 19, includes cases where
there is an employer employee relationship. It
is a basic rule that an employer has a right to
dismiss an employee in the manner and on the
grounds provided for under the Civil Code.

Malicious Prosecution, Definition and
Statutory Bases

Malicious Prosecution

an action for damages brought by one against
another whom a criminal prosecution, civil suit,
or other legal proceedings has been instituted,
maliciously and without probable cause, after
the termination of such prosecution, suit or
proceeding in favor of the defendant therein.
The gist of the action is the putting of legal
process in force regularly, for the mere purpose
of vexation or injury.
The Supreme Court ruled that an action for
malicious prosecution will prosper only if the
following elements are present:
The fact of the prosecution and the further fact
that the defendant was himself the prosecutor,
and that the action was finally terminated with
an acquittal;
That in bringing the action, the prosecutor
acted without probable cause;
The prosecutor was actuated or impelled by
legal malice.

Malice- State of mind of one who deliberately
commits a wrongful act.

The prosecutor in the case is actuated by malice
if he actuated by malice if he acted with
Inexcusable intent to injure, oppress, vex annoy
or humiliate.
The presence of probable cause signifies, as a
legal consequence, the absence of malice.

Probable Cause is the existence of such facts
and circumstances as would excite the belief of
the prosecutor that the person charged is guilty
of the crime for which he is prosecuted.
-The absence of malice therefore involves good
faith in the part of the defendant.

Acquittal

A criminal information is filed in court and final
judgment is rendered dismissing the case
against the accused.


Control by Prosecutor

The mere fact that the public prosecutor took
full control of litigation does not grant immunity
to persons who misuse their right to instigate
criminal actions. Hence, the complainant may
still be liable for malicious prosecution if the
public prosecutor controlled the litigation.

Other Bases of Liability for Abuse of Process

As an alternative to malicious prosecution, a
plaintiff may file an action for damages for
abuse of processes under article 2176 and 26 of
the New Civil Code.

Public Humiliation

The Supreme court likewise sustained award for
damages in cases when the plaintiff suffered
humiliation through the positive acts of the
defendant directed against the plaintiff.

HUMAN DIGNITY

In this chapter, we will examine the torts that
involve the right of a person to dignity,
personality, privacy and peace of mind.
Torts defined under Article 26 of the NCC is
discussed in this chapter.

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

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

Constitutional Right to Privacy

The scope of protection of the right to privacy
includes the right against unreasonable
searches and seizures, privacy of
communications and correspondence, right
against self-incrimination, right to travel and
the right to form unions not contrary to law.
Reasonable Expectation of Privacy
Two-part test of reasonableness:

1. Whether by his conduct, the individual
has exhibited an expectation of privacy

2. Whether this expectation is one that
society recognizes as reasonable

The factual circumstances of the case
determine the reasonableness of the
expectation.

Facets of Privacy

1. Privacy in a physical sense
2. Privacy in an informational sense
3. Proprietary privacy
4. Privacy in a decisional sense

Basis of liability for Damages

Viewed as a violation of a constitutional
right, violation of right to privacy makes the
actor liable under article 32 of the NCC

Person entitled to relief

Only natural persons can invoke the
right to privacy and the right ceases upon the
death of the person.

Standard used in determining tort liability

The right to privacy is not a guaranty to
hermitic seclusion. The standard to be applied
in determining if there was a violation of the
right is that of a person of ordinary sensibilities,
relative to time and place.

Classification of tort violation of the right to
privacy
1. Intrusion
2. Publication of private facts
3. Making one appear before the
public in an objectionable false light
4. Commercial appropriation of
likeness of another
Intrusion

The tort of intrusion upon the plaintiff solitude
protects a persons sense of locational and
psychological privacy.

Forms of intrusions

1. Intrusion in public places On
public the plaintiff has no right to
be alone, and it is no invasion of his
privacy to do no more than follow
him about.

2. Intrusion and the freedom of the
press Newsworthiness in the
interest of public gauged over the
individuals privacy.

3. Intrusion in Administrative
Investigation No intrusion when
an employer investigates its
employee or when a school
investigates its students.

4. Intrusion of common carriers The
due diligence of common carriers in
checking the baggage of its
passengers should not outweigh the
latters privacy.

5. Intrusion in public records No
intrusion into the right of privacy of
another if the information sought is
a matter of public record. Public
officials are mandated by law to
provide public information except if
the disclosure would constitute a
clearly unwarranted invasion of
personal privacy.

6. Intrusion through the internet
there will be intrusion through the
internet if a person is engaged in
what is known as unlawful access, if
the actor accessed an electronic
file, electronic signature of an
electronic data message or
electronic document without the
consent of the lawful possessor
contemplated under section 31 of
RA 8792.

Publication of Private Facts

The interest sought to be protected is
the right to be free from unwarranted publicity,
from the wrongful publicizing of the private
affairs and activities of an individual.

Elements of this tort:
1. Publicity is given to any private or
purely personal information
2. Without the latters consent
3. Regardless of whether or not such
publicity constitute a criminal
offense.

Publication of Public acts is also gauged in its
Newsworthiness that concerns public interest
over the right to privacy of the individual
especially a public figure.


False Light

The interest to be protected in this tort is the
interest of the individual in not being made to
appear before the public in an objectionable
false light or false position.
The media may commit the tort by distorting
new reports. Thus, liability may result if film or
videotape is edited in such a way that the
plaintiff is made to appear to have committed
an illegal act although he actually did not do so.

Commercial Appropriation of Likeness

The tort of commercial appropriation of
likeness has been held to protect various
aspects of an individuals identity from
commercial exploitation: name, likeness,
achievements, identifying characteristics, actual
performances and fictitious characters created
by a performer. It was even extended in one
case to phrases and other things which are
associated with an individual.

INTERFERENCE WITH FAMILY AND OTHER
RELATIONS

Alienation of Affection of spouse wrongful
interference in the family affairs of whereby
one spouse is induced to leave the other spouse
or to conduct himself or herself that the
comfort of married life is destroyed.

Requirements:

1. A valid marriage
2. Wrongful conduct by the defendant
with the plaintiffs spouse
3. The loss of affection or consortium
4. A causal relation between
defendants conduct and the
deprivation of affection.

When the alienation was caused by in-laws,
there is a presumption that the interference of
the in-laws are in the interest of the child. In
such a case. Malice must be established, and it
must appear that the defendants acts were the
controlling cause of the loss of affection. The
requirement of malice also applies to
interference of Non-relatives.

VEXATION and HUMILIATION

The fourth paragraph of Article 26 of the NCC
provides:

4. Vexing or humiliating another on
account of his religious beliefs,
lowly station in life, place of birth,
physical defect, or other personal
condition.

Extreme and Outrageous Conduct

Conduct that is so outrageous in character, and
so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in civilized
society.

Emotional Distress

Any highly unpleasant mental reaction such as
extreme grief, shame, humiliation,
embarrassment, anger, disappointment, worry,
nausea, mental suffering and anguish.

Any party seeking recovery for mental anguish
must prove more than mere worry, anxiety,
vexation, embarrassment, or anger.

Distinguished from Defamation

Emotional distress properly belongs to the
reactive harm principle while defamation calls
for the application of the relational harm
principle. The principle of relational harm
includes harm to social relationships in the
community in the form of defamation as
distinguished from the principle of reactive

harm which includes injuries to individual
emotional tranquility.

DISCRIMINATION

Public policy abhors discrimination.

Art.135 of the Labor code

Art. 135. Discrimination Prohibited. It shall
be unlawful for any employer to discriminate
against any woman employee with respect to
terms and conditions of employment solely on
account of her sex
Discriminations of disabled and women

RA 7277 Magna Carta for disabled persons
RA 9710 Magna Carta for Women.

