TORTS AND

DAMAGES
Timoteo B. Aquino
 CHAPTER 1 POLICY SHALL COMPENSATE THE LATTER FOR THE
DAMAGE.
GENERAL CONSIDERATIONS
2. Expanded Scope of Quasi-Delict
TORT
- Latin: ―torquere‖, ―torqueo‖ – to twist or turn ART. 1902. Any person who by act or omission causes damage to
- An unlawful violation of private right, not created by another by his fault or negligence shall be liable for the damage so
contract, and which gives rise to an action for damages done.
- An act or omission producing an injury to another, without
any previous existing lawful relation of which the said act ART. 2176. Whoever by act or omission causes damage to
or omission may be said to be a natural outgrowth or another, there being fault or negligence, is obliged to pay for the
incident (Robles v. Castillo) damage done. Such fault or negligence, if there is no pre-existing
- A private or civil wrong or injury, other than breach of contractual relation between the parties, is called QUASI-
contract for which the court will provide a remedy in the DELICT and is governed by the provisions of this Chapter.
form of an action for damages
- A violation of a duty imposed by general law or otherwise Purposes of Tort Law
upon all persons occupying the relation to each other that is
involved in a given transaction Major Purposes
- A violation of some duty that must arise by operation of 1. To provide a peaceful means for adjusting the rights of parties
law and not by mere agreement of the parties who might otherwise take the law into their own hands
- A legal wrong committed upon person or property 2. To deter wrongful conduct
independent of contract 3. To encourage socially responsible behavior
- A breach of legal duty 4. To restore injured parties to their original condition, insofar as
- A violation of a right given or omission of statutory duty the law can do this, by compensating them for their injury
imposed by law (Naguiat v. NLRC) 5. To reduce the risks and burden of living in the society and to
allocate them among the members of society
Kinds of Tort Liabilities
Balancing of Conflicting Interests
- INTENTIONAL TORTS Interests Protected Torts/Provisions Involved
- Include conduct where the actor desires to cause the Person
consequences of his act or believe the consequences Freedom from contact Physical Injuries (Art. 32)
are substantially certain to result from it Quasi-Delict (Art. 2176)
- EX: assault, battery, false imprisonment, defamation, Freedom from distress Moral Damages (Art. 2217-2220)
invasion of privacy, interference of property
Dignity
- NEGLIGENCE Reputation Defamation (Art. 33)
- Involves voluntary acts or omissions that result in
Privacy Violation of Privacy (Art. 26)
injury to others without intending to cause the same
Freedom from wrongful Malicious Prosecution (Art. 20-21)
- Failure to exercise due care in performing such acts or
actions
omissions

- STRICT LIABILITY Property

- Involves conduct where the person is made liable Real Property Nuisance (Art. 694-770)

TORTS AND DAMAGES by TIMOTEO B. AQUINO

independent of fault or negligence upon submission of Quasi-Delict (Art. 2176)
proof of certain facts
- The conduct is generally not wrongful in itself but the Economic/Pecuniary
wrong consists in causing harm by engaging in certain Contracts Interference with contractual rights
types of risky activities (Art. 1314)
- EX: Art. 2187 of NCC, Art. 100 of Consumer Act Freedom from Deception Fraud (Art. 33)

Scope and Applicable Laws of Philippine Tort Law Specific Purposes

1. To protect consumers
1. Catch All Provisions 2. To make sure that desired expertise is maintained

ART. 19. EVERY PERSON MUST, IN THE EXERCISE OF Fundamental Principles

HIS RIGHTS AND IN THE PERFORMANCE OF HIS DUTIES,
ACT WITH JUSTICE, GIVE EVERYONE HIS DUE, AND A. EQUITY and JUSTICE
OBSERVE HONESTY AND GOOD FAITH.  Chapter on Human Relations in NCC

ART. 20. EVERY PERSON WHO, CONTRARY TO LAW, Justice

WILFULLY OR NEGLIGENTLY CAUSES DAMAGE TO - The giving to each man what is proper to him
ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE - A steady and unceasing disposition to render every man his due
SAME.
Concepts of Justice
ART. 21. ANY PERSON WHO WILLFULLY CAUSES LOSS 1. Social level
OR INJURY TO ANOTHER IN A MANNER THAT IS a. Distributive Justice
CONTARY TO MORALS, GOOD CUSTOMS, OR PUBLIC b. Retributive Justice
1
2. Individual level - Tort law encourages people to allocate resources to accident
a. Corrective Justice prevention.
- The primary concern of TORT LAW and
NCC provisions on damages Persons who can sue and be sued for tort
b. Commutative Justice
a. PLAINTIFFS
Equity - Persons who are entitled to damages
- Justice according to natural law or right - Natural / Artificial person
- Justice outside legality - NOTE: Arts. 40 and 41 of NCC
b. DEFENDANTS
B. DEMOCRACY - Persons who may be held liable for damages
 Art. 32, NCC - Natural / Artificial person
 To implement civil liberties guaranteed by the Constitution - NOTE: vicarious liability / doctrine of corporate
responsibility
C. HUMAN PERSONALITY EXALTED a. Close Corporation
 Art. 26, NCC - Stockholders liable (Sec. 100, Corporation Code)
b. Corporation by Estoppel
Justifications of Tort Liability - Members who make it appear/represent
themselves to be members of a corporation in
1. Moral Perspective dealing with third persons liable as GENERAL
PARTNERS for all debts, liabilities, and
 Art. 19 and 20 – redress to all moral wrongs damages (Sec. 21, Corporation Code)
 Ubi jus ubi remedium. (There is not wrong without a remedy.) - Lack of corporate personality NOT a defense
 FOCUS: the wrong committed and the moral shortcoming of the c. Partnerships
actor - Art. 1823 – 1824 of NCC
- Partnership is solidarily liable with the partners if
Natural Law conduct is in pursuit of business
- HUGO GROTIUS - MUTUAL AGENCY rule
- There is a higher law revealed through reason. d. State
- By nature, an act of one does not and in fact cannot create a debt - Art. 2180 and 2189 of NCC
to another other than that of material equality. - NOTE: State immunity from suits and exceptions
- Indemnification means to restore the amount that one deprived thereto
another and it is through this that one becomes a creditor in
natural right. Remedies
- Fault creates an obligation to make good the loss. 1. Preventive
- Three sources of what is owed us: 2. Compensatory
o Agreement 3. Restitution
o Wrong
o Statute  Every remedy in a certain sense is preventive because it
- WRONG: every fault, whether of commission or of omission, threatens certain undesirable consequences to those who
which is in conflict with what men ought to do, either generally violate the rights of others.
or by reason of special quality.  PRIMARY purpose of tort action: to provide compensation
- From such fault, if the damage has been caused, an obligation to a person who was injured by the tortious conduct of the

TORTS AND DAMAGES by TIMOTEO B. AQUINO

arises naturally, namely, that it should be made good. defendant
- Every good law draws its breath of life from morals, from those o ACTION FOR DAMAGES
principles which are written in the conscience of man. o INJUNCTION
o RESTRAINING ORDER
Corrective Justice
- JULES COLEMAN Alternative Compensation Schemes
o A loss falls within the ambit of corrective justice only In tort cases, the plaintiff can recover damages that are proximately
if it is wrongful causes by the negligent or willful act of the defendant.
o WRONGDOING: unjustifiable departures from the 1. Insurance
relevant standards of permissible behavior or wrongs  Insurance Code
o WRONGS: invasion of rights o Chapter V – CMVI
- Imposes the obligation to compensate the victim of harm - Any claim not exceeding
P5000.00 for death or injury to
2. Social Perspective any passenger or third party shall
- Liability may be provided for certain tortuous conduct because be paid without the necessity of
of the good that it will do to the society as a whole and its proving fault or negligence of any
function of encouraging socially responsible behavior. kind.
- Public policy requires that some interests not be invaded too far 2. Workers’ Compensation
in the advancement of other interests.  Art. 166 of the Labor Code
o Promote and develop a tax-exempt
3. Economic Perspective employee’s compensation program…
- Tort law allocates the costs of accidents to those in the best  Art. 167 – 208 of the Labor Code
position to minimize these costs. o Simplify the process for recovery

2
 CHAPTER 2 RECKLESS IMPRUDENCE consists in voluntary, but without
malice, doing or failing to do an act which material damage
NEGLIGENCE results by reason of inexcusable lack of precaution on the part of
the person performing or failing to perform such act, taking into
Actionable negligence: consideration his employment or occupation, degree of
1. Culpa contractual (CONTRACT) intelligence, physical condition, and other circumstances
2. Culpa aquiliana (QUASI-DELICT) regarding persons, time, and place.
3. Criminal negligence (DELICT)
SIMPLE IMPRUDENCE consists in the lack of precaution
Statutory Basis and Requisites: displayed in those cases in which the damage impending to be
caused is not immediate nor the danger clearly manifest.
Art. 1157 – 5 sources of obligations:
1. Law Elements:
2. Contracts 1. The offender does/fails to do an act;
3. Quasi-Contracts 2. The doing/failure to do that act is voluntary;
4. Delict 3. It is without malice;
5. Quasi-Delict 4. The material damage results from the reckless imprudence; and
5. There is inexcusable lack of precaution on the part of the
QUASI DELICT offender taking into consideration his~
a. Employment/occupation
NCC. – ART. 2176. Whoever by act or omission causes damage b. Degree of intelligence
to another, there being fault or negligence, is obliged to pay for c. Physical condition
the damage done. Such fault or negligence, if there is no pre- d. Other circumstances regarding~
existing contractual relation between the parties, is called i. Persons
QUASI-DELICT and is governed by the provisions of this ii. Time; and
Chapter. iii. Place

Requisites: CONTRACT
1. There must be an act or omission constituting fault or  ART. 1170 – 1174 of NCC
negligence.  NOT tort actions
2. Damage caused by the said act or omission.
3. Causal relation between the damage and the act or omission Culpa Culpa Culpa Criminal
Aquiliana Contractual (Crimes)
 Absence of contract is NOT a requisite. (Quasi-Delict) (Contract)
o A liability for tort may arise even under a contract, The obligation
where tort is that which breaches the contract. There can be a
arises from the
o When an act which constitutes a breach of contract quasi-delict as
breach of There can be no
would have itself constituted the source of a quasi- long as there is
contract crime unless
delictual liability, the contract can be said to have been Legal fault or
because of there is a law
breached by tort, thereby allowing the rules on tort to Basis of negligence
Liability
defendant’s clearly
apply. (American Express Int’l. v. Cordero) resulting in
failure to punishing the
 Duty need not be alleged and proved. damage or
exercise due act.
o NOTE: Art. 2195 – 2235 of NCC injury to
care in its

TORTS AND DAMAGES by TIMOTEO B. AQUINO

o DUTY: underlying general duty of care another.
performance.
- Part of negligence issue Only incidental
o BREACH: the negligent act or omission to the
o INJURY: damage suffered by the plaintiff Direct, Direct,
Nature of performance of
o PROXIMATE CAUSE Negligence substantive, and substantive, and
an existing
independent independent
obligation based
DELICT on a contract
Not necessary. Essential for
RPC. – ART. 365. IMPRUDENCE AND NEGLIGENCE. – Any Criminal
Fault/Negligenc Not necessary. criminal liability
person who, by RECKLESS IMPRUDENCE, shall commit any Intent
e will suffice. to exist.
act which, had it been intentional, would constitute a grave Proof Preponderance Preponderance Proof beyond
felony, shall suffer the penalty of ARRESTO MAYOR in its Needed of evidence of evidence reasonable doubt
maximum period to prision correccional in its maximum period; Existence of Express/implied
if it would have constituted a less grave felony, the penalty of Pre-Existing
NONE contractual NONE
Contractual
ARRESTO MAYOR in its minimum period shall be imposed. Obligation obligation
Not a complete
Any person who, by SIMPLE IMPRUDENCE OR A complete and CANNOT be
Defense and proper
NEGLIGENCE, shall commit an act which would otherwise proper defense interposed.
of “Good defense in the
constitute a grave felony shall suffer the penalty of ARRESTO insofar as If the employee
Father of selection and
MAYOR in its medium and maximum periods; if it would have parents, is insolvent, the
the supervision of
constituted a less serious felony, the penalty of ARRESTO Family” guardians, employer is
employees but
MAYOR in its minimum period shall be imposed. (DOAGFOAF) employees are subsidiarily
can mitigate
concerned liable
liability for
3
 damages Proscription Against Double Recovery
EXISTS, if ART. 2177. Responsibility for fault or negligence under the
Presumption Innocence of preceding article is entirely separate and distinct from the civil
breach of
of NONE accused liability arising from negligence under the Penal Code. But the
Negligence contract is
presumed plaintiff cannot recover damages twice for the same act or
proven
Burden of Defendant must omission of the defendant.
Injured party Complainant
Proof prove otherwise
Nature of b. Two or More Defendants
Right Private right Private right Public right
Violated ART. 2194. The responsibility of two or more persons who are liable
Art. 2176 for quasi-delict is solidary.
Governing Art. 1170-1174,
Law Art. 1172-1174, Art. 365, RPC
NCC
NCC NEGLIGENCE

Art. 2176 – 2194 Governing Quasi—Delict ART. 1173. The fault or negligence of the obligor consists in the
2176 Defines quasi-delict and its requisites omission of that diligence which is required by the nature of the
Civil liability arising from a quasi-delict v. Civil liability obligation and corresponds with the circumstances of the persons, of
2177 the time, and of the place.
arising from delict
2178 Art. 1172-1174 are applicable to quasi-delict
2179 Effect of plaintiff’s own negligence - The omission to do something which a reasonable man, guided
Defines the responsibility of FATHER or MOTHER; by those considerations which ordinarily regulate the conduct of
GUARDIANS; OWNERS/MANAGERS of human affairs, would do, or the doing of something which a
establishments; EMPLOYER; STATE; prudent and reasonable man would not (Layugan v. IAC)
2180
TEACHERS/HEADS of Establishments of Arts and - The failure to observe for the protection of the interests of
Trades (FGO-EST) another person, that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other
FGO-EST’s reimbursement for what they paid for
2181 person suffers injury (Layugan v. IAC)
damages caused by their dependents or employees
- Want of care required by the circumstance (Corliss v. Manila
States the requirements in order that minor or insane
2182 Railroad Company)
properties may be held answerable
- Conduct which creates an undue risks to others (Valenzuela v.
The possessor or user of animal is liable for the damages
2183 CA)
it may cause
The owner of the motor vehicle is solidarily liable with Test of Negligence
2184
his driver
The driver is presumed negligent if, at the time of the  Did the defendant in doing the alleged negligent act use that
2185
mishap, he was violating any traffic regulation reasonable care and caution which an ordinarily prudent person
Every owner of the vehicle shall file a bond (CPTL) to would have used in the same situation?
2186
answer for damages to a third person o Pater familias
Imposes liability to manufacturers and possessors of  Could a prudent man, in the case under consideration, foresee
2187 foodstuffs, drinks, etc. if the death/injury is caused by harm as a result of the course actually pursued?
the noxious substances used by them
Prima facie presumption of defendant’s negligence if Foreseeability
death/injury results from his possession of dangerous

TORTS AND DAMAGES by TIMOTEO B. AQUINO

2188 weapons or substances, except when possession or use
of the same is indispensable in his occupation or
business.
Provinces, cities, and municipalities are liable for
damages for death or injuries caused to any person
2189
because of defective public works under their control
and supervision
Due to lack of necessary repairs, the owner of the
2190 building/structure is responsible for the damages caused
by its collapse
Proprietor’s other responsibilities on explosion of
2191 machinery, excessive smoke, falling trees, and
emanation from tubes, etc.
Liability of engineer, architect, or contractor if the
2192
damage is the result of a defect in the construction
2193 Head of the family’s liability for falling objects
Solidary liability when there are two or more persons
2194 who are joint tortfeasors and they are guilty of only one
quasi-delict
Concurrence of Causes of Action
a. One Defendant, Two or More Sources of Obligation
- The fundamental test of negligence
- The determination of negligence is a question of foresight on the
part of the actor.
1. Undue Risk
 Negligence is a conduct that creates an undue risk to others.
 All actions entail a degree of risk and all conduct under
certain circumstances may be a source of damage.
 RISK: a danger which is apparent, or should be apparent, to
one in the position of the actor; the potential for harm that
is present in an act; links the active and passive aspects of
injurious conduct
2. Probability
 If there is a great probability and risk that damage will
result, a person is negligent if he did not exercise due
diligence in the face of such great probability.
 Danger consists in the risk of harm, as well as the likelihoof
of it, and a danger calling for anticipation need not be of
more probable occurrence than less. If there is some
probability of harm sufficiently serious that ordinary men
would take precautions to avoid it, then failure to do is
negligence.

4
Negligence is conduct. i. The probability to break away
ii. The gravity of the resulting injury
1. Motive not material iii. The burden of adequate precautions
 One may be liable for a practical joke.
- RULE IN THE PH
2. Purely moral fault not covered - Richard Epstein: A COMMON SENSE, INTUITIVE
 Only juridical fault is subject to liability. INTERPRETATION
 RULES OF LAW: limit the range of complainants and the - ―balancing interests‖
extent of their remedy. - ―balancing of risk‖: interests are to be balanced only in the
3. Prior conduct sense that the purposes of the actor, the nature of his act,
 The conduct that should be examined is conduct prior to the and the harm that may result from action or inaction are
injury that resulted or, in proper cases, the aggravation elements to be considered.
thereof.
 ―DILIGENCE BEFORE THE FACT‖: taking of necessary o Cost of precaution
precautions against mischievous results (St. Francis HS v. - The reasonable response of a reasonable
CA) man depends on the MAGNITUDE OF THE
RISK
4. Not necessarily the safest conduct - If the risk is real and is not small, the cost of
precaution is irrelevant but if the risk,
CASES: although real, is fairly small, one considers
PICART v. SMITH (1918) the cost of precaution.
CIVIL AERONAUTICS ADMINISTRATION v. CA
(1988) o Circumstances of the case
- Negligence is want of care required by the
Calculation of Risk circumstances.
- It is a relative/comparative concept.
- RISK BENEFIT ANALYSIS
o DEAN WILLIAM PROSSER: o Circumstances in Statute
By balancing the risk in the light of the social value of - ART. 1173 of NCC
the interest threatened, and the probability and extent  Nature of the obligation
of harm against the value of the interest which the  Circumstances of~
actor is seeking to protect, and the expedience of the o Person
course pursued. o Time
o Circumstances considered: o Place
- Gravity of the harm to be avoided - ART. 365, RPC
- Utility of conduct or the social value it seeks  Employment/occupation of the
to advance actor
- Alternative course of action, dangers, and  Degree of intelligence
advantages to the person or property of the  Physical condition
actor himself and to others  Circumstances of~
o Person
o PROFESSOR TERRY o Time
REASONABLENESS may depend upon 5 factors: o Place

TORTS AND DAMAGES by TIMOTEO B. AQUINO

i. The MAGNITUDE OF RISK – a risk is
more likely to be unreasonable the greater it
is.
ii. The value/importance of that which is
exposed to the risk, which is the object that
the law desires to protect – the PRINCIPAL
OBJECT
iii. A person who takes a risk of injuring the
principal object usually does so because he
has some reason of his own for such conduct
– the COLLATERAL OBJECT
iv. The probability that the collateral object will
be attained by the conduct which involves
risk to the principal – the UTILITY OF THE
RISK
v. The probability that the collateral object will
be attained without taking the risk – the
NECESSITY OF THE RISK
 HAND TEST
o JUDGE LEARNED HAND
o US v. Carroll Towing Co.
To provide against resulting injuries is a function of
three variables:
Circumstances to consider in determining negligence
1. Time
2. Place
3. Emergency 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, unless the emergency was brought by his own
negligence.
a. Over-all nature of circumstances
- The tortfeasor has the burden of proving his
allegation that he acted on emergency.
b. Not applicable if tortfeasor created the emergency
4. Gravity of the Harm to be Avoided
5
 - When human life is at stake, due care under the circumstances o A person who is physically disabled cannot be
requires everything that gives reasonable promise of preserving expected to act as if he is not disabled.
life to be done regardless of the difficulties. o The standard of conduct to which he must
conform to avoid being negligent is that of a
5. Alternative Course of Action reasonable person under like disability.
o A person who is suffering from physical
6. Social Value or Utility of Activity disability must, however, refrain from activities
- The importance of the act that has to be performed. which a reasonable person suffering from such
- The purpose to be served, if sufficiently important, justifies the disability would not undertake.
assumption of abnormal risk.  CASES:
US v. BONIFACIO (1916)
7. Person Exposed to the Risk ROBERTS v. STATE OF LOUISIANA (1981)
a. Children
b. Trespasser: a person who enters the property of 4. Experts and Professionals
another without any right, or lawful authority, or  Those who undertake any work calling for special skills are
express or implied license. required not only to exercise reasonable care in what they
do but also possess a standard minimum of special
Standard of Conduct: GOOD FATHER OF A FAMILY knowledge and ability.
- The reasonable man, man of ordinary intelligence and prudence,  The care required must be commensurate with the danger
or ordinary reasonable prudent man involved and skill employed must correspond with the
- Presumption: Every man knows the law superior knowledge of the business which the law
- When men live in a society, a certain average conduct, sacrifice, demands.
of individual peculiarities going beyond a certain point, is
necessary to the general welfare. a. Effect of Representation
- EXCEPTIONS:  IF pretentions unfounded – FRAUD
o When a man has a distinct defect of such nature that  Imperitia cupae adnumeratur:
all can recognize it as making certain precautions Inexperience is counted as fault.
impossible.
- The ATTRIBUTES OF THE ACTOR and the PERSON b. Formal Education is NOT Necessary
EXPOSED TO THE RISK are circumstances that are also  When a person holds himself out as being
material in the determination of negligence on the part of the competent to do things requiring
actor and contributory negligence on the part of the plaintiff. professional skill, he will be held liable for
- There is only one standard: an objective standard. negligence if he fails to exhibit the care and
skill of one ordinarily skilled in the
1. Knowledge and experience of the actor particular work which he attempts to do.
There are matters that are conclusively presumed to be known
based on actual knowledge and experience: c. Nature of Activity Material
a. Ordinary human experience  CASE:
b. Laws of physics and nature CULION ICE, FISH, AND
ELECTRIC CO. v. PHIL.
2. Children MOTORS CORPORATION
a. Effect of RPC (1930)
 SECTION 6 of RA 9344 (JUVENILE

TORTS AND DAMAGES by TIMOTEO B. AQUINO

JUSTICE AND WELFARE ACT OF 2006)
 Min. age of responsibility: above
15 y.o. if acting without
discernment
b. Liability of Children
 CRIMINAL LIABILITY: EXEMPT, if 15
y.o. or below – considered without fault
 CIVIL LIABILITY: vicarious liability of
parents (ART. 2180 of NCC, ART. 221 of
FC)
c. CASES:
TAYLOR v. MANILA ELECTRIC
RAILROAD AND LIGHT CO. (1910)
JARCO MARKETING CORPORATION v.
CA (1999)
YLARDE v. AQUINO (1988)
3. Physical Disability
 GEN. RULE: The weaknesses of a person will NOT be an
excuse in negligence cases.
 EXCEPTION: Real disability
o NOTE: RA 7277 – Magna Carta for Disabled
Persons
5. Nature of Activity
 Persons impose upon themselves certain obligations and
non-compliance therewith will be considered negligence.
 There are activities which by nature impose duties to
exercise a higher degree of diligence.
o EX: banks, common carriers
6. Intoxication
 Mere intoxication is not negligence nor does the mere fact
of intoxication establish want of care.
 It is but a circumstance to be considered with the other
evidence tending to prove negligence.
 Intoxication is of little consequence in negligence cases if it
was not shown that such drunkenness contributed to the
accident or that the accident would have been avoided had
he been sober.
 GEN. RULE: It is immaterial whether a man is drunk or
sober if no want of ordinary care or prudence can be
imputed to him, and no greater degree of care is required to
be exercised by an intoxicated man for his own protection
than by a sober one.
 If one’s conduct is characterized by proper degree of care
and prudence, it is immaterial whether he is drunk or sober.
6
  ART. 2185: 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.
 CASES:
E.M. WRIGHT v. MANILA ELECTRIC R.R. &
LIGHT CO. (1914)
7. Insanity
 Under the RPC, an insane person is exempt from criminal
liability but NOT from civil liability.
 The insanity of a person does not excuse him or his
guardian from liability based on quasi-delict.
 ART. 2180 and 2182 of NCC
 Bases for liability:
i. Where one of two innocent persons must suffer a
loss, it should be borne by the one who
occasioned it.
ii. To induce those interested in the estate of the
insane person (if he has one) to restrain and
control him.
iii. The fear that an insanity defense would lead to
false claims of insanity to avoid liability.
8. Women
 Question of ATTITUDE
 Can we apply the same objective standard to women that
we are applying to a man or are we to assume that there is a
fundamental difference between the reaction or attitude of
women compared to men given the same set of facts?
 Dean Guido Calabresi: THERE SHOULD BE A
UNIFORM STANDARD OF CARE FOR MEN AND
WOMEN.
Standard v. Specific Rules
RULES
- Legal norms that are formal and mechanical
- Triggered by a few easily identified factual matters and are
opaque in application to the values that they are designed to
serve
STANDARDS
- Flexible, context-sensitive legal norms that require evaluative
judgments in their application
- FOLLOWED in negligence cases
CASES:
BALTIMORE & OHIO R.R. v. GOODMAN
POKORA v. WABASH RY. CO. (1934)
o Duty to stop – Pennsylvania rule
CORLISS v. MANILA RAILROAD CO. (1969)
Other factors to consider in determining negligence
1. Violation of statutes and ordinances
may be treated as:
a. A circumstance which establishes a presumption of
negligence
b. Negligence per se
c. A circumstance which should be considered together with
other circumstances as evidence of negligence
- When not negligence per se
- When unusual conditions occur, strict
observance may defeat the purpose of the
rule and may even lead to adverse results.
- Violation gives rise to presumption in motor
vehicle mishaps
- ART. 2184 and 2185 of NCC
2. Violation of administrative rules
- Violation of a rule promulgated by administrative
bodies: NOT negligence per se, but may be evidence
of negligence
- Violation of administrative order issued pursuant to
and to implement a statute: negligence per se
(Cipriano v. CA)
3. Violation of private rules of conduct
- Merely a possible evidence of negligence
4. Proximate cause indispensable
 In any event, the requisites of quasi-delict must still be
complete before an action based thereon may prosper.
 Plaintiff must still present proof that the proximate
cause of his injury is the negligence of the defendant.
 NO liability attaches unless it appears that there was a
causal connection between the negligent act or
omission charged and the injury.
 Tort law is remunerative in spirit.
 When violation established proximate cause
o Proof of violation of statute and damage to
the plaintiff may itself establish proximate
cause.
o There are cases where the damage to the
plainti\
o ff is the damage that is sought to be
prevented by the statute.
o CASE:
VDA. DE GREGORIO v. GO
CHING BING (1957)
5. Negligence Per Se Rule
 Law provides for SPECIFIC RULES OF CONDUCT to be
observed.
 In this case, the law already determines in advance what a
reasonable man should do under certain circumstances.
 EX: National Building Code, Fire Code of the PH
TORTS AND DAMAGES by TIMOTEO B. AQUINO
6. 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.
 Non-compliance with the custom or practice in a
community does not necessarily mean that the actor was
negligent.
 Nonetheless, the way of doing things in a particular
situation may, in fact, have ripened into custom precisely
because it is how a reasonable man would act under the
same circumstances.
 Res ipsa loquitur will at most only create a prima facie case
and only in the absence of proof of the circumstances under
which the act complained of was performed.
 CASE:
S.D. MARTINEZ v. VAN BUSKIRK (1910)
7. Compliance with Rules and Statutes
 While violation of statute may be considered negligence
per se, non-compliance is NOT sine qua non of negligence.
 Compliance is NOT conclusive that there was no
negligence.
7
Degrees of Diligence RES IPSA LOQUITUR
 ―the thing speaks for itself‖
1. EXTRAORDINARY DILIGENCE
2. ORDINARY DILIGENCE (DOAGFOAF) Requisites:
3. SLIGHT DILIGENCE 1. The accident is of a kind which ordinarily does not occur in
the absence of someone’s negligence
Degrees of Negligence 2. It is caused by an instrumentality within the exclusive
control of the defendant(s) – CONTROL OF THE
1. GROSS NEGLIGENCE INSTRUMENTALITY (fundamental element)
 ART 2231 of NCC 3. The possibility of contributing conduct which would make
 Negligence where there is want of even slight care and the plaintiff responsible is eliminated
diligence, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but willfully and  Evidentiary Rule
intentionally, with a conscious indifference to o It is simply a step in the process of such proof,
consequences insofar as other persons may be affected permitting the plaintiff to present along with the proof
 Such entire want of care as to raise a presumption that the of the accident, enough of the attending circumstances
person in fault is conscious of the pprobable consequences to invoke the doctrine, creating an inference or
of carelessness, and is indifferent, or worse, to the danger presumption of negligence, and to thereby place on the
of injury to the person or property of others. defendant the burden of going forward with proof.
 CASES: o Proving of the elements of negligence by
NEGROS NAVIGATION CO., INC. v. CA circumstantial evidence.
(1997)  Rationale
o As a matter of common knowledge and experience,
2. ORDINARY NEGLIGENCE the very nature of certain types of occurrences may
justify an inference of negligence on the part of the
3. CONTRIBUTORY NEGLIGENCE person who controls the instrumentality causing the
injury in the absence of some explanation by the
Proof of Negligence defendant who is charged with negligence.
 BURDEN OF PROOF: the duty of a party to present evidence o Negligence may be deduced from the mere occurrence
on the facts in issue necessary to establish his claim or defenses of the accident itself.
by the amount of evidence required by law o DOCTRINE OF COMMON KNOWLEDGE
 PLAINTIFF: establish cause of action o It is a rule of necessity.
 DEFENDANT: establish his defense o It must also appear that the injured party had no
 EVIDENCE: testimonial, documentary, or real; expert witnesses knowledge or means of knowledge as to the cause of
the accident or that the party to be charged with
Presumptions negligence has superior knowledge or opportunity for
explanation of the accident.
Art. 2184. It is disputably presumed that a driver was negligent, if he
had been found guilty of reckless driving or violating traffic  When inapplicable
regulations at least twice within the next preceding two months. o If there is DIRECT PROOF of absence or presence of
negligence
Art. 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the  CULPA CONTRACTUAL

TORTS AND DAMAGES by TIMOTEO B. AQUINO

mishap, he was violating any traffic regulation. o Inference of the negligence arises from the
circumstances and nature of the occurrence and not
Art. 2188. There is prima facie presumption of negligence on the part from the nature of the relation of the parties.
of the defendant if the death or injury results from his possession of o HOWEVER, the presumption of negligence in culpa
dangerous weapons or substances, such as firearms and poison, contractual immediately attaches by a mere failure of
except when the possession or use thereof is indispensable in his the covenant or its tenor.
occupation or business. o CASE:
ESPIRITU v. PHIL. POWER AND DEV.
a. Facts that Must be Established CO. (1949)
 Party invoking the presumption must still establish certain RADIO COMMUNICATIONS OF THE
factual preconditions before the presumption can operate. PHILS., INC. (RCPI) v. CA (1986)

b. Traffic Rules and the Law of the Road

 Land Transportation and Traffic Code
 Law of the Road: the custom or practice that has become
crystallized into an accepted system of rules regulating
travel on highways.

c. Contractual Relationship
 May cause the presumption of negligence to arise
 EX: common carriers

d. Art. 2185 does NOT apply to Non-Motorized Vehicles

8
 CHAPTER 3
AFFIRMATIVE DUTIES
 Under the civil law system, fault or negligence consists in not
acting as one should – an error of conduct.
 The duty is negative in nature.
 Positive duties exist only where there is a special relationship.
 GEN. RULE: It is not part of the GENERAL DUTY OF CARE
to perform a positive obligation. There is NO AFFIRMATIVE
DUTY to perform an act for the benefit of another.
o The defendant does not have any participation in the
creation of the harm that brings about the danger to the
person who is sought to be benefitted by the
affirmative act.
 EXCEPTION Law sometimes imposes AFFIRMATIVE
DUTIES.
o Where antecedent conduct or dispositions of the law
have placed a person under an obligation to act, it is
clear that his failure to act constitutes fault and
engages his responsibility.
o Rationale:
 Public interest is involved
 Special relationship between certain
individuals e.g. PRIVITY
 Principles of conduct so universally
recognized as to be demanded that they be
observed as a LEGAL DUTY
o May be imposed by LAW or JURISPRUDENCE, or
may be PURELY MORAL OBLIGATIONS
Misfeasance Nonfeasance
Breach of the general duty of Breach of affirmative duty
care
―omission‖
BUT negligence and the duty of
care, in our law, may involve
acts and omissions
Character of the conduct complained of
Nature of the detriment suffered in consequence thereof
Victim’s position is changed for There is merely failure to benefit
the worse through the creation of the victim which is a loss only in
a negative quantity in the form of the sense that a positive quantity
positive loss or new harm is not added
Pseudo-nonfeasance Real Nonfeasance
Defendant’s act was a factual Risk existed independent of the
cause of the plaintiff’s exposure defendant’s presence or absence;
to the risk of the injury that he
suffered The defendant’s part in the
materialization of the risk has no
bearing on this fact
Even though a risk may have
arisen independently of the a
defendant, he is responsible for
the aggravation of the danger,
that is, for substantially
increasing the likelihood that it
will materialize in harm.
By diminishing the ability of the
victim or of others to abate the
danger, the defendant, though
innocent of the original danger,
must account for the increased
risk.
DUTY TO RESCUE
DUTY TO THE RESCUER
 Courts make defendants liable for the injuries to persons who
rescue people in distress because of the acts or omission of the
said defendants.
 The risk of recue, if only, it be not wanton, is born of the
occasion. The emergency begets the man. The wrongdoer may
not have foreseen the coming of a deliverer BUT he is
accountable as if he had.
 One who was hurt while trying to rescue another who was
injured through negligence may recover damages. (Santiago
v. De Leon)
 Conduct which might otherwise be considered contributory
negligence may not be so considered where a person is injured
in attempting to save others from imminent danger of personal
injury or death.
 NOT an affirmative duty imposed by law BUT part of the the
general negative duty of the actor
 The rescuer is within the sphere of risk created by the actor.
Requisites:
1. The defendant tortfeasor was negligent to the person rescued
and such negligence caused the peril or appearance of the peril
to the person rescued
2. The peril or appearance of peril was imminent
3. A reasonably prudent person who would have concluded such
peril or appearance of peril existent
4. The rescuer acted within reasonable care in effectuating the
rescue
DUTY TO RESCUE
General Rule
 The duty to do no wrong is a legal duty.
 The duty to protect against wrong is, generally speaking and
excepting certain intimate relations in the nature of trust,
MORAL OBLIGATION only, not recognized or enforced by
law.
 Thus, even if the failure to help the victim of an accident might
be morally reprehensible, the person who abstained from
TORTS AND DAMAGES by TIMOTEO B. AQUINO
helping him is NOT legally responsible.
 A person is bound to act with prudence but not with charity.
 HENCE, there is also NO general duty to rescue in the PH.
 A person is NOT liable for quasi-delict even if he did not help a
person in distress.
Exceptions
1. REVISED PENAL CODE
ART. 275. ABANDONMENT OF PERSONS IN DANGER
AND ABANDONMENT OF ONE’S OWN VICTIM. – The
penalty of arresto mayor shall be imposed upon:
1. Anyone who shall fail to render assistance to any
person whom he shall find in an uninhabited place
wounded or in danger of dying, when he can render
such assistance without detriment to himself, unless
such omission shall constitute a more serious offense;
2. Anyone who shall fail to help or render assistance to
another whom he has accidentally wounded or injured;
9
 3. Anyone who, having found an abandoned child under
7 years of age, shall fail to deliver said child to the
authorities or to his family, or shall fail to take him to
a safe place.
NOTE: if there was intent to injure, the actor is guilty of the
appropriate crime like serious physical injury or homicide as the
case may be.
2. RA 4136 (LAND TRANSPORTATION AND TRAFFIC
CODE)
SEC. 55. DUTY OF DRIVER IN CASE OF ACCIDENT. –
No driver of a motor vehicle concerned in a vehicular accident
shall leave the scene of the accident without aiding the victim,
EXCEPT under the ff. circumstances:
2. INVITEE
- One who is at a place upon invitation
- Presence of the injured person must have been anticipated –
CC liable when injured by their employees (ART. 2176)
CHILDREN
ATTRACTIVE NUISANCE RULE
- Limitation to the rule on contributory negligence
- 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 exercise
ordinary care to prevent children of tender age from
palaying therewith or resorting thereto
- Liability exists even if child is a trespasser so long as he is
not of sufficient age or discretion

1. If he is in imminent danger of being seriously harmed Requisites:

by any person or persons by reason of the accident; 1. Possessor knows or has reason to know that children are likely
2. If he reports the accident to the nearest officer of law; to trespass.
or 2. The condition is one of which the possessor knows or has reason
3. If he has to summon a physician or nurse to aid the to know and which he realizes or should realize will involve an
victim. unreasonable risk of death or serious bodily harm to such
children.
3. Exceptions imposed on PERSONS WITH SPECIAL 3. The children, because of their youth, do not discover the
RELATIONSHIP condition or realize the risk involved intermeddling with it or
in coming within the area made dangerously by it.
 Individuals required by law to take care of another person 4. The utility to the possessor of maintaining the condition and
are legally compelled to rescue the other person under their the burden of eliminating the danger are slight as compared
care or custody. with the risk to children involved.
 EX: parents-children; guardians-wards 5. The possessor fails to exercise reasonable care to eliminate
the danger or otherwise protect the children.
OWNERS, PROPRIETORS, AND POSSESSORS
TURN TABLE CASES
 ART. 428 of NCC: - A class of cases where the owner of the property is held
o Owner has the right to enjoy, dispose of, and recover liable to the children who are trespassing thereon and
his property. injured, upon the ground that the owner is bound to know
o Damage to any person resulting from the exercise of that children may be attracted and may be injured thereby,
any duty of the rights of ownership – DAMAGE although the owner is guilty of NO negligence EXCEPT in
WITHOUT INJURY (damnum absque injuria) maintaining the property in such condition that children
o Owner commits no negligence even if he carelessly may trespass thereon to their harm.
caused damage by exercise of his right because NO - Children are expected to act on childish instincts and

TORTS AND DAMAGES by TIMOTEO B. AQUINO

DUTY OF CARE is owed to any body. impulses

1. TRESPASSERS STATE OF NECESSITY

- Not liable - A situation of present danger to legally protected interests,
- Come on the premises at their own risk in which there is no other remedy than the injuring of
another’s also legally protected interests
2. TOLERATED POSSESSOR - There is a collusion of legitimate interests or equal/unequal
- Liable rights.
- With implied permission
1. ART. 432 of NCC
3. VISITORS
- Liable The owner of the thing has no right to prohibit the interference
- There is a general duty of care of another with the same, if the interference is NECESSARY to
avert an imminent danger and threatened damage, compared to
COMMON CARRIERS damages arising to the owner from the interference, is much
- Always liable greater.
- Duty of utmost diligence
2. ART 11 and 101 of RPC
1. LICENSEE
- One who enters another’s premises either without invitation IN BOTH CASES, the owner may demand from the person
or purposes not connected with business conducted on the benefitted indemnity for damages.
premises but with permission or tolerance
- Presence of the injured person must have been anticipated –
CC liable when injured by their employees (ART. 2176)
10
NEIGHBORS AND THIRD PERSONS

ART. 431 of NCC

- An owner cannot use his property in such a manner as to
injure the rights of others.
- Otherwise, he/she may be liable for quasi-delict.

