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Monthly Archives: January 2013

The Sword

sword

A sword is a symbol of power. It is a weapon for attacking or defending. With the right person, it ensures justice and order. With the wrong ones, we expect chaos and disorder. It is one object I associate myself.

A sword is formed by forging and tempering steel, under extreme heating, cooling and reheating. It is crafted from thousand of hammer blows and beating to achieve desired properties, finished by a well crafted handle and fine sharpening.

Steel in itself is already strong. It is a unique metal derived from iron ore, coal and other minerals. It is lighter than iron but many times stronger than it. Forging, hammering, quenching and tempering are processes introduced to increase not just hardness but also the strength and quality of the sword itself.”

“How long you need to, say hammer the sword?” says a curious man. “There is no direct formula. It depends on how you feel you need to hammer it. After several hundred of blows, you can have a feel of the unfinished sword. You will know by heart if that thing can still take it or no more. To attain its maximum strength, the process must be exacted at verge of breaking. Anything more will make the sword break, hence useless.” said the blacksmith.

There is only one difference from that fact – that I am unbreakable. My malleable limits are infinite. Not even the infinite or infinitesimal attempt to break me will prosper. I do not lose my characteristics upon life’s beating. I collect them and make them part of my indestructible form. Of course it can only apply to my mind and spirit. The flesh does not always agree.

The sword is my personality. My handle is for those who are learned of the art. I am free to use. But be reminded that I am no one’s master nor I choose any one. I am the master of myself. I have all the geniuses you can think and need from a sword. I am a tool, but I am not a slave.

The unique duality of a sword is my very nature: for justice or impunity, offense or defense, to live or to die. Tested by fire, hammered by ridicule under the anvil of isolation. As a sword made for human use, I am, built to tear flesh. But not yet. I am just a sword waiting to be done – a sword asking for more beating.

 
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Posted by on January 31, 2013 in Personal

 

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Special Case of Direct Assault

directassault

It all started with a recitation in Criminal Law 2 subject. That morning, the topic being discussed is about Direct Assault, under Article 148 of the Revised Penal Code (Act No. 3815).

Article 148. Direct assaults. – Any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purpose enumerated in defining the crimes of rebellion and sedition, or shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance, shall suffer the penalty of prision correccional in its medium and maximum periods and a fine not exceeding P1,000 pesos, when the assault is committed with a weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a fine not exceeding P500 pesos shall be imposed.

There are actually two ways of committing Direct Assault based on the above provision.  First, by any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition. Second, by any person or persons who, without a public uprising, shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents,  while engaged  in  the  performance  of  official duties, or on occasion of such performance.

Suppose we have this scenario where two judges, both persons in authority, agreed to fight each other in a public place, can there be Direct Assault?

My answer, based on 2-second interval of thinking is NO. There can be NO DIRECT ASSAULT.

According to the professor, my answer is wrong.

I was stunned. How can I be wrong? When does the act of consenting each other to fight (and commit felony) which resulted to injuries can (still) be a valid cause of action?

It was a few days after that question that I realized that I am actually not expected to answer it correctly because it was a not so easy question of law at early freshman stage. The following are the elements of Direct Assault:

  1. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance.
  2. That the person assaulted is a person in authority or his agent.
  3. That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties, or [b] that he is assaulted by reason of the past performance of official duties.
  4. That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties.
  5. That there is no public uprising.

Take the hypothetical question (which according to the professor was based on actual events) in analysis. All the five (5) elements may be well satisfied. Unfortunately, I could not find a jurisprudence to seal the issue. After a web search, I found a somewhat similar instance in the same place as claimed by our law professor.

In Caoibes Jr. vs. Hon. Ombudsman (G.R. No. 132177.  July 19, 2001), the facts were closely related. In this case, Judge Caoibes boxed a fellow Judge Alumbres within the hallways of their chambers. A criminal case was brought by Judge Alumbres to the Ombudsman for physical injuries, malicious mischief for the destruction of eyeglasses and assault upon person in authority. Another complaint (administrative) was filed with the Supreme Court praying for the dismissal of Judge Caoibes from the judiciary on the ground of grave misconduct or conduct unbecoming a judicial officer. The Supreme Court held and directed the Ombudsman to dismiss the complaint filed with them and refer the same to them for appropriate action. The Court later decided the case under A.M. No. RTJ-99-1431 dated January 23, 2002, which held Judge Caoibes “guilty of violating the Code of Judicial Conduct and hereby impose upon him a fine of TWENTY THOUSAND PESOS (P20,000.00), with a warning that a repetition of the same or similar acts in the future will be dealt with more severely.” (What happened to the criminal offense?) Take note that this was an administrative and not a criminal proceeding.

