ERLINDA BATAL AND FRANK BATAL, (petitioners) VS.

LUZ SAN PEDRO AND

KENICHIRO TOMINAGA (land owner) (respondents)

 owners of a parcel of land, their house was erected, Lot 1509-C-3 with an area of 700
square meters situated in Barangay Malis, Guiguinto, Bulacan.
 Luz and kenichiro contacted batal to conduct a survey of their lot P6,500.00.
 Additional fee of P1,500.00 in order to determine the exact boundaries of the same by
which they will base the construction of their perimeter fence.
 concrete fence measuring about eight (8) feet in height and cost them P250,000.00 to
build.
 In 1996, a complaint was lodged against luz and kenichiro that the northern portion of their
fence overlapped in adjoining lot.
 Later, they found out it was not Frank but his wife Erlinda Batal (Erlinda), who is a licensed
geodetic engineer.
 In their defense, the defendants-spouses Frank and Erlinda Batal submitted that Frank
never represented himself to be a licensed geodetic engineer. It was Erlinda who
supervised her husband's work [and t]hat the house and lot of plaintiffs, Luz and Kenichiro,
were already fenced even before they were contracted to do a resurvey of the same and
the laying out of the concrete monuments. The spouses Frank and Erlinda also refuted
the spouses Luz's and Kenichiro's allegation of negligence and averred that the subject
complaint was instituted to harass them.

DECISION ------- The petitioners should do the ff:

 Erlinda & Frank will pay to plaintiffs 6, 500. 00, refund for their professional fees.
 Three Hundred Thousand Pesos (P300,000.00) as actual damages;
 50, 000 for attorney’s fees
 pay to plaintiffs the costs of this suit.

Such mistake or negligence happened because quite obviously the installation of said
concrete monuments was without the needed supervision of [respondent] Erlinda Batal,
the one truly qualified to supervise the same.

Culpa, or negligence, may be understood in two different senses: either as culpa

aquiliana, which is the wrongful or negligent act or omission which creates a vinculum
juris and gives rise to an obligation between two persons not formally bound by any other
obligation, or as culpa contractual, which is the fault or negligence incident in the
performance of an obligation which already existed, and which increases the liability from
such already existing obligation.13 Culpa aquiliana is governed by Article 2176 of the Civil
Code and the immediately following Articles; while culpa contractual is governed by
Articles 1170 to 1174 of the same Code.
 POLO PANTALEON (Petitioner) VS. AMERICAN EXPRESS INTERNATIONAL,
INC. (Respondent)

 Tour group arrived in Amsterdam in the afternoon of 25 October 1991, the second
to the last day of the tour.
 the last day of the tour, the group arrived at the Coster Diamond House in
Amsterdam around 10 minutes before 9:00 am
 Mrs. Pantaleon purchase 2.5 karat diamond brilliant cut, a pendant and a
chain,3 all of which totaled U.S. $13,826.00.
 Mr. Pantaleon pay through his amex card but get denied and delayed the tour by
20 minutes.
 30 October 1991, Pantaleon purchased golf equipment amounting to US
$1,475.00 using his AmEx card
 children’s shoes worth $87.00 at a store in Boston ( took 20 mins )

MAKATI CITY RTC BRANCH DECISION (5 August 1996)

 ₱500,000.00 as moral damages

 ₱300,000.00 as exemplary damages
 ₱100,000.00 as attorney’s fees
 ₱85,233.01 as expenses of litigation
It should be emphasized that the reason why petitioner is entitled to damages is not simply
because respondent incurred delay, but because the delay, for which culpability lies under
Article 1170, led to the particular injuries under Article 2217 of the Civil Code for which
moral damages are remunerative.
 ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners,
vs.
LULU V. JORGE and CESAR JORGE, respondents.

 two armed men entered the pawnshop and took away whatever cash and jewelry
were found inside the pawnshop vault.
 two (2) male unidentified persons entered into the said office with guns drawn.
 went straight inside and poked his gun toward Romeo Sicam and thereby tied him
with an electric wire while suspects
 poked his gun toward Divina Mata and Isabelita Rodriguez and ordered them to
lay (sic) face flat on the floor
 expressing disbelief stating that when the robbery happened, all jewelry pawned
were deposited with Far East Bank near the pawnshop since it had been the
practice that before they could withdraw, advance notice must be given to the
pawnshop so it could withdraw the jewelry from the bank. Respondent Lulu then
requested petitioner Sicam to prepare the pawned jewelry for withdrawal on
November 6, 1987 but petitioner Sicam failed to return the jewelry.
 that robbery is a fortuitous event which exempts the victim from liability for the loss,
citing the case of Austria v. Court of Appeals;7 and that the parties’ transaction was
that of a pledgor and pledgee and under Art. 1174 of the Civil Code, the pawnshop
as a pledgee is not responsible for those events which could not be foreseen.

