156 PHILIPPINE REPORTS ANNOTATED

Batarra vs. Marcos

[No. 2929. December 7, 1906.]

FAUSTA BATARRA, plaintiff and appellee, vs.

FRANCISCO MARCOS, defendant and appellant.

1. MARRIAGE; BREACH OF PROMISE; ILLEGAL

CONSIDERATION.—A promise of marriage based
upon carnal connection is founded upon an unlawful
consideration and no action can be maintained by the
woman against the man therefor where the woman is
over the age of 23, and hence the act does not
constitute the crime of estupro. (Arts. 1305, 1306,
Civil Code.)

157

VOL. 7, DECEMBER 7, 1907 157

Batarra vs. Marcos

2. ID.; ID.; DAMAGES.—Nor can an action be

maintained under article 1902 of the Civil Code, for
the woman voluntarily participated in the act.

APPEAL from a judgment of the Court of First

Instance of Manila.
The facts are stated in the opinion of the court.
Maximo Mina, for appellant.
Leocadio Joaquin, for appellee.
WILLARD, J.:

The judgment of the court below commences as follows:

"This case is now before the court for trial upon a complaint
by the plaintiff to recover damages for breach of promise of
marriage by defendant to the plaintiff, the defendant
inducing the plaintiff to submit herself to sexual relations
with him on account of such promise of marriage."

Judgment was entered in that court in favor of the

plaintiff for the sum of 500 pesos. The defendant
excepted to such judgment and has brought the case
here by bill of exceptions.
The facts appearing in the record do not show the
commission of the crime of seduction, as that crime is
defined by article 443 of the Penal Code, because it
does not appear that the plaintiff was under 23 years
of age.
The judgment can not, therefore, be based upon
article 449 of that code, which provides for
indemnification in cases of rape, seduction, and
abduction.
It must rest upon the proposition that the
defendant, having failed to perform his promise of
marriage, is liable for the breach of that contract and
for damages resulting from his seduction of the
plaintiff, the carnal connection being the consideration
(cause) of the promise. This proposition can not be
maintained. If the criminal intercourse between the
parties was a crime or misdemeanor, the crime or
misdemeanor was common to both parties, and article
1305 of the Civil Code prevents a recovery. The same is
true if the act did not constitute a crime or
misdemeanor. It was in any event an immoral act and
the fault
158

158 PHILIPPINE REPORTS ANNOTATED

Gonzalez vs. Bañez
 lay with both parties. By the provisions of article 1306
of the same code there can, in such a case, be no
recovery by one against the other.
Nor can there be a recovery under the provisions of
article 1902 of the Civil Code, which provides as
follows: "A person who by an act or omission causes
damage to another when there is fault or negligence
shall be obliged to repair the damage so done;" for the
plaintiff voluntarily participated in the act. "Scienti et
volenti nula fit injuria neque dolus."
The judgment of the court below is reversed and the
defendant is acquitted of the complaint, with the costs
of the first instance. No costs will be allowed to either
party in this court.
After expiration of twenty days let judgment be
entered in accordance herewith, and ten days
thereafter let the record be remanded to the court
below for proper action. So ordered.

Torres, Mapa, and Carson, JJ., concur.

Tracey, J., concurs in the result.
Johnson, J., did not sit in this case.

Defendant acquitted.

_________

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