UST Golden Notes 2011

UST GOLDEN NOTES 2011

TORTS AND DAMAGES Protection of Human Dignity – Every person shall
respect the dignity, personality, privacy and
BOOK I – TORTS peace of mind of his neighbors and other persons.
I. PRINCIPLES
Q: What are the requisites for accion in rem
A. ABUSE OF RIGHT; ELEMENTS verso?

Q: What is the principle of abuse of rights? A:
1. That the defendant has been enriched;
A: Every person must, in the exercise of his rights 2. That the plaintiff has suffered a loss;
and in the performance of his duties, act with 3. That the enrichment of the defendant is
justice, give everyone his due, and observe without just or legal ground
honesty and good faith. (Art. 19, NCC) 4. That the plaintiff has no other action
based on contract, quasi‐contract,
NOTE: This principle is based upon the famous crime or quasi‐delict.
maxim suum jus summa injuria (the abuse of a right
is the greatest possible wrong). (Arlegui v. CA G.R. Q: When may accion in rem verso be availed of?
No. 126437, Mar. 6, 2002)
A: It can only be availed of if there is no other
Q: What are the elements of the principle of remedy to enforce it based on contract, quasi‐
abuse of rights? contract, crime or quasi‐delict.

A: Q: Distinguish accion in rem verso from solutio
1. Legal right or duty indebiti.
2. The right or duty is exercised in bad
faith, and A:
3. For the sole intent of prejudicing or ACCION IN REM VERSO SOLUTIO INDEBITI
injuring another It is not necessary that Payment by mistake is
payment be made by an essential element
B. UNJUST ENRICHMENT mistake

Q: What is the principle behind the prohibition Q: Is rendition of services included under Art.
against unjust enrichment? 22?

A: “Nemo cum alteris detrimento locupletari A: No. If services were rendered by someone
potest” or no one shall unjustly enrich himself at benefiting another, it does not mean that the
the expense of another. latter is exempted from indemnifying the former.
The liability will lie on quasi‐contract under Article
Coverage: the article applies only if: 2146.
i. Someone acquires or comes into
possession of “something” which means C. LIABILITY WITHOUT FAULT
delivery or acquisition of “things”; and
ii. Acquisition is undue and at the expense Q: Is Liability Without Fault different with
of another which means without any Damnum Absque Injuria?
just or legal ground.
A: Yes. Liability without Fault includes:
NOTE: The government is not exempted from the
a. Strict Liability – there is strict liability if
principle of unjust enrichment.
one is made independent of fault,

negligence or intent after establishing
Q: What is the remedy for unjust enrichment?
certain facts specified by law. It includes

liability for conversion and for injuries
A: Accion In Rem Verso. It is an action for recovery
caused by animals, ultra‐hazardous
of what has been paid without just cause.
activities and nuisance.

b. Product Liability – is the law which
NOTE: This is only a subsidiary action.
governs the liability of manufacturers

NOTE: Mistake is not an essential element, as and sellers for damages resulting from
opposed to solutio indebiti where mistake is an defective products. (Aquino, T., Torts
essential element. and Damages, 2005, Second Ed.)
500
CIVIL LAW TEAM:
ADVISER: ATTY. ELMER T. RABUYA; SUBJECT HEAD: ALFREDO B. DIMAFELIX II;
ASST. SUBJECT HEADS: KAREN FELIZ G. SUPNAD, LAMBERTO L. SANTOS III; MEMBERS: PAUL ELBERT E. AMON, ALSTON ANARNA, OZAN J.
FULLEROS, CECILIO M. JIMENO, JR., ISMAEL SARANGAYA, JR.; CONTRIBUTORS: LOISE RAE G. NAVAL, MONICA JUCOM

TORTS AND DAMAGES
Q: What is the concept of Damnum Absque Q: In view of the general sanction provided for
Injuria? under Art. 20, may a person have an absolute
right to be indemnified?
A: A person who only exercises his legal rights
does no injury. If damages result from such A: No. It is essential that some right of his be
exercise of legal rights, the consequences must be impaired. Without such, he is not entitled to
borne by the injured person alone. The law indemnification. (Pineda, 2004)
affords no remedy for damages resulting from an
act which does not amount to a legal injury or E. ACTS CONTRARY TO MORALS
wrong.
Q: Differentiate Article 20 from Article 21 of the
Q: Is the owner of a property obliged to take Civil Code.
reasonable care towards a trespasser for his
protection or from concealed danger? A: Article 20 speaks of the general sanction for all
other provisions of law which do not especially
A: provide for their own sanction. Article 21 on the
GR: No. other hand, speaks of act which is legal but is
contrary to morals, good custom, public order or
XPN: public policy and is done with intent to injure.
1. Visitors – Owners of buildings or
premises owe a duty of care to visitors. NOTE: Any person who willfully causes loss or injury
to another in a manner that is contrary to morals,
2. Tolerated Posession – The owner is still good customs or public policy shall compensate the
liable if the plaintiff is inside his latter for the damage. (Art. 21, NCC)
property by tolerance or by implied
permission. Q: What are the elements of acts contra bonus
mores under Art. 21, NCC?
Common carriers may be held liable for
negligence to persons who stay in their A:
premises even if they are not 1. There is an act which is legal;
passengers. 2. but which is contrary to morals, good
custom, public order, or public policy;
3. Doctrine of Attractive Nuisance and
3. it is done with intent to injure.
4. State of Necessity (Art. 432) – A
situation of present danger to legally Q: When is breach of promise to marry an
protected interests, in which there is no actionable wrong?
other remedy than the injuring of
another’s also legally protected A: It becomes actionable if there are additional
interest. circumstances such as:
1. there was financial damage;
D. ACTS CONTRARY TO LAW 2. social humiliation was caused by to one
of the parties; and,
Every person who, contrary to law, willfully or 3. where there was moral seduction.
negligently causes damage to another, shall (Aquino, T., Torts and Damages, Second
indemnify the latter for the same. (Art. 20, NCC) Ed., p351)

Q: Does the above stated rule apply to all cases
violation of law?

A: No. Generally, laws provide for their own
sanctions and methods of enforcement thereof.
Article 20 applies only in cases where the law
does not provide for its own sanction. Said article
provides for a general sanction –indemnification
for damages. (Pineda, 2004)

501
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE C HAIR FOR A DMINISTRATION AND F INANCE : JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

II. CLASSIFICATION OF TORTS b. unjust enrichment (arts. 22, 23,
2142 & 2143)
A. ACCORDING TO MANNER OF COMMISSION c. violation of right of privacy and
family relations
Q: What are the classes of torts according to d. dereliction of official duty of public
manner of commission? officers
e. unfair competition
A: f. malicious prosecution
1. Negligent torts – It involves voluntary g. violation of rights and liberties of
acts or omissions which results in injury another person
to others, without intending to cause the h. nuisance
same.
III. THE TORTFEASOR
2. Intentional torts – The actor desires to
cause the consequences of his act or A. THE DIRECT TORTFEASOR
believes the consequences are
substantially certain to result therefrom. Q: Who are the persons liable for a quasi‐delict?

3. Strict liability – The person is made liable A: Defendants in tort cases can either be natural
independent of fault or negligence upon or artificial beings.
submission of proof of certain facts.
Q: Can a corporation be held liable for torts?
4. Constitutional torts – The violation of a
person’s rights under Article III (Bill of A: Yes. A corporation is civilly liable in the same
Rights) of the 1987 Constitution as manner as natural persons. (PNB v. CA, 83 SCRA
contemplated in Article 32 constitutes 237)
constitutional tort.
5. NOTE: With respect to close corporations, the
B. ACCORDING TO SCOPE: GENERAL OR stockholders who are personally involved in the
SPECIFIC operation of the corporation may be personally
6. liable for corporate torts under Section 100 of the
1. General – the catch‐all provisions on Corporation Code.
torts provided for in the civil code i.e.
Articles 19, 20 and 21. The effect is that RE: Corporation by Estoppel: all persons who
“there is a general duty owed to every assume to act as a corporation knowing it to be
person not to cause harm either without authority to do so shall be liable as
willfully or negligently. Articles 19, 20, general partners for all debts, liabilities and
and 21 are provisions on human damages incurred or arising as a result thereof.
relations that “were intended to expand
the concept of torts in this jurisdiction With respect to partnerships, the partnership is
by granting adequate legal remedy for solidarily liable with the partner if the latter
the untold number of moral wrongs commit tortuous acts while acting in the pursuit
which is impossible for human foresight of partnership business. This principle is
to specifically provide for in the consistent with the mutual agency rule in
statutes.” (Aquino, 2005, citing PNB v. partnership.
CA, et al. 83 SCRA 237)
Subject to rules regarding waiver of immunity
2. Specific torts ‐ It includes trespass, from suits, defendants may include the State, its
assault and battery, negligence, political subdivisions, and government‐owned
products liability, and intentional and controlled corporations.
infliction of emotional distress. As
defined, torts fall into three different
categories: intentional, negligent and
liability (manufacturing and selling
defective products), product liability
tort.

a. art 19, 20, 21 (catch‐all provisions)
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CIVIL LAW TEAM:

TORTS AND DAMAGES
B. PERSONS MADE RESPONSIBLE FOR OTHERS Q: Is the mother liable simultaneously with the

father?
1. IN GENERAL
A: No. The law does not make the father and
Q: Who are the persons made responsible for mother simultaneously liable. It is only in the case
others? of death or incapacity of the father, that the
mother may be held liable.
A:
1. Father/ mother for their minor children. NOTE: Consequently, the wife as a co‐defendant
2. Guardians are liable for the minors and with the husband or if impleaded alone while the
incapacitated persons under their husband is alive and well, may move to dismiss the
authority. case filed against her for being premature. (Romano
3. Owners/managers of establishment or v. Parinas, 101 Phil. 141)
enterprise for their employees
4. Employers for their employees and Q: Are de facto guardians vicariously liable?
household helpers.
5. State for their special agents A: Yes. It is but just that if the children commit
6. Teachers/Heads of establishment of tortuous acts while living with them and are
arts and trades for their below 21 years of age, the law should be applied
pupils/students/apprentices (Art. 2180, by analogy.
NCC).
Note: De facto guardians are relatives and neighbors
Q: What is the difference between a minor child who take unto themselves the duty to care and
support orphaned children without passing through
and an incapacitated person in the preceding
judicial proceedings.
number?

Q: What is the rule in vicarious liability of
A: Minors here refer to those who are below
owners and managers?
twenty‐one years (21) and not to those below 18

years. While incapacitated persons refer to
A:
persons beyond twenty‐one (21) years of age but
GR: A mere manager, who does not own the
are incapacitated such as those who are insane or
business, is not to be considered an
imbecile. (Pineda, Torsts and Damages, 2009,
employer because as a manager, he is just a
p.81)
high class employee.

Q: What are the requisites of vicarious liability of
XPN: A manager who is not an owner but
parents?
who assumes the responsibility of

supervision over the employees of the
A:
owner may be held liable for the acts of the
1. The child is below twenty‐one (21)
employees.
years of age

2. The child committed a tortuous act to
NOTE: To be liable, the manager must be acting as
the damage and prejudice of another an employer of with the same authority as the
person owner.
3. The child lives in the company of the
parent concerned whether single or Q: When is the employer liable for the tortuous
married. act of the employee?

Q: Who is responsible for an illegitimate child? A: To make the employer liable under Art 2180(5
and 6), it must be established that the injurious or
A: If the child is illegitimate and acknowledged by tortuous act was committed at the time the
the father and lives with the latter, the father is employee was performing his functions.
responsible. However, an illegitimate child who is
not recognized by the putative father but is under Note: If there is deviation from the scope of
the custody and supervision of the mother, it is employment, the employer is not liable, no
the latter who is the one vicariously liable. matter how short in time is the deviation.
(Pineda, Torsts and Damages, 2009, p.97)

503

Q: What is the rule on independent contractors? 2. Filing a criminal case: (offender found
guilty) the civil liability of the employer
A: is subsidiary.
GR: An independent contractor is not an
employee of the person who engaged his Q: What is the defense for the persons liable
services. The independent contractor is free under Art. 2180?
to execute the work without being subject to
the orders of the employer on the details of A: The persons liable shall be exempted from
work. liability if they can prove that they have exercised
all the diligence of a good father of a family to
XPN: If the employer retains the control and prevent damage.
supervision over the person engaged with
respect to the work to be done, there is Q: What is the basis of quasi‐delicts under Art.
between them an employer‐employee 2180?
relationship.
A: Pater Familias. The reason for the master’s
A. QUASI‐DELICTS UNDER ARTICLE 2180, liability is the negligence in the supervision of his
HOW INTERPRETED subordinates.

Q: How is quasi‐delict under Art. 2180 Note: The “master”, however, in pater familias
interpreted? under Art. 2180 will be freed from liability if he can
prove that he had observed all the diligence of a
A: A person or juridical entity is made liable good father of a family.
solidarily with a tortfeasor simply by reason of his
relationship with the latter. The relationship may Q: What is the nature of responsibility if the
either be a parent and child; guardian and ward; vicarious obligor?
employer and employee; school and student.
A: The liability of the vicarious obligor is primary
NOTE: Art. 2176, NCC ‐ Whoever by act or omission and direct and not subsidiary. He is solidarily
causes damage to another, there being no fault or liable with the tortfeasor. His responsibility is not
negligence is obliged to pay for the damage done. conditioned upon the insolvency of or prior
Such fault or negligence, if there is no pre‐existing recourse against the negligent tortfeasor.
contractual relation between the parties, is called a
quasi‐delict and is governed by the provisions of this
Chapter. FAMILY CODE

Q: When is the actual tortfeasor not exempted Q: Who is a minor under Art 221 of the Family
from liability? Code?

A: The minor, ward, employee, special agent, A: The term “unemancipated minor” found in Art
pupil, students and apprentices who actually 221(FC) means children below 18 years of age.
committed the delictual acts are not exempted by This is in contrast with the “minor children” found
the law from personal responsibility. They may be in Art 2180(2)(NCC) which refers to children
sued and made liable alone as when the person below 21 years. To avoid the overlapping in ages,
responsible for them or vicarious obligor proves the better option to settle the conflict is to
that he exercised the diligence of a good father of consider Art 221 as totally superseded by Art
a family or when the minor or insane person has 236(FC) as amended by R.A. 6809. Thus:
no parents or guardians. In the latter instance,
they are answerable with their own property. GR: 18 years of age – parental authority
ceases (emancipation)
Q: What are the remedies of an injured party for
the tortuous act of an employee? XPNS: 21 years of age in the following cases
1. marriage
A: 2. Art. 2180(2) NCC
1. Filing a civil action for damages based
on quasi‐delict under Art. 2180 – Note: Art 221. Family Code provides that parents
liability of the employer is primary, and other persons exercising parental authority shall
direct and solidary be civilly liable for the injuries and damages caused
by the act or omission or their unemancipated
504
CIVIL LAW TEAM:

TORTS AND DAMAGES
children living in their company and under parental Q: A 15‐year‐old high school student stabs his
authority subject to the appropriate defenses classmate who is his rival for a girl, while they
provided by law. were going out of the classroom after their last
class. Who may be held liable?
Q: Distinguish between Articles 218 of the
Family Code and 2180 of the New Civil Code. A: Under Section 218 of the Family Code, the
school, its administrators and teachers, or the
A: individual, entity or institution engaged in child
ARTICLE 218 ARTICLE 2180 care shall have special parental authority and
School, its responsibility over the minor child while under
Teachers, head of
administrators, their supervision, instruction or custody.
establishment in arts
teachers engaged in Authority and responsibility shall apply to all
and trades are made
child care are made authorized activities whether inside or outside
expressly liable
expressly liable the premises of the school, entity or institution.
Liability of school, its
administrators, No such express Q: What defense, if any, is available to them?
teachers is solidary solidary nor subsidiary
and parents are made liability is stated A: These persons identified by law to be liable
subsidiary liable may raise the defense that they exercised proper
Students involved Students involved are diligence required under the circumstances. Their
must be a minor not necessarily minors responsibility will cease when they prove that
they observed all the diligence of a good father of
Q: Is the application of Article 2180 limited to a family to prevent damage. As regards the
school of arts and trades? employer, if he shows to the satisfaction of the
court that in the selection and in the supervision
A: No. It applies to all, including academic of his employees he has exercised the care and
institutions. diligence of a good father of a family, the
presumption is overcome and he is relieved from
Q: Can the liability be imputed to the teacher‐in‐ liability. (Layugan v. IAC, G.R. No. L‐49542, Sept.
charge even if the student has already reached 12, 1980). (2005 Bar Question)
the age of majority?

