Torts and Damages Memory Aid

San Beda College of Law
215
MEMORY AID
IN
CIVIL LAW
TORTS AND DAMAGES

I. TORTS
TORT
An unlawful violation of private
right, not created by contract, and
which gives rise to an action for
damages.
It is an act or omission producing
an injury to another, without any
previous existing lawful relation of
which the said act or omission may be
said to be a natural outgrowth or
incident.
NOTES:
An unborn child is NOT entitled to
damages. But the bereaved parents
may be entitled to damages, on
damages inflicted directly upon them.
(Geluz vs. CA, 2 SCRA 802)
Defendants in tort cases can either
be natural or artificial being.
Corporations are civilly liable in the
same manner as natural persons.
Any person who has been injured
by reason of a tortious conduct can sue
the tortfeasor.
The primary purpose of a tort
action is to provide compensation to a
person who was injured by the tortious
conduct of the defendant.
Preventive remedy is available in
some cases.
Classes of Torts:
A. Negligent Torts
B. Intentional Torts
C. Strict Liability
A. NEGLIGENT TORTS
Involve voluntary acts or omissions
which result in injury to others without
intending to cause the same or
because the actor fails to exercise due
care in performing such acts or
omissions.
nature
of
the
obligation
and
corresponding to the circumstances of
persons, time and place. (Article 1173
Civil Code)
Kinds of Negligence:
1. Culpa Contractual (contractual
negligence)
Governed by CC provisions on
Obligations and Contracts, particularly
Arts. 1170 to 1174 of the Civil Code.
2. Culpa Aquiliana (quasi-delict)
Governed mainly by Art. 2176 of
the Civil Code
3.
Culpa
Criminal
(criminal
negligence)
Governed by Art. 365 of the
Revised Penal Code.
NOTES:
The 3 kinds of negligence furnish

separate, distinct, and independent
bases of liability or causes of action.
A single act or omission may give
rise to two or more causes of action.
Culpa Contractual
The foundation of
the liability of the
defendant
is the contract
In breach of contract
committed through
the negligence of
employee,
the
employer
cannot
erase his primary and
direct liability by
invoking exercise of
diligence of a good
father of a family in
the selection and
supervision of the
employee.
Culpa Aquiliana
NEGLIGENCE
The omission of that degree of
diligence which is required by the
CIVIL LAW COMMITTEE
Only involves private

concern
Culpa Aquiliana
It is a separate
source of obligation
independent
of
contract
In quasi-delict the
presumptive
responsibility for the
negligence of his
servants can be
rebutted by proof of
the exercise of due
care in their selection
and supervision.
Crime
Affect the
interest
public
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy
Gayon
SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and
Lease), John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)

216
MEMORY AID
IN
CIVIL LAW
Negligence is a conduct that

The Civil Code by
means of indemnification
merely
repairs the damage
The Revised Penal

Code punishes or
corrects criminal act
Includes all acts in

which any kind of
fault or negligence
intervenes
Punished only if there

is a penal law clearly
covering them
Liability is direct and

primary in quasidelict
Liability
of
the
employer
of
the
actor-employee
is
subsidiary in crimes
QUASI-DELICT
Whoever by act or omission causes
damage to another, there being fault
or negligence is obliged to pay for the
damage done. (Article 2176 Civil Code)
Essential Requisites for a quasidelictual action:

1. Act or omission constituting fault
or negligence;
2. Damage caused by the said act or
omission; and
3. Causal relation between the
damage and the act or omission.
Tests of Negligence
1. Did the defendant in doing the
alleged negligent act use the
reasonable care and caution which
an ordinarily prudent person would
have used in the same situation?
If not then he is guilty of
negligence.
2. Could a prudent man, in the case
under consideration, foresee harm
as a result of the course pursued?
If so, it was the duty of the actor
to take precautions to guard against
harm.
NOTES:
Negligence is a conduct - the
determination of the existence of
negligence is concerned with what the
defendant did or did not do
The state of mind of the actor
is not important; good faith or use
of sound judgment is immaterial.
The existence of negligence in a
given case is not determined by
reference
to
the
personal
judgment but by the behavior of
the actor in the situation before
him. (Picart vs. Smith)
CIVIL LAW COMMITTEE
creates an undue risk of harm to

others.
The determination of negligence is
a question of foresight on the part of
the actor FORESEABILITY.
Even if a particular injury was not
foreseeable,
the
risk
is
still
foreseeable if possibility of injury is
foreseeable.
Forseeability involves the question
of PROBABILITY, that is, the existence
of some real likelihood of some
damage and the likelihood is of such
appreciable weight reasonably to
induce, action to avoid it.
Calculation of Risk
Interests are to be balanced only
in the sense that the purposes of the
actor, the nature of his act and the
harm that may result from action or
inaction
are
elements
to
be
considered.
Circumstances
to
consider
in
determining negligence: (PEST-GAP)
1. Time
2. Place
3. Emergency
Emergency rule
GENERAL RULE: An individual
who suddenly finds himself in a
situation of danger and is required
to act without much time to
consider the best means that may
be adopted to avoid the impending
danger is not guilty of negligence
if he fails to undertake what
subsequently and upon reflection
may appear to be a better
solution.
EXCEPTION:
When
the
emergency was brought by the
individuals
own
negligence.
(Valenzuela vs. CA 253 SCRA 303).
4. Gravity of Harm to be avoided
5. Alternative Course of Action
If the alternative presented to
the actor is too costly, the
harm that may result may be
still
be
considered
unforeseeable to a reasonable
man.
6. Social value or utility of activity
7. Person exposed to the risk
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MEMORY AID
GOOD FATHER OF A FAMILY (pater
familias):
- this is the standard of conduct used
in the Philippines
- a man of ordinary intelligence and
prudence or an ordinary reasonable
prudent man
a reasonable man deemed to have
knowledge of the facts that a man
should be expected to know based on
ordinary human experience. (PNR vs
IAC, 217 SCRA 409)
- a prudent man who is expected to
know the basic laws of nature and
physics, e.g. gravity.
SPECIAL RULES
1. Children
The action of the child will not
necessarily be judged according to the
standard of an adult. But if the minor
is mature enough to understand and
appreciate
the
nature
and
consequence of his actions, he will be
considered negligent if he fails to
exercise due care and precaution in
the commission of such acts.
NOTES:
The law fixes no arbitrary age at
which a minor can be said to have the
necessary capacity to understand and
appreciate
the
nature
and
consequence of his acts. (Taylor vs.
Meralco, 16 Phil 8)
Applying the provisions of the
Revised Penal Code, Judge Sangco
takes the view that a child who is 9 or
below is conclusively presumed to be
incapable of negligence. In the other
hand, if the child is above 9 years but
below 15, there is a disputable
presumption of absence of negligence.
Absence of negligence does not
necessarily mean absence of liability.
Liability without fault: a child
under 9 years can still be subsidiarily
liable with his property (Art. 100, RPC)
Absence of negligence of the child
may not excuse the parents from their
vicarious liability under Art. 2180 NCC
or Art. 221 FC.
2. Physical Disability
Mere weakness of a person will not
be an excuse in negligence cases.
However if defect amounts to a
real disability the standard of conduct
is that of a reasonable person under
like disability.
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CIVIL LAW
3. Experts and professionals

They should exhibit the care and
skill of one who is ordinarily skilled in
the particular field that he is in.
When a person holds himself out as
being competent to do things requiring
professional skill, he will be held liable
for negligence if he fails to exhibit the
care and skill of one ordinarily skilled
in the particular work which he
attempts to do.
An expert will not be judged based
on what a non-expert can foresee.
The rule regarding experts is
applicable not only to professionals
who have undergone formal education.
4. Nature of activity
There are activities which by
nature impose duties to exercise a
higher degree of diligence.
Examples:
a.
Banks, by the very nature of
their work, are expected to exercise
the highest degree of diligence in the
selection and supervision of their
employees.
b.
Common carriers are required to
exercise extraordinary diligence in the
vigilance over their passengers and
transported goods. (Article 1733 Civil
Code).
5. Intoxication
GENERAL RULE: Mere intoxication is
not negligence, nor does the mere fact
of intoxication establish want of
ordinary care. But it may be one of the
circumstances to be considered to
prove negligence.
EXCEPTION: Under Art. 2185 of the
Civil Code, it is presumed that a
person driving a motor vehicle has
been negligent if at the time of the
mishap, he was violating any traffic
regulation.
6. Insanity
The insanity of a person does not
excuse him or his guardian from
liability based on quasi-delict.
Bases for holding an insane person
liable for his tort:
a.
Where one of two innocent
persons must suffer a loss, it should be
borne by the one who occasioned it.
b.
To induce those interested in the
estate of the insane person to restrain
and control him.
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MEMORY AID
c.
The fear that an insanity would
lead to false claims of insanity and
avoid liability.
7. Women
In determining the question of
contributory negligence in performing
such act, the age, sex, and condition
of the passengers are circumstances
necessarily affecting the safety of the
passenger, and should be considered.
(Cangco vs. Manila Railroad Co. GR
No.12191, October 14, 1918)
Although there is no unequivocal
statement of the rule, Valenzuela vs.
CA 253SCRA303 appears to require a
different standard of care for women
under the circumstances indicated
therein.
However, Dean Guido Calabresi
believes that there should be a
uniform standard between a men and
a women.
Other Factors to Consider in
Determining Negligence:
A. VIOLATION OF RULES AND
STATUTES
1. Statutes
GENERAL RULE:
Violation of a
statutory duty is NEGLIGENCE PER SE
(Cipriano vs. CA, 263SCRA711). When
the Legislature has spoken, the
standard of care required is no longer
what a reasonably prudent man would
do under the circumstances but what
the Legislature has commanded.
EXCEPTIONS:
a. When unusual conditions occur
and strict observance may
defeat the purpose of the rule
and may even lead to adverse
results.
b. When the statute expressly
provides that violation of a
statutory
duty
merely
establishes a presumption of
negligence.
NOTE: Rule as to proof of proximate
cause
GENERAL RULE: Plaintiff must
show that the violation of the
statute is the proximate or legal
cause of the injury or that it
substantially contributed thereto.
(Sanitary Steam Laundry, Inc. vs. CA
300SCRA20)
EXCEPTION: In cases where the
damage to the plaintiff is the
damage sought to be prevented by
the statute. In such cases, proof of
CIVIL LAW COMMITTEE
IN
CIVIL LAW
violation of statute and damage to