SEXUAL HARRASMENT

Another act that merits impositions of damages
for being contrary to law and morals is sexual
harassment.

Sexual harassment is committed whenever any
of the persons mentioned in paragraph (a)
above demands, requests or otherwise requires
any sexual favor from the other, regardless of
whether the demands, request or requirement
for submission is accepted by the object of said
act

QUID PRO QUO CASES

Sexual favor is made a condition to the giving of
a passing grade, or the granting of honors and
scholarships or the payment of a stipend,
allowance or other benefits, privileges or
considerations.

HOSTILE ENVIRONMENT CASES

Requisites:

1. That he or she was subjected to
sexual advances, requests for
sexual favors, or other verbal or
physical conduct of sexual nature

2. That this conduct was unwelcome

3. The conduct was sufficiently severe
or pervasive to alter the conditions
of the victims employment and
create an abusive working
environment.

The Standard of Conduct to be observed is of an
ordinary prudent man. The civil liability is based
on delict.

INDEPENDENT CIVIL
ACTION

A private action for damages brought by an
offended party arising from culpa aquillana for
the enforcement of his right in relation to
Article 32,33 and 34 of the NCC.

When a criminal action is instituted, the civil
action for recovery of civil liability arising from
the offense charged is impliedly instituted with
the criminal action, unless the offended party
reserves his right to institute it separately; and
after a criminal action has been commenced, no
civil action arising from the same offense can be
prosecuted.
Articles 32,33 and 34 of the New Civil Code
commonly provide for the authority to file
independent civil actions, this includes actions
for damages for violation of civil and political
rights, defamation, fraud, physical injuries and
neglect of public officers.

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

(1)Freedom of religion;
(2)Freedom of speech;
(3)Freedom to write for the press or to
maintain a periodical publication;
(4)Freedom from arbitrary or illegal detention;
(5)Freedom of suffrage;
(6)The right against deprivation of property
without due process of law;
(7)The right to a just compensation when
private property is taken for public use;
(8)The right to the equal protection of the
laws;
(9)The right to be secure in one's person,
house, papers, and effects against
unreasonable searches and seizures;
(10)The liberty of abode and of changing the
same;
(11)The privacy of communication and
correspondence;
(12)The right to become a member of
associations or societies for purposes not
contrary to law;
(13)The right to take part in a peaceable
assembly to petition the Government for
redress of grievances;
(14)The right to be a free from involuntary
servitude in any form;
(15)The right of the accused against excessive
bail;
(16)The right of the accused to be heard by
himself and counsel, to be informed of the
nature and cause of the accusation
against him, to have a speedy and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance
of witness in his behalf;
(17) Freedom from being compelled to be a
witness against one's self, or from being forced
to confess guilt, or from being
induced by a promise of immunity or
reward to make such confession, except when
the person confessing becomes a State
witness;
(18)Freedom from excessive fines, or cruel and
unusual punishment, unless the same is
imposed or inflicted in accordance with a
statute which has not been judicially declared
unconstitutional; and
(19)Freedom of access to the courts. In any of
the cases referred to in this article, whether or
not the defendant's act or omission
constitutes a criminal offense,
the aggrieved party has a right to commence
an entirely separate and distinct civil action for
damages, and for other relief.
Such civil action shall proceed independently
of any criminal prosecution (if the latter be
instituted), and may be proved by
a preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not
demandable from a judge
unless his act or omission constitutes a
violation of the Penal Code or other
penal statute.

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

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


CIVIL LIABILITY ARISING
FROM DELICT

Basic rule in this jurisdiction is that every person
criminally liable for a felony is also civilly liable.
Civil liability arising from delict can only prosper
when the act or omission is punishable by law
and it causes damage to another. Public and
Private offenses not material, as in the case of
bigamy, a public offense.

PERSONS LIABLE:

1. Principal
2. Accomplice
3. Accessory

The amount of damages to be awarded must be
apportioned according to their respective
responsibilities to be paid by them solidarily
within their respective class and subsidiarily for
the others of a different class.

Order of preference:

1 Principals
2 Accomplice
3 Accessory

CIVIL LIABILITY ARISING FROM CRIMES
INCLUDES:

RESTITUTION
REPARATION
INDEMNIFICATION

As provided for by Article 100 of the Revised
Penal Code.

PROXIMATE CAUSE

Article 2202 of the NCC provides that in crimes
and quasi-delicts the defendant shall be liable
for all the natural and probable consequences
of the act or omission complained of.
Circumstances to be considered in awarding
damages

Justifying no crime committed but there is
civil liability. Except in subdivision 4 of Article 11
of the RPC

Exempting there is crime committed but the
offender is exempted from punishment, but
shall be civilly liable, and if the offender is under
guardianship or minor the guardian or parents
shall be liable for damages unless they can
prove they observed due diligence.

Mitigating the courts may lower the amount
considering this circumstance.

Aggravating - the courts may increase the
amount considering this circumstance. This
circumstance warrants the imposition of
exemplary damages.

Alternative the courts shall determine the
amount of damages on a case to case basis.

EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

Death of the accused BEFORE final judgment
extinguishes the criminal and civil liability of the
accused, this is without prejudice to the right of
the aggrieved party to file a claim for damages
against other sources of obligation other than
delict.

Civil liability is not extinguished by death of the
accused AFTER final judgment.

INDEPENDENT CIVIL ACTION ARISING FROM
CRIMES

If an accused is acquitted based on reasonable
doubt on his guilt, his civil liability arising from
crime may be proved by preponderance of
evidence only. However if the accused is
acquitted on the basis that he was not the
author of the act or omission complained of, or
there is a declaration in the final judgment that

that the fact which the civil liability might arise
did not exist.

RESERVATION OF CIVIL ACTION

A civil action arising from crime is deemed
instituted in the criminal action, unless the
offended party reserves the right to institute a
separate civil action before the prosecution
presents its evidence. (Section 1. Rule 111 of
the Rules of Court)

PREJUDICIAL QUESTION

A matter that may suspend the civil action that
is deemed instituted with the criminal case is
the presence of prejudicial question. Section 6
of Rule 111 of the Revised Rules of Criminal
Procedure.

Elements of prejudicial question: (Sec.7 Rule
111, Rules of court)

a. Previously instituted civil action involves an
issue similar or intimately related to the
issue raised in the criminal action
b. resolution of such issue determines
whether or not the criminal action may
proceed

Article 36 of the NCC provides that Prejudicial
Questions, which must be decided before any
criminal prosecution may be instituted or may
proceed, shall be governed by the rules of court
which the Supreme Court shall promulgate and
which shall not be in conflict with the provisions
of this code.

The DEFENDANTS
This chapter deals with persons who may be
sued for tort, particularly those who may be
held liable for quasi-delict under article 2176 of
the New Civil Code which states that:
Art.2176 Whoever by act or omission causes
damage to another, there being no fault or
negligence is obliged to pay for the damage
done. Such fault or negligence, if there is no
pre-existing contractual relation between the
parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
JOINT TORTFEASOR
Article 2194 of the New Civil Code
governs the acts or omissions of different
persons which is the proximate cause of an
injury, Article 2194 states that:
Art.2194. The responsibility of two or ore
persons who are liable for quasi-delict is
solidary
Article 2194 imposes a solidary obligation for
the damages caused by joint tortfeasors.
A Solidary obligation means that each one of
the debtor is bound for the compliance of the
whole obligation.
In quasi-delict, Each wrongdoer is responsible
for the entire result and is liable as though his
acts were the sole cause of the injury
Who can be considered Joint Tortfeasor?
a. Joint tortfeasor by cooperation
Defendants may be considered joint
tortfeasor if they cooperated in bringing
about a result. Such cooperation may
be by virtue of a written agreement.

b. CAUSAL SET in torts, it as the
concurrence of two or more acts or
omissions that is sufficient produce the
injury, or without the other, the injury
would not have occurred.


