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ATENEO CENTRAL BAR OPERATIONS 2007
Civil Law
SUMMER REVIEWER


Adviser: Dean Cynthia del Castillo Head: Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;
Subject Head: J omi Legaspi;
sor
TORTS AND DAMAGES

CHAPTER 1: CONCEPT OF TORTS

Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this Chapter. (1902a)

ELEMENTS OF QUASI DELICT/TORTS:
1. Act or omission
2. Damage or injury is caused to another
3. Fault or negligence is present
4. There is no pre-existing contractual relations
between the parties
5. Causal connection between damage done and
act/omission

NEGLIGENCE
The omission of that degree of diligence which is
required by the nature of the obligation and
corresponding to the circumstances of the
persons, time and place. (Art. 1173, NCC)

KINDS OF NEGLIGENCE
1. Quasi delict (Art. 2176 NCC)
2. Criminal negligence (Art. 356 RPC)
3. Contractual negligence (NCC provisions on
contracts particularly Arts. 1170 to 1174)

DISTINGUISHED FROM OTHER SOURCES OF
OBLIGATION:

CONTRACT QUASI DELICT
Vinculum
Juris
Contract Negligent act/
omission (culpa,
imprudence)
Proof
Needed
Preponderance
of evidence
Preponderance
of evidence
Defense
available
Exercise of
extraordinary
diligence (in
contract of
carriage), Force
Majeure
Exercise of
diligence of
good father of a
family in the
selection and
supervision of
employees

CONTRACT QUASI DELICT
Pre-
existing
contract
There is a pre-
existing contract
No pre-existing
contract
Burden of
proof
Contractual
party.
Prove the ff.:
1. existence of
a contract
2. breach
Victim.
Prove the ff.:
damage
1. negligence
2. causal
connection
between
negligence and
damage done

CONTRACT DELICT
Vinculum
Juris
Contract Act / omission
committed by
means of dolo
(deliberate,
malicious, in bad
faith)
Proof
Needed
Preponderance
of evidence
Proof beyond
reasonable doubt
Defense
available
Exercise of
extraordinary
diligence (in
contract of
carriage), Force
Majeure

Pre-
existing
contract
There is a pre-
existing contract
No pre-existing
contract
Burden of
proof
Contractual
party.
Prove the ff.:
1. existence of
a contract
2. breach
Prosecution.
Accused is
presumed
innocent until the
contrary is
proved.


CIVIL LIABILITY IN QUASI-DELICT VS. DELICT

QUASI
DELICT
DELICT
Liability of
Employer
Solidary Subsidiary
Reservation
Requirement
Civil aspect of
the quasi-delict
is impliedly
instituted with
criminal action,
Civil aspect is
Impliedly
instituted with
criminal
action
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but under 2000
Crimpro Rules
it is
independent
and separate
Effect of
judgment of
acquittal in a
criminal
case
involving
same
act/omission
Not a bar to
recover civil
damages
EXCEPT when
judgment
pronounces
that the
negligence
from which
damage arise
is non-existent
Not a bar to
recover civil
damages

NOTE: It is an existing doctrine that the failure of
the court to make any pronouncement, favorable
or unfavorable, as to the civil liability of the
accused amounts to a reservation of the right to
have the civil liability litigated and determined in a
separate action. The rules nowhere provide that if
the court fails to determine the civil liability it
becomes no longer enforceable













TESTS OF NEGLIGENCE
Did the defendant in doing the alleged negligent
act use the reasonable care and caution which
an ordinary prudent person would have used in
the same situation?
If not, then he is guilty of negligence
Could a prudent man, in the case under
consideration, foresee harm as a result of the
course pursued?
If so, it as the duty of the actor to take
precautions to guard against harm

CIRCUMSTANCES TO CONSIDER
Time
Place
Personal circumstances of the Actors

GOOD FATHER OF A FAMILY (pater familias)
The only standard of conduct used in the
Philippines (Art. 1173 NCC)
A reasonable man is deemed to have knowledge
of the facts that a man should be expected to
know based on ordinary human experience.


Corliss v. Manila Railroad The law
presumes or requires a man to possess
ordinary capacity to avoid harming his
neighbors unless a clear and manifest
incapacity is shown and the law does not
hold him liable for unintentional injury unless,
possessing such capacity, he might and
ought to have foreseen the danger.



















Corliss v. Manila Railroad The law works
only within the sphere of the senses. Moral
consideration are not normally accorded
great weight.The knowledge and experience
of the actor is also considered in determining
whether he observed due diligence.

Castillo v. CA, 176 SCRA 591 A quasi-
delict or culpa aquiliana is a separate legal
institution under the Civil Code with a
substantivity all its own, and individuality that
is entirely apart and independent from a delict
or crime a distinction exists between the
civil liability arising from a crime and the
responsibility for quasi-delicts or culpa extra-
contractual.
CHAPTER 2: SPECIAL RULES

1. CHILDREN

The action of the child will not necessarily be
judged according to the standard of an adult. But
if the minor is mature enough to understand and
appreciate the nature and consequences of his
actions, he will be considered negligent if he fails
to exercise due care and precaution in the
commission of such acts.