the plaintiff may itself establish
proximate
cause.
(Teague
vs.
Fernandez 51SCRA181).
2.
Administrative Rule
Violation of a rule promulgated

by administrative agencies is not
negligence per se but may be
EVIDENCE OF NEGLIGENCE.
3.
Private Rules of Conduct.
Violation of rules imposed by

private individuals (e.g. employers) is
merely a POSSIBLE EVIDENCE OF
NEGLIGENCE.
B. PRACTICE AND CUSTOM
Compliance with the practice and
custom in a community will not
automatically result in a finding that
the actor is not guilty of negligence.
Non-compliance with the practice or
custom in the community does not
necessarily mean that the actor was
negligent.
In Yamada vs. Manila Railroad Co.,
the owner of an automobile struck by
a train while crossing the tracks sought
to establish absence of negligence of
its driver by evidence of a custom of
automobile drivers of Manila by which
they habitually drove their cars over
the
railroad
crossings
without
slackening speed. The SC rejected the
argument by ruling that: a practice
which is dangerous to human life
cannot ripen into custom which will
protect anyone who follows it.
C. COMPLIANCE WITH STATUTES
Compliance with a statute is not
conclusive
that
there
was
no
negligence.
Example: A defendant can still be
held liable for negligence even if he
can establish that he was driving
below the speed limit. Compliance
with the speed limit is not conclusive
that he was not negligently driving his
car.
Gross Negligence - Negligence where
there is want of even slight care and
diligence.
PROOF OF NEGLIGENCE
GENERAL RULE:
If the plaintiff alleged in his
complaint that he was damaged
because of the negligent acts of the
defendant, the plaintiff has the
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219
MEMORY AID
burden of proving such negligence.
(Taylor vs. MERALCO 16Phil8)
The quantum of proof required is
preponderance of evidence. (Rule 133
Revised Rules of Court)
EXCEPTIONS: Exceptional cases when
the rules or the law provides for cases
when negligence is presumed.
A. Presumptions of Negligence
B. Res Ipsa Loquitur
A. Presumptions of Negligence
1. In motor vehicle mishaps, the
owner is presumed negligent if he was
in the vehicle and he could have used
due
diligence
to
prevent
the
misfortune. (Article 2184 Civil Code)
2. It is disputably presumed that a
driver was negligent if he had been
found guilty of reckless driving or
violating traffic regulations at least
twice for the next preceding two
months. (Article 2184 Civil Code)
3. The driver of a motor vehicle is
presumed negligent if at the time of
the mishap, he was violating any
traffic regulation. (Article 2185 Civil
Code)
4. GENERAL RULE: Prima facie
presumption of negligence of the
defendant arises if death or injury
results from his possession of
dangerous weapons or substance.
EXCEPTION: When such possession or
use is indispensable to his occupation
or business. (Article 2188 Civil Code)
5. GENERAL RULE: Presumption of
negligence of the common carrier
arises in case of loss, destruction or
deterioration of the goods, or in case
of death or injury of passengers.
EXCEPTION: Upon proof of exercise
of extraordinary diligence.
B. Res Ipsa Loquitur
The thing or transaction speaks
for itself.
It is a rule of evidence peculiar to
the law of negligence which recognizes
that prima facie negligence may be
established in the absence of direct
proof, and furnishes a substitute for
specific proof of negligence.
IN
CIVIL LAW
1. The accident was of a kind which

ordinarily does not occur in the
absence of someones negligence;
2. The instrumentality which caused
the injury was under the exclusive
control and management of the
person charged with negligence;
and
3. The injury suffered must not have
been due to any voluntary action
or contribution on the part of the
person
injured;
absence
of
explanation by the defendant.
In Africa vs. Caltex (Phil.) Inc. Mar

31, 1966, defendant Caltex was liable
for damage done to the property of its
neighbors when fire broke out in a
Caltex service station. The gasoline
station, with all its appliances,
equipment and employees, was under
the control of the defendant. The
persons who knew how the fire started
were the defendant and its employees,
but they gave no explanation
whatsoever.
The doctrine is not applicable if
there is direct proof of absence or
presence
of
negligence.
(S.D.
Martinez, et al vs. William Van
Buskirk)
AFFIRMATIVE
DUTIES
AND
MISCELLANEOUS ACTIVITIES:
1. Duty to Rescue
A. Duty to the rescuer
The defendants are liable for

the injuries to persons who rescue
people in distress because of the acts
or omissions of the said defendants.
There is liability to the rescuer

and the law does not discriminate
between the rescuer oblivious to the
peril and the one who counts the
costs.
The risk of rescue, if only not

wanton, is born of the occasion.
One who was hurt trying to

rescue another who was injured
through negligence may recover
damages. (Santiago vs. De leon CA-GR
No.16180-R March 21, 1960)
Danger of personal injury or

death.
Requisites of Res Ipsa Loquitor:

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MEMORY AID
B. Duty to rescue
GENERAL RULE: There is no general
duty to rescue; a person is not liable
for quasi-delict even if he did not help
a person in distress.
EXCEPTIONS: A limited duty to
rescue is imposed in certain cases:
Abandonment of persons in danger and
abandonment of ones own victim is
considered,
under
certain
circumstances as a crime against
security (Article 275 RPC); and
No driver of a motor vehicle concerned
in a vehicular accident shall leave the
scene of the accident without aiding
the victim unless he is excused from
doing so. (Section 55 RA 4136 [Land
Transportation and traffic Code])
2.
Owners,
Proprietors
and
Possessors of Property
GENERAL RULE: The owner has no
duty to take reasonable care towards a
trespasser for his protection or even to
protect him from concealed danger.
NOTE: Damage to any person resulting
from the exercise of any rights of
ownership is damage without injury
(Damnum absque injuria)
EXCEPTIONS:
a. Visitors and tolerated possession
The owner is still liable if

the plaintiff is inside his property
by tolerance or by implied
permission.
Owners of buildings or
premises owe duty of care to
visitors.
b. Doctrine of Attractive Nuisance
One who maintains on his
premises
dangerous
instrumentalities or appliances of
a character likely to attract
children in play, and who fails to
exercise ordinary care to prevent
children from playing therewith or
resorting thereto, is liable to a
child of tender years who is
injured thereby, even if the child
is technically a trespasser in the
premises.
NOTE: A swimming pool or pond
or reservoir of water is NOT
considered attractive nuisance.
(Hidalgo Enterprises vs. Baladan
91 Phil 488)
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CIVIL LAW
c. 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
imminent
danger
and
the
threatened damage, compared to
the damage arising to the owner
from the interference, is much
greater. (Article 432 Civil Code)
It is also a recognized justifying
circumstance under the RPC.
In both the Civil Code and the
RPC, the owner may demand from
the person benefited, indemnity
for the damages.
Use of properties that injures
another
An owner cannot use his property
in such a manner as to injure the
rights of others. (Article 431 Civil
Code).
Hence the exercise of the right of
the owner may give rise to an action
based on quasi-delict if the owner
negligently exercises such right to the
prejudice of another.
Liability of Proprietors of buildings
New Civil Code include provisions
that apply to proprietors of a building
or structure which involve affirmative
duty of due care in maintaining the
same: Articles 2190 and 2191.
Third
persons
who
suffered
damages may proceed only against the
engineer or architect or contractor if
the damage referred to in Articles
2190 and 2191should be a result of any
defect in construction.
Nevertheless, actions for damages
can still be maintained under Article
2176 for damages resulting from
proprietors failure to exercise due
care in the maintenance of his building
and that he used his property in such a
way that he injured the property of
another.
3. Employers and Employees
A. Employers
Actions for quasi-delict can still be
maintained even if employees
compensation is provided for
under the Labor Code.
In quasi-delictual actions against
the employer, the employee may
use the provisions of the Labor
Code which imposes upon the
employer certain duties with
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MEMORY AID
respect to the proper maintenance

of the work place or the provisions
of adequate facilities to ensure
the safety of the employees.
Articles 1711 and 1712 of the Civil
Code impose liability without fault
on the part of the employers.
B. Employees
Employees are bound to exercise
due care in the performance of
their functions for the employers;
absence such due care, the
employee may be held liable.
4. Banks
The business of banks is one
affected by public interest. Because
of the nature of its functions, a bank is
under obligation to treat the accounts
of its depositors with meticulous care,
always having in mind the fiduciary
nature of their relationship. (PBC vs.
CA [1997])
5. Common carriers
From the nature of their business
and for reasons of public policy, they
are bound to exercise extraordinary
diligence in the vigilance over the
goods and the safety of the
passengers.
The case against the common
carrier is for the enforcement of an
obligation arising from breach of
contract.
The same act which breached the
contract may give rise to an action
based on quasi delict. (Air France vs
Carrascoso, L21438, Sept. 28, 1996)
6. Doctors
A. STANDARD OF CARE
The proper standard is whether,

the physician if a general practitioner,
has exercised the degree of care and
skill
of the
average
qualified
practitioner, taking into account the
advances in the profession.
A physician who holds himself