Part of Causal Set Defendants may
likewise be considered joint tortfeasor
if each of their acts or omissions are
part of causal set that is sufficient to
cause the damage to the plaintiff.

Separate Causal Set Persons may be
considered joint-tortfeasor even if they
acted separately or independently. For
example if the proximate cause of the
injury are two causal sets, which are
separately sufficient to cause the injury,
both actors are liable.
REIMBURSEMENT AND APPORTIONMENT OF
LIABILITY
The joint tortfeasor owe solidary liability to the
injured party. As against the in injured party,
one of the joint tortfeasor cannot claim his
contribution is smaller than the contribution of
the other jointfeasor. No apportionment will be
made because one tortfeasor may be held liable
for the entire obligation. The damages cannot
be apportioned among them, except among
themselves
Full Payment made by one solidary debtor
extinguishes the whole obligation, and the
latter can reimburse to his co-debtor the share
which corresponds to each, with the interest for
the payment already made, pursuant to Article
1217 of the New Civil Code, likewise the
insolvency of one of the joint tortfeasor shall be
borne by other joint tortfeasor. Thus a joint
tortfeasor who paid the entire amount of
damages being claimed has the right to claim
reimbursement from the other tortfeasor.
One area of the law that apportions liability
among tortfeasor is the liability of banks for
forged signature in checks. Generally, it is the
collecting bank that must bear the loss because
of its warranty of the genuineness of the
signature of the indorser.
MOTOR VEHICLE MISHAPS
Article 2184. In motor vehicle mishaps, the
owner is solidary liable with his driver, if the
former, who was in the vehicle, could have, by
the use of the due diligence, prevented the
misfortune.
Solidary liability is imposed on the owner of the
vehicle not because of his imputed liability but
because his own omission is a concurring
proximate cause of the injury.The theory is that
ultimately the negligence of the servant, if
known to the master and susceptible of timely
correction by him, reflects his own negligence if
he fails to correct it in order to prevent injury or
damage.
VICARIOUS LIABILITY
There is vicarious liability where a person is not
only liable for torts committed by himself, but
also for torts committed by others with whom
he has a certain relationship and for whom he is
responsible.
Article 2180 to 2182 of the New Civil Code
provides the central determination of vicarious
liability.
Art. 2180. The obligation imposed by Article
2176 is demandable not only for one's own
acts or omissions, but also for those of persons
for whom one is responsible.

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


Guardians are liable for damages caused by
the minors or incapacitated persons who are
under their authority and live in their
company.
The owners and managers of an establishment
or enterprise are likewise responsible for
damages caused by their employees in the
service of the branches in which the latter are
employed or on the occasion of their
functions.

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

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

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

The responsibility treated of in this article shall
cease when the persons herein mentioned
prove that they observed all the diligence of a
good father of a family to prevent damage.
(1903a)

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

Art. 2182. If the minor or insane person
causing damage has no parents or guardian,
the minor or insane person shall be
answerable with his own property in an action
against him where a guardian ad litem shall be
appointed. (n)
The Revised Penal Code also provides vicarious
liability arising from delict
Art. 101. Rules regarding civil liability in
certain cases. The exemption from criminal
liability established in subdivisions 1, 2, 3, 5
and 6 of Article 12 and in subdivision 4 of
Article 11 of this Code does not include
exemption from civil liability, which shall be
enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of
Article 12, the civil liability for acts committed
by an imbecile or insane person, and by a
person under nine years of age, or by one over
nine but under fifteen years of age, who has
acted without discernment, shall devolve upon
those having such person under their legal
authority or control, unless it appears that
there was no fault or negligence on their part.
Should there be no person having such insane,
imbecile or minor under his authority, legal
guardianship or control, or if such person be
insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting
property exempt from execution, in
accordance with the civil law.
Second. In cases falling within subdivision 4 of
Article 11, the persons for whose benefit the
harm has been prevented shall be civilly liable
in proportion to the benefit which they may
have received.
The courts shall determine, in sound
discretion, the proportionate amount for
which each one shall be liable.
When the respective shares cannot be
equitably determined, even approximately, or
when the liability also attaches to the
Government, or to the majority of the
inhabitants of the town, and, in all events,
whenever the damages have been caused with
the consent of the authorities or their agents,

indemnification shall be made in the manner
prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and
6 of Article 12, the persons using violence or
causing the fears shall be primarily liable and
secondarily, or, if there be no such persons,
those doing the act shall be liable, saving
always to the latter that part of their property
exempt from execution.
Art. 102. Subsidiary civil liability of innkeepers,
tavernkeepers and proprietors of
establishments. In default of the persons
criminally liable, innkeepers, tavernkeepers,
and any other persons or corporations shall be
civilly liable for crimes committed in their
establishments, in all cases where a violation
of municipal ordinances or some general or
special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the
restitution of goods taken by robbery or theft
within their houses from guests lodging
therein, or for the payment of the value
thereof, provided that such guests shall have
notified in advance the innkeeper himself, or
the person representing him, of the deposit of
such goods within the inn; and shall
furthermore have followed the directions
which such innkeeper or his representative
may have given them with respect to the care
and vigilance over such goods. No liability shall
attach in case of robbery with violence against
or intimidation of persons unless committed
by the innkeeper's employees.
Art. 103. Subsidiary civil liability of other
persons. The subsidiary liability established
in the next preceding article shall also apply to
employers, teachers, persons, and
corporations engaged in any kind of industry
for felonies committed by their servants,
pupils, workmen, apprentices, or employees in
the discharge of their duties.

LIABILITY of PARENTS to their unemancipated
child
2
nd
paragraph of Article 2180 of the New Civil
Code, is now modified by Article 221 of the
Family Code, which imposes responsibility to
both parents without preference to the father.
The liability is based on the parental authority
of the parents over their minor children. The
age of majority under RA 6809 which amended
Article 234 of the Family Code by making 18
years as the uniform majority age for men and
women.
The last paragraph of Article 236 of the Family
Code states that Nothing in this code shall be
construed to derogate from the duty or
responsibility of parents and guardians for
children and wards below twenty-one years of
age mentioned in the second and third
paragraphs of Article 2180
It is resolved to mean that liability of parents
subsist up until the child is 21 years old.
Civil liability of parents Ex-Delicto
Under RA 9344 a child 15years of age is
exempted from criminal liability but the parents
of such child shall be liable for damages caused
by the latter.
Parents are primarily liable for acts of
their children who are 15 years of age and up
but not more than 18 years old who acted with
discernment.
Parents and guardians are also primarily
liable for acts of their children above 15 but
under 21 years of age, pursuant to the last
paragraph of Article 236 of the Family Code in
relation to Article 2180 of the New Civil Code.