A: Yes. Under Article 2180, age does not matter. (1) ELEMENTS; DEFINITION

Q: Is it required that the student be only within Q: What are the elements of a quasi‐delict?
the school premises in order for the liability to
arise under this article? A:
1. Negligent or wrongful act or omission;
A: No. Authority and responsibility shall apply to 2. Damage or injury caused to another;
all authorized activities whether inside or outside 3. Causal relation between such
the premises of the school, entity or institution. negligence or fault and damage;
4. No pre‐existing contractual relationship
Q: What is the nature of the liability of the between the parties (some authorities
persons enumerated under Art. 218? believe this element not essential). (Art.
2176)
A: Those given authority and responsibility under
the preceding Article (Art. 218) shall be principally Note: Liability for tort may arise even under a
and solidarily liable for damages caused by the contract where tort is that which breaches the
acts or omissions of the unemancipated minor. contract. (Light Rail Transit Authority et al. v.
The parents, judicial guardians or the persons Navidad, et al., GR No. 145804, Feb. 6, 2003)
exercising substitute parental authority over said
If there is pre‐existing contractual relation between
minor shall be subsidiarily liable.
the parties and the same is violated, the proper

cause of action is not anchored on quasi‐delict but
The respective liabilities shall not apply if it is
breach of contract or culpa contractual.
proved that they exercised proper diligence
required under the particular circumstances (Art However, there may be cases of contractual
219). relations where quasi‐delict may arise when the
contract was grossly violated. The tort liability is not
505

based on the contract of carriage but on some other 1. When there was a pre‐existing
bases like deliberate and malicious violation of the contractual relation. Otherwise, what
contract (Air France v. Carroscoso, G.R. No. L‐21438, results is a breach of contract.
Sept. 28, 1966).
Note: However, if the act that breaches
Q: When is a person liable for a quasi‐delict? the contract is tortuous, the pre‐existing
contractual relation will not bar the
A: He is liable for such when, by his act or recovery of damages (Singson v. BPI, G.R.
omission, he causes damage to another, there No. L‐24837, June 27, 1968)
being fault or negligence, and there is no pre‐
existing contractual relationship between them. 2. When the fault or negligence is
(Art. 2176, NCC) punished by law as a crime. Art. 100 of
RPC shall be applicable
NOTE: A single act or omission may give rise to two
or more causes of action. Thus, an act or omission 3. If the action for quasi‐delict is instituted
may give rise to an action based on delict, quasi‐ after four (4) years, it is deemed
delict or contract. prescribed.

In negligence cases, prior conduct should be 4. When the injury suffered by a person is
examined, that is, conduct prior to the injury that the result of a fortuitous event without
resulted, or in proper case, the aggravation thereof. human intervention.

Q: When is Art. 2176 (on quasi‐delict) 5. If there is no damage or injury caused to
inapplicable? another.

A:

(2) DISTINGUISHED FROM CULPA CONTRACTUAL AND CULPA CRIMINAL

Q: Distinguish quasi delict from culpa contractual and culpa criminal.

A:
CULPA CONTRACTUAL CULPA AQUILIANA CULPA CRIMINAL
Civil Negligence, Quasi‐Delict,
Contractual Negligence Criminal Negligence
Tort, or Culpa Extra‐Contractual
Proof Needed
Proof of guilt beyond
Preponderance of evidence Preponderance of evidence
reasonable doubt
Onus Probandi
Victim must prove:
Contracting party must prove:
1. The damage suffered; Prosecution must prove the
1. The existence of the
2. The negligence of the defendant; guilt of the accused beyond
contract;
3. The causal connection between the reasonable doubt.
2. The breach thereof.
damage and the negligence.
Defense Available
Exercise of extraordinary Exercise of diligence of a good father of
Defenses provided for under
diligence (in contracts of a family in the selection and
the Revised Penal Code.
carriage), Force majeure supervision of employees
Existence of Contract between the Parties
There is pre‐existing contract No pre‐existing contract No pre‐existing contract

Note: The result in the criminal case, whether acquittal, or conviction is irrelevant in the independent civil action
under the Civil Code (Dionisio vs Alyendia, 102 Phil 443, ’57, cited in Mckee vs IAC, 211 SCRA 536) unless acquittal is
based on the court’s declaration that the fact from which the civil action arose did not exist, hence the dismissal of
criminal action carries with the extinction of the civil liability. (Andamo vs IAC, 191 SCRA 204, ’90 J. Fernan)

506
CIVIL LAW TEAM:

TORTS AND DAMAGES
B. INDIRECT LIABILITY FOR INTENTIONAL ACTS a. for their employees
b. in the service of the branches in
See Vicarious Liability. which they are employed, or;
c. on the occasion of their functions
C. PRESUMPTION OF NEGLIGENCE ON PERSONS 4. Employers:
INDIRECTLY RESPONSIBLE a. damages caused by employees
and household helpers
Q: What is the presumption of negligence on b. acting within the scope of their
persons indirectly responsible? assigned tasks
c. even if the employer is not
A: The presumption of law is that there was engaged in any business or
negligence on the part of the master or employer industry
either in the selection of the servant or employee 5. State – acting through a special agent
(culpa in eligiendo) or in the supervision over him and not when the damage has been
after the selection (culpa vigilando), or both. caused by the official to whom the task
done properly pertains.
Note: The presumption is juris tantum and not juris 6. Teachers or heads of establishments:
et de jure; subsequently, it may be rebutted. a. of arts and trades
Accordingly, if the employer shows to the b. for damages caused by their pupils
satisfaction of the court that in the selection and and students or apprentices
supervision of his employee he has exercised the c. so long as they remain in their
care and diligence of a good father of a family, the custody (Art. 2180, NCC)
presumption is overcome and he is relieved of the
liability.
Q: Give the distinctions on the employer’s

liability under Art 2180 NCC and Revised Penal
D. NATURE OF LIABILITY; JOINT OR SOLIDARY
Code.

Q: What is the principle of vicarious liability or
A:
law on imputed negligence?
a. Under the Civil Code: the liability is

direct and primary (solidary),the
A: Under Art. 2180, a person is not only liable for
employer may be sued even without
torts committed by him, but also for torts
suing the employee
committed by others with whom he has a certain

relation or for whom he is responsible. NOTE: Diligence of a good father is a
defense.
Q: What is the nature of the responsibility of a Employer is liable even if not engaged in
vicarious obligor? business. Proof of negligence is by mere
preponderance of evidence
A: His liability is primary and direct, not
subsidiary. He is solidarily liable with the b. Under the Revised Penal Code: the
tortfeasor. His responsibility is not conditioned liability is subsidiary
upon the insolvency of or prior recourse against
the negligent tortfeasor (De Leon Brokerage v. CA, NOTE: Diligence of a good father is not a
G.R. 15247, Feb. 28, 1962) defense.
Must prove employer is engaged in
Q: Who are the persons vicariously liable? business.
Proof beyond reasonable doubt is
A: F‐GOES‐T required.
1. Father, or in case of death or incapacity,
mother: 2. IN PARTICULAR
a. damage caused by minor children
b. living in their company A. PARENTS
2. Guardians:
a. for minors or incapacitated Q: What is the basis of the parents’ vicarious
persons liability?
b. under their authority
c. living in their company A: This liability is made natural as logical
3. Owners and managers of consequences of the duties and responsibilities of
establishments: parents exercising parental authority which
507

includes controlling, disciplining and instructing C. OWNERS AND MANAGERS OF
their children. In this jurisdiction the parent’s ESTABLISHMENTS AND ENTERPRISES
liability is vested by law (NCC and FC) which
assumes that when a minor or unemancipated Q: In what sense do the terms “owners and
child living with their parent, commits a tortuous managers” used?
act, the parents are presumed negligent in the
performance of their duty to supervise the A: They are used in the sense of “employer” and
children under their custody. A presumption do not include the manager of a corporation who
which juris tantum, not juris es de jure, himself is just an employee (Phil. Rabbit Bus Lines
rebuttable‐overcome by proof having exercised v. Phil. American Forwarders, Inc., G.R. No. L‐
and observed all the diligence of a good father of 25142, Mar. 25, 1975).
a family (diligentissimi patris familias). (Tamagro
vs CA, 209 SCRA 519) Q: What is the extent of liability for damage of
owners and managers of establishments?
Q: In the event of death or incapacity of the
parents, who are liable for acts or omissions of A: They are liable for damage caused by their
minors? employees in the service of the branches in which
they are employed, or on the occasion of their
A: In default of the parents or a judicially functions.
appointed guardian, parental authority shall be
exercised by the following persons in the order D. EMPLOYERS
indicated:
1. Surviving grandparents; (1) MEANING OF EMPLOYERS
2. Oldest sibling, over 21 years old unless
unfit or unqualified; Q: Who is an employer?
3. Child’s actual custodian, over 21 years
old unless unfit or disqualified. A: Employer includes any person acting directly or
indirectly in the interest of an employer in
Note: Judicially adopted children are considered relation to an employee and shall include the
legitimate children of their adopting parents. Thus, government and all its branches, subdivisions and
adopters are civilly liable for their tortuous/criminal instrumentalities, all government‐owned or
acts if the children live with them and are minors. controlled corporations and institutions, as well
as non‐profit private institutions, or
As for an illegitimate child, if he is acknowledged by organizations. (Art. 97, P.D. 442)
the father and live with the latter, the father shall be
responsible. However, if he is not recognized by the
(2) REQUISITES
putative father but is under the custody and

supervision of the mother, it is the latter who is the
one vicariously liable (Pineda, p.87, 2009 ed).
Q: When is an employer liable?

B. GUARDIAN A: The employer is liable only if the employee was
performing his assigned task at the time the
Q: Who is a minor under this article? injury was caused. This includes any act done by
the employee in the furtherance of the interest of
A: Minors here refer to those who are below the employer at the time of the infliction of the
twenty‐one (21) years and not to those below 18 injury or damage. (Aquino, T., Torts and Damages,
years. The law reducing the majority age from 21 2005, Second Ed., p 697)
to 18 years did not amend these paragraphs. (Art.
236 Family Code as amended by RA No. 6809) (A) EMPLOYEE CHOSEN BY EMPLOYER OR
(Pineda, pp. 81‐82, 2009 ed.) THROUGH ANOTHER

Q: Are de facto guardians covered by Art. 2180? Q: What is required before an employer may be
held liable for the act of its employees?
A: Yes, the law should be applied by analogy. De
facto guardians are relatives and neighbors who A:
take upon themselves the duty to care and 1. The employee was chosen by the
support orphaned children without passing employer personally or through
through judicial proceedings. (Pineda, p.88, 2009 another;
ed.)
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TORTS AND DAMAGES
2. The service is to be rendered in employees. (LRTA v. Navidad, G.R. 145804, Feb. 6,

accordance with orders which the 2003)
employer has the authority to give all
times; (3) EMPLOYER NEED NOT BE ENGAGED IN
3. That the elicit act of the employee was BUSINESS OR INDUSTRY
on the occasion or by reason of the
functions entrusted to him. Q: Is it required that the employer is engaged in
some kind of industry or work?
Note: Before the employer’s subsidiary liability is
exacted, there must be proof that: A: No. Negligent acts of employees, whether or
1. they are indeed the employer’s of not the employer is engaged in a business or
the convicted employee industry, are covered so long as they were acting
2. the former are engaged in some kind within the scope of their assigned task. For,
of industry admittedly, employees oftentimes wear different
3. the crime was committed by the hats. They perform functions beyond their office,
employees in the discharge of their
title or designation but which, nevertheless, are
duties
still within the call of duty. ( Castilex Industrial
4. that the execution against the latter
has not been satisfied due to
Corporation v. Vasquez., et al.)
insolvency.
(4) DEFENSE OF DILIGENCE IN SELECTION AND
(B) SERVICES RENDERED IN ACCORDANCE WITH SUPERVISION
ORDERS WHICH EMPLOYER HAS AUTHORITY TO
GIVE Q: What are the defenses available to an
employer?
See discussion below.
A:
(C) ILLICIT ACT OF EMPLOYEE WAS ON THE 1. Exercise of due diligence in the
OCCASION OR BY REASON OF THE FUNCTIONS selection and supervision of its
ENTRUSTED TO HIM employees (except in criminal action);
2. The act or omission was made outside
Q: Is it required that the employee must be working hours and in violation of
performing his assigned task at the time that the company’s rules and regulations.
injury is caused?
Q: What are the remedies of the injured party in
A: Yes. The vicarious liability of employers pursuing the civil liability of the employer for the
attaches only when the tortuous conduct of the acts of his employees?
employee relates to, or is in the course of his
employment. (Valenzuela v. CA) A:
1. If he chooses to file a civil action for
It is not necessary that the task performed by the damages based on quasi‐delict under
employee is his regular job or that which was Article 2180 and succeeds in proving
expressly given to him by the employer. It is the negligence of the employee, the
enough that the task is indispensable to the liability of the employer is primary,
business or beneficial to the employer. (Filamer direct and solidary. It is not conditioned
Christian Institute v. IAC, 212 SCRA 637) on the insolvency of the employee
(Metro Manila Transit Corp. v. CA, G.R.
(D) PRESUMPTION OF NEGLIGENCE No. 118069, Nov. 16, 1998).

Q: What is the presumption on the negligence of 2. If he chooses to file a criminal case
the employer? against the offender and was found
guilty beyond reasonable doubt, the
A: The employer is presumed to be negligent and civil liability of the employer is
the presumption flows from the negligence of the subsidiary. The employer cannot use as
employee. Once the employee’s fault is a defense the exercise of the diligence
established, the employer can then be made of a good father of a family.
liable on the basis of the presumption that the
employer failed to exercise diligentissimi patris Once there is a conviction for a felony,
families in the selection and supervision of its final in character, the employer under
509

Article 103 of the RPC, is subsidiary Q: What are the aspects of liability of the State?
liable, if it be shown that the
commission thereof was in the A:
discharge of the duties of the 1. Public/Governmental – where the State
employee. A previous dismissal of an is liable only for the tortuous acts pf its
action based on culpa aquiliana could special agents.
not be a bar to the enforcement of the 2. Private/Non‐governmental – when the
subsidiary liability required by Art. 103 State is engaged in private business or
RPC. (Jocson, et al. v. Glorioso, G.R. L‐ enterprise, it becomes liable as an
22686, Jan. 30, 1968) (Pineda, pp. 101‐ ordinary employer.
102, 2009 ed.)
Note: If the special agent is not a public official and
Q: Would the defense of due diligence in the is commissioned to perform non‐governmental
selection and supervision of the employee functions, then the State assumes the role of an
available to the employer in both instances? ordinary employer and will be held liable as such for
the tortuous acts of said agent. If the State
A: The defense of diligence in the selection and commissioned a private individual to perform a
supervision of the employee under Article 2180 of special governmental task, it is acting through a
special agent within the meaning of the provision.
the Civil Code is available only to those primarily

liable thereunder, but not to those subsidiary
F. TEACHERS AND HEADS OF ESTABLISHMENTS
liable under Article 103 of the Revised Penal
OF ARTS AND TRADES
Code. (Yumul v. Juliano, G.R. No. 47690, Apr., 28,

1941) (1997 Bar Question)
Q: What is the basis of the teacher’s vicarious

liability?
(5) NATURE OF EMPLOYER’S LIABILITY

A: The basis of the teacher’s vicarious liability is,
Q: What is the nature of the employer’s
as such, they acting in Loco Parentis (in place of
vicarious liability?
parents). However teachers are not expected to

have the same measure of responsibility as that
A: If based on culpa aquiliana under Art. 2176 and
imposed on parent for their influence over the
2180 of the Civil Code, the liability is primary,
child is not equal in degree. The parent can instill
while that under Art. 103 of the Revised Penal
more lasting discipline more lasting disciple on
Code is subsidiary.
the child than the teacher and so should be held

to a greater accountability than the teacher or
E. STATE
the head for the tort committed by the child.

Q: When is the State liable for the acts of
Q: When are teachers and heads of schools
others?
liable?

A: The State is only liable for the negligent acts of
A:
its officers, agents and employees when they are
GR: The teacher‐in‐charge is liable for
acting as special agents. The State has voluntarily
the acts of his students.
assumed liability for acts done through special

agents.
XPN: In the case of establishments of

NOTE: The State assumes the role of an ordinary
arts and trades, it is the head thereof,
employer and will be held liable for the special and only he, who shall be liable.
agent’s torts (Fontanilla vs Malianan) (Amadora v CA, 160 SCRA 315)

Q: Who is a special agent? Note: There is really no substantial difference
distinction between the academic and non‐academic
schools in so far as torts committed by their students
A: A special agent is one who receives a definite
are concerned. The same vigilance is expected from
and fixed order or commission, foreign to the
the teacher over the student under their control and
exercise of the duties of his office. supervision, whatever the nature of the school
where he is teaching.
An employee who on his own responsibility
performs functions inherent in his office and
naturally pertaining thereto is not a special agent

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Q: When is a student considered in the custody V. PROXIMATE CAUSE

of the school authorities?
A. CONCEPT
A: The student is in the custody of the school
authorities as long as he is under the control and 1. DEFINITION
influence of the school and within its premises,
whether the semester has not ended, or has Q: What is proximate cause?
ended or has not yet begun. The term “custody”
signifies that the student is within the control and A: An act from which an injury results as a
influence of the school authorities. The teacher in natural, direct, uninterrupted consequence and
charge is the one designated by the dean, without which the injury would not have
principal, or other administrative superior to occurred.
exercise supervision over the pupils or students in
the specific classes or sections to which they are 2. TEST
assigned. It is not necessary that at the time of
the injury, the teacher is physically present and in Q: What are the tests to determine whether a
a position to prevent it. cause is proximate?

