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Compiled by:

Pauline Mae P. Araneta

(November 2013)


Paras, Edgardo L. Civil Code of the Philippines, Annotated. Volume

Five: ARTS. 1458-2270 (SPECIAL CONTRACTS) REX Book
Store. Manila, Philippines. 17TH Edition. 2013.

Tolentino, Arturo M. Commentaries and Jurisprudence on the Civil

Code of the Philippines. Volume 5. Central Lawbook Publishing
Co., Inc. 1995.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 2


Tort is derived from the Latin word tortum, which means to twist. It includes that
conduct which is not straight or lawful. It is equivalent to the English term wrong.

Salmond - It is a civil wrong for which the remedy is a common law action for unliquidated
damages and which is not exclusively the breach of a trust or other merely equitable

We may define tort as a civil wrong which is redressible by an action for unliquidated
damages and which is other than a mere breach of contract or breach of trust.


The term Tort is of Anglo-American law a common law which is broader in scope than
the Spanish-Philippine concept which is limited to negligence while the former includes
international or criminal acts. Torts in Philippine law is the blending of common-law and
civil law system.

Quasi-Delict refers to acts or omissions which cause damage to another, there being fault
or negligence on the part of the defendant, who is obliged by law to pay for the damages

Elements of Quasi-Delict:

1. Damages suffered by the plaintiff

2. Fault or negligence of the defendant
3. Causal connection between the fault or negligence of the defendants act and the
damages incurred by the plaintiff (Andamo v. IAC, 191 SCRA 426, 96)

Article 2176 of the Civil Code applies when theres no pre-existing contractual relation
between the parties. However, the Supreme Court held that even if there is a contractual
relation, there will still be quasi-delict since the act that break the contract may be also
be tort, in cases of Air France v. Carrascaso, 18 SCRA 155; Singson v. BPI, 23 SCRA
1117, 63; and Fabre Jr. v. CA, 259 SCRA 426.

Art. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties is called a quasi-delict
and is governed by the provisions of this Chapter (Title XVII: EXTRA-CONTRACTUAL

Elcano v. Hill: An act, whether punishable or not punishable by law, whether

criminal or not criminal in character, whether intentional or voluntary or negligent, which
result in the damage to another.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 3

Quasi-Delict v. Torts

Quasi-delict, known as culpa-aquiliana is a civil law concept while Torts is Anglo-

American or common law concept. Torts is broader than culpa-aquiliana because it
includes not only negligence, but intentional criminal acts as well. However, Art. 21 with
Art. 19 and 20 greatly broadened the scope of the law on civil wrongs; it has become
more supple and adaptable than the Anglo-American law on torts.

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

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

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

Types of Quasi-Delicts

(1) Intentional Torts: When the law tries to serve its highest purpose; to regulate the
relations among men; to promote mutual respect, dignity and justice.

Art. 19 was intended to expand the concept of torts by granting adequate

legal remedy for the untold number of moral wrong which is impossible for human
foresight to provide specifically in statutory law.

Elements of Abuse of Right

1. There is a legal right or duty;

2. Exercised in bad faith;
3. For the sole intent of prejudicing or injuring another

Art. 19 together with the succeeding articles on human relations was

intended to embody certain basic principles that are to be observed for the rightful
relationship between human beings and for the stability of their social orders.

Strict Liability Torts:

The rule on strict liability is said to be applicable in situations in which social

policy requires the defendant make good the harm which results to others from
abnormal risks which are inherent in activities that are not considered blameworthy
because they are reasonably incident to desirable industrial activities.


1) 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. (Art. 2183)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 4

2) Manufacturers and processors of foodstuffs, etc. (Art 2187)

3) RA 7394 or the Consumer Acts of the Philippines.
The 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 hazard reasonably expected of it
(c) the time it was put into circulation
4) Head of the family that lives in a building is responsible for the damages
causes by things thrown or falling from the same (Art. 2193)

(2) Human Dignity

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

1. Prying into the privacy of anothers residence;

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

Read: Jacutin v. People. GR No. 140604, March 6, 2002.

(3) Nuisance

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.

Art. 683. Subject to zoning, health, police and other laws and regulations,
factories and shops may be maintained provided the least possible annoyance is
caused to the neighborhood.
Scope: Public and private
Nature: per se and per accidense

Nuisance is the limitation of the use of property.

Bengzon v. Province of Pangasinan: The pumping station should have foreseen

the consequences of the construction of such station. The duty shifted to pumping
station that they should have thought that the construction may give damage to
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 5

Attractive Nuisance - In the law of torts, the attractive nuisance doctrine

states that a landowner may be held liable for injuries to children trespassing on
the land if the injury is caused by a hazardous object or condition on the land that is
likely to attract children who are unable to appreciate the risk posed by the object
or condition. The doctrine has been applied to hold landowners liable for injuries
caused by abandoned cars, piles of lumber or sand, trampolines, and swimming
pools. However, it can be applied to virtually anything on the property of the
landowner. Attractive nuisance is an implied license to enter and a breach of duty.


1. It must involve children;

2. It must have dangerous instrumentality;
3. There is a failure to take reasonable precaution

Quasi-Delict: Person Responsible

Art. 2180: One who directly responsible for the damages is responsible, others
1. Father or mother with respect to the damages of their minor child.
2. Guardians with authority to minor child or incapacitated who lives with them.
3. Owners and managers of the establishment with respect to employees.
4. Employers
5. The State
6. Teachers or heads of establishment of arts and trades with respect to

Schloendoerff doctrine regards a physician, even if employed by a hospital, as an

independent contractor, because of his skill the exercises and the lack of control exerted
over his work. Under this doctrine, the hospital is exempt from the application of the
respondeat superior principle for fault or negligence committed by physician in the
discharge of their profession. HOWEVER, Ramos v. CA weakens this doctrine
hospitals are no longer exempt from universal rule of respondeat superior.

Doctrine of Corporate Negligence, hospitals have now the duty to make reasonable
effort to monitor and oversee the treatment prescribed and administered by physicians
practicing in its premises.

Doctrine of ostensible agency - imposes liability upon hospital because of the

hospitals actions as principal or as employer in somehow misleading the public into
believing that the relationship or the authority exists.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 6

Traditional Quasi-Delict: Elements

Art. 2176:
1. act or omission
2. damage or injury is caused to another
3. fault or negligence is present
4. no pre-existing contractual obligation
5. causal connection between damage done and act or omission


1. Fault signifies voluntary act or omission causing damages to the right of another
giving rise to an obligation of the actor to repair such damage.


a. Substantive and independent fault in that there is no pre-existing relation.

This is the one referred to in Art. 2176 NCC and source of an obligation. It is
also known as culpa extra contractual or culpa aquiliana covered by Art.
2176 NCC.
b. Fault as an incident in the performance of an obligation existing is known
as contractual fault or culpa contractual governed by Art. 1170-73 of NCC.

2. Negligence consists in the omission to do certain acts which result to the

damage to another.

3. Intent to cause damage to another thru an act or omission:

a) Culpa absence such intent, the actors liability is civil governed by the Civil
b) Dolo presence of such intent and the act or omission becomes crime and
the actors civil liability is governed by the provisions of the Revised Penal

Importance of the distinction:

Importance of knowing these distinctions lies in filing the proper cause of action
against the tortfessor. The same act or omission which is faulty or negligent causing
damage produces civil liability arising from a crime under the Revised Penal Code or
create an action for quasi-delict or culpa contractual under the Civil Code.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 7

Distinction between Tort and Crime

Tort Crime
1) Less serious wrongs are considered as 1) More serious wrongs have been
private wrongs and have been labelled considered to be public wrongs and are
as civil wrong. known as crimes.
2) The suit is filed by the injured person 2) The case is brought by the state.
3) Compromise is always possible. 3) Except in certain cases, compromise is
not possible.
4) The wrongdoers pay compensation to 4) The wrongdoer is punished.
the injured party.

Distinction between Tort and Breach of Contract (Culpa Contractual)

Breach of contract Tort
1) It results from breach of a duty 1) It occurs from the breach of such duties
undertaken by the parties themselves. which are not undertaken by the parties
but which are imposed by law.
2) In contract, each party owes duty to the 2) Duties imposed by law of torts are not
other. towards any specific individual but
towards the world at large.
3) Damage of contract is liquidated. 3) Damage of tort is unliquidated.
4) It provides limited remedy 4) It provides unlimited remedy.

Distinction between Tort and Breach of Trust

Tort Breach of Trust
1) Damage of tort is unliquidated. 1) Damage of breach of trust is liquidated.
2) Law of tort was part of common law. 2) Law of trust was part of Court of
3) Tort is partly related to the law of 3) Trust is a branch of law of property.

Latin terms and maxims

(1) Causa causans - An immediate and effective cause.

(2) Causa sine quanon - A necessary cause; the cause without which the thing
cannot be or the event would not have occurred.

Some preceding link but for which the causa causans, that is, the immediate cause
could not have become operative.
a. East India Commercial Co. v. Collector of Customs, AIR 1962
b. Municipal Board v. State Transport Authority, AIR, 1965
c. Prem Bus Service v. R.T.A, AIR 1968
d. Chockalingam v. C.I.T, AIR, 1963
e. Inayatullah v. Custodian, Evacuee Property, AIR, 1958
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 8

(3) Volenti non fit injuria - There is no injury to one who consents.

Hall v. Brooklands Auto Racing Club - The plaintiff was a spectator at a

motor car race being held at Brooklands on a track owned by the defendant
company. During the race, there was a collision between two cars, one of which
was thrown among the spectators, thereby injuring the plaintiff. It was held that the
plaintiff impliedly took the risk of such injury, the danger being inherent in the sport
which any spectator could foresee, the defendant was not liable.

Padmavati v. Dugganaika - While the driver was taking the jeep for filling
petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing
the right front wheel to the axle gave way toppling the jeep. The two strangers were
thrown out and sustained injuries, and one of them died as a consequence of the

It was held that neither the driver nor his master could be made liable, first,
because it was a case of sheer accident and, secondly, the strangers had
voluntarily got into the jeep and as such, the principle of volenti non fit injuria was
applicable to this case.

Wooldrige v. Sumner - The plaintiff, who was a photographer, was taking

photographs at a horse show while he was standing at the boundary of the arena.
One of the horses, belonging to the defendant, rounded the bend too fast. As the
horse galloped furiously, the plaintiff was frightened and he fell into the horses
course and there he was seriously injured by the galloping horse. The horse in
question won the competition. It was held that since the defendants had taken due
care, they were not liable. The duty of the defendants was the duty of care rather
than duty of skill.

(4) Ex turpi causa non oritur actio - No action arises from a wrongful consideration.

Hardy v. Motor Insurers Bureau - This was a case where a security officer
was dragged along when he tried to stop a car. Lord Denning MR said: no person
can claim reparation or indemnity for the consequences of a criminal offence where
his own wicked and deliberate intent is an essential ingredient in it It is based on
the broad rule of public policy that no person can claim indemnity or reparation for
his own wilful and culpable crime. He is under a disability precluding him from
imposing a claim.

Revill v. Newberry - An elderly allotment holder was sleeping in his shed with
a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his
gun through a hole in the shed, injuring the plaintiff. At first instance, the defendant
successfully raised the defence of ex turpi to avoid the claim.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 9

(5) Damnum sine injuria - Damage without wrongful act; damage or injury inflicted
without any act of injustice; loss or harm for which there is no legal remedy. It is
also termed damnum absque injuria.

There are cases in which the law will suffer a man knowingly and wilfully to
inflict harm upon another, and will not hold him accountable for it.

Gloucester Grammar School Case - The defendant, a schoolmaster, set up a

rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to
reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held
that the plaintiffs had no remedy for the loss thus suffered by them.

Mogul Steamship Co. v. McGregor Gow and Co. - A number of steamship

companies combined together and drove the plaintiff company out of the tea-
carrying trade by offering reduced freight. The House of Lords held that the plaintiff
had no cause of action as the defendant had by lawful means acted to protect and
extend their profits.

Ushaben v. Bhagyalaxmi Chitra Mandir - The plaintiffs sued for a permanent

injunction against the defendants to restrain them from exhibiting the film named
Jai Santoshi Maa. It was contended that the film hurt the religious feelings of the
plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as
jealous and were ridiculed. It was observed that hurt to religious feelings had not
been recognized as a legal wrong. Moreover, no person has a legal right to enforce
his religious views on another or to restrain another from doing a lawful act, merely
because it did not fit in with the tenets of his particular religion. Since there was no
violation of a legal right, request of injunction was rejected.

Action v. Blundell - The defendants by digging a coal pit intercepted the

water which affected the plaintiffs well, less than 20 years old, at a distance of
about one mile. It was held that they were not liable. It was observed: The person
who owns the surface, may dig therein and apply all that is there found to his own
purposes, at his free will and pleasure, and that if in the exercise of such rights, he
intercepts or drains off the water collected from underground springs in the
neighbors well, this inconvenience to his neighbor falls within description damnum
abseque injuria which cannot become the ground of action.

(6) Injuria sine damno - This maxim means injury without damage. Wherever there is
an invasion of a legal right, the person in whom the right is vested is entitled to
bring an action and may be awarded damages although he has suffered no actual
damage. Thus, the act of trespassing upon anothers land is actionable even
though it has done the plaintiff not the slightest harm.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 10

Bhim Singh v. State of J & K - The petitioner, an MLA, of J & K Assembly,

was wrongfully detained by the police while he was going to attend the Assembly
session. He was not produced before the Magistrate within the requisite period. As
a consequence of this, the member wad deprived of his constitutional right to
attend the Assembly session. There was also violation of fundamental right
guaranteed under the Constitution. By the time the petition was decided by the
Supreme Court, Bhim Singh had been released, but by way of consequential relief,
exemplary damages amounting to 50,000 were awarded to him.


(1) Malice - A condition of mind which prompts a person to do a wrongful act wilfully, that
is, on purpose, to the injury of another, or to do intentionally a wrongful act toward
another without justification or excuse.

In its legal sense it means a wrongful act done intentionally without just cause or

Malice is a wish to injure a party, rather than to vindicate the law.


a. Malice in fact Means an actual malicious intention on the part of the person
who has done the wrongful act. It is also called express or actual malice.
b. Malice in law It is not necessarily personal hate or ill will, but it is that state of
mind which is reckless of law and of the legal rights of the citizen.

