DOES IT INCLUDE INTENTION?

TORTS AND DAMAGES

CHAPTER 1. – INTRODUCTION
MEANING OF TORT AND TORTIOUS ACT
WHAT IS AN ACT? – An act is an overt affirmative or
negative conduct. (Author’s definition.)
TORT – It is used in French to mean “wrong,” deriving
from the Latin word “tortus” meaning twisted, as if to say
tortious conduct is twisted conduct or conduct that
departs from the existing norm.
In the absence of a statutory definition, a tort is a legal
wrong that causes harm for which the violator is subject
to civil liability.
THEY MAY BE INTENTIONAL OR NEGLIGENT –
• The former is when the defendant is consciously
aware that his conduct is wrongful; and
• The latter is when the defendant does not intend an
invasion of plaintiff’s right but is aware that, by his
behavior, he is taking unreasonable risks.
RECKLESS, GROSS, OR WANTON WRONG – Sometimes
courts recognize a third category, placed between
intentional and negligent wrongs – reckless, gross, or
wanton wrong.
It is a species of negligence which imports knowledge and
consciousness of the high risk of harm resulting from his
conduct as to be equivalent to an intentional wrong.
HISTORY OF TORT AS A LEGAL CONCEPT

TORTIOUS ACT – Is a wrongful act. It has been defined as

Tort law emerged out of criminal law, and was, therefore,
the commission or omission of an act by one, without
originally concerned principally with violent breaches of
right, whereby another receives some injury, directly or
the peace.
indirectly, in person, property, or reputation.

ESSENCE OF OF TORT A. COMMON LAW TORT – Tort is predominantly

common law, that is, judges rather than legislatures
usually define what counts as a tort and how
A. DEFENDANT’S POTENTIAL FOR CIVIL LIABILITY – The
compensations is to be measured.
essence of tort is the defendant’s potential for civil
liability to the victim for harmful wrongdoing and
Common Law is a series of decisions becoming law
correspondingly the victim’s potential for
thru repetition.
compensation or other relief.
B. EXISTENCE OF PHYSICAL HARMS, NOT ESSENTIAL –
B. NO CLEAR DISTINCTION BETWEEN TORT AND CRIME
Some torts cause no physical harms at all but are
– Acts now called “torts” have been committed from
nonetheless actionable.
the very beginning of society, but a development of
C. VARIATIONS OF TORTS – May other torts can be
anything like a clearly formulated conception of a
described or named, and in fact courts are free to
tort is comparatively recent.
recognize variations and even to recognize “new
torts” at any time.
C. NOTION OF TORT AS A SPECIFIC WRONG – In the
KINDS OF WRONGS next stage of development of the common law, the
notion of tort, in a distinct and integral sense, still
remained unformulated and the history of tort is to
WRONGS ARE EITHER CIVIL, CRIMINAL, OR BOTH –
be sought in the history of the various delictual
• The wrong is Civil, when it involves a violation of a actions which, in conjunction, made up the whole
private legal right; and sum of then recognized civil liability for wrongs.
• Criminal, when it is regarded as an offense against
the public and is penalized by law as a crime or D. PLACE OF TORTS IN PHILIPPINE LAW – Many
felony. provisions of our present Civil Code recognize many
(e.g., proximate cause, contributory negligence)