A:
C. JOINT TORTFEASORS 1. Cause‐In‐Fact Test – It is necessary that
there is proof that defendant’s conduct
Q: Who are joint tortfeasors? is a factor in causing plaintiff’s damage.
Determines whether the defendant’s
A: All the persons who command, instigate, act or omission is a causally relevant
promote, encourage, advice, countenance, factor
cooperate in, aid, or abet the commission of a
tort, or who approve it after it is done, if done for a. But For Test / Sine Qua Non Test
their benefit; they are each liable as a principal, to b. Substantial Factor Test
the same extent and in same manner as if they c. Necessary and Sufficient Test
have performed the wrongful act themselves. (NESS) – The act or omission is a
cause‐in‐fact if it is a necessary
element of a sufficient set.
IV. ACT OR OMISSION AND ITS MODALITIES
2. Policy test – The law limits the liability
A. CONCEPT OF ACT of the defendant to certain
consequences of his action; if the
Q: What is an act? damage or injury to the plaintiff is
beyond the limit of the liability fixed by
A: Any bodily movement tending to produce law, the defendant’s conduct cannot be
some effect in the external world, it being considered the proximate cause of the
unnecessary that the same be actually produced, damage.
as the possibility of its production is sufficient.
(People v. Gonzales, 183 SCRA 309, 324) NOTE: Such limit of liability is determined
by applying these subtests of the policy
test:
a. Foreseeability Test;
b. Natural and Probable Consequence
Test;
c. Natural and Ordinary or Direct
Consequences Test;

d. Hindsight Test;

e. Orbit of Risk Test;
f. Substantial Factor Test.

511

3. DISTINGUISHED FROM IMMEDIATE CAUSE, INTERVENING CAUSE, REMOTE AND CONCURRENT
Q: Distinguish proximate, immediate intervening remote and concurrent causes.

A:
PROXIMATE CAUSE INTERVENING CAUSE REMOTE CAUSE CONCURRENT CAUSE
It is the cause which, in One that destroys the
causal connection between Causes brought about by
natural and continuous
That cause which some the acts and omissions of
sequence, unbroken by the negligent act and injury
and thereby negatives independent force merely third persons which makes
any efficient intervening
liability. took advantage of to the defendant still liable.
cause, produces the
accomplish something not Here, the proximate cause
injury, and without which
Note: Foreseeable Intervening the natural effect thereof. is not necessarily the sole
the result would not have
causes cannot be considered cause of the accident
occurred. sufficient intervening causes

B. CAUSE IN FACT C. LEGAL CAUSE

1. BUT FOR 1. NATURAL AND PROBABLE CONSEQUENCES

Q: What is the “but for” test? Q: Explain natural and foreseeable test.

A: It considers whether the injury would not have A: Where the defendant’s liability is recognized
occurred but for the defendant's negligent act. only if the harm or injury suffered is the natural
Defendant’s conduct is the cause in fact of the and probable consequence of his act or omission
injury if the damage would not have resulted had complained of. (Banzon v. CA, 175 SCRA 297)
there been no negligence on the part of the
defendant. 2. FORESEEABILITY

2. SUBSTANTIAL FACTOR TEST Q: Explain the foreseeability test.

Q: What is the substantial factor test? A: Where the particular harm was reasonably
foreseeable at the time of the defendant’s
A: It makes the negligent conduct the cause‐in‐ misconduct, his act or omission is the legal cause
fact of the damage if it was a substantial factor in thereof. To be negligent, the defendant must
producing the injuries. It is important in cases have acted or failed to act in such a way that an
where there are concurrent causes ordinary reasonable man would have realized
that certain interests of certain persons were
3. CONCURRENT CAUSES unreasonably subjected to a general but definite
class of risk which made the actor’s conduct
Q: What is the principle of concurrent causes? negligent, it is obviously the consequence for the
actor must be held legally responsible.
A: Where the concurrent or successive negligent
acts or omissions of two or more persons, D. EFFICIENT INTERVENING CAUSE
although acting independently, are in
combination with the direct and proximate cause Q: What is an efficient intervening cause?
rd
of a single injury to a 3 person, and it is
impossible to determine what proportion each A: It is one which destroys the causal connection
contributed to the injury, either of them is between the negligent act and the injury and
responsible for the whole injury, even though his thereby negatives liability (novus actus
act alone might not have caused the entire injury. interviens).

Q: When is there no efficient intervening cause?

A: If the force created by the negligent act or
omission have either:
1. remained active itself;

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TORTS AND DAMAGES
2. created another force which remained Note: There is a different rule in case of collision of

active until it directly caused the result; vessels.
or
3. created a new active risk of being acted Q: What are the instances when the doctrine of
upon by the active force that caused last clear chance is inapplicable?
the result
A:
E. CAUSE VS. CONDITION 1. The party charged is required to act
instantaneously, and the injury cannot
Q: Distinguish cause and condition. be avoided by the application of all
means at hand after the peril is or
A: Cause is the active force while condition is the should have been discovered;
passive situation. The former is the active “cause” (Pantranco North Expressway v. Baesa,
of the harm and the latter is the existing G.R. Nos. 79050‐51, Nov. 14, 1989)
“conditions” upon which the cause operated.
2. If the defendant’s negligence is a
Note: If the defendant has created only a passive concurrent cause and which was still in
static condition which made the damage possible, operation up to the time the injury was
the defendant is said not to be liable. inflicted;

F. LAST CLEAR CHANCE 3. Where the plaintiff, a passenger, filed
an action against a carrier based on
Q: What is the doctrine of last clear chance? contract; (Bustamante v. CA, G.R. No.
89880, Feb. 6, 1991)
A: The contributory negligence of the party
injured will not defeat the claim for damages if it 4. If the actor, though negligent, was not
is shown that the defendant could, by the aware of the danger or risk brought
exercise of reasonable care and prudence, have about by the prior fraud or negligent
avoided the consequences of the negligence of act;
the injured party.
5. In case of a collapse of a building or
Q: What are the requisites of the doctrine of last structure. (De Roy v. CA, G.R. No. L‐
clear chance? 41154, Jan. 29, 1988) (Pineda, p.60,
2009 ed.)
A:
1. Both plaintiff and defendant were Q: What are the alternative views regarding the
negligent. (This is an exception to doctrine of last clear chance?
concurrent negligence rule);
2. Plaintiff was in a position of danger by A:
his own negligence; 1. Prevailing view: The law is that the
3. Defendant knew of such position of the person who has the last fair chance to
plaintiff; avoid the impending harm and fails to
4. Defendant had the last clear chance to do so is chargeable with the
avoid the accident by exercise of consequences, without reference to the
ordinary care but failed to exercise such prior negligence of the other party.
last clear chance;
5. Accident occurred as proximate cause 2. Minority view: The last clear chance
of such failure. doctrine is inapplicable in Philippine
jurisdiction in determining the
Q: Is the doctrine of last clear chance applicable proximate cause of the accident.
in case of collision?
3. Third view: That the doctrine of
A: Yes. In case of collision, it applies in a suit comparative negligence and the last
between the owners and drivers of colliding clear chance doctrine are not
vehicles and not where a passenger demands inconsistent with each other.
responsibility from the carrier to enforce its
contractual obligations.

513

VI. LEGAL INJURY C. VIOLATION OF RIGHT OR LEGAL INJURY

A. CONCEPT Q: What are the available remedies for a person
whose rights have been violated?
Q: What is injury as distinguished from damage?
A: Legal remedies are either preventive or
A: Injury is the illegal invasion of a legal right compensatory. Every remedy in a certain sense is
while damage is the loss, hurt or harm. Injury preventive because it threatens certain
refers to any indeterminate right or property, but undesirable consequences to those who violate
also to honor and credit. the rights of others.

B. ELEMENTS OF RIGHT The primary purpose of a tort action is to provide
compensation to a person who was injured by the
Q: What is a right? tortuous conduct of the defendant. The remedy
of the injured person is therefore primarily an
A: It is a legally enforceable claim of one person action for damages against the defendant.
against another, that the other shall do a given (Aquino, p.20, 2005 ed.)
act, or shall not do a given act (Pineda, Persons, p.
23)
D. CLASSES OF INJURY
Q: What are the kinds of rights? Distinguish.
1. INJURY TO PERSONS
A:
1. Natural Rights – Those which grow out Q: What are the torts committed against
of the nature of man and depend upon persons?
personality.
A:
E.g. right to life, liberty, privacy, and 1. assault,
good reputation. 2. battery,
3. false imprisonment,
2. Political Rights – Consist in the power to 4. intentional infliction of emotional
participate, directly or indirectly, in the distress, and
establishment or administration of 5. fraud
government.
2. INJURY TO PROPERTY
E.g. right of suffrage, right to hold
public office, right of petition. Q: What are the torts committed against
property?
3. Civil Rights – Those that pertain to a
person by virtue of his citizenship in a A:
state or community. 1. trespass to land,
2. trespass to chattels, and
E.g. 3. conversion.
1. property rights,
2. marriage, 3. INJURY TO RELATIONS
3. equal protection of laws,
4. freedom of contract, trial by Q: What are the torts that cause injury to
jury. (Pineda, Persons, p. 24) relations?
5. Rights of personalty or human
rights; A:
6. Family rights; and 1. Family relations
7. Patrimonial rights: a. Alienation of affection
i. Real rights b. Loss of consortium
ii. Personal rights. (Rabuya c. Criminal conversation (adultery)
Persons, p. 19) 2. Social relations
a. Meddling with or disturbing family
relations

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CIVIL LAW TEAM:

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b. Intriguing to cause another to be a. Appropriation
alienated from his friends b. Intrusion
3. Economic relations c. public disclosure of private facts
a. Interference with contractual d. false light in the public eye
relations 4. Disturbance of peace of mind
b. Unfair competition 5. Malicious prosecution
4. Political relations 6. Defamation
a. Violation of right to suffrage
b. Violation of other political rights B. INTERFERENCE WITH RELATIONS
(freedom of speech, press,
assembly and petition, etc.) See Injury to Relations.

B. INTERFERENCE WITH RIGHTS TO PERSONS
VII. INTENTIONAL TORTS AND PROPERTY

A. GENERAL 1. INTENTIONAL PHYSICAL HARMS

1. CONCEPT A. GENERAL

Q: What is intentional tort? (1) CONCEPT

A: Tort or wrong perpetrated by one who intends (2) KINDS
to do that which the law has declared wrong as
contrasted with negligence in which the torfeasor B. VIOLATION OF PERSONS SECURITY, PHYSICAL
fails to exercise that degree of care in doing what INJURIES
is otherwise permissible (Black’s Law Dictionary,
th
6 edition, p. 1489). (1) BATTERY (PHYSICAL INJURY)

Note: Intentional torts are those which involve Q: What is battery as a basis for tort liability?
malice or bad faith.
A: It is the intentional, unprivileged, and either
2. CLASSES harmful or offensive contact with the person of
another.
A. INTERFERENCE WITH PERSONS AND
PROPERTY NOTE: At common law, battery is the tort of
intentionally and voluntarily bringing about an
(1) PHYSICAL HARMS unconsented harmful or offensive contact with a
person or to something closely associated with
Q: What the kinds of physical harms? them.

A: Q: When is a person liable for tort based on
1. Violation of persons security, physical battery?
injuries
a. battery (physical injury) A: An actor is subject to liability to another for
b. assault (grave threat) battery if:
2. False imprisonment (illegal detention) 1. he acts intending to cause a harmful or
3. Trespass to land offensive contact with the person of the
4. Interference with personal property other or a third person, or an imminent
a. trespass to chattels apprehension of such a contact, and
b. conversion 2. a harmful/offensive contract with the
person of the other directly or indirectly
(2) NON‐PHYSICAL HARMS results

Q: What the kinds of non‐physical harms? Q: What are the elements of battery?

A: A:
1. Violation of personal dignity 1. Intent
2. Infliction of emotional distress 2. Harmful or offensive conduct
3. Violation of privacy 3. Absence of privilege
515

Q: Is actual contact necessary in battery? (2) ASSAULT (GRAVE THREAT)

A: No. Unlike assault, battery involves an actual Q: What is assault in the context of torts?
contact. The contact can be by one person
(the tortfeasor) of another (the victim), or the A: It is the tort of acting intentionally and
contact may be by an object brought about by the voluntarily causing the reasonable apprehension
tortfeasor. For example, the intentional contact of an immediate harmful or offensive contact.
by a car is a battery.
Q: What are the elements of assault as a basis
NOTE: Unlike criminal law, which recognizes degrees for tort liability?
of various crimes involving physical contact, there is
but a single tort of battery. Lightly flicking a person's A:
ear is battery, as is severely beating someone with a 1. An act by defendant creating a
tire iron. Neither is there a separate tort for a reasonable apprehension in plaintiff
battery of a sexual nature. 2. of immediate harmful or offensive
contact to plaintiff's person
Q: What are some rules in determining liability 3. Intent
for tort based on battery? 4. Causation

A: Q: When is an actor liable for tort based on
1. The victim of a battery need not be assault?
aware of the act at the time for the tort
to have occurred. A: An actor is liable for assault if:
2. Battery is a form of trespass to the 1. He acts intending to cause a harmful or
person and as such no actual damage offensive contact with the person of the
(e.g. injury) needs to be proved. Only other, or an imminent apprehension of
proof of contact (with the appropriate such a contact, and
level of intention or negligence) needs 2. The other is thereby put in such
to be made. imminent apprehension.
3. If there is an attempted battery, but no
actual contact, that may constitute a Note: Assault requires intent.
tort of assault.
4. Battery need not require body‐to‐body Actual ability to carry out the apprehended contact
contact. Touching an object "intimately is not necessary.
connected" to a person (such as an
object he or she is holding) can also be Q: When is an act not considered an assault?
battery.
5. A contact may constitute a battery even A: An act intended as a step toward the infliction
if there is a delay between the of a future contact, which is so recognized by the
defendant's act and the contact to the other, does not make the actor liable for an
plaintiff's injury. assault under the rule.

Q: What are the defenses in trespass to the Q: Is actual contact necessary in assault?
person which are applicable to battery?
A: No. As distinguished from battery, assault need
A: The standard defenses to trespass to the not to involve actual contact—it only needs intent
person are: and the resulting apprehension. However, assault
1. necessity, requires more than words alone. For example,
2. consent, wielding a knife while shouting threats could be
3. self defense, and construed as assault if an apprehension was
4. defense of others. created.

Note: Self defense as to battery can consist only of Note: A battery can occur without a preceding
engaging in physical contact with another person in assault, such as if a person is struck in the back of
order to prevent the other person from themselves the head. Fear is not required, only anticipation of
engaging in a physical attack. subsequent battery.

Privilege is a defense for battery. Defendant has
burden to prove.
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Q: When is contact said to be “harmful”? 3. the other is conscious of the

confinement or is harmed by it.
A: While the law varies by jurisdiction, contact is
often defined as "harmful" if it objectively intends D. TRESPASS TO LAND
to injure, disfigure, impair, or cause pain.
(1) CONCEPT
Q: When is an act deemed to be “offensive”?
Q: What is trespass to real property?
A: The act is deemed "offensive" if it would
offend a reasonable person’s sense of personal A: It is a tort that is committed when a person
dignity. unlawfully invades the real property of another.

Q: In what context is “imminence” understood in Q: When may damages be awarded in
determining tort liability for assault? deprivation of real property?

A: "Imminence" is judged objectively and varies A: Damages may be awarded if the real owner
widely on the facts, it generally suggests there is was deprived of possession of his property by a
little to no opportunity for intervening acts. possessor in bad faith or by a person who does
not have any right whatsoever over the property.
Q: Distinguish apprehension from fear.
Note: Damages may be awarded to the real owner if
A: The state of "apprehension" should be he suffered such damages because he was deprived
differentiated from the general state of fear, as of possession of his property by a possessor in bad
apprehension requires only that the person be faith or by a person who does not have any right
aware of the imminence of the harmful or whatsoever over the property.
offensive act.
Anybody who builds, plants or sows on the land of
another knowing full well that there is a defect in his
Q: What are some defenses in assault?
title is liable for damages. The liability is in addition

to the right of the landowner in good faith to
A: Assault can be justified in situations of self‐ appropriate what was built, planted or sown or to
defense or defense of a third party where the act remove the same.
was deemed reasonable. It can also be justified in
situations where consent can often be implied Liability for damages under the above‐cited
(i.e. sports competitions). provisions of the RPC and the NCC requires intent or
bad faith.
C. FALSE IMPRISONMENT (ILLEGAL DETENTION)
(2) ELEMENTS
Q: What are the elements of false imprisonment
as a basis for tort liability? Q: Is intent or bad faith necessary for liability to
attach?
A:
1. An act or omission on the part of A: Yes, the Revised Penal Code and the New Civil
defendant that confines or restrains Code requires intent or bad faith.
plaintiff
2. That plaintiff is confined or restrained Note: Chief Justice Concepcion observed however
to a bounded area; that trespass may even be committed in good faith.
3. Intent; and (Republic v. de los Angeles, G.R. L‐26112, Oct. 4,
4. Causation 1971)

Q: When is an actor liable for false Q: What is the extent of trespass to personal
imprisonment? property?