(2) Motive - Motive is that which incites or stimulates a person to do an act. It is the
moving power which impels to action for a definite result.

Motive is mainspring of human action. It is cause or reason. It is something which

prompts a man to form an intention.

(3) Intention - A settled direction of the mind towards the doing of a certain act; that
upon which the mind is set or which it wishes to express or achieve; the willingness
to bring about something planned or foreseen.

(4) Injury - In legal parlance, injury means any wrong or damage done to another,
either in his person, rights, reputation or property.

Meaning under Penal Code, 1860 (section 44) the word injury denotes any harm
whatever illegally caused to any person, in body, mind, reputation or property.

(5) Hurt - Whoever causes bodily pain, disease or infirmity to any person is said to
cause hurt.

(6) Malfeasance - It is a wrongful act which the actor has no legal right to do, or any
wrongful conduct which affects, interrupts, or interferes with performance of official
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 11

duty, or an act for which there is no authority or warrant of law or which a person
ought not to do at all, or has contracted not, to do.

The word malfeasance would apply to a case where an act prohibited by law is done
by a person. (Khairul Bahsar v. Thana Lal AIR 1957)

(7) Misfeasance - Unlawful use of power; wrongful performance of a normally legal act;
injurious exercise of lawful authority; official misconduct; breach of law.

The word misfeasance would apply to a case where a lawful act is done in an
improper manner.

(8) Nonfeasance - Non-performance of some act which ought to be performed, omission

to perform a required duty at all, or total neglect of duty.

Nonfeasance would apply to a case where a person omits to do some act prescribed
by law.

Distinction between Misfeasance, nonfeasance and malfeasance Misfeasance

is the improper doing of an act which a person may wilfully do. Nonfeasance means the
omission of an act which a person ought to do. Malfeasance is the doing of an act which
a person ought not to do at all.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 12

Art. 2176. Whoever by act or omission causes damages to another,
there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provision of this Chapter.


Scope of Article It will cover all wrongful acts provided they do not constitute
contractual breach or acts punishable as crimes, and it is extensive enough to include
any rational conception of liability for tortious acts likely to be developed in any society.
Fault or negligence which constitute breach of contract are governed by Arts. 1170 to
1174, while fault or negligence constituting crimes, are governed by the Penal Code.

However the same negligent act causing damages may produce civil liability
arising from a crime under the RPC, or create an action for quasi-delict or culpa extra-
contractual under the Civil Code, and the party seeking recovery is free to choose which
remedy to enforce. When the negligent act, for which a person may be held civilly liable
for damages, also constitutes a crime, the prosecution thereof is not indispensable to the
filing of a civil action for damages.

Contractual and Extra-Contractual Liability There are cases where obligations

arising from contract are connected with others created by extra-contractual fault or
negligence. Each kind of obligation, however, is subject to the special rules or provisions
pertaining to it, although Arts. 1172-1174 are made applicable to both kinds.

ILLUSTRATION: Artist X entered into a contract with Company A, under which,

for a period of five years, X was to record on discs of Company A the songs the latter
might ask, with a stipulation that she was not going to make any recording to anybody
else. This contract was made known to Company B. Notwithstanding this, X made some
recordings for Company B. Company A sued both X and Company B for damages, and X
was held liable for contractual culpa, while Company B was held responsible for extra-
contractual culpa.

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. 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void.
Art. 1172. Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such
liability may be regulated by the courts, according to the circumstances.
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of
the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a
good father of a family shall be required.
Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature
of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be
foreseen, or which, though foreseen, were inevitable.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 13

Contractual responsibility and extra-contractual liability, however, exclude each

other and cannot be cumulated.

Difference between Culpa Aquiliana and Culpa Contractual

Culpa Aquiliana the wrongful or negligent act or omission which creates a vinculum
juris and gives rise to an obligation between two persons not formerly bound by any other

Culpa Contractual is the fault or negligence incident in the performance of an obligation

which already existed, and which increases the liability from such already existing

1. The employer may, in cases where liability arises from culpa aquiliana, exculpate
himself, by proving that he had exercised due diligence in the selection or
supervision of his employees to prevent the damage; whereas this defense is not
available where the liability of the employer arises from a breach of contractual
duty (culpa contractual).

2. In culpa aquiliana, the burden of proof rests upon the plaintiff to prove the fault or
negligence upon which liability is predicated, and if he does not, his action fails.
But in culpa contractual, it is not necessary for the plaintiff to plead or prove that
the breach of the contract was due to the willful fault or the negligence on the
part of the defendant or of his servants or agents; proof of the contract and of its
non-performance is sufficient prima facie to warrant a recovery.

3. Culpa aquiliana is governed by art. 2176 and the following articles; while culpa
contractual is governed by arts. 1170 to 1174.

Requisites for a Quasi-Delict (Culpa Aquiliana)

(1) that there exists a damage or injury, which must be proved by the person
claiming recovery;
(2) that there exists a wrongful act or omission imputable to the defendant by reason
of his fault or negligence;
(3) that there be a direct relation of cause and effect between the damage or injury
and the fault or negligence; and
(4) that there must be no pre-existing contractual relation between the parties

The existence of a contract between the parties does not bar the commission of
a quasi-delict, which may be independent of the contract or not in relation to it.
(Singson v. Bank of the Philippine Islands, 23 SCRA 1117)

It is not required, as a condition precedent to recovery, that the tortfeasor know

the identity of the person to whom he causes damage. (Gilchrist v. Cuddy 29 Phil.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 14

Concept of Fault There is fault when a person acts in a manner contrary to what
should have been done. The acts, the necessary care and precaution vary according to
the matter involved; and even with respect to the same matter, according to the time. A
variation in the facts, in the law, and in the moral and social concepts, may lead courts to
consider as culpable now an act which was not in the past so considered, or vice-versa.

Only JURIDICAL FAULT, but not moral fault, gives rise to liability for damages.
Lack of charity or of altruism, constituting moral fault, does NOT constitute a quasi-delict.
But while the law does not require charity or altruism, it requires prudence and care,
considering the attendant circumstances. For instance, the owner of an open ditch by the
side of a street, who does not light it at night, will be liable to persons who may fall therein
in the darkness. (3 Colin & Capitant 826-827))

Concept of Negligence Negligence is the failure to observe for the protection of the
interests of another person, that degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury. (United States v.
Barias, 23 Phil. 434) It is relative or comparative, and not an absolute, term and its
application depends upon the situation of the parties and the reasonable degree of care
and vigilance which the circumstances reasonably impose. Where the danger is great, a
high degree of care is necessary and the failure to observe it is a want of ordinary care.
(Corliss v. Manila Railroad, 26 SCRA 674)

Under this concept, it has been held that mere intoxication is not negligence, nor
does the mere fact of intoxication establish a want of ordinary care. If a persons conduct
is characterized by a proper degree of care and prudence, it is immaterial whether he is
drunk or sober. (Wright v. Manila Electric 28 Phil. 122)

Test of Negligence The test in determining whether a person is negligent in doing an

act whereby injury or damage results to the person or property of another is this: Would
a prudent man, in the position of the person to whom negligence is attributed foresee
harm to the person injured as a reasonable consequence of the course about to be
pursued? If so, the law imposes a duty on the actor to refrain from that course or to take
precaution against its mischievous results, and the failure to do so constitutes

Reasonable foresight of harm, followed by the ignoring of the admonition born of

this prevision, is the constitutive fact of negligence. (Picart v. Smith, 37 Phil. 809)

The existence of negligence in a given case is not determined by the personal

judgment of the actor in a given situation. It is the law that determines what would be
reckless or negligent. (Layugan v. IAC, 167 SCRA 363)

Automobile Operators Automobiles have the same right to use the public highways as
other vehicles or pedestrians; but their use must be accompanied by that degree of
prudence in management and consideration of the rights of others as may be consistent
with safety. The degree of care required in the operation of an automobile on the public
highways is correlative with the conditions confronting the operator, such as the presence
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 15

or absence of other travellers and their apparent ability to take care for themselves, the
unobstructedness of the views, etc. It must always be borne in mind that an automobile is
more dangerous than vehicles drawn by animals for the reason that the former is capable
of greater destruction and is absolutely under the power of the driver, whereas a horse or
other animal can and does to some extent aid in averting an injury or accident.

In determining whether or not reckless imprudence exists, the degree of care

required to be exercised must vary with the capacity of the person endangered to care for
himself. (Ylarde v. Aquino, 163 SCRA 697)

Speeding The driver of a vehicle might be held liable for any damage he may cause
even if he was not speeding, if the facts and circumstances surrounding the particular
time and place showed that he was operating his vehicle recklessly or at a rate of speed
greater than is reasonable and proper under existing conditions. Speed limits are only
maxima not to be exceeded, and driving at a lesser speed is no guaranty of due care.
The motorist must not only keep within the speed limit but must observe due care; and
the latter is always determined by the surrounding circumstances of person, time and
place. Moreover, speed limit is set for optimum conditions; where they do not obtain, and
the light is uncertain, or the road slippery, the speed limit is no longer a test of diligence.

Overtaking The driver of an overtaking vehicle must see to it that the conditions are
such that an attempt to pass is reasonably safe and prudent, and in passing must
exercise reasonable care. In the absence of clear evidence of negligence on the part of
the operator of the overtaken vehicle, the courts are inclined to put the blame for an
accident occurring while a passage is being attempted on the driver of the overtaking
vehicle. (People v. Bolason, [CA] 53 O.G. 4158)

Street Car Operators General Rule: The driver of an ordinary vehicle is bound to be
watchful at all points in a crowded city street, elsewhere as well as at crossing. At the
intersection of two streets the driver of a vehicle or a pedestrian has the right to cross the
tracks of a street railway notwithstanding a car is in sight, provided there is reasonable
opportunity to do so, and if, for that purpose, it is necessary for the person having charge
of the motive power of the street car to check its speed or even to entirely stop the car for
a short period, it is his duty to do so and the person crossing the street or track has the
right, without being necessarily chargeable with contributory negligence, to assume that
that duty will be performed. (Mestres v. Manila Electric Co., 32 Phil. 496)

Greater care is to be used to avoid injuries to children in the streets than the law
demands for the protection of adults. (U.S. v. Clemente, 24 Phil. 178)

Engine Drivers Engine drivers of trains are duty bound to observe reasonable care
and diligence so that accidents may be avoided and injury to pedestrians and other
vehicles be prevented. But there is no obligation on the part of an engine driver to stop,
or even slow down his engine, when he sees an adult pedestrian standing or walking on
or near the track, UNLESS there is something in the appearance or conduct of the
person on foot which would cause a prudent man to anticipate the possibility that, such
person could not, or would not avoid the possibility of danger by stepping aside.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 16

Ordinarily, all that may be properly required of an engine driver under such
circumstances is that he gives warning of his approach, by blowing his whistle or ringing
his bell, until he is assured that the attention of the pedestrian has been attracted by the
oncoming train.

DUTY OF AN ENGINE DRIVER: To adopt every measure in his power to avoid

the infliction of injury upon any person who may happen to be on the track in front of his
engine, and to slow down or stop altogether if that be necessary, should he have reason
to believe that only by so doing can the accident be averted. (U.S. v. Bonifacio, 34

Pedestrian The rules regarding the duties of persons driving vehicles or engines
capable of causing injury or even death, through negligent operation, are predicated upon
the assumption that a corresponding degree of care is exercised by the person injured. If
the pedestrian be himself negligent, and his negligence was the true cause of the
accident, he would be barred from recovering anything from the owner or the operator of
the vehicle. It is the duty of every person crossing a railroad track, for instance, to use
ordinary care and diligence to determine the proximity of a train before attempting to
cross. (Yamada v. Manila Railroad, 33 Phil. 8)

The engine driver of an approaching train may fairly assume that all persons
walking or standing on or near the track, EXCEPT children of tender years, are aware of
the danger to which they are exposed, and that they will take reasonable precautions to
avoid accident, by looking and listening for the approach of trains, and stepping out of the
way of danger when their attention is directed to an oncoming train (U.S. v. Bonifacio,
supra.), provided the distance between the vehicle and the person on the tracks is such
that the person will have time and apparently has the ability to do so. But the driver of a
vehicle, or a pedestrian, approaching the line of a street railway company, has a right of
way if, proceeding at the rate of speed which is reasonable under the circumstances, he
can reach the point of crossing in time to go safely on the tracks in advance of the
approaching car, the latter being sufficiently distant to be checked and, if need be, to be
stopped before it reaches the pedestrian. (Mestres v. Manila Electric Co., 32 Phil. 496)

Public Officials Any person suffering material or moral loss because a public servant
or employee refuses or neglects, without just cause, to perform his official duty may file
an action for damages and other relief against the latter, without prejudice to any
disciplinary administrative action that may be taken. But a public officer, whether judicial,
quasi-judicial, or executive, is NOT personally liable to one inured in consequence of an
act performed within the scope of his official authority, and in line of his official duty.

Where an officer is invested with discretion and is empowered to exercise his

judgment in matters brought before him, he is sometimes called a quasi-judicial officer,
and when so acting he is usually given immunity from liability to persons who may be
injured as a result of an erroneous or mistaken decision, however erroneous his
judgment may be, provided the acts complained of are one within the scope of the
officers authority, and without wilfulness, malice or corruption.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 17

Litigants General Rule: When an action is filed in good faith, there should be no
penalty on the right to litigate. Error alone is not a ground for moral damages. Thus the
mere fact that a party was sued without foundation does not entitle one to an award of
damages. The adverse result of an action does not per se make it wrongful as to justify
an assessment of damages against the actor.

EXCEPTION: But where the petitioner, with blind persistence, had filed case
after case and complaint after complaint against the respondent and no single case had
prospered, he is liable for actual or moral damages and attorneys fees to the latter.