 The duty to perform a certain act may be imposed by

statute/ordinances.

LIABILITY OF PROPRIETORS OF BUILDINGS

ART. 2190. The proprietor of a building/structure is responsible for

the damages resulting from its total or partial collapse, if it should be
due to the lack of necessary repairs.

ART. 2191. Proprietors shall also be responsible for damages causes:

1. By the explosion of machinery which has not been taken care of
with due diligence, and the inflammation of explosive
substances which have not been kept in a safe and adequate
place;
2. By excessive smoke, which may be harmful to persons or
property;
3. By the falling of trees situated at or near highways or lanes, if
not caused by force majeure;
4. By emanations from tubes, canals, sewers, or deposits of
infectious matter, constructed without precautions suitable to the
place.

ART. 2192. If damage referred to in the two preceding articles should

be the result of any defect in the construction mentioned in Art. 1723,
the third person suffering damages may proceed only against the
engineer or architect or contractor in accordance with said article,
within the period therein fixed.

EMPLOYERS AND EMPLOYEES

Employers Employees
Actions for QUASI-DELICT can Employee may be liable for
still be maintained even if QUASI-DELICT to the
employees’ compensation is employer for negligence
provided for under the Labor committed while in the
Code performance of their duties.

TORTS AND DAMAGES by TIMOTEO B. AQUINO

 Employee may use the
provisions of the Labor
Code that imposes upon the
employer certain duties
with respect to the proper
maintenance of the work
place or the provision of
adequate facilities to ensure
the safety of the employees.
 Failure to comply on the
part of the employer –
NEGLIGENCE PER SE
 Art. 1711 and 1712 of the
NCC impose liability
without fault on the part of
the employers.

11
 CHAPTER 4
MALPRACTICE
MALPRACTICE
- Negligence of experts
1. HEALTH CARE PROFESSIONALS
1. MEDICAL MALPRACTICE
- 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 bearing in
mind the advance state of the profession at the time of
treatment or the present state of medical science
Liability may arise out of:
1. Delict (Art. 365, RPC)
2. Contract (Breach of Contract)
3. Quasi-Delict (Art. 2176)
Elements of Liability for Medical Malpractice:
1. Duty
 Standard of behavior which imposes
restrictions on one’s conduct
 Standard: the amount of competence
associated with the proper discharge of the
profession
 DUTY IN MEDICAL PRACTICE: standard
of a reasonably competent doctor that is
used to determine if the defendant doctor
acted negligently
 Established if the contract between the
doctor-patient is established
2. Breach
3. Injury
4. Proximate causation
 That cause, which, in the natural and
continuous sequence, unbroken by any
efficient intervening cause, produces the
injury, and without which the result would
not have occurred
 Proven by preponderance of evidence
through expert testimony
 Doctors and physicians are required to exercise UTMOST
DILIGENCE.
 The primary objective of the medical profession is the
preservation of life and the maintenance of the health of the
people.
 A physician is bound to serve the interest of his patients with the
greatest solicitude giving them always his best talent and skill.
 There is PUBLIC CONSIDERATION – inseparable from the
nature and exercise of his calling upon which the public reposes
respect and confidence.
 Any slip/breach in the performance of that duty, no matter how
small, is corrosive to public faith.
 DOCTOR-PATIENT RELATIONSHIP
o May be expressly/impliedly created
o When the professional services of a physician are
rendered to and accepted by another for purposes of
medical/surgical treatment
o A factual issue
o When physician gives advice, even if communicated
through another health care professional
o A contractual relationship
GENERAL PRACTITIONERS
Standard of care: ordinary care and diligence on the application of his
knowledge and skill in his practice of the profession
SPECIALISTS
Standard of care: special degree of care which physicians, similarly
situated who devote special study and attention to the treatment of
such organ, disease, or injury, ordinarily possess, regard being made
in the state of the scientific knowledge at the time
Standards:
I. NATIONAL STANDARDS
- Medicine is a science.
- Laws of medicine do not vary from state to state in
anything like the manner our public law does.
II. LOCALITY RULE
- Local medical customs and facilities never subsumes duty
of care of doctors, but are sometimes taken into
consideration
III. NEIGHBORHOOD RULE
- In treating his patient, a physician is under a duty to the
patient to exercise that degree of care, skill, and diligence
which the physician in the same neighborhood and in the
same gen. line of practice ordinarily possess and exercise in
like cases
- NOT NEIGHBOR, but PROXIMITY
IV. COMMON PROFESSIONAL PRACTICE
- Compliance therewith strong evidence that the doctor has
not been negligent but is NOT conclusive!
o Neglect of duty does not cease by repetition to be
neglect of duty.
o It does not mean that doctors should not
recklessly try untried and potentially dangerous
experimental procedures, otherwise, there will be
no innovation
TORTS AND DAMAGES by TIMOTEO B. AQUINO
Two forms of DUTY OF CARE
i. Duty to render a quality of care consonant with the level of
medical and practical knowledge the physician may
reasonably be expected to possess and the medical
judgment he may be expected to exercise
- Apply NATIONAL STANDARDS
ii. Duty based upon the adept use of such medical facilities,
services, and equipment and options as are reasonably
available
- Apply LOCALITY RULE
 Doctors are NOT warrantors.
 Causation of negligence:
o Whether the doctor’s actions in fact caused the harm
to the patient
o Whether these were the proximate cause of the injury.
o RESULT NOT DETERMINATIVE
 ERROR of JUDGMENT
o May be negligence depending on the nature of the
error~
12
  If it is one that would NOT have been made
by a reasonably competent professional man
professing to have the standard and type of
skill that the defendant held himself out as
having, and acting with ordinary care –
NEGLIGENT
 If it is an error that a man with ordinary care
might have made – NOT NEGLIGENT
 Burden of Proof: Plaintiff
o Prove through
 EXPERT TESTIMONY
- A matter of expert opinion as such
involves unusual technical skills
- What must be established:
determination of the reasonable
level of care and the breach
thereof
 Documents in support of testimony
- Clinical literature that are reliable
and authoritative
o Pharmaceutical package
insert instructions and
warnings
o Physician desk reference
o Learned treatises
o Research findings
o Clinical practical
guidelines
 Exceptions
o JUDICIAL NOTICE
 Facts already established and need not be
proved
o RES IPSA LOQUITUR
 Allows the mere existence of an injury to
justify a presumption of negligence on the
part of the person who controls the
instrument causing the injury, provided that
the ff. concur:
- The accident is of a kind which
ordinarily does not occur in the
absence of someone’s negligence
- Caused by an instrumentality
within the exclusive control of the
defendant(s)
- The possibility of contributing
conduct which would make the
plaintiff responsible is eliminated.
 Limited to case where the court from its
fund of common knowledge can determine
the standard of care
 Situation where a layman is able to say, as a
matter of common knowledge and
observation, that the consequence of
professional care were not as such as would
ordinarily have followed if due care had
been exercised
 Patient must prove NEXUS between the
particular act/omission complained of and
the injury sustained while under the custody
and management of the defendant
 LOST CHANCE RULE
o Right to recover in lost chance cases
o Whether the patient can recover for the lost
opportunity to obtain a better degree of recovery
o May give rise to an action for DAMAGES
 DOCTRINE OF INFORMED CONSENT
o DUTY OF RISK-DISCLOSURE
o Unless excused, the doctor must secure the consent of
his patient to a particular treatment or an investigative
procedure.
o Consent is an integral part of the physician-patient
relationship and doctors are duty-bound to obtain an
authorization for care carried out in their offices or
elsewhere
o May be express/implied
o Nature of liability: QUASI-DELICT
o To alert the patient to the condition especially when
the exigencies of reasonable care call for it
o The negligence theory of consent puts the patient and
the health practitioner on a more even footing
o RIGHT OF SELF-DETERMINATION
o The disclosure rule only requires from the doctor a
reasonable explanation which means generally
informing the patient in non-technical terms as to:
 what is at stake;
 the therapy alternatives open to him;
 the goals expectably to be achieved
 the risks that may ensue from particular
treatment or no treatment
o Experts are unnecessary to a showing of the
materiality of the risk
 Elements of liability
1. Presence of doctor-client relationship
2. Physician had a duty to disclose material risks
3. The physician failed to disclose/inadequately disclosed
those risks
4. As a direct and proximate result of the failure to disclose,
the patient consented to the treatment she otherwise would
not have consented to
5. Plaintiff was injured by the proposed treatment
 Gravamen: Plaintiff must point out to significant undisclosed
information relating to the treatment which would have altered
the decision to undergo it.
 Two types of causation:
TORTS AND DAMAGES by TIMOTEO B. AQUINO
i. Adequate disclosure would have caused the plaintiff to
decline the treatment
 Apply OBJECTIVE REASONABLE
PATIENT TEST
 Issue is resolved on an objective
basis: in terms of what a prudent
person in the patient’s position
would have decided if suitably
informed of the perils bearing
significance
ii. Treatment proximately caused the injury to the
plaintiff
 must be proven by expert testimony
 Exceptions:
1. Emergency cases
2. Use of therapeutic privilege
- A candid and thorough disclosure of information
will have an adverse effect on the patient’s
condition/health
 Scope of duty: case-to- case basis
 PROFESSIONAL DISCLOSURE STANDARD
13
 o A charge of failure to disclose should be judged by the 3. To oversee as to patient care all
standards of the reasonable medical practitioner persons who practices medicine
o Did the doctor disclose the information that, by within its walls
established medical practice, is required to be 4. To formulate, adopt and enforce
disclosed? adequate rules and policies to
ensure quality care for patients
 REASONABLE PATIENT STANDARD  Nature of Liability
o TEST: materiality to the patient’s decision 1. Contract
 All risks potentially affecting the decision 2. Quasi-Contracct
must be unmasked 3. Law
o Patient must be allowed to make intelligent decision
o Expert testimony necessary  LIABILITY FOR UNLAWFUL RESTRAINT
o Determination of materiality: o A patient cannot be detained in a hospital for non-
 Scientific nature of the risk must be payment of bills.
ascertained i.e. the nature of the harm which o Proper remedy: recovery suit
may result and the probability of its o If patient is not released: proper remedy: WRIT OF
occurrence HABEAS CORPUS
- Expert testimony required
 Whether the probability of that type of harm 3. NURSES
is a risk which a reasonable patient would  RA 9173 – PHILIPPINE NURSING ACCT OF 2002
consider in deciding a treatment  Standard of degree of care: standards of safe nursing
- Expert testimony NOT required practices
o National standard applies
 CAPTAIN OF THE SHIP DOCTRINE  Continuing education
o Head surgeon responsible for everything that goes  MEDICATION ERROR
wrong within the four corners of the operating room o a preventable event that may cause/lead to
and those wherein he has extension of control inappropriate use or patient harm while
medication is in the control of the health care
2. HOSPITALS professional, patient, or consumer
o failure to protect
 Three legal relationships:  JOINT TORTFEASOR and VICARIOUS LIABILITY
o Hospital and doctor o With doctors (Art. 2180)
o Hospital and patient o With hospitals
o Patient and doctor
4. PHARMACISTS
 Principle of RESPONDEAT SUPERIOR  RA 5921
o Art. 2176 2180 o Negligence
o Strict liability
 DOCTOR – AGENT of hospitals o Breach of warranty
o Art. 2176, 1431, 1869  NO PRIVITY REQUIRED
 Degree of care: highest degree of care and diligence
 Principle of APPARENT AUTHORITY  Res ipsa loquitur applies
o Standards to which it should conform to as a  Breach of statutory duty: non observance per se is neglect

TORTS AND DAMAGES by TIMOTEO B. AQUINO

corporation of duty/care

 VICARIOUS LIABILITY of hospitals as employer 5. CLINICAL LABORATORIES

including “consultants”  RA 4688 – THE CLINICAL LABORATORY LAW
o Quasi-delict (Art. 2180) – SOLIDARY LIABILITY  RA 5527 – THE PHILIPPINE MEDICAL
with physician TECHNOLOGY ACT OF 1969
o Delict (Art. 102, 104, RPC) – SUBSIDIARY  DOH AO 49-B S. 1988 – REVISED R & R
LIABILITY GOVERNING THE REGISTRATION, OPERATION,
o Basis: Relationship of PATRIA POTESTAS (paternal AND MAINTENANCE OF CL IN THE PH
power)
o Defense: DOAGFOAF to prevent damage  Business impressed with public interest
 Licensed physician and/or pathologist – REQUIRED!
 DOCTRINE OF CORPORATE RESPONSIBILITY  Supervision and control:
o In line with the duty of providing quality medical o The authority to act directly whenever a specific
service: function is entrusted by law or regulation to a
o CORPORATE NEGLIGENCE DOCTRINE: subordinate
 DUTIES: o Direct the performance of duty
1. To use reasonable care in the o Restrain the commission of acts
maintenance of safe and adequate o Review, approve, revise, or modify acts and
facilities and equipment decisions of subordinate officials or units
2. To select and retain only
competent physicians 2. LAWYERS
 Code of Professional Responsibility
 Canon of Professional Ethics
14
  REQUIRED: thorough preparation and take all steps to
prosecute act
 Proof of damage necessary
 Loss and error of judgment NOT bases of liability

3. ACCOUNTANTS
 RA 9298 – PHIL. ACCOUNTANCY ACT OF 2004
 An expert with respect to the practice of accounting
 Nature of liability: contract / quasi-delict
 Standard: ordinary accountant skilled in the knowledge,
science, skills, and practice of accounting rendering
professional services for client

4. INDEPENDENT AUDITORS
 Audit of financial transaction
 Preparation of audit reports
 Nature of liability:
o Contract
o Negligence
o Fraud
 Appointment of auditor
o NOT negligent
 PRC / Board of Accountancy
o Code of good governance
o Sworn statement on adequate and effective
training
 Liability re: audited financial statements
o YES; there is privity with the client

TORTS AND DAMAGES by TIMOTEO B. AQUINO

15
 CHAPTER 5
NEGLIGENCE OF SELECTED BUSINESS ORGANIZATIONS

Business Organization Applicable Law Degree of Diligence Nature of Liability Notes

NEGLIGENCE Defense of due diligence in the selection
-Contract and supervision of the school’s employees
-Quasi-delict is NOT a defense

Special parental DOCTRINE OF CORPORATE

authority RESPONSIBILITY

Vicarious liability NEGLIGENT ACT

-an inadvertent act
-carelessly done from a lack of ordinary
Schools and
prudence and may be one which creates a
Administrators
situation involving an unreasonable risk to
another because of the expectable action of
the other, a third person, an animal, or a
force of nature
-one from which an ordinary prudent man
in the actor’s position, in the same and
similar circumstances, would foresee such
appreciable risk of harm to others as to
cause him not to do the act or to do it in a
more careful manner
Highest degree of
Banks diligence
―meticulous care‖
Highest degree of FIREARMS DEALER
care -higher degree of care required of someone
who has in his possession or under his
Duty to take control an instrumentality extremely
exceptional dangerous in character e.g. dangerous
precautions to weapons / substances
prevent any injury
GUN STOREOWNER
-presumed knowledgeable about firearms
safety
-must ensure all guns in store are unloaded
Firearms Related
Negligence ―License to Repair‖

TORTS AND DAMAGES by TIMOTEO B. AQUINO

SECURITY AGENCY and GUARDS
-BOTH liable for guard’s negligence in
handling firearms

SOLIDARY liability
-SG (Art. 2176)
-Agency (Art. 2180)

Rule applies even when the act was

intentional
Ordinary care and NOT insurer of safety of patrons
prudence in the
Resort and Swimming management and
Pool Operator maintenance of such
– reasonably safe for
visitors
Observance required: Due diligence in Serves the public
-National Building maintaining the
Code premises IMPLIED WARRANTY on safety of the~
Theater -Revised Fire Code of -premises
the PH -appliances
-amusement devises
… for the purpose for which they are
16
 designed

EXCEPTION
-unknown defects not discernible by
ordinary/reasonable means

INFERENCE OF NEGLIGENCE
-if injury caused is wholly and exclusively
under the control and management of
defendant and the accident is such as in the
ordinary course of events would not have
happened if proper care had been
exercised, its occurrence raises a
presumption/permits of an inference of
negligence on the part of the defendant
Liable for illegal disconnection of
electrical lines/termination of their services
without complying with legal requirements

-ACTS CONTRA BONUS MORES /

ABUSE OF RIGHT
Electric and Power
Companies -ART. 2176

1. Burning wires
2. Sagging and dangling lines (accident
waiting to happen)
3. Dangerous place of installation and
uninsulated wires
See below. Ordinary diligence Contractual PRIVITY NOT INDISPENSABLE
obligations
DOCTRINE OF SUPERVENING
―Contract for a piece NEGLIGENCE
of work‖ -where both parties are negligent but the
-includes liabilities negligence of one is appreciably later in
caused by time than of the other or when it is
employees impossible to determine whose
fault/negligence should be attributed to the
QUASI-DELICT incident, the one who had the LAST
-design CLEAR OPPORTUNITY to avoid the
-construction impending harm and failed to do so is
chargeable with the consequence thereof.

TORTS AND DAMAGES by TIMOTEO B. AQUINO

Approval of plans by building official –
DO NOT PROVE that there were no
defects
ART. 1723.
The ENGINEER / ARCHITECT who drew up the plans and specifications for a building is liable for DAMAGES
Building Contractors
within 15 YEARS from the completion of the structure, should the same collapse by reason of a DEFECT in those
plans and specifications or due to DEFECTS in the ground.

The CONTRACTOR is likewise responsible for the damages if the edifice falls, within the same period, on account of
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 10 YEARS following the collapse of the building.

ART. 2192 (2191, 2190, 1723)

Third person suffering damages may proceed only against the engineer / architect / contractor within the period therein
fixed when the ff. instances of defect in construction exist:

1. Damages resulting from its total/partial collapse

17
 2. Damages caused by the explosion of machinery which has not been taken care of with due diligence, and the
inflammation of explosive substances which have not been kept in a safe and adequate place
3. Damages caused by excessive smoke which may be harmful to persons or property
4. Damages caused by the falling of trees situated at or near highways or lanes if not cause by force majeure
5. Damages caused by emanations from tubes, canals, sewers, or deposits of infectious matter, constructed without
precautions suitable to the place

ART. 1728
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.
DOAGFOAF One vessel is hired to bring another vessel
Towage
to another place
DOAGFOAF Loading and unloading of coastwise
vessels calling at the port

Handling of the cargo in the holds of the

Stevedoring vessel or between the ships tackle and the
holds of the vessel

Ends upon the loading and stowing of

cargo in the vessel
EOD Breach of contract ALWAYS RESPONSIBLE EXCEPT IN
of carriage THE FF. CASES:
1. Flood, storm, earthquake, lightning,
or other natural disaster or calamity;
2. Act of public enemy in war, whether
intentional or civil;
3. Act/omission of shipper/owner of the
goods;
4. Character of the goods / defects in the
packing or in the containers
Common Carries 5. Order/act of competent public
authority

THERE IS A PRESUMPTION OF
NEGLIGENCE.

Diligence in the selection and supervision

of employees NOT a defense

EX: TRAINS

TORTS AND DAMAGES by TIMOTEO B. AQUINO

18
 CHAPTER 6  Negligence per se EXCEPT if provided by law otherwise
 Depend on:
DEFENSES IN NEGLIGENCE CASES o Merely contributory negligence
o Proximate cause
PARTIAL DEFENSES o Neither contributory or proximate cause
 Those that mitigate liability
 EX: contributory negligence 4. ASSUMPTION OF RISK

COMPLETE DEFENSES VOLENTI NON FIT INJURIA

 Those that bar recovery
 EX: fortuitous event / assumption of risk Requisites:
1. Plaintiff must know that the risk is present.
PLAINTIFF’S CONDUCT 2. He must further understand its nature.
3. His choice to incur it is free and voluntary.
ART. 2179. When the plaintiff’s own negligence was the
immediate cause and proximate cause of his injury, he cannot Exceptions:
recover damages. 1. If emergency is found to exist
2. If the life/property of another is in peril or seeks to rescue his
1. PLAINTIFF’S OWN NEGLIGENE AS THE PROXIMATE endangered property
CAUSE
Kinds:
GROSS NEGLIGENCE 1. Express waiver of right to recover
 One characterized by the want of even slight care, acting or - EXPRESS CONSENT PERSPECTIVE
omitting to act in a situation where there is a duty to act, not i. Before negligent act – invalid
inadvertently but willfully and intentionally with conscious ii. After negligent act – valid
indifference to consequences insofar as other persons may be iii. Future fraud – invalid
affected. iv. Exemplary damages – invalid
2. Implied assumption
2. CONTRIBUTORY NEGLIGENCE 3. Dangerous conditions
4. Incident of contractual relations
ART. 2214: contributory negligence will reduce the damages that - Defense of employer in tort case filed by employee
may be recovered. 5. Dangerous activities
- Awareness of risk assessed against background of skill
DOCTRINE OF COMPARATIVE NEGLIGENCE and expertise
 Relative degree of negligence of the parties is considered in 6. Defendant’s negligence
determining whether, and to what degree, either should be - If plaintiff voluntarily decided to encounter it
responsible for his negligence
 Mitigates liability – determined by court FORTUITOUS EVENT

DOCTRINE OF CONTRIBUTORY NEGLIGENCE Elements:

 Bars recovery 1. Cause of unforeseen and unexpected occurrence or failure of the
debtor to comply with his obligation must be independent of
CONTRIBUTORY NEGLIGENCE human will

TORTS AND DAMAGES by TIMOTEO B. AQUINO

 Conduct on the part of the injured party, contributing as a legal 2. Event must be impossible to foresee, if not, impossible to
cause to the harm he has suffered, which falls below the avoid
standard to which he is required to conform for his own 3. Occurrence must be such as to render it impossible for the
protection debtor to fulfill his obligation in a normal manner
4. Obligor free from any aggravation of the injury resulting to
Test of Negligence – FORESEEABILITY the creditor
 When a party’s act showed lack of ordinary care and foresight - F.E. must be the sole cause of the injury
that such an act could cause him harm or put his life in danger
DEATH OF DEFENDANT
IMPUTED CONTRIBUTORY NEGLIGENCE
 If the actor is different from the person who is being made liable  NOT A DEFENSE
 EX: Master-Servant relationship
 If the master is injured by the negligence of a third person any PRESCRIPTION
by the contributing negligence of his own servant or agent, the
latter’s negligence is imputed to his superior and will defeat  QUASI-DELICT – 4 YEARS (ART. 1146, NCC)
supervisor’s action against the third person, if such contributory
negligence was the proximate cause. INVOLUNTARINESS

IMPUTED NEGLIGENCE TO PLAINTIFF AS PROXIMATE  ART. 103, RPC : person acting because of force and
CAUSE intimidation employed upon him is SUBSIDIARILY LIABLE
to the offended party. – strict liability
3. VIOLATION OF STATUTE BY THE VICTIM OR HIS  Complete defense if quasi-delict
AGENT o Self-preservation is the first law of nature.
19
 CHAPTER 7
CAUSATION
 Without proof of causation, the action for damages based on tort
fails.
 PROXIMATE CAUSE
 That cause which in the natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury and without which the
result would not have occurred.
 May be foreseen or unforeseen
 Procuring efficient and predominant cause
 That which sets the others in motion
 REMOTE CAUSE
 That cause which some independent force merely took
advantage of to accomplish something not the natural
effect thereof
 Not the legal cause of the damages
 CONCURRENT CAUSES
 Where several causes combine to produce injuries, a
person is not relieved from liability because he is
responsible for only one of them, it being sufficient
that the negligence of the person charged with injury
is an efficient cause without which the injury would
not have resulted to as great an extent, and that such
cause is not attributable to the person injured
 SOLIDARY LIABILITY (Art. 2194, NCC)
 Doctrine of last clear chance does not apply.
 NEAREST CAUSE
 Last link in the chain of events
 A mere preexisting condition upon which the effective
cause operates, and must have been adequate to
produce the resultant damage without the intervention
of an independent cause
 CAUSE
 Something which is usually earlier in time which is
abnormal or an interference in the sense that it is not
present when things are usual
 STANDARD AND HABITUAL FEATURE
(background condition)
 DEVIATION (candidate condition)
 TESTS OF PROXIMATE CAUSE:
1. CAUSE-IN-FACT TEST
 The damages must be so connected with the
negligence that the latter may be said to be
the proximate cause of the former
 HART & HONROE: when looking for the
cause, look for something, usually earlier in
time, which is abnormal or an interference in
the sense that it is not present when things
are as usual
 NOTE:
 Standard & habitual feature
(background condition)
 Deviation (candidate condition)
 ―Cone of Causation‖
 An infinite number of events, each
of which is a necessary condition
of the given event and so, as much
as any others, is its cause.
 Any event has a number of
simultaneous conditions, the series
fans out as we go back in time.
 JUSTICE CARDOZO: ―Net of Causation‖
 Trace the final cause
2. POLICY TEST
 The law, as a matter of policy, may limit the
liability of the defendant to certain
consequences of his action
 If the damage/injury to the plaintiff is
beyond the scope/limit of the liability fixed
by law, the defendant’s conduct cannot be
considered the proximate cause of the
damage
DIFFERENT CAUSE-IN FACT TESTS:
SINE QUA NON TEST (BUT-FOR TEST)
 If the first object had not been, the second never had existed.
 Defendant’s conduct is the cause-in-fact of the injury.
SUBSTANTIAL FACTOR TEST
 The negligent conduct is the cause-in-fat of the damage if it was
a substantial factor in producing the injuries.
 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/preceded the damage.
 If the accident would not have occurred has there been no
negligence on the part of the defendant, the defendant’s conduct
is a substantial damage/injury.
 TEST when there are concurrent causes:
o When are harms attributable to the defendant whose
own actions are combined with those of other persons
and natural events?
NECESSARY ELEMENT OF SUFFICIENT SET (NESS) TEST
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 The negligent act or omission is a cause-in-fact damage if it is a
necessary element of a sufficient set.
 TEST: whether a particular condition qualifies as a casually
relevant factor will depend on whether it was necessary to
complete a set of conditions jointly.
 A condition contributed to some consequence IF AND ONLY
IF it was necessary for the sufficiency of a set of existing
antecedent conditions that was sufficient for the occurrence of
the consequence
 Requires each element of the applicable causal generalization, in
both the ANTECEDENT (if part) and the CONSEQUENT (then
part) must have been IN ACTUAL EXISTENCE (concretely
instantiated) on the particular occasion.
 A condition was a cause under the NESS Test if it was necessary
for the sufficiency of any actual sufficient set, even if, due to
other DUPLICATIVE (actually sufficient) or PREEMPTED
(would have been sufficient) set of conditions, it was not
necessary in the circumstances for the consequences.
 NECESSARY CONDITION
 Circumstance in whose absence the event cannot
occur
20
  Its non-existence ensures in the same sense that its
effect do not exist.
 Integration of:
o Necessary-condition test
o Independent-sufficient-condition test
 SUFFICIENT CONDITION
 A circumstance in whose presence the event must
occur
 The existence of the cause ensures that its effect also
exists
 DUPLICATIVE CAUSATION
 Occurs when 2 or more causal sets operate
simultaneously to produce the effect
 Effect is overdetermined.
 PRE-EMPTIVE CAUSATION
 Occurs when, though coming about first in time, one
causal set trumps another, potential set lurking in the
background
 Causal potency of the latter is frustrated for a
necessary condition for the sufficiency of any set of
actual antecedent conditions is that the injury would
not have occurred already as a result of other actual
conditions outside the set
 MULTIPLE CAUSATION
 Arises where in addition to mere background
conditions, there is more than one candidate condition
competing for the title ―cause‖ of the event.
 Can also occur within the confines of a single causal
set
 Occurs when there are a number of candidate
conditions (deviations from the norm), which, taken
one at a time, would not in fact have been sufficient to
complete the set in conjunction only with the
background conditions.
DIFFERENT POLICY TESTS:
1. FORESEEABILITY TEST
2. NATURAL AND PROBABLE CONSEQUENCE TEST
3. NATURAL AND ORDINARY OR DIRECT
CONSEQUENCES TEST
4. HINDSIGHT TEST
5. ORBIT OF RISK TEST
6. SUBSTANTIAL FACTOR TEST
FORSESIGHT PERSPECTIVE
 Defendant NOT liable if unforeseen consequence of act.
 Liability limited within the risk created by defendant’s act.
 Whether the chain of events-in-fact occurred was
sufficiently ―foreseeable‖, ―natural‖ or ―probable‖ at the
outset for the defendant to be held liable for the ultimate
harm that ensued, assuming that causation-in-fact can be
established.
DIRECTNESS PERSPECTIVE
 Defendant liable for damages that are beyond the risk.
 Those which follow in the sequence from the effect of the
defendant’s act upon conditions existing and forces already
in operation at the time, without the intervention of any
external forces, which come into active operation later.
 Starts with the injury and works back towards the wrongful
action of the defendant, seeking to determine whether any
act of a third party/plaintiff, or any event, severed the
causal connection between the harm and the defendant’s
wrongful conduct.
 Whether, when all the evidence is in, it is permissible to
say that the defendant ―did it‖, i.e. brought about by the
plaintiff.
 Principle of Civil Liability: A man must be considered to
be responsible for the probable consequences of his act.
TEST IN THE PH:
 All cause-in-fact test applies
 Policy test
o 1889 Civil Code – foreseeability required
o NCC:
ART. 2202. In crimes and quasi-delictsw, the
defendant shall be liable for all damages which are
the natural 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.
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.
 ―Natural and Probable‖
o Causality – that the damage would not have resulted
without fault/negligence of the defendant
o Adequacy – the fault of the defendant would normally
result in the damage suffered by the obligee
 Emotional distress – with liability for damages
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 Indirect damages – defendant liable not only to the person to
whom the negligent act was directed but even to third persons
o EX: those dependent for support to injured party
CAUSE vs. CONDITION
 AQUINO: not practicable to distinguish.
 Types of dangerous conditions:
(1) Those inherently dangerous
 Those that retain their potential energy in
full, even if they are stored/handled with
utmost care, the smallest application of force
or small change in conditions can release or
otherwise set in motion large forces that can
cause harm
 Potential for danger remains great even if its
possibility is low.
(2) Those where a person places a thing which is not
dangerous in itself in a dangerous position
 People’s right of way not recognized
 Placing objects in unstable positions
21
 (3) Those involving products and other things which
are dangerous because they are defective
 Negligently/erroneously
produced/constructed
EGG-SKULL / THIN SKULL RULE
 A tortfeasor whose act, superimposed upon a prior latent
condition, results in an injury, may be held liable for damages.
 Tortfeasor is required to take the victim (plaintiff) as he finds
him.
 Even if injury suffered is greater than the usual
EFFICIENT INTERVENING CAUSE
 One that destroys the causal connection between the negligent
act and injury and thereby negatives liability
 ―NOVUS ACTUS INTERVIENS‖
 The proximate cause and the first cause too remote, where the
chain of events is so broken that they become independent and
the result cannot be said to be the consequence of the primary
cause
 Equivalent to PRE-EMPTIVE CAUSE
 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
 Test of sufficiency of intervening cause:
o Nature and manner in which it affects the continuity of
operation of the primary cause or the connection
between it and the injury
o New and independent, not under control of the
original wrongdoer, or which by the exercise of
reasonable foresight and diligence, he should have
anticipated and guarded against it
o Break the continuity
 When cause NOT intervening cause:
o Cause already in operation at the time the negligent
act is committed
o NO breaking chain of causation
 Negligence of the Defendant
o EIC if the plaintiff may be negligent BUT the
defendant’s negligence pre-empted the effect of such
negligence.
 Foreseeable Intervening Cause
o NOT EIC
o Why? Failure to guard against it
 Medical treatment as intervening cause
o 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.
o Additional harm:
(1) A part o the original injury;
(2) The natural and probable consequences of
the tortfeasor’s original negligence; ir
(3) The nominal incidence of medical care
necessitated by the tortfeasor’s original
negligence
o EIC if original tortfeasor is NOT liable or a
circumstance that mitigates liability depending on the
circumstance if the injured failed to exercise
reasonable care in securing the services of a competent
physician/surgeon.
o UNFORESEEN and UNEXPECTED act/cause
 If the effects of the actor’s negligent conduct
actively and continuously operate to bring
about harm to another, the fact that the
active and substantially simultaneous
operation of the effects of a 3rd person’s
innocent, tortious or criminal act is also a
substantial factor in bringing about the
harm, does NOT protect the actor from
liability
 The intervention of an unforeseen and
unexpected cause is NOT sufficient to
relieve a wrongdoer from consequences of
negligence if each negligence directly and
proximately cooperates with the independent
cause in the resulting injury
 Defendant is liable if it combines with
another independent or intervening cause
and even if the injury would NOT have
occurred without such other cause.
 Duplicative
 Merely aggravated
 Part of causal set
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
a. Plaintiff’s negligence is the cause:
 NO causal set/chain
 Pre-emptive negligence
b. Compound causes
 Duplicative
 NO recovery
 Concurring proximate cause
c. Part of the same causal set
 Plaintiff’s negligence NOT sufficient to
cause the injury while defendants’ the same
TORTS AND DAMAGES by TIMOTEO B. AQUINO
as well
 Determination of proximate cause based on
degree of participation
d. Defendant’s negligence is the only cause
 Defendant liable but may be mitigated if
plaintiff aggravated/increased resulting
damage/injury
 CONTRIBUTORY NEGLIGENCE RULE /
DOCTRINE OF AVOIDABLE
CONSEQUENCES
DOCTRINE OF LAST CLEAR CHANCE
a. PREVAILING VIEW: defendant liable
 The person who has the last fair chance to avoid the
impending harm and fails to do so is chargeable with
the consequences without reference to the prior
negligence of the other party
b. Minority View: defendant NOT liable
 Allocate risks among the members of society
c. Third View: DLCC – a rule/phase of proximate cause
 No longer applicable if the force created by the
plaintiff’s negligence continues until the happening of
the injurious event
22
  COMPARATIVE NEGLIGENCE RULE

 NOT applicable in the ff:

o Only defendant negligent
o Defendant required to act instantaneously
o Defendant’s negligence – concurrent cause still in
operation
o Action based on contract
o Prior fraud/negligent act

TORTS AND DAMAGES by TIMOTEO B. AQUINO

23
 CHAPTER 8
HUMAN RELATIONS:
INTENTIONAL TORTS
 Torts intentional in nature
 Torts involving malice or bad faith
General Concepts
1. INTENT
 The actor desires to cause the consequences which are
susbstantially certain to result from it
 ELEMENTS:
o It is a state of mind;
o About consequences of an act/omission and NOT
about the act itself; and
o It extends NOT only to having in the mind a
purpose (or desire) to bring about given
consequences but also to having in mind a belief
(or knowledge) that given consequences are
substantially certain to result from the act
 PROF. JOHN FINNIS: the means
employed – the act itself – is included
in intent
 MANIFESTATION
o Malice
o Bad faith
o Fraud
 Specific Content of Intent: MALICE
o Involves a desire to cause unjustifiable harm
o Generally NOT necessarily a specific type of
harm BUT may be CONTENT SPECIFIC
o EX: Malicious prosecution
 Activated by an inexcusable intent to
injure, oppress, vex, annoy, or
humiliate
o EX: Interference in Contract
 If the person is used for the indirect
purpose of injuring the plaintiff or
benefitting the defendant at the expense
of the plaintiff – MALICIOUS!
2. NEGLIGENCE
 Foreseeability of the risk
 NOT certainty of the harm
 Knowledge short of substantial certainty
 DIFFERENCE with intent: matter of degree
o Point where the known danger ceases to be
foreseeable risk which a reasonable person would
avoid and becomes in the mind of the actor a
substantial certainty
3. INTENTIONAL TORT
 Includes a deliberate adoption of a course of action or
means which is wrongful in relation to the
plaintiff/adoption of a course of action in order to cause a
harmful end
o Even if the same was not done for one own’s
benefit
o End may not be wrongful under normal
circumstances by the wrongful means employed
makes it wrongful and/or vice versa
4. GOOD FAITH
 State of mind which is manifested by the acts of the
individual concerned consisting of the intention to abstain
from taking an unconscionable and unscrupulous advantage
of another
 PRESUMED
5. BAD FAITH
 Does NOT simply connote bad judgment or simple
negligent
 Involves a dishonest purpose or some moral obloquy and
conscious doing of a wrong, a breach of known duty to
some motives or interest or ill will that partakes the nature
of fraud
6. MALICE
 Connotes ill will/spite and speaks NOT in response to duty
 Implies an intention to do ulterior and unjustifiable harm
 Bad faith / bad motive
7. FRAUD
 All kinds of deception – whether through insidious
machination, manipulation, concealment or
misrepresentation – that would lead an ordinarily prudent
person into error after taking the circumstances into
account
 Involves the deliberate intention to cause
damage/prejudice, the voluntary execution of a wrongful
act, or a willful omission, knowing and intending the
effects which naturally and necessarily arise from such
omission.
Chapter on Human Relations
 Formulated some basic principles that are to be observed
for the rightful relationship between human beings and for
the stability of social order
 To draw the spirit of the law
 Designed to indicate certain norms that spring from the
fountain of good conscience
 Guides for human conduct
 Run as golden threads through society to the end that law
may approach its supreme ideal, which is the sway and
dominance of justice
 Justice
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 Equity
 Democracy
 Need to exalt human dignity
 The legal bedrock for the award of damages to a party who
suffers damage whenever one commits an act in violation
of some legal provision, or an act which though not
constituting a transgression of positive law, nevertheless
violates certain rudimentary rights of the party aggrieved
 A primordial limitation on all rights
 There is NO WRONG WITHOUT A REMEDY. – LEGAL
RIGHT
o Damage essential element of the cause of action
o Good faith NOT necessarily an excuse
CATCH-ALL PROVISIONS:
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,
AND OBSERVE HONESTY AND GOOD FAITH.
ARTICLE 20. EVERY PERSON WHO, CONTRARY TO LAW,
WILFULLY OR NEGLIGENTLY CAUSES DAMAGE TO
24
ANOTHER, SHALL INDEMNIFY THE LATTER FOR THE  ―Every imaginable wrong is compensable in this jurisdiction.‖
SAME.  ELEMENTS:
1. There is an act which is legal.
ARTICLE 21. ANY PERSON WHO WILFULLY CAUSES 2. The act is contrary to morals, good custom, public
LOSS OR INJURY TO ANOTHER IN MANNER THAT IS order, or public policy; and
CONTRARY TO MORALS, GOOD CUSTOMS OR PUBLIC 3. The act is done with intent to injure.
POLICY SHALL COMPENSATE THE LATTER FOR THE
DAMAGE. a. Broad coverage
 Breach is self-evident especially if there is fraud,
 ART. 20 pervades the entire legal system and renders it oppression, deceit, abuse of power, or confidence, and
impossible that a person who suffers damage because of another other human follies
has violated some legal provision, should find himself without  CASE-TO-CASE BASIS
injury. b. Rationale:
 ART. 19 declares a principle of law: abuse of right  Every good law draws its breath of life from morals.
 ART. 21 gives flesh to its provisions.  A prudent earnest of justice in the face of the
impossibility of enumerating one by one, all wrongs
ABUSE OF RIGHT which cause damage.
 Moral law and laws of the State govern human aims
 Elements of cause of action: and conduct which constitute human society itself.
1. There is a legal right or duty.  Essence of modern culture: the coincidence of the law
2. The legal right or duty is exercised in bad faith. with moral law
3. The exercise is for the sole intent of prejudicing or
injuring another. (1) BREACH OF PROMISE TO MARRY
 Concept:  If per se, NOT actionable!
 the rule allowing recovery ABUSE OF RIGHT is a  Actionable in the ff. circumstances:
departure from the traditional view that a person is o Cases where there was financial damage
NOT liable for damages resulting from the exercise of o Social humiliation was caused to one of the
one’s right parties
 QUI IURE SUO UTITUR NEMINEM LAEDIT. o Where there was moral seduction
 Honeste vivere, alterum non laedere, jus suum cuique  Criminal / moral seduction
tribuere.  Deceit
 In civilized society, men must be able to assume that  Enticement
others will do them no intended injury – that others  Superior power
will commit NO internal aggressions upon them; that  Abuse of confidence
their fellowmen, when they act affirmatively will do  Mere sexual intercourse – NOT a basis for recovery
so with due care which the ordinary understanding and  Criminal seduction: ART. 337-338 of the RPC
moral sense of the community exacts and that those  in pari delicto rule inapplicable where defendant is guilty
with whom they deal in the general course of society of moral seduction.
will act in good faith.
 A person is protected only if he acts in legitimate (2) SEDUCTION AND SEXUAL ASSAULT
exercise of his right with prudence and good faith.