out as a specialist should be held to
the standard of care and skill of the
average member of the profession
practicing the specialty, taking into
account
the
advances
in
the
profession.
B. THE CAPTAIN OF THE SHIP DOCTRINE
The head surgeon is made liable

for everything that goes wrong within
IN
CIVIL LAW
the four corners of the operating

room.
It enunciates the liability of the

surgeon not only for the wrongful acts
of those under his physical control but
also those wherein he has extension of
control.
C. NOT WARRANTORS
Physicians are not warrantors of

cures or insurers against personal
injuries or death of the patient.
D. PROOF
Expert testimony should be

offered
to
prove
that
the
circumstances are constitutive of
conduct falling below the standard of
care employed by other physicians in
good standing when performing the
same operation.
Medical malpractice can also be

established by relying on the doctrine
of res ipsa loquitor; in which case the
need of expert testimony is dispensed
with because the injury itself provides
the proof of negligence. (Ramos vs.
CA, GR No.124354, December 29,
1999)
Example: The doctrine was

applied in a case of removal of the
wrong part of the body when another
part was intended.
Two pronged evidence:
a. Evidence as to the recognized
standards
of
the
medical
community in the particular kind
of case; and
b. A showing that the physician
departed from this standard in his
treatment.
Four elements in medical
negligence cases: duty, breach, injury
and proximate causation
E. LIABILITY OF HOSPITALS AND
CONSULTANTS
There is no employer-employee
relationship between the hospital and
a physician admitted in the said
hospitals medical staff as an active or
visiting consultant which would hold
the hospital liable solidarily liable for
the injury suffered by a patient under
Article 2180 of the Civil Code. (Ramos
vs. CA GR No 124354, April 11, 2002)
The contract between the

consultant and the patient is
separate and distinct the contract
between the hospital and the
patient. The first has for its object
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MEMORY AID
the rendition of medical services by
the consultant to the patient, while
the second concerns the provision by
the hospital of facilities and services
by its staff such as nurses and
laboratory personnel necessary for the
proper treatment of the patient.
(Ramos vs. CA GR No 124354, April 11,
2002)
7. Lawyers
An attorney is not bound to
exercise extraordinary diligence but
only a reasonable degree of care and
skill, having reference to the business
he undertakes to do.
DEFENSES IN NEGLIGENCE CASES
Kinds of defenses:
A. Complete completely bars
recovery
B. Partial mitigates liability
1. PLAINTIFFS
CONDUCT
AND
CONTRIBUTORY NEGLIGENCE
a. Plaintiffs own negligence as
the proximate cause
When
the
plaintiffs
own
negligence was the immediate
and proximate cause of his
injury, he
cannot
recover
damages. (Article 2179 Civil
Code)
b. Contributory negligence
Conduct on the part of the
injured party contributing as a
legal cause to the harm he has
suffered which falls below the
standard to which he is required
to conform for his own
protection. (Valenzuela vs. CA
253SCRA303)
If the plaintiffs 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 (Article 2179 Civil
Code).
Doctrine
of
Comparative
Negligence
The
relative degree of negligence of
the parties is considered in
determining whether and to
what degree, either should be
responsible for his negligence
(apportionment of damages).
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CIVIL LAW
This is
the doctrine being applied in our
jurisdiction
wherein
the
contributory negligence of the
plaintiff does not completely bar
recovery but merely results in
mitigation of liability; it is a
partial defense.
The
court is free to determine the
extent of the mitigation of the
defendants liability depending
upon the circumstances.
2. IMPUTED
CONTRIBUTORY
NEGLIGENCE
Negligence is imputed if the actor
is different from the person who is
being made liable.
The defendant will be subject to
mitigated liability even if the
plaintiff was not himself personally
negligent
but
because
the
negligence of another is imputed
to the plaintiff.
It is applicable if the negligence
was on the part of the person for
whom the plaintiff is responsible,
and especially, by negligence of an
associate in the transaction where
he was injured.
3. FORTUITOUS EVENTS
Essential requisites:
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
the event which constitutes the
caso fortuito, 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; and
d. The obligor must be free from
any
participation
in
the
aggravation
of
the
injury
resulting to the creditor.
NOTE: When an act of God concurs
with the negligence of defendant to
produce an injury, the defendant is
liable if the injury would not have
resulted but for his own negligent
conduct or omission. The whole
occurrence
is
humanized
and
removed from the rules applicable to
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MEMORY AID
acts of God. (NAPOCOR vs. CA
[1993])
GENERAL RULE: It is a complete
defense and a person is not liable if
the cause of the damage is a
fortuitous event.
EXCEPTION: It is merely a partial
defense and the courts may mitigate
the damages if the loss would have
resulted in any event (Art. 2215(4)
Civil Code).
4. ASSUMPTION OF RISK
Volenti non fit injuria: One is not
legally injured if he has consented to
the act complained of or was willing
that it should occur.
It is a complete defense.
Elements:
a.
The plaintiff must know that the
risk is present;
b.
He must further understand its
nature; and that
c.
His choice to incur it is free and
voluntary.
KINDS:
a.
Express waiver of the right to
recover
There is assumption of risk if the

plaintiff, in advance has expressly
waived his right to recover damages
for the negligent act of the defendant.
NOTE: A person cannot contract away
his right to recover damages resulting
from negligence.
Such waiver is
contrary to public policy and cannot
be allowed.
However, the waiver
contemplated by this prohibition is the
waiver of the right to recover before
the negligent act was committed.
If waiver was made after the cause
of action accrued, the waiver is valid
and may be construed as a
condonation of the obligation.
IN
CIVIL LAW
A person who, knowing that

he is exposed to a dangerous
condition voluntarily assumes the
risk of such dangerous condition
may not recover from the
defendant who maintained such
dangerous conditions.
Example: A person who

main-tained his house near a
railroad track assumes the usual
dangers attendant to the operation of a locomotive. (Rodrigueza
vs. Manila Railroad Co., GR No.
15688, Nov. 19, 1921).
ii. Contractual Relations
There may be implied

assumption of risk if the plaintiff
entered into a contractual relation
with the defendant. By entering
into a relationship freely and
voluntarily where the negligence
of the defendant is obvious, the
plaintiff may be found to accept
and consent to it.
EXAMPLES:
a) The employees assume

the ordinary risks inherent in the
industry in which he is employed.
- As to abnormal risks, there
must be cogent and convincing
evidence of consent.
b) When a passenger boards
a common carrier, he takes the
risks incidental to the mode of
travel he has taken.
iii. Dangerous Activities
Persons
who
voluntarily
participate in dangerous activities
assume the risks which are usually
present in such activities.
EXAMPLE: A professional
athlete is deemed to assume the
risks of injury to their trade.
iv. Defendants negligence
b.
Implied Assumptions
i. Dangerous Conditions
When the plaintiff is aware

of the risk created by the
defendants negligence, yet he
voluntarily decided to proceed to
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MEMORY AID
encounter it, there is an implied
admission.
IN
CIVIL LAW
CAUSATION
EXAMPLE: If the plaintiff has

been supplied with a product
which he knows to be unsafe, he is
deemed to have assumed the risk
of using such unsafe product.
Proximate Cause
That cause which in natural and
continuous sequence, unbroken by any
efficient intervening cause, produces
the injury, without which the result
would not have occurred.
5. DEATH OF THE DEFENDANT

Death of the defendant does not
extinguish the obligation based on
quasi-delict.
An action survives even if the
defendant dies during the pendency of
the case if the case is an action to
recover for an injury to persons or
property by reason of tort committed
by the deceased. It is no defense at
all.
Remote Cause
That
cause
which
some
independent
force
merely
took
advantage of to accomplish something
not the natural effect thereof.
6. PRESCRIPTION
An action based on quasi-delict
prescribes in four years from the date
of the accident. (Article 1146 Civil
Code)
Relations Back Doctrine
An act done at one time is
considered by fiction of law to
have
been
done
at
some
antecedent period. (Allied Banking
Corp vs. CA, 1989)
EXAMPLE: A doctor negligently
transfused blood to a patient that
was contaminated with HIV. If the
effect became apparent only after
five (5) years, the four (4) year
prescriptive
period
should
commence only when it was
discovered.
7. INVOLUNTARINESS
It is a complete defense in quasidelict cases and the defendant is
therefore not liable if force was
exerted on him. (Aquino, Torts and
Damages)
EXAMPLE: When the defendant was
forced to drive his vehicle by armed
men. He was, at pain of death, forced
to drive at a very fast clip because the
armed men were escaping from the
policemen. The defendant cannot be
held liable, if a bystander is hit as a
consequence.
Nearest Cause
That cause which is the last link in
the chain of events; the nearest in
point of time or relation.
Proximate cause is not necessarily
the nearest cause but that which is the
procuring efficient and predominant
cause.
Concurrent Causes
The actor is liable 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. (Africa vs. Caltex)
Where several causes producing
the injury are concurrent and each is
an efficient cause without which the
injury would not have happened, the
injury may be attributed to all or any
of the causes and recovery may be had
against any or all of the responsible
persons.
Where
the
concurrent
or
successive negligent acts or omissions
of two or more persons, although
acting
independently,
are
in
combination the direct and proximate
cause of a single injury to a third
person, and it is impossible to
determine what proportion each
contributed to the injury, either of
them is responsible for the whole
injury, even though his act alone might
not have caused the entire injury; they
become joint tort-feasors and are
solidarily liable for the resulting
damage under Article 2194 of the Civil
Code.
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MEMORY AID
NOTE:
Primary cause remains the
proximate cause even if there is an
intervening cause which merely
cooperated with the primary cause and
which did not break the chain of
causation.
Tests of Proximate Cause
Two-part test
1. Cause-in-fact Test
2. Policy Test
NOTE: 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. (Cause-infact test)
If
the
defendants negligence was not
the cause-in-fact, the inquiry
stops.
If it is, the inquiry shifts to the
question
of
limit
of
the
defendants liability. (Policy test)
CAUSE-IN-FACT TESTS:
1. But-For Test
The defendants conduct is the
cause-in-fact if damage would not
have resulted had there been no
negligence on the part of the
defendant.
Conversely, defendants
negligent conduct is not the cause in
fact of the plaintiffs damage if the
accident could not have been avoided
in the absence thereof.
2. Substantial Factor test
The conduct is 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 the 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.
NOTE: If the defendants conduct was
already determined to be the cause in
fact of the plaintiffs damage under
the but for test, it is necessarily the
cause in fact of the damage under the
substantial factor test.
3. NESS Test
The candidate condition may still
be termed as a cause where it is shown
to be a necessary element in just one
of several co-present causal set each
independently
effect.
IN
CIVIL LAW
sufficient
for
the
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 overdetermined.
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.
Multiple causation
If there are a number of