Professionals One who practices a profession and offers his services to the public, is
obliged to have sufficient knowledge for such practice, and must utilize what he knows in
order to comply with his undertaking. The possession of an academic degree is not
enough, because the progress of science and culture and the new developments in every
line of work require due diligence in acquiring more knowledge after the acquisition of
such degree. If by the lack of such knowledge a professional causes damage to a client,
he is liable for such damages. (Borrell Macia, pp. 44-45)

Druggists The profession of pharmacy is one demanding care and skill. The
responsibility of a druggist is the highest degree of care known to practical men. The
care required is commensurate with the danger involved, and the skill employed must
correspond with the superior knowledge of the business which the law demands. The rule
of caveat emptor cannot be applied in the purchase and sale of drugs. The customer
has to rely wholly upon the absolute honesty and peculiar and special learning of the
druggist. Consequently, the druggist must be held to warrant that he will deliver the drug
called for. Hence, pharmacists or apothecaries who compound or sell medicines are
liable to all persons injured by using such medicines, the rule being that the liability
arises, not out of contract or any direct privity between the wrongdoer and the person
injured, but out of the duty which the law imposes on them to avoid acts in their nature
dangerous to others. (U.S. v. Pineda, 37 Phil. 456)

Other Cases

Liwayway Publications v. Permanent Concrete Workers Union, 108 SCRA 161

A picketing labor union has no right to prevent employees of another company

from getting in and out of its rented premises, otherwise it will be held liable for damages
for its acts against an innocent bystander.

Civil Aeronautics Administration v. Court of Appeals, 167 SCRA 28

Failure of the CAA to have a dangerous elevation prepared in order to eliminate

the hazards constitutes such negligence as to warrant a finding of liability based on

Latin for let the buyer beware; the purchaser assumes the risk that the product might be either defective or unsuitable to his
or her needs.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 18

General Bank & Trust Co. v. Court of Appeals, 135 SCRA 569

Bank officials who illegally dismissed an employee are personally and severally
liable for payment of unpaid salaries, damages and termination pay of the latter.

Seahorse Maritime Corp. v. NLRC, 173 SCRA 390

An employee dismissed without written notice to him of the charges against him,
and without formal investigation is entitled to damages.

Burden of Proving Negligence Before judgment for damages can be entered in

actions on negligence, the fact of negligence must be affirmatively established by
competent evidence. The person who alleges the negligence must prove it, because
the general presumption is that men act with care and prudence. If no negligence is
proved, the action must be dismissed.

Where the proximate cause of the incident was skidding of the rear wheels of the
jeep and not the unreasonable speed of the accused-driver, no negligence can be
charged to the accused. Skidding, being an unforeseen event, and negligence not
sufficiently established, accused should be acquitted. (Bayosen v. CA, 103 SCRA 197)

Doing an act, like extension of credit, which is lawful does not render one liable
for tort simply because the act enables another to accomplish a wrong. (Bacolod-Murcia
Milling v. First Farmers Milling, 103 SCRA 436)

When Damages Not Recoverable There is no liability for damages in the following

(1) when the conduct is not anti-juridical, as when there is a justification, like the state
of necessity;
(2) when there is no imputability, as when damages are caused by an insane person;
(3) when the injured party is at fault;
(4) when the cause of damage is a fortuitous event;
(5) when the act is in the performance of a duty or in the exercise of a right, UNLESS
there is abuse;
(6) when the act is for the benefit of the injured or pursuant to his express or presumed
will (such as negotiorum gestio and emergence surgical operation)
(7) when by an excusable error, the actor believed his act to be lawful; and
(8) when the actor is wanting in intelligence or freedom of will.

For the defense of force majeure to prosper, the accident must be due to natural
causes and absolutely without human intervention. When an act of God combines with
defendants negligence to produce an injury, defendant is liable if the injury would not
have resulted but for his own negligent conduct.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 19

Art. 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.


Effect of Acquittal in Criminal Case This article is based on the distinction between
criminal and civil negligence. Pursuant to the rule it sets down, an acquittal in a criminal
case is not necessarily res judicata in a civil action based, not on crime, but on quasi-
delict. There is no identity of causes of action in recovering civil indemnity as a mere
accessory or subsidiary to criminal liability, and in enforcing a primary responsibility
derived directly from a quasi-delict. The acquittal in the criminal case may mean merely
that the negligence is not sufficiently clear and serious to make a person liable to
punishment, and yet it may constitute an illicit act or quasi-delict which may make him
civilly liable.

Hence, even after the acquittal of an accused in a criminal case for damage to
property through reckless imprudence, a motion to dismiss an action to recover civil
liability not arising from criminal negligence under the Penal Code, but from culpa
aquiliana or quasi-delict under Art. 2176 cannot be entertained. (Lising v. Rosales, et al.,
[CA] 54 O.G. 8086) Even the simultaneous filing of two cases, one civil and the other
criminal, is within the sanction of the law. (Fortich Zerda v. Marasigan, et al., [CA] 54
O.G. 107)

A separate civil action lies against the offender in a criminal act, whether or not
he is criminally prosecuted and found guilty or acquitted, provided that the victim does not
recover damages on both scores. A quasi-delict is a separate legal institution under the
Civil Code entirely apart and independent from a delict or crime; acquittal or conviction in
a criminal case is entirely irrelevant in the civil case.

A separate civil action based on quasi-delict may be filed independently of, and
notwithstanding the pendency of, the criminal action against the offender because
responsibility for fault or negligence based on quasi-delict is entirely separate and distinct
from civil liability arising from negligence under the Penal Code. The rule is settled that
the same negligent act can create two kinds of liability on the part of the offender but the
offended party cannot recover damages under both types of liability.

Where the guilt of the accused was not proved beyond reasonable doubt,
petitioners have the right to file an independent civil action for damages.

There are writers who believe that there is no such distinction between criminal and civil negligence; that the fact of negligence
is always the same, and it is only the action based thereon which may either be criminal or civil. It is said that any supposed
distinction is completely artificial and without solid foundation, and inasmuch as even if the negligence could give rise to a
criminal action, it is not obligatory to prosecute criminally, for a civil action for damages can be instituted without a prior criminal
action, it is immaterial whether the negligence is qualified as civil or criminal. (See Borrel Macia, pp. 32-34; Cammarota, pp.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 20

But where the judgment of acquittal contained a declaration that no negligence

can be attributed to the accused and that the fact from which the civil action might arise
did not exist, such acquittal in the criminal action carried with it extinction of civil
responsibility arising therefrom.

Where a civil action as separately filed based on injuries arising from reckless
driving, but the driver was acquitted in the criminal case on the ground that he was not
negligent and that the case is a pure accident, the civil action for damages should be
DISMISSED. (Marcia v. CA, 120 SCRA 193)

Art. 2178. The provisions of Arts. 1172 to 1174 are also applicable to
a quasi-delict.

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


Negligence of Injured Party There is no liability when the injury is caused exclusively
by the fault or negligence of the injured party himself.

Even when the defendant is guilty of some omission, if such omission is not the
proximate cause of the injury of the plaintiff whose negligence is the proximate cause
thereof, the defendant cannot be held liable.


At the crossing of a railroad track there is no guard or bar, which are

required by the regulations. A person crosses or walks along the tracks with
knowledge of the hours when the train passes the place, and at a point where he
can see a coming train at a distance of about two kilometers. If he does not take
the necessary precautions so that he would escape injury from a train that
passes by, his negligence would be the proximate cause of his injury and he
cannot recover.

But if the negligence of the defendant had exposed the plaintiff to the peril, and
the negligence of the latter merely brought about the accident resulting from the peril, the
defendant would be liable.


An electric light company left exposed a live wire or cable carrying

electricity of high voltage. This wire was on a post to which was tied one end of a
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 21

laundry wire for drying clothes. A woman, upon putting some clothes on the wire,
touched the post and was electrocuted. The electric light company was held
liable for her death. (Sentencia of Feb. 24, 1928, and Dec. 10, 1921, and Oct. 5,
1932; Borrell Macia, pp. 71-72)

Proximate Cause Proximate cause is such adequate and efficient cause as in the
natural order of events, and under the particular circumstances surrounding the case,
would necessarily produce the event. It is one which in natural sequence, undisturbed by
any independent cause, produces the result complained of. The result, however, must be
the natural probable consequence such as ought to have been foreseen as likely to flow
from the act complained of. (3 Bouviers Law Dictionary 432-436)

When a partys negligence was not merely contributory but goes to the very
cause of the accident, he has no right to recover damages for the injuries which he
suffered. (PLDT v. CA, 178 SCRA 94)

Chain of Causation The cause of the cause is the cause of the effect. There is a
liability by the original actor for all consequences which may be attributed to his act.
Thus, one who pushes another is liable for the damages caused by the latter for having
been pushed; he who hands a weapon to an enraged man is liable for the damages
caused by the latter; and one who sells firecrackers to a child is liable for the injuries to
third persons caused by the latter through the explosion of such firecrackers. As Giorgi
said, the liability does not extend to damages caused by unforeseen, fortuitous and
accidental causes, but it does extend to all losses caused by events which were foreseen
or could have been foreseen because they were in the natural order of things. (Borrell
Macia, pp. 66-67, 72-76)

Concept of Contributory Negligence This is the omission of the diligence required

by the circumstances by virtue of which a person could have avoided injury to himself. It
may be an omission of diligence by which the injured party contributed to the cause
which gives rise to the injury; or it may be the failure to take the caution to avoid or
minimize such injury. Thus, where negligence of electric utility plant was proximate cause
of death of child, parental negligence in allowing the child to go to the place where a
fallen live wire was located is merely CONTRIBUTORY. (Umali v. Bacani, 69 SCRA 263)

But a party is not guilty of contributory negligence when he could not have
reasonably foreseen the harm that would befall him, considering the circumstances then
prevailing. (Civil Aeronautics Adm. V. CA, 167 SCRA 28)

Effect of Contributory Negligence In determining the effect of contributory

negligence, a distinction is made between the accident and the injury resulting therefrom;
between the event itself, without which there could have been no accident, and those
acts of the victim which, not entering into the principal accident and independent of it,
contribute to his own proper hurt or injury. Where the plaintiff contributes to the principal
occurrence of accident, as one of its determining factors, he cannot recover. But where
he contributes, in conjunction with the occurrence, only to his injury, he may recover the
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 22

amount that the defendant responsible for the event should pay for such injury, less a
sum deemed a sufficient equivalent for his own imprudence.

The contributory negligence of the party injured will not defeat the action if it be
shown that the defendant might, by the exercise of reasonable care and prudence, have
avoided the consequences of the negligence of the injured party, but such contributory
negligence may be considered as a mitigating circumstance.

Effect of Minority The conduct of an infant of tender years is not to be judged by the
same rule which governs that of an adult. While it is the GENERAL RULE in regard to an
adult that to entitle him to recover damages for an injury resulting from the fault or
negligence of another, he must himself be free from such fault, such is not the rule in
regard to an infant of tender years. The care and caution required of a child is according
to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case. (Railroad Co. v. Stout, 17 Wall. [84 U.S.) 657, cited in Taylor
v. Manila Electric, 16 Phil. 8)

Last Clear Chance The doctrine of last clear chance has been definitely enunciated
by our Supreme Court in the following language: Where both parties are guilty of
negligence, but the negligent act of one succeeds that of the other by an appreciable
interval of time, the one who has the last reasonable opportunity 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.

The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid the
impending harm and failed to do so, is made liable for all the consequences of the
accident notwithstanding the prior negligence of the plaintiff. The doctrine does not apply
where the person who allegedly had the last opportunity to avoid the accident was not
aware of the existence of the peril. (Pantranco v. Baesa, 179 SCRA 384)

Rakes v. Atlantic, Gulf & Pacific Co., 7 Phil. 359. In the following cases, the contributory negligence merely served to mitigate
the damages: Rakes v. Atlantic, Gulf & Pacific Co., 7 Phil. 359; Bernal v. House, 54 Phil 327; Del Rosario v. Manila Electric, 57
Phil. 478.
Recovery was denied in the following cases, for the reason that the contributory negligence was the proximate cause of
the injury: Taylor v. Manila Electric, 16 Phil. 8; Mestres v. Manila Electric, 32 Phil. 496; Bernardo v. Legaspi, 29 Phil. 12; Teh Le
Kim v. Philippine Aerial Taxi Co., 58 Phil. 758.
Picart v. Smith, 37 Phil. 809. In this case, the defendant, driving an automobile over a bridge, saw from a distance the plaintiff
coming towards him on a horse. The plaintiff was on the wrong side of the bridge, and the defendant sounded his horn several
times, but even when the defendant saw that the plaintiff made no move to cross to the proper side of the bridge, he kept his
course towards the said plaintiff, until it was too late to avoid a collision with the horse, when he could have easily swerved from
his course while still far to avoid the collision, from which the plaintiff suffered injuries. Although the plaintiff was guilty of
negligence in staying on the wrong side of the bridge despite the defendants warning blasts, the court held the latter liable
because he had the last clear chance to avoid the collision. Also: PLDT v. CA, supra.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 23

Art. 2180. The obligation imposed by Art. 2176 is demandable not

only for ones own act or omission, 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
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in their
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the service
of the branches in which the latter are employed or on the occasion of their
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any business or
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 proved that they observed all the diligence of a
good father of a family to prevent damage.


Basis of Responsibility The responsibility imposed by this article arises by virtue of a

presumption juris tantum (rebuttable presumption) of negligence on the part of the
persons made responsible under the article, derived from their failure to exercise due
care and vigilance over the acts of subordinates to prevent them from causing damage.
Negligence is imputed to them by law, UNLESS they prove the contrary. Thus, the last
paragraph of the article says that such responsibility ceases if it is proved that the
persons who might be held responsible under it exercised the diligence of a good father
of a family, (diligentissimi patris familias) to prevent the damage. It is clear, therefore, that
it is not representation, nor interest, nor even the necessity of having somebody else
answer for the damages caused by the persons devoid of personality, but it is the non-
performance of certain duties of precaution and prudence imposed upon the persons who

The provision that the mother is liable only in the case of death or incapacity of the father, for damages caused by their minor
children, seems to be incompatible with the new principle contained in Art. 311 that the parental authority is exercised jointly by
the father and the mother.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 24

become responsible by the civil bond uniting the actor to them, which forms the
foundation of such responsibility.

The law presumes that there has been negligence in the exercise of supervision
and authority on the part of those held liable. As a consequence of this, Chironi gives

1. the duty of supervision, and

2. the possibility of making such supervision effective.

