GASHEM SHOOKAT BAKSH v.

CA +

DECISION

G.R. No. 97336

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set
aside the Decision[1] of the respondent Court of Appeals in CA-G.R. CV No. 24256 which
affirmed in toto the 16 October 1989 Decision of Branch 38 (Lingayen) of the Regional Trial
Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not
damages may be recovered for a breach of promise to marry on the basis of Article 21 of the
Civil Code of the Philippines.

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the
aforesaid trial court a complaint[2] for damages against the petitioner for the alleged violation
of their agreement to get married. She alleges in said complaint that: she is twenty-two (22)
years old, single, Filipino and a pretty lass of good moral character and reputation duly
respected in her community; petitioner, on the other hand, is an Iranian citizen residing at the
Lozano Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at
the Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987, the latter courted
and proposed to marry her; she accepted his love on the condition that they would get married;
they therefore agreed to get married after the end of the school semester, which was in
October of that year; petitioner then visited the private respondent's parents in Bañaga,
Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20 August 1987,
the petitioner forced her to live with him in the Lozano Apartments; she was a virgin before she
began living with him; a week before the filing of the complaint, petitioner's attitude towards
her started to change; he maltreated and threatened to kill her; as a result of such
maltreatment, she sustained injuries; during a confrontation with a representative of the
barangay captain of Guilig a day before the filing of the complaint, petitioner repudiated their
marriage agreement and asked her not to live with him anymore and; the petitioner is already
married to someone living in Bacolod City. Private respondent then prayed for judgment
ordering the petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney's fees and costs, and
granting her such other relief and remedies as may be just and equitable. The complaint was
docketed as Civil Case No. 16503.

In his Answer with Counterclaim,[3] petitioner admitted only the personal circumstances of the
parties as averred in the complaint and denied the rest of the allegations either for lack of
knowledge or information sufficient to form a belief as to the truth thereof or because the true
facts are those alleged as his Special and Affirmative Defenses. He thus claimed that he never
proposed marriage to or agreed to be married with the private respondent; he neither sought
the consent and approval of her parents nor forced her to live in his apartment; he did not
maltreat her, but only told her to stop coming to his place because he discovered that she had
deceived him by stealing his money and passport; and finally, no confrontation took place with
a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint is
baseless and unfounded and that as a result thereof, he was unnecessarily dragged into court
and compelled to incur expenses, and has suffered mental anxiety and a besmirched
reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as
moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order[4]
embodying the stipulated facts which the parties had agreed upon, to wit:
"1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan, while the
defendant is single, Iranian, citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan City
since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum-Northwestern, Dagupan City, College

of Medicine, second year medicine proper.

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette, Fernandez Avenue,

Dagupan City since July, 1986 up to the present and a (sic) high school graduate;

4. That the parties happened to know each other when the Manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986."
After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16
October 1989 a decision[5] favoring the private respondent. The petitioner was thus ordered to
pay the latter damages and attorney's fees; the dispositive portion of the decision reads:
"IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiff and against the defendant.

1. Condemming (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.

2. Condemning further the defendant to pay the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation expenses
and to pay the costs.

3. All other claims are denied."[6]

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and
private respondent were lovers, (b) private respondent is not a woman of loose morals or
questionable virtue who readily submits to sexual advances, (c) petitioner, through
machinations, deceit and false pretenses, promised to marry private respondent, (d) because of
his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason
of that deceitful promise, private respondent and her parents -- in accordance with Filipino
customs and traditions -- made some preparations for the wedding that was to be held at the
end of October 1987 by looking for pigs and chickens, inviting friends and relatives and
contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of
the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our
sense of morality, good customs, culture and traditions. The trial court gave full credit to the
private respondent's testimony because, inter alia, she would not have had the temerity and
courage to come to court and expose her honor and reputation to public scrutiny and ridicule if
her claim was false.[7]

The above findings and conclusions were culled from the detailed summary of the evidence for
the private respondent in the foregoing decision, digested by the respondent Court as follows:
"According to plaintiff, who claimed that she was a virgin at the time and that she never had a
boyfriend before, defendant started courting her just a few days after they first met. He later
proposed marriage to her several times and she accepted his love as well as his proposal of
marriage on August 20, 1987, on which same day he went with her to her hometown of
Banaga, Bugallon, Pangasinan, as he wanted to meet her parents and inform them of their
relationship and their intention to get married. The photographs Exhs. "A" to "E" (and their
submarkings) of defendant with members of plaintiff's family or with plaintiff, were taken that
day. Also on that occasion, defendant told plaintiff's parents and brothers and sisters that he
intended to marry her during the semestral break in October, 1987, and because plaintiff's
parents thought he was good and trusted him, they agreed to his proposal for him to marry
their daughter, and they likewise allowed him to stay in their house and sleep with plaintiff
during the few days that they were in Bugallon. When plaintiff and defendant later returned to
Dagupan City, they continued to live together in defendant's apartment. However, in the early
days of October, 1987, defendant would tie plaintiff's hands and feet while he went to school,
and he even gave her medicine at 4 o'clock in the morning that made her sleep the whole day
and night until the following day. As a result of this live-in relationship, plaintiff became
pregnant, but defendant gave her some medicine to abort the foetus. Still plaintiff continued to
live with defendant and kept reminding him of his promise to marry her until he told her that
he could not do so because he was already married to a girl in Bacolod City. That was the time
plaintiff left defendant, went home to her parents, and thereafter consulted a lawyer who
accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her godmother,
and a barangay tanod sent by the barangay captain went to talk to defendant to still convince
him to marry plaintiff, but defendant insisted that he could not do so because he was already
married to a girl in Bacolod City, although the truth, as stipulated by the parties at the pre-trial,
is that defendant is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his
desire to marry Marilou, he already looked for sponsors for the wedding, started preparing for
the reception by looking for pigs and chickens, and even already invited many relatives and
friends to the forthcoming wedding."[8]
Petitioner appealed the trial court's decision to the respondent Court of Appeals which
docketed the case as CA-G.R. CV No. 24256. In his Brief,[9] he contended that the trial court
erred (a) in not dismissing the case for lack of factual and legal basis and (b) in ordering him to
pay moral damages, attorney's fees, litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the challenged decision[10] affirming in