candidate conditions, which, taken
one at a time, would not in fact have
been sufficient to cause the accident
and the accident was a cumulative
effect of all the candidate conditions.
Policy Tests:
1. Foreseeability Test
2. Natural and Probable Consequence
Test
3. Natural and Ordinary or Direct
Consequence Test
4. Hindsight Test
5. Orbit of Risk Test
6. Substantial Factor Test
Policy Tests may be divided into Two
Groups:
1. FORESIGHT PERSPECTIVE/
FORESEEABILITY TESTS
The defendant is not liable for the
unforeseeable consequences of his
acts
Liability is limited within the risk
created by defendants negligent acts.
2. DIRECT PERSEPECTIVE/ DIRECT
COSEQUENCES TESTS
The defendant is liable for
damages which are beyond the risk.
Direct consequences are those
which follow in sequence from the
effect of defendants act upon
conditions existing and forces already
in operation at the time without
intervention of any external forces,
which come into active operation
later.
Tests applied in the Philippines:
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MEMORY AID
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.
Cause-in-fact Tests:
1.
But-for test
2.
Substantial Factor test
3.
NESS test
Policy test:
The directness
approach is being applied in this
jurisdiction.
NOTE: The definition of proximate
cause which includes the element of
foresight is not consistent with the
express provision of the Article 2202 of
the New Civil Code; a person may be
held liable whether the damage to the
plaintiff may be unforeseen.
Cause and Conditions
It is no longer practicable to
distinguish
between cause and
condition.
The defendant may be liable even
if only created conditions, if the
conditions resulted in harm to either
person or property.
EXAMPLES
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.
3.
Those involving products and
other things which are dangerous
because they are defective.
Efficient Intervening Cause
One which destroys the causal
connection between the negligent act
and the injury and thereby negatives
liability.
There is NO efficient intervening
cause if the force created by the
negligent act or omission have either:
1. Remained active itself, or
2. Created another force which
remained active until it directly
caused the result, or
3. Created a new active risk of
being acted upon by the active
force that caused the result.
EXAMPLE: The medical findings, show
that the infection of the wound by
tetanus was an efficient intervening
cause later or between the time Javier
was wounded to the time of his death.
(People vs. Rellin 77 Phil 1038)
IN
CIVIL LAW
NOTES:
A cause is not an intervening cause
if it was already in operation at the
time the negligent act is committed.
Foreseeable intervening causes
cannot be considered sufficient
intervening causes.
The intervention of unforeseen
and unexpected cause is not sufficient
to relieve the wrongdoer from
consequences of negligence if such
negligence directly and proximately
cooperates with the independent
cause in the resulting injury.
CONTRIBUTORY NEGLIGENCE
A. Plaintiffs negligence is the cause
Plaintiffs negligence is not
contributory if it is necessary and
sufficient to produce the result.
EXAMPLES:
1.
Only
the
plaintiff
was
negligent.
2.
Defendants negligence is not a
part of the causal set which is a part
of the causal chain.
3.
Plaintiffs negligence was preemptive in nature.
B. Compound Causes
Plaintiffs negligence may have
duplicative effect, that it, it is
sufficient to bring about the effect but
his negligence occurs simultaneously
with the defendant; the latters
negligence is equally sufficient but not
necessary to bring about the effect
because damage would still have
resulted due to the negligence of the
plaintiff.
Plaintiffs negligence is not merely
contributory because it is a concurring
proximate cause.
No recovery can be had. (Aquino,
Torts and Damages)
C. Part of the same causal set
Neither plaintiffs negligence nor
defendants negligence alone is
sufficient to cause the injury; the
effect would result only if both are
present
together
with
normal
background conditions.
Negligence of the plaintiff
cooperated with the negligence of the
defendant in order to bring about the
injury; determination of proximate
cause is only a matter of degree of
participation.
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MEMORY AID
D. Defendants Negligence is the
Only cause
Defendants
negligence
was
sufficient AND necessary to bring
about the injury.
However, if plaintiffs negligence
increased or aggravated the resulting
damage or injury liability of the
defendant should also be mitigated
under contributory negligence rule or
under the doctrine of avoidable
consequences.
Doctrine of Last Clear Chance or
Discovered Peril
The negligence of the plaintiff
does not preclude a recovery for the
negligence of the defendant where it
appears that the defendant, by
exercising
reasonable
care
and
prudence,
might
have
avoided
injurious consequences to the plaintiff
notwithstanding
the
plaintiffs
negligence.
Alternative Views:
1. Prevailing view
Doctrine is applicable in this
jurisdiction.
Even if plaintiff was guilty of
antecedent negligence, the defendant
is still liable because he had the last
clear chance of avoiding the injury.
2. Minority View
The historical function of the
doctrine was to mitigate the harshness
of the common law rule of
contributory
negligence
which
prevented any recovery at all by the
plaintiff who was also negligent even if
his negligence was relatively minor as
compared with the wrongful act or
omission of the defendant.
The doctrine has no role in this
jurisdiction where common law
concept of contributory negligence has
itself been rejected in Article 2179 of
the Civil Code.
3. Third View
There can be no conflict between
the doctrine of last clear chance and
doctrine of comparative negligence if
the former is viewed as a rule or
phrase of proximate cause;
However, the doctrine of last clear
chance is no longer applicable if the
force created by the plaintiffs
negligence
continues
until
the
happening of the injurious event.
IN
CIVIL LAW
Cases when the doctrine was held

inapplicable (PICCA)
1. If the plaintiff was not negligent.
2. The party charged is required to
act instantaneously, and if the injury
cannot be avoided by the application
of all the means at hand after the peril
is or should have been discovered.
3. If defendants negligence is a
concurrent cause and which was still in
operation up to the time the injury
was inflicted.
4. Where the plaintiff, a passenger,
filed an action against a carrier based
on contract.
5. If the actor, though negligent, was
not aware of the danger or risk
brought about by the prior fraud or
negligent act.
B. INTENTIONAL TORTS
Include conduct where the actor
desires to cause the consequences of
his act or believes that the
consequences are substantially certain
to result from it.
They are found in Chapter 2 of the

Preliminary Title of the NCC entitled
Human Relations. Although this
chapter covers negligent acts, the
torts mentioned herein are mostly
intentional in nature or torts involving
malice or bad faith.
HUMAN RELATIONS
1. Principle
(ART.19)
of
Abuse
of
Rights
Elements:
a. Legal right or duty;

b. The right or duty is exercised
in bad faith; and
c. For the sole intent of
prejudicing or injuring another.
EXAMPLE:
If
the
principal
unreasonably terminated an agency
agreement
for
selfish
reasons.
(Valenzuela vs. CA, 190 SCRA 1)
NOTE: This rule is a departure from
the traditional view that a person is
not liable for damages resulting from
the exercise of ones right.
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MEMORY AID
IN
CIVIL LAW
Sexual intercourse is not by itself a

2. Article 20 of the Civil Code
Speaks of the general sanction for

all other provisions of law which do
not especially provide for their own
sanction.
NOTE: Article 20 does not distinguish;
the act may be done willfully or
negligently.
3. Acts contra bonus mores (Article

21 Civil Code)
Elements:
a. Act which is legal;

b. The act is contrary to morals, good
customs, public order or public policy;
and
c. The act is done with intent to
injure.
NOTE: Damages are recoverable even
if no positive law was violated.
basis for recovery; damages could only

be awarded if the sexual intercourse is
not a product of voluntariness or
mutual desire.
b. Seduction without
promise to marry
breach
of
Seduction, by itself, is also an act

contrary to morals, good customs and
public policy.
The defendant is liable if he

employed deceit, enticement, superior
power or abuse of confidence in
successfully having sexual intercourse
with another even if he satisfied his
lust without promising to marry the
offended party.
It may not even matter that the

plaintiff and the defendant are of the
same gender.
Kinds:
a. Breach of promise to marry
c. Sexual assault
GENERAL RULE: Breach of promise

to marry by itself is not actionable.
EXCEPTION: In cases where there is
another act independent of the breach
of promise to marry which gives rise to
liability:
1. Cases where there was financial

damage.
2. Social humiliation caused to one of
the parties.
Defendant is liable for all forms of

sexual assault including crimes defined
under the RPC as rape, acts of
lasciviousness and seduction.
d. Desertion by a spouse
A spouse has a legal obligation to

live with his/her spouse.
3. Where there was moral seduction.