Fortuitous events by definition are extraordinary events not foreseeable or avoidable. It

is therefore, not enough that the event should not have been foreseen or anticipated, as
is commonly believed but it must be one impossible to foresee or to avoid. The mere
difficulty to foresee the happening is not impossibility to foresee the same.
 ROBERTOJUNTILLA,VS.
CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO

 The plaintiff is a passenger of a jeep Danao City to Cebu City.

 Driven by defendant Berfol Camoro
under the franchise of defendant Clemente Fontanar
owned by defendant Fernando Banzon.

 Landing on the ground, the plaintiff loss consciousness.

 When he woke up he had lacerated wound on his right palm
 injuries on his left arm, right thigh and on his back
 P 852.70 (price of the wrist watch)

DECISION

 P750.00 as reimbursement for the lost Omega wrist watch

 P246.64 as unrealized salary of the plaintiff
 P100.00 for the doctor's fees
 P300.00 for attorney's fees

Inevitable accident that exempts the carrier from liability, there being
absence of a showing that there was misconduct or negligence on the part of the
operator in the operation and maintenance of the vehicle involved. The fact that the
right rear tire exploded, despite being brand new, constitutes a clear case of caso
fortuito which can be a proper basis for exonerating the defendants from liability. ...
 ALBERTA YOBIDO and CRESENCIO YOBIDO, petitioners,
vs.
COURT OF APPEALS, LENY TUMBOY, ARDEE TUMBOY and JASMIN
TUMBOY, respondents.

Article 1174

Mr. Tumboy died

DECISION

"Reckless Imprudence Resulting to (sic) Damage in (sic) Property"1 was filed against
petitioner Pascual.

tire blowout that caused the death of Tito Tumboy was a caso fortuito
Article 1756, 1733, 1755
Pascual got burned inside his car together with their building
The trial court instead declared that both petitioners failed to adduce sufficient
evidence to prove that they employed the necessary care and diligence in the upkeep
of the car

SELEGNA MANAGEMENT AND DEVELOPMENT CORPORATION; and Spouses EDGARDO

and ZENAIDA ANGELES, Petitioners,
vs.
UNITED COCONUT PLANTERS BANK,* Respondent.

They have a loan on ucp and promised to pay by their lands, condo’s , etc. they
failed to do so…
P103,909,710.82
failed to pay the monthly interest
 FIRST DIVISION

G.R. No. 164601 September 27, 2006

SPOUSES ERLINDA BATAL AND FRANK BATAL, petitioners,

vs.
SPOUSES LUZ SAN PEDRO AND KENICHIRO TOMINAGA, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
questioning the Decision1dated September 29, 2003 promulgated by the Court of Appeals (CA) in
CA-G.R. CV No. 71758, which affirmed the Decision dated May 31, 2004 of the Regional Trial Court,
Branch 7, Malolos, Bulacan (RTC); and the CA Resolution2 dated July 19, 2004.

This case originated from an action for damages filed with the RTC by Spouses Luz San Pedro and
Kenichiro Tominaga (respondents) against Spouses Erlinda Batal and Frank Batal (petitioners) for
failure to exercise due care and diligence by the latter in the preparation of a survey which formed
the basis for the construction of a perimeter fence that was later discovered to have encroached on
a right of way.

The facts of the case, as found by the RTC and summarized by the CA, are as follows:

The spouses Luz San Pedro (Luz) and Kenichiro Tominaga (Kenichiro) are the owners of a
parcel of land, on which their house was erected, described as Lot 1509-C-3 with an area of
700 square meters situated in Barangay Malis, Guiguinto, Bulacan. Said property was
acquired by them from one Guillermo Narciso as evidenced by a "Bilihan ng Bahagi ng
Lupa" dated March 18, 1992.

The spouses Luz and Kenichiro then contracted the services of Frank Batal (Frank) who
represented himself as a surveyor to conduct a survey of their lot for the sum of P6,500.00.
As Luz and Kenichiro wanted to enclose their property, they again procured the services of
Frank for an additional fee of P1,500.00 in order to determine the exact boundaries of the
same by which they will base the construction of their perimeter fence.

Consequently, Frank placed concrete monuments marked P.S. on all corners of the lot which
were used as guides by Luz and Kenichiro in erecting a concrete fence measuring about
eight (8) feet in height and cost them P250,000.00 to build.

Sometime in 1996, a complaint was lodged against Luz and Kenichiro before the barangay
on the ground that the northern portion of their fence allegedly encroached upon a
 designated right-of-way known as Lot 1509-D. Upon verification with another surveyor, Luz
and Kenichiro found that their wall indeed overlapped the adjoining lot. They also discovered
that it was not Frank but his wife Erlinda Batal (Erlinda), who is a licensed geodetic engineer.