A: Under the law on torts, an actor is liable for A: In the field of tort, trespass extends to all cases
false imprisonment if: where a person is deprived of his personal
1. he acts intending to confine the other property even in the absence of criminal liability.
within boundaries fixed by the actor, (Aquino, T., Torts and Damages, 2005, Second Ed.
2. his act directly or indirectly results in P.368)
such a confinement, and

517

E. INTERFERENCE WITH PERSONAL PROPERTY 1. Prying into the privacy of another's
residence;
(1) TRESPASS TO CHATTELS 2. Meddling with or disturbing the private
life or family relations of another;
Q: What is trespass to chattels? 3. Intriguing to cause another to be
alienated from his friends;
A: It is where a person took possession of the 4. Vexing or humiliating another on
property of another in bad faith. account of his religious beliefs, lowly
station in life, place of birth, physical
(2) CONVERSION defect, or other personal condition.
(Art. 26, NCC)
Q: What are the elements of conversion?
C. INFLICTION OF EMOTIONAL DISTRESS
A:
1. An act by defendant that interferes with Q: What are the requisites for one to be able to
plaintiff's right of possession in a recover for the intentional infliction of
chattel. emotional distress?

2. The interference is so serious that it A: The plaintiff must show that:
warrants requiring defendant to pay the
chattel's full value. 1. The conduct of the defendant was
intentional or in reckless disregard of
Q: What may be included in conversion? the plaintiff;
2. The conduct was extreme and
A: Conversion may include: outrageous;
1. Cases where the defendant deprived 3. There was a causal connection
the plaintiff of personal property for the between the defendant’s conduct and
purpose of obtaining possession of a the plaintiff’s mental distress; and
real property, as when a landlord 4. The plaintiff’s mental distress was
deprived his tenants of water in order extreme and severe.
for them to vacate the lot they were
cultivating. Note: Even if there was no intentional infliction of
2. Unjustified deprivation of access to emotional distress in one case, the SC recognized the
property such as unjustified possibility that one may be made liable for the tort
disconnection of electricity service of intentional infliction of emotional distress.

2. INTENTIONAL NON‐PHYSICAL HARMS Q: What does “extreme and outrageous
conduct” mean?
A. GENERAL
A: It is conduct that is so outrageous in character,
(1) CONCEPT and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded
(2) KINDS as atrocious, and utterly intolerable in civilized
society.
B. VIOLATION OF PERSONAL DIGNITY
Q: What does “emotional distress” mean?
Q: What is the rule with regard to the right of a
person to his dignity, personality, privacy and A: It is any highly unpleasant mental reaction such
peace of mind? as extreme grief, shame, humiliation,
embarrassment, anger, disappointment, worry,
A: Every person shall respect the dignity, nausea, mental suffering and anguish, shock,
personality, privacy and peace of mind of his fright, horror, and chagrin.
neighbors and other persons. The following and
Note: “Severe emotional distress” in some
similar acts, though they may not constitute a
jurisdictions, refer to any type of severe and
criminal offense, shall produce a cause of action
disabling emotional or mental condition which may
for damages, prevention and other relief: be generally recognized and diagnosed by
professionals trained to do so, including
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posttraumatic stress disorder, neurosis, psychosis, 3. The RPC makes a crime the:

chronic depression, or phobia. i. violation of secrets by an
officer,
The plaintiff is required to show, among other ii. revelation of trade and
things, that he or she suffered emotional distress so industrial secrets, and
severe that no reasonable person could be expected iii. trespass to dwelling.
to endure it; severity of the distress is an element of
the cause of action, not simply a matter of damages.
4. Invasion of privacy is likewise an

offense in special laws such as the:
The plaintiff cannot recover merely because of hurt
feelings. Liability cannot be extended to every trivial
i. anti‐wiretapping law; and
indignity. The plaintiff must necessarily be expected ii. secrecy of bank deposits
and required to be hardened to a certain amount of act; and
rough language, and to acts that are definitely
inconsiderate and unkind. 5. The Rules of Court provisions on
privileged communication.
Q: Distinguish emotional distress from
defamation. Q: What is the standard to be applied in
determining the existence of a violation of the
A: An emotional distress tort action is personal in right to privacy?
nature. It is a civil action filed by an individual to
assuage the injuries to his emotional tranquility A: The right to privacy is not a guaranty to
due to personal attacks on his character. hermitic seclusion. The standard to be applied is
that of a person of ordinary sensibilities. It is
Emotional distress properly belongs to the relative to the customs of the time and place, and
reactive harm principle while defamation calls for is determined by the norm of an ordinary person.
the application of the relational harm principle.
NOTE: The essence of privacy is the right to be let
NOTE: The principle of relational harm includes harm alone.
to social relationships in the community in the form
of defamation as distinguished from the principle of Q: What is the two‐part test in determining the
reactive harm which includes injuries to individual reasonableness of a person’s expectation of
emotional tranquility. privacy?

Q: What is the so called “parasitic” damage for A:
emotional distress? 1. Whether by his conduct, the individual
has exhibited an expectation of privacy;
A: These are damages which depend on the and
existence of another tort. 2. Whether this expectation is one that
society recognizes as reasonable.
D. VIOLATION OF PRIVACY
Q: What are the four general classes of tort
Q: What are the zones of privacy under the NCC, actions for invasion of privacy?
RPC, Rules of Court, and special laws?
A:
A: 1. appropriation;
1. That every person shall respect the 2. intrusion;
dignity, personality, privacy and peace 3. public disclosure of private facts; and
of mind of his neighbors and other 4. false light in the public eye
persons and any act of a person of
meddling and prying into the privacy (1) APPROPRIATION
of another is punishable as an
actionable wrong; Q: What is appropriation?

2. That a public officer or employee or A: It consists of appropriation, for the defendant’s
any private individual shall be liable for benefit or advantage, of the plaintiff’s name or
damages for any violation of the rights likeness.
and liberties of another person, and
recognizes the privacy of letters and
other private communications;
519

Q: What does this tort protect? Intrusion and public records:

A: The tort of commercial appropriation of Generally , there is no intrusion into the right of
likeness has been held to protect various aspects privacy of another if the information sought are
of an individual’s identity from commercial matters of public record. This is especially true in
exploitation: case the persons who are invoking the right to
privacy are public officers and the matter
1. name involved is of public concern.
2. likeness
3. achievements However, if the matter sought to be revealed
4. identifying characteristics does not involve anything of public concern, there
5. actual performances can be a violation or the right to privacy.
6. fictitious characters created by a
performer (3) PUBLIC DISCLOSURE OF PRIVATE FACTS
7. phrases and other things associated
with an individual. Q: What is public disclosure of private facts?

(2) INTRUSION A: Consists of a cause of action in publicity, of a
highly objectionable kind, given to private
Q: What is intrusion? information about the plaintiff, even though it is
true and no action would lie for defamation.
A: Consists in the intrusion upon the plaintiff’s
solitude or seclusion. Q: What is violated in public disclosure of private
It includes: facts?
1. prying into the privacy of one’s home;
2. invading his home; A: The interest sought to be protected is the right
3. invading one’s privacy by looking from to be free from unwarranted publicity, from the
outside; wrongful publicizing of the private affairs and
4. eavesdropping; or activities of an individual which are outside the
5. persistent and unwanted telephone realm of legitimate concern.
calls.
Q: What are the elements of public disclosure of
NOTE: The tort of intrusion upon a person’s solitude private facts?
protects a person’s sense of locational and
psychological privacy. A:
1. there must be a public disclosure;
Intrusion in public places: 2. the facts disclosed must be a private
fact;
Generally, there is no invasion of the right to 3. the matter be one which would be
privacy when a journalist records, photographs, offensive and objectionable to a
or writes about something that occurs in public reasonable person of ordinary
places. sensibilities.

However, while merely watching a person in Q: Who is a “public figure”?
public places is not a violation, one does not
automatically make public everything that he A: a person who, by his accomplishments, fame
does in public. It should not be tantamount to or mode of living, or by adopting a profession or
harassment or overzealous shadowing. calling which gives the public a legitimate interest
in his doings, his affairs, and his character, has
This protection is not limited to public figures. become a ‘public personage’
Everyone is protected.
Q: Is it a tortuous conduct for one to publish
Intrusion and administrative investigation: facts derived from official proceedings?

There is no intrusion when an employer A: If the facts published are not declared by law
investigates its employee or when a school to be confidential, it is not tortuous.
investigates its student. In the latter case, the
investigation may cover an alleged offense
committed outside the school premises.
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Q: Is a governmental agency or officer tasked RE: Malice: The presence of probable cause signifies,

with, and acting in, the discharge of public duties as a legal consequence, the absence of malice.The
vested with a right to privacy? absence of malice, therefore, involves good faith on
the part of the defendant. This good faith may even
A: No, said right belongs only to individuals acting be based on mistake of law.
in a private capacity.
Re: Acquittal: Acquittal presupposes that a criminal
information is filed on court and final judgment is
(4) FALSE LIGHT IN THE PUBLIC EYE
rendered dismissing the case against the accused. It

is not enough that the plaintiff is discharged on a
Q: What is false light in the public eye? writ of habeas corpus and granted bail. Such
discharge is not considered the termination of the
A: It is a tort committed by putting a person in a action contemplated to warrant the institution of a
false light before the public. It is a non‐ malicious prosecution suit against those responsible
defamatory falsehood in that a false impression is for the filing of the information against him.
conveyed.
Nevertheless, it is believed that prior “acquittal” may
Q: What is the interest to be protected in this include dismissal by the prosecutor after preliminary
tort? investigation.

A: The interest to be protected in this tort is the Q: What are the elements of malicious
interest of the individual in not being made to prosecution?
appear before the public in an objectionable false
light or false position. A: In criminal cases:

Q: How is false light in the public eye different 1. the fact of the prosecution and the
from defamation? further fact that the defendant was
himself the prosecutor, and that the
A: In false light, the gravamen of the claim is not action was terminated with an
reputational harm but rather the embarrassment acquittal;
of a person in being made into something he is 2. that in bringing the action, the
not. prosecutor acted without probable
cause;
Publication in defamation is satisfied if a letter is 3. the prosecutor was actuated or
sent to a third person; while in false light cases, impelled by legal malice. (Yasona v.
the statement should be actually made public. Ramos, G.R. 156339, Oct. 6, 2004)

In defamation, what is published lowers the Note: the term “prosecutor” includes the
esteem in which the plaintiff is held. In false light complainant who initiated the case; the prosecutor
cases, the defendant may still be held liable even himself; any other public officer authorized to file
if the statements tell something good about the and prosecute the criminal case.
plaintiff.
Mere witnesses are not included, but are liable for
false testimony or perjury for their falsehoods.
E. DISTURBANCE OF PEACE OF MIND

In civil cases:
See Emotional Distress. 1. the defendant filed a civil action against
the plaintiff previously;
F. MALICIOUS PROSECUTION 2. the action was dismissed for clear lack of
merit or for being baseless, unfounded,
Q: What is a tort action for malicious and malicious;
prosecution? 3. the defendant who filed the previous
complaint as plaintiff was motivated by ill‐
A: It is an action for damages brought by one will or sinister design;
against another whom a a criminal prosecution, 4. the present plaintiff suffered injury or
civil suit, or other legal proceedings has been damage by reason of the previous
instituted maliciously and without probable complaint filed against him.
cause, after the termination of such prosecution,
suit or proceeding in favor of defendant therein.

Note: Malice and probable cause must concur.
521

Q: When is an action for malicious prosecution phonograph, painting or theatrical or
premature? cinematographic exhibition, or any similar means.

A: If the action filed by a party is still pending trial, Q: What is slander?
the filing by the defendant of an action based on
malicious prosecution anchored on the first case A: An oral defamation.
is premature. Its dismissal is in order. (Pineda,
2004 citing Cabacungan v. Corrales, 95 PHIL 919) Q: What is slander by deed?

Q: Is there liability for malicious prosecution in A: It is a crime committed by any person who
case a suit is unsuccessful? performs an act that costs dishonor, discredit or
contempt upon the offended party in the
A: None. The mere filing of a suit does not render presence of other person or persons.
the plaintiff liable for malicious prosection should
he be unsuccessful. Persons should have free Q: Is the imputation of criminal intention
resort to the courts. The law does not impose a libelous?
penalty on the right to litigate. (Pineda, 2004)
A: No, because intent to commit a crime is not a
Note: However, the repeated filing of a complaint all violation of law.
of which were dismissed, shows malicious
prosecution entitling the injured party to an award (1) DEFENSES
of moral damages. (Pineda, 2004 citing Hawpia v.
CA, 20 SCRA 536) (A) ABSENCE OF ELEMENTS

G. DEFAMATION Q: Is the allegation that the offender merely
expresses his opinion or belief a defense in
Q: What is defamation and what does it cover? defamation cases?

A: Defamation is tarnishing the reputation of In order to escape criminal responsibility, it is not
someone; It is a public and malicious imputation enough for the offender to say that he expresses
of a crime, or of a vice or defect, real or therein no more than his opinion or belief. The
imaginary, or any act, omission, condition, status, communication must be made in the
or circumstance tending to cause the dishonor, performance of a “legal, moral, or social duty.”
discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is Q: What is retraction and what is its effect as
dead. (Art. 353, RPC). It has two regards liability for defamation?
varieties, slander and libel.
A: When a periodical gives currency, whether
Note: Actual damages need not be proved, at least innocently or otherwise, to a false and
where the publication is libelous per se, or where the defamatory statement concerning any person, it
amount of damages is more or less nominal.
is under both a legal and moral duty to check the

propagation of such statement as soon as
Q: What are the elements of defamation as a
practicable by publishing a retraction.
basis for tort liability?

Retraction may mitigate the damages provided
A:
that it contains an admission of the falsity of the
1. Defamatory language;
libelous publication and evince a desire to repair
2. of or concerning the plaintiff;
the wrong occasioned thereby.
3. Publication thereof by defendant to a

third person; and
Q: What is the effect if the publication was by
4. Damage to plaintiff's reputation.
reason of an honest mistake?

Note: “Publication” is the communication of the
A: It only serves to mitigate liability where the
defamatory matter to some third person or persons.
article is libelous per se.

Q: What is libel?

A: it is a defamation committed by means of

writing, printing, lithography, engraving, radio,
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(B) PRIVILEGE consistent with the employer’s right to protect his
interest in seeing to it that his employees are
Q: If the defamatory imputations were made in a performing their jobs with honesty, integrity and
privileged communication, is there liability good faith.
therefor?
However, such exercise of the right to terminate
A: None. An absolutely privileged communication must be consistent with the general principles
is one for which, by reason of the occasion on provided for under articles 19 and 21, NCC. If
which it is made, no remedy is provided for the there is non‐compliance with said provisions, the
damages in a civil action for slander or libel. employer may be held liable for damages. The
right to dismiss an employee should not be
H. FRAUD OR MISREPRESENTATION (FORMERLY confused with the manner in which the right is
DECEIT) exercised and the effects flowing therefrom. If
the dismissal is done anti‐socially or oppressively
Q: What are the elements of misrepresentation then the employer should be deemed to have
in torts cases? violated article 1701, NCC (which prohibits acts of
oppression by either capital or labor against the
A: other) and article 21.
1. Affirmative misrepresentation of a
material fact; An employer may be held liable for damages if
2. Defendant knew that statement being the manner of dismissing the employee is
made was false; contrary to morals, good customs and public
3. Intent; policy. This may be done by false imputation of
4. Causation; misdeed to justify dismissal or any similar manner
5. Justifiable reliance; and of dismissal which is done abusively.
6. Damages
C. INTERFERENCE WITH RELATIONS
I. SEDUCTION
1. GENERAL
Q: When is a defendant liable for damages in
case of seduction? A. CONCEPT

A: Seduction, by itself, is an act which is contrary B. KINDS
to morals, good customs and public policy. The
defendant is liable if he employed deceit, Q: What are the four kinds of interference?
enticement, superior power or abuse of
confidence in successfully having sexual A: Interference with:
intercourse with another.
1. Family relations;
Note: There is liability even if there is no breach of 2. Social relations;
promise to marry. 3. Economic relations; and
4. Political relations.
Q: What is included in “sexual assault”?
2. FAMILY RELATIONS
A: The defendant would be liable for all forms of
sexual assault. These include rape, acts of A. ALIENATION OF AFFECTION
lasciviousness and seduction.
Q: What is alienation of affection?
NOTE: Gender is immaterial in seduction and
sexual assault. A: This consists of depriving one spouse of the
affection, society, companionship and comfort of
J. UNJUST DISMISSAL the other. (Aquino, T., Torts and Damages, 2005,
Second Ed., p.480)
Q: What is the rule on dismissal of employees?
Note: The Family Code imposes on the spouses
A: It is a basic rule that an employer has a right to the obligation to live together, observe mutual
dismiss an employee in the manner and on the love, respect and fidelity, and render mutual help
grounds provided for under the NCC. If the and support. (Article 68) Interference with such
dismissal is for a valid cause, his dismissal is
523

may result in the tort liability of alienation of even if it results in separation, does not give the
affection. injured party a right of action.