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 concepts in the Angle-American law of torts. In fact,
certain provisions of the Civil Code, particularly
Articles 19, 20, 21, are broad enough to include civil
liability arising from crime.
FUNCTIONS OR GOALS OF TORT LAW
1. MORALITY OR CORRECTIVE JUSTICE – Attempts to
hold defendants liable for harms they wrongfully
caused and no others.
2. SOCIAL UTILITY OR POLICY – Concern is to provide a
system of rules that works toward the good of
society.
3. LEGAL PROCESS – Focuses on the litigation process
itself as a good to be preserved rather than on the
abstract ideal of justice or social utility.
4. POTENTIAL CONFLICTS – Potential conflicts
between the first two views for the functionality of
Torts in as much as that some events require the
few to suffer for the good of the many.
5. DISTRIBUTION OF LOSS – Promoting the broad
distribution is considered one of the functions of
tort liability.
6. REDRESS OF SOCIAL GRIEVANCES – One view is that
the right to sure in tort promotes the redress of
social grievances, especially against large
impersonal institutions.
7. SUMMARY - A MIXED SYSTEM – One view does not
dominate the significance of the other and so torts
law does not serve any single goal but a set of
different goals with respect to each situation.
TWO GENERAL CLASSES OF TORTS
1. PROPERTY TORTS - embrace all injuries and
damages to property, whether realty or personalty.
2. PERSONAL TORTS - include all injuries to the
person, whether to the body, reputations or
feelings. A tort which is not an injury to property is a
personal tort.
CONCEPT OF PERSONAL INJURY IN TORT LAW
It embrace all actionable injuries to the individual himself.
It may denote an injury affecting the reputation,
character, conduct, manner and habits of a person.
TORT AND CONTRACT
1. Contract duties are created by the promises of the
parties while tort duties are imposed as rules of law
2. Contracts are largely about economic matters such
as buying and selling many torts involve physical
harms
3. Contract law is at least formally strict liability law.
Most tort law on the other hand, is at least formally
fault based.
4. It is a character of torts that the duties from the
violation of which tort result are creatures of the
law and not of particular agreements. A contract is
not essential to the existence of tort
5. A breach of contract may be treated as a tort where
the law casts its separate obligation.
6. A refusal to contract may constitute a tort where
there is a duty imposed by law, on one so refusing,
to enter into contracts of the character sought, as
an incident to his trade or profession.
7. Duress, although it often arises in connection with
breach of contract, is nevertheless a tort, and where
a claim is grounded in duress, one who sustains
damage as a result of being subjected to duress may
sue as plaintiff in a tort action, thus obviating the
need for privity of contract.
DAMAGES AND OTHER REMEDIES
1. RESTITUTION; INJUNCTION – Forces the
tortfeasor to discharge gains he wrongfully
obtained by tort, and injunction, which compels
him to cease his tortous conduct.
2. COMPENSATION OF HARM SUFFERED – The
award is usually a money award called damages
and is intended as a kind of compensation for the
harm suffered.
PERSONS ENTITLED TO SUE FOR TORT
1. Particular individual injured
2. Persons upon whom tort committed
3. Person injured by tort committed upon another
4. Several persons wronged by the same act
5. Persons especially injured by contract violation 6.
Person directly, not collaterally, injured
PERSONS LIABLE FOR TORT
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As a general rule, all persons or entities are liable for torts
committed by them, or by their agents while acting within
the scope of their duties or powers.
1. TORTFEASOR – Every person legally responsible is
liable for a tort committed by him provided, if it is
the proximate cause of an injury to another
2. PERSON OTHER THAN TORTFEASOR – Unless a
person participates in or ratifies a tortious act, he is
not liable for the act or omission of another.
a. Mere presence at the commission of a wrongful
act by another will not render him liable as a
participant. However, proof that a person is
present at the commission of a wrongful act
b. Mere knowledge - that a tort is being
committed against another will not be sufficient
to establish liability
c. Mere acquiescence in the commission of a tort
after the act does not make a person liable
d. Ratification must be founded on full knowledge
of the facts constituting wrong which has been
committed or with a purpose on the part of the
principal to take the consequences on himself
without inquiry.
e. No duty to control conduct of a third person as
to prevent him from causing bodily harm to
another unless a special relationship exists
between one and the third person.
PERSON INCAPABLE OF MAKING A CONTRACT – Where a
contract is an essential element of the tort, a person
incapable of making the contract is not liable.
RESTRICTIONS ON CAPACITY TO ACT (M-I-D-I-P-C)
• MINORITY - State of a person who is under the age
of legal majority which is eighteen years of age;
• INSANITY – State of a person whose mental
faculties are diseased;
• DEAF-MUTE – Lacking sense of hearing and the
inability to speak;
NOTE: Only deaf-mutes who do not know how to
write are declared by law incapable of giving
consent.
• IMBECILITY – State of a person who while advanced
in age has the mental capacity comparable to that
of a child between two and seven years of age;
• PRODIGALITY – A spendthrift or squanderer;
NOTE: Prodigality per se doesn’t automatically
modify or restrict a person’s capacity to act. There
must be a declaration thereof and be placed under
guardianship under the Rules on Special
Proceeding.
• CIVIL INTERDICTION – An accessory penalty
imposed upon an accused who is sentenced to a
principal penalty not lower than reclusion temporal.
(NCC, Art. 38)
LIABILITY OF JOINT TORTFEASORS
Two or more persons who act together in committing a
wrong or contribute to its commission or assist or
participate therein actively and without common intent,
so that injury results to a third person from the joint
wrongful act of the wrongdoers.
TEST OF JOINT TORTFEASOR – The primary test of joint
tortfeasors is whether plaintiff has a single cause of action
against such tortfeasor or whether he has only a several
cause of action against each of them.
PRINCIPLES REGARDING JOINT TORTFEASORS
1. A person who joins in committing a tort cannot
escape liability by showing that another person is
liable also
2. Where two or more persons owe another a
common duty, and by a common neglect of that
duty, the other person is injured, there is joint tort
and all may be held solidarily liable.
3. One is liable for the act of his joint tortfeasor
although the act cause other or greater injury than
he intended.
4. Persons may be solidarily liable for the commission
of a tort by reason of a contractual relation existing
between them such as, for example, agency, master
and servant, and partnership.
5. The exoneration or exemption from liability of one
joint tortfeasor does not exonerate or exempt the
other, unless the liability of one results from his
responsibility for the act of another rather than
from his own act.
WHERE TORTFEASORS ACTED INDEPENDENTLY OF EACH
OTHER
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Generally, concert of action in the execution of a common
purpose is essential to a joint tort, but, independent
tortfeasors whose torts concur to cause a single injury
may be regarded in law as joint tortfeasors.
A. INJURIES SEPARATE AND DISTINCT – Where wrong
was not acted in concert, and separate and distinct
injuries are caused by the act or neglect of each, the
liability is joint or separate only, and each is liable
only for the damage caused by his own tort.
B. INJURY SINGLE AND INDIVISIBLE – Where the the
concurrent or successive negligent acts or omissions
of two or more persons, although acting
independently of each other, are, in combination,
the direct and proximate cause of a single injury to a
third person, and it is impossible to determined in
what proportion each contributed to the injury,
either is said to be responsible for the entire injury.
LAW GOVERNING TRANSITORY TORTS
LAW OF THE PLACE; LAW OF THE FORUM – The ordinary
rule is that the law of the place where the injury was
occasioned or inflicted governs in respect of the right of
action, and the law of the forum in respect of matters
pertaining to the remedy only.
The power of a State to impose responsibility for injuries
within its borders may not be curtailed by agreements
made elsewhere.
AUTHOR’S NOTE: The lex loci delicti commissi is the Latin
term for "law of the place where the delict was
committed" in the conflict of laws.
DETERMINATION OF PLACE OF WRONG – The law of the
place where the injury is suffered claimed as tort governs.
PHILIPPINE LAWS ON TORTS
Under Article 1157 of the Civil Code, “Obligations arise
from: (1) Law; (2) Contracts; (3) Quasi-contracts; (4) Acts
or omissions punished by law; and (5) Quasi-delicts”
MAIN CIVIL CODE PROVISIONS – Obligations derived from
quasi-delicts are governed mainly by Articles 2176 to
2194, Chapter 2 (Quasi-Delicts), Titile XVII
(ExtraContractual Obligations) of the Civil Cide and by
Special laws.
By Article 2178, the provisions that apply to culpa
contractual [i.e Articles 1172 (responsibility arising from
negligence), 1173 (definition of negligence) and 1174
(responsibility for fortuitous events)] are expressly made
likewise applicable to a quasi-delict.
OTHER CIVIL CODE AND SPECIAL LAW PROVISIONS –
Provisions devoted to Human Relations provided by the
Civil Code – Formulates some fundamental principles or
guides for human conduct, violation of which may give
rise to liability for damages.
Under 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall not
be a bar to subsequent civil action, not for civil liability
arising from criminal negligence, but fro damages due to a
quasi-delict or culpa aquiliana, although said article
forestalls a double recovery.
CHAPTER 2. – ELEMENTS AND TYPES OF TORTS
CAUSE OF ACTION IN TORT
A cause of action is a formal statement in the complaint of
the ultimate or essential facts that gave rise to a remedial
right.
TEST OF CAUSE OF ACTION – Whether the defendant
owed plaintiff any legal duty to do something which
defendant wrongfully did not do, or not to do something