toto the trial court's ruling of 16 October 1989. In sustaining the trial court's findings of fact,
respondent Court made the following analysis:
"First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years
old at the time, does not appear to be a girl of loose morals. It is uncontradicted that she was a
virgin prior to her unfortunate experience with defendant and never had a boyfriend. She is, as
described by the lower court, a barrio lass 'not used and accustomed to the trend of modern
urban life', and certainly would (sic) not have allowed 'herself to be deflowered by the
defendant if there was no persuasive promise made by the defendant to marry her.' In fact, we
agree with the lower court that plaintiff and defendant must have been sweethearts or so the
plaintiff must have thought because of the deception of defendant, for otherwise, she would
not have allowed herself to be photographed with defendant in public in so (sic) loving and
tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore,
defendant's pretense that plaintiff was a nobody to him except a waitress at the restaurant
where he usually ate. Defendant in fact admitted that he went to plaintiff's hometown of
Banaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p.
54, tsn May 18, 1988), at (sic) a beach party together with the manager and employees of the
Mabuhay Lancheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he
allegedly talked to plaintiff's mother who told him to marry her daughter (pp. 55-56, tsn id.).
Would defendant have left Dagupan City where he was involved in the serious study of
medicine to go to plaintiff's hometown in Bañaga, Bugallon, unless there was (sic) some kind of
special relationship between them? And this special relationship must indeed have led to
defendant's insincere proposal of marriage to plaintiff, communicated not only to her but also
to her parents, and (sic) Marites Rabino, the owner of the restaurant where plaintiff was
working and where defendant first proposed marriage to her, also knew of this love affair and
defendant's proposal of marriage to plaintiff, which she declared was the reason why plaintiff
resigned from her job at the restaurant after she had accepted defendant's proposal (pp. 6-7,
tsn March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character and must
think so low and have so little respect and regard for Filipino women that he openly admitted
that when he studied in Bacolod city for several years where he finished he B.S. Biology before
he came to Dagupan City to study medicine, he had a common-law wife in Bacolod City. In
other words, he also lived with another woman in Bacolod City but did not marry that woman,
just like what he did to plaintiff. It is surprising, then, that he felt so little compunction or
remorse in pretending to love and promising to marry plaintiff, a young, innocent, trustful
country girl, in order to satisfy his lust on her."[11]
and then concluded:
"In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent
and deceptive protestations of love for and promise to marry plaintiff that made her surrender
her virtue and womanhood to him and to live with him on the honest and sincere belief that he
would keep said promise, and it was likewise these (sic) fraud and deception on appellant's part
that made plaintiff's parents agree to their daughter's living-in with him preparatory to their
supposed marriage. And as these acts of appellant are palpably and undoubtedly against
morals, good customs, and public policy, and are even gravely and deeply derogatory and
insulting to our women, coming as they do from a foreigner who has been enjoying the
hospitality of our people and taking advantage of the opportunity to study in one of our
institutions of learning, defendant-appellant should indeed be made, under Art. 21 of the Civil
Code of the Philippines, to compensate for the moral damages and injury that he had caused
plaintiff, as the lower court ordered him to do in its decision in this case."[12]
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises
therein the single issue of whether or not Article 21 of the Civil Code applies to the case at
bar.[13]

It is petitioner's thesis that said Article 21 is not applicable because he had not committed any
moral wrong or injury or violated any good custom or public policy; he has not professed love
or proposed marriage to the private respondent; and he has never maltreated her. He criticizes
the trial court for liberally invoking Filipino customs, traditions and culture, and ignoring the
fact that since he is a foreigner, he is not conversant with such Filipino customs, traditions and
culture. As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses
that even if he had made a promise to marry, the subsequent failure to fulfill the same is
excusable or tolerable because of his Moslem upbringing; he then alludes to the Muslim Code
which purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not possess good moral character.
Moreover, his controversial "common law wife" is now his legal wife as their marriage had been
solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the
private respondent, petitioner claims that even if responsibility could be pinned on him for the
live-in relationship, the private respondent should also be faulted for consenting to an illicit
arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he
had professed his love to the private respondent and had also promised to marry her, such acts
would not be actionable in view of the special circumstances of the case. The mere breach of
promise is not actionable.[14]

On 26 August 1991, after the private respondent had filed her Comment to the petition and the
petitioner had filed his Reply thereto, this Court gave due course to the petition and required
the parties to submit their respective Memoranda, which they subsequently complied with.