Parents and other persons exercising
parental authority can escape liability by
proving that they observed all the diligence of a
good father of a family to prevent damage. The
burden of proof rests on parents and persons
exercising parental authority.
Guardians of Incapacitated adults also exercises
parental authority over the latter in relation to
Articles 38 and 39 of the New Civil Code.
LIABILITY OF EMPLOYERS
The responsibility of employers for the
negligence of their employees in the
performance of their duties is primary, that is,
the injured party may recover from the
employers directly, regardless of the solvency of
their employees. (Article 2180 of the new Civil
Code 4
th
and 5
th
paragraph)
Requisites of vicarious liability of an employer:
(1) Employer-employee relationship
(2) Liability for quasi-delict of the employee
(3) Performance by the employee of the
task assigned by the employer when
damage or injury was inflicted through
fault or negligence.
Distinctions between the 4
th
and 5
th
paragraph
of Article 2180 of the New Civil Code
The 4
th
paragraph is for owners or managers of
an establishment or enterprise while the 5
th

paragraph is to employers in general, whether
or not engaged in any business or industry.
In Vicarious Liability of Employers it is an
indispensable for a plaintiff to prove employer-
employee relationship to make the employer
liable for the negligence of its employee.
Determination of Employer-employee
Relationship
Independent Contracts
Borrowed Employee Rule
Working Scholars
Labor-Only Contracting
Performance of Assigned Task

The CONTROL test is to be used in
determination of the Employer-employee
relationship. Under the control test, a person
can still be considered another who works for
him as his employee. If the person for whom
the services are to be performed controls only
the result or the end to be achieved, the worker
is the contractor, if the former controls not only
the end but also the manner and means to be
used, the latter is an employee.
PRESUMPTION OF NEGLIGENCE
When an employee causes damage due to his
own negligence while performing his own
duties, there arises a presumption that his
employer is negligent. The employer is
presumed negligent for the failure to observe
due diligence in the selection and supervision of
its employees.
DEFENSE OF EMPLOYER
The employer can escape liability if he can
establish that he exercised proper diligence in
the selection and supervision of his negligent
employee.
A. Diligence in the Selection -
this requires the
examination of the
applicants as to their
qualifications, experience
and service records.


B. Diligence in Supervision
Supervision depends on the
circumstances of
employment. It can be
shown by promulgation of
proper rules and
regulations and the
formulation and publication
of proper instructions for
the employees guidance.
The liability of an employer and employee is
solidary.
LIABILITY OF OWNERS OF MOTOR VEHICLES
Article 2184. In motor vehicle mishaps, the
owner is solidary liable with his driver, if the
former, who was in the vehicle, could have, by
the use of the due diligence, prevented the
misfortune.
Solidary liability is imposed on the owner of the
vehicle not because of his imputed liability but
because his own omission is a concurring
proximate cause of the injury. The theory is that
ultimately the negligence of the servant, if
known to the master and susceptible of timely
correction by him, reflects his own negligence if
he fails to correct it in order to prevent injury or
damage.
Registered owner rule The person who is the
registered owner of a vehicle is liable for any
damages caused by the negligent operation of
the vehicle although the same was already sold
or conveyed to another person. The rule applies
to quasi-delict cases
a. Proof the person invoking the rule
must present a proof which is best
reflected by the certificate of
registration of the vehicle.
b. Liability of transferee The
transferee is liable to the registered
owner for the damages caused to
the passenger. The registered
owner has a right to be reimbursed
by the transferee.
Leased Vehicles The registered owner rules
applies to leased vehicles, unless the lease
contract is annotated by the lessor-owner at
the back of the certificate of registration in
order to give notice to third parties that the
lessee and not the registered owner who is in
the possession and operation the vehicle.
The registered owner rule does not apply to
stolen vehicles.
Kabit System is an arrangement whereby a
person who has been granted a certificate of
public convenience allows other persons who
own motor vehicles to operate them under his
license, sometime for a fee or percentage of the
earnings. Consistent with the registered owner
rule, the plaintiff need not to prove the actual
operator of a vehicle involved in the accident.
Liability of Employer Under the Revised Penal
Code
The liability of an employer is subsidiary with
the employee provided the following requisites
concur:
a. That the person sought to be made
liable is indeed the employer of the
convicted accused
b. The employer is engaged in any kind of
industry
c. That the employee was convicted of the
offense committed in the discharge of
his duties
d. The employee is insolvent.

Conviction of the employee is a condition sine
qua non, and proof of the latters insolvency to
render the employer subsidiary liable.
LIABILITY OF INNKEEPERS AND HOTELKEEPERS
Article 102 of the Revised Penal Code provides
that innkeepers, tavernkeepers, and any other
persons or corporations shall be civilly liable
for crimes committed in their establishments,
in all cases where a violation of municipal
ordinances or some general or special police
regulation shall have been committed by them
or their employees, in default of the persons
criminally liable.
Innkeepers are liable for the restitution of
goods taken away by robbery of theft within
their houses from guests lodging therein. No
liability shall attach in case of robbery with
violence against or intimidation of persons
unless committed by the innkeepers
employees.
LIABILITY OF PARTNERSHIP
The partnership or every member of a
partnership, is liable for torts committed by one
of the members acting within the scope of the
firm business, though they do not participate
in, ratify, or have knowledge of such torts. The
vicarious liability of partnership are embodied
by article 1822,1823 and 1824 of the New Civil
Code.
LIABILITY OF SPOUSES
Absolute Community Property The absolute
community property shall be liable for
liabilities incurred by either spouses by reason
of a crime or a quasi-delict
Conjugal partnership of gains The general rule
is that pecuniary indemnities imposed upon the
husband and wife are not chargeable against
the conjugal partnership but against the
separate properties of the wrongdoer.
Complete separation of properties - Liability is
imposed on the separate property of the
offending spouse.

LIABILITY OF THE STATE and GOVERNMENT
INSTRUMENTALITIES and OFFICERS
State The state cannot be sued without its
consent, it can only be held liable if it act thru a
special agent (6
th
paragraph of article 2180 of
the New Civil Code).
A special agent is one who receives definite and
fixed order or commission, foreign to the
exercise of the duties of his office if he is a
special official.
Not all Government entities, whether corporate
or non-corporate, are immune from suits.
Immunity from suits is determined by the
character of the objects for which the entity
was organized.
Municipal Corporations Article 2189
Provinces, cities and municipalities shall be
liable for damages for the death of, or injuries
suffered by, any person by reason of the
defective condition of roads, streets, bridges,
public buildings, and other public works under
their control or supervision.
LIABILITY OF PUBLIC OFFICERS
Public officers who are guilty of tortuous
conduct are personally liable for their actions.
The revised Administrative Code of 1987
provides that

Sec.38 a public officer shall not be civilly liable
for act done in the performance of his official
duties unless there is a clear showing of bad
faith, malice or gross negligence.
JUDGES AND OFFICERS PERFORMING QUASI-
JUDICIAL FUNCTIONS
Judges cannot be held liable in exercising its
Judicial Function for it would destroy the
Independence of the Judiciary, unless it can be
shown that the Judge acted with malice.
STRICT LIABILITY

There is strict liability if one is made liable
independent of fault, negligence or intent after
establishing certain facts specified by law. Strict
liability tort can be committed even if
reasonable care was exercised and regardless of
the state of mind of the actor at that time.
In Black Law Dictionary, strict liability is defined
as liability without fault. When neither care nor
negligence, neither good faith or bad faith,
neither knowledge nor ignorance will save the
defendant.

Examples of Strict liability:

LIABILITY OF EMPLOYERS

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

ANIMALS

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

The plaintiff must establish the damage done by
the animal to him and the possessor or the one
who makes use of the said animal.

FALLING OBJECTS

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

Lessees and owners of a building are liable in
this provision if due to things thrown or falling
from the same causes damage to another.

NUISANCE

There is strict liability on the part of the owner
or possessor of the property where a nuisance
is found because he is obliged to abate the
same irrespective of the presence or absence of
fault or negligence.

UNJUST ENRICHMENT

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

PRODUCT AND SERVICE
LIABILITY

Section 9 of Article XVI of the 1987
Constitution provides that The state shall
protect the consumers from trade malpractices
and from substandard and hazardous
products. The constitutional provision that
makes it a state policy to protect consumers is
intended not only against traders but also
manufacturers who dump defective,
substandard or even hazardous products in the
market This constitutional mandate is
embodied in Republic Act no. 7394 or the
Consumer Act of the Philippines.