Liability of Author This article does NOT exempt the minor, ward, employee, special
agent, pupils, students, and apprentices from personal liability. In fact, they are the only
ones who will be held liable if there are no persons having authority over them (Art.
2182), or the latter are able to prove the exercise of due diligence to prevent the
damage. Hence, the injured party can bring an action directly against the author of the
negligent act or omission, or he may sue as joint defendants such author and the person
responsible for him.

In a motor vehicle mishap, 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. (Caedo v. Yu Khe Tai, 26 SCRA 410)

Strict Interpretation The responsibility imposed by this article cannot be extended to

persons not enumerated, because this is an extraordinary responsibility created by
way of exception to the rule that no person can be liable for the acts or omissions
of another; this article must, therefore be construed restrictively.

Liability of Parents The liability of parents under this article is based on a presumption
of failure on their part to properly exercise their parental authority for the good education
of their children and exert adequate vigilance over them. This liability is imposed only
when the children live with the parents. So long as they are living together, the
requirement of the law is complied with, whether they are in their domicile or in some
other place temporarily. The liability of the parents exists even when the minor child is
married. (Elcano v. Hill, 77 SCRA 98)

When the children are not living with the parents, the liability of the latter may or
may not disappear. If the separation is unjustifiable, such as when they are abandoned or
are allowed to become vagabonds, the liability of the parents subsists, because there is a
want of the vigilance and care which the law imposes. But, if there is just cause for the
separation, as when the children have been entrusted to relatives for reasons of health or
study, or when the child is in military training, etc., the responsibility of the parents

Borrell Macia, pp. 112-113
Art. 2182. If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be
answerable with his own property in an action against him where a guardian ad litem shall be appointed.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 25

The responsibility of the father and mother is not simultaneous, but alternate, the
father being primarily responsible and the mother answering only in case of death or
incapacity. If the father is living and capable, it is improper to join the mother as party
defendant, and if so impleaded, the court may properly drop her from the complaint.
(Romano, et al., v. Parias, et al., 53 O.G. 7245)

Thus, the head of a family, the owner of an automobile, who maintains it for the
general use of the family, is liable for its negligent operation by one of his children, who is
a minor, whom he designates or permits to run it, where the car is occupied and being
used at the time of the injury for the pleasure of other members of the owners family than
the child driving it. (Gutierrez v. Gutierrez, 56 Phil. 177)

When Responsibility Ceases If the child does not live in the company of the father,
who has voluntarily entrusted its custody and education to some other person or
institution, the responsibility for its acts passes to those having its custody. The father
cannot be held liable when he is not actually in a position to exercise his authority and
supervision over the child.

A parent is not liable for damages caused by his minor child, where he has no
way to prevent the damage by the observance of due care, or that he was not in any way
remiss in the exercise of his parental authority in failing to foresee such damage, or the
act which caused it. (Cuadra v. Monfort, 35 SCRA 160)

The responsibility of the parents ceases when the child has been placed in some
institution, only when he is placed there as an intern, under the vigilance and authority of
another. Hence, if the child goes home to eat and sleep with his parents or relatives, the
director of the institution cannot be responsible for him, because he would still be under
the supervision of his parents or relatives. If such a child commits an illicit act in the
streets, his parents would still be liable for his act.

Illegitimate Children Is the father liable under this article for the act or omission of his
illegitimate child, who may be living with him? The basis of the liability imposed by this
article is the parental authority and the duty of the parent to exercise vigilance over the
acts of the children under such authority.

Therefore, in the case of acknowledged natural children, the liability must be

borne by the acknowledging parents; and in the case of other illegitimate children, by the
mother, in whom the law vests parental authority.

Guardians and Wards The principles governing the responsibility of parents for the
acts or omissions of their minor children apply to guardians with respect to their wards;
but it should be noted that the extent of the power of direction or of the moral influence of
parents is more than that of guardians.

When Guardian Not Legally Appointed There are times when an orphaned child is
taken care of by some relative or neighbor who is not legally appointed as guardian. If the
child causes damages, such person in custody or de facto guardian would generally NOT
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 26

be responsible, because of the absence of one of the bases for the responsibility
namely, the duty to take care of the child. But if the injury caused is the result of bad
education or training by the guardian de facto, the latter should be held liable.

Liability of Employer The liability of the employer depends upon the existence of

1) that the employee was chosen by the employer, personally or

through another;
2) that the services are to be rendered in accordance with orders which
the employer has the authority to give at all times; and
3) that the illicit act of the employee was on the occasion or by reason
of the functions entrusted to him.

The liability under the fourth paragraph of this article is imposed upon all those
who by their industry, profession or other enterprise have other persons in their service or
under their supervision. The owners of public utilities, including vessels for freight, fall
within the scope of this article. The owner of a hacienda for the production of sugar is
likewise considered as engaged in an industry or enterprise which makes him liable for
the negligent acts of his employees, such as drivers of trucks used for the transportation
of his sugar. (Negros Transportation Co. v. Jayme, O.G., Oct. 4, 1941, p. 2823; Telleria v.
Garcia, [CA], O.G. Supp., Nov. 1, 1941, p. 115)

Under the provisions of the fifth paragraph of the present article, it is not
necessary that the employer be engaged in an industry, and therefore, a complaint which
does not allege this fact will not be dismissed on the ground of failure to state a cause of
action. (Ortalez v. Echarri, 54 O.G. 1831)

But the owner of a truck, engaged in the transportation business, has been held
to be not liable for damages for death resulting from accident, where the truck was driven
without her consent or knowledge, by a stranger, who was not her employee or chauffeur
in charge of driving it. (Duquillo v. Bayot, 61 Phil. 131)

Presumption of Negligence The presentation of proof of the negligence of its

employee gives rise to the presumption that the defendant employer did not exercise the
diligence of a good father in the selection and supervision of its employees. The
employer, after such proof, may escape liability only by proof that it exercised the
diligence of a good father of a family to prevent the damage not only in selection of
employees but in adequately supervising their work.

Nature of Liability The liability of the employer for the tortious acts or negligence of its
employees is primary and solidary, direct and immediate, and not conditioned upon the
insolvency of or prior recourse against the negligent employee.

Professionals Professionals engaged by an employer to render services to his

personnel, such as physicians, dentists, and pharmacists, are not employees under this
article. If they are at fault or negligent in the discharge of their professional duties, they
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 27

are PERSONALLY LIABLE; the manner in which they shall perform their work is not
within the control of the employer, and the latter cannot be held liable for them. Thus a
hospital cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients.

Independent Contractor A master is not generally responsible for the fault or

negligence of an independent contractor performing some work for him. But a contractor
may at the same time be so situated that he would be regarded as an employee for
whose negligence the employer is liable. Hence, if the contractor is not really an
independent contractor, because his employer has retained the power of directing and
controlling the work (as in labor-only contracting), his employer can be held responsible
for damages due to his negligence. (Cuison v. Norton & Harrison Co., 55 Phil. 18)

Nature of Liability The liability of a master for damages by his employee or agent in a
business enterprise is primary and direct and not subsidiary.

Liability for Abuse The employer is liable to third persons even in case of abuse by
the employees in the discharge of his functions. Such abuse may in effect be
overstepping the limits of the function entrusted to the employee; but third persons are
not in a position to determine such limits. Hence, they must be indemnified by the
employer who is chargeable with the abuse of his employee. This rule applies, even
when the employee has acted in violation of the orders or instructions of the employer.
Thus, when a driver uses for his personal needs the car of his employer, the latter would
still be liable. (2 Cammarota, 462-464, citing Argentine decisions)

Lease of Automobile The lessee of a motor vehicle, who, through the operation
thereof, causes injury to another while he holds it in such capacity as lessee, and uses it
in his business or enterprise, is liable for the damages caused through the negligence of
his driver. No liability attaches to the owner or lessor of the vehicle. (Rodriguez v. Perez,
65 Porto Rico 644) Where the operator of a public service, however, leases a vehicle to
another without securing approval of the Public Service Commission, he continues to be
its operator in contemplation of law and as such, responsible for the consequences
incident to its operation. (Timbol v. Osias, G.R. No. L-7547, Apr. 30, 1955)

Liability of State The State, besides exercising governmental functions, may act as a
juridical person or in a corporate capacity. As a governmental entity, it is liable only for
the acts of its special agents; but as a corporate entity susceptible of rights and
obligations, it may be held liable just as any other employer for the acts of its employees.
Hence, if it engages in some commercial or industrial enterprise, there can be no reason
for exempting it from liability. (Sentencia of Apr. 11, 1935; Borrell Macia, p. 140;
Fontanilla v. Maliaman, 179 SCRA 685)

By special agent is meant one duly empowered by a definite order or

commission to perform some act or one charged with some definite purpose which gives
rise to the claim; if he is a government employee or official, he must be acting under a
definite or fixed order or commission, foreign to the exercise of the duties of his office.
(Republic v. Palacio, 23 SCRA 899) Thus, when the act complained of is one performed
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 28

in the exercise of the official functions of a government official or employee, the State is
NOT responsible therefor. Under this interpretation, a chauffeur of the General Hospital
was held not to be a special agent, and the Government cannot be held liable for his
negligent acts, even if the Government has given its consent to be sued for such acts.
(Merritt v. Government, 34 Phil. 311) Neither is the government liable for damages
caused by the negligence of an employee of the Emergency Control Administration in
igniting his cigarette-lighter near a drum of gasoline, or of its officers in storing gasoline
contrary to local ordinance, in the absence of showing that said persons are special
agents of the State. (Rosell v. The Auditor General, 81 Phil. 453)

Teachers In order to be within this provision, a teacher must not only be charged with
teaching but also vigilance over their students or pupils. They include teachers in
educational institutions of all kinds, whether for the intellect, the spirit, or the body;
teachers who give instruction in classes or by individuals, even in their own homes;
teachers in institutions for deficient or abandoned children, and those in correctional
institutions. (6 Planiol & Ripert 166-167)

Borrell Marcia believes that the pupils or apprentices should be minors, thus
excluding from this article students of universities. But Planiol & Ripert hold the view that
since the law does not require minority, even those of age are included, although the
degree of vigilance over them is not the same over minors. Our Supreme Court follows
the latter view. (Palisoc v. Brilliantes, 41 SCRA 548)

Following the view of Planiol & Ripert, the Supreme Court has also held that
there is no sound reason for limiting the provisions of this article to teachers of arts and
trades and not to academic ones. (Salvosa v. IAC, 166 SCRA 274)

The liability of teachers and heads of educational institutions for the act of their
pupils exists only while such pupils remain in their custody. During a recess or temporary
adjournment of school activities where the student still remains at the call of his mentor
and is not permitted to leave the school premises or the area within which the school
activity is conducted, the pupils are still considered in the custody of their teachers as
attending school. (Ibid.)

The liability of teachers does not extend to the school or the university itself,
(Pascors v. CFI, 160 SCRA 784) although an educational institution may be held liable
under the principle of respondeat superior. (Cevadora v. CA, 160 SCRA 315)

Apprentices An apprentice is one who is learning a trade or occupation in the

establishment of another. The professional instruction given by the head of the
establishment to the apprentice gives him an authority and duties similar to those of a
teacher over his students and pupils.

[Latin, Let the master answer.] A common-law doctrine that makes an employer liable for the actions of an employee when the
actions take place within the scope of employment.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 29

Defense of Due Diligence Since the presumption of negligence, under this article is
only juris tantum, a master who takes all possible precaution in selecting his servants or
employees, bearing in mind the qualifications necessary for the performance of the duties
to be entrusted to them, and instructs them with equal care, complies with his duty to all
third parties to whom he is not bound under contract and incurs no liability if, by reason of
the negligence of such servants, though it be during the performance of their duties as
such, third parties should suffer damages.

The defense of due diligence of a good father of a family will not help an
employer where it is shown that it was guilty of excusable laxity in the supervision of its
driver and in the maintenance of its vehicles. (Vda. de Bonifacio v. BLT Bus Co., 34
SCRA 618)

Burden of Proof The burden of proving due diligence rests upon the owner of a
vehicle whose driver has been found to have negligently caused damage, for the reason
that it is difficult for any person injured by the carelessness of a driver to prove the
negligence or lack of due diligence of the owner of the vehicle in the choice of the driver.
If it be required of the injured party to prove the owners lack of diligence, the right will, in
many cases, prove illusory, as seldom does a person in the community, especially in the
cities, have the opportunity to observe the conduct of all possible car owners therein.
(Campo, et al. v. Cammarota, et al., 53 O.G. 2794)

When Not Available While the exercise of due care by the master in the selection and
supervision of the servant is admissible to prove the exercise of due diligence on the part
of the master to prevent the damage, such circumstance is by no means conclusive, in
certain cases, to exempt him from responsibility. The master will still be held liable, in
spite of such proof, for a wrongful act done by his servant in the character of vice-
principal if it can be shown that the master, upon full information as to the character of the
act done, took no affirmative steps to avert further damage, but on the contrary
maintained the situation created by the servant to the subsequent serious damage of the
parties concerned. In such cases, the liability of the master arises, not from his
presumptive negligence under this article of the Civil Code, but from the fact that the
wrongful act of his servant is his own personal negligence by participation. The same rule
applies when a master, with full knowledge of the facts, subsequently ratifies the wrongful
acts done by his servant or agent. (Maxion v. Manila Railroad, 44 Phil. 597)

Criminal Acts of Employee The subsidiary civil liability of employers under the
Revised Penal Code, for the criminal negligence of their employees cannot be defeated
by proof of having exercised due care and diligence in their selection and supervision.
The conviction of the employee conclusively binds the employer to answer for the
damages awarded. (Fernando v. Franco, 37 SCRA 311)

It must be observed, however, that the liability of the master in these cases of
criminal negligence is only subsidiary to the primary liability of the servant himself.
Hence, no action can be brought against the employer unless it is shown that the
employee had been sentenced to pay an indemnity and could not pay the same. Neither
can the employer be held to answer for more than the indemnity that the employee had
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 30

been ordered to pay, for in no case can subsidiary civil liability exceed the principal civil
liability. (Arambulo v. Manila Electric Co., 55 Phil. 75) In the enforcement of this
subsidiary civil liability, the employer can be jointly brought to court with the principal
obligor, without need of the determination of the formers insolvency being first made.