The gist of the tort is an interference with one In such case, malice must be established and it
spouse’s mental attitude toward the other and must appear that the defendant’s acts were the
the conjugal kindness of marital relations controlling cause of the loss of affection.
resulting in some actual conduct which materially
affects it. B. LOSS OF CONSORTIUM

Q: In general, what is the scope of the tort Q: What is loss of consortium?
‘alienation of affections’?
A: A spouse has a legal obligation to live with his
A: It extends to all cases of wrongful interference or her spouse. If a spouse does not perform his or
in the family affairs of others whereby one spouse her duty to the other, he may be held liable for
is induced to leave the other spouse or to conduct damages for such omission because the same is
himself or herself in a manner that the comfort of contrary to law, morals and good customs.
married life is destroyed.
Moral damages were awarded because of the
Q: Who may be liable for alienation of wife’s refusal to perform her wifely duties, her
affections? denial of consortium and desertion of her
husband. Her acts constitute a willful infliction of
A: The defendant who purposely entices the injury upon her husband’s feelings in a manner
spouse of another, to alienate his or her contrary to morals, good customs or public policy.
affections with his or her spouse, even if there are (Tenchaves v. Escaño, G.R. No. L‐19671, July 26,
no sexual intimacies is liable for damages under 1966)
this article. Likewise, a person who prevented the
reconciliation of spouses after their separation is C. CRIMINAL CONVERSATION (ADULTERY)
liable for alienation of affections.
Q: When is adultery committed?
Note: It is not necessary that there is adultery or the
spouse is deprived of household services. A: Adultery is committed by any married woman
who shall have sexual intercourse with a man not
Q: What are some cases where there is no tort her husband and by the man who has carnal
liability for alienation of affections? knowledge of her knowing her to be married,
even if the marriage was subsequently declared
A: void. (Art. 333, RPC)
1. A woman cannot be made liable for
alienation of the affections of the Note: Concubinage is committed by a husband who
husband (of another woman) for being shall:
merely the object of the affections of 1. keep a mistress in the conjugal dwelling;
said husband. To be liable, she must 2. have sexual intercourse with her, under
have done some active acts calculated scandalous circumstances, with a woman
to alienate the affections of the not his wife; or
husband. She must, in a sense, be the 3. cohabit with her in any other place. (Art.
“pursuer, not merely the pursued”; 334, RPC)
2. A prostitute is not liable for alienation
Liability for adultery or concubinage based on the
of affections of the husband for having
law on torts: not only moral damages but also for
sexual intimacies with him on a chance
other appropriate damages.
occasion.
3. When there is no more affection to No moral damages is due in case of bigamy.
alienate.

Q: May parents be liable for alienation of
affections?

A: Yes. However, parents are presumed to act for
the best interest of their child. The law recognizes
the right of a parent to advise his/her child and
when such advise is given in good faith, the act,
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3. SOCIAL RELATIONS Q: What is the extent and nature of the liability
of the intermeddler?
A. MEDDLING WITH OR DISTURBING FAMILY
RELATIONS A: His liability is solidary and cannot be more than
the liability that will be incurred by the party in
See Interference with family relations. whose behalf he intermeddled. Otherwise, that
will result in injustice and unfairness.
B. INTRIGUING TO CAUSE ANOTHER TO BE
ALIENATED FROM HIS FRIENDS Q: Is malice essential to make the intermeddler
liable?
Q: Who may be held liable for the tort intriguing
to cause another to be alienated from his A:
friends? GR: Yes.
XPN: If the intention of the intermeddler is
A: A person who committed affirmative acts honest and laudable such as when the
intended to alienate the existing friendship of one interference is intended to protect the
with his friends is liable for damages. (Pineda, contracting party he is intermeddling for,
2004) from danger to his life or property, he should
not be made liable for damages for the
4. ECONOMIC RELATIONS breach of the contract.

A. INTERFERENCE WITH CONTRACTUAL B. UNFAIR COMPETITION
RELATIONS
Q: What is included in unfair competition?
Q: What is interference with contract?
A: Art. 28, NCC provides for unfair competition
A: Any third person who induces another to which includes:
violate his contract shall be liable for damages to 1. Passing off or disparagement of
the other contracting parties. (Art.1314, NCC) products
2. Interference with contractual relations
Q: Why is interference with contract tortuous? 3. Interference with prospective
advantage
A: Such interference is tortious because it violates 4. Fraudulent misappropriation against a
the right of the contracting parties to fulfill the competition
contract and to have it fulfilled, to reap the profits 5. Monopolies and predatory pricing
resulting therefrom, and to compel the
performance by the other party. Q: What is predatory pricing?

Q: What are the elements of interference to A: It is a practice of selling below costs in the
contractual realation? short run in the hope of obtaining monopoly
gains later, after driving the competition from the
A: market.
1. existence of a valid contract;
2. knowledge on the part of the third 5. POLITICAL RELATIONS
person of the existence of the contract;
3. interference of the third person without A. VIOLATION OF RIGHT TO SUFFRAGE (NCC,
legal justification or excuse. ART. 32)

Q: What is interference with prospective Q: What is the rule in case of violation of the
advantage? right to suffrage?

A: If there is no contract yet and the defendant is A: Under Article 32 NCC, any public officer or
only being sued for inducing another not to enter employee, or any private individual, who directly
into a contract with the plaintiff, the tort or indirectly obstructs, defeats, violates or in any
committed is appropriately called interference manner impedes or impairs any of the following
with prospective advantage. rights and liberties of another person shall be
liable to the latter for damages:
xxx (5) Freedom of suffrage; (Art. 32, NCC)
525

B. VIOLATION OF OTHER POLITICAL RIGHTS 2. In determining whether plaintiff
(FREEDOM OF SPEECH, PRESS, ASSEMBLY AND consented, defendant must reasonably
PETITION, ETC.) interpret her overt act and
manifestations of her feelings.
See Violation of Constitutional Rights
Note: The defendant’s subjective state is
6. DEFENSES based on the plaintiff’s objective actions.

A. ABSENCE OF ELEMENT 3. Plaintiff has burden of proof to show
intent to commit the act, lack of
Q: What is the defense on interference? consent, and harm.

A: The defendants are free from liability if they Q: Is consent a defense if the plaintiff or
can prove that at the time of the commission, the offended party is a minor?
plaintiff knew of the act of interference or
omission. A: No. For one to surrender the right to be free
from intentional interference by others, one must
B. PRIVILEGE have the mental capacity to consent. Defendant
can be liable despite the fact that the plaintiff was
Q: What is the defense of privilege in torts subjectively willing and communicated that
cases? willingness to the defendant.

A: To say that an act is “privileged” connotes that NOTE: In common law countries, most courts have
the actor owes no legal duty to refrain from such applied statutory rape statutes in civil cases
contact. regardless of proof that the plaintiff was able to
understand the consequences of her act and
Q: Distinguish consensual and non‐consensual consent.
privilege.
Q: When is consent not necessary in order to
A: Consensual privileges depend on the plaintiff absolve one from the injuries he caused to
agreeing to the defendant’s otherwise tortious another?
act. On the other hand, nonconsensual privileges
shield the defendant from liability for otherwise A: Conduct that injures another does not make
tortious conduct even if the plaintiff objects to the actor liable to the other, even though the
the defendant’s conduct. other has not consented to it if:
1. an emergency makes it necessary or
1. CONSENT apparently necessary to act before
there is opportunity to obtain consent
Q: When is consent a defense in torts cases and or one empowered to consent for him,
what is its basis? and
2. the actor has no reason to believe that
A: Typically, one cannot hold another liable in tort the other would decline.
for actions to which one has consented. This is
frequently summarized by the phrase "volenti non Q: What is the rule if consent is procured by
fit injuria" (Latin: "to a willing person, no injury is fraud or duress?
done" or "no injury is done to a person who
consents"). It operates when the claimant either A: Consent will not shield the defendant from
expressly or implicitly consents to the risk of loss liability if it is procured by means of fraud or
or damage. duress.

Note: Courts invalidate consent procured by duress
Note: Consent is willingness in fact for the conduct
to occur. when defendants threaten the plaintiff or plaintiff’s
loved ones with physical harm.

Q: What are some rules in determining whether
consent is present as a defense?

A:
1. It need not be communicated to the
defendant.
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2. SELF‐DEFENSE AND DEFENSE OF OTHERS Note: A party claiming self‐defense must prove not

only that he acted honestly in using force, but that
SELF DEFENSE his fears were reasonable under the circumstances,
and the means of self‐defense were reasonable.
Q: Why is self defense a defense in tort cases?
DEFENSE OF OTHERS
A: An actor is privileged to use reasonable force,
not intended or likely to cause death or serious Q: Is a person protecting a total stranger liable?
bodily harm, to defend himself against
unprivileged harmful contract which he A: The self‐defense privilege extends to
reasonably believes that another is about to protecting total strangers as well.
inflict.
Q: May the intervener use any means or amount
Q: When is an actor privileged to defend of force in defending the other?
himself?
A: No. The force that may be used by an
A: An actor is privileged to defend himself against intervener to repel an attack on another is
another by force likely to cause death or serious measured by the force that the other could
bodily harm when he reasonably believes that: lawfully use.

1. the other is about to inflict upon him an Q: What is the consequence of a mistake on the
intentional contact and part of the intervener?
2. he is thereby put in peril of death or
serious bodily harm which can safely be A: If the intervener is mistaken, even reasonably
prevented only by immediate use of mistaken, the privilege is unavailable if it would
such force. not be available to the person to be protected.

NOTE: Court requires objective and subjective belief NOTE: The intervener’s mistake need only be
(reasonable person could have seen the situation as reasonable; there is no need to show that the victim
dangerous and subject believed that he was in also had the privilege to defend himself.
danger).
3. DEFENSE OF PROPERTY
Q: When does the privilege of self defense exist
and when does it not exist? Q: Up to what extent is an actor privileged to
defend his property from intrusions?
A: The privilege exists even if the actor believes
he can avoid defending himself by: A: An actor is privileged to use reasonable force,
1. retreating within his dwelling place, or not intended or likely to cause death or serious
2. permitting the other to intrude upon his bodily harm, to prevent or terminate another’s
dwelling place, or intrusion upon the actor’s land if:
3. abandoning an attempt to effect a 1. the intrusion is not privileged;
lawful arrest. 2. the actor reasonably believes that the
intrusion can be prevented only by the
The privilege does not exist if the actor believes force used; and
that he can avoid defending himself by: 3. the actor has first requested the other
1. retreating in any place other than his to desist or the actor believes such
dwelling place or request will be useless or substantial
2. relinquishing the exercise of any right harm will be done before it can be
other than his privilege to prevent made.
intrusion onto his dwelling place.
Note: The intentional infliction which is intended or
Q: May the actor use any means in order to likely to cause death or serious bodily harm, for the
defend himself? purpose of preventing or terminating the other’s
intrusion upon the actor’s possession of land, is
privileged only if the actor reasonably believes that
A: The actor is not privileged to use any means of
the intruder is likely to cause death or serious bodily
self defense which is intended or likely to cause a
harm.
bodily harm in excess of that which the actor
correctly or reasonably believes to be necessary
for his protection.
527

4. NECESSITY 5. AUTHORITY OF LAW

The owner or lawful possessor of a thing has the C. PRESCRIPTION
right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may See Defenses; Prescription
use such force as may be reasonably necessary
to repel or prevent an actual or threatened D. WAIVER
unlawful physical invasion or usurpation of his
property. (Art. 429, NCC) See Persons: Waiver of Rights

Q: Is the owner’s right provided for in the said E. FORCE MAJEURE
article an absolute right?
Q: What are the two general causes of fortuitous
A: No. In the following instances, this right may events?
not be invoked by the owner:
A:
1. One may sacrifice the personal property 1. By nature, such as earthquakes, storms,
of another to save his life or the lives of floods, epidemics, fires, etc.; and
his fellows; 2. By the act of man, such as an armed
2. One is privileged by necessity to invasion, attack by bandits,
trespass when there is a serious threat governmental prohibitions, robbery,
to life and no other lifesaving option is etc.
available; and
3. The owner of property may not eject a Q: What are the essential characteristics of
trespasser if the trespasser requires fortuitous event?
entry to protest himself and his
property from harm. A:
1. The cause of the unforeseen and
Note: In these instances, intrusion is said to be unexpected occurrence, or of the failure
privileged. of the debtor to comply with his
obligation, must be independent of the
The necessity privilege to enter the land of another human will;
in order to avoid serious harm is coupled with an 2. It must be impossible to foresee the
obligation on the part of the entrant to pay for event which constitutes the caso
whatever harm he caused. fortuito, or if it can be foreseen, it must
be impossible to avoid;
MISCELLANEOUS PRIVILEGES 3. The occurrence must be such as to
render it impossible for the debtor to
Q: What are the miscellaneous or other fulfill his obligation in a normal manner;
privileges in connection with necessity as a and
defense? 4. The obligor must be free from any
participation in the aggravation of the
A: injury resulting to the creditor.
1. To at least some extent, teachers and
parents are exempt from battery claims Q: When is there liability for damages caused by
brought on behalf of children they have fortuitous events?
physically disciplined;
2. Other privileges include those relating A: As an exception to the general rule that a
to the arrest of lawbreakers and the person is not liable if the cause of the damage
prevention of crime, the enforcement was an event which could not be foreseen or
of military orders, and the recapture of which though foreseen was inevitable
land and possessions. (fortuitous), if the negligence of the defendant
concurred with the fortuitous event or resulted in
Note: The reasonableness of the actor’s perception
the aggravation of the injury to the plaintiff, he
of the need to use force, as well as the
will be liable even if there was a fortuitous event.
reasonableness of the harm actually inflicted, are
typically the touchstones upon which the availability

of the privilege turns. If upon the happening of a fortuitous event of an
act of God, there concurs a corresponding fraud,
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TORTS AND DAMAGES
negligence, delay or violation or contravention of 3. Social Value or Utility of Action – Any

the tenor of the obligation as provided for in act subjecting an innocent person to
Article 1170, NCC, which results in loss or unnecessary risk is a negligent act if the
damage, the obligor cannot escape liability. risk outweighs the advantage accruing
to the actor and even to the innocent
person himself.
VIII. NEGLIGENCE
4. Time of the day – May affect the
A. CONCEPT diligence required of the actor (Art.
1173); e.g. a driver is required to
Q: What is negligence? exercise more prudence when driving at
night
A: The omission of that degree of diligence which
is required by the nature of the obligation and 5. Gravity of the Harm to be Avoided –
corresponding to the circumstances of the Even if the odds that an injury will result
persons, of the time and place. (Art. 1173, NCC) are not high, harm may still be
considered foreseeable if the gravity of
Q: What is the test of negligence? harm to be avoided is great.
6. Alternative Cause of Action – If the
A: The test is: Would a prudent man, in the alternative presented to the actor is too
position of the tortfeasor, foresee harm to the costly, the harm that may result may
person injured as a reasonable consequence of still be considered unforeseeable to a
the course about to be pursued? If so, the law reasonable man. More so if there is no
imposes a duty on the actor to take precaution alternative thereto.
against its mischievous results, and failure to do
so constitutes negligence. (Picart v. Smith, G.R. 7. Place – A man who should occasion to
No. L‐12219, Mar. 15, 1918.) discharge a gun on an open and
extensive marsh, or in a forest would be
Q: What are the degrees of negligence? required to use less circumspection and
Distinguish. care, then if he were to do the same
thing in an inhabited town, village or
A: city.
1. Simple negligence – want of slight care
and diligence only 8. Violation of Rules and Statutes
a. Statutes
2. Gross negligence – there is a glaringly b. Administrative Rules
obvious want of diligence and implies c. Private Rules of Conduct
conscious indifference to
consequences; pursuing a course of 9. Practice and Custom – A practice which
conduct which would probably and is dangerous to human life cannot ripen
naturally result to injury; utter disregard into a custom which will protect anyone
of the consequences who follows it (Yamada v. Manila
Railroad, G.R. No.10073, Dec. 24, 1915).

