I’m in this ultra boring seminar/training. Anyhow, I’d like to thank the facilitator for being considerate. Hopefully, someday I will actually find this seminar useful.
I’m imagining surfing at Lanuza beach only to realize that this is not the right time of year. Waves get better starting October. Well, I have another place in mind, Siargao! Hehe.
C. Loss due to fortuitious event
General Rule
Art. 1174 NCC – Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.
Exceptions (Instances when liability arises even though loss may be due to fortuitous event)
EXPRESS PROVISIONS OF THE LAW
Depositary – Art. 1979 NCC
Art. 1979. The depositary is liable for the loss of the thing through a fortuitous event:
(1) If it is so stipulated;
(2) If he uses the thing without the depositor’s permission;
(3) If he delays its return;
(4) If he allows others to use it, even though he himself may have been authorized to use the same.
The Bailee in Commodatum – Art. 1942 NCC
Art. 1942. The bailee is liable for the loss of the thing, even if it should be through a fortuitous event:
(1) If he devotes the thing to any purpose different from that for which it has been loaned;
(2) If he keeps it longer than the period stipulated, or after the accomplishment of the use for which the commodatum has been constituted;
(3) If the thing loaned has been delivered with appraisal of its value, unless there is a stipulation exemption the bailee from responsibility in case of a fortuitous event;
(4) If he lends or leases the thing to a third person, who is not a member of his household;
(5) If, being able to save either the thing borrowed or his own thing, he chose to save the latter.
The Officious Manager in Negotiorum Gestio – Arts. 2247-2248 NCC
Art. 2247. If there are two or more credits with respect to the same specific movable property, they shall be satisfied pro rata, after the payment of duties, taxes and fees due the State or any subdivision thereof.
Art. 2248. Those credits which enjoy preference in relation to specific real property or real rights, exclude all others to the extent of the value of the immovable or real right to which the preference refers.
The Payee in Solutio Indebiti – Art. 2159 par. 2 NCC
Art. 2159. Whoever in bad faith accepts an undue payment, shall pay legal interest if a sum of money is involved, or shall be liable for fruits received or which should have been received if the thing produces fruits.
He shall furthermore be answerable for any loss or impairment of the thing from any cause, and for damages to the person who delivered the thing, until it is recovered.
Lessees – Arts. 1648, 1671, 552 par. 2 NCC
Art. 1648. Every lease of real estate may be recorded in the Registry of Property. Unless a lease is recorded, it shall not be binding upon third persons.
Art. 1671. If the lessee continues enjoying the thing after the expiration of the contract, over the lessor’s objection, the former shall be subject to the responsibilities of a possessor in bad faith.
552 par. 2 A possessor in bad faith shall be liable for the deterioration or loss in every case, even if caused by a fortuitous event.
Independent Contractors – Arts. 1727-1728 NCC
Art. 1727. The contractor is responsible for the work done by persons employed by him.
Art. 1728. The contractor is liable for all the claims of laborers and others employed by him, and of third persons for death or physical injuries during the construction.
Common Carriers – Art. 1763 NCC
Art. 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilful acts or negligence of other passengers or of strangers, if the common carrier’s employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission.
IN CASES OF MORA OR DEFAULT
Mora Solvendi – Arts. 1165 par. 3, 1169, 552 par. 2
Art. 1165 par 3. If the obligor delays, or has promised to deliver the same thing to two or more persons who do not have the same interest, he shall be responsible for any fortuitous event until he has effected the delivery.
Art. 1169. Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation.
However, the demand by the creditor shall not be necessary in order that delay may exist:
(1) When the obligation or the law expressly so declare; or
(2) When from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract; or
(3) When demand would be useless, as when the obligor has rendered it beyond his power to perform.
In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins.
552 par. 2 A possessor in bad faith shall be liable for the deterioration or loss in every case, even if caused by a fortuitous event.
Mora Accipiendi – Arts. 1718, 1504 NCC
Case: Villaruel v. Manila Motor Co. (56 OG No. 16, p. 3148)
Art. 1718. The contractor who has undertaken to put only his work or skill, cannot claim any compensation if the work should be destroyed before its delivery, unless there has been delay in receiving it, or if the destruction was caused by the poor quality of the material, provided this fact was communicated in due time to the owner. If the material is lost through a fortuitous event, the contract is extinguished.
Art. 1504. Unless otherwise agreed, the goods remain at the seller’s risk until the ownership therein is transferred to the buyer, but when the ownership therein is transferred to the buyer the goods are at the buyer’s risk whether actual delivery has been made or not, except that:
(2) Where actual delivery has been delayed through the fault of either the buyer or seller the goods are at the risk of the party in fault.