As may be gleaned from the foregoing summation of the petitioner's arguments in support of
his thesis, it is clear that questions of fact, which boil down to the issue of the credibility of
witnesses, are also raised. It is the rule in this jurisdiction that appellate courts will not disturb
the trial court's findings as to the credibility of witnesses, the latter court having heard the
witnesses and having had the opportunity to observe closely their deportment and manner of
testifying, unless the trial court had plainly overlooked facts of substance or value which, if
considered, might affect the result of the case.[15]

Petitioner has miserably failed to convince Us that both the appellate and trial courts had
overlooked any fact of substance or value which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for review on
certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or
weigh all over again the evidence introduced by the parties before the lower court. There are,
however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr.,[16] this Court took
the time, again, to enumerate these exceptions:
xxx
"(1) When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly
mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave
abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a
misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact
are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals,
in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103
Phil. 401 [1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court
(Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]);
(8) When the findings of fact are conclusions without citation of specific evidence on which they
are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners' main
and reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the
Court of Appeals is premised on the supposed absence of evidence and is contradicted by the
evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970])."
Petitioner has not endeavored to point out to Us the existence of any of the above quoted
exceptions in this case. Consequently, the factual findings of the trial and appellate courts must
be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong.[17]
Congress deliberately eliminated from the draft of the New Civil Code the provisions that would
have made it so. The reason therefor is set forth in the report of the Senate Committee on the
Proposed Civil Code, from which We quote:
"The elimination of this chapter is proposed. That breach of promise to marry is not actionable
has been definitely decided in the case of De Jesus vs. Syquia.[18] The history of breach of
promise suits in the United States and in England has shown that no other action lends itself
more readily to abuse by designing women and unscrupulous men. It is this experience which
has led to the abolition of rights of action in the so-called Heart Balm suits in many of the
American states ...."[19]
This notwithstanding, the said Code contains a provision, Article 21, which is designed to
expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal
remedy for the untold number of moral wrongs which is impossible for human foresight to
specifically enumerate and punish in the statute books.[20]

As the Code Commission itself stated in its Report:

"'But the Code Commission has gone farther than the sphere of wrongs defined or determined
by positive law. Fully sensible that there are countless gaps in the statutes, which leave so many
victims of moral wrongs helpless, even though they have actually suffered material and moral
injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the
proposed Civil Code the following rule:

'ART. 23. Any person who wilfully 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.'

'An example will illustrate the purview of the foregoing norm: 'A' seduces the nineteen-year old
daughter of 'X.' A promise of marriage either has not been made, or can not be proved. The girl
becomes pregnant. Under the present laws, there is no crime, as the girl is above eighteen
years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore,
though the grievous moral wrong has been committed, and though the girl and her family have
suffered incalculable moral damage, she and her parents cannot bring any action for damages.
But under the proposed article, she and her parents would have such a right of action.

Thus at one stroke, the legislator, if the foregoing rule is approved, would vouchsafe adequate
legal remedy for that untold number of moral wrongs which it is impossible for human foresight
to provide for specifically in the statutes."[21]
Article 2176 of the Civil Code, which defines a quasi-delict thus:
"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."
is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-
delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an
Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it
includes not only negligence, but intentional criminal acts as well such as assault and battery,
false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned
by the Commission responsible for drafting the New Civil Code, intentional and malicious acts,
with certain exceptions, are to be governed by the Revised Penal Code while negligent acts or
omissions are to be covered by Article 2176 of the Civil Code.[22] In between these opposite
spectrums are injurious acts which, in the absence of Article 21, would have been beyond
redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19
and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs;
it has become much more supple and adaptable than the Anglo-American law on torts.[23]

In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that
where a man's promise to marry is in fact the proximate cause of the acceptance of his love by
a woman and his representation to fulfill that promise thereafter becomes the proximate cause
of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention
of marrying her and that the promise was only a subtle scheme or deceptive device to entice or
inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21 not because of such promise to marry but because of the fraud
and deceit behind it and the willful injury to her honor and reputation which followed
thereafter. It is essential, however, that such injury should have been committed in a manner
contrary to morals, good customs or public policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her surrender her
virtue and womanhood to him and to live with him on the honest and sincere belief that he
would keep said promise, and it was likewise these fraud and deception on appellant's part that
made plaintiff's parents agree to their daughter's living-in with him preparatory to their
supposed marriage."[24] In short, the private respondent surrendered her virginity, the
cherished possession of every single Filipina, not because of lust but because of moral
seduction -- the kind illustrated by the Code Commission in its example earlier adverted to. The
petitioner could not be held liable for criminal seduction punished under either Article 337 or
Article 338 of the Revised Penal Code because the private respondent was above eighteen (18)
years of age at the time of the seduction.