TORTS AND DAMAGES by TIMOTEO B. AQUINO

NO RIGID TEST!  By itself, an act contrary to morals, good customs, and
public policy
 NOTE: examples (with abuse of right): p. 396-404  Defendant liable if he employed the ff. in successful having
 Creditors sexual intercourse with another:
 Principal o deceipt
 Agents o enticement
 Public officers o superior power
 Abuse of court processes o abuse of confidence
 Abuse of right by contracting party  Gender is NOT an issue.
 Schools
 NOTE: examples (without abuse of right): p. 404-409  SEXUAL ASSAULT – RPC
 Absolute rights o Rape
 Rights of the corporation and its officers and directors o Acts of lasciviousness
 Exercise of rights included in ownership o Seduction
 Right of schools, teachers, and administrator
(3) DESERTION BY A SPOUSE
 Right to sue
 Contracting parties
 Liable for damages!
 A willful infliction of injury upon plaintiff’s feelings –
ACTS CONTRA BONUS MORES
ART. 2219(10)
General concepts
(4) TRESPASS AND DEPRIVATION OF PROPERTY
 ART. 21 – breach of morals, good customs, public order, public
1) Trespass to and/or deprivation of REAL property
policy.
25
  Tort committed when a person unlawfully invades the - Absence of malice = Good faith
real property of another - Absence of malice may even be based on
 RPC mistake of fact
 NCC – Art. 451, 448, 456, 2176  PROBABLE CAUSE
 May be in good/bad faith - The existence of such facts and
circumstances as would excite the belief
2) Trespass to PERSONAL property of the prosecutor that the person charged
 theft/robbery is guilty of the crime for which he is
 extends to all cases where a person is deprived of his prosecuted.
personal property even in the absence of criminal  NOTE: presumption of regularity
liability b. ACQUITTAL
 EX: disconnection of electricity/gas service – if - A criminal information is filed in court and final
unjustified – ART. 21 judgment is rendered dismissing the case against
the accused
(5) ABORTION AND WRONGFUL DEATH - ―prior acquittal‖ – may include dismissal by
prosecutor after preliminary investigation
 RPC – Art. 259
o Doctor who performs illegal abortion – liable c. CONTROL OF PROSECUTOR
criminally - Full control of litigation
o Even parents may be liable - NO grant of immunity to persons who misuse
their right to instigate criminal actions
 NOTE: NCC - Art. 40
 Other Bases of Liability for Abuse of Process:
(6) ILLEGAL DISMISSAL o Action for Damages (Art. 2176, NCC)

 Employer-employee relationship (8) PUBLIC HUMILIATION

 Observe Art. 21, 19, and 1701 of NCC.  Damages may be awarded.
 ART 170 prohibits acts of oppression by either capital /  EX: slapping in public
labor against the other  EX: hitting on the face
 EX: false imputation of misdeed to justify dismissal that is  SLANDER BY DEED (ART. 359, RPC)
done abusively o Committed by any person who performs an act
 EX: abuse of right when the ground relied upon is a that costs dishonor, discredit, or contempt upon
figment of employer’s imagination the offended party in the presence of other
person/s
(7) 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 proceedings in favor of the defendant therein.
 Gist of the action: putting of legal processes in force,
regularly, for the mere purpose of vexation or injury

TORTS AND DAMAGES by TIMOTEO B. AQUINO

 The action which is terminated should be one begun in
MALICE without probable cause to believe the charges can
be sustained and is instituted with the intention of injuring
another and which terminates in favor of the person
prosecuted.
 NCC – Art. 19, 20, 21, 26, 32, 33, 35, 2217, 2219(8)

 Elements of Cause of Action:

1. The fact:
a. of the prosecution
b. that the defendant was himself the
prosecutor
c. 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.

a. MALICE
- an act with inexcusable intent to injure,
oppress, vex, annoy, or humiliate
- the presence of probable cause signifies, as a
legal consequence, the absence of malice.
26
 CHAPTER 9  A remedy available to any person whose right to
privacy in life, liberty, or security is threatened by an
HUMAN DIGNITY unlawful act or omission of a public official or of a
private individual or entuty engaged in the gathering,
ARTICLE 26. EVERY PERSON SHALL RESPECT THE collecting, or storing data or information regarding the
DIGNITY, PERSONALITY, PRIVACY AND PEACE OF MIND person, family, home, and correspondence of the
OF HIS NEIGHBORS AND OTHER PERSONS. THE aggrieved party
FOLLOWING AND SIMILAR ACTS, THOUGH THEY MAY 7) Data Privacy Act of 2012 (RA 10173)
NOT CONSTITUTE A CRIMINAL OFFENSE, SHALL
PRODUCE A CAUSE OF ACTION FOR DAMAGES, d. Facets of Privacy
PREVENTION AND OTHER RELIEF: (1) Privacy in the Physical Sense
(1) PRYING INTO THE PRIVACY OF ANOTHER'S  Denotes seclusion, solitude, security, or bodily
RESIDENCE; integrity
(2) MEDDLING WITH OR DISTURBING THE (2) Privacy in an Informational Sense
PRIVATE LIFE OR FAMILY RELATIONS OF  Denotes confidentiality, secrecy, or anonymity, esp.
ANOTHER; with respect to correspondence, conversation, and
(3) INTRIGUING TO CAUSE ANOTHER TO BE records
ALIENATED FROM HIS FRIENDS; (3) Proprietary Privacy
(4) VEXING OR HUMILIATING ANOTHER ON  Limits the use of a person’s name, likeness, identity,
ACCOUNT OF HIS RELIGIOUS BELIEFS, LOWLY or other attributes of identity and exclusive possession
STATION IN LIFE, PLACE OF BIRTH, PHYSICAL (4) Privacy in a decisional sense
DEFECT, OR OTHER PERSONAL CONDITION.  Denotes liberty, freedom, choice, or autonomy in
decision making about sex, reproduction, marriage,
I. PRIVACY family, and health care

1. Constitutional Right to Privacy  Any law restricting/intruding into such private matters can be
considered as violation of SUBSTANTIVE DUE PROCESS for
a. Scope – Bill of Rights lack of a valid subject.
1) Due process clause (Sec. 1)
2) Protection of the right against unreasonable searches e. Basis of Liability for Damages
and seizures (Sec. 2)  ART. 32, NCC
3) Right to privacy of one’s communication and
correspondence (Sec. 3(1)) CASE:
4) Right against self-incrimination (Sec. 17) Blas Ople v. Ruben Torres
5) Liberty of abode and travel (Sec. 6)
6) Right to associations (Sec. 9) 2. Violation of the Right to Privacy as an Independent
Tort
b. Reasonable Expectation of Privacy
 US SC: constitutional right in the bedroom  Dean Prosser: 4 types of invasion:
o Right of every citizen to be free from (1) Intrusion upon the plaintiff’s seclusion or solitude or into
government intrusion into the most intimate his private affairs
family matters (2) Public disclosure of embarrassing private facts about the


TORTS AND DAMAGES by TIMOTEO B. AQUINO

RIGHT TO BE LET ALONE plaintiff
 ―zones of privacy‖ (3) Publicity which places the plaintiff in false light in the
public eye
 Reasonableness – 2-part test: (4) Appropriation for the defendant’s advantage of plaintiff’s
1) Whether by his conduct, the individual has likeness or name
exhibited an expectation of privacy
2) Whether this expectation is one that society  Persons Entitled to Relief –
recognizes as reasonable  General Rule: NATURAL PERSONS
 Other factors considered:  Exception: CORPORATIONS entitled to right against
o Customs unreasonable searches and seizure
o Physical surroundings  NOTE: PURELY PERSONAL RIGHT
o Practices of a particular activity o can be subject to WAIVER
o Effect of Death – right ceases
c. Protection of Privacy under Rules and Statutes BUT heirs can enter into LICENSING
1) Revised Penal Code AGREEMENT for the depiction of the life of the
a. Violation of secrets by an officer deceased
b. Revelation and trade and industrial secrets THUS, if unauthorized – DAMAGES!
c. Trespass to dwelling
2) Anti-Wire Tapping Law  Rationale:
3) Secrecy of Bank Deposits Act PRIVACY
4) IP Code o Protects solitude necessary for creative thought.
5) Rules of Court o Allows the independence that is part of raising the
6) Rules on Writ of Habeas Data family.

27
 o Protects our right to be secure in our homes and
possessions, assured that government cannot come
barging in.
o RIGHT TO SELF-DETERMINATION
o What makes us civilized!
o Central to dignity and individuality
o Autonomy
o Sense of being free from outside intrusion
NATURAL LAW JUSTIFICATION
o Right to live as one will
o Each individual instinctively resents any
encroachment by the public upon his rights
which are of a private nature as he does the
withdrawal of those of his rights which are
of a public nature.
LIBERTARIAN JUSTIFICATION
o SELF-REGARDING CONDUCT
- A conduct that neither violates any
specific duty to the public nor
occasions perceptible hurt to any
assignable individual except himself
- People should be left alone if the
conduct is self-regarding.
- The only part of conduct of any one,
for which he is amenable to society, is
that which concerns others.
- In the part which merely concerns
himself, his independence is, of right,
absolute.
- Over himself, over his own body and
mind, the individual is sovereign.
REJECTION OF THE RIGHT TO PRIVACY
o Privacy is an unnecessary imposition, an
eccentricity that is barely pardonable or, at
best, an esoteric Western afterthough
smacking of legal trickery.
3. Standard
 That of a person of ordinary sensibilities
 Relative to the customs of time and place
 Determined by the norm of an ordinary
person
 Injury is MENTAL and SUBJECTIVE.
4. Classification of Tort of 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
RIGHT TO PRIVACY
- The right to be let alone, or to live a life of seclusion, to be free
from unwarranted publicity, or to live without unwarranted
interference by the public about matters with which the public is
not necessarily concerned, or to be protected from any wrongful
intrusion into an individual’s private life which would outrage or
cause mental suffering, shame or humiliation to a person of
ordinary sensibilities
INTRUSION
 Tort protects a person’s sense of locational and psychological
privacy
 Right to define one’s circle of intimacy
 Loss of control over which ―face‖ one puts on may result in
literal loss of self-identity and is humiliating beneath the gaze of
those whose curiosity treats a human being as an object.
 Forms of intrusion:
1. Prying into the privacy of another’s residence (ART.
26)
2. Criminal trespass (ART. 280, RPC)
3. Peeping tom
 Intrusion in Public Places
o GEN. RULE: NO INVASION
o EXCEPTION: should not constitute harassment or
overzealous shadowing
 Persons Protected: EVERYONE
o RIGHT TO PRIVATE RETREATS
 Intrusion and Freedom of the Press
o Newsmen – NO immunity from liability
o Freedom of the press is NOT a license to trespass or to
intrude by electronic means into precincts of another’s
home or office
o NOTE: ―of public interest‖
 Intrusion in Administrative Investigation
o NO INTRUSION
o SCHOOLS
 GEN. RULE: authority of the school is co-
extensive with its territorial jurisdiction or
its school grounds,so that any action taken
for acts committed outside the school
premises should, in general, be left to the
police authorities, the courts of justice, and
the family concerned
 EXCEPTIONS:
1. in cases of violations of school policies
or regulations occurring in connection
with a school-sponsored activity off-
campus; OR
2. in cases where the misconduct of the
student involves his status as a student
TORTS AND DAMAGES by TIMOTEO B. AQUINO
or affects the good name or reputation
of the school (ANGELES v. SISON)
In these cases, the school retains its power to
compel its students in or off-campus to a
norm of conduct compatible with their
standing as members of the academic
community.
 Intrusion in Common Carriers
o Allowance must be given to the reliance that should be
reposed on the sense of responsibility of all the
passengers in regard to their common safety and their
right to privacy. (NOCUM v. LAGUNA TAYABAS
BUS CO.)
o Duty to inspect can be made an excuse for mischief
and abuse.
 Rules of propriety and consti rights of
passenger
WIRE-TAPPING AND OTHER SIMILAR MEANS
RA 4200 (1965) – AN ACT TO PROHIBIT AND PENALIZE
WIRETAPPING AND OTHER RELATED VIOLATIONS OF
28
THE PRIVACY OF COMMUNICATION, AND FOR OTHER
PURPOSES
Sec. 1. UNLAWFUL acts:
 Any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication
or spoken word by using a device – Dictaphone or
dictagraph or Dictaphone or walkie-talkie or tape recorder,
or however otherwise described.
 Any person, be he a participant or not in the act(s)
penalized, to knowingly possess any tape record, wire
record, disco record, or any other such record, or copies
thereof, of any communication or spoken word secured …
on the manner prohibited by this law; or to replay the same
for any other person(s); or to communicate the contents
thereof, either verbally or in writing, or to furnish
transactions thereof, whether complete or partial, to any
other person; PROVIDED: that the use of such record or
any copies thereof as evidence in any civil, criminal
investigation or trial of said offense in Sec. 3 shall NOT be
covered.
Sec. 2. PENALTY:
 Imprisonment: 6 months – 6 years
 Perpetual disqualification from public office, if public
official
 Deportation proceedings, if alien
Sec. 3. EXCEPTION:
 Any peace officer, authorized by a written order of the
court, to execute any of the acts declared to be unlawful, in
cases involving the crimes of:
o Treason
o Espionage
o Provoking war
o Disloyalty in case of war
o Piracy
o Mutiny in the high seas
o Rebellion
o Conspiracy to commit rebellion
o Proposal to commit rebellion
o Inciting to rebellion
o Sedition
o Conspiracy to commit sedition
o Inciting to sedition
o Kidnapping
o Violations of CA 616 (espionage and other
offenses against national security)
 Written order shall only be granted/issued upon written
application and the examination under oath or affirmation
of the applicant and the witness he may produce and a
showing:
1. That there are reasonable grounds to believe that
any of the crimes enumerated has been
committed or is being committed, or is about to
be committed: PROVIDED, however, that in
cases of …
a. Rebellion
b. Conspiracy to commit rebellion
c. Proposal to commit rebellion
d. Inciting to rebellion
e. Sedition
f. Conspiracy to commit sedition
g. Inciting to sedition
… such authority shall be granted only upon prior
proof that a rebellion or acts of sedition have
actually been or is being committed;
2. That there are reasonable rounds to believe that
the evidence will be obtained essential to the
conviction of any person for, or to the solution of,
or to the prevention of, any such crimes; and
3. That there are no other means readily available
for obtaining such evidence.
 Order shall specify:
1. Identity of person/s whose communications,
conversations, discussions, or spoken words are
to be overheard, intercepted, or recorded, and in
the case of telegraphic or telephonic
communications, the telegraph line or the
telephone number involved and its location
2. The identity of the peace officer authorized
3. The offense/s committed/sought to be presented
4. The period of the authorization
- Which shall not exceed 60 days from
the date of the issuance of the order,
UNLESS extended or renewed by the
court upon being satisfied that such
extension/renewal is in the public
interest
 48 hours after the expiration of the period – all
recordings shall be deposited with the court in a sealed
envelope/package with affidavit stating:
1. No. of recordings made
2. Date covered by each
3. Time covered by each
4. No. of tapes, discs, or records included in the
deposit
5. Certifying that no duplicates/copies have been
made, or if so made, all are included in the
deposit.
 Envelop/package deposited shall NOT be opened, or
the recordings replayed, or used in evidence, or their
contents revealed EXCEPT upon order of the court,
which shall not be granted EXCEPT upon motion,
with due notice and opportunity to be heard to the
person/s whose conversation/communications have
TORTS AND DAMAGES by TIMOTEO B. AQUINO
been recorded.
 RTC within whose territorial jurisdiction the acts are
to be executed has jurisdiction.
Sec. 4. If obtained, unless authorized, such shall not be admissible in
evidence in any judicial, quasi-judicial, legislative, or administrative
hearing/investigation.
PD 55 – punishes unlawful telephone installations because they
deprive the lawful telephone users of telephones of the right to fll use
of the telephones and violates their right to privacy
RA 5733 – punishes registered ECEs who shall engage in illegal
wiretapping and/or the employment of electronics device in violation
of the privacy of another or in disregard of the privilege of private
communications system or device.
COMMUNICATION
- The act of sharing or imparting, as in a conversation
- The process by which meanings or thoughts are shared between
individuals through a common system of symbols (as language
signs or gestures)
- Verbal / Non-Verbal
- Written / Expressive
29

 Telephone extension devise – NOT contemplated/included
INTRUSION IN PUBLIC RECORDS
o Right of the people to information on matters of public
concern (SEC. 7, ART. III, CONSTI)
o Thus, NO INTRUSION.
o RA 6713 – CODE OF CONDUCT AND ETHICAL
STANDARDS FOR PUBLIC OFFICIALS
 SEC. 3 – there can be intrusion if personal
privacy is involved.
INTRUSION IN THE INTERNET
 RA 8792 – Electronic Commerce Act
SECTION 31. Lawful Access. - Access to an electronic file, or an
electronic signature of an electronic data message or electronic
document shall only be authorized and enforced in favor of the
individual or entity having a legal right to the possession or the use of
plaintext, electronic signature or file or solely for the authorized
purposes. The electronic key for identity or integrity shall not be
made available to any person or party without the consent of the
individual or entity in lawful possession of that electronic key.
SECTION 32. Obligation of Confidentiality. - Except for the
purposes authorized under this Act, any person who obtained access
to any electronic key, electronic data message or electronic
document, book, register, correspondence, information, or other
material pursuant to any powers conferred under this Act, shall not
convey to or share the same with any other person.
SECTION 33. Penalties. - The following Acts, shall be penalized by
fine and/or imprisonment, as follows:
a. HACKING OR CRACKLING with refers to
unauthorized access into or interference in a computer
system/server or information and communication system;
or any access in order to corrupt, alter, steal, or destroy
using a computer or other similar information and
communication devices, without the knowledge and
consent of the owner of the computer or information and
communications system, including the introduction of
computer viruses and the like, resulting in the corruption,
destruction, alteration, theft or loss of electronic data
messages or electronic documents shall be punished by a
minimum fine of One Hundred Thousand pesos (P
100,000.00) and a maximum commensurate to the damage
incurred and a mandatory imprisonment of six (6) months
to three (3) years;
b. PIRACY or the unauthorized copying, reproduction,
dissemination, or distribution, importation, use, removal,
alteration, substitution, modification, storage, uploading,
downloading, communication, making available to the
public, or broadcasting of protected material, electronic
signature or copyrighted works including legally protected
sound recordings or phonograms or information material on
protected works, through the use of telecommunication
networks, such as, but not limited to, the internet, in a
manner that infringes intellectual property rights shall be
punished by a minimum fine of one hundred thousand
pesos (P 100,000.00) and a maximum commensurate to the
damage incurred and a mandatory imprisonment of six (6)
months to three (3) years;
c. Violations of the Consumer Act of Republic Act No. 7394
and other relevant to pertinent laws through transaction
covered by or using electronic data messages or electronic
documents, shall be penalized with the same penalties as
provided in those laws;
d. Other violations of the provisions of this Act, shall be
penalized with a maximum penalty of P1,000,000.00 or 6
years imprisonment.
 RATIONALE: privacy protects us from being misdefined
and judged out of context since there is NO real wall
between public and private in cyberspace.
VOYEURISM
RA 9995 – ANTI-PHOTO AND VIDEO VOYEURISM ACT
OF 2009
Date of Effectivity: February 10, 2010
"PHOTO OR VIDEO VOYEURISM"
 the act of taking photo or video coverage of a person or
group of persons performing sexual act or any similar
activity or of capturing an image of the private area of a
person or persons without the latter's consent, under
circumstances in which such person/s has/have a
reasonable expectation of privacy,
 the act of selling, copying, reproducing, broadcasting,
sharing, showing or exhibiting the photo or video
coverage or recordings of such sexual act or similar
activity through VCD/DVD, internet, cellular phones
and similar means or device without the written consent
of the person/s involved, notwithstanding that consent
to record or take photo or video coverage of same was
given by such persons.
SECTION 4. Prohibited Acts. - It is hereby prohibited and declared
unlawful for any person:
a. To take photo or video coverage of a person or group of
persons performing sexual act or any similar activity or to
capture an image of the private area of a person/s such as
the naked or undergarment clad genitals, public area,
buttocks or female breast without the consent of the
person/s involved and under circumstances in which the
person/s has/have a reasonable expectation of privacy;
b. To copy or reproduce, or to cause to be copied or
reproduced, such photo or video or recording of sexual act
or any similar activity with or without consideration;
c. To sell or distribute, or cause to be sold or distributed, such
TORTS AND DAMAGES by TIMOTEO B. AQUINO
photo or video or recording of sexual act, whether it be the
original copy or reproduction thereof; or
d. To publish or broadcast, or cause to be published or
broadcast, whether in print or broadcast media, or show or
exhibit the photo or video coverage or recordings of such
sexual act or any similar activity through VCD/DVD,
internet, cellular phones and other similar means or device.
The prohibition under paragraphs (b), (c) and (d) shall apply
notwithstanding that consent to record or take photo or video
coverage of the same was given by such person/s. Any person who
violates this provision shall be liable for photo or video voyeurism as
defined herein.
SECTION 5. Penalties. - The penalty of imprisonment of not less
that 3 years but not more than 7 years and a fine of not less than
P100,000.00 but not more than P500,000.00, or both, at the discretion
of the court shall be imposed upon any person found guilty of
violating Section 4 of this Act.
If the violator is a juridical person, its license or franchise shall be
automatically be deemed revoked and the persons liable shall be the
officers thereof including the editor and reporter in the case of print
30
media, and the station manager, editor and broadcaster in the case of
a broadcast media.
If the offender is a public officer or employee, or a professional,
he/she shall be administratively liable.
If the offender is an alien, he/she shall be subject to deportation
proceedings after serving his/her sentence and payment of fines.
SECTION 6. Exemption. - Nothing contained in this Act, however,
shall render it unlawful or punishable for any peace officer, who is
authorized by a written order of the court, to use the record or any
copy thereof as evidence in any civil, criminal investigation or trial of
the crime of photo or video voyeurism: Provided, That such written
order shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the
witnesses he/she may produce, and upon showing that there are
reasonable grounds to believe that photo or video voyeurism has been
committed or is about to be committed, and that the evidence to be
obtained is essential to the conviction of any person for, or to the
solution or prevention of such, crime.
SECTION 7. Inadmissibility of Evidence. - Any record, photo or
video, or copy thereof, obtained or secured by any person in violation
of the preceding sections shall not be admissible I n evidence in any
judicial, quasi-judicial, legislative or administrative hearing or
investigation.
PUBLICATION OF PRIVATE FACTS
 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
 ELEMENTS (US):
1. There must be public disclosure.
2. The facts disclosed must be a private fact.
3. The matter must be one which would be offensive and
objectionable to a reasonable person or ordinary
sensibilities.
 ELEMENTS (PH):
1. Publicity is given to any private or purely personal
information about a person
2. Without the latter’s consent
3. Regardless of WON such publicity constitutes a
criminal offense like libel or defamation, the
circumstance that the publication was made with
intent to gain or for commercial and business purposes
invariably serves to aggravate the violation of the right
 Publication of Public Facts and Libel – alternative reliefs under
the NCC
 NEWSWORTHINESS as DEFENSE:
 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 has become a ―public personage‖
 Enjoy a more limited right to privacy
 Actions subject to closer public scrutiny
 Passed into public domain, an appropriate
subject of expression and coverage by any
form of mass media
 To be liable, defendant must be guilty of knowing and
reckless disregard of the truth.
 OFFICIAL PROCEEDINGS
 RULE: If not confidential, publication is NOT a
tortious conduct.
 EXCEPTIONS: ART. 357, RPC – punishes any
reporter, editor, or manager of a newspaper, daily or
magazine, who shall publish facts connected with the
private life of another and offensive to the honor,
virtue, and reputation of said persons, even though
said publication be made in connection with or under
the pretext that it is necessary in the narration of any
judicial/administrative proceedings wherein such facts
have been mentioned.
 OFFICIAL FUNCTIONS
 Right to privacy belongs to the individual acting in his
private capacity and NOT a governmental agency or
officers tasked with, and acting in, the discharge of
public duties.
 NO violation of the right to privacy if it covers
performance of official functions
 To declare otherwise would be to clothe public
officials with an impregnable mantle of protection
against public scrutiny.
FALSE LIGHT
 Interest to be protected: interest of the individual in not being
made to appear before the public in an objectionable false light
or false position
 EX: media distorting news reports
 Alternative to defamation
o Gravamen: embarrassment of a person in being made
into something he is not.
o Statement must actually be made in public
o May still be liable even if the statements tell
something good about the plaintiff
 Fictionalized account of life
o May result in liability
COMMERCIAL APPROPRIATION OF LIKENESS
 To protect various aspects of an individual’s identity from
commercial exploitation:
1) Name
TORTS AND DAMAGES by TIMOTEO B. AQUINO
2) Likeness
3) Achievements
4) Identifying characteristics
5) Actual performances
6) Fictitious characters created by a performer
7) Phases and other things which are associated with an
individual
 Right is of special interest to CELEBRITIES.
1) Exploitation for profit
 Action to protect their right to publicity – protect economic
interest
 NAMES & LIKENESS – property which cannot be encroached
upon by another
 PERSONAL RIGHT!
 Exception: filming another’s life or life of deceased without his
consent or relative’s consent
 Policy considerations:
1) Right of publicity vindicates the economic interests of
celebrities, enabling those whose achievements have
imbued their identities with pecuniary value to profit
from their fame.
2) Right of publicity fosters the production of intellectual
and creative works b providing the financial incentive
31
 for individuals to expend the time and resources
necessary to produce them.
3) Right of publicity serves both individual and societal
interests by preventing what is regarded by our legal
tradition as wrongful misconduct: unjust enrichment
and deceptive trade practices
II. INTERFERENCE WITH FAMILY AND OTHER
RELATIONS
1. Alienation of Affection (ART. 26)
 Meddling of so-called friends who poison the
mind of one or more members of the family
against the other members
 Defendant’s acts were the controlling cause of the loss
of affection.
o Ill will or spite need not be shown.
d) Alienation of affection by non-relatives
 To deter pernicious meddling of ―so called friends‖
 Malice necessary!
 Must be the controlling cause!
3. Disturbing Family Relations
 Disruption of filial tranquility
o Liable for quasi-delict (ART. 2219)
III. VEXATION AND HUMILIATION

2. Alienation of Affection of Spouse (FC) 1. HUMILIATION ON ACCOUNT OF PERSONAL

 Obligation to live together, observe mutual love,
respect and fidelity, and render mutual help and
support (ART. 68, FC)
 Depriving one spouse of the affection, society,
companionship, and comfort of the other
 Adultery or deprivation of HH services NOT
necessary
 GIST; interference with one spouse’s mental
attitude toward the other and the conjugal
kindness of marital relations resulting in some
actual conduct which materially affects it
 Extends to all cases of wrongful interference in
the family affairs of others whereby one spouse
or to conduct himself/herself that the comfort of
married life is destroyed.
a) History
 Initially limited to loss of services but gradually
expanded to take in non-economic losses e.g. loss of
society and consortium
 Previously limited to husbands
b) Requirements
1) A valid marriage
2) Wrongful conduct by the defendant with the plaintiff’s
spouse
3) The loss of affection or consortium
CONDITION
 Religious freedom does not authorize anyone to heap obloquy
and disrepute upon another by reason of the latter’s religion.
 Social equality is NOT sought by the legal provision but DUE
REGARD for decency and propriety.
 Discrimination may result in:
- Emotional distress
- Sexual harassment
- Public humiliation
 Affects PERSONAL DIGNITY
2. INFLICTION OF EMOTIONAL DISTRESS
Requisites:
1) The conduct of the defendant was intentional or in
reckless disregard of the plaintiff.
2) The conduct was extreme and outrageous.
3) There was a causal connection between the
defendant’s conduct and the plaintiff’s mental distress.
4) The plaintiff’s mental distress was extreme and severe.
 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.
- Conduct is actionable if the recitation of the facts to an

TORTS AND DAMAGES by TIMOTEO B. AQUINO

4) A causal relation between the defendant’s conduct and average member of the community would arouse his
the deprivation of affection resentment against the actor and lead him/her to
5) That the spouses were happily married and a genuine exclaim ―OUTRAGEOUS!‖ as his/her reaction.
love and affection existed between them
 EMOTIONAL DISTRESS
 There must be active participation, initiative, or - Any highly unpleasant mental reaction e.g.
encouragement on the part of the defendant in causing o Extreme grief
one spouse’s loss of the other spouse’s affection for o Shame
liability to arise – EFFICIENT CAUSE. o Humiliation
o Embarrassment
c) Alienation of affection by in-laws o Anger
PRESUMPTION: o Disappointment
 They have acted with commendable motives and a o Worry
clear case of want of justification may be fully o Nausea
required to be shown before they should be held o Mental suffering
responsible. o Anguish
 The law has tender regard for the ties of kinship o Shock
subsisting between parent and child. o Fright
 Parent will only act for the best interest of the child. o Horror
 Right of the parent to advise son/daughter, in good o Chagrin
faith, even when it results in separation – NO RIGHT
OF ACTION  SEVERE EMOTIONAL DISTRESS
- Any type of severe and disabling emotional or mental
 Malice must be established. condition which may be generally recognized and
32
 diagnosed by professionals trained to do so, including 2) Favoring a male employee over female employee with respect to
PTSD, neurosis, psychosis, chronic depression, or promotion, training opportunities, study and scholarship grants
phobia solely on account of the sexes

 No reasonable person could be expected to endure it.  There are CRIMINAL and CIVIL LIABILITIES independent of
 Severity of the distress is an element of the cause of each other.
action, not simply a matter of damages.
 Prove more than mere worry, anxiety, vexation, RA 7277 – MAGNA CARTA FOR DISABLED PERSONS
embarrassment, or anger.
 A plaintiff is necessarily expected and required to be SECTION 32. Discrimination on Employment. – No entity, whether
handed to a certain amount of criticism, rough public or private, shall discriminate against a qualified disabled
language, and to occasional acts and words that are person by reason of disability in regard to job application procedures,
definitely inconsiderate and unkind. the hiring, promotion, or discharge of employees, employee
 NONETHELESS, an intentional tort to express an compensation, job training, and other terms, conditions, and
unflattering opinion and some safety valve must be privileges of employment. The following constitute acts of
left through which irascible tempers may blow off discrimination:
relatively harmless steam. a. Limiting, segregating or classifying a disabled job applicant in
such a manner that adversely affects his work opportunities;
 VEXATION b. Using qualification standards, employment tests or other
- An act of annoyance or irritation that causes distress selection criteria that screen out or tend to screen out a disabled
or agitation person unless such standards, tests or other selection criteria are
shown to be jobrelated for the position on question and are
EMOTIONAL DISTRESS DEFAMATION consistent with business necessity;
Personal in nature c. Utilizing standards, criteria, or methods of administration that:
A civil action filed by an 1) have the effect of discrimination on the basis of
individual to assuage the injuries disability; or
to his emotional tranquility due 2) perpetuate the discrimination of others who are subject
to personal attacks on his to common administrative control;
character d. Providing less compensation, such as salary, wage or other
forms of remuneration and fringe benefits, to a qualified
Reactive harm principle Relational harm principle
disabled employee, by reason of his disability, than the amount
Includes injuries to Includes harm to social
to which a non-disabled person performing the same work is
individual emotional relationships in the
entitled;
tranquility community in the form
e. Favoring a non-disabled employee over a qualified disabled
of defamation
employee with respect to promotion, training opportunities,
study and scholarship grants, solely on account of the latter’s
EMOTIONAL DISTRESS PARASITIC DAMAGES disability;
Depend on the existence of f. Re-assigning or transferring a disabled employee to a job or
another tort instead of an position he cannot perform by reason of his disability;
independent tort for intentional g. Dismissing or terminating the services of a disabled employee
affliction of emotional distress by reason of his disability unless the employer can prove that he
May still be abuse of right or act impairs the satisfactory performance of the work involve to the
contrary to morals prejudice of the business entities; Provided, however, That the