which he wrongfully did so, in violation of the legal right
or rights of the plaintiff.
ELEMENTS OF A CAUSE OF ACTION
1. Legal right in favor of a person (plaintiff);
2. Correlative legal obligation on the part of another to
respect or not to violate such right; and
3. A wrong in the form of an act or omission in
violation of said legal right and duty with
consequent injury or damage to plaintiff.
OCCURRENCE OF THE LAST ELEMENT – It is only upon the
occurrence of the last element that a cause of action
arises giving the plaintiff the right to maintain an action
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against the defendant for the recovery of damages
suffered by him and/or other appropriate relief.
EXISTENCE OF LEGAL RIGHT AND DUTY
NECESSITY FOR EXISTENCE – A cause of action cannot
exist without the concurrence of a default and of a right
and duty.
LEGAL RIGHT - Well founded claim enforced by sanctions
LEGAL DUTY - Which the law requires to be done or
forborne to a determinate person or to the public.
MORAL RIGHTS AND DUTIES – Conduct, even though
improper and causing harm to another, does not
constitute a tort unless a legal, as distinguished from a
moral, right is violated or duty disregarded.
One who acts under a moral obligation or charitable
impulse does not thereby assume a legal duty that will
afford a basis for tort liability.
ASSUMPTION OF GRATUITOUS UNDERTAKING – The
person so rendering the gratuitous service to another is
not subject to liability for discontinuing the services if he
does not thereby leave the other in a worse position than
he was in when the services were began. (See Art. 2176)
BOUNDS OF RIGHTS AND DUTIES SUFFICING AS BASIS OF
TORT – The underlying principle is that one owes another
the duty fixed by law not to negligently, willfully, or
wrongfully do an act which will probably be injurious to
him, unless there be a legal justification.
NATURE OF RIGHT INVADED – The right invaded must be
personal to the party injured.
a. A private individual cannot maintain an action in
tort to redress a wrong of a public nature unless he
has sustained some injury which is special and
peculiar to himself
b. A breach of duty owed to one class of persons
cannot be the basis of a right in favor of a person
not within that class.
PRIVITY OF CONTRACT AS ELEMENT IN TORT
Where a contract co-exists with duties purely legal and
non-consensual in origin and nature, the question
whether such duties exist with respect to, and hence
confer correlative rights on, persons not parties not privy
to the contract, depends on the nature of the duties.
• If the duties attach to a relation or status created by
the contract, as incidents imposed thereon by the
law, no correlative rights exist beyond the limits of
the relation thus established; hence, there is no
duty as to anyone not a party or privy to such
relationship.
• If the duties involved arise, without reference to any
relation assumed by contract, from circumstances in
which the presence or absence of a contract is
equally immaterial, in a legal point of view, they are
not restricted to persons who are parties or privies
to a contract which happens to be involved, and the
presence of the contract does not destroy their
rights which flow from other circumstances with
respect to the contract.
VIOLATION OF LEGAL RIGHT AND DUTY
In order to constitute a tort, not only must a right and
duty exist, but there must be conduct constituting a
breach of duty or a violation of a right.
LAWFUL EXERCISE OF LEGAL RIGHTS –
GR: An action is not wrongful if done in the exercise of an
equal or superior right. A person may use all such force as
is reasonably necessary to protect his person or property,
and one is not an insurer that his lawful acts shall not
injuriously affect others.
XPN: Nevertheless, even the exercise of a right, in a
manner which is unlawful, constituting a tort, wherein the
liability arises on and for the manner of acting, rather than
the act itself.
POSITIVE AND NEGATIVE CONDUCT – A breach of duty
being essential, there must be some unlawful act or
omission at the foundation of every tort. The act causing
the injury may also result from nonfeasance, malfeasance,
or misfeasance.
MISFEASANCE MALFEASANCE NONFEASANCE
Improper Performance of Omission of
performance of
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some act which some act which some act which
might be lawfully ought not to be ought to be
done. done. performed.
DUTY TO REFRAIN FROM ACTS HARMFUL TO OTHERS –
Whenever, by an act which cannot be justified in law, and
which could have been avoided, a person inflicts an
immediate injury by force, he is legally answerable in
damages to the party injured.
In determining whether an act is wrongful, a test
frequently applied is the ability of a prudent man in the
exercise o ordinary care to foresee that injury or damage
will naturally or probably result.
RELATION BETWEEN WRONGFUL ACT AND INJURY
GENERALLY – To authorize a recovery in tort, privity must
exist between the act of the wrongdoer and the injury
complained of. On the hand, privity is not an element of a
tort, where the wrongful act changed be the proximate or
legal cause of the injury complained of.
INTENTIONAL INJURIES – The rule that to render one
liable for an injury to another resulting from a wrongful
act, the injury must have been the proximate
consequence of such act, is applied strictly where the act
or omission resulting in the injury is merely negligence.
The rule is relaxed so as to cover a wider filed or resulting
injuries where the act is a willful or malicious tort, as
distinguished from mere negligence.
On this connection, intended results are often regarded as
proximate results. Nonetheless, no liability arises for
remote harms even in intentional torts.
WILLFUL ACTS – In respect of willful acts without intention
to cause injury, it has held that persons may be held liable
for the consequences that flow therefrom as a proximate
cause thereof, whether they could have been foreseen or
anticipated or not.
UNLAWFUL ACTS – In cases involving unlawful acts
without intention to cause injury, intervening causes are
especially likely not to be held to preclude liability of the
wrongdoer. This rule prevails even though the defendant
did not intend the particular injury which followed.
DAMAGE AS AN ELEMENT OF TORT
Mere imaginary or speculative grievances without tangible
injury to any legal right afford no ground for judicial
action.
NATURE AND SUFFICIENCY OF THE DAMAGE – Depends
on whether the tort:
• Is one consisting of a legal wrong in itself
constituting an invasion of a right and thus, giving
rise to legal damage; or
• Is a breach of duty not necessarily violative of legal
rights and with which some actual express damage
must concur in order to establish the violation of
right essential to tort.
In the former class, damage flows from the wrongful act,
itself injurious to another’s right, although no perceptible
loss or harm accrues therefrom.
In the latter, however, some specific actual damage is a
condition precedent to the tort.
DAMAGE RECOVERABLE – A person injured by the
commission of a tort is entitled to actual pecuniary
compensation for the injury sustained and is limited to
such such compensation
XPN: Where the circumstances are such to warrant the
allowance of exemplary damages.
ABSENCE OF OTHER ELEMENTS – The fact of loss to
plaintiff from defendant’s acts or omissions is not alone
sufficient to constitute tort.
In the absence of other requisite elements, it is merely
damnum absque injuria (damage without wrong) and the
same does not constitute a cause of action.
MOTIVE, PURPOSE, AND INTENT AS ELEMENTS OF TORT
MOTIVE - impelling force or underlying or subjective
reason for doing an act, or the mental state or force which
induces an act of violation.
PURPOSE - denotes the object of an act or the external or
objectives result desired.
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INTENT - an external act or an intelligent volition and is
thus distinguishable from the term "motive" their use in
statements of legal principles has not always been
mutually exclusive.
MATERIALITY OF MOTIVE
MOTIVE IS MATERIAL – Lawful act constitutes an
actionable tort when unlawful means are employed
purposely to injure another. Where acts constituting
breach of contract were intentionally done out of malice
or ill-will, the injured party may sue in tort rather than in
contract. In both case, tort liability is precluded in the
absence of an evil motive.
MOTIVE IS IMMATERIAL – Conduct which does not either
by itself or because of the manner of its exercise,
constitute an invasion of the right of another is not
tortuous, however bad or malicious the actor's motives.
MATERIALITY OF INTENT
1. INTENTIONAL ACT IS DONE IN IGNORANCE -
Voluntary act, presenting the elements of duty,
breach, and damage is tortious although
unaccompanied by a deliberate design to injure or
to commit an unlawful act.
2. RESULTING DAMAGE IS DIFFERENT FROM THAT
CONTEMPLATED - Fortiori where defendant
voluntarily engages in conduct designed to cause
some damage, it is immaterial, on the question of
the existence of a tort that the damage actually
brought is different from that contemplated by him
3. ACT COMPLAINED OF IS NOT DONE UNLAWFULLY
OR WITHOUT CARE - Although the ultimate motive
is not bad, if the intent is to accomplish that
purpose be deliberately inflicting injury, the
goodness of the motive will not render non-tortious
acts which are torts by reason of the badness of the
intent.
PARTICULAR KINDS OF TORTIOUS ACTS
1. ACTS INTENDED TO INFLICT INJURY General rule -
A cause of action arises whenever one person, by an
act not in the exercise of a lawful right, causes loss
or does damage to another with an intent, either
actual or constructive, to produce such harm,
without just or lawful excuse or justifiable cause or
occasion.
2. ACTS NOT INTENDED TO INFLICT INJURY - A cause
of action may be predicated upon negligence, or the
failure to observe a standard of case prescribed by
law, without a conscious design to do wrong
3. MALICIOUS ACTS - Defined not only as relating to
the intentional commission of a wrongful act, but
also as involving wickedness, depravity and evil
intent.
There is no liability in tort for doing a lawful act
even though it is done for the malicious purpose of
injuring another party, where there are also
legitimate reasons for doing the act.
4. WILLFUL AND WANTON ACT
• Willful act - One done intentionally, or on