Express Agreement of Parties – Art. 1306 NCC
Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.
Aleatory Contracts – Art. 2010 NCC
Art. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time.
DELIVERY OF PERFORMANCE
General Provisions – Arts. 1164-1168 NCC
Art. 1164. The creditor has a right to the fruits of the thing from the time the obligation to deliver it arises. However, he shall acquire no real right over it until the same has been delivered to him.
Art. 1165. When what is to be delivered is a determinate thing, the creditor, in addition to the right granted him by Article 1170, may compel the debtor to make the delivery.
If the thing is indeterminate or generic, he may ask that the obligation be complied with at the expense of the debtor.
If the obligor delays, or has promised to deliver the same thing to two or more persons who do not have the same interest, he shall be responsible for any fortuitous event until he has effected the delivery.
Art. 1166. The obligation to give a determinate thing includes that of delivering all its accessions and accessories, even though they may not have been mentioned.
Art. 1167. If a person obliged to do something fails to do it, the same shall be executed at his cost.
This same rule shall be observed if he does it in contravention of the tenor of the obligation. Furthermore, it may be decreed that what has been poorly done be undone.
Art. 1168. When the obligation consists in not doing, and the obligor does what has been forbidden him, it shall also be undone at his expense.
Failure to Deliver due to:
Delay – Art. 1169 NCC
Art. 1169. Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation.
However, the demand by the creditor shall not be necessary in order that delay may exist:
(1) When the obligation or the law expressly so declare; or
(2) When from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract; or
(3) When demand would be useless, as when the obligor has rendered it beyond his power to perform.
In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins.
Dolo Incidente vs. Dolo Causante – Arts. 1170-1171 NCC
Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages.
Art. 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action for future fraud is void.
Fault or Negligence – Arts. 1172-1173 NCC
Art. 1172. Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances.
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required.
Interest and Usury – Arts. 1175-1176 NCC
Art. 1175. Usurious transactions shall be governed by special laws.
Art. 1176. The receipt of the principal by the creditor without reservation with respect to the interest, shall give rise to the presumption that said interest has been paid.
The receipt of a later installment of a debt without reservation as to prior installments, shall likewise raise the presumption that such installments have been paid.
Remedies – Art. 1177 NCC
Art. 1177. The creditors, after having pursued the property in possession of the debtor to satisfy their claims, may exercise all the rights and bring all the actions of the latter for the same purpose, save those which are inherent in his person; they may also impugn the acts which the debtor may have done to defraud them.
Transmission of Rights – Art. 1178 NCC
Art. 1178. Subject to the laws, all rights acquired in virtue of an obligation are transmissible, if there has been no stipulation to the contrary.
DIFFERENT TYPES OF CIVIL OBLIGATIONS
Pure obligations – Art. 1179 NCC
Art. 1179. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, is demandable at once.
Every obligation which contains a resolutory condition shall also be demandable, without prejudice to the effects of the happening of the event.
Conditional Obligations – Art. 1181 NCC
Art. 1181. In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition.
Distinguished from Term or Period – Art. 1193 NCC
Art. 1193. Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that day comes.
Obligations with a resolutory period take effect at once, but terminate upon arrival of the day certain.
A day certain is understood to be that which must necessarily come, although it may not be known when.
If the uncertainty consists in whether the day will come or not, the obligation is conditional, and it shall be regulated by the rules of the preceding Section.
Kinds of Conditional Obligations
o With condition Precedent – Art 1187 NCC
Art. 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties, the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different.
In obligations to do and not to do, the courts shall determine, in each case, the retroactive effect of the condition that has been complied with.
o With condition subsequent – Art. 1190 NCC
Art. 1190. When the conditions have for their purpose the extinguishment of an obligation to give, the parties, upon the fulfillment of said conditions, shall return to each other what they have received.
In case of the loss, deterioration or improvement of the thing, the provisions which, with respect to the debtor, are laid down in the preceding article shall be applied to the party who is bound to return.
As for the obligations to do and not to do, the provisions of the second paragraph of Article 1187 shall be observed as regards the effect of the extinguishment of the obligation.
Kinds of Conditions – Art. 1182 NCC
Case: Tible v. Aquino (65 SCRA 207)
The Philippine Civil Service Commision under the 1987 constitution.
Composition
Chairman and two Commissioners.
II. Qualifications
1. Natural-born citizens of the Philippines
2. At the time of their appointment, at least thirty-five years of age
3. With proven capacity for public administration
4. Must not have been candidates for any elective position in the elections immediately preceding their apointment.
III. Appointment
The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.