Taylor v. Meralco, 16 Phil 8 The law fixes
no arbitrary age at which a minor can be said
to have the necessary capacity to understand
and appreciate the nature and consequences
of his acts







NOTE: Applying the provisions of the RPC,
J udge Sangco takes the view that a child who is
9 or below is conclusively presumed to be
incapable of negligence. On the other hand, if
the child is above 9 years but below 15, there is a
disputable presumption of absence or
negligence.
Absence of negligence does not necessarily
mean absence of liability. A child under 9 years
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can still be subsidiarily liable with his property
(Art. 100 RPC)
Absence of negligence of the child may not
excuse the parents from their vicarious liability
under Art. 2180 NCC or Art. 221 FC.

2. PHYSICAL DISABILITY

GENERAL RULE: a weak or accident prone
person must come up to the standard of a
reasonable man, otherwise, he will be considered
as negligent
Exception: If the defect amounts to a real
disability, the standard of conduct is that of a
reasonable person under like disability.

3. EXPERTS AND PROFESSIONALS









4. NATURE OF ACTIVITY

There are activities which by nature impose
duties to exercise a higher degree of diligence
(ex. Banks, Common Carriers)

5. INTOXICATION

GENERAL RULE:






EXCEPTION: Under Art. 2185 of the NCC it is
presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap,
he was violating any traffic regulation

6. INSANITY

An insane person is exempt from liability.
However, by express provision of law, there may
be civil liability even when the perpetrator is held
to be exempt from criminal liability. The insanity
of a person does not excuse him or his guardian
from liability based on quasi delict (Art. 2180 and
2182 NCC)

CHAPTER 3: WHAT MUST BE PROVED

1. NEGLIGENCE - plaintiff must prove negligence
of defendant
Exceptions:
a. In cases where negligence is presumed or
imputed by law - this is only
rebuttable/presumption juris tantum
b. Principle of res ipsa loquitur (the thing
speaks for itself) - grounded on the difficulty
in proving thru competent evidence, public
policy considerations

2. DAMAGE / INJURY

3. CAUSAL CONNECTION BETWEEN
NEGLIGENCE AND DAMAGE Defendants
negligence must be the proximate cause of the
injury sustained by the plaintiff to enable plaintiff
to recover. Thus, if plaintiffs own conduct is the
cause of the injury there can be no recovery.
Fernando v. CA They should exhibit the
case and skill of one who is ordinarily skilled
in the particular field that he is in; The rule
regarding experts is applicable not only to
professionals who have undergone formal
education

NOTE: If plaintiff's negligence is only
contributory, he is considered partly
responsible only. Plaintiff may still recover
from defendant but the award may be
reduced by the courts in proportion to his
own negligence


Proximate Cause the adequate and
efficient cause which in the natural order of
events and under the particular
circumstances surrounding the case, would
naturally produce the event






Wright v. Manila Electric Mere intoxication
is not negligence nor establishes want of
ordinary care. But it may be considered to
prove negligence.

CHAPTER 4: DEFENSES

1. CONTRIBUTORY NEGLIGENCE - the plaintiff
was also negligent together with the defendant;
to constitute a defense, proximate cause of
injury/damage must be the negligence of
defendant

2. CONCURRENT NEGLIGENCE if both parties
are equally negligent the courts will leave them
as they are; there can be no recovery

3. DOCTRINE OF LAST CLEAR CHANCE - even
though a persons own acts may have placed him
in a position of peril and an injury results, the
injured is entitled to recover if the defendant thru
the exercise of reasonable care and prudence
might have avoided injurious consequences to
the plaintiff. This defense is available only in an
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action by the driver or owner of one vehicle
against the driver or owner of the other vehicle
involved.

REQUISITES:
a. Plaintiff was in a position of danger by his
own negligence
b. Defendant knew of such position of the
plaintiff
c. Defendant had the least clear chance to
avoid the accident by exercise of ordinary
care but failed to exercise such last clear
chance and
d. Accident occurred as proximate
cause of such failure

Who may invoke: Plaintiff
NOTE: The doctrine is inapplicable to
a. J oint tortfeasors
b. Defendants concurrently negligent
c. As against 3
rd
persons

4. EMERGENCY RULE - "one who suddenly finds
himself in a place of danger, and is required to
act without time to consider the best means that
may be adopted to avoid the impending danger,
is not guilty of negligence, if he fails to adopt
what subsequently and upon reflection may
appear to have been a better method, unless the
emergency in which he finds himself is brought
about by his own negligence."








NOTE: Applicable only to situations that are sudden
and unexpected such as to deprive actor of all
opportunity for deliberation (absence of
foreseeability); the action shall still be judged by the
standard of the ordinary prudent man

FACTORS TO CONSIDER:
Gravity of the Harm to be avoided
Alternative courses of action - If the alternative
presented to the actor is too costly, the harm that
may result may still be considered unforeseeable
to a reasonable man
Social Value and Utility of the Action - The act
which subjects an innocent person to an
unnecessary risk is a negligent act if the risk
outweighs the advantage accruing to the actor
and even to the innocent person himself.
Person exposed to the risk - A higher degree of
diligence is required if the person involved is a
child.