During their confrontations before the barangay, Frank admitted that he made a mistake and
offered to share in the expenses for the demolition and reconstruction of the questioned
portion of Luz and Kenichiro's fence. He however failed to deliver on his word, thus the filing
of the instant suit.

In their defense, the defendants-spouses Frank and Erlinda Batal submitted that Frank never
represented himself to be a licensed geodetic engineer. It was Erlinda who supervised her
husband's work [and t]hat the house and lot of plaintiffs, Luz and Kenichiro, were already
fenced even before they were contracted to do a resurvey of the same and the laying out of
the concrete monuments. The spouses Frank and Erlinda also refuted the spouses Luz's
and Kenichiro's allegation of negligence and averred that the subject complaint was
instituted to harass them.3

On May 31, 2001, the RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendants, as

follows:

1. Ordering the defendants [petitioners] to pay to plaintiffs [respondents] the sum

of P6,500.00 as refund for their professional fees by reason of the erroneous relocation
survey of the property in question;

2. Ordering the defendants to pay to plaintiffs the sum of Three Hundred Thousand Pesos
(P300,000.00) as actual damages;

3. Ordering the defendants to pay to plaintiffs the sum of P50,000.00 as attorney's fees; and

4. Ordering the defendants to pay to plaintiffs the costs of this suit.

SO ORDERED.4

Regarding the issue whether the petitioners failed to exercise due care and diligence in the conduct
of the resurvey which eventually caused damage to the respondents, the RTC held:

As against the bare and self-serving denials of the [petitioners], the testimony of [respondent]
Luz San Pedro that she constructed the encroaching perimeter fence in question using as
guide the cyclone concrete monuments marked P.S. that were installed by [petitioner] Frank
Batal and his survey team, is more credible. As testified to by [respondent] Luz San Pedro,
she proceeded with the construction of the perimeter fence in question upon assurance
given by [petitioner] Frank Batal that she could already do so as there were already concrete
monuments placed on the boundaries of her property x x x.

xxxx

It does not matter that the location plan dated May 3, 1992 (Exhibit "B") was later approved
by the DENR, as it is quite apparent that the mistake committed by [petitioner] Frank Batal
pertains to the wrong locations of the concrete monuments that he placed on the subject
 property and which were used or relied upon by the [respondents] in putting up the fence in
question. Such mistake or negligence happened because quite obviously the installation of
said concrete monuments was without the needed supervision of [respondent] Erlinda Batal,
the one truly qualified to supervise the same. x x x x

x x x x5

The RTC found that indeed the perimeter fence constructed by the respondents encroached on the
right-of-way in question; that the preponderance of evidence supports the finding that the
encroachment was caused by the negligence of the petitioners; that, in particular, respondents
constructed the fence based on the concrete cyclone monuments that were installed by petitioner
Frank Batal and after he gave his assurance that they can proceed accordingly; that the negligence
in the installation of the monuments was due to the fact that petitioner Erlinda Batal, the one truly
qualified, did not provide the needed supervision over the work; and, lastly, that the testimonies of
the petitioners on the whole were not credible.

The petitioners appealed to the CA. On September 29, 2003, the CA rendered its Decision affirming
the RTC decision in its entirety.6

In concurring with the findings of the RTC, the CA in addition held that the petitioners cannot claim
that the error of the construction of the fence was due to the unilateral act of respondents in building
the same without their consent, since the former gave their word that the arrangement of the
monuments of title accurately reflected the boundaries of the lot; and that, as a result, the northern
portion of the fence had to be demolished and rebuilt in order to correct the error.

Hence, the instant Petition assigning the following errors:

I.

The Court of Appeals erred in ruling for the Respondents and basing its decision [o]n the
following jurisprudence:

(a) "[A] party, having performed affirmative acts upon which another person based his
subsequent actions, cannot thereafter refute his acts or renege on the effects of the same, to
the prejudice of the latter. (Pureza vs. Court of Appeals, 290 SCRA 110)"; and

(b) "Findings of fact made by the trial court [are] entitled to great weight and respect. (Lopez
vs. Court of Appeals, 322 SCRA 686).

II.

The Court of Appeals erred in ruling in favor of Respondents by premising its Decision on [a]
misapprehension of facts amounting to grave abuse of discretion . . . which is also a ground
for a Petition for Review.7

The petition must fail.

The petitioners insist that there had been no error in their resurvey, but rather, the error occurred in
respondents' fencing; that the proximate cause of the damage had been respondents' own
negligence such that the fencing was done unilaterally and solely by them without the prior approval
and supervision of the petitioners. And to justify their case, the petitioners argue that the courts a
quo misapprehended the facts. Accordingly, they ask this Court to review findings of fact.