ALTERNATIVE THEORIES

There are five different cause of action that may
justify the award of damages for the injuries
sustained because of defective products, they
are:

1 Fraud or Misrepresentation
2 Breach of Warranty
3 Negligence
4 Civil Liability arising from criminal liability
5 Strict liability

FRAUD OR MISREPRESENTATION

If a seller misrepresented to the buyer that the
product has no side-effects the seller is liable to
the buyer who was damaged because of the
side effect. It should be noted that not all
expressions are considered actionable
misrepresentation if they are established to be
inaccurate. Under the New Civil Code, usual
exaggerations in trade are not actionable
misrepresentation.

BREACH OF WARRANTY

A warranty under the New Civil Code is any
affirmation of fact or any promise by the seller
relating to the thing, the necessary tendency of
which is to induce the buyer to purchase the
same, and the buyer purchases the thing relying
thereon.
Warranties may be express or implied. There is
always an implied warranty unless a contrary
intention appears (Art. 1547 of the NCC)

Requisites of an express warranty

a. Set forth the terms of the warranty in
clear and understandable language
b. Identify the party to whom the
warranty is extended
c. State the products or parts covered.
d. State what the warrantor will do in the
event of a defect, malfunction of failure
to conform to the warranty and at
whose expense
e. State what the consumer must do to
avail of the rights which accrue to the
warranty
f. Stipulate the period within which, after
notice of the defect, malfunction or
failure to conform to the warranty, the
warrantor will perform any obligation
under the warranty

Article 68 of the Consumer Act provides:
xxxxx
c) Designation of warranties

A written warranty shall clearly and
conspicuously designate such warranty as
1)"Full warranty" if the written
warranty meets the minimum requirements
set forth in
paragraph (d); or
2)"Limited warranty" if the written
warranty does not meet such minimum
requirements.

d)Minimum standards for warranties
-For warrantor of a consumer product to met
the minimum standards for warranty, he shall:

1)remedy such consumer product
within a reasonable time and without charge
in case
of a defect, malfunction or failure to conform
to such written warranty;
2)permit the consumer to elect
whether to ask for a refund or replacement
without charge of such product or part, as the
case may be, where after reasonable number
of attempts to remedy the defect or
malfunction, the product continues to have the
defect or malfunction.
The warrantor will not be required to perform
the above duties if he can show that the
defect, malfunction or failure to conform to a
written warranty was caused by damage
due to unreasonable use thereof.

e)Duration of warranty

-The seller and the consumer may stipulate the
period within which the
express warranty shall be enforceable. If the
implied warranty on merchantability
accompanies an express warranty, both will be
of equal duration.

f)Any other implied warranty shall endure not
less than sixty (60) days nor more than one (1)
year following the sale of new consumer
products.

g)Breach of warranties

-(1) In case of breach of express warranty, the
consumer may elect to
have the goods repaired or its purchase price
refunded by the warrantor. In case the repair
of the product in whole or in part is elected,
the warranty work must be made to conform
to the express warranty within thirty (30) days
by either the warrantor or his representative.
The thirty-day period, however, may be
extended by conditions which are beyond the
control of the warrantor or his representative.
In case the refund of the purchase price is
elected, the amount directly attributable to
the use of the consumer prior to the discovery
of the non-conformity shall be deducted.

h)In case of breach of implied warranty, the
consumer may retain in the goods and recover
damages, or reject the goods, cancel and
contract and recover from the seller so much
of the purchase price as has been paid,
including damages

Article 1567 of the New Civil Code provides
that the vendee may elect between
withdrawing from the contract or demanding a
proportionate reduction of the price, with
damages in either cases.

RECORDS AND REPORTS

As a part of the rule regarding the enforcement
of warranties, it is required that the distributors
and retailers keep a record of all purchases
covered by a warranty or guarantee for such
period of time corresponding to the lifetime of
the products respective warranties or
guarantees. Sales report are required to be
submitted 30 days from the date of purchase to
the manufacturer, producer or importer, failure
to comply with the requirements relieves the
latter liability under the warranty.

LIABILITY OF RETAILERS

The retailer shall be subsidiarily liable under the
warranty in case of failure of both manufacturer
and distributor to honor the warranty. In such
case, the retailer shall shoulder the expenses
and cost necessary to honor the warranty. On
the other hand, the recourse of the retailer is to
proceed against the distributor or
manufacturer.

ENFORCEMENT OF WARRANTIES

The purchaser must present the warranty card
and the product to be serviced returned to the
seller


PRIVITY NOT REQUIRED

The warranty extends up to the end buyer not
only to the immediate buyer.

NEGLIGENCE

The matters that were discussed regarding
liability based on delict and quasi-delict in the
earlier chapters apply to liability for defective
products. The liability will result if due care of
an ordinarily prudent man was not exercised in
manufacturing, packaging, marketing or
distributing the product.

VIOLATION OF STATUTE AS PROOF
NEGLIGENCE

Generally, the care, which must be exercised,
would depend on the circumstances of each
case. It is important to note that in product
liability law, special laws and the rules and
regulations of proper government agencies
already impose certain standards. Certain acts
or omissions are expressly prohibited by
statutes thereby making violation thereof
negligence per se. For instance, Section 11 of
republic Act no. 3720 otherwise known as the
Food, drug and Cosmetics Act.

DELICT

The buyer or the ultimate consumer may
likewise enforce the obligation of the
manufacturer or the seller based on delict. The
liability may be based on criminal negligence
under the Revised Penal Code as the case may
be. Damages may also be enforced in violation
of Special Laws.

STRICT LIABILITY

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

Privity of contract is not required under Article
2187 because it expressly allows recovery
although no contractual relation exists. The
word shall indicates that the liability of the
manufacturer and processor is strict.
Even if there is no negligence, however, public
policy demands that the responsibility be fixed
wherever it will most effectively reduce the
hazards to life and health inherent in defective
products that reach the market.

Art 97 and 99 of the Consumer act provides
strict liability to defective products and does no
require privity of contracts. Manufacturers shall
be liable to the defects of the products in the
said articles.

RATIONALE OF STRICT LIABILITY OF
MANUFACTURERS

a. The consumer finds it too difficult to
prove negligence against the
manufacturer.
b. Strict liability provides an effective and
necessary incentive to manufacturers to
make their products as safe as possible.
c. Res ipsa loquitur is in fact applied, in
some case, to impose liability upon
producers who have not in fact been
negligent; therefore negligence should
be dispensed with.
d. Reputable manufacturers do in fact
stand behind their products, replacing
and repairing those which prove to be
defective; and many of them issue
agreements to do so. Therefore, all
should be responsible when injury
results from a normal use of a product.
e. The manufacturer is in a better position
to protect against harm, by insuring
against liability for it, and, by adding the
costs of the insurance to the price of
the product , to pass the loss to the
general public

f. Strict liability can already be
accomplished by a series of actions in
which the consumer first recovers from
the retailer on a warranty, and liability
on warranties is then carried back
through the intermediate dealers to the
manufacturer. The process is time-
consuming, expensive and wasteful;
there should be a short-cut
g. By placing the product on the market,
the seller represents to the public that
it is fit, and he intends and expects that
it will be purchased and consumed in
reliance upon that representation. The
middleman is no more than a conduit, a
mechanical device through which the
thing sold reaches the consumer.
h. The costs of accidents should be place
on the party best able to determine
whether there are means to prevent
the accidents

MEANING OF DEFECTIVE PRODUCT:

Article 97 of the consumer acts provides:

a. Manufacturing Defect defects
resulting from manufacture,
construction, assembly and erection

b. Design defect defects resulting
from design and formulas.
(in the absence of standard
imposed by law for the design and
formula of a product, the Customer
Expectation test is adopted under
the Consumer Act a product may
be found to be defective in design if
it failed to perform as safely as the
consumer expected it to be)

c. Presentation defect defects
resulting from handling, making up,
presentation or packing of the
products.

d. Absence of appropriate warning
defect resulting from the
insufficient or inadequate
information on the use and
hazards of the product. (the
Consumer Act expressly states that
as a policy that the state shall
enforce compulsory labeling, and
fair packaging to enable the
consumer to obtain accurate
information as to the nature,
quality and quantity of the contents
of consumer products and to
facilitate his comparison of the
value of such products)

MALFUNCTION DOCTRINE

A product defect may be inferred by
circumstantial evidence that
1 The product malfunctioned
2 The malfunction occurred during
proper use
3 The product had not been altered or
misused in a manner that probably
caused the malfunction.