Contractual Negligence Where the action brought by the plaintiff is based upon
negligence in the fulfilment of a contractual obligation, the defense of due diligence of a
good father of a family to prevent the damage is NOT available to the employer whose
employees or servants have caused the damage. Thus, common carriers are liable for
damages caused to passengers or cargo through the negligence of their servants, and
the defense of due diligence in the selection and supervision of said servants will not
exempt them from responsibility.

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.


Scope The phrase dependents or employees in this article should be construed to

include all persons for whom another is held liable under Art. 2180. The reason is that the
legislator, by imposing liability upon the persons with supervisory authority over them, did
not exempt the author of the negligent act or omission from personal liability; the injured
is merely secured against possible insolvency of said author. If he is solvent, there is no
reason why he should not be liable to another who has paid for him.

Art. 2182. If the minor or insane person causing damage has no

parents or guardian, the minor or insane person shall be answerable with
his own property in an action against him where a guardian ad litem shall
be appointed.

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.


Scope of Provisions The question of fault or negligence of the possessor of an animal

is immaterial under this article, which recognizes responsibility without fault or
negligence. Some say that it establishes a presumption jure et de jure (conclusive
presumptions of law, which cannot be rebutted by evidence) of fault or negligence; so,
liability cannot be avoided by the possessor of the animal proving due diligence to
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 31

prevent the damage, because only force majeure or fault of the injured party can be a
defense. Thus, the possessor is liable for the injury caused by his dog that bites a
pedestrian, or by his carabao that gores another. However, this article cannot be
extended to an automobile or to an animal which merely follows the will of the person
who guides it.

This article is based on natural equity and social interest.

Liability Limited to Possessor or User The statute names the possessor or user of
the animal as the person liable for any damages it may cause, for the obvious reason
that the possessor or user has the custody and control of the animal and is therefore the
one in a position to prevent it from causing damage. Where a caretaker is hired to take
care of carabaos, and while tending the animals he is gored by one of them and dies as a
consequence of the injuries, his heirs cannot sue the owners who hired the deceased for
damages, for it is his business to prevent the animal from causing injury or damage to
anyone, including himself. (Afialda v. Hisole, 47 O.G. 2332)

Acts Giving Rise to Liability The possessor or user of an animal is liable for the acts
of the animal, whether they are instinctive or due to its defects. But, when the instinctive
act is due to force majeure such as lightning, thunder, etc., or to the act of a third person
(noisy vehicles, unforeseen obstacles), there is no responsibility on the part of the

Scope of Animals The term animals, used in a general sense, includes the
domestic, the domesticated and the wild animals, whether beast or fowl, including birds
which may peak the walls of a neighboring building. Some writers, like Demogue, Von
Tuhr, Oertmann, Dernbarg, Gierke, and Planek, even include the bacilli in a laboratory;
but this is rejected by other writers, such as Enneccerus and Cammarota.

According to the latter, a person who cultivates bacilli which infects another is not
responsible as an owner of animals, unless he is guilty of negligence, in the same
manner as if he had kept other noxious substances, like poison. Germs are not literally
animals, because a man who dies of cholera or tuberculosis cannot be said to have been
killed by animals.

Risk of Animals The owner is liable only for such damages that may be produced as a
consequence of the special danger from the animal, resulting from its nature as a living
thing with impulses of its own. Hence, the owner will not be liable if the animal is bodily
moved by others and should fall, causing injury to another; nor when it merely follows the
will of the person guiding it. But the owner will be liable if it runs wild because it is
frightened by some noise or object, because in this case, the damage would result from
the special danger to the animal.

Fortuitous Event In order that an event may be considered force majeure, so as to

exempt the possessor of the animal from liability, it is necessary that the same be
extraordinary and unforeseen. Thus, the passing of a vehicle, creating a noise which
frightens a horse, which in turn runs loose and kills or injures a person, does not
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 32

constitute force majeure. The event is a common one, which the possessor of the animal
could have foreseen, and against which he could have taken proper precautions.

Our Court of Appeals has held however, that the tooting of a horn, which
frightens a mare, causing it to run and injure a person, causing his death, is a fortuitous
event for which the owner of the mare is not liable to the heirs of the deceased for
damages. (Derifas v. Escao, [CA] 40 O.G. [Supp. 12] 525)

Fault of Victim The possessor of the animal is not liable if the victim is guilty of any act
or omission which unnecessarily exposes himself to the action of the animal, whether or
not he knows its habits or vices. It is no excuse for him to say that he was merely
observing, admiring, or even caressing the animal, because the latter cannot know his
purpose. Thus, one who provoke a dog or enters anothers house at night and is bitten by
a dog, or approaches a horse from the rear and is kicked by it, CANNOT recover

Act of Third Persons If a third person excites or provokes the animal, and the latter
injures another, the former is liable for the resulting damages. But if the one who
provokes or excites the animal is an employee or a child or a ward for whom the
possessor is liable under Art. 2180, the latter would still be responsible for the injuries
caused by the animal.

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 disputable 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
If the owner was in the motor vehicle, the provisions of Art. 2180 are

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
mishap, he was violating any traffic regulation.

Art. 2186. Every owner of a motor vehicle shall file with the proper
government office a bond executed by a government-controlled
corporation or office, to answer for damages to third persons. The amount
of the bond and other terms shall be fixed by the competent public official.

Art. 2187. Manufacturers and possessors 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.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 33


Scope of Article This article includes not only injuries to persons but also those
caused to animals.

Liability of Immediate Vendor If the injurious condition of the article is from its origin,
the immediate vendor is a stranger to the fault of the manufacturer and he CANNOT be
liable for the injuries the consumer may suffer. But if the noxious condition is not due to
the manufacture of the article, but to a transformation while it is in the hands of the
vendor, such as by reason of the time allowed to lapse, abandonment, or carelessness in
its custody, the vendor becomes liable for his own negligence.

Art. 2188. There is prima facie presumption of negligence on the part

of the defendant if the death or injury results from his possession of
dangerous weapons or substances, such as firearms and poison, except
when the possession or use thereof is indispensable in his occupation or

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 or supervision.


Ownership Not Required This article does not require that the defective road belong
to the province, city or municipality. Control or supervision over the road or a building is

Art. 2190. The proprietor of a building or structure is responsible for

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


Proof of Negligence The liability of the owner under this article is based on
negligence. Proof that abuilding or structure is not in a good state of repair, thus requiring
the adoption of precautions to avoid injury, and that the building or structure collapsed,
will show negligence prima facie. The proprietor will have to prove that he has made the
necessary repairs, or that the collapse was due to a defect in construction or to fortuitous
event, in order to relieve himself of liability for damages caused to third persons.

Property Under Lease or Usufruct Even when the property is leased or in usufruct,
the proprietor is liable to third persons who may be injured by its collapse. But since the
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 34

lessee and the usufructuary are obliged to notify the owner of the need for repairs, their
omission to give this notice will make them liable to reimburse the owner for the
indemnity he may have been obliged to pay to the parties injured by the collapse of the
property. (NCC, Arts. 593 and 1663)

Art. 2191. Proprietors shall also be responsible for damages caused:

(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.


Inanimate Objects The Code does not deal in general with inanimate objects, but
provides only for a few specific cases in this part. According to the basic principle of our
Code, outside of those cases expressly provided for, the owner of a thing cannot be held
liable caused by it, unless he is at fault or is negligent.

The liability for injuries caused by inanimate objects is based on either one of two

1) The principle of created risks: When a person introduces in society a dangerous

object, from necessity or for profit, he exposes others to danger. If it injures
another, even without negligence on the part of the owner or proprietor, he
should be liable for the damages caused.
2) The principle of presumed negligence: When an inanimate object causes
damage to another, the owner thereof becomes liable; proof of fault or
negligence is unnecessary because this is presumed. The present article is
based on this principle.

When Property is Leased When the tenement is leased, and the lessees fault or
negligence is the cause of the explosion of machinery or inflammable substances which
he places in the premises, he alone is responsible for the damages caused; but if the
proprietor of the tenement is also the owner of the machinery, or of the industry which
causes excessive smoke, the mere fact that he leases the entire property does NOT
relieve him from the responsibility to third persons who may be injured by his property.
Proprietor in this article must be understood as referring to the owner of the
machinery, the explosive substances, the industry or works, the tree, etc., which cause
the injury, and not that of the tenement or building in which they may be located.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 35

Injunction as Remedy The Civil Code (Art. 2191) casts upon real estate owners
liability in damages for the emission, upon their premises, of excessive smoke, which
may be noxious to persons or property. (Bengzon v. Province of Pangasinan, 62 Phil.
816) The injury caused by such a nuisance might bring about a depreciation in the value
of adjoining properties, but there is no certain pecuniary standard by which such
damages can be measured, and in that sense, the threatened injury is irreparable and
may appropriately be restrained by injunction. (Ollendorff v. Abrahamson, 38 Phil. 585)

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

be the result of any defect in the construction mentioned in Art. 1723,10 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.

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.


Scope The head of the family may not be the owner of the building. Hence, a hotel
manager, who is the lessee of the upper story of a building, is liable for damages caused
by a hotel guest, who, by opening the faucet, caused water to run down the floor and drip
to the lower stories, damaging goods and articles belonging to the occupant thereof.
(Dingcong v. Kanaan, 72 Phil. 14)

Solidary Liability The liability of the head of the family under this article does not
relieve the author of the injury from responsibility; the injured party may recover from one
or the other. But if the indemnity is satisfied by the head of the family, he may recover
from the party at fault.

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

Art. 1723. The engineer or architect who drew up the plans and specifications for a building is liable for damages if within
fifteen years from the completion of the structure, the same should collapse by reason of a defect in those plans and
specifications, or due to the defects in the 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 ten years following the collapse of the building.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 36


Introductory Comment:

The fundamental principle of the law on damages is that one injured by a breach
of contract or by wrongful or negligent act or omission shall have a fair and just
compensation, commensurate with the loss sustained as a consequence of the
defendants act.

GENERAL RULE: Actual pecuniary compensation, whether the action is based on a

contract or in tort.

EXCEPTION: Where the circumstances warrant the allowance of other kinds of


Chapter 1

Art. 2195. The provisions of this Title shall be respectively

applicable to all obligations mentioned in Art. 1157.


Art. 1157. Obligations arise from:

(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts.

Art. 2196. The rules under this title are without prejudice to special
provisions on damages formulated elsewhere in the Civil 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 the
Civil Code.


Special Provisions and Laws In case of conflict between the civil Code and the
Special Laws, it is the Civil Code that prevails insofar as damages are concerned
EXCEPT in the case of compensation for workmen and other employees.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 37

Art. 2197. Damages may be:

(1) Actual or compensatory;

(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated; or
(6) Exemplary or corrective.


Damages - defined as the pecuniary compensation, recompense, or satisfaction for an

injury sustained, or as otherwise expressed, the pecuniary consequences which the law
imposes for the breach of some duty or the violation of some right

Damages v. Injury

Injury is the wrongful act which causes loss or harm to another; while damages
denotes the sum of money recoverable as amends for the wrongful act. The one is the
legal wrong to be redressed; the other is the scale or measure of recovery.

Damage without Injury

There can be damage without injury (damnum absque injuria or physical hurt or
injury without legal wrong), i.e. when a government exercised a contractual right to cancel
an agency, although by such cancellation, the agent would suffer damages or when one
who complies with a government-promulgated rule cannot be held liable for damages that
may be caused by other person.

Art. 2198. The principles of the general law on damages are hereby
adopted insofar as they are not inconsistent with the Civil Code.

Chapter 2

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


Actual or Compensatory Damages - are those awarded in satisfaction of, or in

recompense for, loss or injury sustained. They are those recoverable because of
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 38

pecuniary loss (in business, trade, property, profession, job or occupation). They simply
make good or replace the loss caused by the wrong. They are construed to 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 whatsoever. (Algarra v.
Sandejas, 27 Phil. 284)

American Law: Actual damages include pecuniary recompense for pain and suffering,
injured feelings, and the like.
Philippine Law: Actual damages do not extend to such incidents, which are included in
the term moral damages.

Proof Required Damages, to be recoverable, must not only be capable of proof, but
must be actually proven with a reasonable degree of certainty. It cannot be presumed.
The trial court or appellate court is not authorized to adopt its own knowledge as a basis
for the assessment of damages; such assessment must be based on the evidence
submitted. Courts cannot give judgment for a greater amount of damages than that
actually proved.

On appeal, however, when the evidence adduced is not so clear and satisfactory
as to enable the court to determine the amount of damages suffered, the appellate court
may remand the case to the court for new trial in order that the amount of damages may
be ascertained.

When the existence of a loss is established, however, absolute certainty as to its

amount is not required. Thus, the lack of positive proof of the exact amount on the
different items of damages suffered by a claimant will not defeat recovery, as long as the
amount of damages awarded by the court is, when the existence of a loss is established,
reasonable, fair and just.

Speculative Damages - are too remote to be included in an accurate estimate of


Loss presumed - There are cases where the amount of damages need not be proved by
positive evidence. Thus, where the relation of husband and wife; or of parent and child
exists, provided the child is shown as a minor, the law presumes a pecuniary loss from
the mere fact of death and it is not necessary to submit proof as to such loss.
(Manzanares v. Moreta, 38 Phil. 821)

When Actual Damages need NOT be proved:

1) In case liquidated damages had been previously agreed upon. (Art. 2216)
2) In case of damages other than actual. (Art. 2216)
3) In case loss is presumed as when a child (minor) or a spouse dies. (Manzanares
v. Moreta, 38 Phil. 821)
4) In case of forfeiture of bonds in favor of the government for the purpose of
promoting public interest or policy (like a bond for the temporary stay of an alien).
(Far Eastern Surety & Ins. Co. V. Court of Appeals, L-12019, Oct. 16, 1958)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 39

Art. 2200. Indemnification for damages shall comprehend not only

the value of the loss suffered, but also that of the profits which the obligee
failed to obtain.



1. dao emergente - the loss of what a person already has or the value of the
loss suffered
2. lucro cesante - the failure to receive a benefit which would have pertained to
him or profits (expected income) which were not obtained or realized

These damages may be given for pecuniary loss in business, trade, property,
profession, job or occupation, and for injury to business standard and goodwill.