TORTS AND DAMAGES by TIMOTEO B. AQUINO

3. DISCRIMINATION
 Applicable laws:
1) Universal Declaration on Human Rights
2) International Convention on Economic, Social,
Cultural Rights
3) International Convention on the Elements of All
Forms of Racial Discrimination
4) Convention Against Discrimination in Education
5) Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation
6) Labor Code
7) Magna Carta for Disabled Persons
8) RA 8504 – liability for discrimination of AIDS
victims
9) RA 8972 – prohibits discrimination of solo parents
LABOR CODE
ART. 135 – discrimination against women
1) Payment of a lesser compensation including wage, salary, or
other form of remuneration and fringe benefits to a female
employee as against a male employee for work of value
employer first sought provide reasonable accommodations for
disabled persons;
h. Failing to select or administer in the effective manner
employment tests which accurately reflect the skills, aptitude or
other factor of the disabled applicant or employee that such test
purports to measure, rather than the impaired sensory, manual or
speaking skills of such applicant or employee, if any; and
i. Excluding disabled persons from membership in labor unions or
similar organization.
SECTION 34. Public Transportation. – It shall be considered
discrimination for the franchises or operators and personnel of sea,
land, and air transportation facilities to charge higher fare or to refuse
to convey a passenger, his orthopedic devices, personal effects, and
merchandise by reason of his disability.
SECTION 36. Discrimination on the Use of Public
Accommodations. –
(a) No disabled persons shall be discriminated on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages or accommodations of any
place of public accommodation by any person who owns, leases,
33
 or operates a place of public accommodation. The following
constitute acts of discrimination:
1) denying a disabled person, directly through
contractual, licensing, or other arrangement, the
opportunity to participate in or benefit from the goods,
services, facilities, privileges, advantages, or
accommodations of an entity by reason of his
disability;
2) affording a disabled person, on the basis of his
disability, directly or through contractual, licensing, or
other arrangement, with the opportunity to participate
in or benefit from a good, service, facility, privilege,
advantage, or accommodation that is not equal to that
afforded to other able-bodied persons;
3) providing disability, directly or through contractual,
licensing, or other arrangement, with a good, service,
facility, advantages, privilege, or accommodation that
is different or separate from that provided to other
able-bodied persons unless such action is necessary to
provide the disabled person with a good, service,
facility, advantage, privilege or accommodation, or
other opportunity that is as effective as that provided
to others;
For purpose of this section, the term individuals or class
individuals’• refers to the clients or customers of the
covered public accommodation that enters into the
contractual, licensing or other arrangement.
(b) Integrated Settings. - Goods, services, facilities, advantages, and
accommodations shall be afforded to an individual with a
disability in the most integrated setting appropriate to the needs
of the individual.
(c) Opportunity to Participate. - Not withstanding the existence of
separate or different programs or activities provided in
accordance with this section, an individual with a disability shall
not be denied the opportunity to participate in such programs or
activities that are not separate or different.
(d) Association. - It shall be discriminatory to exclude or otherwise
deny equal goods, services, facilities, advantages, privileges,
accommodations or other opportunities to an individual or entity
because of the known disability of an individual with whom the
individual or entity is known to have a relationship or
association.
(e) Prohibitions. - For purposes of this Section, the following shall
be considered as discriminatory:
1) the imposition or application of eligibility criteria that
screen out or tend to screen out an individual with a
disability or any class or individuals with disabilities
from fully and equally enjoying and goods, services,
facilities, privileges, advantages, accommodations,
unless such criteria can be shown to be necessary for
the provision of the goods, services, facilities,
privileges, or accommodations being offered;
2) a failure to make reasonable modifications in policies,
practices, or procedures, when such modification are
necessary to afford such goods, services, facilities,
privileges, advantages or accommodations to
individuals with disabilities, unless the entity can
demonstrate that making such modification would
fundamentally alter the nature of the goods, facilities,
services, privileges, advantages, or accommodations;
3) Failure to take steps as may be necessary to ensure
that no individual with disability is excluded, denied
services, segregated or otherwise treated differently
than other individuals because of the absence of
auxiliary aids and services, unless the entity can
demonstrate that taking such steps would
fundamentally alter the nature of the good, service,
facility, privilege or would result in undue burden;
4) a failure to remove architectural barriers, and
communication barriers that are structural in nature, in
existing facilities, where such removal is readily
achievable; and
5) where an entity can demonstrate that the removal of a
barrier under clause (4) is not readily achievable, a
failure to make such goods, services, facilities,
privileges, advantages, or accommodations available
through alternative methods if such methods are
readily achievable.
RA 9710 – MAGNA CARTA FOR WOMEN
- based on CONVENTION ON THE ELIMINATION
OF ALL FORMS OF DISCRIMINATION AGAINST
WOMEN (CEDAW)
"DISCRIMINATION AGAINST WOMEN" refers to any
gender-based distinction, exclusion, or restriction which has the
effect or purpose of impairing or nullifying the recognition,
enjoyment, or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social,
cultural, civil, or any other field.
It includes any act or omission, including by law; policy,
administrative measure, or practice, that directly or indirectly
excludes or restricts women in the recognition and promotion of
their rights and their access to and enjoyment of opportunities,
benefits, or privileges.
A measure or practice of general application is discrimination
against women if it fails to provide for mechanisms to offset or
address sex or gender-based disadvantages or limitations of
women, as a result of which women are denied or restricted in
the recognition and protection of their rights and in their access
to and enjoyment of opportunities, benefits, or privileges; or
women, more than men, are shown to have suffered the greater
adverse effects of those measures or practices.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
Provided, finally, That discrimination compounded by or
intersecting with other grounds, status, or condition, such as
ethnicity, age, poverty, or religion shall be considered
discrimination against women under this Act.
SECTION 13. Equal Access and Elimination of Discrimination in
Education, Scholarships, and Training. –
(a) The State shall ensure that gender stereotypes and images in
educational materials and curricula are adequately and
appropriately revised. Gender-sensitive language shall be used at
all times. Capacity-building on gender and development (GAD),
peace and human rights, education for teachers, and all those
involved in the education sector shall be pursued toward this
end. Partnerships between and among players of the education
sector, including the private sector, churches, and faith groups
shall be encouraged.
(b) Enrollment of women in nontraditional skills training in
vocational and tertiary levels shall be encouraged.
(c) Expulsion and non-readmission of women faculty due to
pregnant;- outside of marriage shall be outlawed. No school
shall turn out or refuse admission to a female student solely on
the account of her having contracted pregnancy outside of
marriage during her term in school.
34
SECTION 16. Nondiscriminatory and Nonderogatory Portrayal of
Women in Media and Film. - The State shall formulate policies and
programs for the advancement of women in collaboration with
government and nongovernment media-related organizations. It shall
likewise endeavor to raise the consciousness of the general public in
recognizing the dignity of women and the role and contribution of
women in the family; community, and the society through the
strategic use of mass media.
For this purpose, the State shall ensure allocation of space; airtime,
and resources, strengthen programming, production, and image-
making that appropriately present women's needs, issues, and
concerns in all forms of media, communication, information
dissemination, and advertising.
The State, in cooperation with all schools of journalism, information,
and communication, as well as the national media federations and
associations, shall require all media organizations and corporations to
integrate into their human resource development components regular
training on gender equality and gender-based discrimination, create
and use gender equality guidelines in all aspects of management,
training, production, information, dissemination, communication, and
programming; and convene a gender equality committee that will
promote gender mainstreaming as a framework and affirmative action
as a strategy, and monitor and evaluate the implementation of gender
equality guidelines.
SEC. 41 – LIABILITY FOR DAMAGES
IV. SEXUAL HARRASSMENT
RA 7877 – ANTI-SEXUAL HARRASSMENT ACT OF 1995
SECTION 2. Declaration of Policy. - The State shall value the
dignity of every individual, enhance the development of its human
resources, guarantee full respect for human rights, and uphold the
dignity of workers, employees, applicants for employment, students
or those undergoing training, instruction or education. Towards this
end, all forms of sexual harassment in the employment, education or
training environment are hereby declared unlawful.
 PENALTIES:
o Imprisonment: 1-6 months
o Fine: P10,000-P20,000
 Action prescribes after 3 years
 Separate criminal and civil action
RA 9262 – ANTI-VAWC ACT
Elements:
1) The offender has or had sexual or dating relationship with the
offended woman.
2) The offender by himself or through another commits an act or
series of acts of harassment against the woman.
3) The harassment alarms or causes substantial
emotional/psychological distress to her.
RA 9710 – MAGNA CARTA FOR WOMEN
"VIOLENCE AGAINST WOMEN" refers to any act of gender-
based violence that results in, or is likely to result in, physical,
sexual, or psychological harm or suffering to women, including
threats of such acts, coercion, or arbitrary deprivation of liberty,
whether occurring in public or in private life. It shall be
understood to encompass, but not limited to, the following:
1) Physical, sexual, psychological, and economic violence
occurring in the family, including battering, sexual abuse of
female children in the household, dowry-related violence,
marital rape, and other traditional practices harmful to
women, non-spousal violence, and violence related to
exploitation;
2) Physical, sexual, and psychological violence occurring within
the general community, including rape, sexual abuse, sexual
harassment, and intimidation at work, in educational
institutions and elsewhere, trafficking in women, and
prostitution; and
3) Physical, sexual, and psychological violence perpetrated or
condoned by the State, wherever it occurs.
It also includes acts of violence against women as defused in
Republic Acts No. 9208 and 9262. (SEC. 4(k))
 PARTIES
SECTION 3. Work, Education or Training -Related, Sexual
Harassment Defined. - Work, education or training-related sexual
harassment is committed by an employer, employee, manager,
supervisor, agent of the employer, teacher, instructor, professor,
coach, trainor, or any other person who, having authority,
influence or moral ascendancy over another in a work or training
or education environment, demands, requests or otherwise requires
any sexual favor from the other, regardless of whether the demand,
request or requirement for submission is accepted by the object of
said Act.
Any person who directs or induces another to commit any act of
sexual harassment as herein defined, or who cooperates in the
commission thereof by another without which it would not have been
committed, shall also be held liable under this Act.
 MORAL PERVERSITY!
 Employer or head of office
o Solidarily liable for damages if informed of
the acts by the offended party and NO
immediate action is taken thereon.
SECTION 4. Duty of the Employer or Head of Office in a Work-
related, Education or Training Environment. - It shall be the duty of
the employer or the head of the work-related, educational or training
environment or institution, to prevent or deter the commission of acts
TORTS AND DAMAGES by TIMOTEO B. AQUINO
of sexual harassment and to provide the procedures for the resolution,
settlement or prosecution of acts of sexual harassment. Towards this
end, the employer or head of office shall:
a. Promulgate appropriate rules and regulations in consultation
with and joint1y approved by the employees or students or
trainees, through their duly designated representatives,
prescribing the procedure for the investigation of sexual
harassment cases and the administrative sanctions therefor.
Administrative sanctions shall not be a bar to prosecution in the
proper courts for unlawful acts of sexual harassment.
The said rules and regulations issued pursuant to this subsection
(a) shall include, among others, guidelines on proper decorum in
the workplace and educational or training institutions.
b. Create a committee on decorum and investigation of cases on
sexual harassment. The committee shall conduct meetings, as
the case may be, with officers and employees, teachers,
instructors, professors, coaches, trainors, and students or trainees
to increase understanding and prevent incidents of sexual
harassment. It shall also conduct the investigation of alleged
cases constituting sexual harassment.
35
 favor would impair employees rights and privileges
In the case of a work-related environment, the committee shall under existing labor law
be composed of at least one (1) representative each from the
management, the union, if any, the employees from the (2) HOSTILE ENVIRONMENT CASES
supervisory rank, and from the rank and file employees.
 Employees/students work/study in an offensive or abusive
In the case of the educational or training institution, the environment.
committee shall be composed of at least one (1) representative  Although a single act of the defendant may be enough,
from the administration, the trainors, instructors, professors or generally, repeated incidents create a stronger claim of
coaches and students or trainees, as the case may be. hostile environment, with the strength of the claim
depending on the number of incidents and the intensity of
The employer or head of office, educational or training each incident.
institution shall disseminate or post a copy of this Act for the  Solicitation of sexual favors/refusal to grant the same
information of all concerned. would result in an intimidating, hostile, or offensive
environment for the employee
 HOW COMMITTED  When the sexual advances result in an intimidating, hostile,
or offensive environment for the student/trainee/apprentice.
SECTION 3.  Requisites:
(a) In a work-related or employment environment, sexual 1) The plaintiff was subjected to sexual advances,
harassment is committed when: requests for sexual favors, or other verbal or physical
(1) The sexual favor is made as a condition in the hiring conduct of sexual nature
or in the employment, re-employment or continued 2) That this conduct was unwelcome
employment of said individual, or in granting said 3) That the conduct was sufficiently severe or pervasive
individual favorable compensation, terms of to alter the conditions of the victim’s employment and
conditions, promotions, or privileges; or the refusal to create an abusive working environment
grant the sexual favor results in limiting, segregating  Present even if the conduct did not seriously affect the
or classifying the employee which in any way would plaintiff’s psychological well-being
discriminate, deprive or diminish employment
 HOSTILE/ABUSIVE ENVIRONMENT
opportunities or otherwise adversely affect said
 STANDARD OF CONDUCT:
employee;
o Environment is hostile if a person of ordinary
(2) The above acts would impair the employee's rights or
prudence would not have been engaged in the
privileges under existing labor laws; or
allegedly harassing conduct
(3) The above acts would result in an intimidating, hostile,
o Standard of a reasonable man/woman
or offensive environment for the employee.
 Gender-conscious examination
(b) In an education or training environment, sexual harassment is
 SH UNDER CSC RESOLUTION NO. 01-0940
committed:
(ADMINISTRATIVE DISCIPLINARY RULES ON SH
(1) Against one who is under the care, custody or
CASES)
supervision of the offender;
(2) Against one whose education, training, apprenticeship
 BASIS:
or tutorship is entrusted to the offender;
o Sec. 11, Art. II, 1987 Consti
(3) When the sexual favor is made a condition to the
o Vienna Declaration and Programme of Action of
giving of a passing grade, or the granting of honors

TORTS AND DAMAGES by TIMOTEO B. AQUINO

and scholarships, or the payment of a stipend, the World Conference on Human Rights (June
1993)
allowance or other benefits, privileges, or
o Beijing Declaration and Platform for Action of
consideration; or
the Fourth World Conference on Women (Sept.
(4) When the sexual advances result in an intimidating,
hostile or offensive environment for the student, 1995)
o Sec. 4(a) of RA 7877
trainee or apprentice.

 KINDS:  ADMINISTRATIVE OFFENSE OF SEXUAL

HARASSMENT
(1) QUID PRO QUO CASES o an act, or a series of acts, involving any
unwelcome sexual advance, request or demand
 Sexual favors are elicited in return for something else. for a sexual favor, or other verbal or physical
behavior of a sexual nature, committed by a
 Can be committed by a single act
government employee or official in a work-
 Present whenever sexual favor is made as a condition
related, training or education related environment
in the hiring or in the employment, re-employment, or
of the person complained of. (SEC. 3)
continued employment of said individual, or in
granting said individual favorable compensation,
 WORK RELATED SEXUAL HARASSMENT is
terms of conditions, promotions, or privileges, or
committed under the following circumstances:
when the sexual favor is made a condition to the
(1) submission to or rejection of the act or series of
giving of a passing grade, or the granting of honors
acts is used as a basis for any employment
and scholarships, or the payment of a stipend,
decision (including, but not limited to, matters
allowance or other benefits, privileges, or
related to hiring, promotion, raise in salary, job
considerations, or whenever the refusal to grant sexual

36
 security, benefits and any other personnel action) o SH as discrimination
affecting the applicant/employee; or  When the workplace is permeated with
(2) the act or series of acts have the purpose or effect discriminatory intimidation, ridicule, and
of interfering with the complainant’s work insult that is sufficiently severe or pervasive
performance, or creating an intimidating, hostile to alter the conditions of the victim’s
or offensive work environment; or employment and create an abusive working
(3) the act or series of acts might reasonably be environment
expected to cause discrimination, insecurity,  ART. 135, LABOR CODE
discomfort, offense or humiliation to a  ART. 21, NCC
complainant who may be a co-employee,  SEC. 1, ART. XIII, CONSTI
applicant, customer, or word of the person o Civil Liability Based on DELICT
complained of. (SEC. 3(a))  RA 7877 – ART. 100, RPC
 RA 9710 – SEC. 41
 EDUCATION OR TRAINING-RELATED SEXUAL
HARASSMENT is committed against one who is under
the actual or constructive care, custody or supervision of
the offender, or against one whose education, training,
apprenticeship, internship or tutorship is directly or
constructively entrusted to, or is provided by, the offender,
when:
(1) submission to or rejection of the act or series of
acts as a basis for any decision affecting the
complainant, including, but not limited to, the
giving of a grade, the granting of honors or a
scholarship, the payment of a stipend or
allowance, or the giving of any benefit, privilege
or consideration.
(2) the act or series of acts have the purpose or effect
of interfering with the performance, or creating
an intimidating, hostile or offensive academic
environment of the complainant; or
(3) the act or series of acts might reasonably
expected to cause discrimination, insecurity,
discomfort, offense, or humiliation to a
complainant who may be a trainee, apprentice,
intern, tutee, or ward of the person complained
of. (SEC. 3(b))

 Sexual harassment may take place:

1. in the premises of the workplace or office or of
the school or training institution;
2. in any place where the parties were found as a
result of work or education or training

TORTS AND DAMAGES by TIMOTEO B. AQUINO

responsibilities or relations;
3. at work or education or training-related social
functions;
4. while on official business outside the office or
school or training institution or during work or
school or training-related travel;
5. at official conferences, fora, symposia or training
sessions; or
6. by telephone, cellular phone, fax machine or
electronic mail. (Sec. 4)

 The following are illustrative forms of sexual harassment:

a. Physical
i. Malicious Touching;
ii. Overt sexual advances;
iii. Gestures with lewd insinuation.
b. Verbal, such as but not limited to, requests or
demands for sexual favors, and lurid remarks;
c. Use of objects, pictures or graphics, letters or
writing notes with sexual underpinnings;
d. Other forms analogous to the foregoing.

 BASES OF CIVIL LIABILITY FOR SH

o ART. 21, 26, NCC – over sexual advances
37
 CHAPTER 10 being induced by a promise of immunity or reward to
make such confession, except when the person
INDEPENDENT CIVIL ACTIONS confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual
INDEPENDENT CIVIL ACTIONS punishment, unless the same is imposed or inflicted in
- Actions for damages for violation of civil and political rights, accordance with a statute which has not been judicially
defamation, fraud, physical injuries, and neglect of public declared unconstitutional; and
officers. (19) Freedom of access to the courts.

APPLICABLE LAWS: In any of the cases referred to in this article, whether or not the
 NCC – ART. 32, 33, 34 defendant's act or omission constitutes a criminal offense, the
 ART. 135, LABOR CODE (discrimination) aggrieved party has a right to commence an entirely separate and
 SEC. 5, ANTI-SH ACT (SH) distinct civil action for damages, and for other relief. Such civil
action shall proceed independently of any criminal prosecution (if
BASIS: 2 views. – the latter be instituted), and may be proved by a preponderance
1. SEN. TOLENTINO of evidence.
 Civil liability arising from DELICT
 To allow the citizen to enforce his rights in a The indemnity shall include moral damages. Exemplary damages
private action brought by him, regardless of the may also be adjudicated.
action of the State attorney
 Civic spirit The responsibility herein set forth is not demandable from a
 Individual self-reliance and initiative judge unless his act or omission constitutes a violation of the
2. JUSTICE CAGUIOA Penal Code or other penal statute.
 CULPA AQUILIANA
 Separate and distinct from the civil liability A. RATIONALE
arising from crime  Essential to the effective maintenance of democracy
 AQUINO: This is more correct.  In most cases, threat to freedom originates
from abuses of power by government
I. ART. 32: VIOLATION OF CIVIL AND POLITICAL officials and peace officers.
RIGHTS  The requirement of proof beyond reasonable
doubt often prevented the appropriate
ARTICLE 32. Any public officer or employee, or any private punishment.
individual, who directly or indirectly obstructs, defeats, violates  There are those subtle, clever, and indirect
or in any manner impedes or impairs any of the following rights ways which do not come within the pale of
and liberties of another person shall be liable to the latter for penal law.
damages:
(1) Freedom of religion; B. HOW COMMITTED
(2) Freedom of speech;  Intentional acts
(3) Freedom to write for the press or to maintain a  Negligence
periodical publication;
(4) Freedom from arbitrary or illegal detention;  Good faith does not excuse violation.
(5) Freedom of suffrage;  To be liable, it is enough that there was a violation of

TORTS AND DAMAGES by TIMOTEO B. AQUINO

(6) The right against deprivation of property without due the consti rights of the plaintiffs and it is not required
process of law; that defendants should have acted with malice or bad
(7) The right to a just compensation when private property faith.
is taken for public use;
(8) The right to the equal protection of the laws;  Purpose:
(9) The right to be secure in one's person, house, papers,  For the effective protection of individual
and effects against unreasonable searches and seizures; rights
(10) The liberty of abode and of changing the same;  To put an end to official abuse by the plea of
(11) The privacy of communication and correspondence; good faith
(12) The right to become a member of associations or
societies for purposes not contrary to law; C. PERSONS LIABLE
(13) The right to take part in a peaceable assembly to  Public officers/employees
petition the Government for redress of grievances;  Private individuals
(14) The right to be a free from involuntary servitude in any
form;  SUPERIOR OFFICERS
(15) The right of the accused against excessive bail;  Principle of accountability
(16) The right of the accused to be heard by himself and  SUBORDINATE OFFICERS
counsel, to be informed of the nature and cause of the  If there was reluctance – not liable
accusation against him, to have a speedy and public  Led to believe that there was legal basis and
trial, to meet the witnesses face to face, and to have authority to impound the property
compulsory process to secure the attendance of witness  JUDGES
in his behalf;  If with violation of Penal Code or other
(17) Freedom from being compelled to be a witness against penal statutes
one's self, or from being forced to confess guilt, or from
38
D. STATE IMMUNITY NOT A DEFENSE
 DOCTRINE OF STATE IMMUNITY applies only if
the acts involved are acts done by officers in the
performance of official duties within the ambit of their
powers.
E. SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS
 Does not destroy every person’s right and cause of
action for damages for illegal arrest and detention and
other violations of his consti right.
 Not a defense
 Even if martial law is in force – civil liberties of every
person still has to be respected and the courts of
justice still remain open.
F. EXAMPLES OF VIOLATION
 JUDGES
 ART. 204 – knowingly rendering unjust
judgment
 ART. 205 – judgment rendered through
negligence
 ART. 206 – unjust interlocutory order
 ART. 207 – malicious delay in the
administration of justice
 Due process and freedom of expression violations
 Violation of the right against searches and seizures
II. ART. 33: DEFAMATION, FRAUD, AND PHYSICAL
INJURIES
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.
1. DEFAMATION
 Includes LIBEL and SLANDER
 The offense of injuring a person’s character, fame, or
reputation through false and malicious statements
 That which tends to injure the reputation or to diminish the
esteem, respect, good will, or confidence in the plaintiff or
to excite derogatory feelings/opinions about the plaintiff
 Publication of anything which is injurious to the good
name/reputation of another or tends to bring him into
disrepute
 An invasion of a relational interest since it involves the
opinion which others in the community may have, or tend
to have, of the plaintiff
 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 (PROSSER)
 Publication of a statement which tends to lower a person in
the estimation of right – thinking members of society
generally or which tends to make them shun or avoid that
person (PROF. WINFIELD)
 A statement is defamatory if it tends to injure the plaintiff
in his trade, profession, or community standing, or lower
him in the estimation of the community.
REVISED PENAL CODE
Title Thirteen
CRIMES AGAINST HONOR
Chapter One
LIBEL
Section One. - Definitions, forms, and punishment of this crime.
ARTICLE 353. Definition of libel. - A libel is public and
malicious imputation of a crime, or of a vice or defect, real
or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the
memory of one who is dead.
ARTICLE 354. Requirement for publicity. - Every defamatory
imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown,
except in the following cases:
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 said
proceedings, or of any other act performed by public
officers in the exercise of their functions.
ARTICLE 355. Libel means by writings or similar means. - A
libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by the
offended party.
ARTICLE 356. Threatening to publish and offer to present
such publication for a compensation. - The penalty ofarresto
mayor or a fine from 200 to 2,000 pesos, or both, shall be
imposed upon any person who threatens another to publish a
libel concerning him or the parents, spouse, child, or other
members of the family of the latter or upon anyone who shall
offer to prevent the publication of such libel for a compensation
or money consideration.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
ARTICLE 357. Prohibited publication of acts referred to in the
course of official proceedings. - The penalty of arresto mayor or
a fine of from 20 to 2,000 pesos, or both, shall be imposed upon
any reporter, editor or manager or a newspaper, daily or
magazine, who shall publish facts connected with the private life
of another and offensive to the honor, virtue and reputation of
said person, even though said publication be made in connection
with or under the pretext that it is necessary in the narration of
any judicial or administrative proceedings wherein such facts
have been mentioned.
ARTICLE 358. Slander. - Oral defamation shall be punished
by arresto mayor in its maximum period to prision
correccional in its minimum period if it is of a serious and
insulting nature; otherwise the penalty shall be arresto
menor or a fine not exceeding 200 pesos.
ARTICLE 359. Slander by deed. - The penalty of arresto
mayor in its maximum period to prision correccional in its
minimum period or a fine ranging from 200 to 1,000 pesos
shall be imposed upon any person who shall perform any act
not included and punished in this title, which shall cast
dishonor, discredit or contempt upon another person. If said
39
act is not of a serious nature, the penalty shall be arresto
menor or a fine not exceeding 200 pesos.
Section Two. - General provisions
ARTICLE 360. Persons responsible. - Any person who shall
publish, exhibit, or cause the publication or exhibition of any
defamation in writing or by similar means, shall be responsible
for the same.
The author or editor of a book or pamphlet, or the editor or
business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations contained
therein to the same extent as if he were the author thereof.
The criminal and civil action for damages in cases of written
defamations as provided for in this chapter, shall be filed
simultaneously or separately with the court of first instance of
the province or city where the libelous article is printed and first
published or where any of the offended parties actually resides
at the time of the commission of the offense: Provided, however,
That where one of the offended parties is a public officer whose
office is in the City of Manila at the time of the commission of
the offense, the action shall be filed in the Court of First
Instance of the City of Manila, or of the city or province where
the libelous article is printed and first published, and in case
such public officer does not hold office in the City of Manila,
the action shall be filed in the Court of First Instance of the
province or city where he held office at the time of the
commission of the offense or where the libelous article is printed
and first published and in case one of the offended parties is a
private individual, the action shall be filed in the Court of First
Instance of the province or city where he actually resides at the
time of the commission of the offense or where the libelous
matter is printed and first published: Provided, further, That the
civil action shall be filed in the same court where the criminal
action is filed and vice versa: Provided, furthermore, That the
court where the criminal action or civil action for damages is
first filed, shall acquire jurisdiction to the exclusion of other
courts: And, provided, finally, That this amendment shall not
apply to cases of written defamations, the civil and/or criminal
actions which have been filed in court at the time of the
effectivity of this law.
Preliminary investigation of criminal action for written
defamations as provided for in the chapter shall be conducted by
the provincial or city fiscal of the province or city, or by the
municipal court of the city or capital of the province where such
action may be instituted in accordance with the provisions of
this article.
No criminal action for defamation which consists in the
imputation of a crime which cannot be prosecuted de oficio shall
be brought except at the instance of and upon complaint
expressly filed by the offended party. (As amended by R.A.
1289, approved June 15, 1955, R.A. 4363, approved June 19,
1965).
ARTICLE 361. Proof of the truth. - In every criminal
prosecution for libel, the truth may be given in evidence to the
court and if it appears that the matter charged as libelous is true,
and, moreover, that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation
shall have been made against Government employees with
respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation
made by him, he shall be acquitted.
ARTICLE 362. Libelous remarks. - Libelous remarks or
comments connected with the matter privileged under the
provisions of Article 354, if made with malice, shall not exempt
the author thereof nor the editor or managing editor of a
newspaper from criminal liability.
 Reason for liability: to protect the reputation of every
individual which is necessary to human society that
underlie the whole scheme of civilization
 A RELATIONAL INTEREST – involves the opinion
others in the community may have or tend to have of the
plaintiff.
 Law protects the interest in REPUTATION – the interest in
acquiring, retaining, and enjoying one’s reputation as good
as one’s character and conduct warrant.
 NOTE: Freedom of the Press: newspapers should be given
such leeway and tolerance as to enable them to
courageously and effectively perform their important role
in democracy
o Requirements:
 Good faith
 Reasonable care
 Honest mistakes/imperfection
o TEST: actual malice i.e. with knowledge that it
was false or with reckless disregard of whether it
was false or not.
o BUT does not encourage irresponsible or
licentious publications
 REQUISITES OF LIABILITY:
(A)
1. The imputation of a discreditable act or condition
2. Publication of the imputation
3. Identity of the person defamed
TORTS AND DAMAGES by TIMOTEO B. AQUINO
4. Existence of malice
(B)
1. There must be defamatory imputation
2. Imputation must be malicious
3. Imputation must be given publicity
4. Victim must be identifiable
Discussion of Requisites:
(1) IMPUTATION IS DEFAMATORY
 May be established by showing that the statement is
defamatory as a matter of law (imputation is the
commission of a crime); if NOT determine the defamatory
culpability of the statement
 TEST:
o Words that induce suspicion
o Ironical and metaphorical language
o 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 certain offense, or are sufficient to
impeach their honesty, virtue, or reputation, or to
hold the person/s up to public ridicule
 Standard of an Ordinary Reader
40
 o Judges must consider the alleged libelous
passages in the context of the entire article and
evaluate the words as they are commonly
understood.
o Meaning is as natural and obvious in the plain
and ordinary sense or which the public would
naturally understand what was uttered
 Brings the defamed complainant into
public obloquy and contempt
 Community Standard
o Gist of the action: injury to reputation
o Focus: the allegedly defamatory statement itself
and its predictable effect upon third persons
o Defamation requires that something be
communicated to a third person that may affect
the opinion others may have of the plaintiff.
o Impairment of plaintiff’s standing in the
community
 Exaggerations and Absurd Statements
o NOT, by themselves, make the statements
defamatory
o There must be an allegation for special damages
 Forms of Language
o ANY
 Question
 Indirect insinuation
 Expression of belief/opinion
o With purpose to DISCREDIT another (even if the
imputation does not amount to a crime)
 Material Taken as a Whole
 Error/Mistake NOT Necessarily Libelous
o Slight unintentional errors excused
o Temperate and legitimate criticism
o Newspaper respects and keeps within the
standards of morality and civility prevailing
within the general community.
o No liability for failure to counter-check
report/present informant
o TEST: bona fides
o Damages could not simply arise from an
inaccurate/false statement without irrefutable
proof of actual malice as element of the assailed
publication
 Allegation of Non-Performance of Obligation
o Does NOT, in and of itself, injure the person’s
business reputation or deprive him of public
confidence
o Cause of publication? To redress what he
considered to be a violation of his rights and
those of others similarly situated as himself
 Imputation of a Crime, Vice, or Defect
o ART. 353, RPC
(2) PUBLICATION
 The communication of the defamatory information to third
persons
 ART. 355, RPC
o Media publications
o Written on a wall
o Painted on billboards
 MUST BE SEEN BY THIRD PARTY
 Damages to character/reputation of the plaintiff is the
estimate which others hold him and not what he himself
thinks
 DEFINITION:
o To make public
o To make known to people in general
o To bring before the public
o Making known of defamatory matter, after it has
been written
 HOWEVER, if the letter is unsealed – there is publication
as such could be read by 3rd persons
(3) MALICE
 Author of the imputation is prompted by personal ill will/
spite and speaks not in response to a duty but merely to
injure the reputation of the persons who claims to have
been defamed.
 TEST: written/published with the knowledge that they are
false or in reckless disregard of whether they are false/not
o The author/publisher entertains serious doubt as
to the truth of the publication, or that he
possesses a high degree of awareness of their
probable falsity
o Case-by-case adjudication
 EVIDENCE of malice:
o May be shown by extrinsic evidence
 Grudge
 Rivalry
 Ill-feeling
 Intention to injure the reputation of the
offended party
o By words used and the circumstances attending
the publication of the defamatory imputation
 Source of News Reports
o Failure to present NOT malice
o While a journalist may be held criminally liable
for libel, he cannot be compelled to reveal the
source of the information given to him in
confidence UNLESS a House or Committee of
Congress determine that revealing the source is
demanded by the security of the State
 Kinds of Malice
o MALICE IN LAW
 A presumption of law
 Dispenses with the proof of malice
when the words that raise the
presumption are shown to have been
uttered
 Constructive malice
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 Legal malice
 Implied malice
o MALICE IN FACT
 A positive desire and intention to annoy
and injure
 Defendant was actuated by ill-will or
personal spite
 Express malice
 Actual malice
 Real malice
 True malice
 Particular malice
o ART. 354, RPC
 Burden is on the side of the
DEFENDANT to show good intention
and justifiable motive in order to
overcome the legal inference of malice
(4) IDENTIFICATION OF THE DEFAMED
 May be natural/juridical persons
 Plaintiff must establish that the defamatory statement
referred to him
 Essential that the victim be identifiable although it is not
necessary that he be named
41
  It must be shown that at least a third person could identify relevant to the case
him as the object of the libelous prosecution invoked
 One’s reputation is the sum/composite of the impressions TEST: bona fides test (test of
spontaneously made by him from time to time, and in one good faith)
way or another, upon his neighbors and acquaintances Rests upon public policy
 The person of the defamed may likewise be identified using
another publication in the same newspaper on a separate b) COMPLAINTS AGAINST PUBLIC OFFICIALS
date  NO liability – being done in the performance of one’s
o There is only one offense duty as a citizen
 GROUP LIBEL  BUT complaints should be addressed solely to some
o Where the group referred to is large, the courts official having jurisdiction to inquire into the charges,
presume that NO reasonable reader would take a power to redress the grievance or has some duty to
the statements as so literally applying to each perform or interest in connection therewith
individual member o Otherwise, there is publication – LIABLE
o This limitation would satisfactorily safeguard
freedom of speech and expression, press, c) REPORT TO A SUPERIOR OFFICER
effecting a sound compromise between  Conditionally privileged
conflicting fundamental interest involved in libel  Negated if circulated to other persons
cases
o If libel was allegedly committed against a group,
there is actionable defamation only if the libel d) ALLEGATIONS IN THE PLEADINGS
can be said to reach beyond the mere collectivity  Absolutely privileged IF relevant/pertinent to the
to do damage to a specific individual group issues, however false or malicious they may be.
member’s reputation.
o Where the defamation is alleged to have been ART. 362, RPC
directed at a group or class, it is essential that the  Proof of actual malice is required
statement must be so sweeping or all-embracing  Based on freedom of expression
as to apply to every individual in that group or
class, or sufficiently specific so that each FAIR COMMENTARIES ON MATTERS OF PUBLIC
individual in the class or group can prove that the CONCERN
defamatory statement specifically pointed to him,
so that he can bring the action separately, if need PRIVATE COMMUNICATION
be.  A communication made bona fide upon any subject matter in
 DECEASED which the party communicating has an interest, or in reference
o Relatives of the deceased can file an action for to which he has a duty, is privileged if made to a person having
damage to the reputation of the deceased a corresponding interest or duty, although it contained
o ART. 353, RPC incriminatory matter which without this privilege would be
 CORPORATION slanderous and actionable
o ART. 353, RPC  REQUISITES:
o Juridical persons can be victims of libel. (1) The person who made the communication had a legal,
o ART. 2219(7), NCC moral, or social duty to make the communication, or at
least had an interest to protect, which interest may either be
 PERSONS LIABLE his own or of the one to whom it is made

TORTS AND DAMAGES by TIMOTEO B. AQUINO

o ART. 360, RPC
 PROOF OF TRUTH
o ART. 361, RPC
 DEFENSES
a) PRIVILEGED STATEMENTS
ABSOLUTELY
PRIVILEGED
COMMUNICATIONS
Imputation is NOT actionable
even if it is attended by actual
malice
EX: SEC. 11, ART. VI, 1987
CONSTI
-statements made in
official proceedings of
the legislative by
members thereof
-statements made in
the course of judicial
proceedings but only if
they are pertinent or
(2) The communication is addressed to an officer or a board, or
superior, having some interest or duty in the matter, and
who has the power to furnish the protection sought;
(3) The statements in the communication are made in good
faith and without malice
e) PUBLICATION AND NEWS REPORT OF A PLEADING
 Privileged
QUALIFIEDLY  Pleadings become part of public record open to public
PRIVILEGED scrutiny
COMMUNICATIONS o Presumed to contain allegations and
May still be actionable if actual assertions lawful and legal in nature,
malice is proven appropriate for the administration of justice
 Of gen. public concern
Merely prevents the presumption  EXCEPTION: ART. 357, RPC
of malice from attaching to a
defamatory imputation PUBLIC OFFICERS/FIGURES
 Honest criticisms on the conduct of public officials and
public figures are insulated from libel judgments UNLESS
made with actual malice
o Raison d’etre: to require critics of official
conduct to guarantee the truth of all their factual
assertions on pain of libel judgments would lead
to self-censorship, since would-be critics would
42
 be deterred from voicing out their criticisms even
if such were in fact true because of doubt whether
it could be proved or because of fear of the
expense of having to protect it.
 DOCTRINE OF FAIR COMMENT
o While in general, every discreditable imputation
publicly made is deemed false, because every
man is presumed innocent until his guilt is
judicially proved, and every false imputation is
deemed malicious, nevertheless, when the
discreditable imputation is directed against a
public persons in his public capacity, it is NOT
necessarily actionable.
o In order that such be actionable, it must either be
a false allegation of fact or a comment based on a
false supposition.
o If the comment is in expression of opinion based
on established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it
might reasonably be inferred from the facts
 PRIVILEGE OF NEUTRAL REPORTAGE
o A republisher who accurately and disinterestingly
reports certain defamatory statements made
against public figures is shielded from liability,
regardless of the republisher’s subjective
awareness of the truth or falsity of the accusation
 Public officers as complainants/plaintiffs
o Public interest extends to anything which might
touch on an official’s fitness for office
PUBLIC FIGURE
 Proof of actual malice required!
 Matters about which the public has the right to be informed,
taking into account the very public character of the matter
involved
 Kinds of public figures:
1. INVOLUNTARY PUBLIC FIGURES
 Persons who become public figures through
no purposeful actions of their own
2. ALL-PURPOSE PUBLIC FIGURES
 Persons who attain a status according to
which they assumed roles of special
prominence in the affairs of society
3. LIMITED-PURPOSE PUBLIC FIGURES
 Persons who have thrust themselves to the
forefront of particular public controversies
in order to influence the resolution of the
issues involved
 Invite attention and comment
 Geographical limit: celebrity even if known within a limited
geography
 PRIVATE parties who are not public figures: NO QUALIFIED
PRIVILEGE! – malice in fact need not be proved because…
1. Public officials and figures usually enjoy significantly
greater access to the channels of effective
communication, hence, have a more realistic
opportunity to counteract false statements than what
private individuals normally enjoy
 Private individuals vulnerable to injury
2. An individual who decides to seek governmental
office must accept certain necessary consequences of
that involvement in public affairs
 Runs the risk of closer public scrutiny
 Assumed roles of special prominence in the
affairs of society
 Thrust themselves to the forefront of
particular public controversies
 Deal with matters of public interest
 People should discuss their character and
qualifications
3. This would impose additional difficulty on trial judges
to decide which publications address issues of gen.
interest and which do not.
4. Private individuals – more deserving of recovery
LIBERAL TREATMENT OF LIBEL
 SC MEMORANDUM CIRCULAR NO. 08-2008, January 25,
2008
o Impose only a FINE on persons convicted
o No removal of imprisonment
o Judge’s discretion
o Subsidiary imprisonment still allowed
DAMAGES
 ART. 2219(7), NCC
o Moral damages for libel, slander, and defamation
 Evidence of actual damages NOT necessary for NOMINAL,
TEMPERATE, EXEMPLARY, MORAL damages
 Mitigation:
o evidence of honest mistake
o want of character/reputation of the party
o lack of malice
2. FRAUD
Elements of Cause of Action (DECEIT)
(1) The defendant must have made false representation to
the plaintiff
(2) The representation must be one of fact
(3) The defendant[?] must have acted on the false
representation
 It is also enough that the defendant has no
sufficient basis of information to make
representation – ―scienter‖
(4) The defendant must have intended that the
representation should be acted on
(5) The plaintiff must have suffered damage as a result of
acting on the representation
FALSE REPRESENTATION
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 Can be made by spoken/written words or by conduct
o Words
o Positive assertions
o Deeds, acts, or artifices
 That MISLEAD another and allow the
defendant to obtain undue advantage
over them.
 HALF-TRUTHS – included and actionable
o If it is such a partial and fragmentary statement of
fact, as that the withholding of that which is NOT
stated makes that which is stated absolutely false
o A cocktail of truth, falsity, and evasion is a more
powerful instrument of deception than undiluted
falsehood (L.J. MCKINNON)
FRAUD (MISREPRESENTATION)
 Misrepresentation is fraudulent if the maker:
o Knows or believes that the matter is not as he
represents it to be;
o Does not have the confidence in the accuracy of
his representation that he states or implies; or
o Knows that he does not have the basis for his
representation that he states or implies
43
  Representation must be OF FACT.
o Because propositions of law are generally matters
of public record to which the plaintiff and
defendant have equal access.
o BUT includes a mixture of representations of law
and of fact and/or inferences from legal rules

 Opinion Generally NOT Actionable

o ART. 1341. A mere expression of opinion does
not signify fraud, unless made by an expert and
the other party has relied on the former’s special
knowledge.

 Cases Covered:
o ART. 315(2)(a-c) and (3), RPC – estafa
committed through false pretenses
o PD 115 – estafa for violation of Trust Receipts
Law
o Misrepresentation made by sellers and
manufacturers

3. PHYSICAL INJURIES
 BATTERY / ASSAULT
 BATTERY: an intentional infliction of harmful or
offensive bodily contact
o Offends a reasonable person’s sense of
dignity
o Even if intended as a joke/compliment
 ASSAULT: an intentional conduct by one person
directed at another which places the latter in
apprehension of immediate bodily harm or offensive act
 Cases where death results included!
 Reckless imprudence NOT included but covered by
ART. 2176, NCC.

III. ART. 34: NEGLECT OF DUTY

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

TORTS AND DAMAGES by TIMOTEO B. AQUINO

recognized shall be independent of any criminal proceedings, and
a preponderance of evidence shall suffice to support such action.

 Member of city/municipal police force – DUTY

 City/Municipality – DUTY OF SELECTION AND
SUPERVISION

44
 CHAPTER 11 Amount of damages to be awarded must be apportioned according to
THEIR RESPECTIVE RESPONSIBILITIES to be paid by them:
CIVIL LIABILITY ARISING FROM DELICT
- SOLIDARILY within their respective class
1. BASIS OF LIABILITY
- SUBSIDIARILY for others of a different class
Article 100. Civil liability of a person guilty of felony. - Every person
criminally liable for a felony is also civilly liable.
a. Separate and Subsidiary Liability
If principal and accessory concur: the amount for which the principal
Crime has a DUAL CHARACTER:
is primarily liable is different and separate from the amount for which
1) Offense against the STATE
the accessory is liable.
2) Offense against the PRIVATE PERSON
- Liability imposed is NOT TO BE PAID JOINTLY AND
What gives rise to civil liability is the obligation of everyone to repair
SEVERALLY
or to make whole the damage caused to another by reason of his act
- But each of the, shall be SUBSIDIARILY liable for the
or omission, whether done intentionally or negligently and whether or
other’s share in case of latter’s INSOLVENCY
not punishable by law.
b. SOLIDARY WITHIN THE CLASS
a. Special Criminal Laws
Among members of the same class: liability is SOLIDARY
Dual character of crimes is present not only in felonies under RPC
- The accused who paid the civil indemnity may later claim
but also in cases governed by special laws:
from his partners-in-crime the share that corresponds to
- RA 9262: Anti-VAWC Act of 2004
each
- BP 22
- Rules of Procedure for Environmental Cases
c. Order of Preference
Order established by Art. 110 RPC with respect to enforcement of
b. When there is NO LIABILITY EVEN IF THERE IS DELICT
subsidiary liability as follows:
Not all offenses give rise to civil liability.
a. Principal
- In contravention of ordinances, violations of game laws and
b. Accomplice
infraction of rules of traffic when nobody is hurt
c. Accessory
- Crimes of treason, rebellion, espionage, contempt and other
similar crimes
3. WHAT IS INCLUDED IN CIVIL LIABILITY
The absence of civil liability is the result of the fact that either there
Includes RESTITUTION, REPARATION FOR DAMAGES
are no damages to be compensated or there is no private person
CAUSED and INDEMNIFICATION FOR CONSEQUENTIAL
injured by the crime.
DAMAGES
c. Public and Private Offenses NOT MATERIAL
Presence of civil liability in offenses is NOT DETERMINED BY Article 105. Restitution; How made. - The restitution of the thing
THE FACT THAT THE CRIME IS PUBLIC OR PRIVATE. itself must be made whenever possible, with allowance for any
- There is civil liability even if the offense is a public deterioration, or diminution of value as determined by the court.
offense, like bigamy
The thing itself shall be restored, even though it be found in the
2. PERSONS LIABLE possession of a third person who has acquired it by lawful means,
Under the RPC, persons who are criminally liable: PRINCIPALS, saving to the latter his action against the proper person, who may be
ACCOMPLICES AND ACCESSORIES liable to him.

TORTS AND DAMAGES by TIMOTEO B. AQUINO

Article 109. Share of each person civilly liable. - If there are two or
This provision is not applicable in cases in which the thing has been
more persons civilly liable for a felony, the courts shall determine the
acquired by the third person in the manner and under the
amount for which each must respond.
requirements which, by law, bar an action for its recovery.