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of
promise to marry where the woman is a victim of moral seduction. Thus, in Hermosisima vs.
Court of Appeals,[25] this Court denied recovery of damages to the woman because:
"x x x we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant -- who was around
thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life
insurance agent are supposed to be -- when she became intimate with petitioner, then a mere
apprentice pilot, but, also, because the court of first instance found that, complainant
'surrendered herself' to petitioner because, 'overwhelmed by her love' for him, she 'wanted to
bind' him 'by having a fruit of their engagement even before they had the benefit of clergy.'"
In Tanjanco vs. Court of Appeals,[26] while this Court likewise hinted at possible recovery if
there had been moral seduction, recovery was eventually denied because We were not
convinced that such seduction existed. The following enlightening disquisition and conclusion
were made in the said case:
"The Court of Appeals seems to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who had been seduced. The essential
feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise
of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of
confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura,
27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that --

'To constitute seduction there must in all cases be some sufficient promise or inducement and
the woman must yield because of the promise or other inducement. If she consents merely
from carnal lust and the intercourse is from mutual desire, there is no seduction (43 Cent. Dig.
tit. Seduction, par. 56). She must be induced to depart from the path of virtue by the use of
some species of arts, persuasions and wiles, which are calculated to have and do have that
effect, and which result in her ultimately submitting her person to the sexual embraces of her
seducer' (27 Phil. 123).

And in American Jurisprudence we find:

'On the other hand, in an action by the woman, the enticement, persuasion or deception is the
essence of the injury; and a mere proof of intercourse is insufficient to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of
the female, and the defendant merely affords her the needed opportunity for the commission
of the act. It has been emphasized that to allow a recovery in all such cases would tend to the
demoralization of the female sex, and would be a reward for unchastity by which a class of
adventuresses would be swift to profit.' (47 Am. Jur. 662)

xxx

Over and above the partisan allegations, the facts stand out that for one whole year, from 1958
to 1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with
appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of
seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been
deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of
the defendant, she would not have again yielded to his embraces, much less for one year,
without exacting early fulfillment of the alleged promises of marriage, and would have cut short
all sexual relations upon -finding that defendant did not intend to fulfill his promise. Hence, we
conclude that no case is made under Article 21 of the Civil Code, and no other cause of action
being alleged, no error was committed by the Court of First Instance in dismissing the
complaint."[27]

In his annotations on the Civil Code,[28] Associate Justice Edgardo L. Paras, who recently retired
from this Court, opined that in a breach of promise to marry where there had been carnal
knowledge, moral damages may be recovered:
"x x x if there be criminal or moral seduction, but not if the intercourse was due to mutual lust.
(Hermosisima vs. Court of Appeals, L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733,
Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-
17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT
be the carnal knowledge, there is a chance that there was criminal or moral seduction, hence
recovery of moral damages will prosper. If it be the other way around, there can be no recovery
of moral damages, because here mutual lust has intervened). x x x."
together with "ACTUAL damages, should there be any, such as the expenses for the wedding
preparations (See Domalagon v. Bolifer, 33 Phil. 471)."

Senator Arturo M. Tolentino[29] is also of the same persuasion:

"It is submitted that the rule in Batarra vs. Marcos[30] still subsists, notwithstanding the
incorporation of the present article[31] in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but in the
vulgar sense of deception. But when the sexual act is accomplished without any deceit or
qualifying circumstance of abuse of authority or influence, but the woman, already of age, has
knowingly given herself to a man, it cannot be said that there is an injury which can be the basis
for indemnity.

But so long as there is fraud, which is characterized by wilfullness (sic), the action lies. The
court, however, must weigh the degree of fraud, if it is sufficient to deceive the woman under
the circumstances, because an act which would deceive a girl sixteen years of age may not
constitute deceit as to an experienced woman thirty years of age. But so long as there is a
wrongful act and a resulting injury, there should be civil liability, even if the act is not
punishable under the criminal law and there should have been an acquittal or dismissal of the
criminal case for that reason."
We are unable to agree with the petitioner's alternative proposition to the effect that granting,
for argument's sake, that he did promise to marry the private respondent, the latter is
nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to
Article 1412(1) of the Civil Code and the doctrine laid down in Batarra vs. Marcos,[32] the
private respondent cannot recover damages from the petitioner. The latter even goes as far as
stating that if the private respondent had "sustained any injury or damage in their relationship,
it is primarily because of her own doing,"[33] for:
"x x x She is also interested in the petitioner as the latter will become a doctor sooner or later.
Take notice that she is a plain high school graduate and a mere employee ... (Annex "C") or a
waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without doubt, is in need of a man
who can give her economic security. Her family is in dire need of financial assistance (TSN, pp.
51-53, May 18, 1988). And this predicament prompted her to accept a proposition that may
have been offered by the petitioner."[34]
These statements reveal the true character and motive of the petitioner. It is clear that he
harbors a condescending, if not sarcastic, regard for the private respondent on account of the
latter's ignoble birth, inferior educational background, poverty and, as perceived by him,
dishonorable employment. Obviously then, from the very beginning, he was not at all moved by
good faith and an honest motive. Marrying with a woman so circumstanced could not have
even remotely occurred to him. Thus, his profession of love and promise to marry were empty
words directly intended to fool, dupe, entice, beguile and deceive the poor woman into
believing that indeed, he loved her and would want her to be his life's partner. His was nothing
but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting
his proffer of love and proposal of marriage, she would be able to enjoy a life of ease and
security. Petitioner clearly violated the Filipino's concept of morality and so brazenly defied the
traditional respect Filipinos have for their women. It can even be said that the petitioner
committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which directs
every person to act with justice, give everyone his due and observe honesty and good faith in
the exercise of his rights and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent may
not have been impelled by the purest of intentions, she eventually submitted to the petitioner
in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that
she had qualms of conscience about the entire episode for as soon as she found out that the
petitioner was not going to marry her after all, she left him. She is not, therefore, in pari delicto
with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in
guilt or in legal fault."[35] At most, it could be conceded that she is merely in delicto.
"Equity often interferes for the relief of the less guilty of the parties, where his transgression
has been brought about by the imposition or undue influence of the party on whom the burden
of the original wrong principally rests, or where his consent to the transaction was itself
procured by fraud."[36]
In Mangayao vs. Lasud,[37] We declared:
"Appellants likewise stress that both parties being at fault, there should be no action by one
against the other (Art. 1412, New Civil Code). This rule, however, has been interpreted as
applicable only where the fault on both sides is, more or less, equivalent. It does not apply
where one party is literate or intelligent and the other one is not (c.f. Bough vs. Cantiveros, 40
Phil. 209)."
We should stress, however, that while We find for the private respondent, let it not be said that
this Court condones the deplorable behavior of her parents in letting her and the petitioner
stay together in the same room in their house after giving approval to their marriage. It is the
solemn duty of parents to protect the honor of their daughters and infuse upon them the
higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is
hereby DENIED, with costs against the petitioner.
SO ORDERED.