purpose, and not accidentally and willfulness
implies intentional wrongdoing
• Wanton act - Wrongful act done on purpose or
in malicious disregard of the rights of others
5. WILLFUL OR WANTON NEGLIGENCE – The act done
or omitted must be intended, or must involve such
reckless disregard of security and right as to imply
bad faith.
6. ACTS ARISING OUT OF A CONTRACTUAL
RELATIONSHIP – Accompanying every contract is
the duty to perform with care, skill, reasonable
expedience, and faithfulness the thing agreed to be
done, and the negligent failure to observe any of
these conditions is a tort, as well as a breach of
contract.
PARTICULAR TYPES OF TORTS
1. GENERAL TYPES. – For the law to furnish redress,
the wrongful act of the defendant must take effect
upon some legal interest of the party complaining.
E.g. violations against interests which are protected
by law embracing property rights, contractual
rights, or personal rights.
A. Culpable and intentional acts resulting in harm.
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 B. Acts involving culpable and unlawful conduct
casing unintentional harm.
C. Non culpable acts or conduct resulting in
accidental harm which because of hazards
involved, the law imposes absolute liability
notwithstanding the abuse of fault.
2. INTERFERENCE WITH PROPERTY RIGHTS.
3. INTERFERENCE WITH RIGHT TO SERVICES. – If a
third person tortuously inflicts physical injury upon
a servant of another and as a result of which the
servant is prevented from performing the duties
owing to his master, the latter may recover from
such third person damages resulting to him.
4. INTERFERENCE WITH CONTRACTUAL RIGHTS. – The
right to pursue one’s business, calling, trade, or
occupation, or the reasonable expectancy of a
contract is a property right, which the law protects
against unjustifiable or wrongful interference.
NOTE: However a person has no right to be
protected against competition.
Where a termination is procured by coercing one of
the parties to contract, improper interference of
that character constitutes a tort available in behalf
of the party coerced and against the interferer.
5. INTERFERENCE WITH PERSONAL RIGHTS –
Everyone has a legal right to their personal rights
which includes their right to social relations,
personal security to their homes, to their life, and
and to happiness.
Ordinarily, an injury to the reputation is effected by
slanderous or libelous language. But non-slanderous
words, as well as lawful acts, intended solely to
injure a man in his business, are actionable.
6. RUDENESS, THREATS, ABUSIVE LANGUAGE – GR: A
cause of action may not be predicated upon mere
rudeness, threats, abusive language or lack of
consideration of one person to another.
XPN: Where such languages causes a mental or
emotional disturbance, or bodily injury or illness
resulting therefrom.
7. OBSTRUCTION OF, AND COMPELLING RESORT TO,
LEGAL REMEDIES –
GR: One who impedes or obstructs another’s
remedy for the enforcement of a fixed and
ascertained right against a third person has been
held responsible for the injury occasioned.
XPN: There is no cause of action where no existing
right has been violated. Thus, merely compelling
another to avail himself of his legal remedy by
undertaking or carrying on litigation is not such
conduct as constituting a tort.
8. MALICIOUS PROSECUTION OF A CRIMINAL ACTION
– Where the elements constituting such a cause of
action are not present, the mere failure of the
plaintiff to sustain his action does not give rise to a
cause of action in favor of the defendant.
As a general rule, the expense legal expenses of the
winning party in an action may not be made the
basis of a subsequent action against the losing
party. In such case, the legal costs incurred in the
action are regarded as the full measure of liability
incurred by the losing party.
RATIO: One of the reason assigned for the rule is
that the recovery of costs in the original action is
one of the matters involved therein, and becomes
res judicata.
9. UNAUTHORIZED SUIT IN ANOTHER'S NAME – A tort
may arise from the unauthorized prosecution of a
suit in the name of another, irrespective of the
merits of the suit if it had been properly brought.
10. OTHER PARTICULAR TORTS – Various acts or
conduct has been held to constitute, or not to
constitute, an actionable tort under the facts and
circumstances of the particular case.
a. ACTS OF PUBLIC OFFICERS – GR: No liability
can arise from someone who sets in motion a
public officer to do a lawful act.
XPN: A person is liable where he authorizes a
public officer to do an unlawful act or a lawful
act in an unlawful manner, or to abuse,
exceed, or disregard his duty or
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 authority, or where he counsels, directs, or
participates in the doing of any unlawful act.
b. INJURIOUS FALSEHOOD – One may be legally
responsible for written falsehoods maliciously
circulated, which are made with the intention
of producing injury, and do result in injury to
another.
c. INTERFERENCE WITH RIGHT OR DESTRUCTION
OF WILL – Authorities are divided upon
whether such act is an actionable tort.
Ordinarily, the wrongful deprivation of a
person of his just bequest under a will or the
unlawful and malicious destruction of a will
resulting in loss to a beneficiary or legatee is
an actionable tort.
A legatee may maintain such an action,
however the law requires that the legacy to
him can only be established by the testimonies
of several witness.
d. TRADE SECRETS, INVENTIONS OR PATENTS –
Such interference or misuse thereof may or
may not constitute a tort depending on the
means to discover the same.
I.e. If the use or disclosure thereof was
consented or was achieved thru legal means
then such actions does not constitute tort.
If such trade secrets, inventions, or patents
was obtained otherwise, then such breach of
confidence, or theft thereof constitutes as a
tort.
PRIMA FACIE TORT DOCTRINE
The infliction of intentional harms resulting in damage
without excuse or justification by an act or a series of acts
which would otherwise be lawful.
DOCTRINE OF STRICT OR ABSOLUTE LIABILITY IN TORT
The actor, realizing the hazard of his undertaking
nevertheless assumes the risk connected therewith and,
notwithstanding he is free from all wrong, and has used
utmost care, he nevertheless is liable for any invasion of
the person or property rights of another.
BASIS OF LIABILITY – The doctrine rests on intentional
doing of that which person knows or should, in the
exercise of ordinary care, know may in normal course of
events reasonably cause loss to another.
CHAPTER 3. JUSTIFICATIONS AND DEFENSES AGAINST
LIABILITY
GENERALLY
In general, in a tort action, the defendant may assert any
justification or defense sufficient to show that the plaintiff
is not entitled to recover.
Legal liability in tort is predicated upon acts which cannot
be justified in law, or which are done without just or
lawful excuse, or justifiable cause or occasion. An act
causing damage to another does not create liability
where the person doing the act has a legal excuse or
justification therefor.
JUSTIFICATIONS AND DEFENSES DEFEATING A CLAIM
JUSTIFICATIONS FOR CONDUCT – They furnish the
defendant a legal privilege to commit acts that would,
except for the justification, count as a tort. E.g.
selfdefense.
AFFIRMATIVE DEFENSES – Justifications are defenses but
they differ from the latter. The term “defenses” usually
refers to affirmative defenses, meaning those on which
the defendant has the burden of proof and the burden of
persuasion.
This burden means that the defendant must produce
appropriate evidence on his defense and must also
persuade the court to believe it.
The court’s doubts about facts necessary to show the
plaintiff’s prima facie case work against the plaintiff; the
court’s doubts about the facts necessary to the
defendant’s defense work against the defendant.
9
Examples of defenses are the statute of limitations,
prescription, contributory negligence, or immunity from
suit.
AUTHOR’S NOTE: The same term is better explained in
remedial law in which the latter defines the subject matter
as an allegation of a new matter which, while
hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or
bar recovery by him. Moreover, the part about affirmative
defenses and justifications for conduct also overlap each
other.
IN CASE OF PRIMA FACIE TORT
In case of prima facie tort, the courts generally state that
the acts complained of are not a basis for recovery unless
done without justification.
The defendant’s motive must be solely malicious,
uncoupled with such motives, as self-interest, profit, or
business advantage. But no matter what justification is
advanced, it must be one which the law will recognize.
MISTAKE
If the defendant acts under a mistake that a reasonable
person would make, then mistake is at least relevant in
determining whether the defendant acted as a reasonable
person.
ILLEGAL TRANSACTION
GR: No action will lie to recover on a claim based or
depending upon an illegal transaction to which the
plaintiff was a party.
XPN: When the unlawful act does not have a causal
connection with the injury complained of. E.g. One who
broke a tooth when he bit into a hard metallic object in a
piece of candy manufactured by the defendant, was held
not barred from recovering for his injury even though he
had won the box of candy in an illegal bingo game. The
reason being there is an absence of any causal relation
between the illegal act and the injury complained of.
NECESSITY OR SELF-PROTECTION
PROTECTION OF PUBLIC WELFARE OR SAFETY – In
general, acts pertaining to the public welfare,
convenience, necessity or safety which conflict with
private rights are not tortious.
DEFENSE OF LIFE OR PROPERTY – An act which would
otherwise be a tort may be justified by necessity. An
occasion creating such justification is one involving the
conservation of life.
SELF-DEFENSE – A person unlawfully assaulted, when
without fault, may stand his ground and repel force to the
extent which to him seems reasonably necessary to
protect himself from injury.
Similarly an incident to the right to acquire and own
property, the owner has the right to defend and protect it
against against aggression, and if he commits an assault in
so doing, the law will justify him.
AUTHOR’S NOTE: In the second paragraph, De Leon is
referring to the Principle of Self-Help as set forth by article
429 of the NCC which that the owner or lawful possessor
of a thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he may