But there was a material discrepancy in the case that would not be conclusive of res judicata in a strict sense. The two judges did not consented or agreed to fight each other. The undisputed facts showed that Judge Caoibes was aggressor and Judge Alumbres as the aggrieved. The question that must remain: “will the doctrine of  pari delicto apply in Direct Assault?”

In the case of Gelig vs. People (G.R. No. 173150.  July 28, 2010), the Court had the occasion in demonstrating a more discreet scenario of its application. Two public school teachers falling under the definition of “persons in authority under Art.152 of the Revised Penal Code were involved, one Lydia Gelig and the other Gemma Micarsos. The RTC decided the case convicting Lydia with complex crime of “Direct Assault with Unintentional Abortion”.  The Court of Appeals vacated the trial court ruling with Slight Physical Injuries.  It ruled that Lydia cannot be held liable for direct assault since Gemma descended from being a person in authority to a private individual when, instead of pacifying Lydia or informing the principal of the matter, she engaged in a fight with Lydia.  Likewise, Lydia’s purpose was not to defy the authorities but to confront Gemma on the alleged name-calling of her son.

It seems that for some reason, the Court of Appeals realized that there is equal fault or pari delicto in the case, thereby mitigating the penalty imposed to Lydia . Unfortunately, this was reversed by the Supreme Court:

x x x

The fact remains that at the moment Lydia initiated her tirades, Gemma was busy attending to her official functions as a teacher.  She tried to pacify Lydia by offering her a seat so that they could talk properly, but Lydia refused and instead unleashed a barrage of verbal invectives.  When Lydia continued with her abusive behavior, Gemma merely retaliated in kind as would a similarly situated person.  Lydia aggravated the situation by slapping Gemma and violently pushing her against a wall divider while she was going to the principal’s office.  No fault could therefore be attributed to Gemma. (emphasis supplied)

x x x

WHEREFORE, the Decision of the Court of Appeals finding petitioner Lydia Gelig guilty beyond reasonable doubt of the crime of slight physical injuries is REVERSED and SET ASIDE.  Judgment is hereby rendered finding Lydia Gelig guilty beyond reasonable doubt of the crime of direct assault and is ordered to suffer an indeterminate prison term of one (1) year and one (1) day to three (3) years, six (6) months and twenty-one (21) days of prision correccional.   She is also ordered to pay a fine of P1,000.00. SO ORDERED.

The applicability of pari delicto is still disputable above. In the ruling, the Supreme Court relied on the theory that Gemma is of no fault, hence pari delicto is not present. So, can Direct Assault really apply to a pure case of “equal fault”?

Finally (I was hoping it to be), in the case of Ubarra vs. Mapalad (A.M. No. MTJ-91-622 March 22, 1993) which interestingly involved a lawyer and a judge, the Supreme Court discussed  pari delicto taken in the criminal law environment:

x x x

Under the pari delicto doctrine, where the parties to a controversy are equally culpable or guilty, they shall have no action against each other, and it shall leave the parties where it finds them. This doctrine finds expression in the maxims “ex dolo malo non oritur actio”and“in pari delicto potior est conditio defendentis.

We find the application of the pari delicto theory in a criminal case to be strange, to say the least. In the first place, the rule on pari delicto is a rule in civil law. It is principally governed by Articles 1411 and 1412 of the Civil Code under the Chapter on Void or Inexistent Contracts, and presupposes a situation where the parties are in culpability similarly situated, i.e., in eodem loco. (Jandusay vs. Court of Appeals, 172 SCRA 376 [1989]). That this rule can by no means apply in a criminal case is evidenced by the aforesaid Article 1411 which provides in part that “[W]hen the nullity proceeds from the illegality of the cause or object of the contract, and the act constitutes a criminal offense, both parties being in pari delicto, they shall have no action against each other, and both shall be prosecuted.” Secondly, in view of the broader grounds of public policy, the rule may not be invoked against the State. Thirdly, in the prosecution of public crimes, the complainant is the State, — i.e., the People of the Philippines — while the private offended party is but a complaining witness. Any criminal act perpetrated by the latter on the occasion of the commission of the crime, or which may have given rise to the criminal act imputed to the accused is not the act or conduct of the State and can by no means bind it under the doctrine of pari delicto. To rule otherwise would be to establish a dangerous doctrine which would irreparably weaken the very foundations of the criminal justice system and frustrate the administration of justice. Whatever wrongful act may have been committed by the offended party may only be invoked to justify the accused’s own act or mitigate his liability. (emphases supplied)