175 Phil. 94

MUÑOZ PALMA, J.:

These Petitions for review present the issue of whether or not the celebration of a town fiesta
authorized by a municipal council under Sec. 2282 of the Municipal Law as embodied in the
Revised Administrative Code is a governmental or a corporate or proprietary function of the
municipality.
A resolution of that issue will lead to another, viz: the civil liability for damages of the
Municipality of Malasiqui, and the members of the Municipal Council of Malasiqui, province of
Pangasinan, for a death which occurred during the celebration of the town fiesta on January 22,
1959, and which was attributed to the negligence of the municipality and its council members.

The following facts are not in dispute:

On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed resolution No.
159 whereby "it resolved to manage the 1959 Malasiqui town fiesta celebration on January 21,
22, and 23, 1959." Resolution No. 182 was also passed creating the "1959 Malasiqui Town
Fiesta Executive Committee" which in turn organized a subcommittee on entertainment and
stage, with Jose Macaraeg as Chairman. The council appropriated the amount of P100.00 for
the construction of 2 stages, one for the "zarzuela" and another for the "cancionan". Jose
Macaraeg supervised the construction of the stage and as constructed the stage for the
"zarzuela" was "5-1/2 meters by 8 meters in size, had a wooden floor high at the rear and was
supported by 24 bamboo posts -- 4 in a row in front, 4 in the rear and 5 on each side -- with
bamboo braces."[1]

The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui

employees of the Manila Railroad Company in Caloocan, Rizal. The troupe arrived in the
evening of January 22 for the performance and one of the members of the group was Vicente
Fontanilla. The program started at about 10:15 o'clock that evening with some speeches, and
many persons went up the stage. The "zarzuela" then began but before the dramatic part of the
play was reached, the stage collapsed and Vicente Fontanilla who was at the rear of the stage
was pinned underneath. Fontanilla was taken to the San Carlos General Hospital where he died
in the afternoon of the following day.

The heirs of Vicente Fontanilla filed a complaint with the Court of First Instance of Manila on
September 11, 1959 to recover damages. Named party-defendants were the Municipality of
Malasiqui, the Municipal Council of Malasiqui and all the individual members of the Municipal
Council in 1959.

Answering the complaint defendant municipality invoked inter alia the principal defense that
as a legally and duly organized public corporation it performs sovereign functions and the
holding of a town fiesta was an exercise of its governmental functions from which no liability
can arise to answer for the negligence of any of its agents.

The defendant councilors in turn maintained that they merely acted as agents of the
municipality in carrying out the municipal ordinance providing for the management of the town
fiesta celebration and as such they are likewise not liable for damages as the undertaking was
not one for profit; furthermore, they had exercised due care and diligence in implementing the
municipal ordinance.[2]

After trial, the Presiding Judge, Hon. Gregorio T. Lantin, narrowed the issue to whether or not
the defendants exercised due diligence in the construction of the stage. From his findings he
arrived at the conclusion that the Executive Committee appointed by the municipal Council had
exercised due diligence and care like a good father of the family in selecting a competent man
to construct a stage strong enough for the occasion and that if it collapsed that was due to
forces beyond the control of the committee on entertainment, consequently, the defendants
were not liable for damages for the death of Vicente Fontanilla. The complaint was accordingly
dismissed in a decision dated July 10, 1962.[3]

The Fontanillas appealed to the Court of Appeals. In a decision promulgated on October 31,
1968, the Court of Appeals through its Fourth Division composed at the time of Justices
Salvador V. Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the trial court's decision
and ordered all the defendants-appellees to pay jointly and severally the heirs of Vicente
Fontanilla the sums of P12,000.00 by way of moral and actual damages; P1,200.00 as attorney's
fees; and the costs.[4]

The case is now before Us on various assignments of errors all of which center on the
proposition stated at the opening sentence of this Opinion and which We repeat:

Is the celebration of a town fiesta an undertaking in the exercise of a municipality's

governmental or public function or is it of a private or proprietary character?