Examples of Dao Emergente

(a) destruction of things

(b) fines or penalties that had to be paid
(c) medical and hospitalization expenses
(d) rents and agricultural products not received in an agricultural lease

Examples of Lucro Cesante

(a) profits that could have been earned had there been no interruption in the
plaintiffs business as evidenced by the reduced receipts of the enterprise
(b) profits because of a proposed future re-sale of the property being purchased if
the existence of a contract there was known to the delinquent seller
(c) interest on rentals that were not paid

If there be an award for compensatory damages, there can be no grant of

nominal damages. The reason is that the purpose of nominal damages is to vindicate or
recognize a right that has been violated, in order to preclude further cost thereon, and
not for the purpose of indemnifying the plaintiff for any loss suffered by him. (Medina, et
al. V. Cresencia, et al., L-8194, July 11, 1956)

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 of the obligations 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.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 40


Debtors in Good Faith and in Bad Faith A larger measure of damages is provided for
debtors who act fraudulently or in bad faith. In case of fraud, it is not required that the
damages be a necessary consequence of the non-performance, it being enough that they
clearly arise from such non-performance. In case of debtors in good faith, the damage
must have been foreseen or may have been foreseen at the time the obligation was
created; this requirement is not imposed in case of damages against the debtor in bad
faith, as to whom it is sufficient that a clear relation of cause and effect exist between the
non-performance and the damage claimed.

The fundamental difference between the first and second paragraphs is this: in
the first, there was mere carelessness; in the second, there was a deliberate or wanton

Liability of Debtor in Contracts and Quasi-Contracts

(a) if in GOOD FAITH

It is essential that the damages be:

1) the NATURAL and PROBABLE consequences of the breach of the
2) those which the parties FORESAW or COULD HAVE REASONABLY
FORESEEN at the time the obligation was constituted

(b) if in BAD FAITH

It is enough that the damages may be REASONABLY ATTRIBUTED to the non-

performance of an obligation (relation of cause and effect).

Measure of Damages in Contracts

2 classes of damages recoverable in case of a breach of contract:

(1) the ordinary, natural and in a sense, necessary damages

(2) the special damages

ORDINARY DAMAGE (generally inherent in a breach of typical contract) is found in all

breaches of contract where there are no special circumstances to distinguish the case
especially from other contracts, e.g. the consideration paid for an unperformed promise.
In all such cases, the damages recoverable are such as naturally and generally would
result from the breach of contract, according to the usual course of things. Ordinary
damage is assumed as a matter of law to be within the contemplation of the parties.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 41


a. Value of the use of the land if same is withheld, computed for the duration of
the withholding.
b. Difference in the value of goods at the time of stipulated delivery and the time
of actual delivery (common carriers)
c. Cost of completing or repairing a defective building (in the case of building
d. The income which an injured bus passenger could have earned (had he
finished his medical course and passed the corresponding board
examinations) must be deemed within the category of natural and probable
consequences which parties should have foreseen at the moment said
passenger boarded the bus. (Carriaga, et. al., v. Laguna, Tayabas Bus Co.,
et al., L-111037, Dec. 29, 1960)
e. Salary for the entire period agreed upon in an employment contract in case
the employer breaks it without just cause MINUS income actually earned or
could have been earned during the unexpired period.

The breach is generally indivisible, and therefore action may be brought AT

ONCE for both present and future salaries, without waiting for the stipulated end
of the contract. Failure to sue for all damages by suing only for the damages
already accrued will BAR future suits on the same point. (Hicks v. Manila Hotel,
78 Phil. 325)

The employer has the duty to prove the earnings made or which could have
been earned during the unexpired period. (Ibid.)

SPECIAL DAMAGE is such as flows less directly from the breach than ordinary damage.
It is only found in case where some external condition, apart from the actual terms of the
contract, exists or intervenes, as it were, to give a turn to affairs and to increase damage
in a way that the promissor, without actual notice of that external condition, could not
reasonable be expected to foresee. Before such damage can be recovered, the plaintiff
must show that the particular condition which made the damage possible and likely
consequence of the breach was known to the defendant at the time the contract was

SPECIAL DAMAGES are those which exist because of special circumstances and for
which a debtor in GOOD FAITH can be held liable only if he had been previously
informed of such circumstances.

Example: If a carrier fails to deliver a movie film intended for showing at a fiesta,
it cannot be held liable for the extraordinary profits realizable at a fiesta showing if it had
not been told that the film had to be delivered in time for said fiesta. (Mendoza v. PAL, 90
Phil. 836)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 42

If the debtor is in BAD faith, special damages can be assessed against him even
if he had NO knowledge of the special circumstances. It is enough that the damage be
reasonably attributed to the non-performance of obligation.

Future Damages In an action for breach of a contract which normally should have run
for a definite term, the plaintiff may recover, not only the damages already suffered at the
time the action is brought, but also all damages he would suffer in the future by reason of
such breach. In fact, where there is a complete and total breach of a continuous contract
for a term of years, the plaintiff is bound to prove in a single action not only such damage
as has been suffered, but also such prospective damage by reason of the breach as he
may be legally entitled to, because the judgment he recovers in such action will be a
conclusive adjudication as to the total damages on account of the breach, and a second
action for damages subsequently brought will be barred. (Blossom & Co. v. Manila Gas
Corporation, 55 Phil. 226)

Employment contracts Where a contract of employment is for a specified duration or

period, and it is wrongfully terminated by one party before the lapse of the period agreed
upon, the cause of action in favor of the injured party accrues at once upon the wrongful
termination of the contract, and the action may be brought immediately thereafter and at
any time before it is barred.

The amount of damages corresponding to the unexpired period may be reduced

by showing:

1. that the person so discharged failed to seek other employment of the same kind
in the same vicinity and that if he had sought such employment, he might have
obtained it with the following evidence showing:
a. that it is a like employment;
b. that it is in the same locality;
c. that it is substantially under the same conditions; and
d. the wages he could have earned; or
2. that he actually obtained other employment, for which he received a certain

Where the employer, after his wrongful discharge of an employee, offered to take
back the latter under substantially the same terms as those of the original contract, the
employee can recover only his salary from the date of wrongful discharge until the offer to
take him back was made, in the absence of a showing that the employer so mistreated
the employee that no self-respecting man would ever work for him. In the latter case, the
employee may recover the full amount of his wages for the full term from date of wrongful
discharge. (Lemoine v. Alkan, 22 Phil. 162)

When employee leaves the Philippines after wrongful termination he thereby

abandons his right to recover the salary he might have received if the contract had not
been violated and he is entitled to recover only such salary as would be due him up to the
time he left the country.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 43

Waiver of right to recover salary the employee may also waive his right to
recover the salary he would have earned under the contract, and demand only his salary
for services rendered.

Sale of Land The damages ordinarily and normally recoverable against a vendor for
failure to deliver land which he has contracted to deliver is the value of the use and
occupation of the land for the time wrongfully withheld. Where the purchaser has not paid
the purchase money, a deduction may be made in respect to the damages on the money
which constitutes the purchase price.

More extensive damages may be recovered where, at the time of the creation of
the contractual obligation, the vendor is aware of the use to which the purchaser desires
to put the property which is the subject of the contract, and the contract is made with the
eyes of the vendor open to the possibility of damages which may result to the other party
from his own failure to give possession, i.e. if the plaintiff contracted to sell to a third
party, at a profit of P20,000 the land which the defendant had agreed to sell to him, he
may recover such amount as damages from the defendant upon breach of contract by
said defendant.

Sale of Merchandise If the thing sold is merchandise, the measure of damages to

which a vendee is entitled, when the vendor fails to deliver the goods purchased, is the
difference between the price stipulated by the parties, and the price which the thing sold
commands in the market at the time the delivery thereof should have been made by the

CASE: Lopez v. Tan Tioco, 8 Phil. 693 Where there was a contract between plaintiff
and defendant that the latter would sell the formers sugar at the time directed by the
plaintiff, and the defendant failed to do so but sold at a later date, it was held that the
measure of damages is the difference between the market price on the day the sugar
should have been sold and the price at which it was actually sold.

Sale of Other Personalty When the object sold is not merchandise, but an article for a
known purpose, the damages recoverable from a manufacturer or dealer for the breach
of warranty of the article he contracts to furnish or place in operation for a known
purpose, are not confined to the difference in value of the articles as warranted and as it
proves to be, but include such consequential damages as are the direct, immediate and
probable result of the breach. (Rodriguez v. Findlay, 14 Phil. 587)

Lease Contracts When the lessor fails to place the lessee in possession of the leased
premises at the time agreed upon, the damages recoverable would be the value of the
use and occupation of such premises during the period it is withheld from the lessee. But
where the lessee has expended various sums of money in preparing to open a business
as a merchant in the leased premises, he is entitled to recover the sums ACTUALLY and
NECESSARILY expended in such preparation which may fairly be said to be within the
purview of the parties when they entered into the lease, if the lessor fails to deliver
according to the contract. (Lim v. Roxas, 26 Phil. 609)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 44

Good faith When there is no stipulation in a lease with respect to the goods and
merchandise a lessee has placed in a rented building, should it get wet as a result of
leaks developed by a torrential rainfall, and the lessor does not appear to have known of
any defect or leak in the roof of said building, which was inspected and approved by the
city authorities when the lessee moved into it, or which was inspected monthly by a
carpenter who found that it was in good condition and the roof had no holes, the lessor
CANNOT be held liable for such damages; he can be chargeable only when he knew
about such defects and failed to reveal them to the lessee or to make the necessary

Against Carriers The most usual element of damages for a carriers negligent delay in
delivering the goods to the consignee is the difference between the market value of the
goods at the time they should have been delivered and their market value at the time
they were actually delivered, to which may be added reasonable expenses caused by the
delay; but if there has been a conversion of the goods by the carrier, and the consignee
has not thereafter accepted them, he is entitled to recover the value of the goods at the
time they should have been delivered. (Uy Chaco v. Admiral Line, 46 Phil. 418)

Building Contracts The measure of damages for breach of a building contract is the
amount expended by the owner in completing it and correcting defects.

Where it is the owner who is guilty of breach of a building contract, making the
cost of completion greater to the builder thereafter than it would have been under normal
fulfilment of the contract, said owner is liable for damages caused in addition to the
contract price. But the payment will not deprive the owner of his right to desist from the
work or have it completed by some other contractor. In either case, if the amounts paid
by the owner by installments are more than sufficient to reimburse the contractor for loss
of profits, an action will lie to recover the excess. (Adams & Smith v. Sociedad Naton, 39
Phil. 838)

Replevin Suits In suits for Replevin of property, having a usable value, the successful
party recovering the property is entitled to recover as damages for its detention, the value
of such use during the time that the property was unlawfully detained.

*Replevin - A personal action ex delicto brought to recover possession of goods unlawfully

taken, (generally, but not only, applicable to the taking of goods distrained for rent,) the validity of
which taking it is the mode of contesting, if the party from whom the goods were taken wishes to
have them back in specie, whereas, if he prefer to have damages instead, the validity may be
contested by action of trespass or unlawful distress. The word means a redelivery to the owner of
the pledge or thing taken in distress.

If the property is not returned the party entitled to possession, may, in addition,
recover the full value of the property.

From the total amount to be recovered should be deducted the expenses incident
to the keeping or maintenance of the property during the period of detention.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 45

Art. 2202. In crimes and quasi-delicts, the defendant 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.


Damages from Quasi-Delict Damages resulting from a tort are measured in the same
manner as those due from contractual debtor in bad faith, since he must answer for such
damages whether he had foreseen them or not, just as he must indemnify not only for
damnum emergens but also for lucrum cessans.

Even if there is no specific allegation of damages in the complaint or information,

civil liability may still be claimed in the criminal case. If the accused in a criminal case is
acquitted on reasonable doubt, a civil action for damages may still be instituted.

What Victim Must Prove in a Tort or Quasi-Delict Suit

(a) a causal connection between the tort and the injury;

(b) the amount and extent of the injury

Unfair Competition If unfair competition deprives the victims of certain profits, the
person liable must respond if the two things stated above are proved. Liability may,
however, be reduced if loss was suffered by the plaintiff not only because of the unfair
competition but also because of his fault, e.g., inferior quality or service. (Castro, et al. v.
Ice and Cold Storage Industries, et al., L-10147, Dec. 27, 1958)

Concealment of an Existing Marriage from a girl whom a man intends to seduce can
make a man liable for damages. If on account of his concealment, the woman lives with
him and bears a child, and relinquishes her employment to attend to a litigation filed to
obtain support for her child he must be held liable for all the consequent damages. This
concealment of marriage in fact is NOT mere negligence, but actual fraud (dolo)
practiced upon the girl. Said liability is equivalent to that of a contractual (though
considered extra-contractual in nature) debtor in bad faith. (Silva, et al. v. Peralta, et al.,
L-13114, Aug. 29, 1961)

While it is true that no moral damages are generally allowable as a consequence

of sexual relations outside of wedlock, but in the instant case it appears that after the girl
had filed the action for support the man avoided the service of summons and then
exercised improper pressure upon her to make her withdraw the suit. When she refused,
the man and his lawful wife even filed an action against her, thus calling to her
employers attention the fact that she was an unwed mother. These are deliberate
maneuvers causing her anguish and physical suffering in which she got sick as a result.
As this injury was inflicted after the NCC became operative, it constitutes a justification
for the award of moral damages. (Ibid.)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 46

Art. 2203. The party suffering loss or injury must exercise the
diligence of a good father of a family to minimize the damages resulting
from the act or omission in question.


Duty to Minimize Damages Damages resulting from avoidable consequences of the

breach of a contract or other legal duty are not recoverable. It is the duty of the one
injured by the unlawful act of another to take such measures as prudent men usually take
under such circumstances to reduce the damages as much as possible.

Acts to Minimize Damage The injured party, in minimizing the damages suffered by
him, is required to take only such steps as an ordinary prudent person would reasonably
adopt for his own interest. But whatever reasonable measures he may adopt to minimize
the damage shall be at the cost of the person liable to pay indemnity, being an indirect
consequence of the act of the latter, and an integral part of the injury caused.

Burden of Proof The defendant (the person sued) has the burden of proving that the
victim could have mitigated the damage.