NOTES:
Moral seduction, although not

punishable, connotes the idea of
deceit, enticement, superior power or
abuse of confidence on the part of the
seducer to which the woman has
yielded. (Gashem Shokat Baksh vs. CA)
If a spouse does not perform

his/her duty to the other, he may be
liable for damages for such omission
because the same is contrary to law,
morals, good customs and public
policy.
e. Trespass
Property
and
Deprivation
of
2 KINDS:
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MEMORY AID
1)
Trespass
to
and/or
deprivation of real property
If
a
company
disconnects the electricity service
without prior notice as required by
the rules, the company commits a
tort under Article 21 NCC.
Liability for damages under

the RPC and Article 451 of the Civil
Code requires intent or bad faith.
Article 448 of the Civil
Code in relation to Article 456
does not permit action for
damages where the builder,
planter, or sower acted in good
faith. The landowner is limited to
the options given to him under
article 448, that is to appropriate
whatever is built or planted or to
compel the builder or planter to
purchase the portion encroached
upon. (Aquino, Torts and Damages)
A builder in good faith who

acted negligently may be held
liable under Art. 2176 NCC.
2)
Trespass to or deprivation
of personal property
In the field of tort, trespass

extends to all cases where a
person is deprived of his personal
property even in the absence of
criminal liability.
NOTE: It may cover cases where
the defendant was deprived of
personal property for the purpose
of obtaining possession of real
property
EXAMPLE: The defendant

who was landlord, was held liable
because he deprived the plaintiffs,
his tenants, of water in order to
force them to vacate the lot they
were cultivating. (Magbanua vs.
IAC 137 SCRA 352)
3)
Disconnection
electricity or gas service
CIVIL LAW
Example:
IN
f.
Abortion and Wrongful Death
Damages may be recovered by

both spouses if:
1)
the
caused
through
negligence, or
abortion
was
the
physicians
2)
was done intentionally

without their consent
Husband of a woman who

voluntarily procured her abortion may
recover damages from the physician
who caused the same on account of
distress and mental anguish attendant
to the loss of the unborn child and the
disappointment
of
his
parental
expectation. (Geluz vs. CA 2SCRA802)
g. Illegal Dismissal
The right of the employer to

dismiss an employee should not be
confused with the manner in which the
right is exercised and the effects
flowing therefrom;
If the dismissal was done antisocially and oppressively, the employer

should be deemed to have violated
Article 1701 of the Civil Code (which
prohibits acts of oppression by either
capital or labor against the other) and
Article 21 NCC.
of
The right to disconnect and

deprive
the
customer,
who
unreasonably fails to pay his bills,
of electricity should be exercised
in accordance with the law and
rules.
An employer may be held liable for

damages if the manner of dismissing is
contrary to morals good customs and
public policy.
EXAMPLE:
False imputation of
misdeed to justify dismissal or any
similar manner of dismissal which is
done abusively.
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MEMORY AID
h. Malicious Prosecution
i.
An action for damages brought by

one against another whom a criminal
prosecution, civil suit, or other legal
proceeding
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 putting

legal process in force regularly, for
mere purpose of vexation or injury.
(Drilon vs. CA [1997])
IN
CIVIL LAW
Public Humiliation
Damages may be awarded in cases

where
the
plaintiff
suffered
humiliation through the positive acts
of the defendant directed against the
plaintiff.
Example: The defendant was held

liable for damages under Art. 21 for
slapping the plaintiff in public.
(Patricio vs. Hon. Oscar Leviste,
[1989])
NOTES:
Elements:
1.
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;
2.
That in bringing the action,
the prosecutor acted without probable
cause;
3.
The prosecutor was actuated
or impelled by legal malice.
NOTES:
Malice is the inexcusable intent to

injure, oppress, vex, annoy or
humiliate.
Presence of probable cause
signifies absence of malice.
Absence of malice signifies good

faith on the part of the defendant;
good faith may even be based on
mistake of law.
Acquittal presupposes that a

criminal information is filed in court
and
final
judgment
rendered
dismissing the case; nevertheless,
prior acquittal may include dismissal
by the prosecutor after preliminary
investigation. (Globe Mackay and
Radio Corp. vs. CA; Manila Gas Corp
vs. CA)
Under Article 21, damages are

recoverable even though no positive
law was violated.
An action can only prosper when
damage, material or otherwise, was
suffered by the plaintiff. An action
based on Articles 19-21 will be
dismissed if the plaintiff merely seeks
recognition.
Under Articles 19 and 21, the
defendant may likewise be guilty of a
tort even if he acted in good faith.
(Grand Union Supermarket vs. Espino)
TORTS AGAINST HUMAN DIGNITY
TYPES:
1.
Violation of the right of privacy
Reasonableness of a persons
expectation of privacy depends on a
two-part test:
a) Whether by his conduct, the
individual
has
exhibited
an
expectation of privacy.
b) Whether this expectation is
one that the society recognizes as
reasonable.
NOTES:
GENERAL RULE: Right to privacy can
be invoked only by natural persons;
Juridical persons cannot invoke such
right because the entire basis of right
to privacy is an injury to the feelings
and sensibilities of a party, a
corporation would have no such
ground.
EXCEPTION:
Right
against
unreasonable searches and seizure can
be invoked by a juridical entity.
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MEMORY AID
GENERAL RULE: Right to privacy is
purely personal in nature, hence:
1)
It can be invoked only by the
person whose privacy is claimed to
have been violated.
2)
It can be subject to waiver of
the person whose privacy is sought to
be intruded into.
3)
The right ceases upon the death
of the person.
EXCEPTION: A privilege may be given
to the surviving relatives of a deceased
person to protect his memory but the
privilege exist for the benefit of the
living, to protect their feelings and to
prevent the violation of their own
rights in the character and memory of
the deceased.
Standard to be
applied in determining if there was a
violation of the right is that of a
person with ordinary sensibilities. It
is relative to the customs of time and
place and is determined by the norm
of an ordinary person.
Four Types of Invasion of Privacy
a.
Intrusi
on upon plaintiffs seclusion or
solitude or into his private affairs
It is not limited to cases where
the defendant physically trespassed
into anothers property. It includes
cases when the defendant invades
ones privacy by looking from outside
(Example: peeping-tom).
GENERAL RULE: There is no invasion
of right to privacy when a journalist
records photographs or writes about
something that occurs in public places.
EXCEPTION: When the acts of the
journalist should be to such extent
that it constitutes harassment or
overzealous shadowing.
The freedom of the press has
never been construed to accord
newsmen immunity from tort or crimes
committed during the course of the
newsgathering.
There is no intrusion when an
employer investigates an employee or
when the school investigates its
student.
RA 4200 makes it illegal for
any person not authorized by all the
parties to any private communication
to secretly record such communication
by means of a tape recorder (Ramirez
vs CA, Sept. 28, 1995)
Use of a telephone extension
for purposes of overhearing a private
IN
CIVIL LAW
conversation without authorization

does not violate RA 4200.
NOTE: There are instances where the
school might be called upon to
exercise its power over its student for
acts committed outside the school
premises and beyond school hours in
the following:
1.
In cases of violation of school
policies or regulations occurring in
connection with school sponsored
activity off-campus; or
2.
In cases where the misconduct
of the student involves his status
as a student or affects the good
name and reputation of the school.
b.
Public
ation of Embarrassing Private
Facts
Requisites:
1. Publicity is given to any
private
or
purely
personal
information about a person;
2. Without the latters consent;
and
3. Regardless of whether or not
such
publicity
constitutes a
criminal offense, like libel or
defamation, the circumstance that
the publication was made with
intent of gain or for commercial
and business purposes invariably
serves to aggravate the violation
of the right.
PUBLIC FIGURE - A
person, who by his accomplishments,
fame or mode of living or by adopting
a profession or calling which gives the
public a legitimate interest in his
doings, his affairs and his character.
NOTE: Public figures, most especially
those holding responsible positions in
government enjoy a more limited right
to privacy compared to ordinary
individuals.
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 which are outside the
realm
of
legitimate
public
concern.
The publication of
facts derived from the records of
official proceedings which are not
otherwise declared by law as
confidential, cannot be considered
a tortious conduct.
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MEMORY AID
c.
Public
ity which places a person in a
false light in the public eye
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.
EXAMPLE:
Defendant was held
liable for damages when he
published
an
unauthorized
biography of a famous baseball
player exaggerating his feats on
the baseball field, portraying him
as a war hero. (Spahn vs. Messner)
If the publicity given to the
plaintiff is defamatory, hence an
action for libel is also warranted;
the action for invasion of privacy
will afford an alternative remedy.
May be committed by the
media by distorting a news report.
Tort of Putting
Another in False
Light
Defamation
1. As to gravamen of claim
The gravamen of The gravamen of
claim is not the claim is the reputareputational
harm tional harm
but
rather
the
embarrassment of a
person being made
into some-thing he is
not
2. As to publication
The statement should Publication
is
be actually made in satisfied if a letter is
public
sent to a third person
3. As to the defamatory character of the
statements
Defendant may still What is published
be held liable even if lowers the esteem in
the statements tells which the plaintiff is
something
good held
about the plaintiff
d.
Comm
ercial appropriation of likeness
The unwarranted publication
of a persons name or the
unauthorized use of his photograph
or
likeness
for
commercial
purposes is an invasion of privacy.
With respect to celebrities,
however, the right of publicity is
often treated as a separate right
that overlaps but is distinct from
the right of privacy. They treat
their names and likeness as
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CIVIL LAW
property and they want to control