DEFENSES

Article 97 provides that the manufacturer,
builder, producer or importer shall not be liable
when it evidences:

a. That it did not place the product on the
market
b. That although it did not place the
product on the market such product has
no defect
c. That the consumer or a third party is
solely at fault
Article 99 provides that the supplier of the
services shall not be liable when it is proven:
a. That there is no defect in the service
rendered
b. That the consumer or third party is
solely at fault.


COMPARATIVE NEGLIGENCE

Comparative negligence is not applicable in
strict liability, besides, there is no provision in
the Consumer Act which allows such mitigation.

BUSINESS TORTS

The New Civil Code expressly provides that the
indemnification for damages shall comprehend
profits that the obligee failed to obtain. The
provision, in effect, also recognizes the
existence of liability for various interference
with business interests. The Interference may
be in form of negligent or intentional acts or
omissions. It may arise from different sources of
obligation like delict, quasi-delict, or breach of
contract.

This section deals with business torts known as

1. Interference with contractual
relations.

2.Interference with prospective
advantage
3.Unfair competition
4.Securities Related Fraud

INTERFERENCE WITH CONTRACTUAL
RELATIONS

Article 1314. Any third person who induces
another to violate his contract shall be liable
for damages to the other contracting party

Elements of the tort of interference of
contractual relations:

1. Existence of a valid contract
2. Knowledge on the part of the third
person of the existence of the contract
3. Interference of the third person without
legal justification or excuse.

The breach of the contract must be due to the
interference of a third person with the
knowledge of the existence of said contract.
Malice or ill-will is immaterial, if the persuasion
of the third person is used for the indirect
purpose of injuring the plaintiff or benefitting
the defendant at the expense of the plaintiff, it
is a malicious act which in law and fact a
wrongful act.

INTERFERENCE WITH PROSPECTIVE
ADVANTAGE

If there is no contract yet and the defendant is
only being sued for inducing another not to
enter into a contract with the plaintiff, the tort
committed is appropriately called interference
with prospective advantage.

UNFAIR COMPETITION

Article 28. Unfair competition in agricultural,
commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit,
machination or any other unjust, oppressive or
highhanded method shall give rise to a right of
action by the person who thereby suffers
damage.

Section 168 of the Intellectual Property Code or
Republic Act 8293 gives a definition of Unfair
Competition
Section 168. Unfair Competition, Rights,
Regulation and Remedies. - 168.1. A person
who has identified in the mind of the public
the goods he manufactures or deals in, his
business or services from those of others,
whether or not a registered mark is employed,
has a property right in the goodwill of the said
goods, business or services so identified, which
will be protected in the same manner as other
property rights.
168.2. Any person who shall employ deception
or any other means contrary to good faith by
which he shall pass off the goods

manufactured by him or in which he deals, or
his business, or services for those of the one
having established such goodwill, or who shall
commit any acts calculated to produce said
result, shall be guilty of unfair competition,
and shall be subject to an action therefor.
168.3. In particular, and without in any way
limiting the scope of protection against unfair
competition, the following shall be deemed
guilty of unfair competition:
(a) Any person, who is selling his goods
and gives them the general appearance
of goods of another manufacturer or
dealer, either as to the goods
themselves or in the wrapping of the
packages in which they are contained,
or the devices or words thereon, or in
any other feature of their appearance,
which would be likely to influence
purchasers to believe that the goods
offered are those of a manufacturer or
dealer, other than the actual
manufacturer or dealer, or who
otherwise clothes the goods with such
appearance as shall deceive the public
and defraud another of his legitimate
trade, or any subsequent vendor of
such goods or any agent of any vendor
engaged in selling such goods with a
like purpose;
(b) Any person who by any artifice, or
device, or who employs any other
means calculated to induce the false
belief that such person is offering the
services of another who has identified
such services in the mind of the public;
or
(c) Any person who shall make any
false statement in the course of trade
or who shall commit any other act
contrary to good faith of a nature
calculated to discredit the goods,
business or services of another.
168.4. The remedies provided by Sections 156,
157 and 161 shall apply mutatis mutandis.
(Sec. 29, R.A. No. 166a)
The Revised Penal Code also provides:
Art. 186. Monopolies and combinations in
restraint of trade. The penalty of prision
correccional in its minimum period or a fine
ranging from 200 to 6,000 pesos, or both, shall
be imposed upon:
1. Any person who shall enter into any
contract or agreement or shall take
part in any conspiracy or combination
in the form of a trust or otherwise, in
restraint of trade or commerce or to
prevent by artificial means free
competition in the market;
2. Any person who shall monopolize
any merchandise or object of trade or
commerce, or shall combine with any
other person or persons to monopolize
and merchandise or object in order to
alter the price thereof by spreading
false rumors or making use of any
other article to restrain free
competition in the market;
3. Any person who, being a
manufacturer, producer, or processor
of any merchandise or object of
commerce or an importer of any
merchandise or object of commerce
from any foreign country, either as
principal or agent, wholesaler or
retailer, shall combine, conspire or
agree in any manner with any person
likewise engaged in the manufacture,
production, processing, assembling or
importation of such merchandise or
object of commerce or with any other
persons not so similarly engaged for
the purpose of making transactions
prejudicial to lawful commerce, or of
increasing the market price in any part

of the Philippines, of any such
merchandise or object of commerce
manufactured, produced, processed,
assembled in or imported into the
Philippines, or of any article in the
manufacture of which such
manufactured, produced, or imported
merchandise or object of commerce is
used.
INTERFERENCE

Unfair competition is present where a
businessman interferes with the contract of his
competitor to get the latters clients.

MISAPPROPRIATION

When the defendant committed fraudulent
misappropriation against a competitor.

MONOPOLIES AND PREDATORY PRICING

Monopoly is present when there is
concentration of business in the hands of the
few that result in power to control price and the
competition.
A practice of selling below costs in the short run
in the hope of obtaining monopoly gains later,
after driving the competition from the market.

SECURITIES RELATED TORTS
Section 26. Fraudulent Transactions. It shall
be unlawful for any person, directly or
indirectly, in connection with the purchase or
sale of any securities to:
26.1. Employ any device, scheme, or artifice to
defraud;
26.2. Obtain money or property by means of
any untrue statement of a material fact of any
omission to state a material fact necessary in
order to make the statements made, in the
light of the circumstances under which they
were made, not misleading; or
26.3. Engage in any act, transaction, practice or
course of business which operates or would
operate as a fraud or deceit upon any person.
The essential objective of securities legislation is
to protect those who do not know market
conditions from the overreaching of those who
do.