5. DOCTRINE OF ASSUMPTION OF RISK
Volenti non fit injuria

REQUISITES:
a. Intentional exposure to a known danger
b. One who voluntarily assumed the risk of an
injury from a known danger cannot recover in
an action for negligence or an injury is
incurred
c. Plaintiffs acceptance of risk (by
law/contract/nature of obligation) has erased
defendants duty so that his negligence is not
a legal wrong
d. Applies to all known danger

6. DUE DILIGENCE - diligence required by
law/contract/ depends on circumstances of
persons, places, things

7. FORTUITOUS EVENT - no person shall be
responsible for those events which cannot be
foreseen, or which through foreseen were
inevitable

REQUISITES:
a. The cause of the unforeseen and unexpected
occurrence, or of the failure of the debtor to
comply with his obligation, must be
independent of the human will;
Valenzuela v. CA, 253 SCRA 303 An
individual will nevertheless be subject to
liability if the emergency was brought about
by his own negligence.
b. It must be impossible to foresee the event
which constitutes caso fortuito or if it can be
foreseen it must be impossible to avoid
c. The occurrence must be such as to render it
impossible for the debtor to fulfill his
obligation in a normal manner
d. The obligor must be free from any
participation in the aggravation of the injury
resulting to the creditor.

GENERAL RULE: Fortuitous Event is a
complete defense and a person is not liable if
the cause of the damage is a fortuitous event.
EXCEPTION: It is merely a partial defense and
the courts may mitigate the damages if the loss
would have resulted in any event [Art. 2215(4)
NCC]
NOTE: A person may still be liable for a fortuitous
event if such person made an ASSUMPTION OF
RISK.

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8. DAMNUM ABSQUE INJURIA a principle that
involves damage without injury, therefore no
liability is incurred; there is no legal injury

9. LAW specific provision of law

10. EXERCISE OF THE DILIGENCE OF A GOOD
FATHER OF A FAMILY IN THE SELECTION
AND SUPERVISION OF EMPLOYEES

11. PRESCRIPTION
a. Injury to right of plaintiff/quasi delict - 4 years
b. Defamation - 1 year
c. When no specific provision, must be counted
from the day they may be brought

12. PROSCRIPTION AGAINST DOUBLE
RECOVERY - Responsibility for fault or
negligence under quasi-delict is entirely separate
and distinct from civil action arising from the RPC
but plaintiff cannot recover damages twice for
same act or omission of the defendant

13. ACT OR OMISSION IS NOT THE PROXIMATE
CAUSE OF THE DAMAGE

14. OTHER GROUNDS Motion To Dismiss:
a. lack of jurisdiction over person of defendant
b. lack of jurisdiction over subject matter
c. venue improperly laid
d. plaintiff has no legal capacity to sue
e. there is another action pending between
same parties for same cause
f. cause of action is barred by prior judgment
/statute of limitations
g. pleading asserting claim states no cause of
action
h. claim set forth in pleading has been paid,
waived, abandoned, extinguished
i. claim is unenforceable under the provision of
statute of fraud
j. condition precedent for filing claim has not
been complied with


CHAPTER 5: PERSONS LIABLE FOR QUASI
DELICT

WHO SHOULD BE LIABLE FOR A QUASI-DELICT:

1. TORTFEASOR - Whoever by act or omission
causes damage to another, there being no fault
or negligence is obliged to pay for the damage
done (art 2176).

2. PERSONS VICARIOUSLY LIABLE the
obligation imposed in 2176 is demandable not
only for ones own act or omission but also for
those persons for whom one is responsible (art
2180).


Vicarious Liability law on imputed
negligence; a person who himself is not guilty
of negligence is made liable for conduct of
another






NOTE: Vicarious liability is not governed by the
doctrine of respondeat superior. Employers or
parents are made liable not only because of the
negligent or wrongful act of the person for whom
they are responsible but also because of their
own negligence (i.e. liability is imposed on the
employer because he failed to exercise due
diligence in the selection and supervision of his
employees)
EXCEPTION: the doctrine of respondeat superior
is applicable in:
a. Liability of employers under Article 103 of the
RPC
b. Liability of a partnership for the tort
committed by a partner

WHO ARE THE PERSONS VICARIOUSLY LIABLE:

1. PARENTS - The father, and in case of his death
or incapacity, the mother are responsible for
damage caused by minor children who live in
their company.

Father and Mother shall jointly exercise parental
authority over common children. In case of
disagreement, father's decision shall prevail (art
211).

NOTE: Persons liable for the act of minors other
than parents.
a. Those exercising substitute parental authority
b. Surviving grandparents
c. Oldest sibling, over 21 years old unless unfit
or unqualified
d. Childs actual custodian, over 21 years old
unless unfit or disqualified

2. GUARDIANS - Guardians are liable for damages
caused by the minor or incapacitated persons
who are:
a. under their authority
b. who live in their company

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3. OWNERS & MANAGERS OF
ESTABLISHMENT/ENTERPRISE - Owners &
managers of establishment or enterprise are
responsible for damages caused by their
employees who are:
a. in the service of the branches in which the
latter are employed OR
b. in occasion of their function

4. EMPLOYERS - Employers shall be liable for
damages caused by their:
a. employees and
b. household helpers
c. who are acting w/in the scope of their
assigned task even though the former are not
engaged in any business or industry (unlike
in RPC subsidiary liability of employer
attaches in case of insolvency of employer
for as long as the employer is engaged in
business/industry)

DEFENSES AVAILABLE TO EMPLOYERS:
a. exercise of due diligence ins election and
supervision of employees
b. act/omission was made outside working
hours and in violation of company's rules and
regulations

5. STATE - The state is responsible when it acts
through a special agent, but not when the same
is caused by an official to whom task done
properly pertains in which case art 2176 is
applicable

6. SCHOOL ADMINISTRATOR, TEACHER -
Teachers or heads of establishments of arts &
trades shall be liable for damages caused by
their pupils, students & apprentices as long as
they remain in their custody even if they are
beyond the age of majority
NOTE: Art. 2180 applies to all including
academic institution per weight of jurisprudence
based on obiter of J ustice J BL Reyes in the
Exconde case.