and profit therefrom.
2. Interference with Family and
other relations
The gist of the tort is an
interference with one spouses
mental attitude toward the other
and the conjugal kindness of
marital relations resulting in some
actual conduct which materially
affects it.
It extends to all cases of wrongful
interference in the family affairs
of others whereby one spouse is
induced to leave the other spouse
or conduct himself or herself that
the comfort of married life is
destroyed.
If the interference is by the
parents of the spouse, malice must
be proven.
3. Intriguing to Cause Alienation
4. Vexation and Humiliation
Discrimination against a person on
account of his physical defect,
which causes emotional distress,
may result in liability on the part
of the offending party.
Sexual Harassment falls under this
category.
- a civil action separate and distinct
from the criminal action may be
commenced under RA 7877.
- 2 types of Sexual harassment:
a) quid pro quo cases
b) hostile environment cases
TORTS WITH INDEPENDENT CIVIL
ACTIONS
1. Violation of civil and political
rights (Article 32)
Although the same normally
involves intentional acts, it can
also
be
committed
through
negligence.
Public officer who is a defendant
cannot escape liability under the
doctrine of state immunity; the
said doctrine applies only if acts
involved are done by officers in
the performance of their official
duty within the ambit of their
powers; officers do not act within
the ambit of their powers if they
violate the constitutional rights of
persons.
2. Defamation, Fraud, and Physical
injuries (Article 33)
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MEMORY AID
A.
Defamation
Defamation is an invasion of
the interest in reputation and good
name, by communication to others
which tends to diminish the
esteem in which the plaintiff is
held, or to excite adverse feelings
or opinion against him.
Includes the crime of libel and
slander.
RPC considers the statement
defamatory if it is an imputation
of circumstance tending to cause
the dishonor, discredit or contempt
of natural or juridical person or to
blacken the memory of one who is
dead.
Requisites for one to be
liable
for
defamatory
imputations:
a. It must be defamatory
b. It must be malicious
c. It must be given publicity
d. The
victim
must
be
identifiable
NOTES:
Test
in
determining
the
defamatory
character
of
the
imputation: A charge is sufficient if
the words are calculated to induce
the hearers to suppose and
understand that the person/s against
whom they were uttered were guilty
of a certain offense, or are sufficient
to impeach their honesty, virtue, or
reputation, or to hold the person/s
up to public ridicule.
Dissemination to a number of
persons
is
not
required,
communication
to
a
single
individual is sufficient publication.
GENERAL
RULE:
Every
defamatory
imputation
is
presumed to be malicious, even if
it be true, if no good intention or
justifiable motive for making it is
shown.
EXCEPTIONS:
1. A private communication
made by any person to another
in the performance of any
legal, moral or social duty; and
2. A fair and true report,
made in good faith, without
any comments or remarks, of
any judicial, legislative or
other
official
proceedings
which are not of confidential
nature, or of any statement,
report, or speech delivered in
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CIVIL LAW
said proceedings or of any

other act performed by public
officers in the exercise of their
functions.
It is not sufficient that the
offended party recognized himself
as the person attacked or
defamed, it must be shown that at
least a third person could identify
him as the object of the libelous
publication.
In order to escape liability, the
defendant may claim that the
statements made are privileged.
Two
kinds
of
privileged
communication:
1) Absolutely privilege Those
which are not actionable even
if the author acted in bad
faith.
2) Qualifiedly privilege not
actionable unless found to
have been made without good
intention or justifiable motive.
B. Fraud
Elements of deceit
1)The defendant must have
made false representation to
the plaintiff
2)The representation must be
one of fact
3)The defendant must know that
the representation is false or
be reckless about whether it is
false
acted
on
the
false
representation
intended
that
the
false
representation should be acted
on
6)The
plaintiff
must
have
suffered damage as a result of
acting
on
the
false
representation
Half-truths
are likewise included; it is
actionable if the withholding of
that which is not stated makes
that which is stated absolutely
false.
Misrepresent
ation upon a mere matter of
opinion is not an actionable
deceit.
C.
Physical injuries
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MEMORY AID
Battery an intentional
infliction of a harmful or offensive
bodily contact; bodily contact is
offensive if it offends a reasonable
persons sense of dignity.
Assault intentional conduct
by one person directed at another
which places the latter in
apprehension of immediate bodily
harm or offensive act.
Includes bodily injuries causing
death.
Physical
injuries
which
resulted because of negligence or
imprudence is not included in
Article 33; they are already
covered by Article 2176 of the Civil
Code.
3. Neglect of duty by police officers
(Article 34)
Subsidiary liability of cities and
municipalities, is imposed so that
they will exercise great care in
selecting conscientious and duly
qualified policemen and exercise
supervision over them in the
performance of their duties.
CIVIL LIABILITY ARISING FROM DELICT
Every person criminally liable for a
felony is also civilly liable. (Article
100 RPC)
The reason is because a crime has
a dual character: as an offense
against the State and against the
private person injured by it.
Dual character of crimes applies to
cases governed by special laws.
Example: violation of the BP 22
results in criminal and civil
liability.
There is civil liability even if the
offense is a public offense, like in
bigamy.
Persons liable are the principal,
accomplice and accessories.
It includes restitution, reparation
of damages and indemnification of
consequential damages.
The rule on proximate cause in
quasi-delict cases is applicable to
cases involving civil liability arising
from delict. Art. 2202, NCC
Circumstances affecting Civil Liability
1. Justifying circumstances
Defendant is free from

civil
liability
if
justifying
circumstances
are
properly
establishes.
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CIVIL LAW
2. Exempting Circumstances
They do not erase the civil

liability.
3. Mitigating
and
Aggravating
Circumstances
Damages to be adjudicated
may either be decreased or
increased depending on the
presence
of
mitigating
or
aggravating circumstances.
Effect of Death
A. DEATH AFTER FINAL JUDGMENT:
extinguishes criminal liability of
the person liable but will not
extinguish the civil liability.
B. DEATH BEFORE FINAL JUDGMENT:
GENERAL RULE: The defendant is
relieved from both criminal and
civil liability arising from criminal
liability.
EXCEPTION: In case of libel and
physical injuries wherein the
plaintiff initially opted to claim
damages
in
the
criminal
proceeding can file another case
under Article 33 of the Civil Code.
Effect of Pardon
Pardon does not erase civil
liability.
While pardon removes the existence
of guilt so that in the eyes of the law
the offender is deemed innocent and
treated as though he never committed
the offence, it does not operate to
remove all the effects of the previous
conviction.
DEFENDANTS IN TORT CASES
Concurrent Negligence or Acts
1. Joint Tort-feasors
All the persons who

command,
instigate,
promote,
encourage,
advice,
countenance,
cooperate in, aid, or abet the
commission of a tort, or who approve
of it after it is done, if done for their
benefit; they are each liable as a
principal, to the same extent and in
the same manner as if they have
performed
the
wrongful
act
themselves.
The responsibility of two or more
persons liable for quasi-delict is
solidary (Article 2194 Civil Code); they
are not liable pro rata, they are jointly
and severally liable for the whole
amount.
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MEMORY AID
2. Motor vehicle mishaps
The owner is solidarily liable with
the driver, if the former, who was in
the vehicle, could have, by the use of
due
diligence,
prevented
the
misfortune. (Article 2184 Civil Code)
Solidary liability is imposed on the
owner not because of his imputed
liability but because his own omission
is a concurring proximate cause of the
injury.
Vicarious Liability or Doctrine of
Imputed Negligence
A person is not only liable for

torts committed by himself, but also
for torts committed by others with
whom he has a certain relation or for
whom he is responsible. (Article 2180
Civil Code)
Exercise of diligence of a good

father of a family to prevent damage
is a defense.
Doctrine of Respondeat Superior
the liability is strictly imputed, the
employer is liable not because of his
act or omission but because of the act
or omission of the employee; employer
cannot escape liability by claiming
that he exercised due diligence in the
selection or supervision of the
employee.
GENERAL RULE: Vicarious liability in
the Philippines is not governed by the
doctrine of respondeat superior;
employers or parents are made liable
not only because of the negligent or
wrongful act of the person for whom
they are responsible but also because
of their own negligence:
1) Liability is imposed on the
employer because he failed to
exercise due diligence in the
selection or supervision of the
employee
2) Parents are made liable
because they failed to exercise
due diligence
EXCEPTION:
Doctrine
of
respondeat superior is applicable
in:
1) liability of employers under
Article 103 of the RPC
2) liability of a partnership for
the tort committed by a
partner
Persons Vicariously Liable: (Article
2180 of the Civil Code)
CIVIL LAW COMMITTEE
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1. The Father, or in case of death or

incapacity, mother
For damage caused by:
a)
minor children
b)
living in their company
This has already been modified by