MISSTATEMENTS

No securities , except those classified as exempt
or unless sold in any exempt transaction, can be
sold or offered for sale or distribution to the
public within the Philippines unless such
securities shall have been registered with the
Securities and Exchange Commission.

Section 56 of RA 8799 provides for the incident
of False Registration Statement and the person
liable thereof
Section 56. Civil Liabilities on Account of False
Registration Statement. 56.1. Any person
acquiring a security, the registration statement
of which or any part thereof contains on its
effectivity an untrue statement of a material
fact or omits to state a material fact required
to be stated therein or necessary to make such
statements not misleading, and who suffers
damage, may sue and recover damages from
the following enumerated persons, unless it is
proved that at the time of such acquisition he
knew of such untrue statement or omission:
(a) The issuer and every person who
signed the registration statement:
(b) Every person who was a director of,
or any other person performing similar
functions, or a partner in, the issuer at
the time of the filing of the registration
statement or any part, supplement or
amendment thereof with respect to
which his liability is asserted;

(c) Every person who is named in the
registration statement as being or
about to become a director of, or a
person performing similar functions, or
a partner in, the issuer and whose
written consent thereto is filed with
the registration statement;
(d) Every auditor or auditing firm
named as having certified any financial
statements used in connection with
the registration statement or
prospectus.
(e) Every person who, with his written
consent, which shall be filed with the
registration statement, has been
named as having prepared or certified
any part of the registration statement,
or as having prepared or certified any
report or valuation which is used in
connection with the registration
statement, with respect to the
statement, report, or valuation, which
purports to have been prepared or
certified by him.
(f) Every selling shareholder who
contributed to and certified as to the
accuracy of a portion of the
registration statement, with respect to
that portion of the registration
statement which purports to have
been contributed by him.
(g) Every underwriter with respect to
such security.
DEFENSES

The defendants are free from liability if they can
prove that at the time of the acquisition, the
plaintiff knew of the untrue statement or
omission.

DAMAGES

The court may award damages not exceeding
triple the amount of the transactions plus actual
damage. Exemplary damage may also be
awarded in cases of bad faith, fraud,
malevolence or wanton violation of RA 8799.
The defendants liability is jointly and severally

DAMAGES

The Supreme Court defined the word
Damages in one case as the pecuniary
compensation, recompense, or satisfaction for
an injury sustained, or as otherwise expressed,
the pecuniary consequences which the law
imposes for the breach of some duty or
violation of some rights.
Complaint for damages is a Personal Action and
the award must be money.
There is no liability in cases of a valid exercise of
a right in good faith. (DAMNUM ABSQUE
INJURIA) One who exercises a right does no
injury.

KINDS OF DAMAGES: (art.2197 NCC)

Art. 2197 Damages may be:

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

ACTUAL OR COMPENSATORY

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


Art. 2205 Damages may be recovered:

1. For loss or impairment of earning
capacity in cases of temporary or
permanent personal injury
2. For injury to the plaintiffs business
standing or commercial credit.

CERTAINTY OF DAMAGES

A party is entitled to adequate compensation
only for such pecuniary los actually suffered and
duly proved. It is a basic rule that to recover
damages, the amount of loss must not only be
capable of proof but must be actually proven
with a reasonable degree of certainty, premised
upon competent proof or best evidence
obtainable of the actual amount thereof. A
court cannot rely on speculations, conjectures,
or guesswork as to the fact and amount of
damages. It cannot also rely on hearsay or
uncorroborated testimony, the truth of which is
suspect. The burden of proof is incumbent upon
the plaintiff to prove actual loss.
Exceptions:
a. The right to damages is not loss by
mere difficulty to prove actual
damage provided that the right to
them has been established.
b. Civil Indemnity is mandatory in
crimes of rape, and cases where the
victim died.( article 2206 NCC)

RESTITUTO in INTEGRUM

The amount to be awarded to the plaintiff
should be that sum of money which will put the
party who has been injured or who has suffered
in the same position as he would have been if
he had not sustained the wrong for which he is
now getting his compensation or reparation.

Exception: In some cases, Defendants
gain is the measure for the award of damages.

DAMAGE TO PROPERTY

a. Personal Property the plaintiff is
entitled to the value at the time of
the destruction of the property

b. Real property - Ordinarily the
difference between the reasonable
market value of the property
immediately before and after the
injury. In cases of loss or
deprivation of possession, the
plaintiff is entitled to the value of
the premises or rental value of the
real property.

PERSONAL INJURY

The plaintiff shall be entitled to actual medical
and other expenses and Future medical
expenses and life care cost. Indemnity or life
care cost may be awarded thru periodic
payments or lump sum.

DAMAGES IN CASES OF DEATH

Art 2206 states that the heirs, spouse,
legitimate and illegitimate descendants and
ascendants of the deceased are entitled to
damages due to the death of the deceased
caused by a crime or quasi-delict by the
defendant.

Damages that can be awarded:

Civil Indemnity the amount of
3,000pesos is the minimum award that the
court may grant in cases of death caused by a
crime or a quasi-delict.
Actual Damages has to be duly
proved by the plaintiff (heirs of the deceased)
this includes wake and funeral expenses.
Moral Damages (discussed hereunder)
Exemplary damages ( )
Attorneys fee (discussed hereunder)
Interest (discussed hereunder)


LOSS OF EARNING CAPACITY

The plaintiff shall also be entitled to damages
for loss of earning capacity. The formula for
computation of loss of earning capacity is:

Net Earning Capacity = Life expectancy x [gross
annual income less necessary living expenses]

Life expectancy is computed as 2/3 x [80-age at
death]

Living expenses is 50% of gross income

Sufficient evidence should be presented by the
plaintiff to establish the net earnings of the
deceased.
No documentary evidence are required if the
deceased is;
a. Self-employed earning less than the
minimum wage
b. Employed as daily wage worker
earning less than the minimum
wage under current labor laws.

LOSS OF EARNING CAPACITY OF NON-
WORKING VICTIMS

The recovery of damages are usually premised
on the situation of the victim wherein the latter
has no employment or a student. What is
important is that there is proof of loss of
earning capacity and not necessarily actual loss
of income. Evidence must be presented that the
victim, if not yet employed at the time of death,
was reasonably certain to complete training for
a specific profession, contrary to that would
result to denial of the award of damages.

LOSS OF PROFITS

Loss of profits of businesses may also be
recovered provided they duly proved, foreseen
and expected. Unrealized profits cannot be
awarded if the basis is too speculative and
conjectural.

ATTORNEYS FEE
Attorneys fee is due to the plaintiff not to the
counsel, the amount agreed upon by plaintiff
and his counsel cannot affect the award of
attorneys fee. Generally attorneys fee cannot
be awarded the exception to this rule is:
Article 2208. In the absence of stipulation,
attorney's fees and expenses of litigation,
other than judicial costs, cannot be recovered,
except:
(1) When exemplary damages are
awarded;
(2) When the defendant's act or
omission has compelled the plaintiff to
litigate with third persons or to incur
expenses to protect his interest;
(3) In criminal cases of malicious
prosecution against the plaintiff;
(4) In case of a clearly unfounded civil
action or proceeding against the
plaintiff;
(5) Where the defendant acted in gross
and evident bad faith in refusing to
satisfy the plaintiff's plainly valid, just
and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages
of household helpers, laborers and
skilled workers;
(8) In actions for indemnity under
workmen's compensation and
employer's liability laws;
(9) In a separate civil action to recover
civil liability arising from a crime;

(10) When at least double judicial costs
are awarded;
(11) In any other case where the court
deems it just and equitable that
attorney's fees and expenses of
litigation should be recovered.
In all cases, the attorney's fees and expenses
of litigation must be reasonable.
INTEREST