Q: What are the circumstances to be considered Q: Will intoxication signify negligence?
in determining whether an act is negligent?
A:
A: GR: Mere intoxication is not negligence per se
1. Person Exposed to the Risk – A higher nor establishes want of ordinary care. But it
degree of diligence is required if the may be one of the circumstances to be
person involved is a child. considered to prove negligence. (Wright v.
Manila Electric Railroad & Light Co., GR No. L‐
2. Emergency – The actor confronted with 7760, Oct. 1, 1914)
an emergency is not to be held up to
the standard of conduct normally XPN: It is presumed that a person driving a
applied to an individual who is in no motor vehicle is negligent if at the time of the
such situation. mishap, he was violating traffic regulations.
(Art. 2185)
529

Q: What is contributory negligence? Q. Does the standard of conduct applied to
adults apply equally to children?
A: It is conduct on the part of the injured party,
contributing as a legal cause to the harm he has A.
suffered, which falls below the standard to which GR: The action of a child will not necessarily
he is required to conform for his own protection be judged according to the standard of an
(Valenzuela v. CA, G.R. No. 115024, Feb. 7, 1996). adult.
XPN: If the minor is mature enough to
Q: What is the doctrine of comparative understand and appreciate the nature and
negligence? consequences of his actions. In such a case, he
shall be considered to have been negligent.
A: The negligence of both the plaintiff and the
defendant are compared for the purpose of Note: R.A. 9344 (Juvenile Justice and Welfare Act of
reaching an equitable apportionment of their 2006): 15 years of age or younger – age of absolute
respective liabilities for the damages caused and irresponsibility.
suffered by the plaintiff. (Pineda, p. 50, 2009 ed.)
Note: The relative degree of negligence of the Nevertheless, absence of negligence does not
parties is considered in determining whether, and absolutely excuse the child from liability, as his
properties, if any, can be held subsidiarily liable. Nor
to what degree, either should be responsible for
will such absence of negligence excuse the child’s
his negligence (apportionment of damages).
parent’s vicarious liability.

Q: What is “diligence before the fact”?
B. GOOD FATHER OF A FAMILY OR REASONABLY

PRUDENT MAN
A: The conduct that should be examined in

negligence cases is prior conduct or conduct prior
Q: What is the concept of a good father of the
to the injury that resulted or, in proper cases, the
family (pater familias)?
aggravation thereof.

A: The Supreme Court described a good father of

a family by first stating who is not. He is not and is

not supposed to be omniscient of the future;

rather, he is one who takes precautions against

any harm when there is something before him to

suggest or warn him of the danger or to foresee it

(Picart v. Smith, G.R. No. L‐12406, Mar. 15, 1918).

Note: A good father of a family is likewise referred

to as the reasonable man, man of ordinary
intelligence and prudence, or ordinary reasonable

prudent man. In English law, he is sometimes
referred to as the man on top of a Clapham
omnibus. (Aquino, 2005)

Q: What is the test of negligence?

A: The test is: Would a prudent man, in the
position of the tortfeasor, 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 take precaution
against its mischievous results, and failure to do
so constitutes negligence. (Picart v. Smith, G.R.
No. L‐12219, Mar. 15, 1918.)

530
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C. STANDARD OF CARE

STANDARD OF CONDUCT or DEGREE OF CARE REQUIRED
In General
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 (Article 1173, 2nd paragraph, NCC).

Note: Diligence of a good father of a family ‐ bonos pater familias ‐ A reasonable man is deemed to have knowledge of the facts that
a man should be expected to know based on ordinary human experience. (PNR v. IAC, GR No. 7054, Jan. 22, 1993)
Persons who have Physical Disability
GR: A weak or accident prone person must come up to the standard of a reasonable man, otherwise, he will be
considered as negligent.

XPN: If the defect amounts to a real disability, the standard of conduct is that of a reasonable person under like
disability.
Experts and Professionals
GR: They should exhibit the case and skill of one who is ordinarily skilled in the particular field that he is in.

Note: This rule does not apply solely or exclusively to professionals who have undergone formal education.

XPN: When the activity, by its very nature, requires the exercise of a higher degree of diligence
e.g. Banks; Common carriers
Insane Persons
The same rule applies under the New Civil Code. The insanity of a person does not excuse him or his guardian form
liability based on quasi‐delict. (Arts. 2180 and 2182, NCC). This means that the act or omission of the person
suffering from mental defect will be judged using the standard test of a reasonable man.

The bases for holding a permanently insane person liable for his torts are as follows:
Where one of two innocent person must suffer a loss it should be borne by the one who occasioned it;
To induce those interested in the estate of the insane person (if he has one) to restrain and control him; and
The fear that an insanity defense would lead to false claims of insanity to avoid liability. (Bruenig v. American
Family Insurance Co., 173 N.W. 2d 619[1970]).

Note: Under the RPC, an insane person is exempt from criminal liability. However, by express provision of law, there may be civil
liability even when the actor is exempt from criminal liability. An insane person is still liable with his property for the consequences
of his acts, though they performed unwittingly. (US v. Baggay, Jr. G.R. No. 6706, Sept. 1, 1911)
Employers
That degree of care as mandated by the Labor Code or other mandatory provisions for proper maintenance of the
work place or adequate facilities to ensure the safety of the employees.

Note: Failure of the employer to comply with mandatory provisions may be considered negligence per se.
Employees
Employees are bound to exercise due care in the performance of their functions for the employers. Liability may be
based on negligence committed while in the performance of the duties of the employee (Araneta v. De Joya, G.R.
No. 83491, Aug. 27, 1990)
Owners, Proprietors and Possessors of Property
GR: The owner has no duty to take reasonable care towards a trespasser for his protection or even to protect him
from concealed danger.
XPN:
1. Visitors
2. Tolerated Possession
3. Doctrine of Attractive Nuisance
4. State of Necessity
Doctors
If a General Practitioner – Ordinary care and diligence in the application of his knowledge and skill in the practice of
his profession

If a Specialist – The legal duty to the patient is generally considered to be that of an average physician.
Lawyers
An attorney is bound to exercise only a reasonable degree of care and skill, having reference to the business he
undertakes to do (Adarne v. Aldaba, Adm. Case No. 80, June 27, 1978).

531

1. NCC, ART. 1173 D. UNREASONABLE RISK OF HARM

Q: What is the general standard of diligence Q: In determining whether a person has exposed
provided for under the NCC? himself to an unreasonable great risk, what must
be present?
A: Bonus Pater Familias or that of a good father of
a family. A: Reasonableness, the elements of which are as
follows:
Note: If the law or contract does not state the 3. Magnitude of the risk
diligence which is to be observed in the 4. Principal object
performance, that which is expected of a good 5. Collateral object
father of a family shall be required. (Art. 1173 (2)) 6. Utility of the risk
7. Necessity of the risk
Q: What is the rule in case of fault or negligence
of an obligor? If the magnitude of the risk is very great and the
principal object, very valuable, yet the value of
A: Art. 1173. The fault or negligence of the obligor the collateral object and the great utility and
consists in the omission of that diligence which is necessity of the risk counterbalanced those
required by the nature of the obligation and considerations, the risk is made reasonable.
corresponds with the circumstances of the
persons, of the time and of the place. When Note: In the Philippines, the courts do not use any
negligence shows bad faith, the provisions of formula in determining if the defendant committed a
Articles 1171 and 2201, paragraph 2, shall apply. negligent act or omission. What appears to be the
norm is to give negligence a common sense, intuitive
NOTE: Art. 1171. Responsibility arising from fraud is interpretation.
demandable in all obligations. Any waiver of an
action for future fraud is void. In the field of negligence, interests are to be
balanced only in the sense that the purposes of the
Art. 2201. In contracts and quasi‐contracts, the actor, the nature of his act and the harm that may
damages for which the obligor who acted in good result from action or inaction are elements to be
faith is liable shall be those that are the natural and considered. Some may not be considered depending
probable consequences of the breach of the on the circumstances.
obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the The following are circumstances to be considered:
obligation was constituted.
1. Time
In case of fraud, bad faith, malice or wanton 2. Place
attitude, the obligor shall be responsible for all 3. Emergency
damages which may be reasonably attributed to the 4. Gravity of harm to be avoided
non‐performance of the obligation. 5. Alternative course of action
6. Social value or utility of activity
2. EMERGENCY RULE 7. Person exposed to the risk

Q: What is the emergency rule? E. EVIDENCE

A: One who suddenly finds himself in a place of F. PRESUMPTION OF NEGLIGENCE
danger, and is required to act without time to
consider the best means that may be adopted to 1. LEGAL PROVISIONS
avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently Q: Discuss the provisions relative to
and upon reflection may have been a better presumptionof negligence.
method, unless the emergency in which he finds
himself is brought about by his own negligence. A: Persons are generally presumed to have taken
ordinary care of his concerns.There are however
Note: Emergency rule exempts common carriers. exceptions when negligence is presumed.

1. Article 2184. xxx. It is disputably
presumed that a driver was negligent, if
he had been found guilty of reckless
driving or violating traffick regulations
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TORTS AND DAMAGES
at least twice within the next preceding Q: What are some cases where the doctrine was
two months. Xxx held to be inapplicable?

2. Article 2185. Unless there is proof to A:
the contrary, it is presumed that a 1. Where there is direct proof of absence
person driving a motor vehicle has been or presence of negligence;
negligent if at the time of the mishap, 2. Where other causes, including the
he was violating any traffic regulation. conduct of the plaintiff and third
persons, are not sufficiently eliminated
Note: Proof of traffic violation required. by the evidence;
3. When one or more requisite is absent.
3. Article 2188. There is prima facie
presumption of negligence on the part G. DEFENSES
of the defendant if the death or injury
results from his possession of 1. COMPLETE
dangerous weapons or substances, such
as firearms and poison, except when Q: Why are they called “complete” defenses?
possession or use thereof is
indispensable in his occupation or A: They are called “complete” defenses because
business. they completely bar recovery as opposed to
partial defenses which only serve to mitigate
Note: Proof of possession of dangerous liability.
weapons or substances required.
a. ABSENCE OF ELEMENT

2. RES IPSA LOQUITUR (1) DUE DILIGENCE

Q: What does res ipsa loquitur mean? See Rules on Degree or Standard of Care

A: The thing speaks for itself. The fact of the (2) ACTS OF PUBLIC OFFICERS
occurrence of an injury, taken with surrounding
circumstances, may permit an inference or raise a b. ACCIDENT OR FORTUITOUS EVENT
presumption of negligence, or make out a
plaintiff’s prima facie case, and present a See Force Majeure or Fortuitous Event
question of fact for defendant to meet with an
explanation. c. DAMNUM ABSQUE INJURIA

Note: However, res ipsa loquitur is not a rule of Q: What is meant by damnum absque injuria?
substantive law and, as such, does not create nor
constitute an independent or separate ground of A: There is no liability even if there is damage
liability. Instead, it is considered as merely because there was no injury.
evidentiary or in the nature of a procedural rule.
Note: There can be damage without injury in those
Q: What are the requisites for the application of instances in which the loss or harm was not the
the doctrine of res ipsa loquitur? result of a violation of a legal duty. In such cases, the
consequences must be borne by the injured person
A: alone.
1. That the accident is of a kind which
ordinarily does not occur in the absence Q: What is injury?
of someone’s negligence;
2. It is caused by an instrumentality within A: it is the legal invasion of a legal right.
the exclusive control of the
defendant/s; and Q: What is damage?
3. The possibility of contributing conduct
which would make plaintiff responsible A: it is the loss, hurt or harm which results from
is eliminated. the injury. They are the recompense or
compensation awarded for the damage suffered.

533

Q: What is meant by the maxim qui jure suo risks which are usually present in such
utitur nullum damnum facit? activities.

A: One who exercises a right does no injury. 4. Defendant’s negligence?
A: When the plaintiff is aware of the
d. AUTHORITY OF LAW risk created by the defendant’s
negligence, yet he voluntarily proceed
e. ASSUMPTION OF RISK to encounter it, there is implied
assumption of risk on the part of the
Q: What is meant by volenti non fit injuria? plaintiff.

A: To a willing person, no injury is done. f. LAST CLEAR CHANCE

Q: What are the elements of the doctrine of See Last Clear Chance
assumption of risk?
g. PRESCRIPTION
A:
1. The plaintiff must know that the risk is Q: What is the prescriptive period for quasi‐
present; delict?
2. He must further understand its nature;
and A: Four (4) years reckoned from the date of the
3. His choice to incur it is free and accident.
voluntary.
h. WAIVER
Q: What are the two kinds of assumption of risk?
See Persons: Waiver of Rights.
A:
1. Express waiver of the right to recover; i. DOUBLE RECOVERY
2. Implied assumption
a. Dangerous Conditions Q: What is the rule against double recovery?
b. Contractual Relations
c. Dangerous Activities A: The plaintiff cannot recover damages twice for
d. Defendant’s negligence the same act or omission of the defendant. (Art.
2177, NCC)
Q: What is meant by:
1. Dangerous conditions?
A: A person who, knowing that he is
exposed to a dangerous condition,
voluntarily assumes the risk of such
dangerous condition may not recover
from the defendant who maintained
such dangerous condition.

2. Contractual relations?
A: There may be an implied assumption
of risk if the plaintiff entered into
contractual relations with the
defendant. By entering into a
relationship freely and voluntarily
where the negligence of the defendant
is obvious, the plaintiff may be found to
accept and consent to it, and to
undertake to look out for himself and to
relieve the defendant of the duty.

3. Dangerous activities?
A: A person who voluntarily participates
in dangerous activities assumes the
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IX. SPECIAL LIABILITY IN PARTICULAR ACTIVITIES 2. Design defect – defects resulting from

design and formulas.
A. GENERAL 3. Presentation defect – defects resulting
from handling, making up, presentation
1. CONCEPT or packing of the products.
4. Absence of Appropriate Warning –
B. PRODUCTS LIABILITY defect resulting from the insufficient or
inadequate information on the use and
Q: What is product and service liability? hazards of the products.

A: Product Liability is the law which governs the Q: What are the defenses of a manufacturer and
liability of manufacturers and sellers for damages supplier?
resulting from defective products. It is meant to
protect the consumers by providing safeguards A:
when they purchase or use consumer products. The manufacturer shall not be liable when it
(Aquino, T., Torts and Damages, 2005, Second Ed.) evidences:
1. that it did not place the product on the
market;
1. MANUFACTURERS OR PROCESSORS 2. that although it did place the product
on the market such product has no
a. ELEMENTS defect;
3. that the consumer or the third party is
b. CONSUMER ACT solely at fault.

Q: What is the consumer act (RA 7394)? The supplier shall not be liable when it is proven:
1. that there is no defect in the service
A: Consumer Act prohibits fraudulent sales acts or rendered;
practices. Chapter I of Title III expressly provides 2. that the consumer or the third party is
for protection against defective, unfair and solely at fault.
unconscionable sales acts and practices. The Act
likewise contains provisions imposing warranty Q: What are the remedies of a consumer in the
obligations on the manufacturers and sellers. This consumer act?
Act also imposes liability for defective service
“independently of fault”. A: Section 60 of the law expressly provides that
the court may grant injunction restraining the
Q: Who are the persons made liable under the conduct constituting the contravention of illegal
consumer act? sales act and practices and/or actual damages
and such other orders as it thinks fit to redress
A: The strict liability under the Act is imposed on injury to the person affected by such conduct.
the manufacturer.

NOTE: A manufacturer is any person who
manufactures, assembles or processes consumer
products, except that if the goods are manufactured,
assembled or processed for another person who
attaches his own brand name to the consumer
products, the latter shall be deemed the
manufacturer. In case of imported products, the
manufacturer’s representatives or, in his absence,
the importer, shall be deemed the manufacturer.
(Art. 4, RA 7394)

Q: What are the kinds of defects in products?

A:
1. Manufacturing defect – defects
resulting from manufacture,
construction, assembly and erection.
535

C. NUISANCE 2. PUBLIC NUISANCE AND PRIVATE NUISANCE

1. NUISANCE PER SE AND NUISANCE PER Q: What are the remedies against public
ACCIDENCE nuisances?

Q: What are the kinds of nuisance? A:
1. Prosecution under the RPC or any local
A: ordinance
1. As to the number of persons affected: 2. Civil action
a. Public (or common) – is one which 3. Abatement, without judicial proceeding
affects a community ir
neighborhood or considerable Q: Who may avail of remedies?
number of persons.
b. Private – is one which affects an A:
individual or few persons only. 1. Public officers
2. Other classification:
a. Nuisance Per Se – that kind of 2. Private persons ‐ if nuisance is specially
nuisance which is always a injurious to himself; the ff. steps
nuisance. By its nature, it is must be made:
always a nuisance all the time
under any circumstances i. demand be first made upon owner
regardless of location or or possessor of the property to
surroundings. abate the nuisance
b. Nuisance Per Accidens – that ii. that such demand has been
kind of nuisance by reason of rejected
location, surrounding or in a iii. that the abatement be approved
manner it is conducted or by the district health officer and
managed. executed with the assistance of
c. Temporary – that kind which local police
if properly attended does not iv. that the value of destruction does
constitute a nuisance. not exceed P3,000
d. Permanent – that kind which
by nature of structure creates Q: What is a private nuisance?
a permanent inconvenience.
e. Continuing – that kind which A: one that affects an individual or a limited
by its nature will continue to number of individuals only
exist indefinitely unless
abated Q: What are the remedies against private
f. Intermittent – that kind which nuisances?
recurs off and on may be
discontinued anytime. A:
g. Attractive Nuisance – one 1. Civil action
who maintains on his 2. Abatement, without judicial
premises dangerous proceedings
instrumentalities or
appliances of a character Q: Who may avail of remedies?
likely to attract children in
play, and who fails to exercise A:
ordinary care to prevent 1. Public officers
children from playing 2. Private persons ‐ if nuisance is specially
therewith or resorting injurious to himself; the ff.
thereto, is liable to a child of steps must be made:
tender years who is injured
thereby, even if the child is i. demand be first made upon owner
technically a trespasser in the or possessor of the property
premises. to abate the nuisance
ii. that such demand has been
rejected
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iii. that the abatement be approved 13. The right to take part in a peaceable
by the district health officer and assembly to petition the government
executed with the assistance of for redress of grievances;
local police 14. The right to be free from involuntary
iv. that the value of destruction does servitude in any form;
not exceed P3,000 15. The right of the accused against
excessive bail;
3. ATTRACTIVE NUISANCE 16. The right of the accused to be heard by
himself and counsel, to be informed of
Q: What is an attractive nuisance? the nature and cause of the accusation
against him, to have a speedy and
A: A dangerous instrumentality or appliance public trial, to meet the witnesses face
maintained in one’s premises which is likely to to face, and to have compulsory process
attract children at play. to secure the attendance of witness in
his behalf;
One who maintains an attractive nuisance on his 17. Freedom from being compelled to be a
estate without exercising due care is liable to a witness against one's self, or from being
child of tender years even if a trespasser. forced to confess guilt, or from being
induced by a promise of immunity or
Note: the attractiveness of the premises or of the reward to make such confession, except
dangerous instrumentality to children of tender when the person confessing becomes a
years is to be considered as an implied invitation, State witness;
which takes the children who accepted it out of the 18. Freedom from excessive fines, or cruel
category of a trespasser and puts them in the and unusual punishment, unless the
category of invitees, towards whom the owner of same is imposed or inflicted in
the premises or instrumentality owes the duty of accordance with a statute which has not
ordinary care
been judicially declared

unconstitutional; and
D. VIOLATION OF CONSTITUTIONAL RIGHTS
19. Freedom of access to the courts. (Art.