Plastic Surgery which could have been Performed in the Philippines A victim
cannot recover the cost of plastic surgery in the United States if it is proved that the
operation could have been completely performed in the Philippines by local practitioners.
(Araneta, et al. v. Arreglado, et al., 104 Phil. 526)

Art. 2204. In crimes, the damages to be adjudicated may be

respectively increased or lessened according to the aggravating or
mitigating circumstances.

NOTE: No exemplary damages if there are no aggravating circumstances.

RPC, Title 1, Book 1, Chapter 3

Art. 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
(Suspension of sentence of minor delinquents).
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.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 47

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
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

RPC, Title 1, Book 1, Chapter 4

Art. 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.
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
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.
18. That the crime be committed after an unlawful entry.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 48

There is an unlawful entry when an entrance is effected by a way not intended for
the purpose.
19. That as a means to the commission of a crime, a wall, roof, floor, door, or window be
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.

Art. 2205. Damages may be recovered:

(1) For loss or impairment of earning capacity in cases of temporary or

permanent personal injury;
(2) For injury to the plaintiffs business standing or commercial credit.

NOTES: Lameness is a permanent personal injury. (Marcelo v. Veloso, 11 Phil. 287)

Art. 2206. The amount of damages for death caused by a crime or

quasi-delict shall be at least P3,000.00, even though there may have been
mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of
the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall every case be assessed and awarded by
the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at
the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Art. 291, the recipient who is not an heir called to the
decedents inheritance by the law of testate or intestate succession,
may demand support from the person causing the death, for a
period not exceeding five (5) years, the exact duration to be fixed by
the court.
(3) The spouse, legitimate and illegitimate descendants and ascendants
of the deceased may demand moral damages for mental anguish by
reason of the death of the deceased.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 49


Art. 291. The following are obliged to support each other to the whole extent set forth in
the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;
(3) Parents and acknowledged natural children and the legitimate or illegitimate
descendants of the latter;
(4) Parents and natural children by legal fiction and the legitimate and illegitimate
descendants of the latter;
(5) Parents and illegitimate children who are not natural.

Brothers and sisters owe their legitimate and natural brothers and sisters,
although they are only of the half-blood, the necessaries for life, when by a physical or
mental defect, or any other cause not imputable to the recipients, the latter cannot secure
their subsistence. This assistance includes, in a proper case, expenses necessary for
elementary education and for professional or vocational training.

Damages for Wrongful Death

Before the passage of Com. Act No. 284 in 1983 the practice of our courts was
to allow P1,000 to the heirs of the deceased in case of death caused by crime.

By virtue of Com. Act No. 284 a minimum of P2,000 was fixed, but the courts
usually awarded only the minimum, without taking the trouble to inquire into the earning
capacity of the victim, and regardless of aggravating circumstances.

Under Art. 2206 the minimum to be given is P3,000, but this does not mean
that the court should stop after awarding that amount because the life of a captain of
industry, scientist, inventor, a great writer or statesman, is materially more valuable to the
family and community than that of an ordinary man.

Exemplary damages may be justified by aggravating circumstances. The earning

capacity of the deceased, his obligation to support dependents, and the moral damages
suffered by his kin, must also be considered.

Because of the declining value of the currency, there have been increases in the
award of damages for death. The latest amount granted by our court is P50,000 (McKee,
et al. v. IAC, et al. G.R. No. 68102, July 16, 1992).

The determination of the indemnity to be awarded to the heirs of a deceased

person has no fixed basis. Much is left to the discretion of the court considering the moral
and material damages involved.

Reason for Awarding Damages There can be no exact or uniform rule for measuring
the value of a human life and the measure of damages cannot be arrived at by a precise
mathematical calculation, but the amount recoverable depends on the particular facts and
circumstances of each case.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 50

Factors considered:

(a) the life expectancy of the deceased or of the beneficiary, whichever is shorter
(b) pecuniary loss to the plaintiff or beneficiary
(c) loss of support
(d) loss of service
(e) mental suffering of beneficiaries
(f) medical and funeral expenses

Where death occurs as a result of the commission of a crime, the following items
for damages may thus be recovered:

1) an indemnity for the death of the victim;

2) and indemnity for loss of earning capacity of the deceased;
3) moral damages;
4) exemplary damages;
5) attorneys fees and expenses of litigation; and
6) interest in proper cases

Earning Capacity In determining the liability of the defendant for the loss of the
earning capacity of the deceased, our Supreme Court has considered the salary which
the deceased would have been entitled to had he lived, his life expectancy and his state
of health at the time of his death as factors in fixing the amount thereof. (Alcantara v.
Surro, et al., O.G. 2769)

In determining earning capacity, the net, not the gross income, should be
considered; living and other expenses must be deducted, and the deceased might not be
at work all the time.

Life Expectancy The introduction of mortality tables is not absolutely essential to prove
the life expectancy of a deceased or his beneficiary, and if introduced, they are NOT
CONCLUSIVE. The value of these tables when applied to a particular case must depend
largely upon other circumstances, such as the state of health, habits, and the manner of
life, and the social condition of the person injured.

The Court uses the American Experience/Expectancy Table of Morality or the

Actuarial Combine Experience Table of Mortality, which consistently pegs the life span of
the average Filipino at 80 years (in other cases, 50 to 60 years), from which it
extrapolates the estimated income to be earned by the deceased had he not been killed.
(People v. Villanueva, 302 SCRA 380 [1999])

Support In order that the defendant may be obliged to pay support to the persons
named in Art. 291, it is necessary that at the time of the death of the deceased, the latter
was in a position to support them and they needed the support. Art. 45 of the Swiss Code
of Obligations stated such as payment to other persons who have been deprived of
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 51

support. The measure of the support is what the dependents received or would have
received from the deceased.

Moral Damages Moral damages for the death of a person, caused by the negligence of
another, whether the same constitutes culpa aquiliana or culpa contractual, may be
recovered, although death occurred prior to the effectivity of the NCC. The right to
recover said damages finds its juridical basis within the framework of the said Code, and
it is not necessary to resort to the transitory provisions of Art. 2253, in order to enforce
such right (Belisario, et al. v. Mindanao Bus Co., C.A. 52 O.G. 6946). The NCC, however,
does NOT grant the sisters and brothers of the deceased a right to recover moral
damages (Heirs of Gervacio D. Gonzales v. Alegorbes, et al., 53 O.G. 8070), which are
given only to the spouse and legitimate and illegitimate descendants and ascendants.

Where the victim does not die, but merely suffers physical injuries, moral
damages may be recovered only in the following instances:

1) if caused by a crime. (Art. 2219, No. 1)

2) if caused by a quasi-delict. (Art. 2219, No. 2)
3) if caused by a breach of contract BUT ONLY if the defendant acted
fraudulently or in bad faith (Art. 2220) or in case of wanton and deliberately
injurious conduct on the part of the carrier. (LTB v. Cornista, L-22193, May
29, 1964)

Art. 2207. If the plaintiffs 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
wrong-doer 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.


Applicability This article applies only to loss of insured property and is not applicable
to damages resulting from loss of human life or injury to natural persons.

Effect if Property is Insured According to American Jurisprudence, the fact that the
plaintiff has been indemnified by an insurance company cannot lessen the damages to
be paid by the defendant. Such rule gives more damages than those actually suffered by
the plaintiff, and the defendant, if also sued by the insurance company for
reimbursement, would have to pay in many cases twice the damages he has caused.
(Report of the Code Commission, p. 73)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 52

The principle enunciated in this article can apply even to cases that accrued prior
to the effectivity of this article and the NCC otherwise, the general principle against
unjust enrichment would be violated. Hence, the amount of insurance recovered shall be
deducted from the total liability of the defendant. (Africa v. Caltex, L-12986, March 21,

Art. 2208. In the absence of stipulation, attorneys fees and

expenses of litigation, other than judicial costs, cannot be recovered,

(1) When exemplary damages are awarded;

(2) When the defendants act or omission has compelled the plaintiff
to litigate with third persons or to incur expenses to protect his
(3) In criminal cases of malicious prosecution against the plaintiff;12
(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 plaintiffs plainly valid, just and demandable
(6) In actions for illegal support;
(7) In actions for the recovery of wages of household helpers,
labourers and skilled workers;
(8) In actions for indemnity under workmens compensation and
employers liability laws;
(9) In a separate civil action to recover civil liability arising from a
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that
attorneys fees and expenses of litigation should be recovered.

In all cases, the attorneys fees and expenses of litigation must be


Where the institution of the action was caused not by the failure of a defendant to meet its responsibility but because the
plaintiff demanded an exorbitant amount of moral damages to which the defendant did not yield, plaintiff is not entitled to
attorneys fees. (Cachero v. Manila Yellow Taxicab Co., 54 O.G. 6599)
The reference to malicious prosecution implies that the person to be held liable should have acted deliberately and with
knowledge that his accusation was false and groundless. (Buenaventura v. Sto. Domingo, 54 O.G. 8439)
Attorneys fees cannot be awarded in an action to collect a debt, where the defendant did not deny his indebtedness, but
merely pleaded for adjustment of payment under the Ballantyne Schedule. (Intestate of Luther Young v. Bucoy, 54 O.G. 7560)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 53


Concept of Attorneys Fees as Damages The attorneys fees referred to in this article
do not refer to the duty of a client to pay his own attorney. Such payment generally
involves only the client and his attorney. The fees stated in the article apply rather to
instances when a client may recover from the other party the fees which the former may
pay the formers attorney. (Tan Ti v. Alvear, 26 Phil. 566)

Generally Not Part of Damages Generally, attorneys fees, as understood in this

article are not a proper element of damage, for it is NOT sound public policy to place a
penalty on the right to litigate. (Ibid.) Thus, if a party loses in court, this does not
necessarily mean that the court will compel him to award attorneys fees (as damages) to
the winning party. (Ramos v. Ramos, 61 SCRA 284) However, under the NCC, it may
truly be said that in certain cases, attorneys fees are an element of recoverable
damages, whether in writing or not stipulated at all. (Santiago v. Dimayuga, L-17883,
Dec. 30, 1961)

Stipulation of Attorneys Fees A stipulation for the payment of attorneys fees based
on a certain percentage of the amount of the principal obligation is neither illegal nor
immoral and the same is enforceable as the law between the parties. Attorneys fees
agreed upon the parties are in the nature of liquidated damages.

Attorneys Fees Discretionary The amount of attorneys fees recoverable as actual

damages is subject to judicial discretion. But it must have some factual, legal and
equitable bases, and cannot be left to speculation and conjecture.

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
six per cent (6%) per annum (now 12% per annum).


Monetary Obligations This applies to a monetary obligation where the debtor is in



(a) Give the indemnity (other than interest) agreed upon. (Attorneys fees may be
(b) If none was specified, give the interest agreed upon.
(c) If none, give the legal interest (now this is 12% per annum).
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 54

Damages Limited to Interest In contracts for the payment of a sum of money, the
measure of damages for delay is limited to the interest stipulated, or in default of
agreement, to the interest provided by law. The interest is due from the mere fact of delay
in payment, even if no damage is proved by the creditor. On the other hand, the creditor
cannot demand a higher amount than the interest, even if he proved injury of a greater

When Interest Begins to Run This interest is allowed from the date of demand, either
judicial or extrajudicial. When the amount is unliquidated and is determined only by a
judgment of the court, the interest should be paid only from the date of the decision.

Limitation on Interest Where the parties have stipulated the rate of the interest, such
rate shall be collected without prejudice to the provisions of the Usury Law (no longer in
effect). An agreement for the payment of interest higher than the rates provided in such
law is void.

Attorneys Fees The lender without violating the Usury Law may provide in a note for
an attorneys fees to cover the cost of collection. The purpose of a stipulation in a note for
reasonable attorneys fees is not to give the lender a larger compensation for the loan
than what the law allows, but to safeguard him against future loss or damage by being
compelled to retain counsel to institute judicial proceedings to collect his credit. (Andreas
v. Green, 48 Phil. 463)
Stipulation of Penalty Art. 1226 (Obligations with a Penal Clause) of the NCC
permits an agreement upon a penalty apart from the interest. Should there be an
agreement to this effect, the penalty does not include the interest, and as such, the two
are different and distinct things which may be demanded separately. The penalty is not to
be added to the interest for the determination of whether the interest exceeds the rate
fixed by law, since the rate was fixed only for the interest.

The maximum rate of interest provided for by the Usury Law (Act No. 2655, as amended; for the loan or forbearance of any
money, goods or credits) are the following: 12% per annum where the loan is secured in whole or in part by a mortgage upon
registered real estate, or by any document conveying such real estate or an interest therein; 14% per annum, where the loan is
not so secured; and in case of pawnshops or pawnbrokers, 2-1/2 per month where the loan is less than P100; 2% per month
where the loan is P100 or more but not exceeding P500; and 14% per annum when the loan exceeds P500. In the absence of
an express agreement as to the rate of interest, the legal rate of 6% (now 12%) shall be imposed.
In obligations with a penal clause, the penalty shall substitute the indemnity for damages and the payment of interests in case
of noncompliance, if there is no stipulation to the contrary. Nevertheless, damages shall be paid if the obligor refuses to pay the
penalty or is guilty of fraud in the fulfillment of the obligation.
The penalty may be enforced only when it is demandable in accordance with the provisions of this Code.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 55

Art. 2210. Interest may, in the discretion of the court, be allowed

upon damages awarded for breach of contract.


Interest on Damages for Breach of Contract Actual damages given by a court in a

breach of contract case shall earn legal interest, not from the date of the filing of the
complaint but from the date the judgment of the trial court is rendered. (Juana Soberano
& Jose B. Soberano v. The Manila Railroad Co., L-19407, Nov. 23, 19660)

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

Art. 2212. Interest due shall earn legal interest from the time it is
judicially demanded, although the obligation may be silent upon this point.
(Also called accrued interest)


Interest on Interest Due (Accrued Interest) Accrued interest earns legal interest, not
from default (which may be from judicial or extrajudicial demand) but from JUDICIAL

An agreement to charge interest on interest is valid if in adding the combined

interest, the limits under the Usury Law are exceeded. (Valdezco v. Francisco, 52 Phil.
350; Government v. Conde, 61 Phil. 14)

Art. 2213. Interest cannot be recovered upon unliquidated claims or

damages, except when the demand can be established with reasonable

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 has contravened the terms of the contract;
(2) That the plaintiff has derived some benefit as a result of the
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 56

(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 plaintiffs loss or injury.