It appears that the pronouncements are self-explanatory and conclusive(?). I will have to seal the answer to the question with the issue. It is admitted and accepted, until then again.

 
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Posted by on January 22, 2013 in Criminal Law

 

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Philippine Savings Bank vs. Mañalac, Jr. (457 SCRA 203)

FACTS:

Respondent spouses obtained a loan from petitioner covered by promissory note. As a security for the loan, respondent executed a Real Estate Mortgage in favor of the petitioner over eight parcels of land. Respondents were unable to pay the installments so that the loan obligations were restructured. Respondent entered into Deed of Sale with Assumption of Mortgage on 3 real properties (and another property) with spouses Galicia. Respondent’s repeated default in payment of past due obligations prompted the petitioner to file for extrajudicial foreclosure of remaining mortgaged properties. Respondent asked for partial release of mortgage after enclosing a cashier check payment. Petitioner sold some mortgaged properties that prompted respondent to institute action for damages. Trial court annulled the sale of mortgaged properties. The Court of appeals affirmed with modification the decision of trial court requiring indemnification of the respondent by petitioner.

 

ISSUE:

Whether or not there was novation in applying the payment made by respondent to loan account of Galicia.

 

RULING:

NO. Novation is never presumed. Novation is the extinguishment of an obligation by the substitution or change of the obligation by a subsequent one which extinguishes or modifies the first, either by changing the object or principal conditions, or, by substituting another in place of the debtor, or by subrogating a third person in the rights of the creditor. It is obvious that there was no agreement to form a new contract by novating the mortgage contracts of the Mañalacs and the Galicias. Neither can Mañalac be deemed substitute debtor within the contemplation of Article 1293 of the Civil Code. The Decision of the Court of Appeals was reversed and set aside.

 
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Posted by on January 14, 2013 in Case Digests, Civil Law

 

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Iloilo Traders Finance. Inc. vs. Heirs of Oscar Soriano, Jr. (404 SCRA 67)

FACTS:

Respondents executed two promissory notes secured by real property mortgages in favor of petitioner. The respondents defaulted and petitioner moved for extra-judicial foreclosure of the mortgages. Respondent filed a complaint against petitioner. The parties later entered into “amicable settlement” and submitted it to the trial court for approval. The trial court required the parties to give some clarifications on several issues that were not complied.  The amicable settlement was disapproved and the court proceeded. Respondents withdrew the case and filed a (new) case for novation and specific performance which was decided favorably for the respondents. The Court of Appeals affirmed the judgment.

 

ISSUE:

Whether or not the amicable settlement entered into between parties has novated the original obligation.

 

RULING:

NO. The parties entered into the agreement basically to put an end to Civil Case No. 14007 then pending before the Regional Trial Court.Concededly, the provisions of the settlement were beneficial to the respondent couple. The compromise extended the terms of payment and implicitly deferred the extrajudicial foreclosure of the mortgaged property. It was well to the interest of respondent spouses to ensure its judicial approval; instead, they went to ignore the order of the trial court and virtually failed to make any further appearance in court. This conduct on the part of respondent spouses gave petitioner the correct impression that the Sorianos did not intend to be bound by the compromise settlement, and its non-materialization negated the very purpose for which it was executed.

The decision of the court of the Court of Appeals affirming that of the trial court was reversed and set aside.