TEACHERS LIABILITY:

The basis of the teachers liability is the principle
of loco parentis (stand in place of parents). So
long as the students remain in the protective and
supervisory capacity of teachers, the latter shall
be deemed to have custody over the students.
Its not necessary for the students to board and
live with the teachers so that there can be
custody over them.

SCHOOLS LIABILITY:

GENERAL RULE: The School itself is NOT liable
as party defendants
EXCEPTIONS:
a. FC 218 schools are expressly made liable
b. St. Francis ruling schools liability as
employer
c. PSBA ruling school has liability based on
contract, therefore:
i. If culprit is a teacher, follow St. Francis
ruling (sue school as employer)
ii. If culprit is a stranger, follow PSBA ruling
(sue school based on contract
iii. If culprit is a student - apply 2180

FAMILY CODE PROVISIONS:
a. Family Code, Art 218 - The school, its
administration & teachers or the individual,
entity or institution engaged in child care
shall have special parental authority &
responsibility over the minor child under their
supervision, instruction or custody (authority
& responsibility shall apply to all authorized
activities whether inside or outside the
premises or the school, entity or institution).
b. Family Code, Art 219 - Those given the
authority & responsibility shall be solidarily &
principally liable for damages caused by
act/omission of the unemancipated minor;
parents, judicial guardian or person
exercising substitute parental authority over
said minor shall be subsidiarily liable.

CHAPTER 6: PERSONS EXPRESSLY MADE
LIABLE BY LAW EVEN WITHOUT FAULT
(STRICT LIABILITY)

1. POSSESSOR OF AN ANIMAL
The possessor of an animal or whoever may
make use of the same is responsible for the
damage which it may cause
Exceptions:
a. Force majeure
b. Fault of the injured/damaged person

2. OWNER OF MOTOR VEHICLE
In motor vehicle mishap, the owner is solidarily
liable with the driver if:
a. he was in the vehicle, and
b. could have, through due diligence, prevented
the misfortune

A Driver is Presumed Negligent by law If:
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a. he had been found guilty or reckless driving
or violating traffic regulations at least twice
within the next preceding two months.
b. at the time of the mishap, he was violating
any traffic regulation.

NOTE: 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.

3. MANUFACTURERS & PROCESSORS OF
FOODSTUFFS, DRINKS, TOILET ARTICLES &
SIMILAR GOODS

They are liable for death and injuries caused by
any noxious or harmful substances used
although no contractual relation exists between
them and the consumers

4. DEFENDANT IN POSSESSION OF
DANGEROUS WEAPONS OR SUBSTANCES,
SUCH AS FIREARMS AND POISON
There is prima facie presumption of negligence
on the part of defendant if death or injury results
from such possession
EXCEPTION: The possession or use thereof is
indispensable in his occupation or business


5. PROVINCES, CITIES & MUNICIPALITIES
Shall be liable for damages for the death or
injuries suffered by any person by reason of the
defective condition of roads, streets, bridges,
public buildings, and other public works under
their control or supervision

6. PROPRIETOR OF BUILDING OR STRUCTURE
Responsible for the damages resulting from any
of the ff.:
a. Total or partial collapse of building or
structure if due to lack of necessary repairs
b. Explosion of machinery which has not been
taken cared of with due diligence, and the
inflammation of explosive substances which
have not been kept in a safe and adequate
place
c. By excessive smoke, which may be harmful
to persons or property
d. By falling of trees situated at or near
highways or lanes, if not caused by force
majeure
e. By emanations from tubes, canals, sewers or
deposits of infectious matter, constructed
without precautions suitable to the place

7. ENGINEER, ARCHITECT OR CONTRACTOR
If damage of building or structure is caused by
defect in construction which happens within 15
years from construction; action must be brought
within 10 years from collapse

8. HEAD OF FAMILY THAT LIVES IN A BUILDING
OR PART THEREOF
Liable for damages caused by things thrown or
falling from the same

CHAPTER 7: SPECIAL TORTS

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

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

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

ABUSE OF RIGHTS (ART 19)
1. There is a legal right or duty
2. The right or duty is exercised in bad faith
3. For the sole intent of prejudicing or injuring
another

Common element under articles 19 and 21: the
act must be intentional
An action can only proper when damage,
material or otherwise, was suffered by the
plaintiff. An action based on Articles 19-21 will be
dismissed if the plaintiff merely seeks
recognition
A defendant may likewise be guilty of tort under
Articles 19-21 even if he acted in good faith. In
these cases, liability to pay moral damages may
not be imposed on the defendant who acted in
good faith.