Art. 221 of the Family Code to the
extent
that
the
alternative
qualification of the liability of the
father and the mother has been
removed.
NOTES:
The basis of liability for the
acts or omissions of their

minor children is the parental
authority that they exercise
over them, except for children
18 to 21.
The same foreseability test of
negligence should apply to
parents when they are sought
to be held liable under Art.
2180, NCC
The liability is not limited to

parents, the same is also
imposed on those exercising
substitute and special parental
authority, i.e., guardian.
The liability is present only

both under Art 2180 of the NCC
and Art 221 of the Family Code
if the child is living in his
parents company.
Parental authority is not the

sole basis of liability. A teacher
in charge is still liable for the
acts of their students even if
the minor student reaches the
age of majority.
The parents or guardians can

still be held liable even if the
minor is already emancipated
provided that he is below 21
years of age.
Parents and other persons

exercising parental authority
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MEMORY AID
can escape liability by proving
that they observed all the
diligence of a good father of a
family to prevent damages.
(Art. 2180)
The burden of proof rests on

the parents and persons
exercising parental authority.
2. Guardians
For damage caused by
a. minors or incapacitated persons
b. under their authority
c. living in their company
3. Owners
and
managers
establishments
a) their employees
of
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CIVIL LAW
act or omission is beyond the range of

employment, a minor deviation from
the assigned task of an employee,
however does not affect the liability of
an employer. (Valenzuela vs. CA, 253
SCRA 303)
It is a defense that the employer
exercised proper diligence in the
selection and supervision of negligent
employee.
5. State
a) a special agent
b) not when the damage has
been caused by the official to
whom the task done properly
pertains
Public officers who are guilty of
tortuous conduct are personally liable
for their actions.
b) in the service of the branches

in which they are employed, or
c) on the occasion
functions
of
their
4. Employers
For damages cause by:
a) employees
helpers
and
household
b) acting within the scope of

their assigned tasks
c) even if the employer is not
engaged in any business or
industry
NOTES:
Liability of the employer can be

established by proving the existence of
an employer-employee relationship
with the actor and the latter caused
the injury while performing his
assigned task or functions.
The vicarious liability attaches
only when the tortuous conduct of the
employees relates to or is in the
course of his employment.
While the employer incurs no

liability when an employees conduct,
6. Schools,
Teachers
and
Administrators
a) pupils
and
students
or
apprentices
b) in their custody
statutory basis:
if student is minor Art. 219,
FC
if student is no longer a minor
Art. 2180, Civil Code
NOTES:
Applies also to teachers of
academic institutions.
Liability attaches to
teacher-in-charge.
The
school itself is
solidarily liable with
teacher-in-charge.
the
now
the
The liability extends to acts

committed even outside the
school so long as it is an
official activity of the school.
Whenever
the school or
teacher is being made liable,
the
parents
and
those
exercising substitute parental
authority are not free from
liability because Art. 219 of
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MEMORY AID
the Family Code expressly
provides
that
they
are
subsidiarily liable.
Art. 2180 makes teachers and

heads liable for acts of
students
and
apprentices
whether the latter are minors
or not.
GENERAL RULE: The teacher-incharge is liable for the acts of his

students.
The
school
and
administrators are not liable.
EXCEPTION: It is only the head of the
school, not the teacher who is held
liable where the injury is caused in a
school of arts and trade.
The liability of the teacher
subsists whether the school is
academic or non- academic.
Liability is imposed only if the
pupil is already in the custody
of the teacher or head. The
student is in the custody of the
school authorities as longs as
he is under the control and
influence of the school and
within its premises whether
the semester had not yet
begun or has already ended.
The
victim of negligence is likewise
required to exercise due care
in avoiding injury to himself.
Other Persons Vicariously Liable:
1. Innkeepers and Hotelkeepers
They are civilly liable for crimes
committed in their establishments in
cases of violations of statutes by them,
in default of persons criminally liable.
(Article 102 Revised Penal Code)
They are subsidiarily liable for
the restitution of goods taken by
robbery or theft within their houses
from guests lodging therein, or for
payment of the value thereof,
provided that:
a. The innkeeper was notified in
advance of the deposit of such goods
within the inn; and
b. The guest shall have followed the
directions which such innkeeper or his
representative may have given with
respect to the care and vigilance over
the goods.
2. Partnership
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Partnership or every partner is

liable for torts committed by one of
the partners acting within the scope
of the firm business, though they do
not participate in, ratify, or have
knowledge of such torts.
Partners are liable as joint tortfeasors.
Vicarious liability is similar to the
common law rule on respondeat
superior.
Liability is entirely imputed and
the partnership cannot obviously
invoke diligence in the selection and
supervision of the partner.
3. Spouses
a. absolute community of property
The
absolute
community
property shall be for liabilities
incurred by either spouses by reason of
crime or quasi-delict in case of
absence or insufficiency of the
exclusive property of the debtorspouse. (Article 94 Family Code)
Payments shall be considered

advances to be deducted from the
share of the debtor spouse upon
liquidation of the community.
b. conjugal partnership of gains
GENERAL RULE: Pecuniary indemnities imposed upon the husband or wife

are not chargeable against the
conjugal partnership but against the
separate properties of the wrongdoer.
EXCEPTION: Conjugal partnership
should be made liable:
1) When the profits have inured to
the benefit of the partnership, or
2) If one of the spouses committed
the tort while performing a business or
if the act was supposed to benefit the
partnership.
c. regime of separation of property
Each spouse is responsible for

his/her separate obligation.
C. STRICT LIABILITY
When the person is made liable
independent of fault or negligence
upon submission of proof of certain
facts specified by law.
NOTE:
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.
TYPES:
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MEMORY AID
1. Animals
GENERAL RULE: The possessor of an

animal or whoever may make use of
the same is responsible for the
damages which it may cause although
it may escape or be lost.
EXCEPTION: When the damage was
caused by force majeure or by the
person who suffered the damage.
(Article 2183 Civil Code)
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latter and the employer shall be

solidarily liable for compensation.
If a fellow-workers intentional or
malicious act is the only cause of the
death or injury, the employer shall not
be answerable unless it should be
shown that the latter did not exercise
due diligence in the selection or
supervision of the plaintiffs fellowworker.
4. Nuisance
NOTES:
If the acts of a third person cannot

be foreseen or prevented, then the
situation is similar to that of force
majeure and the possessor is not
liable. (Francisco, Torts and Damages)
Art. 2183 is applicable whether the

animal is domestic, domesticated, or
wild.
Any act, omission, establishment,

business, condition of property, or
anything else which:
a. Injures or endangers the health or
safety of others;
b. Annoys or offends the senses;
c. Shocks, defies
decency or morality;
or
disregards
2. Falling objects
The head of a family that lives in a
building or a part thereof is
responsible for damages caused by
things thrown or falling from the same.
(Article 2193 Civil Code)
d. Obstructs or interferes with the

free passage of any public highway or
street, or any body of water; or
The term head of the family is

not limited to the owner of the
building, and it may even include the
lessee thereof. (Dingcong vs. Kanaan,
72 Phil 14)
3. Liability of employers
Article 1711 of the NCC imposes an

obligation on owners of enterprises
and other employers to pay for the
death or injuries to their employees.
Liability is strict because it exists
even if the cause is purely accidental.
If the mishap was due to the
employees own notorious negligence,
or voluntary act or drunkenness, the
employer shall not be liable for
compensation.
When the employees lack of due
care contributed to his death or injury,
the compensation shall be equitably
reduced.
If the death or injury is due to the
negligence of a fellow-workman the
e. Hinders or impairs the user of

property. (Article 694 Civil Code)
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.
Every
successive
owner
or
possessor of property who fails or
refuses to abate a nuisance in that
property started by a former owner or
possessor is liable therefore in the
same manner as the one who created
it. (Article 686 Civil Code)
5. Product liability by manufacturers
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. (Article
2187 Civil Code)
Other cases of liability without fault:
1. Proprietor of a building or
structure, for damages resulting from
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its total or partial collapse, if it should
be due to lack of necessary repairs. .
2. Breach of implied warranties.
3. Consumer Act (R.A. 7394) any
Filipino or foreign manufacturer,
producer and importer, independently
of fault shall be liable for redress for
damages caused to consumers by
defects resulting from:
a. design;
b. manufacture;
c. construction;
d. assembly and erection;
e. formulas and handling and
making up; or
f. presentation or packing of
their products as well as for the
insufficient
or
inadequate
information on the use and hazards
thereof.
4. Even when an act or event causing
damage to anothers property was not
due to the fault or negligence of the
defendant, the latter shall be liable
for indemnity if through the act or
event he was benefited. (Art. 23 Civil
Code)
PRODUCT AND SERVICE LIABILITY

Alternative theories on basis of
liability
1. Fraud or misrepresentation
Not all expression of opinion are
actionable misrepresentations if they
are established to be inaccurate.
2. Warranties
The Consumer Act recognizes that
the provisions of the Civil Code on
conditions and warranties shall govern
all contracts of sale with conditions
and warranties.
Retailer shall be subsidiarily liable
under the warranty in case of failure
of both the manufacturer and
distributor to honor the warranty.
Privity of contract is not necessary.
3. Negligence
In product liability law, certain
standards are already imposed by
special laws, rules and regulations of
proper government agencies; certain
acts or omissions are expressly
prohibited by the statutes thereby
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making violation thereof negligence

per se.
It is negligence per se if
manufacturer manufactured products
which do not comply with the safety
standards promulgated by appropriate
government agencies.
4. Delict
The liability may be based on
criminal negli-gence under the RPC or
violation of any special law.
5. Strict liability
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. (Article
2187 Civil Code)
Privity of contract is not required.