 
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Posted by on January 14, 2013 in Case Digests, Civil Law

 

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Rodzssen Supply Co. Inc. vs. Far East Bank & Trust Co. (357 SCRA 618)

FACTS:

Petitioner opened with respondent a domestic letter of credit (LOC) in favor of Ekman and Company, Inc. (Ekman) for the purchase of five hydraulic loaders. The first three hydraulic loaders were received by the petitioner before the expiry of LOC and respondent paid Ekman. The remaining two hydraulic loaders were received by the petitioner after the expiry of LOC/contract but respondent still paid Ekman. Petitioner refused to pay respondent. Respondent filed a case. Petitioner answered by way of affirmative defense that respondent had no cause of action being allegedly in bad faith and breach of contract. The trial court and Court of Appeals ruled in favor of respondent to recover from the cost of two hydraulic loaders.

 

ISSUE:

Whether or not the respondent is entitled of reimbursement from petitioner for its payment out of mutual negligence.

 

RULING:

YES. Petitioner should pay respondent bank the amount the latter expended for the equipment belatedly delivered by Ekman and voluntarily received and kept by petitioner. Respondent bank’s right to seek recovery from petitioner is anchored, not upon the inefficacious Letter of Credit, but on Article 2142 of the Civil Code which reads: “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.” When both parties to a transaction are mutually negligent in the performance of their obligations, the fault of one cancels the negligence of the other and, as in this case, their rights and obligations may be determined equitably under the law proscribing unjust enrichment.

 
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Posted by on January 14, 2013 in Case Digests, Civil Law

 

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PNB MADECOR vs. Uy (363 SCRA 128)

FACTS:

Guillermo Uy assigned to respondent his receivables due from Pantranco North Express Inc. (PNEI). Respondent filed a collection suit with an application for issuance of preliminary attachment against PNEI which was granted by the RTC. The sheriff issued a notice of garnishment addressed to PNB and PNB MADECOR. The RTC rendered judgment against PNEI with writ of execution causing the sheriff to garnish the amount therein from the credits and collectibles of PNEI from petitioner and levy upon the assets of petitioner should its personal assets be insufficient to cover its debt with PNEI. Petitioner claimed that as debtor, it is likewise a creditor for PNEI considering unpaid rentals of PNEI for its parcel of land and by operation of law on compensation, it is actually the PNEI that still has outstanding obligations to it.

 

ISSUE:

Whether or not there was legal compensation between the petitioner and PNEI as a defense of the former.

 

RULING:

NO. There could not be any compensation between PNEI’s receivables from PNB MADECOR and the latter’s obligation to the former because PNB MADECOR’s supposed debt to PNEI is the subject of attachment proceedings initiated by a third party, herein respondent Gerardo Uy.  This is a controversy that would prevent legal compensation from taking place, per the requirements set forth in Article 1279 of the Civil Code.  Moreover, it was not clear whether, at the time compensation was supposed to have taken place, the rentals being claimed by petitioner were indeed still unpaid.  Petitioner did not present evidence in this regard, apart from a statement of account.

 
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Posted by on January 14, 2013 in Case Digests, Civil Law

 

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Velarde vs. Court of Appeals (361 SCRA 57)

FACTS:
The private respondent executed a Deed of Sale with Assumption of Mortgage, with a balance of P1.8 million, in favor of the petitioners. Pursuant to said agreements, plaintiffs paid the bank (BPI) for three (3) months until they were advised that the Application for Assumption of Mortgage was denied. This prompted the plaintiffs not to make any further payment. Private respondent wrote the petitioners informing the non-fulfillment of the obligations. Petitioners, thru counsel responded that they are willing to pay in cash the balance subject to several conditions. Private respondents sent a notarial notice of cancellation/rescission of the Deed of Sale. Petitioners filed a complaint which was consequently dismissed by an outgoing judge but was reversed by the assuming judge in their Motion for Reconsideration. The Court of Appeals reinstated the decision to dismiss.

ISSUE:
Whether or not there is a substantial breach of contract that would entitle its rescission.

RULING:
YES. Article 1191 of the New Civil Code applies. The breach committed did not merely consist of a slight delay in payment or an irregularity; such breach would not normally defeat the intention of the parties to the contract. Here, petitioners not only failed to pay the P1.8 million balance, but they also imposed upon private respondents new obligations as preconditions to the performance of their own obligation. In effect, the qualified offer to pay was a repudiation of an existing obligation, which was legally due and demandable under the contract of sale. Hence, private respondents were left with the legal option of seeking rescission to protect their own interest.

 
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Posted by on January 14, 2013 in Case Digests, Civil Law

 

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