GENERAL SANCTION (ART. 20)
For all other provisions of law which do not
especially provide their own sanction
a. In the exercise of his legal right or duty
b. Willfully or negligently causes damage to
another
Article 20 does not distinguish, the act may be
done either willfully or negligently
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CONTRA BONUS MORES (ART 21)
1. There is an act which is legal
2. But which is contrary to morals, good custom,
public order or public policy
3. And it is done with intent to injure
Damages are recoverable even if no positive law
has been violated

EXAMPLES OF ACTS CONTRA BONUS MORES:

1. BREACH OF A PROMISE TO MARRY
GENERAL RULE: Breach of a promise to marry
by itself is not actionable.
EXCEPTION: In cases where there is another act
independent of the breach of a promise to marry
which gives rise to liability
a. Cases where there was financial damage
b. Social humiliation caused to one of the
parties
c. Where there was moral seduction
d. If the breach was done in a manner that is
clearly contrary to good morals

























2. SEDUCTION WITHOUT BREACH OF PROMISE
TO MARRY
Seduction by itself, is also an act contrary to
morals, good customs and public policy
The defendant is liable if he employed deceit,
enticement, superior power or abuse of
confidence in successfully having sexual
intercourse with another even if he is satisfied his
lust without promising to marry the offended party
It may not even matter that the plaintiff and the
defendant are of the same gender

3. SEXUAL ASSAULT
Defendant is liable for all forms of sexual assault

4. DESERTION BY A SPOUSE
A spouse has the legal obligation to live with
his/her spouse. If a spouse does not perform
his/her duty to the other, he may be liable for
damages for such omission because the same is
contrary to law, morals, good customs and public
policy.

5. TRESPASS AND DEPRIVATION OF
PROPERTY

2 KINDS:
a. TRESPASS TO AND/OR DEPRIVATION OF
REAL PROPERTY
Liability for damages under the RPC and Art.
451 of the Civil Code requires intent or bad
faith
Gashem Shookat Baksh v. CA moral
seduction connotes the idea of deceit,
enticement, superior power or abuse of
confidence on the part of the seducer to
which the woman has yielded for which the
seducer can be held liable for damages
A builder in good faith who acted negligently
may be held liable under Art. 2176 NCC
Art. 448 of the Civil Code in relation to Art.
456 does not permit action for damages
where the builder, planter or sower acted in
good faith. The landowner is limited to the
options given to him under article 448

Constantino v. Mendez Sexual
intercourse is not by itself a basis for
recovery but damages could be awarded if
the sexual intercourse is not a product of
voluntariness or mutual desire
b. TRESPASS TO AND/OR DEPRIVATION OF
PRIVATE PROPERTY
In the field of tort, trespass extends to all
cases where a person is deprived of his
personal property even in the absence of
criminal liability
Examples: theft, robbery
Tanjanco v. CA For one whole year, the
plaintiff, a woman of adult age, maintained
intimate sexual relations with the appellant
with repeated acts of intercourse. There is
here voluntariness and mutual passion.
Hence, no case is made under Article 21,
NCC

Magbanua v. IAC, 137 SCRA 352 it may
cover cases where the defendant was
deprived of personal property for the purpose
of obtaining possession of real property. The
defendant who was landlord, was held liable
because he deprived the plaintiffs, his
tenants of water in order to force them to
vacate the lot they were cultivating.













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6. ABORTION AND WRONGFUL DEATH
Damages may be recovered by both spouses if:
a. The abortion was cause through the
physicians negligence or
b. Was done intentionally without their consent

NOTE: A doctor who performs an illegal
abortion is criminally liable under Art. 259
RPC










7. ILLEGAL DISMISSAL
The right of the employer to dismiss an employee
should not be confused with the manner in which
the right is exercised and the effects of flowing
therefrom.
If the dismissal was done anti-socially and
oppressively, the employer should be deemed to
have violated Art. 1701 of the Civil code (which
prohibits acts of oppression by either capital or
labor against the other) and Art. 21
An employer may be held liable for damages if
the manner of dismissing is contrary to morals
good customs and public policy.

8. MALICIOUS PROSECUTION
An action for damages brought by one against
another whom a criminal prosecution, civil suit, or
other legal proceeding has been instituted
maliciously and without probable cause, after
termination of such prosecution, suit or
proceeding in favor of the defendant therein.
The action which is terminated should be one
begun in malice, without probable cause to
believe that the charges can be sustained
STATUTORY BASIS: Art. 19-21, 2, 32, 33, 35,
2217, 2219(8) NCC

ELEMENTS:
a. The fact of the prosecution and the further
fact that the defendant was himself the
prosecutor; and that the action was finally
terminated with an acquittal
b. That in bringing the action, the prosecutor
acted without probable cause
c. The prosecutor was actuated or impelled by
legal malice


NOTE: Presence of probable cause signifies
absence of malice.













9. PUBLIC HUMILIATION
Such acts also constitute an offense under Art.
359, RPC (slander by deed)













10. UNJUST ENRICHMENT

Art. 22. Every person who through an act of
performance by another, or any other means,
acquires or comes into possession of
something at the expense of the latter without
just or legal ground, shall return the same to
him.

Art. 23. Even when an act or event causing
damage to another's property was not due to
Manila Electric Co. v. CA The right to
disconnect and deprive the customer, who
unreasonably fails to pay his bills of electricity
should be exercised in accordance with the
law and rules. Example: If a company
disconnects the electricity service without
prior notice as required by the rules, the
company commits a tort under Art. 21 NCC
Globe Mackay and Radio Corp v. CA
Absence of malice signifies good faith on the part
of the defendant, good faith may even be based
on mistake of law. Acquittal presupposes that a
criminal information is filed in court and final
judgment rendering dismissing the case,
nevertheless, prior acquittal may include
dismissal by the prosecutor after preliminary
investigation.
Geluz v. CA, 2 SCRA 802 Husband of a
woman who voluntarily procured her abortion
may recover damages from the physician
who cause the same on account of distress
and mental anguish attendant to the loss of
the unborn child and the disappointment of
his parental expectation.
Patricio v. Hon. Oscar Leviste - A person can
be held liable for damages for slapping another in
public.
Grand Union Supermarket v. Espino a
defendant may likewise be guilty of a tort even if
he acted in good faith if the action has caused
humiliation to another.
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the fault or negligence of the defendant, the
latter shall be liable for indemnity if through the
act or event he was benefited.