32, NCC)
Any public officer or employee, or any private

individual, who directly or indirectly obstructs,
1. VIOLATION OF CIVIL LIBERTIES
defeats, violates or in any manner impedes or

impairs any of the following rights and liberties of
Q: What is the rationale for the inclusion of Art.
another person shall be liable to the latter for
32 in the New Civil Code?
damages:

1. Freedom of religion;
A: The creation of an absolutely separate and
2. Freedom of speech;
independent civil action for the violation of civil
3. Freedom to write for the press or to
liberties is essential to the effective maintenance
maintain a periodical publication;
of democracy.
4. Freedom from arbitrary or illegal

detention;
E. VIOLATION OF RIGHTS COMMITTED BY PUBLIC
5. Freedom of suffrage;
OFFICERS
6. The right against deprivation of

property without due process of law;
Q: In what instances can a public officer be liable
7. The right to a just compensation when
for damages?
private property is taken for public use;

8. The right to the equal protection of the
A: When a member of a city or municipal police
laws;
force refuses or fails to render aid or protection
9. The right to be secure in one's person,
to any person in case of danger to life or
house, papers, and effects against
property, such peace officer shall be primarily
unreasonable searches and seizures;
liable for damages. (Art. 34, NCC)
10. The liberty of abode and of changing

the same;
An action may be brought by any person suffering
11. The privacy of communication and
from material or moral loss because a public
correspondence;
servant refuses or neglects, without just cause to
12. The right to become a member of
perform his official duty (ART, 27 NCC).
associations or societies for purposes

not contrary to law;
537

Requisites: b. Proprietors shall also be responsible for
i. defendant is a public officer charged damages caused:
with the performance of a duty in favor
of the plaintiff 1) By the explosion of machinery
ii. he refused or neglected without just which has not been taken care of
cause to perform such duty (ministerial) with due diligence, and the
iii. plaintiff sustained material or moral loss inflammation of explosive
as consequence of such non‐ substances which have not been
performance kept in a safe and adequate place;
iv. the amount of such damages, if 2) By excessive smoke, which may be
material harmful to persons or property;
3) By the falling of trees situated at or
Q: What is the intention of making public near highways or lanes, if not
officers liable under Art 34, NCC? caused by force majeure;
4) By emanations from tubes, canals,
A: Art. 34 is intended to afford a remedy against sewers or deposits of infectious
police officers who connive with bad elements, matter, constructed without
are afraid of them or simply indifferent to duty. precautions suitable to the place.
(Art. 2191, NCC)

F. PROVINCES, CITIES AND MUNICIPALITIES I. HEAD OF FAMILY

Q: What instance would make cities and See Persons Made Responsible For Others;
municipalities liable for damages? Parents

A: Cities and municipalities shall be subsidiarily X. STRICT LIABILITY
liable for the neglect of duty of a member of a city
or municipal police force. (Art. 34, NCC) Q: When is there strict liability?

A: There is strict liability if one is made
G. OWNER OF MOTOR VEHICLE independent of fault, negligence or intent after
establishing certain facts specified by law. It
Q: What is the liability of the owner of a vehicle includes liability for conversion and for injuries
in case of an accident? caused by animals, ultra‐hazardous activities and
nuisance.
A: In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who A. ANIMALS
was in the vehicle, could have, by the use of the
due diligence, prevented the misfortune. It is 1. POSSESSOR AND USER OF AN ANIMAL
disputably presumed that a driver was negligent,
if he had been found guilty or reckless driving or Q: Who is liable for damages caused by animals?
violating traffic regulations at least twice within
the next preceding two months. (Art. 2184, NCC) A: The possessor or whoever makes use of the
animal is liable independent of fault.
H. PROPRIETOR OF
BUILDING OR STRUCTURE OR THING Note: The only exception is when the damage is
caused by force majeure or by the person who
Q: What is the rule regarding the liability of suffered the damage.
proprietors of buildings:
Q: What are the rules on liability of owners for
A: damage caused by his animals?
a. The proprietor of a building or structure
is responsible for the damages resulting A:
from its total or partial collapse, if it 1. An owner is strictly liable for reasonably
should be due to the lack of necessary foreseeable damage done by a trespass
repairs. (Art. 2190, NCC) of his animals.
2. An owner is strictly liable to licensees
and invitees for injuries caused by wild
538
CIVIL LAW TEAM:

TORTS AND DAMAGES
animals as long as the injured person BOOK II – DAMAGES

did nothing to bring about the injury.
3. An owner is not strictly liable for I. GENERAL CONSIDERATIONS
injuries caused by domestic animals
unless he has knowledge of that A. CLASSIFICATION
particular animal's dangerous
propensities that are not common to Q: What are damages?
the species.
4. Strict liability will generally not be A: The pecuniary compensation, recompense or
imposed in favor of trespassers in the satisfaction for an injury sustained or as
absence of the owner's negligence. An otherwise expressed the pecuniary consequences
exception is recognized for injuries which the law imposes for the breach of some
inflicted by vicious watchdogs. duty or violation of some rights.

Note: A complaint for damages is personal in
B. NUISANCE nature (personal action)

See Nuisance. Q: What are the kinds of damages?

1. CLASSES A: MENTAL
1. Moral
See Nuisance. 2. Exemplary
2. EASEMENT AGAINST NUISANCE 3. Nominal
4. Temperate
Q: What is easement against nuisance? 5. Actual
6. Liquidated
A: Easement against nuisance is established by
Art. 682 – 683. It is intended to prohibit the
proprietor or possessor of a building or land from
committing nuisance therein through noise,
jarring, offensive odor, smoke, heat, dust, water,
glare, and other causes. (Gonzalez‐Decano, Notes
on Torts & Damages Under the Civil Code of the
Philippines, 2010, p166)

C. PRODUCTS LIABILITY

1. CONSUMER ACT

See Manufacturers or Processors; Consumer Act.

539

ACTUAL/
MORAL NOMINAL
COMPENSATORY
According to purpose
Actual or compensatory damages Awarded only to enable the Vindicating or recognizing the
simply make good or replace the injured party to obtain means, injured party’s right to a property
loss caused by the wrong. diversion or amusement that will that has been violated or invaded.
alleviate the moral suffering he (Tan v. Bantegui, 473 SCRA 663)
has undergone, by reason of
defendants culpable action.
(Robleza v. CA, 174 SCRA 354)
According to manner of determination
Claimant must produce competent No proof of pecuniary loss is No proof of pecuniary loss is
proof or the best evidence necessary. The assessment is left necessary. Proof that a legal right
obtainable such as receipts to to the discretion of the court has been violated is what is only
justify an award therefore. Actual according to the circumstances of required. Usually awarded in the
or compensatory damages cannot each case. However, there must absence of proof of actual
be presumed but must be proved be proof that the defendant damages.
with reasonable certainty. (People caused physical suffering etc.
v. Ereno, Feb. 22, 2000) (Compania Maritima v. Allied Free
Worker’s Union, G.R. No. L‐31379,
Aug. 29, 1988).

GR: Factual basis must be alleged.
Aside from the need for the
claimant to satisfactorily prove the
existence of the factual basis of
the damages, it is also necessary to
prove its causal relation to the
defendant’s act (Raagas v. Trava,
G.R. No. L‐20081, Feb. 27,1968;
People v. Manero, G.R. Nos.
86883‐85, Jan. 29, 1993).

XPN: Criminal cases. Moral
damages may be awarded to the
victim in criminal proceedings in
such amount as the court deems
just without need for pleading or
proof of the basis thereof (People
v. Paredes, July 30, 1998).
Special/Ordinary
Ordinary Special Special

Note: Ordinary Damages are those Note: Special Damages are those
generally inherent in a breach of a which exist because of special
typical contract circumstances and for which a
debtor in good faith can be held
liable if he had been previously
informed of such. circumstances.

540 CIVIL LAW TEAM:

TORTS AND DAMAGES
EXEMPLARY/
TEMPERATE LIQUIDATED
CORRECTIVE
According to purpose
When the court is convinced that Liquidated damages are frequently Exemplary or corrective damages
there has been such a loss, the agreed upon by the parties, either are intended to serve as a
judge is empowered to calculate by way of penalty or in order to deterrent to serious wrongdoings.
moderate damages rather than let avoid controversy on the amount (People v. Orilla, 422 SCRA 620)
the complainant suffer without of damages.
redress. (GSIS v. Labung‐Deang,
365 SCRA 341)
According to manner of determination
May be recovered when the court If intended as a penalty in 1. That the claimant is entitled to

finds that some pecuniary loss has obligations with a penal cause, moral, temperate or
been suffered but its amount proof of actual damages suffered compensatory damages; and
cannot, from the nature of the by the creditor is not necessary in
case, be proved with certainty. No order that the penalty may be 2. That the crime was committed
proof of pecuniary loss is demanded (Art. 1228, NCC). with 1 or more aggravating
necessary. No proof of pecuniary loss is circumstances, or the quasi‐delict
necessary. was committed with gross
negligence, or in contracts and
quasi‐contracts the act must be
accompanied by bad faith or done
in wanton, fraudulent, oppressive
or malevolent manner.

No proof of pecuniary loss is
necessary.
Special/Ordinary
Special Special Special

II. ACTUAL AND COMPENSATORY DAMAGES wrongful act which result in injury; need
not be specifically pleaded because the
A. CONCEPT law itself implies or presumes that they
resulted from the wrongful act.
Q: What are actual or compensatory damages?
2. Special damages – damages which are
A: It comprehends not only the value of the loss the natural, but not the necessary and
suffered but also that of the profits which the inevitable result of the wrongful act; an
obligee failed to obtain. The amount should be example would be attorney’s fees.
that which would put the plaintiff in the same
position as he would have been if he had not B. REQUISITES
sustained the wrong for which he is now getting
compensation or reparation. To recover damages, 1. ALLEGED AND PROVED WITH CERTAINTY
the amount of loss must not only be capable of
proof but must actually be proven. Q: Is it necessary that loss be proved?

Q: What are the kinds of actual or compensatory A:
damages? GR: Loss must be proved before one can be
entitled to damages.
A:
1. General damages – natural, necessary XPN: Loss need not be proved in the following
and logical consequences of a particular cases:
541

1. Liquidated damages previously agreed Q: What must be considered in determining the
upon; amount of damages recoverable?
Note: Liquidated damages take the
place of actual damages except when A: Much is left to the discretion of the court
additional damages are incurred. considering the moral and material damages
2. If damages other than actual are involved. There can be no exact or uniform rule
sought; for measuring the value of a human life. The
3. Forfeiture of bonds in favor of the amount recoverable depends on the particular
government for the purpose of facts and circumstances of each case.
promoting public interest or policy;
4. Loss is presumed. The life expectancy of the deceased or of the
beneficiary, whichever is shorter, is an important
2. NOT SPECULATIVE factor. Other factors that are usually considered
are:
Q: What is the required proof for actual 1. Pecuniary loss to plaintiff or beneficiary;
damages? 2. Loss of support;
3. Loss of service;
A: It is necessary that the claimant produces 4. Loss of society;
competent proof or the best evidence obtainable 5. Mental suffering of beneficiaries; and
such as receipts to justify an award therefore. 6. Medical and funeral expenses.
Actual or compensatory damages cannot be
presumed but must be proved with reasonable Thus, life expectancy is, not only relevant, but,
certainty (People v. Ereno, Feb. 22, 2000) also, an important element in fixing the amount
recoverable, although it is not the sole element
Any person who seeks to be awarded actual or determinative of said amount.
compensatory damages due to acts of another
has the burden of proving said damages as well as Q: Is it proper for the heirs to claim as damages
the amount thereof. Actual damages cannot be the full amount of earnings of the deceased?
allowed unless supported by evidence on the
record. The court cannot rely on speculations, A: No. Said damages consist, not of the full
conjectures or guesswork as to the fact and amount of his earnings, but of the support they
amount of damages (Banas, Jr. v. CA, Feb. 10, received or would have received from him had he
2000) not died in consequence of the negligence of the
bus' agent. Stated otherwise, the amount
C. COMPONENT ELEMENTS recoverable is not loss of the entire earning, but
rather the loss of that portion of the earnings
1. VALUE OF LOSS; UNREALIZED PROFIT which the beneficiary would have received. In
other words, only net earnings, not gross earning,
Q: What does actual damages cover? are to be considered.

A: It comprehends not only the value of the loss In fixing the amount of that support, the
suffered but also that of the profits which the "necessary expenses of his own living" should be
obligee failed to obtain. deducted from his earnings. Earning capacity, as
1. Dano emergente – loss of what a person an element of damages to one's estate for his
already possesses death by wrongful act, is necessarily his net
earning capacity or his capacity to acquire money,
2. Lucro cessante – failure to receive as a less the necessary expense for his own living. (Villa
benefit that would have pertained to Rey Transit, Inc. v. CA, et al., G.R. No. L‐25499 Feb.
him 18, 1970)

Note: Loss or impairment of earning capacity in
cases of temporary or permanent personal injury.

In case of business establishments, it covers injury to
the business standing or commercial credit.

542 CIVIL LAW TEAM:

TORTS AND DAMAGES
2. ATTORNEY’S FEES AND EXPENSES OF persons or incur expenses to protect his
LITIGATION interest

Q: What are the two concepts of attorney’s 3. INTEREST
fees? Distinguish one from the other.
Q: When can interest be part of damages?
A:
1. Ordinary A: In crimes and quasi‐delicts, the court may
2. Extraordinary appropriately impose interest on the amount of
the damages adjudicated by the court. The basis
ORDINARY EXTRAORDINARY of interest is the legal rate which is 6% per
Nature annum.
The reasonable
compensation paid D. EXTENT OR SCOPE OF ACTUAL DAMAGES
An indemnity for damages
to a lawyer for the
ordered by the court to be
legal services 1. IN CONTRACTS AND QUASI‐CONTRACTS
paid by the losing to the
rendered to a client
prevailing party in litigation
who has engaged Q: What should be the amount of actual
him damages?
Basis
The fact of A: The amount should be that which would put
employment of the Any cases authorized by law
the plaintiff in the same position as he would
lawyer by the client
have been if he had not sustained the wrong for
To whom payable
which he is now getting compensation or
Lawyer Client
reparation.

1. Property – value at the time of
Q: To what does Article 2208 pertain?
destruction, or market value, plus, in

proper cases, damages for the loss of
A: Article 2208 pertains to extraordinary
use during the period before
attorney’s fees. They are actual damages due to
replacement, value of use of premises,
the plaintiff. Plaintiff must allege the basis of his
in case of mere deprivation of
claim for attorney’s fees in the complaint.
possession.

Q: Are attorney’s fees recoverable as actual
2. Personal injury – Medical expenses; P
damages?
75,000 by way of civil indemnity in case

of rape committed or effectively
A:
qualified under which the death penalty
GR: Not recoverable.
is imposed by law, or P 50,000 in other
XPN: SWISS‐ MUD‐ ERC
rape cases.
1. Stipulation between parties

2. Recovery of Wages of household
3. Death – Wake and burial expenses, P
helpers, laborers and skilled workers
50,000 by way of civil indemnity ex
3. Actions for Indemnity under workmen's
delicto which requires no proof other
compensation and employer liability
than the fact of death of the victim and
laws
the assailant’s responsibility therefor.
4. Legal Support actions

5. Separate civil action to recover civil
Q: Can actual damages be mitigated?
liability arising from crime

6. Malicious prosecution
A: Yes, in the following cases:
7. Clearly Unfounded civil action or
1. For Contracts:
proceeding against plaintiff
a. Violation of terms of the contract
8. When Double judicial costs are awarded
by the plaintiff himself;
9. When Exemplary damages are awarded
b. Obtention or enjoyment of benefit
10. Defendant acted in gross & evident bad
under the contract by the plaintiff
faith in Refusing to satisfy plaintiff's just
himself;
& demandable claim
c. Defendant acted upon advice of
11. When defendant's act or omission
counsel in cases where the
Compelled plaintiff to litigate with 3rd
exemplary damages are to be
543

awarded such as under Articles Note: The article only mentioned heir.
2230, 2231 and 2232; Consequently, it cannot speak of
d. Defendant has done his best to devisees and legatees who are receiving
lessen the plaintiff’s injury or loss. support from the deceased.