use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical
invasion or usurpation of his property.
(n)
WHAT ARE THE REQUISITES UNDER PRINCIPLE OF
SELFHELP?
1. Reasonable force is used;
2. Such force is used by the owner or lawful possessor;
3. There is no delay; and
4. Actual or threatened physical invasion or usurpation
or immediately after the dispossession to regain
possession
DESTRUCTION OF PLAINTIFF’S PROPERTY TO PREVENT
SPREAD OF FIRE
BY PUBLIC AUTHORITIES – If the subject act is necessary
to insure public safety, then the legislature, may by virtue
of police power, authorize public authorities to summarily
destroy property without legal process or prior notice to
the owner.
BY AN INDIVIDUAL OR A COMMUNITY OF INDIVIDUALS –
The law allows such exercise for individuals for their
10
own personal safety or security or for the preservation of
his own property or by a community of individuals in
defense of their common safety or in the protection of
their common rights. The foregoing remains valid as long
as they are done reasonably.
To secure the benefit of justification, the necessity must
be immediate and imperative. The necessity must be
clearly shown and where the same is not proven, liability
exist among the perpetrators.
CONSENT TO ACT
A person may, by language or acts, manifest a definite
assent to conduct which would be violative of his rights in
the absence of consent. Such conduct, therefore, will not
constitute a tort. In order to sustain this defense,
however, there must be a true assent.
AUTHOR’S NOTE: I.e. the same must be voluntary and
intelligently.
One cannot maintain an action for a wrong occasioned by
an act to which he has consented, under the familiar
maxim “volenti non fit injuria,” except where the act
involves the life of a person, or a breach of peace, or
amounts to a public offense.
AUTHOR’S NOTE: E.g. Article 253 of the RPC prohibits the
act of giving assistance to suicide.
Similarly, if a person who claims to have received injury as
a result of the trespass of another consented to the act of
such person, no action of trespass lies.
PRACTICAL JOKES; HORSEPLAY
The fact that there was no intention to inflict injury on the
plaintiff is no justification for an act which does in fact
cause injury.
PRACTICAL JOKES – The fact that a practical joke is the
cause of an injury to a person does not excuse the
perpetrator from liability in damages for the injury
sustained.
RATIO – One who plays dangerous practical jokes on
others takes the risk that his victims may not appreciate
the humor of his conduct, and will be liable for an injury
resulting from such practical joke.
HORSEPLAY – A similar rule obtains where an injury was
caused without intent, as the result of “horseplay.”
(Rough or boisterous play)
RATIO – When one does an act which proves injurious to
another, an action in tort arises in favor of the injured
person although the act was done without malice and no
injury was intended.
PROXIMATE CAUSE OF INJURY
Generally, a tortfeasor is liable for the natural and
proximate consequences of his act, but, unless the act
complained of is the proximate cause of the injury, there
is no legal liability.
TO CONSTITUTE PROXIMATE CAUSE – The injury must be
the natural and probable consequence of the wrong, that
is, such a consequence as, under the surrounding
circumstances of the case, might or ought to have been
foreseen as likely to flow from the wrong.
The particular result need not have been foreseen so long
as the wrongdoer might have foreseen that some injury,
and without the operation of each the injury would not
have occurred, each cause is a proximate cause.
As a general rule, where an independent unforeseen
cause intervenes between the original default and the
final result and is sufficient to stand as the cause of the
mischief, the cause is ordinarily regarded as the proximate
cause and the other the remote cause.
If the intervening cause is incidental, the law looks to the
original wrongful act which caused the wrong.
CONTRIBUTORY NEGLIGENCE OF PLAINTIFF
CONTRIBUTORY NEGLIGENCE – Is the conduct on the part
of the plaintiff which falls below the standard of conduct
to which he should conform for his own protection and
cooperates with the negligence of defendant in bringing
about the plaintiff’s harm.
GR: Contributory negligence of the plaintiff is no defense
to an action for an intentional tort, nor is it a defense to
strict liability.
11
The plaintiff may recover damages but the courts shall
mitigate the same. (Art. 2179)
XPN: For plaintiff’s conduct to bar recovery altogether, his
negligence toward protection must be cause-in-fact and a
proximate cause of the accident resulting in damage or
injury.
LAST CLEAR CHANCE ON PLAINTIFF
WHEN CONTRIBUTORY NEGLIGENCE IS DISREGARDED –
The doctrine of last clear chance instructs the court to
disregard the plaintiff’s contributory negligence if the
defendant’s negligence occurred after the plaintiff’s
contributory negligence.
WHEN DEFENDANT IS RELIEVED FROM LIABILITY – On the
other hand, if the plaintiff was the one who had the last
clear opportunity up until the moment of injury of
avoiding harm to himself, his failure to take that chance
by the exercise of reasonable case has the effect of
relieving the defendant from liability unless the plaintiff’s
negligence is merely contributory to his injury and not the
proximate cause thereof.
ASSUMPTION OF RISK BY PLAINTIFF
A plaintiff who fully understands a risk of harm to himself
or his property brought about about by the defendant but
nevertheless voluntarily chooses to assume it is not
entitled to recover. (Art. 2179)
RATIO: By voluntarily exposing himself or his property
interests to a risk, the plaintiff is deemed to consent to
that risk. The same may be express or implied.
IMMUNITIES
Used to refer to the special protection sometimes
accorded to certain defendants like public entities or
officers and family members for reasons of public policy.
It protects a defendant from tort liability.
Unlike a justification or defense, it is not dependent on
the plaintiff’s behavior, but on the defendant’s status or
relationship to the plaintiff.
• Historically, spouses could not sue each other. This
immunity was rooted in the doctrine regarding the
legal identity of spouses.
• Parent-child immunity precludes tort actions
between parents and their non-adult children. This
immunity has never been held to bar property or
purely economic torts.
• Governmental immunity protects the government
from tort liability. It should be distinguished from
public official immunity which protects government
officers and employees from tort liability incurred in
the courts of performing their official functions.
OTHER DEFENSES
There is no tort liability and consequently, no liability for
damages in the following cases:
1. When the defendant’s conduct was involuntary
because force or intimidation was employed upon
him. (Art. 2176)
2. When the act is in the exercise of a right or the
performance of a duty, unless there is abuse. (Art.
19)
3. When the damage is caused by a fortuitous event.
(Arts. 1174, 2178)
4. When the defendant acted under emergency
conditions or circumstances and his conduct did not
contribute to the creation of the emergency. (Art.
2179)
5. When the defendant who is responsible for acts or
omissions of another proves the exercise of due
diligence (Arts. 2180, 2184)
6. When the prescriptive period for quasi-delict has
expired (Arts. 1146, 2194)
7. When the defendant’s conduct otherwise tortious
has not caused any damage or injury. (Arts. 2176,
2180, 2184)
8. When the plaintiff has voluntarily waived or
abandoned his right to enforce the civil liability of
the defendant for damages. (Art. 2195, 2198, 2235)
BURDEN OF PROOF
DEGREE OF EVIDENCE REQUIRED BY LAW –
Preponderance of evidence, or that evidence adduced by
one party which is more conclusive and credible than that
of the other party.
12
VS SUBSTANTIAL EVIDENCE – Substantial evidence is the they owe it to all who may foreseeably be injured if that
amount of relevant evidence which a reasonable mind conduct is negligently carried out.
might accept as adequate to justify a conclusion.
CONCEPT OF FAULT
ACQUITTAL ON THE GROUND OF LACK OF PROO F
BEYOND REASONABLE DOUBT – When the accused in a There is fault when a person acts in a manner contrary to
criminal prosecution is acquitted on the ground that his what should have done. Only juridical fault gives rise to
guilt has not been proved beyond reasonable doubt, a civil liability for damages. Lack of charity or of altruism,
action for damages for the same act or omission may be constituting moral fault, does not constitute a quasidelict.
instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may Only juridical fault, but not moral fault gives rise to liability
require the plaintiff to file a bond to answer for damages
for damages. Lack of charity or altruism, constituting
in case the complaint should be found to be malicious.
moral fault, does not constitute quasi- delict.
If in a criminal case the judgment of acquittal is based
The fault referred to Art. 2176 is a fault substantive and
upon reasonable doubt, the court shall so declare. In the
independent which in itself is a source of obligations and
absence of any declaration to that effect, it may be
is also known as culpa aquiliana as distinguished from
inferred from the text of the decision whether or not the
culpa contractual. If the fault is committed intentionally
acquittal is due to that ground. (Art. 29, NCC)
to cause damage to another, it becomes a dolo punished
as a crime by the RPC or other penal laws.
SHIFT OF BURDEN OF PROOF – GENERALLY the plaintiff
has the burden of proof when it comes to the elements of
CONCEPT OF NEGLIGENCE
his case: fault or negligence, causation, and damage,
while the defendant has the burden of producing
Negligence is the failure to observe for the protection of
evidence about justifications or defenses.
the interests of another person, that the degree of care,
precaution and vigilance which the circumstances justly
XPN: Where the existence of fault or negligence is
demand whereby such another person suffers injury.
presumed by law (arts. 2180, 2183, 2191), the burden of
proof is shifter to the defendant to overcome the
Its application is relative and comparative. Where the
presumption by way of defense.
danger is great, a higher degree of care is necessary.
CHAPTER 6. QUASI-DELICTS
DISTINCTION BETWEEN FAULT AND NEGLIGENCE