Art. 2142. Certain lawful, voluntary and
unilateral acts give rise to the juridical relation
of quasi-contract to the end that no one shall
be unjustly enriched or benefited at the
expense of another. (n)


11. OSTENTATIOUS DISPLAY OF WEALTH
Thoughtless extravagance for pleasure or display
during a period of public want or emergency


12. VIOLATION OF RIGHT OF PRIVACY AND
FAMILY RELATIONS

The following acts though they may not constitute
a criminal offense, shall produce a cause of
action for damages, prevention and other relief:
a. Prying into the privacy of another's residence
b. Meddling with or disturbing the private life or
family relations of another
c. Intriguing to cause another to be alienated
from his friends
d. Vexing or humiliating another on account of
his religious beliefs, lowly station in life. Place
of birth, physical defect, or other personal
condition

13. DERELICTION OF OFFICIAL DUTY OF PUBLIC
OFFICERS
May be brought by any person suffering from
material or moral loss because a public servant
refuses or neglects, without just cause to perform
his official duty (art 27).
REQUISITES:
a. defendant is a public officer charged with the
performance of a duty in favor of the plaintiff
b. he refused or neglected without just cause to
perform such duty (ministerial)
c. plaintiff sustained material or moral loss as
consequence of such non-performance
d. the amount of such damages, if material

14. UNFAIR COMPETITION
Unfair competition in agricultural, commercial or
industrial enterprises or in labor through the use
of force, intimidation, deceit. Machination or other
unjust, oppressive or highhanded method (Art 28)


15. MALICIOUS PROSECUTION
ELEMENTS
a. That the defendant was himself the
prosecutor/ he instigated its commencement
b. That it finally terminates in his acquittal
c. That in bringing it the prosecutor acted
without probable cause, and
d. That he was actuated by legal malice, that is,
by improper and sinister motive

16. VIOLATION OF RIGHTS AND LIBERTIES OF
ANOTHER PERSON

Art. 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights
and liberties of another person shall be liable
to the latter for damages:
1. Freedom of religion;
2. Freedom of speech;
3. Freedom to write for the press or to
maintain a periodical publication;
4. Freedom from arbitrary or illegal
detention;
5. Freedom of suffrage;
6. The right against deprivation of
property without due process of law;
7. The right to a just compensation when
private property is taken for public
use;
8. The right to the equal protection of the
laws;
9. The right to be secure in one's person,
house, papers, and effects against
unreasonable searches and seizures;
10. The liberty of abode and of changing
the same;
11. The privacy of communication and
correspondence;
12. The right to become a member of
associations or societies for purposes
not contrary to law;
13. The right to take part in a peaceable
assembly to petition the government
for redress of grievances;
14. The right to be free from involuntary
servitude in any form;
15. The right of the accused against
excessive bail;
16. The right of the accused to be heard
by himself and counsel, to be
informed of the nature and cause of
the accusation against him, to have a
speedy and public trial, to meet the
witnesses face to face, and to have
compulsory process to secure the
attendance of witness in his behalf;
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17. Freedom from being compelled to be
a witness against one's self, or from
being forced to confess guilt, or from
being induced by a promise of
immunity or reward to make such
confession, except when the person
confessing becomes a State witness;
18. Freedom from excessive fines, or
cruel and unusual punishment, unless
the same is imposed or inflicted in
accordance with a statute which has
not been judicially declared
unconstitutional; and
19. Freedom of access to the courts.

In any of the cases referred to in this article,
whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved
party has a right to commence an entirely
separate and distinct civil action for damages,
and for other relief. Such civil action shall
proceed independently of any criminal
prosecution (if the latter be instituted), and mat
be proved by a preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not
demandable from a judge unless his act or
omission constitutes a violation of the Penal
Code or other penal statute.

17. NUISANCE
Any act, omission, establishment, condition of
property, or anything else which:
e. Injures or endangers the health or safety to
others, or
f. Annoys or offends the senses, or
g. Shocks, defies, or disregards decency or
morality, or
h. Obstructs or interferes with the free passage
of any public highway or streets, or any body
of water
i. Hinders or impairs use of property

KINDS
a. Nuisance Per Se - denounced as nuisance
by common law or by statute
b. Nuisance Per Accidens - those which are in
their nature not nuisances, but may become
so by reason of their locality, surroundings,
or the manner in which they may be
conducted, managed, etc.
c. Public - affects a community or
neighborhood or any considerable number of
persons
d. Private - one that is not included in the
foregoing definition; affect an individual or a
limited number of individuals only

REMEDIES AGAINST PUBLIC NUISANCES
a. Prosecution under the RPC or any local
ordinance
b. Civil action
c. Abatement, without judicial proceeding


WHO MAY AVAIL OF REMEDIES
a. Public officers
b. Private persons - if nuisance is specially
injurious to himself; the ff. steps must be
made:
Demand be first made upon owner or
possessor of the property to abate the
nuisance
That such demand has been rejected
That the abatement be approved by the
district health officer and executed with the
assistance of local police
That the value of destruction does not
exceed P3,000


REMEDIES AGAINST PRIVATE NUISANCES
a. Civil action
b. Abatement, without judicial proceedings