1. Under Philippine laws municipalities are political bodies corporate and as such are endowed
with the faculties of municipal corporations to be exercised by and through their respective
municipal governments in conformity with law, and in their proper corporate name, they may,
inter alia, sue and be sued, and contract and be contracted with.[5]

The powers of a municipality are twofold in character - public, governmental, or political on the
one hand, and corporate, private, or proprietary on the other. Governmental powers are those
exercised by the corporation in administering the powers of the state and promoting the public
welfare and they include the legislative, judicial, public, and political. Municipal powers on the
other hand are exercised for the special benefit and advantage of the community and include
those which are ministerial, private and corporate.[6]

As to when a certain activity is governmental and when proprietary or private, that is generally
a difficult matter to determine. The evolution of the municipal law in American jurisprudence,
for instance, has shown that none of the tests which have evolved and are stated in textbooks
have set down a conclusive principle or rule, so that each case will have to be determined on
the basis of attending circumstances.

In McQuillin on Municipal Corporations, the rule is stated thus: "A municipal corporation proper
has .... a public character as regards the state at large insofar as it is its agent in government,
and private (so-called) insofar as it is to promote local necessities and conveniences for its own
community."[7]
Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme Court
of Indiana in 1916, thus:

"Municipal corporations exist in a dual capacity, and their functions are twofold. In one they
exercise the right springing from sovereignty, and while in the performance of the duties
pertaining thereto, their acts are political and governmental. Their officers and agents in such
capacity, though elected or appointed by them, are nevertheless public functionaries
performing a public service, and as such they are officers, agents, and servants of the state. In
the other capacity the municipalities exercise a private, proprietary or corporate right, arising
from their existence as legal persons and not as public agencies. Their officers and agents in the
performance of such functions act in behalf of the municipalities in their corporate or individual
capacity, and not for the state or sovereign power." (112 N.E., 994-995)
In the early Philippine case of Mendoza v. de Leon, 1916, the Supreme Court, through Justice
Grant T. Trent, relying mainly on American jurisprudence classified certain activities of the
municipality as governmental, e.g.: regulations against fire, disease, preservation of public
peace, maintenance of municipal prisons, establishment of schools, post-offices, etc., while the
following are corporate or proprietary in character, viz: municipal waterworks, slaughterhouses,
markets, stables, bathing establishments, wharves, ferries, and fisheries.[8] Maintenance of
parks, golf courses, cemeteries and airports among others, are also recognized as municipal or
city activities of a proprietary character.[9]

2. This distinction of powers becomes important for purposes of determining the liability of the
municipality for the acts of its agents which result in an injury to third persons.

If the injury is caused in the course of the performance of a governmental function or duty no
recovery, as a rule, can be had from the municipality unless there is an existing statute on the
matter,[10] nor from its officers, so long as they performed their duties honestly and in good
faith or that they did not act wantonly and maliciously.[11] In Palafox, et al. v. Province of Ilocos
Norte, et al., 1958, a truckddriver employed by the provincial government of Ilocos Norte ran
over Proceto Palafox in the course of his work at the construction of a road. The Supreme Court
in affirming the trial court's dismissal of the complaint for damages held that the province could
not be made liable because its employee was in the performance of a governmental function -
the construction and maintenance of roads - and however tragic and deplorable it may be, the
death of Palafox imposed on the province no duty to pay monetary consideration.[12]

With respect to proprietary functions, the settled rule is that a municipal corporation can be
held liable to third persons ex contractu[13] or ex delicto.[14]

"Municipal corporations are subject to be sued upon contracts and in tort. x x x

xxx xxx xxx

"The rule of law is a general one, that the superior or employer must answer civilly for the
negligence or want of skill of his agent or servant in the course or line of his employment, by
which another, who is free from contributory fault, is injured. Municipal corporations under the
conditions herein stated, fall within the operation of this rule of law, and are liable, accordingly,
to civil actions for damages when the requisite elements of liability coexist. xx xx=" (Dillon on
Municipal Corporations, 5th ed. Secs. 1610, 1647, cited in Mendoza v. de Leon, supra, 514)
3. Coming to the case before Us, and applying the general tests given above, We hold that the
holding of the town fiesta in 1959 by the Municipality of Malasiqui, Pangasinan, was an exercise
of a private or proprietary function of the municipality.

Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code provides:
"Section 2282. Celebration of fiestas. - A fiesta may be held in each municipality not oftener
than once a year upon a date fixed by the municipal council. A fiesta shall not be held upon any
other date than that lawfully fixed therefor, except when, for weighty reasons, such as
typhoons, inundations, earthquakes, epidemics, or other public calamities, the fiesta cannot be
held in the date fixed, in which case it may be held at a later date in the same year, by
resolution of the council."
This provision simply gives authority to the municipality to celebrate a yearly fiesta but it does
not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for the special
benefit of the community and not for the general welfare of the public performed in pursuance
of a policy of the state. The mere fact that the celebration, as claimed, was not to secure profit
or gain but merely to provide entertainment to the town inhabitants is not a conclusive test.
For instance, the maintenance of parks is not a source of income for the town, nonetheless it is
a private undertaking as distinguished from the maintenance of public schools, jails, and the
like which are for public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the true nature
of an undertaking or function of a municipality; the surrounding circumstances of a particular
case are to be considered and will be decisive. The basic element, however beneficial to the
public the undertaking may be, is that it is governmental in essence, otherwise, the function
becomes private or proprietary in character. Easily, no governmental or public policy of the
state is involved in the celebration of a town fiesta.[15]

4. It follows that under the doctrine of respondeat superior, petitioner municipality is to be held
liable for damages for the death of Vicente Fontanilla if that was attributable to the negligence
of the municipality's officers, employees, or agents.

"Art. 2176, Civil Code: Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. x x x"

"Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not only for one's
own acts or omission, but also for those of persons for whom one is responsible. x x x"
On this point, the Court of Appeals found and held that there was negligence.

The trial court gave credence to the testimony of Angel Novado, a witness of the defendants
(now petitioners), that a member of the "extravaganza troupe" removed two principal braces
located on the front portion of the stage and used them to hang the screen or "telon", and that
when many people went up the stage the latter collapsed. This testimony was not believed
however by respondent appellate court, and rightly so. According to said defendants, those two
braces were "mother" or "principal" braces located semi-diagonally from the front ends of the
stage to the front posts of the ticket booth located at the rear of the stage and were fastened
with a bamboo twine.[16] That being the case, it becomes incredible that any person in his
right mind would remove those principal braces and leave the front portion of the stage
practically unsupported. Moreover, if that did happen, there was indeed negligence as there
was lack of supervision over the use of the stage to prevent such an occurrence.

At any rate, the guitarist who was pointed to by Novado as the person who removed the two
bamboo braces denied having done so. The Court of Appeals said: "Amor by himself alone could
not have removed the two braces which must be about ten meters long and fastened them on
top of the stage for the curtain. The stage was only five and a half meters wide. Surely, it would
be impractical and unwieldy to use a ten meter bamboo pole, much more two poles, for the
stage curtain."[17]

The appellate court also found that the stage was not strong enough considering that only
P100.00 was appropriated for the construction of two stages and while the floor of the
"zarzuela" stage was of wooden planks, the posts and braces used were of bamboo material.
We likewise observe that although the stage was described by the petitioners as being
supported by "24" posts, nevertheless there were only 4 in front, 4 at the rear, and 5 on each
side. Where were the rest?

The Court of Appeals thus concluded:

"The court a quo itself attributed the collapse of the stage to the great number of onlookers
who mounted the stage. The municipality and/or its agents had the necessary means within its
command to prevent such an occurrence. Having failed to take the necessary steps to maintain
the safety of the stage for the use of the participants in the stage presentation prepared in
connection with the celebration of the town fiesta, particularly, in preventing nonparticipants
or spectators from mounting and accumulating on the stage which was not constructed to
meet the additional weight, the defendants-appellees were negligent and are liable for the
death of Vicente Fontanilla." (pp. 30-31, rollo, L-29993)
The findings of the respondent appellate court that the facts as presented to it establish
negligence as a matter of law and that the Municipality failed to exercise the due diligence of a
good father of the family, will not be disturbed by Us in the absence of a clear showing of an
abuse of discretion or a gross misapprehension of facts.[18]

Liability rests on negligence which is "the want of such care as a person of ordinary prudence
would exercise under the circumstances of the case."[19]

Thus, private respondents argue that the "Midas Extravaganza" which was to be performed
during the town fiesta was a "donation" offered by an association of Malasiqui employees of
the Manila Railroad Co. in Caloocan, and that when the Municipality of Malasiqui accepted the
donation of services and constructed precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect that the Municipality through its
"Committee on entertainment and stage" would build or put up a stage or platform strong
enough to sustain the weight or burden of the performance and take the necessary measures
to insure the personal safety of the participants.[20] We agree.

Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942,
which was an action against the city for injuries sustained from a fall when plaintiff was
descending the steps of the city auditorium. The city was conducting a "Know your City Week"
and one of the features was the showing of a motion picture in the city auditorium to which the
general public was invited and plaintiff Sanders was one of those who attended. In sustaining
the award for damages in favor of plaintiff, the District Court of Appeal, Second District,
California, held inter alia that the "Know your City Week" was a "proprietary activity" and not a
"governmental one" of the city, that defendant owed to plaintiff, an "invitee", the duty of
exercising ordinary care for her safety, and plaintiff was entitled to assume that she would not
be exposed to a danger (which in this case consisted of lack of sufficient illumination of the
premises) that would come to her through a violation of defendant's duty.[21]

We can say that the deceased Vicente Fontanilla was similarly situated as Sanders. The
Municipality of Malasiqui resolved to celebrate the town fiesta in January of 1959; it created a
committee in charge of the entertainment and stage; an association of Malasiqui residents
responded to the call for the festivities and volunteered to present a stage show; Vicente
Fontanilla was one of the participants who like Sanders had the right to expect that he would
not be exposed to danger on that occasion.