Article 110. Several and subsidiary liability of principals,

Article 106. Reparation; How made. - The court shall determine the
accomplices and accessories of a felony; Preference in payment. -
amount of damage, taking into consideration the price of the thing,
Notwithstanding the provisions of the next preceding article, the
whenever possible, and its special sentimental value to the injured
principals, accomplices, and accessories, each within their respective
party, and reparation shall be made accordingly.
class, shall be liable severally (in solidum) among themselves for
their quotas, and subsidiaries for those of the other persons liable.
Article 107. Indemnification; What is included. - Indemnification for
consequential damages shall include not only those caused the
The subsidiary liability shall be enforced, first against the property of
injured party, but also those suffered by his family or by a third
the principals; next, against that of the accomplices, and, lastly,
person by reason of the crime.
against that of the accessories.

Article 111. Obligation to make restitution in certain cases. - Any

Whenever the liability in solidum or the subsidiary liability has been
person who has participated gratuitously in the proceeds of a felony
enforced, the person by whom payment has been made shall have a
shall be bound to make restitution in an amount equivalent to the
right of action against the others for the amount of their respective
shares. extent of such participation.

4. PROXIMATE CAUSE
Two or more persons civilly liable for felony: Courts will determine Article 2202. In crimes and quasi-delicts, the defendant shall be
specific amount of liability for each person liable for all damages which are the natural and probable
45
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.
Rule on proximate cause in quasi-delict cases is applicable to cases
involving civil liability arising from delict
- It is not necessary that such damages have been foreseen or
could have reasonably been foreseen by the accused
5. CIRCUMSTANCES AFFECTING CIVIL LIABILITY
5.01 JUSTIFYING AND EXEMPTING CIRCUMSTANCES
Article 11. Justifying circumstances. - The following do not incur
any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that
the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to
prevent or repel it.
Third. Lack of sufficient provocation on the part of the
person defending himself.
2. Any one who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or his relatives by affinity in the same degrees and those
consanguinity within the fourth civil degree, provided that the first
and second requisites prescribed in the next preceding circumstance
are present, and the further requisite, in case the revocation was given
by the person attacked, that the one making defense had no part
therein.
3. Anyone who acts in defense of the person or rights of a stranger,
provided that the first and second requisites mentioned in the first
circumstance of this Article are present and that the person defending
be not induced by revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury, does not act
which causes damage to another, provided that the following
requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to
avoid it;
Third. That there be no other practical and less harmful
means of preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.
6. Any person who acts in obedience to an order issued by a superior
for some lawful purpose.
Article 12. Circumstances which exempt from criminal liability. - the
following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during
a lucid interval.
When the imbecile or an insane person has committed an act which
the law defines as a felony (delito), the court shall order his
confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave
without first obtaining the permission of the same court.
2. A person under nine years of age.
3. A person over nine years of age and under fifteen, unless he has
acted with discernment, in which case, such minor shall be proceeded
against in accordance with the provisions of Art. 80 of this Code.
When such minor is adjudged to be criminally irresponsible, the
court, in conformably with the provisions of this and the preceding
paragraph, shall commit him to the care and custody of his family
who shall be charged with his surveillance and education otherwise,
he shall be committed to the care of some institution or person
mentioned in said Art. 80.
4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
5. Any person who act under the compulsion of irresistible force.
6. Any person who acts under the impulse of an uncontrollable fear
of an equal or greater injury.
7. Any person who fails to perform an act required by law, when
prevented by some lawful insuperable cause.
General Rule: Accused is free from civil liability if JUSTIFYING
CIRCUMSTANCES are properly established in criminal cases
EXCPN: Par.2, Art. 101 RPC that imposes liability on person who
obtained benefit because he performed an act in STATE of
NECESSITY
- Similar to Art. 432 NCC
EXEMPTING CIRCUMSTANCES DO NOT ERASE CIVIL
LIABILITY
- Expressly provided for in Art. 101 RPC
a. Liability if there is EXEMPTING CIRCUMSTANCE
Civil liability devolves upon those who have custody or authority
over the person who caused damage if the ff circumstances are
present:
1) Crime committed by an IMBECILE or INSANE
person UNLESS the latter has acted during a lucid
interval
TORTS AND DAMAGES by TIMOTEO B. AQUINO
2) Committed by a person UNDER 15 years of age
3) Committed by a person OVER 15 but UNDER 18
UNLESS he acted with discernment- rule is the same
even if the minor acted with discernment
Secondary liability on part of the person who caused damage while
under the influence of FEAR or VIOLENCE in the ff instances:
1) Committed by any person who acts under the
compulsion of an IRRESISTABLE FORCE
2) Committed by any person who acts under the impulse
of UNCONTROLLABLE FEAR OF AN EQUAL OR
GREATER INJURY
b. No Liability: Exempting Circumstances if the ff are present:
1) Committed by any person who, while performing a
lawful act with due care, causes and injury by MERE
ACCIDENT without fault or intention of causing it
2) Committed by any person who FAILS TO PERFORM
AN ACT REQUIRED BY LAW, when presented by some
LAWFUL OR INSUPERABLE CAUSE
c. Justifying Circumstances
Civil liability in justifying circumstances is present only in the
situation involving STATE OF NECESSITY; the requisites are:
46
 1) Evil sought to be avoided actually exists
2) Injury feared be greater than that done to avoid it
3) No other practical and less harmful means of
preventing it
- Civil liability is justified because the person sought to be
made liable was benefitted at the expense of another
ANITA TAN v. STANDARD VACUUM OIL CO., et al.
Acquittal of the accused from the criminal charge will not necessarily
extinguish the civil liability UNLESS the court declares in the
judgment that the fact from which the civil liability might arise did
not exist. But the acquittal of the accused cannot be deemed a bar to a
civil action against his COMPANY because its civil liability is
completely divorced from the criminal liability of the accused. The
rule regarding reservation of the right to file a separate civil action
does not apply to it.
5.02 AGGRAVATING AND MITIGATING CIRCUMSTANCES
Article 13. Mitigating circumstances. - The following are mitigating
circumstances;
1. Those mentioned in the preceding chapter, when all the requisites
necessary to justify or to exempt from criminal liability in the
respective cases are not attendant.
2. That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in
accordance with the provisions of Art. 80.
3. That the offender had no intention to commit so grave a wrong as
that committed.
4. That sufficient provocation or threat on the part of the offended
party immediately preceded the act.
5. That the act was committed in the immediate vindication of a
grave offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees.
6. That of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation.
7. That the offender had voluntarily surrendered himself to a person
in authority or his agents, or that he had voluntarily confessed his
guilt before the court prior to the presentation of the evidence for the
prosecution;
8. That the offender is deaf and dumb, blind or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.
9. Such illness of the offender as would diminish the exercise of the
will-power of the offender without however depriving him of the
consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.
Article 14. Aggravating circumstances. - The following are
aggravating circumstances:
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt or with insult to the
public authorities.
3. That the act be committed with insult or in disregard of the respect
due the offended party on account of his rank, age, or sex, or that is
be committed in the dwelling of the offended party, if the latter has
not given provocation.
4. That the act be committed with abuse of confidence or obvious
ungratefulness.
5. That the crime be committed in the palace of the Chief Executive
or in his presence, or where public authorities are engaged in the
discharge of their duties, or in a place dedicated to religious worship.
6. That the crime be committed in the night time, or in an uninhabited
place, or by a band, whenever such circumstances may facilitate the
commission of the offense.
Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have
been committed by a band.
7. That the crime be committed on the occasion of a conflagration,
shipwreck, earthquake, epidemic or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons
who insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall
have been previously convicted by final judgment of another crime
embraced in the same title of this Code.
10. That the offender has been previously punished by an offense to
which the law attaches an equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty.
11. That the crime be committed in consideration of a price, reward,
or promise.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
12. That the crime be committed by means of inundation, fire,
poison, explosion, stranding of a vessel or international damage
thereto, derailment of a locomotive, or by the use of any other artifice
involving great waste and ruin.
13. That the act be committed with evidence premeditation.
14. That the craft, fraud or disguise be employed.
15. That advantage be taken of superior strength, or means be
employed to weaken the defense.
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make.
17. That means be employed or circumstances brought about which
add ignominy to the natural effects of the act.
47
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance of a crime a wall, roof,
floor, door, or window be broken.
20. That the crime be committed with the aid of persons under fifteen
years of age or by means of motor vehicles, motorized watercraft,
airships, or other similar means. (As amended by RA 5438).
21. That the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not necessary for its
commissions.
Article 15. Their concept. - Alternative circumstances are those
which must be taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and the other
conditions attending its commission. They are the relationship,
intoxication and the degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be taken into
consideration when the offended party in the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into consideration as a
mitigating circumstances when the offender has committed a felony
in a state of intoxication, if the same is not habitual or subsequent to
the plan to commit said felony but when the intoxication is habitual
or intentional, it shall be considered as an aggravating circumstance.
Damages to be adjudicated may either be increased or reduced
depending on the presence of aggravating or mitigating
circumstances.
- Exemplary damages may be awarded when the crime was
committed with one or more aggravating circumstances
NO EXEMPLARY DAMAGES IF NO AGGRAVATING
CIRCUMSTANCES ARE PRESENT.
6. EXTINCTION AND SURVIVAL OF LIABILITY
Civil liability under RPC shall be extinguished in the same manner as
obligations in accordance with the NCC.
6.01 Effect of SERVICE OF SENTENCE
Offender shall continue to be obliged to satisfy the civil liability
resulting from the crime committed by him, notwhithstanding the fact
that he has served his sentence.
6.02 Effect of DEATH
BEFORE FINAL JUDGMENT: Relieves the accused of BOTH
criminal and civil liability arising from crime or ex delicto.
The claim for civil liability survives if the same is predicated on a
source of obligation other than delict, notwithstanding the death of
accused.
- Action for recovery may be pursued but only by way of
filing a separate civil action; it may be enforced against the
executor/administrator or estate, depending on the source of
obligation
RULE 111, Sec. 4 RCP
Death AFTER ARRAIGNMENT AND DURING PENDENCY of
criminal action: Extinguish civil liability arising form delict
- However, independent civil action to enforce liability
arising from other sources of obligation may be continued
against the estate or legal representative of the accused
after proper substitution or against said estate
Death BEFORE ARRAIGNMENT: Case shall be DISMISSED
WITHOUT PREJUDICE to any civil action the offended party may
file against the estate of deceased.
6.03 Effect of PARDON
PARDON DOES NOT ERASE CIVIL LIABILITY.
- It does not operate to remove all effects of previous
conviction
7. CONCURRENCE OF CAUSES OF ACTION AND
REMEDIES
Article 2177. Responsibility for fault or negligence under the
preceding article is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the same act or omission
of the defendant.
A single act or omission may give rise to two separate causes of
action.
- It may be based on Quasi-delict or any of Articles 32, 33,
34 NCC
- Subject only to the proscription against double recovery
7.01 REMEDIES
a. ROC Provision, RULE 111
Section 1. Institution of criminal and civil actions. — (a) When a
criminal action is instituted, the civil action for the recovery of
civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately
or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action
shall be made before the prosecution starts presenting its
evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
When the offended party seeks to enforce civil liability against the
accused by way of moral, nominal, temperate, or exemplary damages
without specifying the amount thereof in the complaint or
information, the filing fees thereof shall constitute a first lien on the
judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the
complaint or information, the corresponding filing fees shall be paid
by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be
required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed
by the accused in the criminal case, but any cause of action which
could have been the subject thereof may be litigated in a separate
civil action. (1a)
(b) The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed.
48
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount of
the check involved, which shall be considered as the actual damages
claimed. Where the complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary damages, the
offended party shall pay additional filing fees based on the amounts
alleged therein. If the amounts are not so alleged but any of these
damages are subsequently awarded by the court, the filing fees based
on the amount awarded shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof has
not yet commenced, it may be consolidated with the criminal action
upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing consolidation of the
civil and criminal actions. (cir. 57-97)
Section 2. When separate civil action is suspended. — After the
criminal action has been commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered
in the criminal action.
If the criminal action is filed after the said civil action has already
been instituted, the latter shall be suspended in whatever stage it may
be found before judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal action. Nevertheless,
before judgment on the merits is rendered in the civil action, the same
may, upon motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action. In case of
consolidation, the evidence already adduced in the civil action shall
be deemed automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine the
witnesses presented by the offended party in the criminal case and of
the parties to present additional evidence. The consolidated criminal
and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the
period of prescription of the civil action which cannot be
instituted separately or whose proceeding has been suspended
shall be tolled. (n)
The extinction of the penal action does not carry with it
extinction of the civil action. However, the civil action based on
delict shall be deemed extinguished if there is a finding in a final
judgment in the criminal action that the act or omission from
which the civil liability may arise did not exist. (2a)
Section 3. When civil action may proceeded independently. — In the
cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code
of the Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action
and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same
act or omission charged in the criminal action. (3a)
Section 4. Effect of death on civil actions. — The death of the
accused after arraignment and during the pendency of the criminal
action shall extinguish the civil liability arising from the delict.
However, the independent civil action instituted under section 3 of
this Rule or which thereafter is instituted to enforce liability arising
from other sources of obligation may be continued against the estate
or legal representative of the accused after proper substitution or
against said estate, as the case may be. The heirs of the accused may
be substituted for the deceased without requiring the appointment of
an executor or administrator and the court may appoint a guardian ad
litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
A final judgment entered in favor of the offended party shall be
enforced in the manner especially provided in these rules for
prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed
without prejudice to any civil action the offended party may file
against the estate of the deceased. (n)
Section 5. Judgment in civil action not a bar. — A final judgment
rendered in a civil action absolving the defendant from civil liability
is not a bar to a criminal action against the defendant for the same act
or omission subject of the civil action. (4a)
Section 6. Suspension by reason of prejudicial question. — A
petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed in the
office of the prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal action
at any time before the prosecution rests. (6a)
Section 7. Elements of prejudicial question. — The elements of a
prejudicial question are: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in
the subsequent criminal action, and (b) the resolution of such issue
determines whether or not the criminal action may proceed
b. NCC Provisions
Article 29. When the accused in a criminal prosecution is acquitted
on the ground that his guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission may be
instituted. Such action requires only a preponderance of evidence.
Upon motion of the defendant, the court may require the plaintiff to
TORTS AND DAMAGES by TIMOTEO B. AQUINO
file a bond to answer for damages in case the complaint should be
found to be malicious.
If in a criminal case the judgment of acquittal is based upon
reasonable doubt, the court shall so declare. In the absence of any
declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground.
Article 30. When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal proceedings
are instituted during the pendency of the civil case, a preponderance
of evidence shall likewise be sufficient to prove the act complained
of.
Article 31. When the civil action is based on an obligation not arising
from the act or omission complained of as a felony, such civil action
may proceed independently of the criminal proceedings and
regardless of the result of the latter.
c. Dependent Civil Actions
Civil liability arising from crime is impliedly instituted with the
criminal action but a separate case may be filed to enforce the same
49
Rules:
1) If a case was filed ahead of criminal case: Separate
action shall be suspended until a final judgment is
rendered in the criminal case
2) If no case is filed: a separate case cannot be filed until
the rendition of final judgment
3) Civil liability is extinguished if the criminal case
resulted in an acquittal with a finding that the act
complained of was not actually committed by the
accused

d. Effect of ACQUITTAL
If the accused is acquitted on the ground that the act complained of
was not committed: Civil liability arising from crime is extinguished
but not to civil liability arising from quasi-delict
- The responsibility arising from fault or negligence in quasi-
delict is entirely separate and distinct from that arising from
negligence under the RPC
- When accused in a criminal prosecution is acquitted in the
ground that his guilt has not been proved beyond
reasonable doubt, civil action for damages for same act or
omission may be instituted

e. NO RESERVATION REQUIREMENT FOR INDEPENDENT

CIVIL ACTIONS

f. Accused’s Right to File

8. PREJUDICIAL QUESTION

TORTS AND DAMAGES by TIMOTEO B. AQUINO

50
 CHAPTER 12
THE DEFENDANTS
Defendants – persons who may be sued for tort, particularly those
who may be held for quasi-delict under Art. 2176 of the Civil Code.
Both natural and juridical persons may be held liable for quasi-delict.
With respect to juridical persons, the liability is, in a sense, always
imputed because artificial beings act only through their officers,
employees agents. Even the State and its political subdivisions, may,
in proper cases, be subject to civil liability.
I. CONCURRENT NEGLIGENCE
1. JOINT TORTFEASORS
ART. 2194. The responsibility of two or more persons who are
liable for quasi-delict is solidary.
 Where several causes producing an 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 although under the circumstances of the
case, it may appear that one of them was more culpable, and that
the duty owed by them to the injured person was not the same.
 No actor’s negligence ceases to be a proximate cause merely
because it does not exceed the negligence of other actors.
 Each wrongdoer is responsible for the entire result and is liable
as though his acts were the sole cause of the injury.
 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, it is impossible to determine in what proportion
each contributed to the injury and either of them is responsible
for the whole injury.
 Where their concurring negligence resulted in injury or damage
to a third party, they become joint tortfeasors and are solidarily
liable for the resulting damage under Art. 2194 of the NCC.
 If several persons jointly commit a tort, the plaintiff or
person injured, has his election to sue all or some of the
parties jointly, or one of them separately, because the tort is
in its nature a separate act of each individual.
 Who can be considered JOINT TORTFEASORS:
 General Rule: All the persons who command, instigate,
promote, encourage, advise, 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
PRINCIPALS, to the same extent and in the same manner
as if they had performed the wrongful act themselves.
a. Joint Tortfeasor by Cooperation
 Occurs when the defendants cooperated in bringing
about a result.
o EX: by virtue of a written agreement
b. Part of Causal Set
 Occurs when each of the acts of the defendants are
part of a causal set that is sufficient to cause the
damage to the plaintiff.
 Defendant may have acted with prior agreement or
independently but the totality of their acts or
omissions collectively caused the damage or injury.
 Solidary liability exists not only if the defendants
conspired to bring about the result but also in cases
where causes are independent of each other.
c. Separate Causal Set
 Occurs when defendants acted separately or
independently and even without prior agreement or
relationship or connection with each other.
o EX: the proximate causes of the injury are
two causal sets which are separately
sufficient to cause the injury, both persons
who are the authors of the two separate
causes are liable jointly and severally.
2. REIMBURSEMENT AND APPORTIONMENT OF
LIABILITY
ART. 1217. Payment made by one of the solidary debtors
extinguishes the obligation. If two or more solidary debtors offer
to pay, the creditor may choose which offer to accept.
He who made the payment may claim from his co-debtors only
the share which corresponds to each, with the interest for the
payment already made. If the payment is made before the debt is
due, no interest for the intervening period may be demanded.
When one of the solidary debtors cannot, because of his
insolvency, reimburse his share to the debtor paying the
obligation, such share shall be borne by all his co-debtors, in
proportion to the debt of each.
ART. 1218. Payment by a solidary debtor shall not entitle him to
reimbursement from his co-debtors if such payment is made after
the obligation has prescribed or become illegal.
 The joint tortfeasors owe solidary liability to the injured party.
 As against the injured party, one of the joint tortfeasors cannot
claim that his contribution is smaller than the contribution of the
other joint tortfeasors.
 No apportionment will be made because one tortfeasor may be
held for the entire obligation.
 The damages CANNOT be apportioned among them, EXCEPT
TORTS AND DAMAGES by TIMOTEO B. AQUINO
among themselves.
 They are jointly and severally liable for the full amount.
 However, there can be apportionment among the tortfeasors.
 Comparative Negligence Rule among Defendants
 RECOGNIZED!
 As between the two parties who are responsible, it can
be established that the extent of participation of one
party in causing the loss may be greater than the
participation of another party. The shares of the
persons who are responsible are not necessarily equal.
This applies to joint tortfeasors as between
themselves.
 While each tortfeasor may be made liable for the
entire claim to the injured party, one tortfeasor may
ultimately share more than the other tortfeasor as
between themselves (joint tortfeasors).
3. MOTOR VEHICLE MISHAPS
ART. 2184. In motor vehicle mishaps, the owner is solidarily
liable with his driver, if the former, who was in the vehicle, could
have, by the use of due diligence, prevented the misfortune. It is
51
disputably presumed that a driver was negligent, if he had been
found guilty of reckless driving or violating traffic regulations at
least twice within the next preceding two months.
If the owner was not in the motor vehicle, the provisions of Art.
2180 are applicable.
 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 owner who is present is liable if the negligent acts of the
driver are continued for such a length of time so as to give the
owner a reasonable opportunity to observe them and to direct his
driver to desist therefrom.
 BASIS: relationship of pater familias
 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.
 The test is subjective: the owner’s omission to do that
which the evidence of his own senses tells him he
should do in order to avoid the accident.
II. VICARIOUS LIABILITY
1. GENERAL CONCEPTS
a. 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.
b. ―Doctrine of Imputed Negligence‖
c. Liability is limited to cases in which the person upon whom
such obligatin is imposed is morally culpable or, on the
contrary, for reasons of public policy, to extend that
liability, without regard to the lack of moral culpability, so
as to include responsibility for the negligence of those
persons whose acts or omissions are imputable, by legal
fiction, to others who are in a position to exercise an
absolute or limited control over them.
d. MORAL RESPONSIBILITY may consist in having failed
to exercise due care in one’s own acts, or in having failed
to exercise due care in the selection and control of one’s
agents or servants, or in the control of persons who, by
reasons of their status, occupy a position of dependency
with respect to the person made liable for their conduct.
a. Doctrine of Respondeat Superior NOT Applicable
 RESPONDEAT SUPERIOR
o Liability is strictly imputed i.e. the employer
is liable not because of his act or omission
but because of the act or omission of the
employee.
o What is material is not whether the
employer exercised due care but the conduct
of the employee.
o The employer cannot escape liability by
claiming that he excercised due diligence in
the selection or supervision of the employee.
 In the PH, employers or the parents are made liable
NOT only becayse of the negligent or wrongful act of
the person for whom they are responsible but also
because of their own negligence.
 Liability is imposed on the employer because he failed
to exercise due diligence in the selection and
supervision of his employee while parents are made
liable because they failed to exercise diligence in the
supervision of their child who lives in their company.
 There is NO NEED for a DIRECT LINK between
their act or omission and the injury.
 The operative act or omission is still the act or
omission of the employee or child and the negligence
or wrongful conduct is imputed to the person
responsible for them.
b. Exception: When Respondeat Superior Applies
 ART. 103 of the RPC
o The employer is made liable for the
negligence of another irrespective of his
exercise of due care.
 ART. 1182 and 1183 of the NCC
o Liability of the Partnership for the tort
committed by the partner.
2. STATUTORY PROVISIONS
a. New Civil Code
ART. 2180. The obligations imposed by Art. 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 ocassion of their functions.
Employers shall be liable for damages caused by their employees
and household hepers acting within the scope of their assigned
tasks, even though the former are not engaged in any business or
industry.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
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 Art. 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.
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.
ART. 2182. If the minor or insane person causing the damage has
no parents or guardian, the minor or insame person shall be
answerable with his own property in an action against him where
a guardian ad litem shall be appointed.
b. Child and Youth Welfare Code
52
ART. 58. Torts. – Parents and guardians are responsible for the
damage caused by the child under their parental authority in
accordance with the Civil Code.
ART. 201. Civil Liability of Youthful Offenders. – The civil
liability for acts committed by a youthful offender shall devolve
upon the offender’s father and, in case of [his] death or
incapacity, upon the mother, or in case of her death or
incapacity, upon the guardian. Civil liability may also be
voluntarily assumed by a relative or family friend of the youthful
offender.
c. Family Code
ART. 218. The school, its administrators and teachers, or the
individual, entity, or institution engaged in child care shall have
special parental authority and responsibility over the minor child
while under their supervisiosn, instruction, or custody.
Authority and responsibility shall apply to all authorized
activities whether inside or outside the premises of the school,
entity, or institution.
ART. 219. Those given the authority and resposibility under the
preceding Article shall be principally and solidarily liable for
damages caused by the acts or omissions of the unemancipated
minor. The parents, judicial guardians, or the persons exercising
substitute parental authority over said minor shall be
subsidiarily liable.
The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the
proper diligene required under the particular circumstances.
ART. 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children
living in their company and under their parental authority
subject to the appropriate defenses provided by law.
ART. 236. Emancipation shall terminate parental authority over
the person and property of the child who shall then be qualified
and responsible for all acts of civil life, save the exceptions
established by existing laws in special cases.
Contracting marriage shall require parental consent until the age
of twenty-one.
Nothing in this Code shall be construed to derogate from the duty
or responsibility of parents or guardians for children and wards
below twenty-one years of age mentioned in the second and third
paragraphs of Art. 2180 of the Civil Code.
d. Revised Penal Code
ART. 101. Rules regarding civil liability in certain cases. – The
exemption from criminal liability established in subdivisions 1,2,
3 5, and 6 of Art. 12 and in subdivision 4 of Art. 11 of this Code
does not include exemption from civil liabilty, which shall be
enforced subject to the ff. rules:
First. In cases of subdivisions 1,2, and 3 of Art. 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 Art. 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
approimately, 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 Art. 12, the
persons using violence or causing the fears shall be primarily
liable and secondarily, if there be no such persons, those doing
the act shall be liable, saving always to the latter that part of the
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 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 paymen of the value thereof, provided that
such guests shall have notified in advance the innkeeper himself,
TORTS AND DAMAGES by TIMOTEO B. AQUINO
or the person representing him, of the deposit of such goods
within the inn, and shall furthermore have followed the direction
which such innkeeper or his representative may have followed
the directions which such innekeeper 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.
3. PARENTS AND OTHER PERSONS EXERCISING
PARENTAL AUTHORITY
a. Liability for acts of MINORS in CIVIL LAW
a. Basis of Liability: PARENTAL AUTHORITY
 That which imposes upon them the duty of
supporting their children, keeping them in
53
 their company and educating them in
proportion to their means and gives them the
right to correct and punish their children in
moderation
 Duty to exercise special vigilance over the
acts of their children and wards in order that
damages to third persons due to the
ignorance, lack of foresight, or discernment
of such children and wards may be avoided.
b. Persons Liable
 PARENTS
 Those exercising SUBSTITUTE
PARENTAL AUTHORITY and SPECIAL
PARENTAL AUTHORITY
o Adopter
o Court appointed guardian
 Effect of Absence of Parents:
o ART. 214. In case of death,
absence, or unsuitability of
parents, substitute parental
authority shall be exercised by
the surviving grandparent. In
case several survuve, the one
designated by the court, taking
into account the same
consideration mentioned in the
preceding article, shall exercise
the authority.
o ART. 216. In default of parents
or a judicially appointed
guardian, the following persons
shall exercise substitute parental
authority over the child in the
order indicated:
1. The surviving
grandparent, as
provided in Art. 214;
2. The oldest brother or
sister, over twenty-one
years of age, unless
unfit or disqualified;
and
3. The child’s actual
custodian, over twenty-
one years of age, unless
unfit or disqualified.
Whenever the appointmen of a
judicial guardian over the
property of the child becomes
necessary, the same order of
preference shall be observed.
c. Scope of Liability
 Extends to both negligent and intentional
acts
d. Nature of Liability
 Both parents are PRIMARILY liable for the
damages caused by their child.
e. Other requirements
 NOTE: Under RA 6809, there is no longer
any instance when a minor may be
emancipated before he reaches the age of
majority.
b. Liabiity for acts of CHILDREN OF MAJORITY AGE
 EMANCIPATION
o takes place by the attainment of the age of
majority. (Art. 234, Civil Code)
o terminate parental authority over the person
and property of the child who shall then be
qualified and responsible for all acts of civil
life. (Art. 236, Family Code)
o Art. 236 of the Family Code, as amended
by RA 6809:
Nothing in this Code shall be construed to
derogate from the duty or responsibility
of parents and guardians for children and
wards below 21 years of age mentioned in
the second and third paragraph of Art.
2180 of the Civil Code.
o Parents/Guardians can still be held liable
even if the minor is already emancipated by
reaching the age of 18 provided that he is
below 21 years of age.
o ―RESPONSIBILITY WITHOUT
AUTHORITY‖
 Basis: MORAL
RESPONSIBILITY and the
POWER exercised over children
who live in their company
 The parents are still
made liable because
they are the persons who
are financially capable
of satisfying any
judgment obligation.
c. Civil liability of Parents Ex Delicto
a. Children 15 years and below
 RA 9344
 All minors 15 years and below are
CONCLUSIVELY PRESUMED to have
acted without discernment because of the
exemption from liability of minors of such
TORTS AND DAMAGES by TIMOTEO B. AQUINO
age.
b. Children who are over 15 years but below 18
 YOUTHFUL OFFENDERS / CHILD IN
CONFLICT WITH THE LAW
 Persons who are exercising legal authority
are PRIMARILY LIABLE for acts of their
chilren who are over 15 years but under 18
who acted with discernment.
 Parents or guardians are liable under Art.
201 of PD 603 for the minor’s civil liability
arising from delict.
 If the monir who is over 15 did NOT act
with discernment, the liability can also be
imposed under Art. 221 of the Family Code.
c. Children below 21
 Parents/Guardians are still PRIMARILY
LIABLE.
o This is to attach certain liability to
the person who has the delinquent
minor under his authority or
control.
54