A Person guilty of negligence is necessarily at fault, but

Whoever by act or omission causes damage to another,
there may be fault without negligence as here the damage
there being fault or negligence, is obliged to pay for the or injury resulting from the wrongful act or omission as
damage done. Such fault or negligence, if there is no
cause willfully and not by reason of lack of care. So, fault
preexisting contractual relation between the parties, is is the broader term.
called a quasi-delict and is governed by the provisions of
this
NO “DUTY-TO-ACT” RULE
Chapter. (Art. 2176, NCC)
GR: Unless the defendant has assumed a duty to act, or
I.e. The phrase “fault or negligence” implies that there is
stands in a special relationship to the plaintiff, defendants
no intention invloved in the case of quasi-delicts.
are not liable in tort for a pure failure to act for the
plaintiffs benefit.
CONDUCT IN GENERAL
XPNS:
DUTY TO USE CARE – By and large, men owe a duty to use
care in connection with their affirmative conduct, and

13
 1. The defendant or his instrumentalities, innocently
or not, have created risks or caused harm to the
plaintiff. (e.g., defendant is a hit and run driver.)
2. The defendant is in a special relationship to the
plaintiff that is deemed to create a duty of care that
encompasses affirmative action (e.g., common
carriers to their passengers, innkeepers to their
guests)
3. The defendant takes affirmative action that is either
cut short or performed negligently;
4. The defendant has assumed a duty of affirmative
care by action or promise that evinces such an
assumption.
No duty arises where the would-be rescuer would be
subjected to unreasonable danger by rescuing someone.
E.g. One need not rescue occupants of a burning car if to
do so would subject himself to unreasonable danger.
NO DUTY TO CONTROL OTHERS
GR: In a large number of cases the defendant himself does
not directly injure the plaintiff but instead fails to prevent
the risk of injury by another. The immediate tortfeasor is
sometimes merely negligent but often he carries out a
criminal attack on the plaintiff. The question is whether
the defendant, who could have prevented the injury by a
warning, or by exercising the control he had over the
attacker, or otherwise, is under any duty to do so.
In the usual case, the problem is not rescue of a plaintiff
already in peril; it is rather the use of care to prevent
harm in the first place.
AUTHOR’S NOTE: The book implies that the there is no
duty to do such things based on the exceptions given.
XPN:
1. Statutes may impose a duty to take action and to
use care to protect others. This is the case with
statutes requiring state agencies to investigate and
deal with reports of suspected child abuse.
2. The defendant is under a duty to use reasonable
care for the plaintiff’s safety where the defendant is
in a special relationship with the plaintiff. A
property owner, for example, may owe a duty of
reasonable care to protect an invitee or other
entrant upon the land.
3. The defendant is under a duty to use reasonable
care for the plaintiff’s safety when the defendant is
in a special relationship with the immediate
tortfeasor and in a position to control his tortious
behavior or at least to minimize risks to the plaintiff
by some means.
NEGLIGENCE CAUSE OF ACTION
A person who negligently causes personal injury or
property damage is a subject to liability in tort.
Negligence claims represent the great majority of tort
claims presented, brought, or tried today. In part, this
reflects the large number of injuries resulting from the use
of automobiles, doctors, landlords, and businesses.
Negligence law usually controls when injury is inflicted in
the course of an active sport, in the course of law
enforcement or firefighting activities, or in the course of
farming. People are negligently shot, burned, drown, or
poisoned.
CHARACTERISTICS OF THE NEGLIGENCE CASE
OPEN-ENDED CLAIMS – Negligence is open-ended and
requires evaluation case-by-case, rules do not always have
an enormous direct impact on the ultimate result.
ACTUAL HARM REQUIREMENT – No claim for negligence
will be recognized unless the plaintiff suffers actual harm.
The simplest interpretation of the Actual Harm Rule is that
there is no such thing as a negligence suit for nominal
damages, much less one for presumed damages.
PREOCCUPATION WITH BODILY HARM AND PROPERTY
DAMAGE – The actual harm requirement also includes the
possibility that some purely emotional harms could be
actionable against a negligent defendant, however,
negligence alone is often not enough for liability.
DAMAGE WHEN NEGLIGENCE CLAIM IS ESTABLISHED –
Once negligence is established by showing that the
defendant negligently caused property damage or bodily
injury, the victim can recover all damages that are
reasonably foreseeable including damages for such
intangibles as pain, or emotional distress.
14
Financial loss resulting from the injury or property
damage, such as lost wages or medical expenses, are
likewise recoverable, as all proven future losses.
NEGLIGENCE: CONDUCT VS STATE OF MIND
NEGLIGENCE AS RISK – Negligence is conduct that creates
or fails to avoid unreasonable risks of foreseeable harm to
others. Not all risky conduct is negligence, for some risks
are entirely justified. And not all negligence is actionable
tort, for some negligence is permitted and some causes no
harm.
NEGLIGENCE AS CONDUCT, NOT A STATE OF MIND – A
BAD STATE OF MIND IS NEITHER NECESSARY NOR
SUFFICIENT TO SHOW NEGLIGENCE, AND CONDUCT IS
EVERYTHING.
State of mind, including knowledge and belief, may
motivate or shape conduct, but it is not in itself an
actionable tort. The legal concept of negligence as unduly
risky conduct distinct from sate from state of mind,
reflects the law’s strong commitment to an objective
standard of behavior.
CONDUCT INCLUDING ACTS OR OMISSIONS – Conduct is
often an affirmative act, however, the same can also
include omissions or failure to act. On the other hand, an
unconscious person’s movement is not conduct even if
that movement harms someone. CONDUCT INVOLVES AT
LEAST A DEGREE OF VOLITION.
INTENTIONALLY RISKY CONDUCT: THE RELATION OF
NEGLIGENCE AND INTENTIONAL TORTS – How does the
concept of negligence as conduct work with the
defendant who knows that his conduct is riskier than
normal?
First, such defendant is not guilty of an intentional tort
merely because he knows of the risk. So intentional
conduct and even intentional risk-taking is analyzed under
negligence rules unless the defendant has a purpose to
invade the plaintiff’s interests or a certainty that such
invasion will occur.
Second, the defendant who intentionally takes a risk may
or may not be negligent. Negligence will depend upon the
seriousness of the risk and the reasons for taking it.
WHEN STATE OF MIND IS RELEVANT – The defendant’s
knowledge of facts that make a given act risky (as distinct
from his attitude) is frequently important on the
negligence issue. His socially useful purpose in taking a
risk may be evident that conduct is not unreasonably
risky.
FINALLY, a defendant who is taking an unreasonable risk
and knows it, may be guilty of reckless or wanton
misconduct that would justify punitive damages or other
liabilities. None of this, however, departs from the
requirement of objectively unreasonable outward
conduct.
THE SPECIFIC CONDUCT REQUIREMENT
FACTS SHOWING SPECIFIC CONDUCT – As a practical
matter, the plaintiff must show precisely what the
defendant did or do. Also the plaintiff must point a
particular way in which that conduct could have been
made safer.
PURPOSE OF SPECIFICITY REQUIREMENT – Only when you
know specific conduct can you estimate the risk and
utilities of that conduct, a process normally implicit in
finding negligence.
OTHER PURPOSES – There are some other reasons why
specific conduct must be identified in order to claim
negligence, but they will make more sense in connection
with cause-in-fact and proximate cause.
In brief, it will be impossible to conclude that the
defendant’s conduct was a cause of the plaintiff’s harm or
that harm was within the scope of the risk unless you
know what the risk was; to know that, you must know the
specific conduct claimed to be negligent.
RES IPSA LOQUITUR – To prove the defendant negligent
the plaintiff must normally provide evidence of the
defendant’s specific conduct. Proof that accident
happened or even that the defendant caused an injury is
enough by itself. As the courts say, negligence is not
presumed. Cases that fit the res ipsa loquitur pattern
constitute an exception. (See Art. 2179)
AUTHOR’S NOTE: Res ipsa loquitur means the thing
speaks for itself. It is the rule that the fact of the
occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
15
presumption of negligence, or make out a plaintiff’s
prima facie case, and present a question of fact for
defendant to meet with an explanation. The requisites for
the applicability of the doctrine of res ipsa loquitur are:
1.) The occurrence of an injury;
2.) The thing which caused the injury was under the
control and management of the defendant;
3.) The occurrence was such that in the ordinary course
of things, would not have happened if those who
had control or management used proper care; and
4.) The absence of explanation by the defendant.
CONCEPT OF QUASI-DELICT
Based on Article 2176, a quasi-delict may be defined as an
act or omission by a person (tortfeasor) which causes
damage to another in his person, property, or rights,
giving rise to an obligation to pay for the damage done,
there being fault or negligence but there is no preexisting
contractual relation between the parties.
The basic principle of our law on quasi-delict, except in
those cases expressly provided for, is that a person cannot
be held liable for damages cause by him, unless he is at
fault or is negligent and the damage is produced by his
wrongful act or omission.
SCOPE OF ARTICLE 2176
LIMITED CONCEPT OF QUASI-DELICT – Article 2176 is the
basic provision on quasi-delict which means culpa
aquiliana, culpa extra-contractual, or quasi-delictos as the
fifth source of civil obligations.
The term Quasi-delict refers to those obligations which do
not arise from law, contracts, quasi-contracts, or criminal
offences.
AUTHOR’S NOTE: The same still arises from law as
according to De Leon’s Comments and Cases on
Obligations and Contracts (2014) which states that there
are actually only two sources of obligations which is law
and contracts. The reason being that obligations arising
from quasi-contracts, crimes, and quasi-delicts are really
imposed by law.
TORT – The code commission which drafted the Civil Code
decided to use the term “tort” in Anglo-American
jurisprudence because the term has a broader scope as it
includes not only negligence, but also intentional criminal
acts. Thus, Article 2176 covers all wrongful acts or
omissions which do not constitute a breach of contract or
a commission of a crime.
EXPANDED CONCEPT OF QUASI-DELICT – The same
negligent acts or omission may create an action for
damages due to quasi-delict under the Civil Code, or an
action also for damages arising from a crime or delict
under the RPC or special law, which civil action may be
maintained separately at the election of the plaintiff.
A QUESTION OF NOMENCLATURE – For purposes of
recovering civil liability arising from a crime or felony, the
plaintiff is given the privilege or option to treat the
offence as a quasi-delict, and not as a delict, and
accordingly, base his civil action for damages which shall
be entirely separate and distinct from, and shall proceed
independently of, the criminal prosecution, on the theory
of quasi-delict.
In the civil action, the matter at issue is not whether the
act or omission complained of constitutes a crime, but
whether said act or omission has caused damage to the
plaintiff as a consequence of the fault or negligence of the
defendant for which reason, the defendant under Article
2176 is obliged to pay for the damage done.
REQUISITES OF QUASI-DELICT
1. Act or omission by the defendant
2. Fault or negligence of the defendant
3. Damage or injury caused to the plaintiff
4. There must be a direct relationship or connection of
cause and effect between the act or omission and
the damage
5. No pre-existing contractual relation between the
parties
The defendant is liable even if he does not know the
identity of the victim.
BURDEN OF PROOF
In an action for quasi-delict, the burden of proof is
generally on the person claiming damages to establish by
satisfactory evidence that the legal cause of his damage or
injury was the fault or negligence of the defendant or of
one for whose acts he must respond and the damages
suffered by him
16