Lastly, petitioner or appellant Municipality cannot evade responsibility and/or liability under
the claim that it was Jose Macaraeg who constructed the stage. The Municipality acting through
its municipal council appointed Macaraeg as chairman of the sub-committee on entertainment
and in charge of the construction of the "zarzuela" stage. Macaraeg acted merely as an agent of
the Municipality. Under the doctrine of respondeat superior mentioned earlier, petitioner is
responsible or liable for the negligence of its agent acting within his assigned tasks.[22]
"x x x when it is sought to render a municipal corporation liable for the act of servants or
agents, a cardinal inquiry is, whether they are the servants or agents of the corporation. If the
corporation appoints or elects them, can control them in the discharge of their duties, can
continue or remove them, can hold them responsible for the manner in which they discharge
their trust, and if those duties relate to the exercise of corporate powers, and are for the
peculiar benefit of the corporation in its local or special interest, they may justly be regarded as
its agents or servants, and the maxim of respondent superior applies." x x x (Dillon on Municipal
Corporations, 5th Ed., Vol. IV, p. 2879)
5. The remaining question to be resolved centers on the liability of the municipal councilors
who enacted the ordinance and created the fiesta committee.

The Court of Appeals held the councilors jointly and solidarily liable with the municipality for
damages under Article 27 of the Civil Code which provides that "any person suffering material
or moral loss because a public servant or employee refuses or neglects, without just cause, to
perform his official duty may file an action for damages and other relief against the latter."[23]

In their Petition for review the municipal councilors allege that the Court of Appeals erred in
ruling that the holding of a town fiesta is not a governmental function and that there was
negligence on their part for not maintaining and supervising the safe use of the stage, in
applying Article 27 of the Civil Code against them, and in not holding Jose Macaraeg liable for
the collapse of the stage and the consequent death of Vicente Fontanilla.[24]

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil
Code against them, for this particular article covers a case of non-feasance or nonperformance
by a public officer of his official duty; it does not apply to a case of negligence or misfeasance in
carrying out an official duty.

If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are
concerned, it is because of a plain error committed by respondent court which however is not
invoked in petitioners' brief.

In Miguel v. The Court of Appeals, et al., the Court, through Justice, now Chief Justice, Fred Ruiz
Castro, held that the Supreme Court is vested with ample authority to review matters not
assigned as errors in an appeal if it finds that their consideration and resolution are
indispensable or necessary in arriving at a just decision in a given case, and that this is
authorized under Sec. 7, Rule 51 of the Rules of Court.[25] We believe that this pronouncement
can well be applied in the instant case.

The Court of Appeals in its decision now under review held that the celebration of a town fiesta
by the Municipality of Malasiqui was not a governmental function. We upheld that ruling. The
legal consequence thereof is that the Municipality stands on the same footing as an ordinary
private corporation with the municipal council acting as its board of directors. It is an
elementary principle that a corporation has a personality, separate and distinct from its
officers, directors, or persons composing it[26] and the latter are not as a rule co-responsible in
an action for damages for tort or negligence (culpa aquiliana) committed by the corporation's
employees or agents unless there is a showing of bad faith or gross or wanton negligence on
their part.[27]

"xxx xxx xxx

"The ordinary doctrine is that a director, merely by reason of his office, is not personally liable
for the torts of his corporation; he must be shown to have personally voted for or otherwise
participated in them." xx xx xx
(Fletcher Cyclopedia Corporations, Vol. 3A, Chap. 11, p. 207)

"Officers of a corporation are not held liable for the negligence of the corporation merely
because of their official relation to it, but because of some wrongful or negligent act by such
officer amounting to a breach of duty which resulted in an injury ... To make an officer of a
corporation liable for the negligence of the corporation there must have been upon his part
such a breach of duty as contributed to, or helped to bring about, the injury; that is to say, he
must be a participant in the wrongful act." xx xx xx (pp. 207-208, ibid. )

xxx xxx xxx

"Directors who merely employ one to give a fireworks exhibition on the corporate grounds are
not personally liable for the negligent acts of the exhibitor." (p. 211, ibid.)
On these principles We absolve the municipal councilors from any liability for the death of
Vicente Fontanilla. The records do not show that said petitioners directly participated in the
defective construction of the "zarzuela" stage or that they personally permitted spectators to
go up the platform.

6. One last point We have to resolve is on the award of attorney's fees by respondent court.
Petitioner-municipality assails the award.

Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation may
be granted when the court deems it just and equitable. In this case of Vicente Fontanilla,
although respondent appellate court failed to state the grounds for awarding attorney's fees,
the records show however that attempts were made by plaintiffs, now private respondents, to
secure an extrajudicial compensation from the municipality; that the latter gave promises and
assurances of assistance but failed to comply; and it was only eight months after the incident
that the bereaved family of Vicente Fontanilla was compelled to seek relief from the courts to
ventilate what was believed to be a just cause.[28]

We hold, therefore, that there is no error committed in the grant of attorney's fees which after
all is a matter of judicial discretion. The amount of P1,200.00 is fair and reasonable.

PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the
Municipality of Malasiqui is concerned (L-30183), and We absolve the municipal councilors
from liability and SET ASIDE the judgment against them (L-29993).

Without pronouncement as to costs.

SO ORDERED.