Mitigation of Damages in Contracts, Quasi-Contracts and Quasi-Delicts The

enumeration is not exclusive for the law uses the phrase as in the following instances.

Chapter 3

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


Reduction of Award Courts are given the discretion to determine the amount of moral
damages and the Court of Appeals can only modify or change the amount awarded when
they are palpably and scandalously excessive. Awards of moral and exemplary damages
which are too excessive, compared to the actual loss of the aggrieved party, would be
reduced to a more reasonable amount. Prudenciado v. Alliance Transport, 148 SCRA
440; Osmea v. CA, 120 SCRA 395)

Necessity of Proving Factual Basis While no proof of pecuniary loss is necessary in

order that moral damages may be awarded, the amount of indemnity being left to the
discretion of the Court, it is nevertheless, essential that the claimant satisfactorily prove
the existence of the factual basis of the damages (Art. 2217) and its causal relation to the
defendants acts. This is because moral damages though incapable of pecuniary
estimation, are in the category of an award designed to compensate the claimant for
actual injury suffered, and not to impose a penalty on the wrongdoer. The mere fact that
a party was sued for instance without any legal foundation, does not entitle him to an
award of moral damages, for it would make a moral damage a penalty, which they are
not, rather than a compensation for actual injury suffered, which they are intended to be.
Moral damages, in other words, are not corrective or exemplary damages. (Malonzo v.
Galang, et al., L-13851, July 27, 1960)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 57

Section 1

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 defendants wrongful act or omission.


Requisites for the Recovery of Moral Damages

a) There must be physical suffering, mental anguish, fright, etc.

Physical suffering includes pain incident to a surgical operation or medical

treatment, as well as possible FUTURE pain.

Mental anguish is a high degree of mental suffering and not a mere

disappointment or regret or from annoyance or vexation. However,
inconvenience amounting to physical discomforts is a subject of compensation.

b) The suffering, etc. must be the proximate result of the wrongful act or omission.

When Moral Damages are Recoverable Judicial discretion in awarding moral

damages may be invoked and exercised only when the complainant has in fact
experienced mental anguish, serious anxiety, physical suffering, and so forth and had
furthermore shown that these where the proximate result of the offenders wrongful act or

Position of Earning Capacity The position or earning capacity of the person injured
cannot be considered of significance in the determination of moral damages, for the
reason that the human value and the dignity of man are of paramount consideration. In
later cases however, the SC has held that among the factors courts take into account in
assessing moral damages are the professional, social, political and financial standing of
the offended parties, on one hand, and the business and financial position of the
offender, on the other hand. (Lopez v. Pan American, 16 SCRA 431)

Personal to Injured As a general rule, the right of recovery for mental suffering
resulting from bodily injuries is restricted to the person who has suffered the bodily hurt,
and there can be no recovery for distress caused by sympathy for anothers suffering or
for fright due to a wrong against a third person. Exceptions to the rule may be found in
the last two paragraphs of Art. 2219.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 58

Act Must be Wrongful The grant of moral damages is not subject to the whims and
caprices of judges or courts. In order that a person may be made liable to the payment of
moral damages, the law requires that his act be wrongful. The adverse result of an act
does not per se make the act wrongful and subject the actor to the payment of moral
damages. No injury can accrue by the exercise of a right. (Barretto v. Arevalo, et al., 52
O.G. 5818)

Litigations Moral damages cannot be recovered from a person who has filed a
complaint against another in good faith or without malice or bad faith. Thus, where the
filing of a case was due to an honest mistake in the appreciation of the applicable law
and jurisprudence, or the honest belief that a contract was without consideration, there
can be no award of moral damages. Neither can such damages be recovered where the
filing of the complaint was found reasonable to a certain extent.

Breach of Contract Moral damages are recoverable for breach of contract where the
breach was wanton, reckless, malicious or in bad faith, oppressive or abusive.

Purpose of Moral Damages Moral damages, though incapable of pecuniary

estimation, are in the category of an award designed to compensate the claimant for
actual injury suffered and not to impose a penalty on the wrongdoer. They are
emphatically not intended to enrich a complainant at the expense of a defendant; they
are awarded only to enable the injured party to obtain means, diversion or amusement
that will serve to alleviate the moral suffering he has undergone, by reason of the
defendants culpable action.

Art. 2218. In the adjudication of moral damages, the sentimental

value of property, real or personal, may be considered.


Moral Damages for Loss of Property Under ordinary circumstances there can be no
recovery for mental anguish suffered in connection with an injury to property, because
mental suffering is not a natural consequence of injury to property. Where, however, the
act is inspired by fraud, malice, or like motives, mental suffering is a proper element of
damages. (Arnaldo v. Famous Dry Cleaners, [CA] 53 O.G. 282)

Sentimental Value Sentimental value may be considered both in civil liabilities arising
from crimes (Art. 106, RPC; Reparation) and in civil cases, where there are fraudulent or
deceitful motives. (Ibid.)

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in
the order named.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 59

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;
(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; 17
(10) Acts and actions referred to in Arts. 21, 26, 27, 28, 29, 30, 32,
34, and 35. 18

Art. 309. 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.
Art. 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The
following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just
cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any
disciplinary administrative action that may be taken.
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 highhanded method shall give rise to a right of action by the person who
thereby suffers damage.
Art. 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 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.
Art. 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.
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the Government for redress of grievances;
(14) The right to be a free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 60

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.


Meaning of Analogous Cases Analogous means bearing analogy or

resemblance, correspond (to some others) or resembling in certain aspects, as in form,
proportion, relations, etc. The law does not intend that moral damages should be
awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and
similar injury, arising out of an act or omission of another, otherwise, there would not
have been any reason for the inclusion in the law of specific acts in the present article.
(P.P.I. v. Plaza, [CA] 52 O.G. 6609)

Offenses Against Chastity The conviction of the accused in cases of rape, abduction,
seduction, or other acts of lasciviousness, suffices as a basis to adjudge him, in the same
action, liable for moral damages, without independent proof thereof, to the victim and her

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being
induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a
State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the
Penal Code or other penal statute.
Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of
danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be
subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action.
Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent
civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complaint may
bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of
evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the
complaint should be found to be malicious.
If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall
be suspended until the termination of the criminal proceedings.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 61

Damages Under Par. (10) Where defendant wilfully caused loss or injury to plaintiffs in
a manner contrary to morals, good customs and public policy, they are liable for damages
under Arts. 19 and 20 in relation to Art. 2219 of the NCC. To formally set a wedding and
go through all the necessary preparations and publicity, only to walk out of it when the
matrimony is about to be solemnized is palpably and unjustifiably contrary to good
customs for which the erring promissor is held answerable for damages according with
Art. 21 of the NCC, moral damages may be awarded under this article. (Wassmer v.
Velez, 12 SCRA 648)

In Libel or Defamation A defendant who utters defamatory words against the plaintiff,
as a proximate result of which, plaintiff suffered mental anguish, wounded feelings and
moral shock, is liable to such plaintiff for moral damages. But he should not be made
liable for moral damages arising from alleged libellous remarks in the pleadings, which
are pertinent and relevant to the case because the same are covered by the mantle of
privileged communication. (De la Rosa, et al. v. Maristela, [CA] 50 O.G. 254)

In Physical Injuries Where the complaint against a taxicab company is predicated on

an alleged breach of contract of carriage without including the driver as a party
defendant, moral damages cannot be recovered from the taxicab company, for the latter
has not committed any criminal offense resulting in physical injuries, the one who
committed the offense being the driver of the taxicab. (Cachero v. Manila Yellow Taxicab,
54 O.G. 6599)

Common Carriers Moral damages are not recoverable in actions for damages
predicated on breach of contract of transportation, except:
a) where the mishap results in the death of a passenger, and
b) where it is proved guilty of fraud, bad faith, even if death does not result.

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.


Article Applied The appellants are entitled to moral damages pursuant to Art. 2220 of
the NCC where the appellees, not content with reducing the water available in appellants
fields by the construction of a dam, deliberately blocked totally their water supply by
increasing the elevation of the dam without appellants consent and without government
authorization. (Del Valle v. Fernandez, 34 SCRA 352)

Willful Injury to Property and Breaches of Contracts If the breach of a contract is

neither malicious nor fraudulent, no award of moral damages may be given. (Francisco v.
GSIS, L-18155, March 30, 1963)
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 62

Section 2

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.


Concept of Nominal Damages These are the damages recoverable where a legal
right is technically violated and must be vindicated against an invasion that has produced
no actual present loss of any kind, or where there has been a breach of contract and not
substantial injury or actual damages whatever have been or can be shown. They are not
for indemnification of loss but a vindication of a right violated.

The Reason for the Grant of Nominal Damages There are instances when the
vindication or recognition of the plaintiffs right is of the utmost importance to him as in the
case of trespass upon real property. The awarding of nominal damages does not
therefore run counter to the maxim de minimio non curat lex (the law does not cure or
bother with trifles). (Report of the Code Commission, p. 74)

Art. 2222. The court may award nominal damages in every obligation
arising from any source enumerated in Art. 1157,19 or in every case where
any property right has been invaded.


When Nominal Damages May be Awarded The assessment of nominal damages is

left to the discretion of the court, according to the circumstance of the case. An award of
nominal damages precludes the recovery of actual, moral, temperate, or moderate
damages. (Ventanilla v. Gregorio Centeno, L-14333, Jan. 28, 1961)

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.

Art. 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 63

Section 3

Art. 224. Temperate or moderate damages, which are more than

nominal but less than compensatory damages, may be recovered when the
court finds that some pecuniary loss has been suffered but its amount can
not, from the nature of the case, be proved with certainty.


Moderate Damages Allowed There are cases where from the nature of the case,
definite proof of pecuniary loss cannot be offered, although the court is convinced that
there has been such loss. For instance, injury to ones financial or commercial credit or to
the goodwill of a business firm is often hard to show with certainty in terms of money.
The judge should be empowered to calculate moderate damages in such cases, rather
than that the plaintiff should suffer, without redress, from the defendants wrongful acts.
However, although the assessment of such damages is left to the sound discretion of the
court, nevertheless, the same may only be recovered when the court finds that some
pecuniary loss has been suffered but its amounts cannot be determined with certainty in
terms of money. (Victorino, et al. v. Nora [CA] 52 O.G. 911)

Art. 2225. Temperate damages must be reasonable under the



Reasonable Temperate Damages What is reasonable is a question of fact, depending

on the relevant circumstances.

Goodwill is the advantage or benefit which is acquired by an establishment beyond the mere value of the capital stock, funds
or property employed therein, in consequence of the general and public patronage and encouragement which it receives from
constant or habitual customers on account of its local position, or common celebrity, or reputation for skill, or affluence, or
punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices. To find the
reasonable value of goodwill, the average net profits for a period of years is multiplied by a number of years, such number being
suitable and proper, having reference to the nature and character of the particular business under consideration.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 64

Section 4

Art. 2226. Liquidated damages are those agreed upon by the parties
to a contract, to be paid in case of breach thereof.


Liquidated Damages and Penalty Liquidated damages are identical to penalty, so far
as legal results are concerned. In either case, the injured party need not prove the
damages suffered by him.

Attorneys fees provided in contracts as recoverable against the other party as

damages are in the nature of liquidated damages, and the stipulation may be aptly called
a penal clause. (National Power Corp. v. National Merchandising Corp. 117 SCRA 789)

Art. 2227. Liquidated damages, whether intended as an indemnity or

a penalty, shall be equitably reduced if they are iniquitous or


Equitable Reduction of Liquidated Damages The reason is that in both, the

stipulation is contra bonos mores (against good morals). It is a mere technicality 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 nonetheless immoral because it is called an
indemnity. (Report of the Code Commission, p. 75)

Art. 2228. When the breach of the contract committed by the

defendant is not the one contemplated by the parties in agreeing upon the
liquidated damages, the law shall determine the measure of damages, and
not the stipulation.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 65

Section 5

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.


Reason for Exemplary Damages The rationale behind exemplary or corrective

damages is to provide an example or correction for the public good. They are designed to
reshape behavior that is socially deleterious in its consequence.

Conditions for Award Jurisprudence sets certain conditions when exemplary

damages may be awarded, to wit:
1) they may be imposed by way of example or correction only in addition,
among others, to compensatory damages, and cannot be recovered as a
matter of right, their determination depending upon the amount of
compensatory damages that may be awarded to the claimant;
2) the claimant must first establish his right to moral, temperate, liquidated or
compensatory damages; and
3) the wrongful act must be accompanied by bad faith, and the award would be
allowed only if the guilty party aced in a wanton, fraudulent, reckless,
oppressive or malevolent manner.

Exemplary Damages and Jurisdiction Under the present laws, jurisdiction of

municipal courts and justice of peace in money claims is limited to P2,000. Where a
complaint is filed with said courts asking for exemplary damages in an unspecified
amount, said courts can grant only so much thereof, as not to exceed its jurisdiction, in
addition to other items of damages. (Singson, et al. v. Aragon, et al. 49 O.G. 515)

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.
Notes in Torts and Damages by Pauline Mae P. Araneta (2013) 66

Art. 2233. Exemplary damages cannot be recovered as a matter of

right; the court will decide whether or not they should be adjudicated.


Not a Matter of Right Exemplary damages cannot be recovered as a matter of right;

their determination depends upon the discretion of the court. One can only ask that it be
determined by the court, if in its discretion the same is warranted by the evidence. (Ibid.)
Courts will grant it if the defendant has acted in wanton disregard of his obligation.

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 in addition to
the liquidated damages, the plaintiff must show that he would be entitled to
moral, temperate or compensatory damages were it not for the stipulation
for liquidated damages.


Allegation and Proof The amount of exemplary damages need not be proved,
because its determination depends upon the amount of compensatory damages that may
be awarded to the claimant. It need not also be alleged, because it is merely incidental or
dependent upon what the court may award as compensatory damages. Unless and until
this premise is determined and established, what may be claimed as exemplary damages
would amount to a mere surmise or speculation. (Ibid.)

Art. 2235. A stipulation whereby exemplary damages are renounced

in advance shall be null and void.