WHO MAY AVAIL OF REMEDIES
a. Public officers
b. Private persons - if nuisance is specially
injurious to himself; the ff. steps must be
made:
Demand be first made upon owner or
possessor of the property to abate the
nuisance
That such demand has been rejected
That the abatement be approved by the
district health officer and executed with the
assistance of local police
That the value of destruction does not
exceed P3,000


DOCTRINE OF ATTRACTIVE NUISANCE A
class of cases within the general rule that one is liable
for the injury resulting to another from failure to
exercise the degree of care commiserate with the
circumstances the attractiveness of the premises or of
the dangerous instrumentality to children of tender
years is to be considered as an implied invitation,
which takes the children who accepted it out of the
category of a trespasser and puts them in the category
of invitees, towards whom the owner of the premises or
instrumentality owes the duty of ordinary care








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CHAPTER 8: DAMAGES

DAMAGES MAY BE:

1. Actual or compensatory;
2. Moral;
3. Nominal;
4. Temperate or moderate;
5. Liquidated; or
6. Exemplary or corrective.





















NOTE:
A complaint for damages is a personal action
Proof of pecuniary loss is necessary to
successfully recover actual damages from the
defendant. No proof of pecuniary loss is
necessary in case of moral, nominal, temperate,
liquidated or exemplary damages.
The assessment of damages, except liquidated
ones, is left to the discretion of the court
according to the circumstances of each case.

1. ACTUAL/COMPENSATORY
Adequate compensation for the value of loss
suffered or profits which obligee failed to obtain
Exceptions:
a. Law
b. Stipulation

KINDS OF ACTUAL OR COMPENSATORY
DAMAGES

a. General Damage - natural, necessary and
logical consequences of a particular
wrongful act which result in injury; need not
be specifically pleaded because the law itself
implies or presumes that they resulted from
the wrongful act
b. Special Damages - damages which are the
natural, but not the necessary and inevitable
result of the wrongful act. (i.e., attorneys
fees)
REQUIREMENTS:
i. Need to be pleaded
ii. Pray for the relief that claim for loss be
granted
iii. Prove the loss

WHEN LOSS NEED NOT BE PROVED:
a. Liquidated damages previously agreed upon;
liquidated damages take the place of actual
damages except when additional damages
incurred
b. If damages other than actual are sought
c. Loss is presumed (ex: loss if a child or
spouse)
d. Forfeiture of bonds in favor of the
government for the purpose of promoting
public interest or policy (ex: bond for
temporary stay of alien)


CONTRACTS AND QUASI-CONTRACTS
a. Damages in case of Good Faith
i. Natural and probable consequences of
breach of obligations
ii. Parties have foreseen or could have
reasonably foreseen at the time the
obligation was created

b. Damages in case of Bad Faith
i. It is sufficient that damages may be
reasonably attributed to the non-
performance of the obligation.



CRIMES AND QUASI-CRIMES
INJURY DAMAGE DAMAGES
Legal
invasion of a
legal right
Loss, hurt or
harm which
results from the
injury
The recompense
or compensation
awarded for the
damage suffered
DAMAGE the detriment, injury or loss which is
occasioned by reason of fault of another in the
property or person
DAMAGES the pecuniary compensation
recompense or satisfaction for an injury
sustained, or as otherwise expressed, the
pecuniary consequences which the law imposes
for the breach of some duty or the violation of
some rights
DAMNUM ABSQUE INJURIA or Damage
without Injury a person may have suffered
physical hurt or injury, but for as long as no legal
injury or wrong has been done, there is no liability
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a. Defendant is liable for all damages that are
natural and probable consequences of the
act complained of;
b. Not necessary that damages have been
foreseen or could have been reasonably
foreseen.

VALUE OF LOSS SUFFERED
Destruction of things, fines or penalties, medical
& hospital bills, attorney's fees, interests, cost of
litigation

LOSS OF EARNING CAPACITY:
Variables to consider are:
a. life expectancy
b. net income/earnings total of the earnings
less expenses necessary for the creation of
such earnings and less living or other
incidental expenses









LOSS OF PROFITS (Lucrum Cessans)
May be determined by considering the average
profit for the preceding years multiplied by the
number of years during which the business was
affected by the wrongful act or breach

ATTORNEYS FEES
They are actual damages. It is due to the plaintiff
and not to counsel
Plaintiff must allege the basis of his claim for
attorneys fees in the complaint; the basis should
by one of the cases under Art. 2208

WHEN ARE ATTORNEYS FEES RECOVERABLE:
In the absence of stipulation, attorney's fees and
expenses of litigation, other than judicial costs,
cannot be recovered, except:
a. When exemplary damages are awarded;
b. When the defendant's act or omission has
compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
c. In criminal cases of malicious prosecution
against the plaintiff;
d. In case of a clearly unfounded civil action or
proceeding against the plaintiff;
e. Where the defendant acted in gross and
evident bad faith in refusing to satisfy the
plaintiff's plainly valid, just and demandable
claim;
f. In actions for legal support;
g. In actions for the recovery of wages of
household helpers, laborers and skilled
workers;
h. In actions for indemnity under workmen's
compensation and employer's liability laws;
i. In a separate civil action to recover civil
liability arising from a crime;
j. When at least double judicial costs are
awarded;