d. Defense of Exercise of Due Diligence
 The fault or negligence is presumed.
 The burden of proving otherwise rests on the
parents and persons exercising parental
authority.
 Required diligence: DOAGFOAF
o Instruction and supervision of the
child – duty and responsibility in
monitoring and knowing the
activities of their children esp. if
they are engaged in dangerous
work
o Consider attendant circumsntances
in every individual case, to
determine WON by the exercise of
such diligence, the damage could
have been prevented.
o Question of FORESEEABILITY.
o The general test of negligence
should apply.
4. LIABILITY OF GUARDIANS OF INCAPACITATED
ADULTS
 GUARDIAN – a person in whom the law has entrusted the
custody and control of the person or estate or both of infant,
insane, or other persons incapable of managing his own
affair.
 GUARDIANSHIP involves not only custody, that is
immediate care and control, but those of one in loco
parentis as well.
 Hence, even if their ward is already of age, guardians have
the same liability as persons exercising parental authority.
 SEC. 2 of RULE 92 of the RoC:
“Incompetent” – persons suffering the penalty of civil
interdiction or who are hospitalized lepers, prodigals,
deaf, and dumb who are unable to read and write, those
who are of unsound mind, even though they have lucid
intervals, and persons not being of sound mind, but by
reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, take care of
themselves and manage their property, becoming
thereby an easy prey for deceit and exploitation.
 ART. 38 of the NCC:
Minority, insanity or imbecility, the state of being a
deaf-mute, prodigality, and civil interdiction are mere
restrictions on capacacity to act, and do not exempt the
incapacitated persons from certain obligations, as when
the latter arise from his acts or from property relations,
such as easements.
 ART. 39 of the NCC:
The following circumstances, among others, modify or
limit capacity to act: age, insanity, the state of being
deaf-mute, penalty, prodigality, family relations,
alienage, asence, insolvency, and trusteeship x x x
 Not all guardians of incompetents are vicariously liable.
 Under ART. 101 of RPC, liablity is imposed only
on guardians of insane and imbecile persons.
 Under ART. 2180 of NCC, liability is imposed
only on guardians of incapacitated persons who
has the legal authority over them and who live in
their company.
5. SCHOOLS, TEACHERS, AND ADMINISTRATORS
 Art. 218 of the Family Code
5.01. Vicarious Liability under the Family Code
a. Persons liable
 School (Academic/Non-Academic)
 Administrators
 Teachers
 Individual/entity/institution engaged in child care
(day-care centers, establishments found in
shopping malls that charge on a per hour basis for
taking care of children)
 Liability is JOINT AND SOLIDARY. (Art.
2194, NCC)
b. Subsidiary Liability of Parents
 See Art. 219, FC.
 Parents are only subsidiarily liable because
persons exercising SPECIAL PARENTAL
AUTHORITY replace the primary authority of
parents when the minor is udner their custody.
 Although parental authority remains, the parent is
not supposed to interfere with the discipline of
the school nor with the authority and supervision
of the teacher while the child is under instruction.
c. Supervision, Instruction, or Custody
 See Art. 218, FC.
 The student is deemed in custody of the school
authorities as long as he is under the control and
influence of the school and within its premises,
whether the semester has not yet begun or has
already ended.
o During such periods, the school is still
subject to the disciplinary authority of
the school and cannot consider himself
released altogether from observance of
its rules.
 As long as it can be shown that the student is in
the school premises in pursuance of a legitimate
student objective, in the exercise of a legitimate
student right, and even in the enjoyment of a
legitimate student privilege, the responsibility of
TORTS AND DAMAGES by TIMOTEO B. AQUINO
the school authorities over the student continues.
 Official Activities Inside and Outside School –
INCLUDED
o Provided that the activity was an
authorized activity
o Includes the extracurricular activities
5.02. Vicarious Liability under the New Civil Code
a. Effect of Family Code
 Basis of Liability under Art. 219, FC:
SPECIAL PARENTAL AUTHORITY
 Application of Art. 2180 extends to acts or
omissions of students who are already
beyond the age of majority.
o A student over 21, by enrolling
and attending a school, places
himself under the custodial
supervision and disciplinary
authority of the school authorities,
which is the basis of the latter’s
correlative responsibility for his
torts, committed while under such
authority.
55
 o The teacher’s control is not as
plenary as when the student is a
minor but the circumstance can
only affect the degree of the
responsibility but cannot negate
the existence thereof. It is only a
factor to be appreciated in
determining whether or not the
defendant has exercised due
diligence in endeavoring to
prevent the injry.
b. Rules under Art. 2180
i. Art. 2180 makes teachers and heads
liable for acts of students and
apprentices whether the latter are
minors or not.
ii. The teachers-in-charge is liable for the
acts of his students. The school and
administrators are not liable.
iii. By way of 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.
iv. The liability of the teacher subsists
whether the school is acadmic or non-
academic.
v. 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 long as he is
under the control and influence of the
school and within its premises, whether
the semester has not yet begun or has
already ended.
5.03. Other Bases of Liability for Schools
1. Quasi-Delict (Art. 2176, NCC)
 Even in the absence of a contract, the
school may still be liable as en
employer under Art. 2176.
 Hence, there may simultaneously be
two basis of liability: contract and
quasi-delict.
 NOTE: Art. 2177, NCC – proscription
against double recovery
2. Special Parental Authority (Art. 2180, NCC; Art.
219, FC)
 Failure to exercise due diligence in the
performance of the duties that are
concomitant with the exercise of SPA.
 There is a corresponding responsibility
to take care of the minor student with
the diligence of a good father of a
family.
 Included is the school’s duty to provide
the students with adequate security and
safe facilities.
 Liability under Art. 19, 20, 21, and
2176 may be iimposed.
3. Employer (Art. 2180, NCC)
 Vicarious liability of an employer for
negligence
 The school can escape liability if it can
establish that it exercised due diligence
in the selection and supervision of their
employees (including teachers).
4. Contract (NCC)
 School is liable as a contracting party
even if a non-student inflicted the
injury.
 PSBA v. CA: A learning institution
should not be allowed to completely
relinquish or abdicate security matters
in its premises to the security agency it
hired. To do so would result to
contracting away its inherent obligation
to ensure a safe learning environment
for its students.
 NOTE: Art. 1170, NCC
5. Abuse of Right / Acts Contra Bonus Mores (Art.
19 & 21, NCC)
6. Ex Delicto (Art. 101, RPC)
5.04. Liability of Teachers under the Revised Penal Code
 See Art. 102 and 103, RPC
 The requirement of insolvency of the accused as well
as other elements is also applicable to teachers.
 Hence, a tracher is liable whetehr he is employed in an
academic or non-academic institution and whether the
pupil is a minor or not.
6. EMPLOYERS
 ENTERPRISE THEORY OF VICARIOUS LIABILITY
o Justification: a rule of policy, a deliberate
allocation of risj
o ―The losses caused by the torts of employees,
which as a practical matter are sure to occur in
the conduct of the employer’s enterprise, are
placed upon that enterprise itself, as a required
cost of doing business. They are placed upon the
employee because, having engaged in an
enteprise, which will on the basis of all past
experience involve harm to others through the
tort of employees and sought to profit by it, it is
just that he, rather than the innocent injured
plaintiff, should bear them; and because he is
better able to absorb them, and to distribute them,
TORTS AND DAMAGES by TIMOTEO B. AQUINO
through prices, rates, or liability insurance, to the
public, and so to shift them to society, to the
community at large. Added to this is the
makeweight argument that an employer who is
held strictly liable is under the greatest incentive
to be careful in the selection, instruction, and
supervision of his servants, and to take every
precaution to see that the enterprise is conducted
safely.‖
6.01. Liability of Employers under the New Civil Code
 See Art. 2180.
 Liability is direct and primary; and solidary with the
employee.
 The employee is not an indispensable party in a case
against the employer.
 It is not necessary for the court to acquire jurisdiction
over the employee because there is no merger or
renunciation of rights but only MUTUAL
REPRESENTATION. Complete relief is available
from either.
 The liability can be established by proving the
existence of an employer-employee relationship with
56
 the actor and that the latter caused the injury while
performing his assigned task or functions.
 The employer can excape liability by establishing that
he exercised due diligence in the selection and
superivision of the employee.
a. Requisites:
1) Employer-employee relationshi between the
person sought to be made vicariously liable
and the negligenct employee.
2) Liability for quasi-delict of the employee.
 The offended party must establish
fault or negligence on the part of
the employee which was the
proximate cause of the offended
party’s damage or loss. The
liability of the employee must be
independently established.
3) Performance by the employee of the task
assigned by the employer or the latter’s
authorized representative or employee when
damagee or injury was inflicted through
fault or negligence was committted.
b. Performance of Industry Not Necessary
 It is not necessary that the employer is engaged in
some kind of industry or work.
 Art. 2180(4) covers negligent acts of employees
committed either in the service of the branches or
on the occasion of their functions.
 Art. 2180(5) encompasses negligent acts of
employees acting within the scope of their
assigned task.
 Negligent acts of employees, WON the employer
is engaged in a business or industry, are covered
so long as they were acting within the scope of
their assigned task, even though committed
neither in the service of the branches nor on the
occasion of their functions.
c. Meaning of Manager
 MANAGER = EMPLOYER, not the one referred
to under the Labor Code.
 NOTE: Gen rule: a public official is NOT liable
for the wrongful acts of his subordinates on a
vicarious basis since the relationship is not a true
master-servant situation; Exception: When they
cooperate in the act complained of, or direct or
encourage it.
d. Proof of Employer-Employee Relationship
 It is imperative that the presence of employer-
employee relationship be established although it
is not necessary that the employer be engaged in
any business or indsutry.
 ―PRESUMPTION‖ – an inference as to the
existence of a fact not actually know, arising
from its usual connection with anohter which is
known or a conjecture based on past experience
as to what course human affairs ordinarily take.
o Presumption juris (of law)
o Presumption hominis (of fact)
 PLAINTIFF has the burden of proof to establish
employer-employee relationship.
 If the plaintiff upon whom rests the burden of
proving his cause of action, fails to show in a
satisfactory manner the facts upon which he
bases his claim, the defendant is under no
obligation to prove his exception or defense.
e. Determination of Employer-Employee Relationship
 CONTROL TEST:
 A person can still be considered the
employer even if he does not consider
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.
 Independent Contracts
 One who hires n independent
contractor but control’s the latter’s
work is responsible for the latter’s
negligence.
 If the person hired is a true independent
contractor, the person who hired him is
NOT liable.
 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. (ART. 1728, NCC)
 THUS, for example, a school is not
liable as employer for the acts of the
guard manning its premises if the latter
was employed by a security agency
which is separate and distinct from the
school. There is no employer-employee
relationship.
 Borrowed Employee Rule
 Employer-employee relatioship still
exists even if the employer loaned the
employee to another person or entity.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 The temporary assignment does not
sever the relationship because control
over the employee subsists.
 Working Scholars
 They are still considered as employees
for purposes of Art. 2180 of the NCC.
 Labor-only Contracting
 Employer’s liability is DIRECT,
PRIMARY, and SOLIDARY.
 Job (independent) contracting is present
if the ff. conditions are met:
a. The contractor carries on an
independent business and
undertakes the contract work
on his own account under his
own responsibility according
to his own manner and
method, free from the control
and direction of his employer
or principal in all matters
connected with the
performance of the work
57
 except to the result thereof;
and
b. The contractor has substantial
capital or investments in the
form of tools, equipment,
machineries, work premises,
and other materials which are
necessary in the conduct of
his business.
 Labor only contracting exists when one
of the requisites is absent under which
the person acting as contractor is
considered merely as an AGENT or
INTERMEDIARY of the principal who
is responsiible to the workers in the
same manner and to the same extent as
if they had been directly employed by
him.
o There is an employer-
employee relationship
between the principal
employer and the employees
of the labor-only contractor.
o The principal employer who
enters into an agreement with
a job contractor, either for the
performance of a specified
work or for the supply of
manpower, assumes
responsibility over the
employees of the latter.
f. Performance of Assigned Task
 This includes any act done by the employee in
furtherance of the interest of the employer at the
time of the infliction of the injury or damage.
 It is not necessary that the task performed by the
employee is his regular job or that which was
expressly given to him by the employer.
 It is enough that the task is indispensable to the
business or beneficial to the employer.
 Vicarious liability attaches only when the tortous
conduct of the employee relates to, or is in the
course of his employment.
 Question: Whether, at the time of the damage or
injury, the employer is engaged in the affairs or
concerns of the employer, or, independently, in
that of his own.
 While the employer incurs no liability when the
employee’s conduct, 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 the employer.
 The employer is not expected to exercise
supervision over their employee’s private activity
or during the performance of taskes either
unsanctioned by the fomer or unrelated to the
employee’s task.
 Deviation from Work
 Operation of Employer’s Motor Vehicle in Going To and From
Meals
 Employee is NOT ordinarily acting within the scope
of his employment in the absence of evidence of some
special business benefit to the employer.
 Evidence that by using the employer’s vehicle to go to
and from meals, an employee is enabled to reduce his
time-off and so devote more time to the performance
of his duties supports the findings that an employee is
acting within the scope of his employment while so
driving the vehicle.
 Operation of Employer’s Vehicle in Going to and From Work
 Generally, this is not part of an employee’s services to
his employer.
 Hence, in the absnece of some special benefit to the
employer other than the mere performance of the
services available at the place where he is needed, the
employee is NOT acting within the scope of his
employment even though he uses his employer’s
vehicle.
 The employer may, however, be liable where he
derives some special benefit from having the
employee drive home in the employer’s vehicle as
when the employer benefits from having the employee
at work earlier and presumbly, spending more time at
his actual duties.
 ―‖SPECIAL ERRAND‖ or ―ROVING
COMMISSION‖ Rule
 Employee continues in the service of his
employer until he actually reaches home.
 Use of Employer’s Vehicle Outside Regular Working Hours
 An employer who loans his motor vehicle to an
employee for the latter’s personal use outside of
regular working hours is generally NOT liable for the
employee’s negligent operation of the vehicle during
the period of permissive use, even where the employer
contemplates that a regularly assigned motor vehicle
will be used by the employee for personal as well as
business purposes and there is some incidental benefit
to the employer.
 Basis: Doctrine of respondeat superior
 Using of one’s sefvie vehicle even for
personal purposes is a form of fringe benefit
or one of the perks attached to one’s
position.
g. Presumption of Negligence
 The employer is presumed negligent and the presumption flows from
the negligence of the employee.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 The presumption is only juris tantum, not juris et de jure.
 It is rebuttable only by proof of observance of the DOAGFOAD in
the selection and supervision of employees.
 Nonetheless, the negligence of the employee must first be
established.
h. Defenses of Employer
 It must be shown by concrete proof, including documentary evidence.
 No particular acts are required for the employer to establish that he
exercised proper diligence.
 Diligence in Selection
o Due diligence in the selection of the employee requires the
examiniation of the applicants as to their qualifications,
experience, and service records.
o This may include the requirement that the applicants submit
the necessary license or clearances and the employees be
required to undergo examinatio, tests, and trainiig.
o No law requires the passing of psychological and physical
tests prior to the employment, such circumstance would be
a reliable indicia of the exercise of due diligence.
 Diligence in Supervision
58
 o Supervision depends on the circumstances of the
employment.
o This may include the promulgation of proper rules and
regulations and the formulation and publication of proper
instructions for the employee’s guidance in case where
such rules and regulations and instructions are necessary.
o There must also be showing that such are being complied
with.
o It is incumbent upon the employer to sho that in recruiting
and employing the erring employee, the recruitment
procedures and company policies on efficiency and safety
were followed.
o Employers must formulate SOPs, monitor their
implementation, and impose discipline for breaches thereof.
i. Solidary Liability
 The aggrieved party may chose to sue either or both of the employee
and employer.
 If only the employer is sued and made liable for the damages caused
by his employee, he may recover from the employee what he has paid
or delivered in satisfaction of his claim.
 If the plaintiff decides to sue only the employee, no right of
reimbursement accrues.
 Each debtor is liable to pay for the entire obligation, either paty
indispensable, and it is not necessary to join the other.
 Employer is NOT solidarily liable with his insurer.
o THIRD PARTY LIABILITY INSURANCE
1. The insurer of the offending vehicle is
DIRECTLY, not solidarily, liable.
2. The liability of the insurer is based on contract;
the liability of the insured is based on tort.
j. Registered Owner Rule
 Rationale
o 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 at the time of the accident.
o The registered owner is liable to the injured party subject to
his right of recourse against the transferee or buyer.
o Recall: Transpo cases
o The main aim of motor vehicle registration is to identify the
owner so that if any accident happens, or that any damage
or injury is caused by the vehicle running on public
highways, responsibility therefor can be fixed on a definite
individual, the registered owner.
 Proof
o The persons invoking the rule a particular defendant must
prove that the said defendant is the registered owner of the
vehicle.
o The best evidence is the certificate of registration.
 Liability of Transferee
o Transferee is liable to the registered owner for the damages
caused to the passenger.
o A third party complaint against the transferee may be
appropriate in a case filed by the injured passenger against
the registered owner.
 Quasi-Delict Cases
o Usually applied to common carriers but SC extended the
application to private vehicles.
o Unless registered with the LTO, the sale – while valid and
binding between the parties – does not affect third parties,
especially the victims of accidents involving the vehicle.
 Leased Vehicles
o Registered owner rule applies.
o The registered owner is DIRECTLY liable.
o In order to be free from liability, the lessor-owner should
register the lease contract with the LTO.
o The evil sought to be avoided is the exacerbation of the
suffering of victims of tragic vehicular accidents in not
being able to identify a guilty party.
 Vehicles under Financial Lease
o FINANCIAL LEASE – a mode of extending credit through
a non-cancellable lease contract under which the lessor
purchases or acquires, at the instance of the lessee,
machinery, equipment, motor vehicles, appliances, business
and office machines, and other movable or immovable
property in consideration of the periodic payment by the
lessee of a fixed amount of money sufficient to amortize at
least 70% of the purchase price or acquisition cost,
including any incidental expenses and a margin of profit
over an obligatory period of not less than 2 years during
which the lessee has the right to hold and use the leased
property but with no obligation or option on his part to
purchase the leased property from the owner –lessor at the
end of the lease contract. (RA 5980 as amended by RA
8556, Sec. 3(d))
o Financing companies shall NOT be libale for loss, damage,
injury caused by a motor vehicle, aircraft, vessel,
equipment, machinery, or other property leased to a third
person or entity EXCEPT when the motor vehicle, aircraft,
vessel, equipment, or other property is operated by the
financing company, its employees or agents at the time of
the loss, damage, or injury. (Sec. 12, RA 8556)
o The non-registration of the financial lease precludes
enjoyment of the aforementioned benefits.
 Stolen Vehicles
o Registered owner is NOT liable if the vehicle is taken from
his garage without his knowledge and consent.
 Effect on Vicarious Nature of Liability
o TWO possible situations: either the new owner or
transferee was the driver at the time of the accdient or it
TORTS AND DAMAGES by TIMOTEO B. AQUINO
could be the employee or agent of the transferee who was
driving the vehicle.
o The nature of the vicarious liability can and should still be
maintained even if the registered owner rule will be applied
in a situation where the employee of the transferee was the
driver.
o The new owner is deemed an extension of the personality
of the registered owner.
o The registered owner should be allowed to set up the
defense of due diligence in the selection and supervision of
the employee by allowing him to prove that the new owner
exercised due diligence in the selection an supervision of
the driver.
 When the Registered Owner is Solidarily Liable
o The registered owner and the officer of the registered
owner are solidarily liable as joint-employers.
 Kabit System
o The registered owner rule is applicable.
o KABIT SYSTEM – an arrangement whereby a person who
has been granted a certificate of public convenience allows
other persons who own motor vehicles to operate them
59
 under his license, sometimes for a fee or percentage of the
earnings.
o It is contrary to public policy, hence, void and inexistent.
(Art. 1409, NCC)
o One of the primary factors considered in granting the
certificate of pulic convenience is the financial capacity of
the holder of the license, so that liabilities arising from
accidents may be duly compensated.
o For the safety of passengers and the public who may have
been wronged and deceived through the baneful ―kabit
system‖, the registered owner of the vehicle is not allowed
to prove that another person has become the owner so that
he may be thereby relieved of responsibility.
6.02. Liability of Employers under the Revised Penal Code
1. See Art. 103, RPC
2. Requisites of Liability:
1. That the person sought to be made liable is
indeed the employer of the convicted
accused;
2. That the employer is engaged in any kind of
industry;
3. That the employee was convicted of the
offense committed in the discharge of his
duties; and
4. That the employee is insolvent.
3. INDUSTRY – any department or branch of arts,
occupation or business especially where one which
employes such labor and capital and is thus a distinct
branch of trade e.g. the sugar industry.
4. Prosecution and Conviction – condition sine qua non
5. The employer becomes ipso facto subsidiarily liable
upon the conviction of the employee upon proof of the
latter’s insolvency.
6. The liability of the employer cannot be separated from
that of the employee.
7. The trial court need not expressly pronouce the
subsidiarily liablity of the employer in the dispositive
portion of the decision convicting the employee.
8. There is conclusiveness of conviction.
9. Hence, the employer cannot appeal.
10. INSOLVENCY – the inability or the lack of means to
pay one’s debts as they fall due.
11. It may be established using the return of the sheriff
that writ of execution was returned unsatisifed because
the accused had no property OR through the certificate
of the Director of Prisons that the employee is serving
or has serves subsidiary imprisonement by reason of
insolvency.
12. Liability my be enforced in the same criminal case
where the employee was conviction through a
MOTION FOR A SUBSIDIARY WRIT OF
EXECUTION.
7. INNKEEPERS AND HOTELKEEPERS
 See Art. 102, RPC.
8. PARTNERSHIP
 MUTUAL AGENCY RULE – each partner is an agent of
the other partners and the partnership for acts done within
the apparent scope of business of the latter.
 The partnership or every member of the partnership is
laible for torts committed by one of the members acting
within the scope of the firm busines, though they do not
participate in, ratify, or have knowledge of such torts.
 TEST: whether the wrong was committed in behalf of the
partnership and within the reasonable scope of its business.
 If so committed, the partners are all liable as joint
tortfeasors.
 BASIS: respondeat superior
ART. 1822. Where, by any wrongful act or omission of any
partne acting in the ordinary course of any partner acting in the
ordinary course of the business of the partnership or with the
authority of his co-partners, loss or injury is caused to any
person, not being a partner in the partnership, or any penalty is
incurred, the partnership is liable therefor to the same extent as
the partner so acting or omitting to act.
ART. 1823. The partnership is bound to make good the loss:
(1) Where one partner acting within the scope of his
apparent authority receives money or property of a
third person and misapplies it; and
(2) Where the partnership in the course of its business
receives money or property of a third person and the
money or property so received is misapplied by any
partner while it is in the custody of the partnership.
ART. 1824. All partners are liable solidarily with the partnership
for everything chargeable to the partnership under Art. 1822 and
1823.
III. SPOUSES
1. ABSOLUTE COMMUNITY OF PROPERTY
 Spouses jointly own all properties of the
marriage.
 ACP consists of all the properties owned by
TORTS AND DAMAGES by TIMOTEO B. AQUINO
the spouses at the time of the celebration of
the marriage or acquired thereafter subject
only to a few exceptions.
 VICARIOUS LIABILITY is imposed.
 Art. 94(9) of the Family Code:
Absolute community property shall be
liable for “liabilities incurred by either
spouses by reason of a crime or a quasi-
delict, in the case of absencee or
insufficiency of the exclusive property of
the debtor-spouse. Payments made shall
be considered advances to be deducted
from the share of the debtor-spouse upon
liquidation of the community.
2. CONJUGAL PARTNERSHIP OF GAINS
 General Rule: Pecuniary indemnities
imposed upon the husband or wife are NOT
chargeable against the CP but against the
separate properties of the wrongdoer.
 Exception: when they redounded to the
benefit of the family. (Art. 122, FC)
60
  Tort indemnity may be enforced against the
partnership assets provided that liabilites
mentioned in Art. 121 are satisfied.
3. REGIME OF SEPARATION OF PROPERTY
 Each spouse is responsible for his or her
separate obligation including the obligation
arising from quasi-delict for the act or
omission commited by one of the spouses.
(Art. 145, FC)
IV. STATE AND GOVERNMENT INSTRUMENTALITIES
AND OFFICERS
1. STATE LIABILITY
 The State cannot be sued without its consent.
 Consent of the State to be sued can be manifested
through a special law or general law allowing the
State to be sued.
a. Special Agents
 Art. 2180
 SPECIAL AGENT – one who
received definite and fixed order
or commission, foreign to the
exercise of the duties of his office
if he is a special official
 State liable if the SA executes the
trust confided to him.
SECTION 38. Liability of Superior Officers. -
1. A public officer shall not be civilly liable for acts
done in the performance of his official duties,
unless there is a clear showing of bad faith, malice
or gross negligence.
2. Any public officer who, without just cause, neglects
to perform a duty within a period fixed by law or
regulation, or within a reasonable period if none is
fixed, shall be liable for damages to the private
party concerned without prejudice to such other
liability as may be prescribed by law.
3. A head of a department or a superior officer shall
not be civilly liable for the wrongful acts, omissions
of duty, negligence, or misfeasance of his
subordinates, unless he has actually authorized by
written order the specific act or misconduct
complained of.
SECTION 39. Liability of Subordinate Officers. -No
subordinate officer or employee shall be civilly liable for
acts done by him in good faith in the performance of his
duties. However, he shall be liable for willful or
negligent acts done by him which are contrary to law,
morals, public policy and good customs even if he acted
under orders or instructions of his superiors.
4. JUDGES AND OFFICES PERFORMING QUASI-
JUDICIAL FUNCTIONS

b. GOCCs  Judges are not liable for damages for errors in

 When the State participates in a deciding cases. (Art. 32, NCC)
covenant (contract), it is deemed  Such will destroy the independence of the
to have descended from its judiciary.
superior positoin to the level of an
ordinary citizen and thus virtually
opens itself to judicial process.
 This is limited only to those
contracts concluded in a
proprietary capacity and immunity
will still attach for those entered
into an governmental capacity.
 There can be no legal right as
against the authority that makes

TORTS AND DAMAGES by TIMOTEO B. AQUINO

the law on which the right
depends.
 By engaging in a particular
business, the gov’t. divests itself
pro hac vice of its sovereign
character, so as to render the
corporation subject ot the rules of
law, governing private
corporations.
 Both stand upon equality before
the law.

2. MUNICIPAL CORPORATIONS

ART. 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 and supervision.

3. PUBLIC OFFICERS

REVISED ADMINISTRATIVE CODE OF 1987

61
 CHAPTER 13
STRICT LIABILITY
STRICT LIABILITY
- Exists when one is made liable independent of fault,
negligence, or intent after establishing certain facts
specified by law
- Can be committed even if reasonable care was exercised
and regardless of the state of mind of the actor at that time
- Liability without fault
- One where neither care nor negligence, neither good nor
bad faith, neither knowledge nor ignorance will save the
defendant
1. HISTORY OF THE RULES
 ART. 22, 2183, 2193 of the NCC – Roman law in
origin
2. 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 damage.
 RULE: Possessor or whoever makes use of the animal is
LIABLE independent of fault.
 EXCEPTION: When the damage was caused by force
majeure or by the person who suffered the damage.
 The owner/possessor of the animal is still liable even if
damage was caused by the animal through the fault of third
persons.
 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.
 There is published the fault or negligence of one who being
able and duty bound to prevent the consequences of the use
of animals, does not prevent it, for not adopting convenient
and adequate means of precaution, or because, even
exercising them, he could not attain said results, the risk
may occur in their use being imputed to him, inasmuch as
in making use of them, he voluntarily accepts, by reason of
this act, the responsibilities arising from the consequences
of the same.
CASE:
Purita Miranda Vestil and Agustin Vestil v. IAC
(1989)
3. FALLING OBJECTS
ART. 2193. 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.
 Liability is absolute.
 CAGUIOA: There may still be exemptions in extraordinary
circumstances.
4. 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 employment. The employer is liable for
compensation if the employee contracts any illness or disease
caused by such employment or as a 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.
ART. 1712. If the death or injury is due to the negligence of a
fellow worker, the latter and the employer shall be solidarily
liable for compensation. If a fellow worker’s intentional
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 plaintiff’s fellow worker.
5. NUISANCE
 Definition
a. New Civil Code
ART. 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies, or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any
public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
ART. 682. Every building or piece of land is subject to the
easement which prohibits the proprietor or possessor from
committing nuisance through noise, jarring, offensive odor,
smoke, heat, dust, water, glare, and other causes.
 Protection against nuisance is a legal easement, created by
TORTS AND DAMAGES by TIMOTEO B. AQUINO
law and is inherent in every land. It is a proper limitation
upon ownership.
 Every person should use his property as not to cause
damage or injury to others.
b. Code of Sanitation
PD 856 (Code on Sanitation of the Philippines):
SEC. 84. Nuisance is anything that:
(1) Injures health,
(2) Endangers life,
(3) Offends the senses, or
(4) Produces discomfort to the community.
SEC. 85. Types of Nuisances:
(a) Public or private premises maintained and used in
a manner injurious to health;
(b) Breeding places and harborages of vermin;
(c) Animals and their carcasses which are injurious to
health;
(d) Accumulation of refuse;
(e) Noxious matter or waste water discharged
improperly in streets;
62
 (f) Animals stockage maintained in a manner
injurious to health;
(g) Excessive noise; and
(h) Illegal shanties in public or private properties.
A. Kinds of Nuisance
ART. 695. Nuisance is either public or private. A PUBLIC
NUISANCE affects a community or neighborhood or any
considerable number of persons, although the extent of the
annoyance, danger, or damage upon individuals may be unequal.
A PRIVATE NUISANCE is one that is not included in the
foregoing definition.
NUISANCE PER SE – a nuisance under any and all
circumstances
NUISANCE PER ACCIDENS – becomes a nuisance under
certain conditions and circumstances
 No one is entitled to absolute quiet in the enjoyment of his
property; he may only insist upon a degree of quietness
consistent with the standard of comfort prevailing in the locality
in which he dwells.
 FACTORS considered:
o Location and surroundings
o Character and magnitude of the industry/business
o Manner of conduct
o Character and volume of the noise
o Time and duration of occurrence
o Number of people affected
o All facts and circumstances of the case
B. Strict Liability and Persons Liable
 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.
 ART. 696. Every successive owner of possessor of property who
fails or refuses to abate a nuisance in that property started by a
former owner or possessor is liable therefor in the same manner
as the one who created it.
 ART. 697. The abatement of a nuisance does not preclude the
right of any person injured to recover damages for its past
existence.
 Although the owner/possessor is strictly liable for abatement of
nuisance, the liability for damages is not considered strict.
C. Abatement
 Nuisance, public or private, is considered one of the most
serious hindrances to the enjoyment of the life and property.
 Public Nuisance
ART. 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local
ordinance; or
(2) A civil action; or
(3) Abatement, without judicial proceedings.
ART. 700. The district health officer shall take care that one
or all of the remedies against a public nuisance are availed
of.
ART. 701. If a civil action is brought by reason of the
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.
ART. 702. The district health officer shall determine
whether or not abatement, without judicial proceedings, is
the best remedy against a public nuisance.
 An officer who failed to perform said duty may be
held liable for damages.
 However, failure to observe the provisions of Art. 702
is NOT itself a ground for the award of damages.
 When Can Private Person Abate Nuisance
ART. 703. A private person may file an action on account of
a public nuisance, if it is specially injurious to himself.
ART. 704. Any private persons may abate a public nuisance
which is specially injurious to him by removing, or if
necessary, by destroying the thing which constitutes the
same, without committing a breach of the peace, or doing
unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or
possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district
health officer and executed with the assistance of
the local police; and
(4) That the value of the destruction does not exceed
P3000.
 Private Nuisance
ART. 705. The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
ART. 706. Any person injured by a private nuisance may
abate it by removing, or if necessary, by destroying the thing
which constitutes the nuisance, without committing a breach
of the peace or doing unnecessary injury. However, it is
indispensable that the procedure for extrajudicial abatement
TORTS AND DAMAGES by TIMOTEO B. AQUINO
of a public nuisance by a private person be followed.
c. RA 9514 – Revised Fire Code of the Philippines
SEC. 8. Prohibited Acts. – The following are declared as
prohibited act and omission:
(a) Obstructing or blocking the exit ways or across to
buildings clearly marked for fire safety as but not
limited to aisles in interior rooms, any part of
stairways, hallways, corridors, vestibules, balconies,
or bridges leading to a stairway or exit of any kind,
or tolerating or allowing said violations;
(b) Constructing gates, entrances, and walkways to
buildings components and yards which obstruct the
orderly and easy passage of fire fighting vehicles and
equipment;
(c) Prevention, interference or obstruction of any
operation of the Fire Service, or of duly organized
and authorized fire brigades;
(d) Obstructing designated fire lanes or access to fire
hydrants;
(e) Overcrowding or admission of persons beyond the
authorized capacity in movie houses, theaters,
coliseums, auditoriums or other public assembly
63
 buildings, except in other assembly areas on the
ground floor with open sides or open doors
sufficient to provide safe exits;
(f) Locking fire exits during period when people are
inside the building;
(g) Prevention or obstruction of the automatic closure
of fire doors or smoke partitions or dampers;
(h) Use of fire protective of fire fighting equipment of
the fire service other than for fire fighting except in
other emergencies where their use are justified;
(i) Giving false or malicious fire alarms;
(j) Smoking in prohibited areas as may be determined
by fire service, or throwing of cigars, cigarettes,
burning objects in places which may start or cause
fire;
(k) Abandoning or leaving a building or structure by
the occupant or owner without appropriate safety
measures;
(l) Removing. destroying, tampering or obliterating
any authorized mark, seal, sign or tag posted or
required by the fire service for fire safety in any
building, structure or processing equipment; and
(m) Use of jumpers or tampering with electrical wiring
or overloading the electrical system beyond its
designated capacity or such other practices that
would tend to undermine the fire safety features of
the electrical system.
SEC. 3. FIRE HAZARD – any condition or act which
increases or may cause an increase in the probability of the
occurrence of fire, or which may obstruct, delay, hinder, or
interfere with fire fighting operations and the safeguarding
of life and property.
SEC. 9. Violation, Penalties and Abatement of Fire Hazard. -
Fire hazards shall be abated immediately. The Chief, BFP or
his/her duly authorized representative, upon the report that
a violation of this Code or other pertinent laws, rules and
regulations is being committed, shall issue notice/order to
comply to the owner, administrator, occupant or other
person responsible for the condition of the building or
structure, indicating among other things, the period within
which compliance shall be effected, which shall be within ten
(10) to fifteen (15) days after the receipt of the notice/order,
depending on the reasonableness to adequately comply with
the same.
If, after the lapse of the aforesaid period, the owner,
administrator, occupant or other responsible person failed to
comply, the Chief, BFP or his/her authorized representative
shall put up a sign in front of the building or structure that it
is fire hazard. Specifically, the notice shall bear the words
"WARNING: THIS BUILDING/STRUCTURE IS A FIRE
HAZARD", which shall remain posted until such time that
the owner, administrator, occupant or other person
responsible for the condition of the building, structure and
their premises or facilities abate the same, but such period
shall not exceed fifteen (15) days from the lapse of the initial
period given in the notice/order to comply.
Finally, with the failure of the owner, administrator,
occupant or other person responsible for the condition of the
building, structure and their premises or facilities to comply
within the period specified above, the Chief, BFP may issue
order for such abatement. If the owner, administrator or
occupant of buildings, structure and their premises or
facilities does not abate the same within the period fixed in
said order, the building, structure, premises or facilities shall
be ordered closed by the Chief, BFP or his/her duly
authorized representative notwithstanding any permit
clearance or certificate earlier issued by the local authorities.
Any building or structure assessed and declared by the chief,
BFP or his/her duly authorized representative as a
FIRETRAP on account of the gravity or palpability of the
violation or is causing clear and present imminent fire
danger to adjoining establishments and habitations shall be
declared a public nuisance, as defined in the Civil Code of
the Philippines in a notice to be issued to the owner,
administrator, occupant or other person responsible for the
condition of the building, structure and their premises or
facilities. If the assessed value of the nuisance or the amount
to be spent in abating the same is not more than One
hundred thousand pesos (P100,000.00), the owner,
administrator or occupant thereof shall abate the hazard
within fifteen (15) days, or if the assessed value is more than
One hundred thousand pesos (P100,000.00), within thirty
(30) days from receipt of the order declaring said building or
structure a public nuisance; otherwise, the Chief, BFP or
his/her duly authorized representative shall forthwith cause
its summary abatement. failure to comply within five (5)
days from the receipt of the notice shall cause the Chief, BFP
or his/her duly authorized representative to put up a sign in
front of the building or structure, at or near the entrance of
such premises, notifying the public that such building or
structure is a "FIRETRAP", which shall remain until the
owner, administrator, occupant or other person responsible
for the condition of the building, structure and their
premises or facilities abate the same within the specified
period.
SUMMARY ABATEMENT as used herein shall mean all
corrective measures undertaken to abate hazards which
shall include, but not limited to remodeling, repairing,
strengthening, reconstructing, removal and demolition,
either partial or total, of the building or structure. The
expenses incurred by the government for such summary
abatement shall be borne by the owner, administrator or
occupant. These expenses shall constitute a prior lien upon
such property.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
d. Liability for Damages
ART. 707. A private person or a public official
extrajudicially abating a nuisance shall be liable for
damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the
courts to be not a real nuisance.
e. Prescription and Estoppel
 An action to abate a nuisance is IMPRESCRIPTIBLE.
 ART. 698. Lapse of time cannot legalize any nuisance,
whether public or private.
 ART. 1143(2): The right to bring an action to abate a public or
private nuisance is NOT extinguished by prescription.
o Reason: The abatement of nuisance is brought about
by the demands of public health and safety. Neglect to
protect the health and safety of citizens will not justify
continuation of the danger to them.
 PARAS: Estoppel is a valid defense against abatement of
nuisance. – INCORRECT!
64
  CODE COMMISSION: nuisance is the most serious hindrance (3) Enrichment of the defendant is without just or
to the enjoyment of life and property, the government or private legal ground.
persons should not be considered estopped from questioning the (4) Plaintiff has no other action based on contract,
nuisance. quasi-contract, crime, or quasi-delict.
 The only effect of estoppel is at most that the private party who
is so estopped may be deemed to have waived his or her right to a. Nature of Accion in Rem Verso
damages.  It is an AUXILLIARY ACTION
available only when there is no other
 Environmental Protection remedy on contract, quasi-contract,
 FORMS: crime and quasi-delict.
o Noise pollution  It must be shown that a party was
 It must be a noise which affects injuriously the unjustly enriched in the sense that the
health or comfort of ordinary people in the term unjustly could mean illegally or
vicinity to an unreasonable extent. unlawfully.
 Injury to a particular person in a peculiar position  It is a prerequisite for the enforcement
or of specially sensitive characteristics will not of the doctrine of restitution.
render the noise an actionable instance.
 In the absence of statute, noise becomes CASE:
actionable only when it passes the limits of Allied Banking Corporation v. Lim Sio Wan, et al.
reasonable adjustment to the conditions of the (2008)
locality and of the needs of the listener. Development Bank of the Philippines v. Ben P.
 They may be affected but are not controlled by Medrano and Privatization Management Office
ZONING ORDINANCES. [PMO] (2011)
 TEST: whether rights of property of health or
comfort are so injuriously affected by the noise in
question that the sufferer is subjected to a loss
which goes beyond the reasonable limit imposed
upon him by the condition of living, or of holding
property, in a particular locality in fact devoted to
uses which involve the emission of noise
although ordinary care is taken to confine it
within reasonable bounds; or in the vicinity of the
property of another owner who though creating a
noise is acting with reasonable regard for the
rights of those affected by it.
o Smoke
o Dust
o Odors
o Airborne pollutants
o Water pollutants
o Hazardous substances

CASE:

TORTS AND DAMAGES by TIMOTEO B. AQUINO

Velasco v. Manila Electric Company (1971)

6. UNJUST ENRICHMENT

ART. 22. Every person who, through an act or 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.

 It is an aid to the courts in the attainment of justice.

 Justice and equity ABOVE strict legalism or form

i. Not Quasi-Contract
 Conditions under Art. 22:
(1) A person is benefited without a valid
basis or justification.
(2) Such benefit is derived at another’s
expense or damage.
 There is no undue payment or payment by
mistake.

ii. Requisites of Acciom in Rem Verso

(1) Defendant has been enriched.
(2) Plaintiff has suffered a loss.
65
 CHAPTER 14 or otherwise applied to the human body
or any part thereof for cleansing,
PRODUCT AND SERVICE LIABILITY beautifying, promoting attractiveness,
or altering the appearance, and
 SEC. 9, ART. XVI of the 1987 CONSTITUTION provides o article intended for use as a component
that the State shall protect the consumers from trade of any such article except that such
malpractices and from substandard and hazardous products. term shall not include soap.
 The State policy to protect consumers is intended not only  "Drugs" –
against traders but also manufacturers who dump defective, o articles recognized in the current
substandard, or even hazardous products in the market. official United States Pharmacopoeia-
 RA 7394 (The Consumer Act of the Philippines) provides: National Formulary, official
Homeopathic Pharmacopoeia of the
ARTICLE 2. Declaration of Basic Policy. – It is the policy of United States, official National Drug
the State to protect the interests of the consumer, promote his Formulary, or any supplement to any of
general welfare and to establish standards of conduct for them; and
business and industry. Towards this end, the State shall o articles intended for use in the
implement measures to achieve the following objectives: diagnosis, cure, mitigation, treatment,
a) protection against hazards to health and safety; or prevention of disease in man or other
b) protection against deceptive, unfair and animals; and
unconscionable sales acts and practices; o articles (other than food) intended to
c) provision of information and education to facilitate affect the structure or any function of
sound choice and the proper exercise of rights by the the body of man or animals; and
consumer; o articles intended for use as a
d) provision of adequate rights and means of redress; and component of any articles specified in
e) involvement of consumer representatives in the clauses (1), (2), or (3) but do not
formulation of social and economic policies. include devices or their components,
parts or accessories
1. PRODUCT LIABILITY LAW o include herbal and/or traditional drug -
 Law that governs the liability of manufacturers and sellers for articles from indigenous plant or
damages resulting from defective products animal origin used in folk medicine
 Liability may be based on: which are:
o Fraud (1) recognized in the Philippine
o Warranty National Formulary;
o Negligence (2) intended for use in the
o Strict liability treatment or cure, mitigation,
of disease symptoms, injury
 NCC provisions: ART. 33, 2176, and 2187 or bodily defect for use in
 ART. 33. In cases of defamation, fraud, and physical man;
injuries a civil action for damages, entirely separate and (3) other than food, intended to
distinct from the criminal action, may be brought by the affect the structure of any
injured party. Such civil action shall proceed function of the body of man;
independently of the criminal prosecution, and shall (4) put into finishes, ready to use
require only a preponderance of evidence. form by means of