Article 2209. If the obligation consists in the
payment of a sum of money, and the debtor
incurs in delay, the indemnity for damages,
there being no stipulation to the contrary, shall
be the payment of the interest agreed upon,
and in the absence of stipulation, the legal
interest, which is six per cent per annum.
(1108)
Article 2210. Interest may, in the discretion of
the court, be allowed upon damages awarded
for breach of contract.
Article 2211. In crimes and quasi-delicts,
interest as a part of the damages may, in a
proper case, be adjudicated in the discretion of
the court.
Article 2212. Interest due shall earn legal
interest from the time it is judicially
demanded, although the obligation may be
silent upon this point. (1109a)
Article 2213. Interest cannot be recovered
upon unliquidated claims or damages, except
when the demand can be established with
reasonable certainty.
CB circular No. 416 applies to
1. Loans
2. Obligations not constituting a loan
3. Judgment involving cases stated above

If the obligation consist of a loan the interest is
12 %

If the obligation does not constitute a loan the
interest is 6%

When judgment becomes final the interest shall
be reckoned at 12%

MITIGATION OF LIABILITY

Article 2203. The party suffering loss or injury
must exercise the diligence of a good father of
a family to minimize the damages resulting
from the act or omission in question.
Article 2204. In crimes, the damages to be
adjudicated may be respectively increased or
lessened according to the aggravating or
mitigating circumstances.
Article 2214. In quasi-delicts, the contributory
negligence of the plaintiff shall reduce the
damages that he may recover.
Article 2215. In contracts, quasi-contracts, and
quasi-delicts, the court may equitably mitigate
the damages under circumstances other than
the case referred to in the preceding article, as
in the following instances:
(1) That the plaintiff himself has
contravened the terms of the contract;
(2) That the plaintiff has derived some
benefit as a result of the contract;
(3) In cases where exemplary damages
are to be awarded, that the defendant
acted upon the advice of counsel;
(4) That the loss would have resulted
in any event;
(5) That since the filing of the action,
the defendant has done his best to
lessen the plaintiff's loss or injury.

COLLATERAL SOURCE RULE

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

MORAL DAMAGES

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

A claim for moral damages is personal to the
offended party and the latter has to prove that
his moral suffering was the proximate result of
the act of the defendant. The exception is
stated in the last two paragraphs of Article 2219

No proof is required for moral damages in cases
of death of the victim and rape cases.
Corporations are not entitled to moral damages
on the ground that they are artificial persons,
no feeling no emotions to start with, hence
cannot suffer mental and emotional suffering.

Moral Damages may be recovered where the
dismissal of the employee was attended by bad
faith or constitute an act oppressive to labor or
was done contrary to morals.

CASES WHEN MORAL DAMAGES MAY BE
AWARDED
Article 2219. Moral damages may be recovered
in the following and analogous cases:
(1) A criminal offense resulting in
physical injuries;
(2) Quasi-delicts causing physical
injuries;
(3) Seduction, abduction, rape, or
other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or
arrest;
(6) Illegal search;
(7) Libel, slander or any other form of
defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in
articles 21, 26, 27, 28, 29, 30, 32, 34,
and 35.
The parents of the female seduced, abducted,
raped, or abused, referred to in No. 3 of this
article, may also recover moral damages.
The spouse, descendants, ascendants, and
brothers and sisters may bring the action
mentioned in No. 9 of this article, in the order
named.


FACTORS IN DETERMINING AMOUNT
There is no hard and fast rule that could
determine the amount of moral damages. The
factors that may be considered are:
a. Extent of Humiliation
b. Pain and suffering (especially in death
and physical injuries)
c. Official, Political, Social and Financial
Standing.
d. Age
NOMINAL DAMAGES
Article 2221. Nominal damages are
adjudicated in order that a right of the
plaintiff, which has been violated or invaded
by the defendant, may be vindicated or
recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered
by him.
Article 2222. The court may award nominal
damages in every obligation arising from any
source enumerated in article 1157, or in every
case where any property right has been
invaded.
Article 2223. The adjudication of nominal
damages shall preclude further contest upon
the right involved and all accessory questions,
as between the parties to the suit, or their
respective heirs and assigns.
Nominal Damages cannot co-exist with actual
Damages on the ground that the claim of actual
damages, if any, and if duly proven, will serve as
the vindication of the right of the plaintiff,
hence the award of nominal damage is
unnecessary and improper.
TEMPERATE OR MODERATE DAMAGES
Article 2224. Temperate or moderate
damages, which are more than nominal but
less than compensatory damages, may be
recovered when the court finds that some
pecuniary loss has been suffered but its
amount can not, from the nature of the case,
be provided with certainty.

Article 2225. Temperate damages must be
reasonable under the circumstances.
FIXED TEMEPRATE DAMAGES
In murder cases, the supreme Court pegged the
amount of 25,000 pesos if actual damages are
not established
LIQUIDATED DAMAGES
Article 2226. Liquidated damages are those
agreed upon by the parties to a contract, to be
paid in case of breach thereof.
Article 2227. Liquidated damages, whether
intended as an indemnity or a penalty, shall be
equitably reduced if they are iniquitous or
unconscionable.
Article 2228. When the breach of the contract
committed by the defendant is not the one
contemplated by the parties in agreeing upon
the liquidated damages, the law shall
determine the measure of damages, and not
the stipulation.
Reduction is subject to the courts discretion
considering the case to assure the equitable
resolution of the amount of damages.
Reduction may prosper especially when the
obligation is substantially performed, and
reduction is not warranted when the
circumstances show that one of the parties is in
bad faith and has no intent with complying with
the terms of the obligation.

EXEMPLARY DAMAGES
Article 2229. Exemplary or corrective damages
are imposed, by way of example or correction
for the public good, in addition to the moral,
temperate, liquidated or compensatory
damages.
Exemplary damages are also called punitive
damages. Exemplary damages are imposed as a
deterrent against or as a negative incentive to
curb socially deleterious actions.
Article 2230. In criminal offenses, exemplary
damages as a part of the civil liability may be
imposed when the crime was committed with
one or more aggravating circumstances. Such
damages are separate and distinct from fines
and shall be paid to the offended party.
Article 2231. In quasi-delicts, exemplary
damages may be granted if the defendant
acted with gross negligence.
Article 2232. In contracts and quasi-contracts,
the court may award exemplary damages if the
defendant acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner.
Article 2233. Exemplary damages cannot be
recovered as a matter of right; the court will
decide whether or not they should be
adjudicated.
Article 2234. While the amount of the
exemplary damages need not be proved, the
plaintiff must show that he is entitled to
moral, temperate or compensatory damages
before the court may consider the question of
whether or not exemplary damages should be
awarded. In case liquidated damages have
been agreed upon, although no proof of loss is
necessary in order that such liquidated
damages may be recovered, nevertheless,
before the court may consider the question of
granting exemplary in addition to the
liquidated damages, the plaintiff must show
that he would be entitled to moral, temperate
or compensatory damages were it not for the
stipulation for liquidated damages.
Article 2235. A stipulation whereby exemplary
damages are renounced in advance shall be
null and void.
CRIMINAL CASES
In Criminal Cases, the imposition of exemplary
damage is proper when there is an aggravating
circumstance.
QUASI-DELICT CASES
When the defendant acted with gross
negligence exemplary damages should be
imposed.
QUASI-CONTRACT
If the defendant acted in an oppressive manner,
such as when the creditor defendant acted
oppressively by pestering the debtor to pay
interest and threatened to block the latters
transaction if he or she would not pay interest.

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2012-0692 Arellano University School of Law

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