As a rule, negligence is not presumed. Mere suspicion,
surmise or speculation cannot be the basis of an award for
damages. Where, however, negligence is presumed by
law, the burden of proving its non existence is shifted to
the party to whom the presumption applies.
QUASI-DELICT ARISING FROM BREACH OF CONTRACT
Generally, liability for tort arises only between parties not
otherwise bound by a contract. Nonetheless, there may
be an action for quasi-delict notwithstanding there is a
subsisting contract between the parties. When the act or
omission which constitutes a breach of contract would
have itself constituted the source of the quasi-delictual
liability had no contract existed between the parties, the
contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply.
E.g. Artist X entered into a record deal with Company A,
under which, with a stipulation that X cannot contract any
other record deals with anybody else. This contract was
made known to Company B.
Notwithstanding this, X entered into a record deal with
Company B.
Company A sued both X and Company B for damages. X
was held liable for contractual culpa, while Company B
was held liable for extra-contractual culpa. (Tolentino,
1992)
CULPA AQUILIANA VS. CULPA CONTRACTUAL
CULPA AQUILIANA – Is the wrongful act or omission which
of itself is the source of the obligation separate from, and
independent of, contract
CULPA CONTRACTUAL – Act or omission considered as an
incident in the performance of an obligation already
existing and which constitutes a breach thereof A
Where liability arises from culpa aquiliana, not a breach of
positive obligation, an employer or master may excuse
himself under the last paragraph of Article 2180 by
proving that he had exercised "all diligence of a good
father of a family to prevent damage" B
In CA – The plaintiff has the burden of proving that the
defendant was at fault or negligent.
In CC – It is not necessary for the plaintiff to plead or
prove that the violation of the contract was due to fault or
negligence.
C
IN CA – There is no presumption that the defendant was
at fault or negligent
IN CC – The mere proof of the existence of the contract
and its breach raises such presumption that the burden is
on the defendant to prove that he was not at fault or
negligent.
D
IN CA – Grimarily governed by Article 2176
IN CC – Governed by 1170 to 1174
NEGLIGENT NON-PERFORMANCE OF DUTIES ASSUMED
BY CONTRACT
DISTINGUISHED FROM TORT OBLIGATIONS –
The obligations of tort law are for the most part
nonconsensual and independent of contract. They are
generally imposed on men by law simply as part of the
price of living in society, or of engaging in conduct which is
likely to affect the actor’s fellow beings.
Contract obligations, on the other hand, are for the most
part based on manifested consent which indeed is needed
to bring them into being. By and large, therefore, such
obligations are limited by the terms of that consent, or at
least by terms which it is fair to impose because of that
consent.
Contractual obligations are generally owed only to the
parties with whom the agreement was made and with
respect only to consequences which the parties had in
mind when they made their bargain.
WHERE INJURY TO PLAINTIFF FORESEEABLE – Now they
recognize that the agreement has no tendency to limit the
scope of harm to be foreseen from unreasonably
dangerous conduct done by reason of the agreement, and
this foresight of harm has been taken as a basis of duty
not based on consent.
But where defendant’s negligence ends merely in
nonperformance of the contract and where defendant is
not under any recognized duty to act apart from contract,
the courts generally still see no duty to act affirmatively
except the duty based on – and limited by defendant’s
consent.
17
WHERE CONTRACT AN INCIDENT TO ENTERPRISE OF
DEFENDANT – What may be vided as negligent omission,
so far as the individual contract goes, may wear the color
of active negligence if the whole venture or enterprise is
thought of – in very much the same way as the omission
to inspect and repair a machine is regarded as active
negligence on the part of him who continues to operate
the machine without taking the precautions.
Article 2177. Responsibility for fault or negligence under
the preceding article is entirely separate and distinct from
the civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice for
the same act or omission of the defendant.(n)
CRIME VS. QUASI- DELICT
A NCC.
IN CRIME –There is criminal or malicious intent or criminal
negligence.
WHEREAS IN QUASI DELICT – There is only negligence. B
In Crime – There are 2 liabilities: criminal and civil
WHEREAS IN QD – There is only civil liability. C
IN CRIME - Affects public interest
WHEREAS IN QD - Concerns private interest or concern. D
IN CRIME – Purpose is punishment or correction
WHEREAS IN QD – Indemnification of the offended party.
E recovery in the other.
In Crime – Criminal liability cannot be compromised
WHEREAS IN QD – Liability for QD can be compromised as
any other civil liability
F Article 2178. The provisions of articles 1172 to 1174 are
IN CRIME – the guilt of the accused must be proved
beyond reasonable doubt,
WHEREAS IN QD – the fault or negligence of the
defendant need only be proved by preponderance of
evidence
G consists in the omission of that diligence which is required
IN CRIME – the liability of the person responsible for the
author of the negligent act or omission is subsidiary
WHERE AS IN QD – it is direct and primary
INSTITUTION OF CRIMINAL AND/OR CIVIL ACTIONS
CIVIL ACTION FOR QUASI-DELICT NOT PRECLUDED BY
ACQUITTAL OF ACCUSED – Criminal negligence (Culpa
criminal) is a violation of criminal law, while civil
negligence (culpa aquiliana) is a distinct and independent
negligence, entirely apart from a delict or crime.
For this reason, acquittal from an accusation of criminal
negligence whether based on reasonable doubt or not is
not a bar to a subsequent civil action, not for civil liability
arising from criminal negligence but for damages due to a
quasi-delict or culpa aquiliana. Article 2177, however,
forestalls a double recovery.
RECOVERY OF DAMAGES TWICE FOR THE SAME ACT OR
OMISSION IS PROHIBITED
Under Article 1157, quasi-delict and an act or omission
punishable by law are two different sources of obligations.
The offended party has the option between on an action
for enforcement of civil liability based on culpa criminal
under Art. 100 of RPC and an action for recovery of
damages based on culpa aquiliana under Art. 2177 of the
These two cases of action may be availed of subject to the
caveat that the offended party cannot recover twice for
the same act or omission or under both causes.
This proscription in our law stems from the fundamental
rule against unjust enrichment. Since these two civil
liabilities are distinct and independent of each other, the
failure to recover in one will not necessarily preclude
ARTICLE 2178
also applicable to a quasi-delict. (n)
STATUTORY DEFINITION OF FAULT OR NEGLIGENCE
Article 1173. The fault or negligence of the obligor
by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the
place. When negligence shows bad faith, the provisions of
articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is
to be observed in the performance, that which is expected
of a good father of a family shall be required.
(1104a)
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NEGLIGENCE - conduct that creates undue risk or harm to
another. It is the failure to observe for the protection of
the interests of another person, justly demanded,
whereby such other person suffers injury.
TEST FOR DETERMINING WHETHER A PERSON IS
NEGLIGENT
1. Reasonable care and caution expected of an
ordinary prudent person
2. No hard and fast rule from measuring degree of
care
3. Negligence, a legal question
DEGREE OF DILIGENCE REQUIRED:
1. THAT AGREED UPON; 2. IN THE ABSENCE OF SUCH,
THAT WHICH IS REQUIRED BY THE LAW;
GR: IN THE ABSENCE OF THE FOREGOING, DILIGENCE OF
A GOOD FATHER OF A FAMILY
XPNs:
a. COMMON CARRIERS requiring extraordinary
diligence (NCC, Arts. 1998-2002);
b. BANKS require the highest degree of deligence,
being imbued with public interest.
DILIGENCE OF A GOOD FATHER OF A FAMILY - That
reasonable diligence which an ordinary prudent person
would have done under the same circumstances. WHY
NOT THE MOTHER INSTEAD? – Asked by every female
civil law professor.
FACTORS TO BE CONSIDERED
1. Nature of the obligation.
2. Circumstances of the person or thing.
3. Circumstances of time.
4. Circumstances of the place.
FORTUITOUS EVENT
Article 1174. Except in cases expressly specified by the
law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the
assumption of risk, no person shall be responsible for
those events which could not be foreseen, or which,
though foreseen, were inevitable. (1105a)
Fortuitous Event - any event which cannot be foreseen, or
which though foreseen, is inevitable. It is an event which
is either impossible to foresee or impossible to avoid.
Fortuitous Event vs. Force Majeure
Fortuitous Event - event independent of the will of the
obligor but not of other men (Acts of Men)
Force Majeure - those events which are totally
independent of the will of every human being (Acts of
God)
REQUISITES OF FORTUITOUS EVENT
1. Event must be independent of the human will or at
least the obligor's will
2. The event could not be foreseen or if foreseen,
must have been impossible to avoid
3. Event must be of such a character as to render it
impossible for the obligor to comply with his
obligation in a normal manner
4. Obligor must be free from any participation in, or
the aggravation of the injury to the obligee.
DOCTRINE OF ASSUMPTION OF RISK
Assumption of risk may be invoked as a complete defense
by the defendant in a quasi-delictual action. It assumes
that a plaintiff who voluntarily assumes a risk of harm
from the negligent conduct of the defendant cannot
recover from such harm.
REQUISITES –
1. Plaintiff had actual knowledge of the danger
2. He understood and appreciated the risk form the
danger
3. He voluntarily exposed himself to such risk
Article 2179. When the plaintiff's own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the
injury being the defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the
damages to be awarded. (n)
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 EFFECT OF NEGLIGENCE ON THE PART OF THE INJURED
PARTY
NEGLIGENCE MERELY CONTRIBUTED TO THE INJURY - to
be entitled to the damages, the law does not require that
the negligence of the defendant should be the sole cause
of the damage.
There is a contributory negligence on the part of the
injured party where his conduct has contributed, as a legal
cause to the harm he has suffered, which fall below the
standard to which he is required to conform for his own
protection.
LEGAL CAUSE OF DAMAGE, HARM OR INJURY
A person claiming damages for the fault or negligence of
another has the burden of establishing at least 3
conditions:
1. Fault or negligence of the defendant
2. Damage, harm or injury to the plaintiff
3. Connection of cause and effect between the fault or
negligence and the damage.
PROXIMATE CAUSE
That cause which in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred.
TESTS OF PROXIMATE CAUSE
1. BUT FOR TEST - Defendant's conduct is the cause of
the injury which would not have been sustained if
the defendant had not been negligent.
2. CAUSE-IN-FACT TEST - A cause in fact relation must
exist between defendants conduct and plaintiff's