It does not preclude an action
based on negligence (quasi-delict) for
the same act of using noxious or
harmful substances.
Article 97 and 99 of the Consumer

Act imposes liability on defective
products
and
services
upon
manufacturers independent of fault.
Knowledge of the manufacturer is
not important; the focus is on the
condition of the product and not on
the conduct of the manufacturer or
seller.
DEFENSES:
A. The
manufacturer,
builder,
producer, or importer shall not be
liable when it evidences:
1)
That it did not place
the product on the market
2)
That although it did
place the product on the market
such product had no defect
3)
That the consumer of
third party is solely at fault.
(Article 97 Consumer Act)
B. The supplier of the services shall
not be held liable when it is proven:
1) That there is no defect in the
service rendered
2) That the consumer of third
party is solely at fault. (Article 99
Consumer Act)
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MEMORY AID
Requisites: The plaintiff should

allege and prove that:
1) The product was defective;
2) The product was manufactured
by the defendant;
3) The defective product was the
cause of his injury.
4 KINDS OF DEFECTIVE PRODUCTS
1. manufacturing defect
2. design defect
3. presentation defect
4. absence
of
appropriate
warning
BUSINESS TORTS
1. Interference of contracts
Elements:
a. existence of a valid contract
b. knowledge on the part of the
third person of the existence of the
contract
c. interference of the third person
without legal justification.
The existence of a contract is
necessary and the breach must occur
because of the alleged act of
interference; No action can be
maintained if the contract is void.
Malice is not essential.
Elements of privilege to interfere
1)The defendants purpose is a
justifiable one, and
2)The actors employ no means of
fraud or deception which are
regarded as unfair.
Extent of Liability:
A. Rule in Daywalt vs. La Corporation
39PHIL587
Defendant
cannot be held liable for more
than the amount for which the
contracting party who was induced
to break the contract can be held
liable.
B. Rule under Article 2201 and 2202
Civil Code
1)
If in bad faith: defendant is liable
for all natural and probable
consequences of his act or
omission, whether the same is
forseen or unforeseen.
2)
If in good faith: defandant is liable
only for consequences that can be
foreseen.
2. Interference
advantage
with
prospective
IN
CIVIL LAW
It is a tort committed when there

is no contract yet and the defendant is
only being sued for inducing another
not to enter into a contract.
3. Unfair competition.
Unfair Competition in agricultural,
commercial, or industrial enterprises,
or in labor, through the use of force,
intimidation , deceit, machination or
any unjust or oppressive or highhanded
method shall give rise to a right of
action by a person who thereby suffers
damage. (Article 27 Civil Code)
CASES INCLUDED:
a. passing off and disparagement
of products
b. interference
c. misappropriation
d. monopolies and
predatory
pricing
4. Securities Related Torts
Kinds
a. Fraudulent Transactions
b. Misstatements or Omission of
statement of a material fact
required to be stated
Defendants are free from liability
if they can prove that at the time of
the acquisition the plaintiff knew of
the untrue statement or if he was
aware of the falsity.
Extent of Damages:
Not
exceeding triple the amount of the
transaction.
Prescriptive Period: Action must
be brought within 2 years after
discovery of facts constituting the
cause of action and within 5 yrs after
such cause of action accrued.
II. DAMAGES
DAMAGE
The detriment, injury or loss which
are occasioned by reason of fault of
another in the property or person.
DAMAGES
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.
DAMNUM ABSQUE INJURIA (Damage
Without Injury)
CIVIL LAW COMMITTEE

Gayon
Rhodora
Purganan(LTD),

241
MEMORY AID
A person may have suffered

physical hurt or injury, but for as long
as no legal injury or wrong has been
done, there is no liability.
There is no liability even if there is

damage because there was no injury.
There can be damage without

injury.
In order that a plaintiff may

maintain an action for the injuries of
which he complains, he must establish
that such injuries resulted from a
breach of duty which the defendant
owed to the plaintiff.
Injury
Damage
Damages
Legal
invasion of
a
legal
right
Loss, hurt
or
harm
which
results
from
the
injury
The recompense
or
compensation
awarded for
the damage
suffered
NOTES:
A complaint for damages is a
personal action. (Baritua vs. CA,
267 SCRA 331)
Proof of pecuniary loss is necessary
to successfully recover actual
damages from the defendant. No
proof of pecuniary loss is necessary
in case of moral, nominal,
temperate,
liquidated
or
exemplary damages.
The assessment of such damages,
except liquidated ones, is left to
the discretion of the court
according to the circumstances of
each case.
Kinds of damages (MANTLE)
1. Actual or Compensatory
2. Moral
3. Nominal
4. Temperate or moderate
5. Liquidated
6. Exemplary or corrective
A. ACTUAL
OR
COMPENSATORY
DAMAGES
Comprehends not only the value of
the loss suffered but also that of
IN
CIVIL LAW
the profits which the obligee failed

to obtain.
Classification:
1. Dano emergente loss of what
a person already possesses
2. Lucro cessante failure to
receive as a benefit that would
have pertained to him
NOTE: The latter type includes:
1.
Loss or impairment of
earning capacity in cases of
temporary
or
permanent
personal injury.
2.
Injury to the plaintiffs
business
standing
or
commercial credit.
In crimes and quasi-delict, the
defendant shall be liable for all
damages which are the natural and
probable consequences of the act
and omission complained of. It is
not necessary that such damages
have been foreseen or could have
reasonably
foreseen
by
the
defendant.
(Article 2202 Civil
Code)
The amount should be that which
would put plaintiff 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.
To recover damages, the amount
of loss must not only be capable of
proof but must actually be proven.
Uncertainty as to the precise
amount is not necessarily fatal.
LOSS OF EARNING CAPACITY:

Variables considered are:
1. life expectancy
2. net income/earnings
Formula:
{2/3 x (80age of death)} x mo. Earnings x
12
2
NOTE:
Life expectancy is computed as
follows:
{ 2/3 x (80-age at death) }
Net earnings is the total of the
earnings less expenses necessary
for the creation of such earnings
and less living or other incidental
expenses.
Loss of profits
CIVIL LAW COMMITTEE

Gayon
Rhodora
Purganan(LTD),

242
MEMORY AID
May be determined by considering

the average profit for the
preceding years multiplied by the
number of years during which the
business was affected by the
wrongful act or breach.
Attorneys fees
They are actual damages. It is due
to the plaintiff and not to the
counsel.
Plaintiff must allege the basis of
his claim for attorneys fees in the
complaint; the basis should be one
of the 11 cases specified in Article
2208 of the Civil Code.
Interests
Award of interest in the concept of
actual and compensatory damages
actual damages.
The rate of interest, as well as the
accrual thereof is imposed as
follows:
1. When
the
obligation
is
breached and it consist of
payment of sum of money,
i.e., a loan or forbearance of
money:
a. The interest due should be
that which may have been
stipulated
in
writing;
furthermore, the interest
due shall itself earn legal
interest from the time it is
judicially demanded.
b. In
the
absence
of
stipulation, the rate of
interest shall be 12% per
annum to be computed
from default, i.e., from
judicial or extra-judicial
demand under and subject
to the provisions of Article
1169 of the Civil Code.
2. When the obligation, not
constituting
a
loan
or
forbearance or money, is
breached:
An interest on the amount
of damages to be awarded
may be imposed at the
discretion of the court at
the rate of 6% per annum.
No interest shall be
adjudged on unliquidated
claims or damages, except
when or until demand can
be
established
with
reasonable certainty.
IN
CIVIL LAW
Where the demand is

established
with
reasonable certainty, the
interest shall begin to run
from the time the claim is
made
judicially
or
extrajudicially.
3. When the judgment of the
court awarding the sum of
money becomes final and
executory, the rate of legal
interest shall be 12% per
annum from such finality until
its satisfaction.
Doctrine of Avoidable Consequences

A party cannot recover damages
flowing from consequences which
the party could reasonably have
avoided.
It has a reasonable corollary: a
person who reasonably attempts to
minimize his damages can recover
the expenses that he incurred.
Doctrine of
Avoidable
Consequences
Acts
of
the
plaintiff
occur
after the act or
omission of the
defendant
Contributory
Negligence
Plaintiffs act or
omission occurs
before or at the
time of the act or
omission of the
defendant
B. MORAL DAMAGES
Includes physical suffering, mental
anguish, fright, serious anxiety,
besmirched reputation, wounded
feelings, moral shock, social
humiliation, and similar injury.
No proof of pecuniary loss is
necessary.
GENERAL RULE: The plaintiff must
allege and prove:
1. The factual basis for moral
damages; and
2. Its causal relation to the
defendants act
EXCEPTION: Moral damages may be
awarded to the victim in criminal
proceedings without the need for
pleading of proof of the basis thereof.
Requisites for award of moral
damages:
1. There must be an injury whether
physical, mental or psychological,
clearly sustained by the claimant;
CIVIL LAW COMMITTEE

Gayon
Rhodora
Purganan(LTD),

243
MEMORY AID
2. There must be a culpable act or
omission.;
3. Such act or omission is the
proximate cause of the injury;
4. The damages is predicated on the
cases cited in Art.2219.
NOTE: The award of moral damages
cannot be granted in favor of a
corporation
because,
being
an
artificial person, it has no feelings, no
emotions, no senses. It cannot
therefore
experience
physical
suffering and mental anguish which
can be experienced only by one having
a nervous system.
C. NOMINAL DAMAGES
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. (Article2221
Civil Code)
Small sums fixed by the court
without regard to the extent of
the harm done to the injured
party.
Law presumes damage although
actual or compensatory damages
are not proven.
They are damages in name only
and are allowed simply in
recognition of a technical injury
based on a violation of a legal
right.
Nominal damages cannot co-exist
with actual or compensatory
damages.
IN
CIVIL LAW
future
complications
directly
arising from the injury, while
certain to occur are difficult to
predict, temperate damages can
and should be awarded on top of
actual or compensatory damages;
in such cases there is no
incompatibility between actual
and temperate damages.
E. LIQUIDATED DAMAGES
Those agreed upon by the parties
in a contract, to be paid in case of
breach thereof.
F. EXEMPLARY
DAMAGES
OR
CORRECTIVE
Imposed by way of example or

correction for the public good, in
addition to the moral, temperate,
liquidated or compensatory damages.
Requisites for the award of

exemplary damages:
1. They are imposed by way of
example in addition to compensatory
damages and Imposed only after the
claimants right to them has been
established;
2. They cannot be recovered as a
matter of right, their determination
depending upon the amount of
compensatory damages that may be
awarded;
3. The act must be accompanied by
bad faith or done in wanton,
fraudulent, oppressive or malevolent
manner.
D.
TEMPERATE
OR MODERATE DAMAGES
These are damages, which are
more than nominal but less than
compensatory,
and
may
be
recovered when the court finds
that some pecuniary loss has been
suffered but its amount cannot be
proved with certainty. (Article
2224 Civil Code)
In cases where the resulting injury
might be continuing and possible
CIVIL LAW COMMITTEE
Gayon
Rhodora
Purganan(LTD),

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