TORTS AND DAMAGES by TIMOTEO B. AQUINO

 ART. 2176. Whoever by act or omission causes damage formulation, dosage or
to another, there being fault or negligence, is obliged to dosage directions; and
pay for the damage done. Such fault or negligence, if (5) intended for use as a
there is no pre-existing contractual relation between the component of any of the
parties, is called a quasi-delict and is governed by the articles specified in clauses
provisions of this Chapter. (1), (2), (3) and (4) of this
 ART. 2187. Manufacturers and processors of foodstuffs, paragraph.
drinks, toilet articles and similar goods shall be liable  "Device" – an instrument, apparatus, implement,
for death or injuries caused by any noxious or harmful machine, contrivance, implant, in vitro reagent,
substances used, although no contractual relation exists or other similar or related article, including any
between them and the consumers. component, part or accessory which is:
o recognized in the official United States
a. Consumer Act (RA 7394) Pharmacopoeia-National Formulary
 Law meant to protect the consumers by providing for (USP-NF) or any supplement to them,
certain safeguards when they purchase or use consumer o intended for use in the diagnosis of
products. disease or other condition or in the
 Covers only PRODUCTS and SERVICES – goods, cure, mitigation, treatment or
services, and credits, debts, or obligations which are prevention of disease, in man or other
primarily for personal, family, household, or agricultural animals; or
purposes, which shall include but not limited to, food, o intended to affect the structure or any
drugs, cosmetics, and devices.(Art. 4(q)) function of the body of man or other
 "Cosmetics" – animals, and which does not achieve
o articles intended to be rubbed, poured, any of its principal intended purposes
sprinkled or sprayed on, introduced into through chemical action within or on
66
 the body of man or other animals and
which is not dependent upon being
metabolized for the achievement of any
of its principal intended purposes.
 "Food" – any substance, whether processed,
semi-processed or raw, intended for human
consumption and includes chewing gum, drinks
and beverages and any substance which has been
used as an ingredient or a component in the
manufacture, preparation or treatment of food.
b. Other Special Laws
An Act to Regulate the Sale of Viruses, Serums,
1. Act 3073 Toxins, and Analogous Products in the
Philippine Islands
An Act to Prevent the Importation, Manufacture,
Sale, or Transportation within the Philippine
Islands of Adulterated or Misbranded Paris
2. Act 3091 Green, Lead Arsenates, Lime-Sulphur
Compounds, and other Insecticides and
Fungicides, and Regulating Traffic therein, and
for Other Purposes
An Act to Regulate the Manufacture,
3. Act 3595 Importation, and Sale of Galvanized Iron,
Barbed Wire, and Nails, and for Other Purposes
An Act to Prevent the Adulteration of, and
4. Act 3596 Deception in the Sale of Paints and Paint
Materials in the Philippine Islands
An Act to Penalize Fraudulent Advertising,
5. Act 3740 Mislabeling, or Misbranding of any Product,
Stocks, Bonds, Etc.
An Act to Provide Security Against Fraud in the
6. CA 560
Kind of Sawn Lumber Offered for Sale
An Act to Declare Illegal the Possession, Sale,
7. RA 428 as or Distribution of Fish or Other Aquatic Animals
amended by Stupefied, Disabled, or Killed by Means of
RA 1535 Dynamite or Other Explosive or Toxic
Substances and Providing Penalties therefor
An Act to Regulate the Sale of Veterinary
8. RA 1071
Biologics and Medicinal Preparations
An Act Regulating the Collection, Processing,
and Sale of Human Blood, and the
9. RA 1517
Establishment and Operation of Blood Banks
and Blood Processing Laboratories
10. RA 5921 as
amended by An Act Regulating the Practice of Pharmacy
EO 175
An Act to Ensure the Safety and Purity of Food,
11. RA 3720 as Drugs, and Cosmetics Being Made Available to
amended by the Public by Creating the Food and Drug
EO 174 Administration which shall Administer and
Enforce the Laws Pertaining Thereto
2. ALTERNATIVE THEORIES
 FIVE different causes of action that may justify the award
of damages for the injuries sustained because of defective
products:
(1) Fraud or misrepresentation
(2) Breach of Warranty
(3) Negligence
(4) Civil Liability arising from Criminal Liability
(5) Strict Liability
I. FRAUD OR MISREPRESENTATION
1. Fraud under the New Civil Code
ART. 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.
 Not all expressions of opinion are considered actionable
misrepresentation if they are established to be inaccurate.
o The law does not exact good faith from a seller in
vague commendations of his wares which are
manifestly open to difference of opinion, which do not
imply untrue assertions concerning matters of direct
observations, and as to which it always has been
understood the world over that such statements are to
be distrusted.
o ART. 1340. The usual exaggerations in trade, when
the other party had an opportunity to know the
facts, are not in themselves fraudulent
2. Fraud under the Consumer Act
ARTICLE 50. Prohibition Against Deceptive Sales Acts or
Practices. – A deceptive act or practice by a seller or supplier in
connection with a consumer transaction violates this Act whether
it occurs before, during or after the transaction. An act or
practice shall be deemed deceptive whenever the producer,
manufacturer, supplier or seller, through concealment, false
representation of fraudulent manipulation, induces a consumer
to enter into a sales or lease transaction of any consumer product
or service.
Without limiting the scope of the above paragraph, the act or
practice of a seller or supplier is deceptive when it represents
that:
a. a consumer product or service has the sponsorship,
approval, performance, characteristics, ingredients,
accessories, uses, or benefits it does not have;
b. a consumer product or service is of a particular
standard, quality, grade, style, or model when in fact it
is not;
c. a consumer product is new, original or unused, when in
TORTS AND DAMAGES by TIMOTEO B. AQUINO
fact, it is in a deteriorated, altered, reconditioned,
reclaimed or second-hand state;
d. a consumer product or service is available to the
consumer for a reason that is different from the fact;
e. a consumer product or service has been supplied in
accordance with the previous representation when in
fact it is not;
f. a consumer product or service can be supplied in a
quantity greater than the supplier intends;
g. a service, or repair of a consumer product is needed
when in fact it is not;
h. a specific price advantage of a consumer product exists
when in fact it does not;
i. the sales act or practice involves or does not involve a
warranty, a disclaimer of warranties, particular
warranty terms or other rights, remedies or obligations
if the indication is false; and
j. the seller or supplier has a sponsorship, approval, or
affiliation he does not have.
ARTICLE 51. Deceptive Sales Act or Practices By Regulation. –
The Department shall, after due notice and hearing, promulgate
regulations declaring as deceptive any sales act, practice or
67
 technique which is a misrepresentation of facts other than these
enumerated in Article 50.
ARTICLE 52. Unfair or Unconscionable Sales Act or Practice. –
An unfair or unconscionable sales act or practice by a seller or
supplier in connection with a consumer transaction violates this
Chapter whether it occurs before, during or after the consumer
transaction. An act or practice shall be deemed unfair or
unconscionable whenever the producer, manufacturer,
distributor, supplier or seller, by taking advantage of the
consumer's physical or mental infirmity, ignorance, illiteracy,
lack of time or the general conditions of the environment or
surroundings, induces the consumer to enter into a sales or lease
transaction grossly inimical to the interests of the consumer or
grossly one-sided in favor of the producer, manufacturer,
distributor, supplier or seller.
In determining whether an act or practice is unfair and
unconscionable, the following circumstances shall be considered:
a. that the producer, manufacturer, distributor, supplier
or seller took advantage of the inability of the consumer
to reasonably protect his interest because of his inability
to understand the language of an agreement, or similar
factors;
b. that when the consumer transaction was entered into,
the price grossly exceeded the price at which similar
products or services were readily obtainable in similar
transaction by like consumers;
c. that when the consumer transaction was entered into,
the consumer was unable to receive a substantial benefit
from the subject of the transaction;
d. that when the consumer was entered into, the seller or
supplier was aware that there was no reasonable
probability or payment of the obligation in full by the
consumer; and
e. that the transaction that the seller or supplier induced
the consumer to enter into was excessively one-sided in
favor of the seller or supplier.
ARTICLE 60. Penalties. –
a. Any person who shall violate the provisions of Title III,
Chapter I, shall upon conviction, be subject to a fine of not
less than P500.00 but not more than P10,000.00 or
imprisonment of not less than 5 months but not more than 1
year or both, upon the discretion of the court.
b. In addition to the penalty provided for in paragraph (1), the
court may grant an injunction restraining the conduct
constituting the contravention of the provisions of Articles
50 and 51 and/or actual damages and such other orders as it
thinks fit to redress injury to the person caused by such
conduct.
II. WARRANTIES
1. Warranty under the New Civil Code
ARTICLE 1546. Any affirmation of fact or any promise by the
seller relating to the thing is an express warranty if the natural
tendency of such affirmation or promise is to induce the buyer to
purchase the same, and if the buyer purchases the thing relying
thereon. No affirmation of the value of the thing, nor any
statement purporting to be a statement of the seller's opinion
only, shall be construed as a warranty, unless the seller made
such affirmation or statement as an expert and it was relied upon
by the buyer.
 A warranty as to the quality of the product may be EXPRESS or
IMPLIED.
 In the law on sales under the NCC, certain implied
warranties are natural elements of the contract.
 Warranty against hidden defects
 Warranty of fitness and merchantability
a. The Provisions
Warranty Against Hidden Defects of or Encumbrances Upon the
Thing Sold
ARTICLE 1561. The vendor shall be responsible for warranty
against the hidden defects which the thing sold may have, should they
render it unfit for the use for which it is intended, or should they
diminish its fitness for such use to such an extent that, had the vendee
been aware thereof, he would not have acquired it or would have
given a lower price for it; but said vendor shall not be answerable for
patent defects or those which may be visible, or for those which are
not visible if the vendee is an expert who, by reason of his trade or
profession, should have known them.
ARTICLE 1562. In a sale of goods, there is an implied warranty or
condition as to the quality or fitness of the goods, as follows:
(1) Where the buyer, expressly or by implication, makes
known to the seller the particular purpose for which the
goods are acquired, and it appears that the buyer relies on
the seller's skill or judgment (whether he be the grower or
manufacturer or not), there is an implied warranty that the
goods shall be reasonably fit for such purpose;
(2) Where the goods are brought by description from a seller
who deals in goods of that description (whether he be the
grower or manufacturer or not), there is an implied
warranty that the goods shall be of merchantable quality.
ARTICLE 1563. In the case of contract of sale of a specified article
under its patent or other trade name, there is no warranty as to its
fitness for any particular purpose, unless there is a stipulation to the
contrary.
ARTICLE 1564. An implied warranty or condition as to the quality
or fitness for a particular purpose may be annexed by the usage of
trade.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
ARTICLE 1565. In the case of a contract of sale by sample, if the
seller is a dealer in goods of that kind, there is an implied warranty
that the goods shall be free from any defect rendering them
unmerchantable which would not be apparent on reasonable
examination of the sample.
ARTICLE 1566. The vendor is responsible to the vendee for any
hidden faults or defects in the thing sold, even though he was not
aware thereof.
This provision shall not apply if the contrary has been stipulated, and
the vendor was not aware of the hidden faults or defects in the thing
sold.
ARTICLE 1567. In the cases of articles 1561, 1562, 1564, 1565 and
1566, the vendee may elect between withdrawing from the contract
and demanding a proportionate reduction of the price, with damages
in either case.
ARTICLE 1568. If the thing sold should be lost in consequence of
the hidden faults, and the vendor was aware of them, he shall bear the
loss, and shall be obliged to return the price and refund the expenses
of the contract, with damages. If he was not aware of them, he shall
68
only return the price and interest thereon, and reimburse the expenses
of the contract which the vendee might have paid.
ARTICLE 1569. If the thing sold had any hidden fault at the time of
the sale, and should thereafter be lost by a fortuitous event or through
the fault of the vendee, the latter may demand of the vendor the price
which he paid, less the value which the thing had when it was lost.
If the vendor acted in bad faith, he shall pay damages to the vendee.
ARTICLE 1570. The preceding articles of this Subsection shall be
applicable to judicial sales, except that the judgment debtor shall not
be liable for damages.
ARTICLE 1571. Actions arising from the provisions of the
preceding ten articles shall be barred after six months, from the
delivery of the thing sold.
b. Remedies
(1) Accion Redhibitoria
 Vendee withdraws from the contract +
damages
(2) Accion Quanti Minoris
 Vendee demands a proportionate
reduction of the price + damages
c. Privity of Contract
 Privity between the plaintiff and the defendant is NOT
necessary before liability can be imposed for breach of
warranty given to the public.
2. Warranty under the Consumer Act
ARTICLE 67. Applicable Law on Warranties. – The provisions of
the Civil Code on conditions and warranties shall govern all
contracts of sale with conditions and warranties.
ARTICLE 68. Additional Provisions on Warranties. – In addition
to the Civil Code provisions on sale with warranties, the
following provisions shall govern the sale of consumer products
with warranty:
a. Terms of express warranty. – Any seller or manufacturer
who gives an express warranty shall:
(1) set forth the terms of warranty in clear and readily
understandable language and clearly identify
himself as the warrantor;
(2) identify the party to whom the warranty is
extended;
(3) state the products or parts covered;
(4) state what the warrantor will do in the event of a
defect, malfunction of failure to conform to the
written warranty and at whose expense;
(5) state what the consumer must do to avail of the
rights which accrue to the warranty; and
(6) stipulate the period within which, after notice of
defect, malfunction or failure to conform to the
warranty, the warrantor will perform any
obligation under the warranty.
b. Express warranty – operative from moment of sale. – All
written warranties or guarantees issued by a manufacturer,
producer, or importer shall be operative from the moment of
sale.
(1) Sales Report. – All sales made by distributors of
products covered by this Article shall be reported
to the manufacturer, producer, or importer of the
product sold within thirty (30) days from date of
purchase, unless otherwise agreed upon. The
report shall contain, among others, the date of
purchase, model of the product bought, its serial
number, name and address of the buyer. The
report made in accordance with this provision shall
be equivalent to a warranty registration with the
manufacturer, producer, or importer. Such
registration is sufficient to hold the manufacturer,
producer, or importer liable, in appropriate cases,
under its warranty.
(2) Failure to make or send report. – Failure of the
distributor to make the report or send them the
form required by the manufacturer, producer, or
importer shall relieve the latter of its liability under
the warranty: Provided, however, That the
distributor who failed to comply with its obligation
to send the sales reports shall be personally liable
under the warranty. For this purpose, the
manufacturer shall be obligated to make good the
warranty at the expense of the distributor.
(3) Retail. – The retailer shall be subsidiarily liable
under the warranty in case of failure of both the
manufacturer and distributor to honor the
warranty. In such case, the retailer shall shoulder
the expenses and costs necessary to honor the
warranty. Nothing therein shall prevent the
retailer from proceeding against the distributor or
manufacturer.
(4) Enforcement of warranty or guarantee. – The
warranty rights can be enforced by presentment of
a claim. To this end, the purchaser needs only to
present to the immediate seller either the warranty
card of the official receipt along with the product
to be serviced or returned to the immediate seller.
No other documentary requirement shall be
demanded from the purchaser. If the immediate
seller is the manufacturer's factory or showroom,
the warranty shall immediately be honored. If the
product was purchased from a distributor, the
distributor shall likewise immediately honor the
warranty. In the case of a retailer other than the
TORTS AND DAMAGES by TIMOTEO B. AQUINO
distributor, the former shall take responsibility
without cost to the buyer of presenting the
warranty claim to the distributor in the consumer's
behalf.
(5) Record of purchases. – Distributors and retailers
covered by this Article shall keep a record of all
purchases covered by a warranty or guarantee for
such period of time corresponding to the lifetime of
the product's respective warranties or guarantees.
(6) Contrary stipulations – null and void. – All
covenants, stipulations or agreements contrary to
the provisions of this Article shall be without legal
effect.
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.
69
d. Minimum standards for warranties. – For the warrantor of
a consumer product to meet 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 to 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.
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.
f. 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.
(2) 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 72. Prohibited Acts. – The following acts are
prohibited:
a) refusal without any valid legal cause by the total
manufacturer or any person obligated under the
warranty or guarantee to honor a warranty or
guarantee issued;
b) unreasonable delay by the local manufacturer or any
person obligated under the warranty or guarantee in
honoring the warranty;
c) removal by any person of a product's warranty card for
the purpose of evading said warranty obligation;
d) any false representation in an advertisement as to the
existence of a warranty or guarantee.
 Privity is NOT necessary in successfully pursuing an action for
breach of warranty or in enforcing the same under the Consumer
Act.
 The warranty of the manufacturer extends not only to the
immediate buyer, the retailer or wholesaler, but also to the end-
buyer.
 The duration of the warranty is longer compared to that under
the NCC.
III. NEGLIGENCE
1. Quasi-Delict
 The liability will result if due care of an ordinarily prudent
man was not exercised in manufacturing, packaging,
marketing, or distributing the product.
2. Violation of Statute as Proof of Negligence
 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
statute thereby making violation thereof
NEGLIGENCE PER SE.
SEC. 11 (RA 3720 as amended by EO 175). The following acts
and the causing thereof are hereby prohibited:
a. The manufacture, importation, exportation, sale,
offering for sale, distribution or transfer of any food,
drug, device or cosmetic that is adulterated or
misbranded.
b. The adulteration or misbranding of any food, drug,
device, or cosmetic.
c. The refusal to permit entry or inspection as authorized
by Section twenty-seven hereof or to allow samples to be
collected.
d. The giving of a guaranty or undertaking referred to in
Section twelve (b) hereof which guaranty or
undertaking is false, except by a person who relied upon
a guarantor undertaking to the same effect signed by,
and containing the name and address of, the person
residing in the Philippines from whom he received in
good faith the food, drug, device, or cosmetic or the
giving of a guaranty or undertaking referred to in
Section twelve (b) which guaranty or undertaking is
false.
e. Forging, counterfeiting, simulating or falsely
TORTS AND DAMAGES by TIMOTEO B. AQUINO
representing or without proper authority using any
mark, stamp, tag, label, or other identification device
authorized or required by regulations promulgated
under the provisions of this Act.
f. The using by any person to his own advantage, or
revealing, other than to the Secretary or officers and
employees of the Department or to the courts when
relevant in any judicial proceeding under this Act, any
information concerning any method or process which as
a trade secret is entitled to protection.
g. The alteration, mutilation, destruction, obliteration, or
removal of the whole or any part of the labeling of, or
the doing of any other act with respect to, a food, drug,
device, or cosmetic, if such act is done while such article
is held for sale (whether or not the first sale) and result
in such article being adulterated or misbranded.
h. The use, on the labeling of any drug or in any
advertising relating to such drug of any representation
or suggestion that an application with respect to such
drug is effective under Sections twenty-one and twenty-
one-B hereof, or that such drug complies with the
provisions of such sections.
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 i. The use, in labeling, advertising or other sales
promotion of any reference to any report or analysis
furnished in compliance with Section twenty-six hereof.
j. The manufacture, importation, exportation, sale,
offering for sale, distribution, or transfer of any drug or
device which is not registered with the Bureau pursuant
to this Act.
k. The manufacture, importation, exportation, sale,
offering for sale, distribution, or transfer of any drug or
device by any person without the license from the
Bureau required under this Act.
l. The sale or offering for sale of any drug or device
beyond its expiration or expiry date.
m. The release for sale or distribution of a batch of drugs
without batch certification when required under Section
twenty-two hereof.
 Similarly, there is negligence per se if the manufacturer
manufactured products that do not comply with the safety
standards promulgated by appropriate government agencies
specified under the Consumer Act.
 One of the ways by which the law provides protection against
hazards to health and safety is by requiring the promulgation of
safety and quality standards for consumer products.
ARTICLE 7. Promulgation and Adoption of Consumer
Product Standards. – The concerned department shall
establish consumer product quality and safety standards
which shall consist of one or more of the following:
a. requirements to performance, composition,
contents, design, construction, finish, packaging of
a consumer product;
b. requirements as to kind, class, grade, dimensions,
weights, material;
c. requirements as to the methods of sampling, tests
and codes used to check the quality of the
products;
d. requirements as to precautions in storage,
transporting and packaging;
e. requirements that a consumer product be marked
with or accompanied by clear and adequate safety
warnings or instructions, or requirements
respecting the form of warnings or instructions.
For this purpose, the concerned department shall adopt
existing government domestic product quality and safety
standards: Provided, That in the absence of such standards,
the concerned department shall form specialized technical
committees composed of equal number of representatives
from each of the Government, business and consumer
sectors to formulate, develop and purpose consumer product
quality and safety standards. The said technical committees
shall consult with the private sector, which may, motu
proprio, develop its own quality and safety standards that
shall be subject or agencies after public hearings have been
conducted for that purpose; and shall likewise consider
existing international standards recognized by the Philippine
Government.
IV. DELICT
1. Revised Penal Code
 The seller is criminally liable under ART.
365/366 (criminal negligence).
2. Special Laws
 Special laws have penal provisions which also
give rise to civil liability ex delicto.
 The liability may be imposed even in the absence
of intent.
V. STRICT LIABILITY
1. Strict Liability under the New Civil Code
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.
 The law expressly allows recovery although no contractual
relation exists.
 Proof of negligence is unnecessary because it is subsumed from
the mere allegation and proof of the essential facts constituting
the cause of action under the article.
 NOTE: Strict liability in tort is indistinguishable from liability
for quasi-delict. The distinction lies in the kind of recoverable
damages and defenses available under each cause of action
which will be discussed separately.
2. Strict Liability under the Consumer Act
ART. 4(bo). "Service" – with respect to repair and service firms,
services supplied in connection with a contact for construction,
maintenance, repair, processing, treatment or cleaning of goods or of
fixtures on land, or distribution of goods, or transportation of goods.
LIABILITY FOR PRODUCT AND SERVICE
ARTICLE 96. Implementing Agency. – The Department of Trade
and Industry shall enforce the provisions of this Chapter and its
implementing rules and regulations.
ARTICLE 97. Liability for the Defective Products. – Any Filipino
or foreign manufacturer, producer, and any importer, shall be liable
for redress, independently of fault, for damages caused to consumers
by defects resulting from design, manufacture, construction,
assembly and erection, formulas and handling and making up,
presentation or packing of their products, as well as for the
TORTS AND DAMAGES by TIMOTEO B. AQUINO
insufficient or inadequate information on the use and hazards thereof.
A product is defective when it does not offer the safety rightfully
expected of it, taking relevant circumstances into consideration,
including but not limited to:
a) presentation of product;
b) use and hazards reasonably expected of it;
c) the time it was put into circulation.
A product is not considered defective because another better quality
product has been placed in the market.
The manufacturer, builder, producer or importer shall not be held
liable when it evidences:
a) that it did not place the product on the market;
b) that although it did 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. Liability for Defective Services. – The service
supplier is liable for redress, independently of fault, for damages
caused to consumers by defects relating to the rendering of the
services, as well as for insufficient or inadequate information on the
fruition and hazards thereof.
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The service is defective when it does not provide the safety the
consumer may rightfully expect of it, taking the relevant
circumstances into consideration, including but not limited to:
a) the manner in which it is provided;
b) the result of hazards which may reasonably be expected of
it;
c) the time when it was provided.
A service is not considered defective because of the use or
introduction of new techniques.
The supplier of the services shall not be held 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.
ARTICLE 106. Prohibition in Contractual Stipulation. – The
stipulation in a contract of a clause preventing, exonerating or
reducing the obligation to indemnify for damages effected, as
provided for in this and in the preceding Articles, is hereby
prohibited, if there is more than one person responsible for the cause
of the damage, they shall be jointly liable for the redress established
in the pertinent provisions of this Act. However, if the damage is
caused by a component or part incorporated in the product or service,
its manufacturer, builder or importer and the person who incorporated
the component or part are jointly liable.
ARTICLE 107. Penalties. – Any person who shall violate any
provision of this Chapter or its implementing rules and regulations
with respect to any consumer product which is not food, cosmetic, or
hazardous substance shall upon conviction, be subject to a fine of not
less than P5,000.00) and by imprisonment of not more than 1 year or
both upon the discretion of the court.
In case of juridical persons, the penalty shall be imposed upon its
president, manager or head. If the offender is an alien, he shall, after
payment of fine and service of sentence, be deported without further
deportation proceedings.
a. Rationale for Manufacturers’ Strict Liability
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 loquitor is applied.
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. 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 on 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 shortcut.
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 placed on the party best able to
determine whether there are means to prevent the accident.
When those means are less expensive than the costs of such
accidents, responsibility for implementing them should be
placed on the party best able to do so.
b. Privity NOT Required
 Responsibility of the manufacturer is owned to the
CONSUMER.
 ART. 4(n). “Consumer” – a natural person who is a
purchaser, lessee, recipient or prospective purchaser,
lessor, or recipient of consumer products, services, or
credit.
 ―Recipient‖ is broad enough to cover any person who
might use the product even if he was not the one who
purchased the same.
c. Persons Liable
 "Manufacturer" – any person who manufactures, assembles
or processes consumer products, except that if the goods
are manufactured, assembled or processed for another
person who attaches his own brand name to the consumer
products, the latter shall be deemed the manufacturer. In
case of imported products, the manufacturer's
representatives or, in his absence, the importer, shall be
deemed the manufacturer. (ART. 4(as))
i. Manufacture that does not Manufacture
EXAMPLES:
(1) Importer
(2) Subcontractor
ii. Tradesman or Seller Generally NOT Liable
ARTICLE 98. Liability of Tradesman or Seller. – The
tradesman/seller is likewise liable, pursuant to the preceding article
when;
a) it is not possible to identify the manufacturer, builder, producer
or importer.
b) the product is supplied, without clear identification of the
manufacturer, producer, builder or importer;
c) he does not adequately preserve perishable goods.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
The party making payment to the damaged party may exercise the
right to recover a part of the whole of the payment made against the
other responsible parties, in accordance with their part or
responsibility in the cause of the damage effected.
NOTE:
 "Seller" – a person engaged in the business of selling consumer
products directly to consumers. It shall include a supplier or
distributor if
(1) the seller is a subsidiary or affiliate of the supplier or distributor;
(2) the seller interchanges personnel or maintains common or
overlapping officers or directors with the supplier or distributor;
or
(3) the supplier or distributor provides or exercises supervision,
direction or control over the selling practices of the seller.
(ART. 4(bn))
 "Distributor" – any person to whom a consumer product is delivered
or sold for purposes of distribution in commerce, except that such
term does not include a manufacturer or retailer of such product.
(ART. 4(ac))
 "Supplier" – a person, other than a consumer, who in the course of
his business, solicits, offers, advertises, or promotes the disposition or
72
 supply of a consumer product or who other than the consumer, expectation of the ordinary consumer
engages in, enforces, or otherwise participates in a consumer concerning the characteristics of the
transaction, whether or not any privity of contract actually exists type of product involved.
between that person and the consumer, and includes the successor to,  If the average consumer would
or assignee of, any right or obligation on of the supplier. (ART. reasonably anticipate the dangerous
4(bu)) condition of the product and fully
appreciate the attendant risk of injury,
iii. Parts or Components Manufacturer it would not be unreasonably dangerous
and defective.
ARTICLE 106. Prohibition in Contractual Stipulation. – The  OBJECTIVE TEST
stipulation in a contract of a clause preventing, exonerating or  The failure of the product to perform
reducing the obligation to indemnify for damages effected, as safely may be viewed as a violation of
provided for in this and in the preceding Articles, is hereby the reasonable expectations of the
prohibited, if there is more than one person responsible for the consumer.
cause of the damage, they shall be jointly liable for the redress  Where there is no evidence, direct or
established in the pertinent provisions of this Act. However, if the circumstantial, available what sort of
damage is caused by a component or part incorporated in the manufacturing flaw existed, or exactly
product or service, its manufacturer, builder or importer and the how the design was deficient, the
person who incorporated the component or part are jointly plaintiff may nonetheless be able to
liable. establish his right to recover, by
proving that the product did not
d. Meaning of Defective Product perform in keeping with the reasonable
expectation of the user.
 Four kinds of defects in products:  Basis: principle of fairness
1. Manufacturing defect (mehehehehe.)
 Defects resulting from manufacture,
construction, assembly, and erection (2) RISK-UTILITY TEST
2. Design defect  Relevant factors considered:
 Defects resulting from design and formulas (1) The usefulness and
3. Presentation defect desirability of the product –
 Defects resulting from handling, making up, its utility to the user and the
presentation or packing of the products public as a whole;
4. Absence of appropriate warning (2) The safety aspects of the
 Defect resulting from the insufficient or product – the likelihood that
inadequate information on the use and it will cause injury, and the
hazards of the products probable seriousness of the
injury;
i. Manufacturing/Production Defect (3) The availability of a
 One that differs from the manufacturer’s intended result or substitute product which
from other ostensibly identical units of the same product would meet the same need
line. and not be as unsafe;
 ―SUBSTANDARD CONDITION‖ (4) The manufacturer’s ability to
 The design itself is not defective but the product does not eliminate the unsafe character

TORTS AND DAMAGES by TIMOTEO B. AQUINO

comply with the design. of the product without
 Imperfections that inevitably occur in a typically small impairing its usefulness or
percentage of products or a given design as a result of making it too expensive to
fallibility of the manufacturing process. maintain its utility;
 Flawed because it is misconstructed without regard to (5) The user’s ability to avoid
whether the intended design of the manufacturing process danger by the exercise of care
itself, improper workmanship, or because defective in the use of the product;
materials were used in construction (6) The user’s anticipated
awareness of the dangers
ii. Design Defect inherent in the product and
 Can be established by comparing it with standards their avoidability, because of
established by law or by government agencies. general public knowledge of
 The norm itself is defective. the obvious condition of the
product, or of existence of
(1) CONSUMER EXPECTATION TEST suitable warning or
 A product may be found defective in instructions; and
design if the plaintiff demonstrates that (7) The feasibility, on the part of
the product failed to perform as safely the manufacturer, of
as an ordinary consumer would expect spreading the loss by setting
when used in an intended or reasonably the price of the product or
foreseeable manner. carrying liability insurance.
 To determine whether a product  A product is defective in design when
contains a dangerous consumer defect the foreseeable risks of harm posed by
depends upon the reasonable the product could have been reduced or
73
 avoided by the adoption of a reasonable
alternative design by the seller or other
distributor, or a predecessor in the
commercial chain of distribution, and
the omission of the alternative design
renders the product not reasonably safe.
 TEST: whether a reasonable alternative
design would, at reasonable cost, have
reduced the foreseeable risk of harm
posed by the product and, if so,
whether the omission of the alternative
design by the seller or a predecessor in
the distributive chain rendered the
product not reasonably safe.
(3) REASONABLE ALTERNATIVE DESIGN
 If the design of a product component is
in issue in a products liability action,
the design shall be presumed to be
reasonably safe unless, at the time the
product left the control of the
manufacturer, a practical and
technically feasible design was
available that would have prevented the
harm without significantly impairing
the usefulness, desirability, or
marketability of the product.
 An alternative design is practical and
feasible if the technical, medical, or
scientific knowledge relating to safety
of the alternative design was, at the
time the product left the control of the
manufacturer, available and developed
for commercial use and acceptable in
the marketplace.
(4) Test Under The Consumer Act
 Consumer Expectation Test
 SEE ART. 97 and 99.
iii. Packaging and Presentation Defect
 May be included under Manufacturing or Design Defect.
 May include manufacturer’s failure to warn the consumer
as mandated.
 Manufacturer deviated from its self-imposed norm in
packaging the product or in distributing the same.
iv. Lack of Warning
 The duty to warn is not obviated merely because a danger
is clear.
 A warning can convey at least two types of messages:
(1) One states that a particular place, object, or
activity is dangerous.
(2) Another explains that people need not risk the
danger posed by such a place, object, or activity
in order to achieve the purpose for which they
might have taken that risk.
(1) Duty to Warn under Consumer Act
ARTICLE 74. Declaration of Policy. – 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.
ARTICLE 76. Prohibited Acts on Labeling and
Packaging. – It shall be unlawful for any person,
either as principal or agent, engaged in the labeling
or packaging of any consumer product, to display
or distribute or to cause to be displayed or
distributed in commerce any consumer product
whose package or label does not conform to the
provisions of this Chapter.
The prohibition in this Chapter shall not apply to
persons engaged in the business of wholesale or
retail distributors of consumer products except to
the extent that such persons:
1) are engaged in the packaging or labeling
of such products;
2) prescribe or specify by any means the
manner in which such products are
packaged or labeled; or
3) having knowledge, refuse to disclose the
source of the mislabeled or mispackaged
products.
ARTICLE 77. Minimum Labeling Requirements for
Consumer Products. – All consumer products
domestically sold whether manufactured locally or
imported shall indicate the following in their
respective labels of packaging:
a) its correct and registered trade name or
brand name;
b) its duly registered trademark;
c) its duly registered business name;
d) the address of the manufacturer,
importer, repacker of the consumer
product in the Philippines;
e) its general make or active ingredients;
f) the net quality of contents, in terms of
weight, measure or numerical count
rounded of to at least the nearest tenths in
the metric system;
g) country of manufacture, if imported; and
TORTS AND DAMAGES by TIMOTEO B. AQUINO
h) if a consumer product is manufactured,
refilled or repacked under license from a
principal, the label shall so state the fact.
The following may be required by the concerned
department in accordance with the rules and
regulations they will promulgate under authority of
this Act:
a) whether it is flammable or inflammable;
b) directions for use, if necessary;
c) warning of toxicity;
d) wattage, voltage or amperes; or
e) process of manufacture used if necessary.
Any word, statement or other information required
by or under authority of the preceding paragraph
shall appear on the label or labeling with such
conspicuousness as compared with other words,
statements, designs or devices therein, and in such
terms as to render it likely to be read and
understood by the ordinary individual under
customary conditions of purchase or use.
74
 The above requirements shall form an integral part (1) The product malfunctioned;
of the label without danger of being erased or (2) The malfunction occurred during proper use; and
detached under ordinary handling of the product. (3) The product had not been altered or misused in a
manner that probably caused the malfunction.
ARTICLE 80. Special Packaging of Consumer
Products for the Protection of Children. – The vi. Defenses
concerned department may establish standards for the  SEE ART. 97 and 99.
special packaging of any consumer product if it finds  Comparative Negligence Rule NOT applicable.
that:
a) the degree or nature of the hazard to children in
the availability of such product, by reason of its
packaging, is such that special packaging is
required to protect children from serious personal
injury or serious illness resulting from handling
and use of such product; and
b) the special packaging to be required by such
standard is technically feasible, practicable and
appropriate for such product. In establishing a
standard under this Article, the concerned
department shall consider:
1) the reasonableness of such standard;
2) available scientific, medical and
engineering data concerning special
packaging and concerning accidental,
ingestions, illnesses and injuries caused
by consumer product;
3) the manufacturing practices of
industries affected by this Article; and
4) the nature and use of consumer
products.
EXAMPLES:
 RA 6675 (Generic Act of 1988) – label of
all drugs and medicines shall have the dates
of manufacture and expiration
 RA 5921 – pharmacists are required to affix
to every bottle, box, or other package
containing any dangerous or poisonous drug,
another label of red paper upon which shall
be printed in large letters the word
―POISON‖ and a vignette representing a
skull and bones before delivering it to the
purchaser.

TORTS AND DAMAGES by TIMOTEO B. AQUINO

(2) Knowledge of Manufacturer
 It is not the manufacturer’s knowledge which is
material but the consumer’s reasonable
expectation of the product’s safety.
 If it does not have the warning that is reasonably
expected for the safety of the consumer, it is
defective even if the manufacturer did not know
the extent of the danger.

v. Proof of Defect
 CIRCUMSTANTIAL EVIDENCE AND INFERENCE
 OPINION OF EXPERTS
 Strictly speaking res ipsa loquitur has no application to a
strict liability case because determination of negligence is
not material.
 However, the inferences that are at the core of doctrine are
applicable with equal force to strict liability cases.
 The fact that the product went wrong may, in proper cases,
give rise to a permissible inference that it was defective and
that the defect existed when it left the hands of the
defendant.

 MALFUNCTION DOCTRINE – a product may be

inferred by circumstantial evidence that:
75
 CHAPTER 15
BUSINESS TORTS
ART. 2200. Indemnification for damages shall comprehend not
only the value of the loss suffered, but also that of the profits
which the oblige failed to obtain.
 Liability for various interference with business interests
 Negligent/Intentional Acts/Omissions
 May arise from different sources of obligation e.g.
delict, quasi-delict, or breach of contract
 BUSINESS TORTS
 Interference with contractual relations
 Interference with prospective advantage
 Unfair competition
 Securities related fraud
a. NON-POSSESSORY INVASION
 PHILIP YU v. CA (1993): One becomes in an action for
damages for a non-possessory invasion of another’s interest in
the private use and enjoyment of asset if:
 The other has property rights and privileges with
respect to the use or enjoyment interfered with;
 The invasion is substantial;
 The defendant’s conduct is a legal cause of the
invasion;
 The invasion is either intentional and unreasonable or
unintentional and actionable under general negligence
rules.
b. INTERFERENCE WITH CONTRACT
2.01. STATUTORY PROVISION AND RATIONAL
 General Rule:
Only the parties to a contract are bound by the terms of the contract
and only a party can file an action for breach of contract or for
rescission or annulment thereof.
ART. 1311. Contracts take effect only between the parties, their
assigns, and heirs…
Hence, only the parties to the contract can file an action based
thereon.
 Exceptions:
i. Contracts containing a stipulation in favor of a third
person (ART. 1312)
ii. Contracts intended to defraud creditors (ART. 1313)
 General Rule:
Contracting parties cannot sue third persons for breach of contract.
 Exception:
A contracting party may sue a third person not for breach but for
inducing another to commit such breach.
ART. 1314. Any third person who induces another to violate his
contract shall be liable for damages to another contracting party.
 INTERFERENCE WITH CONTRACTUAL
RELATIONS
o Tortious because it violates the rights of the
contracting parties to fulfill the contract and
to have it fulfilled, to reap the profits
resulting therefrom, and to compel the
performance by the other party.
o A right derived from a contract is a property
right that entitles each party to protection
against the entire world and any damage to
said property should be compensated.
o An agreement that prohibits interference
(with existing contracts) is a contract that is
not contrary to public policy.
o THUS, a contract is valid if it amounts
simply to an agreement that those executing
the contract will not induce the employees
of those with whom the contract is made to
leave their service.
2.02. HISTORY OF THE RULE
 At first, the liability is for any person who entices a servant from
his employment in damages to the master holding that it is a
legal wrong to break up a relation of personal service.
 As it progressed, the right of action for maliciously procuring a
breach of contract is no longer confined to contracts for personal
services but extends to contracts in general.
2.03. ELEMENTS
1) Existence of a valid contract
2) Knowledge on the part of the third persons of the existence of
the contract
3) Interference of the third person without legal justification or
excuse
I. CONTRACT
 The existence of a contract is necessary and the breach
must occur because of the alleged act of interference.
 No tort is committed if the part had already broken the
contract and offers to contract with the defendant.
 Neither would there be liability if the plaintiff
voluntarily released the other.
 No action can be maintained if the contract is void.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
Example:
o ART. 2014. No action can be maintained by
the winner for the collection of what he has
won in a game of chance…
o THUS, a third person cannot be sued by the
winner even if the former induced the other
party not to comply with his undertaking to
pay the winner.
 An action for interference can be maintained even if
the contract is unenforceable.
o The Statute of Frauds is enacted for the
protection of the person charged on the
contract. It is personal and not available to
strangers.
II. MALICE
 The intentional doing of a harmful act without legal or
social justification or excuse.
 It is enough if the wrongdoer, having knowledge of
the existence of the contract relation, in bad faith sets
about to break it up.
 Whether the motive is to benefit himself or gratify his
spite by working mischief to the other is immaterial.
 Malice in the sense of ill-will or spite is NOT
essential.
76
  If the persuasion 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 wrong act.
 One who is not a party to a contract and who interferes
thereon is not necessarily an officious or malicious
intermeddler.
III. PROCUREMENT
 One is liable with interference of a contract if he does
so through unlawful means.
 If performance is prevented by force, intimidation,
coercion, or threats, or by false or defamatory
statements, or by nuisance or riot, the person using
such unlawful means, is under all circumstances,
liable for the damage which ensues.
 It is not enough that the defendant merely reaped the
advantages of a broken contract after the contracting
party had withdrawn from it on his own.
 Mere competition is NOT sufficient unless it is
considered unfair competition or the dominant
purpose is to inflict harm or injury.
 INDUCE – a situation where a person causes another
to choose one course of conduct by persuasion or
intimidation.
2.04. LEGAL JUSTIFICATION
 Social policy permits a privilege or justification to intentionally
invade the legally protected interests of others only if the
defendant acts to promote the interests of others or himself and
if the interest which he seeks to advance is superior to the
interest invaded in social importance.
 Where protection of the actor’s interest is involved, there is
simply a privilege to invade equal or inferior interest but not
superior one.
 Competition in business affords a privilege to interfere.
ELEMENTS:
i. The defendant’s purpose is a justifiable one.
ii. The actor employs no means of fraud or deception
which are regarded as unfair.
 The fact that the act of the defendant is in furtherance of the sole
purpose of improving his financial or economic interest is not
necessarily a legal justification.
 General Rule: Justification for interfering with the business
relations of another exists where the actor’s motive is to benefit
himself.
 It does NOT exist where his sole motive is to cause harm to
another.
 It is not necessary that the interferer’s interest outweigh that of
the party whose rights are invaded, and that an individual’s acts
under an economic interest that is substantial, not merely de
minimis, such that wrongful and malicious motives are negative,
for he acts in self-protection.
 Justification for protecting one’s financial position should nNOT
be made to depend in a comparison of his economic interest in
the subject matter with that of others.
 It is sufficient if the impetus of his conduct lies in a proper
business interest rather than in wrongful motives.
2.05. EXTENT OF LIABILITY
 A person/entity that is not a party to a contract of sale may be
held liable for damages for advising the seller not to perform the
contract.
 However, the stranger cannot become more extensively liable in
damages for the non-performance of the contract than the party
in whose behalf he intermeddles.
o Such would be grotesque and unjust.
 The defendant found guilty of interference with contractual
relations cannot be held liable for more than the amount for
which the party who was induced to break the contract can be
held liable.
ART. 2202. In crimes and quasi-delicts, the defendants shall be
liable for all damages which are the natural and probable
consequences of the act or omission complaint of. It is not
necessary that such damages have been foreseen or could have
reasonably been foreseen by the defendant.
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
reasonable 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.
 The rule also applies in breach of contract where the party who
breached was in bad faith.
 Where there is good faith, the party who breached the contract is
only liable for consequences that can be foreseen.
 It is also possible for the contracting party to be not liable at all,
as in the case where the defendant prevented him from
performing his obligation through force or fraud.
c. INTERFERENCE WITH PROSPECTIVE ADVANTANGE
 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 called INTERFERENCE WITH
PROSPECTIVE ADVANTAGE.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 Example: When a man starts an opposition place of business,
not for the sake of profit for himself, regardless of loss to
himself, and for the sole purpose of driving his competitor out of
business, and with the intention of himself retiring upon the
accomplishment of his malevolent purpose, he is guilty of a
wanton wrong and an actionable tort.
d. UNFAIR COMPETITION
ART. 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 high-handed method shall give rise to a right of
action by the person who thereby suffers damage.
 This is necessary in a system of free enterprise.
 Democracy becomes a veritable mockery if any person or group
of persons by any unjust or highhanded method may deprive
others of a fair chance to engage in business or earn a living.
ART. 186 (RPC). Monopolies and combinations in restraint of
trade. – The penalty of PRISION CORRECCIONAL in its
77
minimum period or a fine ranging from P200 to P6000, 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 said
merchandise or object in order to alter the price thereof
by spreading false rumors or making use of any other
artifice 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,
wholesale 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, or 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, processed, or imported merchandise or
object of commerce is used.
I. PASSING OFF AND DISPARAGEMENT OF
PRODUCTS
SEC. 168 (IP CODE). 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.
 Passing off – Sec. 168.2, 168.3(a) and (b)
 Disparagement of Products – Sec. 168.3©
II. INTERFERENCE
 Includes cases involving tort of interference with contractual
relations and interference with prospective advantage.
o A business man who maliciously interferes with the
contract of his competitor with the latter’s clients in
order to get them as his own may be guilty of
interference with contractual relations.
o If, on the other hand, the businessman, through force,
intimidation, or any other means, prevents the
customers from entering into a contract with the
competitor, the same may amount to interference with
prospective advantage.
III. MISAPPROPRIATION
 Competitors are under a duty to conduct its own business so as
not unnecessarily or unfairly injure that of the other.
 There is unauthorized interference with the normal operation of
a complainant’s legitimate business precisely at the point where
the profit is reaped in order to divert a material portion of the
profit from those who have earned it to those who have not.
 When an uncopyrighted combination of words is published,
there is no general right to forbid other people from repeating
them – there is no property in the combination or in the thoughts
or facts that the words express.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
 Property, a creation of law, does not arise from value, although
exchangeable – a matter of fact.
 Property depends upon exclusion by law from interference and a
person is not excluded from using any combination of words
merely because someone has used it before, even if it took labor
and genius to make it.
 If a given person is to be prohibited from making use of the
words that his neighbors are free to make, some other ground
must be found:
o Unfair trade – a competitor repeats the words in
business in such a way as to convey a
misrepresentation that materially injures the person
who first used them by appropriating credit of some
kind which the first user has earned.
o A representation by device, appearance, or other
indirection that the defendant’s goods come from the
plaintiff
 WHY ACTIONABLE? It tends to give the
defendant an advantage in his competition
with the plaintiff and it is thought
undesirable that an advantage should be
gained that way.
IV. MONOPOLIES AND PREDATORY PRICING
78

 PREDATORY PRICING
- 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.
- A form of monopoly in restraint of trade.
 WHY PROHIBITED?
 To raise levels of competition by improving the
consumers’ effectiveness as the final arbiter in the free
markets.
 To preserve free and unfettered competition as the rule
of trade.
 The unrestrained interaction of competitive forces will
yield the best allocation of our economic resources,
the lowest prices, and the highest quality.
 To forestall concentration of economic power.
 The law is aimed at contracts and combinations that, by reason
of the inherent nature of the contemplated acts, prejudice the
public interest by unduly restraining competition or unduly
obstructing the course of trade.
 MONOPOLY
- Any combination the tendency of which is to prevent
competition in the broad and general sense, or to control
prices to the detriment of the public.
- The concentration of business in the hands of a few.
- Material consideration: power exists to raise prices or
exclude competition when desired.
- Include a condition produced by the mere act of
individuals.
- Dominant thought: the notion of exclusiveness or unity, or
the suppression of competition by the unification of interest
or management, or it may be thru agreement and concert of
action.
- Unified tactics with regard to prices
 May give rise to action for damages under Art. 19, 20,
21, and 28 of the Civil Code.
5. SECURITIES RELATED TORTS
 RA 8799 – Securities Regulation Code
o SEC. 73 imposes criminal liability on:
 any person who violates any of the
provisions thereof or the rules and
regulations promulgated by the SEC; or
 any person who, in the registration
statement, makes untrue statement of or
omits to state any material fact required to
be stated therein or necessary to make the
statements therein not misleading.
I. FRAUD
SEC. 26 (RA 8799). Fraudulent transactions. – (a) It shall be
unlawful for any person, directly or indirectly, in connection with
the purchase or sale of any securities –
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 or 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.
SEC. 58. Any person who engages in any such fraudulent act or
transaction shall be liable for the damages sustained by any
person as a result of such transaction…
 Securities are ―intricate merchandize‖.
 Public interest demands legislation that would recognize the
gross inequality of bargaining power between the professional
securities firm and the average investor.
 Objective: to protect those who do not know market conditions
from the overreaching of those who do.
 There is no hard and fast rule on what constitutes fraud.
II. MISSTATEMENTS
SEC. 8 (RA 8799). 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 SEC.
SEC. 12 (RA 8799). The sworn registration statement must be in
such form and containing such information and documents as the
Commission shall prescribe.
The information required for the registration of any kind, and all
securities, shall include, among others, the effect of the securities
issue on ownership, on the mix of ownership, especially foreign
and local ownership.
The registration statement shall include a prospectus required or
permitted to be delivered …
SEC. 56 and 57 provide for civil liabilities for damages on account
of false statements in the registration statement and the materials and
documents attached thereto.
a. False Registration Statement
TORTS AND DAMAGES by TIMOTEO B. AQUINO
(1) The Plaintiff
SEC. 56.1 gives a right ―to 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, to sue for damages.
He is not entitled to damages if ―at the time of such
acquisition he knew of such untrue statement or omission‖.
 Liability arises only if the false statement or material
omission is contained in the registration statement on
its effectivity.
 No matter whether the plaintiff purchased a day or a
year after the effective date of the particular part of the
registration statement complained of, materiality is
reckoned as of that one date.
SEC. 56.2 provides that ―if the person who acquired the
security did so after the issuer has made generally available
to its security holders an income statement covering a
period of at least 12 months beginning from the effectivity
date of the registration statement, then the right of recovery
79
 under this subsection shall be conditioned on proof that
such person acquired the security relying upon the
registration statement and not knowing of such income
statement, but such reliance may be established without
proof of the reading of the registration statement by such
person‖.
(2) The Defendants
SEC. 56 specifies the possible defendants in action for
damages under the provision:
(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 therein 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 a 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 the portion
of the registration statement which purports to
have been contributed by him; and
(g) Every underwriter with respect to such security.
(3) Defenses
 Prove that, at the time of the acquisition, the plaintiff
knew of the untrue statement or omission.
o ASSUMPTION OF RISK on the part of the
plaintiff who made the investment knowing
of the danger thereof on account of the false
statements.
(4) Damages
 Suit under Sec. 56, 57-61 may be filed before the RTC
which may award damages in the amount not
exceeding TRIPLE the amount of the transactions plus
actual damages.
 Exemplary damages may also be awarded in cases of
bad faith, fraud, malevolence, or wantonness in the
violation of the Code or the rules and regulations
promulgated thereunder.
 Attorney’s fees – not exceeding 30% of the award.
(5) Joint and Several Liability
 If two or more persons are made liable as defendants,
they shall be jointly and severally liable for the
payment of damages.
 However, any person who becomes liable for the
payment of such damages may recover contribution
from any other person who, if sued separately, would
have been liable to make the same payment, unless the
former was guilty of fraudulent representation and the
latter was not.
 Nevertheless, all persons held liable shall contribute
equally to the total liability adjudged.
 In no case shall the principal occupying similar
positions, directors, or other officers of the issuer or
persons occupying similar positions therein, recover
the contribution to the liability from the issuer.
 However, the right of the issuer to recover from the
guilty parties the amount it has contributed shall not
be prejudiced.
b. Prospectus and the Like
SECTION 57. Civil Liabilities Arising in Connection With
Prospectus, Communications and Reports. -
57.1. Any person who:
(a) Offers to sell or sells a security in violation of Chapter
III, or
(b) Offers to sell or sells a security, whether or not
exempted by the provisions of this Code, by the use of
any means or instruments of transportation or
communication, by means of a prospectus or other
written or oral communication, which includes an
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements,
in the light of the circumstances under which they were
made, not misleading (the purchaser not knowing of
such untruth or omission), and who shall fail in the
burden of proof that he did not know, and in the
exercise of reasonable care could not have known, of
such untruth or omission, shall be liable to the person
purchasing such security from him, who may sue to
recover the consideration paid for such security with
interest thereon, less the amount of any income received
thereon, upon the tender of such security, or for
TORTS AND DAMAGES by TIMOTEO B. AQUINO
damages if he no longer owns the security.
57.2. Any person who shall make or cause to be made any
statement in any report, or document filed pursuant to
this Code or any rule or regulation thereunder, which
statement as at the time and in the light of the
circumstances under which it was made false or
misleading with respect to any material fact, shall be
liable to any person who, not knowing that such
statement was false or misleading, and relying upon
such statement shall have purchased or sold a security
at a price which was affected by such statement, for
damages caused by such reliance, unless the person
sued shall prove that he acted in good faith and had no
knowledge that such statement was false or misleading.
c. Statute of Limitation
SECTION 62. Limitation of Actions. –
62.1. No action shall be maintained to enforce any liability
created under Section 56 or 57 of this Code unless
brought within two (2) years after the discovery of the
untrue statement or the omission, or, if the action is to
enforce a liability created under Subsection 57.1 (a),
unless, brought within two (2) yeas after the violation
80
 upon which it is based. In no event shall an such action
be brought to enforce a liability created under Section
56 or Subsection 57.1 (a) more than five (5) years after
the security was bona fide offered to the public, or
under Subsection 57.1 (b) more than five (5) years after
the sale.
62.2. No action shall be maintained to enforce any liability
created under any other provision of this Code unless
brought within two (2) years after the discovery of the
facts constituting the cause of action and within five (5)
years after such cause of action accrued.