2. For Quasi‐contracts: 3. The spouse, legitimate and illegitimate
a. In cases where exemplary damages descendants and ascendants of the
are to be awarded such as in deceased may demand moral damages
Article 2232; for mental anguish by reason of the
b. Defendant has done his best to death of the deceased.
lessen the plaintiff’s injury or loss.

3. For Quasi‐delicts: III. MORAL DAMAGES
a. That the loss would have resulted
in any event because of the A. CONCEPT
negligence or omission of another,
and where such negligence or Q: Why are moral damages awarded?
omission is the immediate and
proximate cause of the damage or A: They are awarded to enable the injured party
injury; to obtain means, diversions or amusement that
b. Defendant has done his best to will serve to alleviate the moral suffering he has
lessen the plaintiff’s injury or loss. undergone by reason of the defendant’s culpable
action.
2. IN CRIMES AND QUASI‐DELICTS
Q: How can the plaintiff recover moral damages?
Q: What is the amount of damages in cases
where death resulted from a crime or quasi‐ A:
delict? GR: The plaintiff must allege and prove:
1. The factual basis for moral damages
A: Art. 2206 provides that the amount of and
damages for death caused by a crime or quasi‐ 2. The causal relation to the defendant’s
delict shall be at least 50 thousand pesos, even act
though there may have been mitigating
circumstances. XPN: Moral damages may be awarded to the
In addition to the amount to be awarded, the victim in criminal proceedings without the
defendant shall also be liable for the following: need for pleading of proof or the basis
thereof.
1. Loss of the earning capacity of the
deceased, and the indemnity shall be B. WHEN RECOVERABLE
paid to the heirs of the latter; such
indemnity shall in every case be Q: When is moral damages recoverable?
assessed and awarded by the court,
unless the deceased on account of A: Moral damages may be recovered in the
permanent physical disability not following and analogous cases:
caused by the defendant, had no 1. A criminal offense resulting in physical
earning capacity at the time of his injuries;
death; 2. Quasi‐delicts causing physical injuries;
3. Seduction, abduction, rape, or other
2. If the deceased was obliged to give lascivious acts;
support according to the provisions of 4. Adultery or concubinage;
Article 291, the recipient who is not an 5. Illegal or arbitrary detention or arrest;
heir called to the decedent's inheritance 6. Illegal search;
by the law of testate or intestate 7. Libel, slander or any other form of
succession, may demand support from defamation;
the person causing the death, for a 8. Malicious prosecution;
period not exceeding five years, the 9. Acts mentioned in Article 309; and
exact duration to be fixed by the court;

544 CIVIL LAW TEAM:

TORTS AND DAMAGES
10. Actions referred to in Articles 21, 26, 2. IN ACTS REFERRED TO IN ARTS. 21, 26, 27, 28,

27, 28, 29, 30, 32, 34, and 35. (Art. 2219, 29, 32, 34 & 35, NCC
NCC)
Q: What are those tortuous acts referred to in
N534: To award moral damages, a court must be Articles 21, 26, 27, 28. 29, 32, 34 and 35 of the
satisfied with proof of the following: Civil Code, wherein the plaintiff may recover
1. an injury – whether physical, mental or moral damages?
psychological;
2. a culpable act or omission factually A:
established; 1. Willful acts contrary to morals, good
3. a wrongful act or omission of the customs or public policy
defendant as the proximate cause of the
2. Disrespect to the dignity, personality,
injury sustained by the claimant;
privacy and peace of mind of neighbors
4. the award of damages predicated on any
of the cases stated in Art. 2219.
and other persons
3. Refusal or neglect of a public servant to
Art. 2219, NCC speaks provides for criminal offense perform his official duty without just
resulting from physical injuries and quasi‐delicts cause
causing physical injuries. 4. Unfair competition in enterprise or in
labor
1. IN SEDUCTION, ABDUCTION, RAPE AND 5. Civil action for damages against accused
OTHER LASCIVIOUS ACTS acquitted on reasonable doubt
6. Violation of civil rights
Q: Is there any instance wherein the plaintiff 7. Civil action for damages against city or
may not prove the factual basis for moral municipal police force
damages as well as the causal relation to the 8. When the trial court finds no
defendant’s act? reasonable ground to believe that a
crime has been committed after a
A: Yes. In criminal proceedings for rape. preliminary investigation or when the
prosecutor refuses or fails to institute
Requisites: criminal proceedings.
1. There must be an injury whether
physical, mental or psychological, 3. IN CASES OF MALICIOUS PROSECUTION
clearly sustained by the claimant
2. There must be culpable act or omission Q: What is an action for malicious prosecution?
3. Such act or omission is the proximate
cause of the injury A: It has been defined as an action for damages
4. The damage is predicated on the cases brought by or against whom a criminal
cited in Art. 2219 prosecution, civil suit, or other legal proceeding
has been instituted maliciously and without
Q: In rape cases, is civil indemnity the same with probable cause, after the termination of such
moral damages? prosecution, suit or other proceeding in favor of
the defendant therein. (Diaz v. Davao Light and
A: No, civil indemnity is different from moral Power Co., 520 SCRA 510, 2007)
damages. It is distinct from and should not be
denominated as moral damages which are based Q: May moral and exemplary damages be
on different jural foundations and assessed by the granted if a marriage was dissolved on the
court in the exercise of sound discretion (People ground of psychological incapacity?
v. Caldona, G.R. No. 126019, Mar. 1, 2001).
A: By declaring petitioner as psychologically
When the fact of rape has been established, civil incapacitated, the possibility of awarding moral
indemnity is mandatory. If it is simple rape, civil damages was negated, which should have been
indemnity is P50,000.00. If there is qualifying proved by specific evidence that it was done
circumstance as to justify the imposition of death deliberately. Thus, as the grant of moral damages
penalty, it should be no less than P75,000.00 was not proper, it follows that the grant of
(People v. Banago ; People v. Mahinay, G.R. No. exemplary damages cannot stand since the Civil
109613, July 17, 1995) (Pineda, p. 247, 2009 ed.). Code provides that exemplary damages are
imposed in addition to moral, temperate,
liquidated or compensatory damages. Finally,
545

since the award of moral and exemplary damages pecuniary loss has been suffered but its amount
is no longer justified, the award of attorney's fees cannot be proved with certainty.
and expenses of litigation is left without basis. In cases where the resulting injury might be
(Buenaventura v. CA, G.R. No. 127358, Mar. 31, continuing and possible future complications
2005) directly arising from the injury while certain to
occur, are difficult to predict, temperate damages
can and should be awarded on top of actual or
IV. NOMINAL DAMAGES compensatory damages. In such cases there is no
incompatibility between actual and temperate
A. CONCEPT damages

Q: What is the purpose of nominal damages? Note: Elements:
1. Some pecuniary loss;
A: In order that a right of the plaintiff which has 2. Loss is incapable of pecuniary
been violated or invaded by the defendant may estimation;
be vindicated or recognized, and not for the 3. The damages awarded are
purpose of indemnifying the plaintiff for any loss reasonable.
suffered by him.

Note: Elements: VI. LIQUIDATED DAMAGES
1. Plaintiff has a right;
2. Such right is violated; A. CONCEPT
3. The purpose of awarding damages is to
vindicate or recognize the right violated. Q: What are liquidated damages?
A: Those agreed upon by the parties in a contract,
B. WHEN AWARDED to be paid in case of breach thereof.

Q: In what cases are nominal damages Q: When may liquidated damages be equitably
awarded? reduced?

A: nominal damages are small sums fixed by the A:
court without regard to the extent of the harm 1. Iniquitous or unconscionable
done to the injured party. They are damages in 2. Partial or irregular performance
name only and are allowed simply in recognition
of a technical injury based on a violation of a legal B. RULES GOVERNING IN CASE OF BREACH OF
right. CONTRACT

Note: Nominal damages cannot co‐exist with actual Q: What is the rule governing in case of breach
or compensatory damages because nominal of contract?
damages are recoverable when the damages
suffered cannot be proved with reasonable A: Art. 2228, NCC, provides that when the breach
certainty. The law presumes damage although actual of contract committed by the defendant is not
or compensatory damages are not proven. Award of the one contemplated by the parties in agreeing
actual, moral, temperate or moderate damages upon the liquidated damages, the law shall
preclude nominal damages. But it may be awarded determine the measure of damages, and not the
together with attorney’s fees. (Pineda, pp. 284‐285,
stipulation.
2009 ed)

VII. EXEMPLARY OR CORRECTIVE DAMAGES

V. TEMPERATE OR MODERATE DAMAGES
A. CONCEPT

A. CONCEPT
Q: What is the purpose of exemplary damages?

Q: What are temperate damages?
A: Imposed by way of example or correction for

the public good, in addition to the moral,
A: Those damages, which are more than nominal
temperate, liquidated or compensatory damages;
but less than compensatory, and may be
intended to serve as a deterrent to serious
recovered when the court finds that some
wrongdoings and as a vindication of undue
sufferings and wanton of invasion of the rights of
546 CIVIL LAW TEAM:

TORTS AND DAMAGES
an injured or a punishment for those guilty of 3. The act must be accompanied by bad
outrageous conduct. faith or done in wanton, fraudulent,
oppressive or malevolent manner
B. WHEN RECOVERED

Q: In what cases may exemplary damages be VIII. DAMAGES IN CASE OF DEATH
imposed as accessory damages?
A. IN CRIMES AND QUASI‐DELICTS CAUSING
A: DEATH
GR: Exemplary damages cannot be recovered
as a matter of right (Art. 2233, NCC) Q: What is the rule with regard to crimes and
XPN: quasi‐ delicts causing death?
1. Criminal offense – when the crime was
committed with one or more A: In case of death, the plaintiff is entitled to the
aggravating circumstances (Art. 2230) amount that he spent during the wake and
2. Quasi‐delicts – when the defendant funeral of the deceased. However, it has been
acted with gross negligence (Art. 2231) ruled that expenses after the burial are not
3. Contracts and Quasi‐contracts – when compensable.
defendant acted in wanton, fraudulent,
reckless, oppressive, or malevolent Note: The amount of damages for death caused by a
manner (Art. 2232) (Pineda, p. 301, crime or quasi‐delict shall be at least three thousand
2009 ed) pesos, even though there may have been mitigating
circumstances. In addition:
Q: What are the damages that can be recovered 1. The defendant shall be liable for the loss
in case of death? of the earning capacity of the deceased,
and the indemnity shall be paid to the
3 heirs of the latter; such indemnity shall in
A: MEA‐I
every case be assessed and awarded by
1. Moral damages
the court, unless the deceased on account
2. Exemplary damages of permanent physical disability not
3. Attomey's fees and expenses for caused by the defendant, had no earning
litigation capacity at the time of his death;
4. Indemnity for death 2. If the deceased was obliged to give
5. Indemnity for loss of earning capacity support according to the provisions of
6. Interest in proper cases Article 291, the recipient who is not an
heir called to the decedent's inheritance
Q: What are the damages that can be recovered by the law of testate or intestate
in case of death? succession, may demand support from the
person causing the death, for a period not
3 exceeding five years, the exact duration to
A: MEA‐I
1. Moral damages be fixed by the court;
2. Exemplary damages 3. The spouse, legitimate and illegitimate
3. Attomey's fees and expenses for descendants and ascendants of the
deceased may demand moral damages for
litigation
mental anguish by reason of the death of
4. Indemnity for death
the deceased. (Art. 2206, NCC)
5. Indemnity for loss of earning capacity

6. Interest in proper cases
1. IN DEATH CAUSED BY BREACH OF CONDUCT

BY A COMMON CRIME
C. REQUISITES

Q: When is temperate damages recoverable?

A:
1. The claimant’s right to exemplary
damages has been established
2. Their determination depends upon the
amount of compensatory damages that
may be awarded to the claimant
547

IX. GRADUATION OF DAMAGES 3. IN CONTRACTS, QUASI‐CONTRACTS AND
QUASI‐DELICTS; NCC ART. 2215
Q: What is the rule in graduation of damages in
torts cases? Q: When can the court equitably mitigate the
damages in contract, quasi‐contracts and quasi‐
A: Generally, the degree of care required is delicts?
graduated according to the danger a person or
property attendant upon the activity which the A: The court can mitigate the damages in the
actor pursues or the instrumentality he uses. The following instances other than in Art. 2214:
greater the danger the greater the degree of care 1. That the plaintiff himself has
required. contravened the terms of the contract;
2. That the plaintiff has fderived some
However, foreseeability is not the same as benefit as a result of the contract;
probability. Even if there is lesser degree of 3. In cases where exemplary damages are
probability that damage will result, the damage to be awarded, that the defendant
may still be considered foreseeable. acted upon the advice of counsel;
4. That the loss would have resulted in any
NOTE: The test as respects foreseeability is not the event;
balance of probabilities, but the existence, in the 5. That since the filing of the action, the
situation in hand, of some real likelihood of some defendant has done his best to lessen
damage and the likelihood is of such appreciable the plaintiff’s loss or injury. (Art. 2215,
weight and moment to induce, or which reasonably NCC)
should induce, action to avoid it on the part of a
person or a reasonably prudent mind. 4. LIQUIDATED DAMAGES

Q: When can liquidated damages be equitably
A. DUTY OF INJURED PARTY reduced?

1. ART. 2203 A: Liquidated damages, whether intended as an
indemnity or a penalty, shall be equitably reduced
Q: What is the duty of the injured party? if they are iniquitous or unconscionable. (Art.
2227, NCC)
A: The injured party is obligated to undertake
measures that will alleviate and not aggravate his 5. COMPROMISE
condition after the infliction of the injury or
nuisance. The injured party has the burden of Q: What is a compromise?
explaining why he did not do so. (Art. 2203, NCC)
A: A compromise is a contract whereby the
parties, by making reciprocal concessions, avoid a
B. RULES litigation or put an end to one already
commenced. (Art. 2028, NCC)
1. IN CRIMES
Q: How are damages adjudicated in case of Q: What is the essence of a compromise?
crimes?
A: In crimes, the damages to be adjudicated may A: The element of reciprocal concessions.
be respectively increased or lessened according
to the aggravating or mitigating circumstances. Q: What is the rule regarding compromise in
(Art. 2204, NCC) case liability has a civil and criminal aspect?
2. IN QUASI‐DELICT
A: If a crime has been committed, there can be
Q: When can damages be reduced in quasi compromise on the civil liability, but not, as a
delict? general rule, on the criminal liability.

A: The contributory negligence of the plaintiff Note: In a civil case, compromise must be entered
shall reduce the damages he may recover. (Art. into before or during litigation, never after final
2214, NCC) judgment has been rendered.

548 CIVIL LAW TEAM:

TORTS AND DAMAGES
Compromise during litigation may be in the form
of a confession of judgment.

Q: What is the rule regarding compromise of
criminal liability?

A:
GR: not allowed

XPN: in case of crimes against chastity and
violations of the National Internal Revenue Code.

X. MISCELLANEOUS RULES

Damages Damages Damages
that cannot that must co‐ that must
co‐exist exist stand alone
Nominal Exemplary Nominal
Damages Damages Damages
cannot co‐ must co‐exist
exist with with Moral,
Exemplary Temperate,
Damages Liquidated or
Compensator
y Damages

549

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B. PERSONS MADE RESPONSIBLE FOR OTHERS Q: Is the mother liable simultaneously with the

2. The service is to be rendered in employees. (LRTA v. Navidad, G.R. 145804, Feb. 6,

Q: When is a student considered in the custody V. PROXIMATE CAUSE

2. created another force which remained Note: There is a different rule in case of collision of

Q: When is contact said to be “harmful”? 3. the other is conscious of the

posttraumatic stress disorder, neurosis, psychosis, 3. The RPC makes a crime the:

Q: Is a governmental agency or officer tasked RE: Malice: The presence of probable cause signifies,

2. SELF‐DEFENSE AND DEFENSE OF OTHERS Note: A party claiming self‐defense must prove not

negligence, delay or violation or contravention of 3. Social Value or Utility of Action – Any

IX. SPECIAL LIABILITY IN PARTICULAR ACTIVITIES 2. Design defect – defects resulting from

animals as long as the injured person BOOK II – DAMAGES

May be recovered when the court If intended as a penalty in 1. That the claimant is entitled to

Special Special Special

10. Actions referred to in Articles 21, 26, 2. IN ACTS REFERRED TO IN ARTS. 21, 26, 27, 28,

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