injury before liability may arise.
3. Substantial Factor test - If the actors conduct is a
substantial factor in bringing about harm to
another, the fact that the actor neither foresaw nor
should have foreseen the extent of the harm or the
manner in which it occurred, does not prevent him
from being liable
4. FORESEEABILITY TEST - If the defendant could not
reasonably foresee any injury as a result of his act,
or if his act is reasonable in the light of what he
could anticipate, there is no negligence and no
liability.
5. NATURAL AND PROBABLE CONSEQUENCE TEST - It
must appear that the injury was not only the natural
but also the probable consequence of the conduct
as distinguished from consequences that are merely
possible. Since shat is probable is, in a real sense,
foreseeable, foresee ability appears to be an implicit
element of this test of proximate cause.
6. DIRECT CONSEQUENCE TEST - The defendant is
liable for all the damage that flows as the ordinary
and natural or direct consequence of his conduct to
be determined from the circumstances of the case
rather than upon whether he might or must have
reasonably expected the resulting injury.
DOCTRINE OF CONTRIBUTORY NEGLIGENCE - Negligence
on the part of the injured party which merely contributes
to, but is not the proximate cause of, his injury, and
resulting in the mitigation of the defendant's liability and
plaintiff's indemnity.
DOCTRINE OF COMPARATIVE NEGLIGENCE - A
comparison is made in terms of the degree of the
negligence of the plaintiff and that of the defendant and
the amount of damages recoverable by plaintiff is reduced
to the extent of his negligence.
DOCTRINE OF LAST CLEAR CHANCE - The negligence of
the plaintiff does not preclude a recovery for the
negligence of the defendant where it appears that the
defendant, by exercising reasonable care and prudence,
might have avoided injurious consequences to the plaintiff
notwithstanding the plaintiff's negligence.
ELEMENTS OF THE DOCTRINE –
1. The plaintiff was in a position of danger and, by his
own negligence, became unable to escape from
such position by the use of ordinary care, either
because it became physically impossible for him to
do so or because he as totally unaware of the
danger.
2. The defendant knew that the plaintiff as in a
position of danger and further knew, or in the
20
 exercise of ordinary care should have known, that
the plaintiff was unable to escape there from
3. That the defendant had the last clear chance to
avoid the accident by the exercise of ordinary care
but failed to exercise such last clear chance, and the
accident occurred as a proximate result of such
failure.
Doctrine of Res Ipsa Loquitor
The thing or transaction speaks for itself. It is a maxim for
the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an
inference or negligence, or make out a plaintiff's prima
facie case, and present a question of fact for defendant to
meet with an explanation.
The doctrine is applied only if unsure and if no direct
evidence of who is at fault. When you cannot tell who is at
fault but you can tell what contributed to the injury.
REQUISITES OF THE DOCTRINE –
1. The accident is of a kind or character which
ordinarily does not occur in the absence of
someone's negligence
2. It is caused by an instrumentality or an agency
within the exclusive management or control of the
defendant or defendants
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.
EMERGENCY RULE
A person who, without fault or negligence on his part, is
suddenly placed in an emergency or unexpected danger
and compelled to act instantly and instinctively with no
time for reflection and exercise of the required
precaution, is not guilty of negligence and therefore,
exempt from liability, if he did not make the wisest choice
of the available courses of conduct to avoid injury which
reasonably a prudent person would have made under
normal circumstances.
The rule is not available where the situation or danger
was caused by his own negligence.
Article 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and
live in their company.
The owners and managers of an establishment or
enterprise are likewise responsible for damages caused by
their employees in the service of the branches in which
the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope
of their assigned tasks, even though the former are not
engaged in any business or industry.
The State is responsible in like manner when it acts
through a special agent; but not when the damage has
been caused by the official to whom the task done
properly pertains, in which case what is provided in article
2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils
and students or apprentices, so long as they remain in
their custody.
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage. (1903a)
PRINCIPLE OF VICARIOUS LIABILITY
A person is made liable not only for torts committed by
himself but also for torts committed by others with whom
he has certain relationship and for whom he is
responsible, subject to certain conditions.
LIABILITY OF PARENTS – Both parents shall be liable as
amended by the family code
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SCOPE OF LIABILITY
1. Minor children who live in their company
2. Minor child is already married and minor is not
living with parents if the separation of unjustifiable
because of the failure of the parents to properly
exercise their parental authority and responsibility.
RESPONDENT SUPERIOR - negligence VICARIOUS
LIABILITY - liability
Article 2181. Whoever pays for the damage caused by his
dependents or employees may recover from the latter
what he has paid or delivered in satisfaction of the claim.
(1904)
Does not concern on either joint or solidary liability.
-persons enumerated under 2180 are given the right to
seek reimbursement from the author for "what he has
paid of or delivered in satisfaction of the claim" of the
plaintiff.
Article 2182. If the minor or insane person causing
damage has no parents or guardian, the minor or insane
person shall be answerable with his own property in an
action against him where a guardian ad litem shall be
appointed. (n)
Article 2183. The possessor of an animal or whoever may
make use of the same is responsible for the damage which
it may cause, although it may escape or be lost. This
responsibility shall cease only in case the damage should
come from force majeure or from the fault of the person
who has suffered damage. (1905)
MAIN CONSIDERATION FOR LIABILITY: If there is control.
He who possesses the animal for utility, pleasure or
service must answer for the damage which such animal
may cause.
Article 2184. In motor vehicle mishaps, the owner is
solidarily liable with his driver, if the former, who was in
the vehicle, could have, by the use of the due diligence,
prevented the misfortune. It is disputably presumed that a
driver was negligent, if he had been found guilty of
reckless driving or violating traffic regulations at least
twice within the next preceding two months.
If the owner was not in the motor vehicle, the provisions
of article 2180 are applicable. (n)
APPLICABILITY OF 2184
the article applies only if the owner was at the vehicle at
the time of the mishap otherwise, the provisions of article
2180 would be applicable, where the owner even if not in
the vehicle will be liable unless he exercised due diligence
to prevent the damage.
Article 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating
any traffic regulation. (n)
Article 2186. Every owner of a motor vehicle shall file with
the proper government office a bond executed by a
government-controlled corporation or office, to answer
for damages to third persons. The amount of the bond
and other terms shall be fixed by the competent public
official. (n)
Article 2187. Manufacturers and processors of foodstuffs,
drinks, toilet articles and similar goods shall be liable for
death or injuries caused by any noxious or harmful
substances used, although no contractual relation exists
between them and the consumers. (n)
This is one of the exceptions to the general rule that
negligence is not presumed.
REQUISITES FOR LIABILITY –
1. Defendant is a manufacturer or processor
2. Products manufactured or processed are foodstuffs,
drinks, toilet articles, and similar goods
3. Defendant used noxious or harmful substances in
the manufacture of processing
4. Death or injury was caused by the product
consumed or used containing such noxious or
harmful substances.
5. Victim is the consumer, user or purchaser
Article 2188. There is prima facie presumption of
negligence on the part of the defendant if the death or
injury results from his possession of dangerous weapons
or substances, such as firearms and poison, EXCEPT when
the possession or use thereof is indispensable in his
occupation or business. (n)
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PRIMA FACIE PRESUMPTION THAT THE DEFENDANT WAS HEAD OF THE FAMILY - may not be the owner of the
NEGLIGENT IF: building and it may include lessee who lives in the building
1. A person dies or in injured or a part thereof.
2. Death or injury results from the defendant's
possession of dangerous weapon or substances. Article 2194. The responsibility of two or more persons
who are liable for quasi-delict is solidary. (n)
Article 2189. Provinces, cities and municipalities shall be
liable for damages for the death of, or injuries suffered by, PRESCRIPTION OF ACTION UPON QUASI-DELICT – Article
any person by reason of the defective condition of roads, 1146. The following actions must be instituted within four
streets, bridges, public buildings, and other public years:
works under their control or supervision. (n)
b. Upon an injury to the rights of the plaintiff;
Article 2190. The proprietor of a building or structure is c. Upon a quasi-delict;
responsible for the damages resulting from its total or
partial collapse, if it should be due to the lack of necessary However, when the action arises from or out of any act,
repairs. (1907) activity, or conduct of any public officer involving the
exercise of powers or authority arising from Martial Law
LIABILITY OF PROPRIETOR - If he failed to make necessary including the arrest, detention and/or trial of the plaintiff,
repairs the same must be brought within one (1) year. (As
amended by PD No. 1755, Dec. 24, 1980.)
Article 2191. Proprietors shall also be responsible for
damages caused:
(1) By the explosion of machinery which has not been
taken care of with due diligence, and the
inflammation of explosive substances which have
not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to
persons or property;
(3) By the falling of trees situated at or near highways
or lanes, if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or
deposits of infectious matter, constructed without
precautions suitable to the place. (1908)

Article 2192. If damage referred to in the two preceding

articles should be the result of any defect in the
construction mentioned in article 1723, the third person
suffering damages may proceed only against the engineer
or architect or contractor in accordance with said article,
within the period therein fixed. (1909)

2190 talks about the defect in the construction - engineer

or architect shall be liable for any damage or injury y the
defect.

Article 2193. The head of a family that lives in a building

or a part thereof, is responsible for damages caused by
things thrown or falling from the same. (1910)

23