WHEN IS ACTUAL DAMAGES MITIGATED:
a. Contributory negligence
b. In contracts. Quasi-contracts and quasi-delict
i. Plaintiff has contravened the terms of
contract
ii. Plaintiff derived some benefit as result of
contract
iii. In case where exemplary damages are to
be awarded, that the defendant acted
upon the advise of counsel
Formula:
[2/3 x 80 (age at the time of death)] x monthly
earnings x 12 =GROSS EARNINGS

GE - Approximate Expenses (50% of GE) =Net
Earnings
iv. That the loss would have resulted in any
event
v. That since the filing of the action, the
defendant has done his best to lessen
the plaintiff's loss or injury


DAMAGES RECOVERABLE IN CASE OF
DEATH:
1. Medical & Hospital Bills
2. Damages for death
a. Minimum amount: P50,000
b. Loss of earning capacity unless
deceased had permanent physical
disability not caused by defendant so that
deceased had no earning capacity at
time of death
c. Support, if deceased was obliged to give
support (for period not more than 5
years)
d. Moral damages















2. MORAL DAMAGES

MORAL DAMAGES INCLUDE: (PBMF-MWSS)
a. Physical suffering
b. Besmirched reputation
c. Mental anguish
d. Fright
e. Moral shock
f. Wounded feelings
g. Social humiliation
h. Serious anxiety
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are needed
i. Sentimental value of real or personal
property may be considered in adjudicating
moral damages
j. The social and economic/financial standing
of the offender and the offended party should
be taken into consideration in the
computation of moral damages
k. Moral damages is awarded only to enable
the injured party to obtain means, diversions
or amusements that will serve to alleviate the
moral suffering he has undergone, by reason
of defendant's culpable action and not
intended to enrich a complainant at the
expense of defendant

IN WHAT CASES MAY MORAL DAMAGES BE
RECOVERED (Enumeration Not Exclusive):
a. Criminal offense resulting in physical injuries
b. Quasi-delicts causing physical injuries
c. Seduction, abduction, rape or other acts of
lasciviousness
d. Adultery and concubinage
e. Illegal or arbitrary detention or arrest
f. Illegal search
g. Libel, slander or other form of defamation
h. Malicious prosecution
i. Acts mentioned in art 309 of the RPC relating
to disrespect of the dead and interference
with funeral
j. Acts and actions referred to in arts 21, 26,
27, 28, 29, 30, 32, 34 and 35
k. The parents of the female seduced,
abducted, raped, or abused
l. Spouse, descendants, ascendants and
brother and sisters for acts mentioned in art
309
m. Art 2220 - in cases of willful injury to property
or breaches of contract where defendant
acted fraudulently or in bad faith

GENERAL RULE: The plaintiff must allege and
prove the factual basis for moral damages and its
causal relation to the defendants act

EXCEPTION: Moral damages may be awarded
to the victim in criminal proceedings without the
need for pleading proof of the basis hereof.

3. NOMINAL DAMAGES

Adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the
defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for
any loss suffered by him

ELEMENTS:
a. Plaintiff has a right
b. Right of plaintiff is violated
c. Purpose is not to identify but vindicate or
recognize right violated

NOTE:
The Law presumes damage although actual or
compensatory damages are not proven
They are damages in the name only and are
allowed simply in recognition of a technical injury
based on a violation of a legal right
Nominal damages cannot coexist with actual or
compensatory damages

4. TEMPERATE OR MODERATE DAMAGES

More than nominal but less than compensatory
where some pecuniary loss has been suffered
but its amount can't be proved with certainty due
to the nature of the case
In cases where the resulting injury might be
continuing and possible future complications
directly arising from the injury, while certain to
occur are difficult to predict, temperate damages
can and should be awarded on top of actual or
compensatory damages; in such cases there is
no incompatibility between actual and temperate
damages.

REQUISITES:
a. Some pecuniary loss
b. Loss is incapable of pecuniary estimation
c. Must be reasonable

5. LIQUIDATED DAMAGES

Those agreed upon by the parties to a contract,
to be paid in case of breach thereof

WHEN LIQUIDATED DAMAGES MAY BE
EQUITABLY REDUCED:
a. Iniquitous or unconscionable
b. Partial or irregular performance

6. EXEMPLARY OR CORRECTIVE DAMAGE

Imposed by way example or correction for the
public good, in addition to the moral, temperate,
liquidated to compensatory damages
NOTE: Exemplary damages cannot be recovered
as a matter of right; the court will decide whether
or not they should be adjudicated.

WHEN IMPOSABLE:
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a. Criminal offenses exemplary damages as a
part of the civil liability may be imposed when the
crime was committed with one or more
aggravating circumstances. Such damages are
separate and distinct from fines and shall be paid
to the offended party.
b. Quasi-delicts exemplary damages may be
granted if the defendant acted with gross
negligence.
c. Contracts and quasi-contracts the court may
award exemplary damages if the defendant acted
in a wanton, fraudulent, reckless, oppressive, or
malevolent manner.

WHAT MUST BE PROVED:
While the amount of exemplary damages need
not be proved, the plaintiff must show that he is
entitled to moral, temperate or compensatory
damages before the court may consider the
question of whether or not exemplary damages
should be awarded.
In case liquidated damages have been agreed
upon, although no proof of loss is necessary in
order that such liquidated damages may be
recovered, nevertheless, before the court may
consider the question of granting exemplary in
addition to the liquidated damages, the plaintiff
must show that he would be entitled to moral,
temperate or compensatory damages were it not
for the stipulation for liquidated damages.