IV. Duties and Functions
The Civil Service Commission, as the central personnel agency of the Government, shall:
1. Establish a career service and;
2. Adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service.
3. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and;
4. Institutionalize a management climate conducive to public accountability.
5. It shall submit to the President and the Congress an annual report on its personnel programs.
Section 2.
V. Prohibitions
1. The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.
2. Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.
3. No officer or employee of the civil service shall be removed or suspended except for cause provided by law.
4. No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.
5. The right to self-organization shall not be denied to government employees.
6. Temporary employees of the Government shall be given such protection as may be provided by law.
Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.
Section 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries.
Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.
Pensions or gratuities shall not be considered as additional, double, or indirect compensation.
Passing the bar exam is probably the most memorable moment that could come across a lawyer’s life. There’s no doubt that every lawyer could not forget in the agonizing anticipation for the bar exam results. The speech of the Chairman of the Committee on Bar Examinations turns the celebratory mood into a more serious note.It is a profession that has behind it, the history of nobility and greatness, responsible for providing rhyme, order and reason to this restless world.”
Surely if I would seek to validate this statement I would find a lot of sources that can prove it but then it would not be argument worth discussing. The question now is how long the lawyers can maintain this inside the ‘triumvirate of ancient professions’? Certainly the shift of the perception of the public on lawyers has alarmed the Supreme Court itself so that there is a need to raise the issue with the new lawyers. Should the situation need to improve then it will need new lawyers that have unquestionable integrity and an unbridled passion for upholding the justice system.
Definitely, conflicts are catalysts to the advance of civilization and there’s no arguing that what spawned from it are professionals that are dedicated to the resolution of conflicts but it has become arduous and painful that the parties involved, would lose so much and end up blaming the lawyers for their plight. Also, the questionable integrity of some of the lawyers has contributed to the waning trust of the public. This also gave rise to the need for Alternative Dispute Resolution. Although a few have chosen to settle their disputes outside the court from time to time, it has become a need to settle the court for a faster resolution and to reduce the workload of the judges.
Photo originally uploaded by John Linwood
“We always have a choice” Sue Richards, the Invisible Woman of the Fantastic Four said during a confrontation with the good natured (I guess women have that inherent ability called “empathy” that most men seem to lack) but corrupted Silver Surfer in questioning his motive in helping the uber villain Galactus in consuming the planet. Sometimes our positions, personality and abilities put us into a predicament; because others would want to exploit us to further their own ends; in the case of lawyers,with the power that they hold they abuse it for their own benefit; whether we like it or not, sometimes we are drawn into conflicts and we don’t know how to deal with it. And we end up saying “I have no choice.”
In this article, the author stated two reasons why people chose to enter into lawyering:
It is sad, I could not help but agree that majority choose the first, an apparent and easy choice. While it is the natural to man to choose himself first before others, lawyering being a profession demands that a lawyer should forgo personal interests and face a more pressing responsibility that arises just right after he was declared as such “to help in the administration of justice.” Such responsibility is embodied in the lawyer’s oath and even further expounded in the canon rules of the Code of Professional Responsibility.
CANON 1 – A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law of and legal processes.
The profession of lawyering is also a vocation in itself. Like any other profession, it could not realize its true goals without the guidance of God and the recognition that there are certain morals to follow in the course of practicing law. It should be a lawyer’s responsibility to uphold the dignity in the profession, pursue the cause of justice and promote respect for the rule of law, with God at the center of it all, we can be holy in a “not so-holy” profession. Indeed this profession has already become tainted by a few who chose a different path but it is not yet too late, we always have a choice.
Pursuit of excellence
Canon 5 – A lawyer shall keep abreast of legal developments, participate in continuing legal education programs, support efforts to achieve high standards in law schools as well as in the practical training of law students and assist in disseminating the law and jurisprudence.
Clearly, it is sinful to not pursue excellence in the practice of law. The presence of such provision in the Code of Professional Responsibility clearly underscores the importance of a lawyer’s continuous development that it is not enough to just pass the bar exam to be a lawyer. In the practice of law, the competence of a lawyer could determine protection of the client’s interest and also to ensure that justice is upheld.
Lastly, while life can be short and fleeting let us not fail to realize that each of us contribute something to mankind’s civilization and a lawyer has a bigger opportunity to affect change. Let the change be for the best.
“Great things are not done by impulse, but by a series of small things brought together.” – Vincent van Gogh
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Lanuza Pictures by Kage