TORTS AND DAMAGES by TIMOTEO B. AQUINO

81
 CHAPTER 16
DAMAGES
 Whenever a right is transgressed, every manner of loss or injury
is compensated for in some way or another.
ART. 2196. The rules under this Title are without prejudice to
special provisions on damages formulated elsewhere in this Code.
Compensation for workmen and other employees in case of
death, injury, or illness is regulated by special laws. Rules
governing damages laid down in other laws shall be observed
insofar as they are not in conflict with this Code.
ART. 2198. The principles of general law on damages are hereby
adopted insofar as they are not inconsistent with this Code.
1. DEFINITION AND CONCEPT
 DAMAGES
- Escriche: the detriment, injury, or loss which are
occasioned by reason of fault of another in the
property or person.
 Of whatsoever nature the damage be, and
from whatsoever cause it may proceed, the
person who has done the injury ought to
repair it by an indemnity proportionate to his
fault and to the loss caused thereby.
- 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.
- DAMAGE: The loss, hurt, or harm which results from
injury
- DAMAGES: The recompense or compensation
awarded for the damage suffered.
a. Complaint for Damages is a Personal Action.
 May be commenced and tried where the defendant or
any of the defendants reside(s) or may be found, or
where the plaintiff or any of the plaintiff reside(s) at
the election of the plaintiff.
b. Award must be Monetary.
2. DAMNUM ABSQUE INJURIA
 In some cases, there is no liability even if there is damage
because there is no injury.
 The conjunction of damages and wrong is absent.
 There can be no actionable wrong if either one or the other is
wanting.
 Thus, if the damage resulted because a person exercised his
legal rights (e.g. the filing of a complaint in good faith), it is
damnum absque injuria.
 Mere damage without injury does not result in liability.
 INJURY – the legal invasion of a legal right.
 DAMAGE – the loss, hurt, or harm which results from the
injury.
 DAMAGES – the recompense or compensation awarded for the
damage suffered.
 There can be damage without injury in those instances in which
the loss or harm was not the result of a violation of a legal duty.
 The consequences must be borne by the injured person alone,
the law affords no remedy for damages resulting from an act
which does not amount to a legal injury or wrong.
 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
– a concurrence of injury to the plaintiff and the legal
responsibility by the person causing it.
 BASIS for award of tort damages: the premise that an individual
was injured in contemplation of law.
 There must first be a breach before damages may be awarded
and the breach of such duty should be the proximate cause of the
injury.
a. Erroneous Interpretation of Law
 Damage that resulted because of such act was in the
nature of damnum absque injuria.
 It is the court’s duty to see to it that public officers are
not hampered in the performance of their duties or in
making decisions for fear of personal liability for
damages due to honest mistakes.
b. Inconvenience of Litigation
 Qui jure sio utitur nullum damnum facit.
 One who exercises a right does no injury.
 The adverse result of an action does not per se make
the action wrongful and subject the actor to payment
of damages.
3. KINDS OF DAMAGES
 ―DAMAGES‖ – involves any and all manifestations of life:
physical or material, moral or psychological, mental or spiritual,
financial, economic, social, political, and religious.
ART. 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
TORTS AND DAMAGES by TIMOTEO B. AQUINO
(5) Liquidated; or
(6) Exemplary or corrective.
a. Proof of Pecuniary Loss – When Not Necessary
 Proof of pecuniary loss is necessary to successfully recover
actual damages from the defendant.
 ART. 2216. No proof of pecuniary loss is necessary in order
that moral, nominal, temperate, liquidated, or exemplary
damages may be adjudicated. The assessment of such
damages, except liquidated ones, is left to the discretion of
the court, according to the circumstances of each case.
4. ACTUAL OR COMPENSATORY DAMAGES
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 damages.
 Proceeds from a sense of natural justice
 Designed:
 to repair the wrong that has been done
 to recompense for the injury inflicted
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  NOT to oppose a penalty
 ACTUAL DAMAGES – include all damages that the plaintiff
may show he has suffered in respect to his property, business,
trade, profession, or occupation, and no other damages
whatever.
 COMPENSATORY DAMAGES – simply make good or replace
the loss caused by the wrong; awarded to compensate the injured
party for injury caused by the wrong, and must be only such as
make just and fair compensation, and are due when the wrong is
established, whether it was committed maliciously – i.e. with
evil intention – or not.
4.01.KINDS OF ACTUAL DAMAGES
 Indemnification for damages shall comprehend not only the
value of the loss suffered but also that of the profits that the
oblige failed to obtain.
 Classification:
1. Daño emergente – the loss of what a person already
possesses;
2. Lucro cesante – the failure to receive as a benefit that
would have pertained to him
ART. 2205. Damages may be recovered:
 For loss or impairment of earning
capacity in cases of temporary or
permanent personal injury;
 For injury to the plaintiff’s business
standing or commercial credit.
4.02.EXTENT AND MEASURE OF DAMAGES
ART. 2202. In crimes and quasi-delicts, the defendants shall be
liable for all 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.
a. Restitutio in Integrum
 GENERAL RULE: 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 in if he had
not sustained the wrong for which he is now getting
his compensation or reparation.
 The primary object of an award in civil action and the
fundamental principle or theory on which it is based is
JUST COMPENSATION, INDEMNITY, OR
REPARATION FOR THE LOSS OR INJURY
SUSTAINED BY THE INJURED PARTY SO THAT
HE MAY BE WHOLE OR RESTORED AS
NEARLY AS POSSIBLE PRIOR TO THE INJURY.
 Thus, the damage is measured on PLAINTIFF’S
LOSS and not on defendant’s gain.
b. Exception: Defendant’s Gain is the Measure
 EXCEPTION: Damages are measured by the benefit
that has accrued to the defendant in certain cases.
 The benefits derived by the defendant pertain to or
could have been received by the plaintiff because only
the plaintiff is supposed to profit from the activity
involved.
o EXAMPLE: IP CODE allows recovery of
the amount that was earned by the defendant
who infringed the right of the owner of the
mark. (Sec. 156, RA 8293)
c. Damages in Breach of Contract
 ART. 1170. Those who in the performance of their
obligations are guilty of fraud, negligence, or delay, and
those who in any manner contravene the tenor thereof, are
liable for damages.
 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.
(1) Nature of Breach of Contract
 In culpa contractual, the mere proof of the existences of the
contract and the failure of its compliance justify, prima
facie, a corresponding right of relief.
 The law, recognizing the obligatory force of contracts, will
not permit a party to be set free from liability for any kind
of misperformance of the contractual undertaking or a
contravention of the tenor thereof.
 A breach upon the contract confers upon the injured party a
valid cause for recovering that which may have been lost or
suffered.
 The remedy serves to preserve the interests of the
promissee that may include his:
o EXPECTATION INTEREST (his interest in
having the benefit of his bargain by being put in
as good a position as he would have been in had
the contract been performed); or
o RELIANCE INTEREST (his interest in being
reimbursed for loss caused by reliance on the
contract by being put in as good a position as he
would have been in had the contract not been
made); or
o RESTITUTION INTEREST (his interest in
having restored to him any benefit that he has
conferred on the other party.
 The effect of every infraction is to create a new duty, that
is, to make recompense to the one who has been injured by
the failure of another to observe his contractual obligation
UNLESS he can show extenuating circumstances like proof
TORTS AND DAMAGES by TIMOTEO B. AQUINO
of his exercise of due diligence or of the attendance of
fortuitous events, to excuse him from his ensuing liability.
(2) Applicability of Proximate Cause
 Breach of contract can be established by the mere proof of
the existence of the contract and the failure of its
compliance, the doctrine of proximate cause does NOT
apply to determine if there is such breach of contract.
 The doctrine of proximate cause is applicable only in
actions for quasi-delicts, NOT in actions involving breach
of contract.
 The doctrine is a device for imputing liability to a person
where there is no relation between him and another party.
 In such a case, the obligation is created by law itself.
 BUT where there is a pre-existing contractual relation
between the parties themselves who create the obligation,
and the function of the law is merely to regulate the relation
thus created.
 What is applicable is ART. 1170.
 Nevertheless, factual causation and scope of liability is
indispensable in determining if the defendant is liable for
the damages being claimed by the plaintiff arising ex
contractu.
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  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.
 While proximate causation need not be established to prove
breach of contract, the moment of breach of contract is
established, the plaintiff must also establish the causal
connection between the breach and the damage before he
can recover.
 Proximate causation in breach of contract of cases in
relation to scope of liability, is in fact governed by ART.
2201 of the NCC.
4.03.CERTAINTY OF DAMAGES
 To recover damages, the amount of loss must not only be
capable of proof but must actually be 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, nor on
hearsay or uncorroborated testimony, the truth of which is
suspect.
a. Burden of Proof
 The claimant is duty-bound to point out specific facts that
afford a basis for measuring whatever compensatory
damages are borne.
 The burden of proof is on the PARTY WHO WOULD BE
DEFEATED if no evidence would be presented on either
side.
 He must establish his case by a PREPONDERANCE OF
EVIDENCE i.e. that evidence, as a whole, adduced by one
side is superior to that of the other.
 Damages CANNOT be presumed.
 Claimant must prove the actual amount of loss with
reasonable certainty premised upon competent proof and on
the best evidence obtainable.
 Specific facts that could afford a basis for measuring
whatever compensatory or actual damages are borne must
be pointed out.
 The ff. are NOT SUFFICIENT:
o Estimated amount
o Bare testimonial assertion
 Self-interest
o Sales projection
b. Absence of Proof of Precise Amount
 Uncertainty as to the precise amount is not necessarily
fatal.
 Mere difficulty in the assessment of damages is NOT
sufficient reason for refusing to award damages where the
right to them has been established.
c. Civil Indemnity
 Proof of actual loss is NOT necessary in cases where the
law or jurisprudence allows the award of civil indemnity.
EXAMPLES:
o Civil indemnity upon finding of the fact of rape
o Civil indemnity in tort/criminal cases where the
victim died
4.04.DAMAGE TO PROPERTY
a. Damage to or Loss of Personal Property
 Where goods were destroyed by the wrongful act of the
defendant, the plaintiff is entitled to their value at the time
of the destruction.
 Normally, the award is the sum of money which the
plaintiff would have to pay In the market for identical or
essentially similar good, plus in proper cases, damages for
the loss of use during the period before replacement.
 IN case of profit-earning chattels, it is the value of the
chattel to its owner as a going concern at the time and place
of the loss.
o PROFIT-EARNING POTENTIALITY – the
capitalized value of the vessel as a profit-earning
machine
 Award is without prejudice to such other damages.
b. Damage to or Loss of Real Property
 The measure of damage is the difference between the
reasonable market value of the property immediately before
and after the injury.
 In case of total loss, the value of the real property at the
time and place of the loss must also be assessed and is the
measure of the damage due to plaintiff.
c. Loss of Possession
 Where the plaintiff was merely deprived of his possession,
he is entitled to the value of the use of the premises.
 Thus, the rental value should be assessed against the
plaintiff for trespass or illegal occupation of a house (even
if the trespass is intermittent).
4.05.PERSONAL INJURY
a. Actual Medical and Other Expenses
 If the plaintiff is asking for damages for his own injury,
plaintiff is entitled to the amount of medical expenses as
well as other reasonable expenses that he incurred to treat
his or his relative’s injuries.
TORTS AND DAMAGES by TIMOTEO B. AQUINO
b. Plastic Surgery
 Award of damages may include the amount spent for
plastic surgery or any procedure to restore the part of the
body that was affected.
c. Future Medical Expenses
 Courts may also award monthly payments to the person
who was injured to answer for his future medical expenses
(may be through temperate damages).
 LIFE CARE COST – based on his average monthly
expense and the actuarial computation of the remaining
years that he is expected to live.
 Reason: tortfeasor is liable for all damages which are the
natural and probable consequences of the act or omission
complained of.
(1) Alternative Approaches: PERIODIC vs. LUMP
SUM
 PERIODIC PAYMENTS
 Administratively problematic
because in reality, the case
will not be closed and
84
 terminated unless the victim 𝑵𝒆𝒕 𝑬𝒂𝒓𝒏𝒊𝒏𝒈 𝑪𝒂𝒑𝒂𝒄𝒊𝒕𝒚
dies. = 𝑳𝒊𝒇𝒆 𝑬𝒙𝒑𝒆𝒄𝒕𝒂𝒏𝒄𝒚
 LUMP-SUM PAYMENTS × [𝑮𝒓𝒐𝒔𝒔 𝑨𝒏𝒏𝒖𝒂𝒍 𝑰𝒏𝒄𝒐𝒎𝒆
 Awards often are dissipated − 𝑵𝒆𝒄𝒆𝒔𝒔𝒂𝒓𝒚 𝑳𝒊𝒗𝒊𝒏𝒈 𝑬𝒙𝒑𝒆𝒏𝒔𝒆𝒔]
by improvident expenditures
or investments before the b. Life Expectancy
injured person actually incurs  The number of years for which the victim would
the future medical expenses. otherwise have lived.
2
 Formula: × [80 − 𝑎𝑔𝑒 𝑎𝑡 𝑑𝑒𝑎𝑡ℎ]
d. Loss of Earning Capacity 3
o American Expectancy Table of Mortality
a. Awarded when the defendant’s act or omission resulted in
o Actuarial Combined Experience Table of
his permanent incapacity.
Mortality
 NOT based on retirement age
4.06.DAMAGES IN CASE OF DEATH
 The presumption is that the victim could have earned
income even if he is beyond his retirement age.
ART. 2206. The amount of damages for death caused by a crime
or quasi-delict shall be at least P3000, even though there may
(1) Life Expectancy of Victim
have been mitigating circumstances. In addition:
 It is the life of the deceased or victim that is the
(1) The defendant shall be liable for the loss of the earning
element of the formula for computing loss of earning
capacity of the deceased, and the indemnity shall be
capacity and not that of the heirs.
paid to the heirs of the latter; such indemnity shall in
every case be assessed and awarded by the court, unless
(2) Rationale for Table of Mortality
the deceased on account of permanent physical
 There is a link here with actuarial tables, which were
disability not caused by the defendant, had no earning
created by life assurance companies for the purpose of
capacity at the time of his death;
determining what capital sum should be charged for an
(2) If the deceased was obliged to give support according to
annuity, since the insurer is obviously vitally
the provisions of Art. 291, the recipient who is not an
concerned to make the estimate of the annuitant’s life
heir called to the decedent’s inheritance by the law of
expectancies.
the testate or intestate succession, may demand support
from the person causing the death, for a period not
(3) Factors that Reduce Life Expectancy
exceeding 5 years, the exact duration to be fixed by the
1) The general vicissitudes of life
court;
a. Damaging events – early death,
(3) The spouse, legitimate and illegitimate descendants and
unemployment
ascendants of the deceased may demand moral damages
2) Lump sum of damage will itself produce an
for mental anguish by reason of the death of the
investment income
deceased.
a. The theoretical aim of the process
is to provide a lump sum
a. Damages That Can be Awarded
sufficient, if invested, to produce
(1) Civil indemnity ex delicto for the death of the
an income equal to the lost income
victim
when the interest is supplemented
(2) Actual or compensatory damages
by withdrawal of capital.
(3) Moral damages
Examples:
(4) Exemplary damages

TORTS AND DAMAGES by TIMOTEO B. AQUINO

 Medical history of the deceased
(5) Attorney’s fees
(6) Expenses of litigation  Nature of the work
(7) Interest  Habit and manner of life
(8) Temperate damages (in lieu of actual damages)
c. Net Earnings
b. Actual Expenses  The rate of loss sustained by the heirs of the deceased
 Plaintiff is entitled to reimbursement for medical expenses  Net earnings + potentiality and capacity to increase
+ amount that he spent during the wake and funeral of the future income
deceased.  As to heirs: damages consist of the support they
 Expenses AFTER burial – NOT compensable. received or would have received from him had he not
died in consequence of the negligence of petitioner’s
c. Fixed Damages or Civil Indemnity agent.
 Current amount: P50,000  The amount recoverable is the loss of that portion of
 Murder cases: P50,000-P75,000 (where there are the earnings which the beneficiary would have
circumstances that would justify the imposition of the death received.
penalty)  Gross Earnings – Necessary Expenses (Living +
Incidental Expenses)
4.07.LOSS OF EARNING CAPACITY
(1) Proof of Earnings
a. Formula  GEN. RULE: documentary evidence should
be presented too substantiate the claim for
loss of earning capacity.

85
 o Payroll of employees + ITRs –
best evidence of the salary of the
deceased
 EXCEPTIONS:
o Award of temperate damages for
loss of earning capacity in lieu of
documentary evidence
o Cases where the victim was
earning less than minimum wage
o Non-working victims
o When the testimonial evidence
sufficiently establishes the loss
 when the testimonies of
the corporate officers of
the employer of the
deceased
 when the testimony of
the widow of the victim
was held acceptable
because a reasonable
estimate of the income
can be made on the basis
of such testimonies
(2) No Documentary Evidence of Earnings
 Victim was self-employed earning less than
the minimum wage under current labor laws
and judicial notice was taken of the fact that
in the victim’s line of work, no documentary
evidence is available;
 Victim was employed as a daily wage
worker earning less than the minimum wage
under the current labor laws
 Non-working victims
 Sometimes, to victims earning more than
minimum wage
 WHAT IS IMPORTANT IS PROOF OF
CAPACITY TO EARN, not merely proof of
actual loss of a specified amount of income.
d. Living Expenses
 Fixed at 50% of the gross income
e. Loss of Earning Capacity of Non-Working Victims
 Earning capacity may be impaired even if no actual
earning is lost in the meantime.
 What is important is that there is PROOF OF LOSS
OF EARNING CAPACITY, and not necessarily
actual loss of income.
 Compensation is awarded not for loss of earnings but
for loss of capacity to earn money.
 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.
 Expert testimony may be used.
f. Inflation and Reduction to Present Worth
 The award in favor of the plaintiff should be reduced
to its present worth.
 The total amount of actual income of the deceased up
to the time of his death will NOT be ALL given to the
plaintiff.
 The AIM is to provide a lump sum sufficient, if
invested, to produce an income equal to the lost
income when the interest is supplemented by
wihtdrawal of capital.
 The OBJECT of discounting lost future wages to
present value is to give the plaintiff an amount of
money which, invested safely, will grow to a sum
equal to wages.
 2 ways of reduction to present worth:
1) By reducing the multiplier that corresponds
to the life expectancy
2) By maintaining the amount of income at the
last income of the deceased/permanently
disabled.
4.08.LOSS OF PROFITS
 Commissions lost by reason of the acts/omissions of the
defendants
 Income stipulated in the contract terminated in a wanton
and fraudulent manner
 The amount of loss profits may be determined by
considering the average profit for the preceding years
multiplied by the number of years during which the
business is affected by the wrongful act/breach.
 Plaintiff must present reports and documents that may show
the average actual profits earned by the business as well as
other evidence of profitability which are necessary to prove
plaintiff’s claim for said amount.
4.09.ATTORNEY’S FEES
a. Award is Due to Party, not to Lawyer
 Thus, the award agreed upon by the plaintiff and his
counsel does not control the amount of atty.’s fees that
should be awarded.
 Plaintiff’s counsel does not have a right to enforce the
award of atty.’s fees.
b. Cases where Attorney’s fees Can be Awarded
ART. 2208. In the absence of stipulation, attorney’s fees and
expenses of litigation, other than judicial costs, cannot be
recovered, except:
(1) When the 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;
TORTS AND DAMAGES by TIMOTEO B. AQUINO
(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, employer’s liability laws;
(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.
c. Amount and Basis of Award
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  The amount to be awarded is left to the discretion of
the courts.
 Plaintiff must allege the basis of his claim in the
complaint.
 The court must state in its decision the legal and
factual basis for the award.
 May be awarded if there is bad faith or gross
negligence discountenanced under Art. 19, NCC.
 AWARD IS AN EXCEPTION RATHER THAN THE
RULE.
 It demands factual, legal, and equitable justification.
 Reason: no premium should be placed on the right to
litigate.
d. Award When Compelled to Litigate
 The fact that the plaintiff was compelled to litigate
does NOT by itself justify an award of attorney’s fees.
 Proof of bad faith on the part of the defendant is
required.
4.10.INTEREST
ART. 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 6% per annum.
ART. 2210. Interest may, in the discretion of the court, be
allowed upon damages awarded for breach of contract.
ART. 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.
ART. 2212. Interest due shall earn legal interest from the time it
is judicially demanded, although the obligation may be silent
upon this point.
ART. 2213. Interest cannot be recovered upon unliquidated
claims or damages, except when the demand can be established
with reasonable certainty.
 Interest rate under CB Circular No. 416 applies to:
(1) Loans
(2) Forbearance of money, goods, or credits
(3) Judgment involving a loan or forbearance of money,
goods, or credits
 Cases beyond the scope of the circular are governed by Art.
2209 of the NCC which considers INTEREST as A FORM OF
INDEMNITY FOR THE DELAY IN THE PERFORMANCE
OF AN OBLIGATION.
 Eastern Shipping Lines vs. CA:
I. When an obligation, regardless of its source, i.e., law,
contracts, quasi-contracts, delicts or quasi-delicts is
breached, the contravenor can be held liable for
damages. The provisions under Title XVIII on "Damages"
of the Civil Code govern in determining the measure of
recoverable damages.
II. With regard particularly to an award of interest in the
concept of actual and compensatory damages, the rate of
interest, as well as the accrual thereof, is imposed, as
follows:
1. When the obligation is breached, and it consists in the
payment of a sum of money, i.e., a loan or forbearance
of money, 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. In the absence of
stipulation, the rate of interest shall be 12% per
annum to be computed from default, i.e., from judicial
or extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.
2. When an obligation, not constituting a loan or
forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at
the discretion of the court at the rate of 6% per
annum. No interest, however, shall be adjudged on
unliquidated claims or damages except when or until
the demand can be established with reasonable
certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall
begin to run from the time the claim is made judicially
or extrajudicially (Art. 1169, Civil Code) but when
such certainty cannot be so reasonably established at
the time the demand is made, the interest shall begin
to run only from the date the judgment of the court is
made (at which time the quantification of damages
may be deemed to have been reasonably ascertained).
The actual base for the computation of legal interest
shall, in any case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of
money becomes final and executory, the rate of legal
interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 12% per annum from
such finality until its satisfaction, this interim period
being deemed to be by then an equivalent to a
forbearance of credit.
 KENG HUA PAPER PRODUCTS CO., INC. vs. CA: the
monetary award shall earn interest at 12% from the date of the
finality of the judgment until its satisfaction, regardless of WON
the case involves a loan or forbearance of money. The interim
period is deemed to be equivalent to a FORBEARANCE OF
CREDIT.
5. MITIGATION OF LIABILITY
ART. 2203. The party suffering loss or injury must exercise the
TORTS AND DAMAGES by TIMOTEO B. AQUINO
diligence of a good father of a family to minimize the damages
resulting from the act or omission.
ART. 2204. In crimes, the damages to be adjudicated may be
respectively increased or lessened according to the aggravating or
mitigating circumstances.
ART. 2214. In quasi-delicts, the contributory negligence of the
plaintiff shall reduce the damages that he may recover.
ART. 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 had 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.
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5.01.DOCTRINE OF AVOIDABLE CONSEQUENCES
 A party cannot recover damages flowing from consequences
which the party could reasonably have avoided.
 A persons who reasonably attempts to minimize his damages
can recover expenses that he incurred.
 In the doctrine of contributory negligence, the plaintiff’s
act/omission occurs before or at the time of the act/omission of
the defendant.
 In the doctrine of avoidable consequences, the acts of the
plaintiff occur after the act/omission of the defendant.
 The obligation must be imposed MINIMALLY to avoid unjust
enrichment, nothing more than what has been lost materially and
morally.
 TEST: reasonable diligence and ordinary care
 Burden of proof: on the DEFENDANT
5.02.COLLATERAL SOURCE RULE
 Any amount of insurance, donation from friends, or other
benefit from other sources, employee’s compensation benefit –
other than the defendant – must be IGNORED in awarding
damages in favor of the plaintiff.
 In the PH, the effect of receipt of other benefits would depend
on the nature and specific law that governs such benefits and
other prevailing circumstances.
 Rule does not apply if damage consists in damage to property
that is covered by an insurance policy.
ART. 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.
 No right of subrogation exists in life insurance. CSR applies.
 CSR does not apply to employees’ compensation under the
Labor Code.
 Exception: lack of knowledge of the existence of the alternative
remedy nullifies the election of a remedy. CSR does not apply.
6. MORAL DAMAGES
ART. 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 or omission.
6.01.CONCEPT OF MORAL DAMAGES
 Designed to compensate the claimants for actual injury, not
meant to enrich the complainant at the expense of the defendant.
 Awarded only to enable the injured party to obtain means,
diversions, or amusement that will serve to alleviate the moral
suffering he has undergone by reason of the defendant’s
culpable action.
 AIM: restoration within the limits of the possible, the spiritual
status quo ante.
 Awarded NOT to punish the defendant, BUT to compensate the
victim.
 Effect of Death:
o A claim for moral damages does NOT survive the
death of the plaintiff.
o The right to moral damages is NOT
TRANSMISSIBLE to the injured party’s substitutes
because it is extremely PERSONAL to the injured
party.
o Whether the action survives or not depends on the
nature of the action and the damage sued for.
 In the cause of action which SURVIVE, the
wrong complained of affects primarily and
principally property and property rights, the
injuries to the person being merely
incidental.
 In the causes of action which do NOT
SURVIVE, the injury complained of is to
the person, the property and rights of
property affected being merely incidental.
6.02.PROOF OF CAUSATION
ART. 2216. No proof of pecuniary loss is necessary in order that
moral, nominal, temperate, liquidated, or exemplary damages
may be adjudicated. The assessment of such damages, except
liquidated ones, is left to the discretion of the court, according to
the circumstances of each case.
 However, there must be proof that the defendant caused physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation,
and similar injury to the plaintiff.
 So long as there is satisfactory proof of the psychological and
mental trauma actually suffered by a party, the grant to him of
moral damages is warranted.
 It is also necessary to prove its causal relation to the defendant’s
act.
 NO allegation and proof are required in CRIMINAL CASES.
6.03.CASES WHEN MORAL DAMAGES MAY BE AWARDED
ART. 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;
TORTS AND DAMAGES by TIMOTEO B. AQUINO
(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 Art. 309;
(10) Acts and actions referred to in Art. 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.
 Fraud or Bad Faith required.
 Such damages, to be recoverable, must be the proximate result
of a wrongful act or omission, the factual basis for which must
be satisfactorily established by the aggrieved party.
 Requisites:
(1) There must be an injury, whether physical, mental, or
psychological, clearly sustained by the claimant.
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 (2) There must be a culpable act or omission factually
established.
(3) The wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the
claimant.
(4) The award of damages is predicated on any of the
cases in Art. 2219.
 ART. 1764: moral damages may also be awarded in case the
death of a passenger results from a breach of carriage.
 In culpa aquiliana or quasi-delict, moral damages may be
recovered…
(1) When an act or omission causes physical injuries, or
(2) Where the defendant is guilty of intentional tort.
 Unfounded Suits:
 No damages can be charged on those who may
exercise the right to litigate in good faith even if done
erroneously.
 Award is justified if there is a clear abuse of court
processes.
 Labor Cases:
 Award justified where the dismissal of the employee
 was attended by bad faith or fraud; or
 constitute an act oppressive to labor; or
 was done in a manner contrary to morals,
good customs or public policy.
 Criminal Taking of Life:
 Evidence must be adduced by the offended party to
warrant an award of moral damages, EXCEPT in
cases of violent death.
 Rape/Acts of Lasciviousness Cases
 No need to show that private complainant experienced
trauma or mental/physical/psychological suffering.
 AMOUNT – P75,000
 Abuse of Process
EXAMPLES:
 Wrongful attachment
 Bad faith must be supported by evidence.
6.04.FACTORS IN DETERMINING AMOUNT
ART. 2218. In the adjudication of moral damages, the
sentimental value of property, real or personal, may be
o ART. 309 of NCC: Any person who shows disrespect
to the dead, or wrongfully interferes with a funeral
shall be liable to the family of the deceased for
damages, material and moral.
o In the cases when the victim’s relatives are allowed to
recover, they have also suffered although they are not
the victims of the assault.
o The intensity of the pain experienced by the relatives
of the victim is proportionate to the intensity of the
affection for him and bears no relation whatsoever
with the wealth or means of the offender.
o Inclusion unius est exclusion alterius.
o Brothers and sisters cannot recover moral damages for
the death of their siblings.
 GENERALLY, corporations and other artificial beings are NOT
entitled to recover moral damages.
 EXCEPTION: libel. (Art. 2219(7), NCC)
ART. 2220. Willful injury to property may be a legal ground for
awarding moral damages if the court should find that, under the
circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted
fraudulently or in bad faith.
7. NOMINAL DAMAGES
ART. 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.
ART. 2222. The court may award nominal damages in every
obligation arising from any source enumerated in Art. 1157, or in
every case where any property right has been invaded.
ART. 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.
 Every injury from its very nature legally imports damage or the

TORTS AND DAMAGES by TIMOTEO B. AQUINO

considered.
injury complained of would in the future be evidence in favor of
the wrongdoer, especially where, if continued for a sufficient
a. Extent of Humiliation
length of time, the invasion of the plaintiff’s rights would ripen
b. Pain and suffering
into a prescriptive right in favor of the defendant.
c. Official, Political, Social, and Financial Standing
 There are instances when the vindication or recognition of the
(1) Credit standing
plaintiff’s right is of utmost importance to him.
(2) Financial standing
 NOTE: De minimis non curate lex.
d. Age
 Award cannot co-exist with actual damages.
 Nominal damages may be appropriately awarded if the right to
6.05.FIXED AMOUNT
procedural due process of the employee was violated.
 Usually P50,000.
Factors:
 P75,000 for rape and murder cases
o The authorized cause invoked
 NOT an unbending rule, depends on circumstances
o The number of employees to be awarded
o The capacity of the employers to satisfy the awards,
6.06.PERSONS WHO MAY RECOVER
taking into account their prevailing financial status as
 GENERALLY, the person who endured the suffering, etc. can
borne by the records
recover moral damages.
o The employer’s grant of other termination benefits in
 EXCEPTION:
favor of the employees
o The parents of the female seduced, abducted,
o Whether there was a bonafide attempt to comply with
raped, or abused, referred to in No. 3 of this article,
the notice requirement as opposed to giving no notice
may also recover moral damages.
at all
o The spouse, descendants, ascendants, and brothers
and sisters may bring the action mentioned in No. 9
8. TEMPERATE OR MODERATE DAMAGES
of this article, in the order named.
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ART. 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 cannot, from the nature of the case, be
proved with certainty.
ART. 2225. Temperate damages must be reasonable under the
circumstances.
 Anticipated Increase in Medical Expenses
o Temperate damages should be awarded on top of
actual/compensatory damages in instances where the
injury is chronic and continuing.
 Loss of Earning Capacity
o Temperate damages may be awarded where earning
capacity is plainly established but no evidence was
presented to support the allegation of the injured party.
 Lost Earnings
o Temperate damages may be premised on the existence
of pecuniary injury to business of the plaintiff the
amount of which nevertheless being difficult to prove.
 FIXED AMOUNT: P25,000 (may be increased depending on
circumstances)
9. LIQUIDATED DAMAGES
ART. 2226. Liquidated damages are those agreed upon by the
parties to a contract, to be paid in case of breach thereof.
ART. 2227. Liquidated damages, whether intended as an
indemnity or a penalty, shall be equitably reduced if they are
iniquitous or unconscionable.
 Reason: the stipulation is contra bonus mores under ART. 1326.
 It is a mere techinicality to refuse to lessen the damages to their
just amount simply because the stipulation is not meant to be a
penalty.
 An immoral stipulation is not less immoral because it is called
an indemnity.
 Factors to be considered:
o Type, extent, and purpose of the penalty
o Nature of the obligation
o Mode of the breach and its consequences
o Supervening realities
o Standing and relationship of the parties
o Etc.
 When Reduction Not Warranted: if it appears even from the start
that the defendant had not shown the least intention to fulfill the
non-involvement clause in good faith.
ART. 2228. When the breach of 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.
10. EXEMPLARY OR CORRECTIVE DAMAGES
ART. 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.
ART. 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.
ART. 2231. In quasi-delicts, exemplary damages may be granted
if the defendant acted with gross negligence.
ART. 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.
ART. 2233. Exemplary damages cannot be recovered as a matter
of right; the court will decide whether or not they should be
adjudicated.
ART. 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
[damages] in addition to 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.
ART. 2235. A stipulation whereby exemplary damages are
renounced in advance shall be null and void.
 Required by public policy to suppress wanton acts
 ANTIDOTES so that the poison of wickedness may not run
through the body politic
 Imposed as a deterrent against or as a negative incentive to curb
socially deleterious actions
 Imposed, by way of example or correction for the public good,
in addition to the moral, temperate, liquidated, or compensatory
damages.
 Designed to reshape behavior that is socially deleterious in its
consequence
 Honeste vivere, non alterum laedere et jus suum cuique tribuere.
 To live virtuously, not to injure others and to give everyone his
due.
 PNB vs. CA (1996): Requisites. -
TORTS AND DAMAGES by TIMOTEO B. AQUINO
o They may be imposed by wa of example in addition to
compensatory damages, and only after the claimant’s
right to them has been established;
o They cannot be recovered as a matter of right, their
determination depending upon the amount of
compensatory damages that may be awarded to the
claimant;
o The act must be accomplished by bad faith or done in
wanton, fraudulent, oppressive, or malevolent manner.
 Cases when available:
o there was gross carelessness/negligence amounting to
wanton misconduct
o present of fraudulent misconduct
o contract of carriage
o Criminal cases – when there is an aggravating
circumstance or depravity of the mind of the accused
o Quasi-delict cases – if the defendant acted with gross
negligence
o Quasi-contracts e.g. solutio indebiti – if the defendant
acted in an oppressive manner
90