A review of the factual findings of the CA and the RTC are matters not ordinarily reviewable in a
petition for review on certiorari.8 Well-established is the rule that factual findings of the trial court and
the CA are entitled to great weight and respect9 and will not be disturbed on appeal save in
exceptional circumstances,10 none of which obtains in the present case. This Court must stress that
the findings of fact of the CA are conclusive on the parties and carry even more weight when these
coincide with the factual findings of the trial court,11 as in this case.

The Court will not weigh the evidence all over again unless there is a showing that the findings of the
lower court are totally devoid of support or are clearly erroneous so as to constitute serious abuse of
discretion.12 The petitioners failed to demonstrate this point. On the contrary, the finding of the
courts a quo that the damage caused to the respondents was due to petitioners' negligence is
sufficiently supported by the evidence on record. For these reasons, the petitioner's contentions bear
no import.

Culpa, or negligence, may be understood in two different senses: either as culpa aquiliana, which is
the wrongful or negligent act or omission which creates a vinculum juris and gives rise to an
obligation between two persons not formally bound by any other obligation, or as culpa
contractual, which is the fault or negligence incident in the performance of an obligation which
already existed, and which increases the liability from such already existing obligation.13 Culpa
aquiliana is governed by Article 2176 of the Civil Code and the immediately following Articles;
while culpa contractual is governed by Articles 1170 to 1174 of the same Code.14

Articles 1170 and 1173 provide:

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. 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 2202, 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.

In the present case, it is clear that the petitioners, in carrying out their contractual obligations, failed
to exercise the requisite diligence in the placement of the markings for the concrete perimeter fence
that was later constructed. The placement of the markings had been done solely by petitioner Frank
Batal who is not a geodetic engineer. It was later discovered that it was not he but his wife, petitioner
Erlinda Batal, who is the licensed geodetic engineer and who is, therefore, the one qualified to do
the work. Petitioner Frank Batal's installation of the concrete cyclone monuments had been done
without the adequate supervision of his wife, Erlinda. As a result, the placement of the monuments
did not accurately reflect the dimensions of the lot. The respondents, upon assurance given by
petitioner Frank Batal that they could proceed with the construction of the perimeter fence by relying
on the purported accuracy of the placement of the monuments, erected their fence which turned out
to encroach on an adjacent easement. Because of the encroachment, the respondents had to
demolish and reconstruct the fence and, thus, suffered damages.

The Court affirms and adopts the findings of the CA, to wit:
 Records show that the services of the [petitioners] Frank and Erlinda were initially contracted
to segregate Luz and Kenichiro's property from its adjoining lots. When the [respondent]
spouses Luz and Kenichiro planned to fence the segregated lot, they again commissioned
[petitioners] Frank and Erlinda to conduct a resurvey in order to determine the precise
boundaries of their property upon which they will base the construction of their fence. It was
also shown that in the course of the resurvey, Frank caused the installation of monuments of
title on the four (4) corners of Luz and Kenichiro's property and that he instructed them to just
follow the same in building their fence.

[Petitioners] Frank and Erlinda cannot thus validly claim that the error in the construction of
the northern portion of the fence was due to the spouses Luz and Kenichiro's act of building
the same without their consent. This is considering that the former led the latter to believe
the purported accuracy of the resurvey and exactness of the lot's boundaries based on the
monuments of title which they installed.

It has been ruled that "[A] party, having performed affirmative acts upon which another
person based his subsequent actions, cannot thereafter refute his acts or renege on the
effects of the same, to the prejudice of the latter." (Pureza v. Court of Appeals, 290 SCRA
110)

The foregoing clearly supports the findings of the RTC that the spouses Batal committed a
mistake in the conduct of their business that led to the encroachment of plaintiffs-appellees'
fence on the adjoining alley-lot. As a result, the northern portion ha[d] to be torn down and
rebuilt in order to correct the error in its original construction. The defendants-appellants
cannot be excused from the effects of their actions in the survey of plaintiffs-appellees' lot.

We therefore concur with the findings of the RTC holding defendants-appellants liable for
damages in the case at bar. "Findings of fact made by the trial court is entitled to great
weight and respect." (Lopez v. Court of Appeals, 322 SCRA 686)15

Being guilty of a breach of their contract, petitioners are liable for damages suffered by the
respondents in accordance with Articles 1170 and 2201 of the Civil Code,16 which state:

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. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in
good faith is liable shall be those that are the natural and probable consequences of the
breach of the obligation, and which the parties have foreseen or could have reasonably
foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to the non-performance of the obligation.

Thus, the Court agrees with the CA's affirmance of the findings of the RTC on the matter of
damages, to wit:

Going now to the claims for damages, Engr. Arnold Martin testified on his computation and
estimate (Exhibits "G" and "G-1) that the total cost for the demolition and reconstruction of
the perimeter fence in question would be in the total amount of P428,163.90, and this was
not at all disputed by the defendants, whose counsel waived cross-examination. This
estimate is practically double the amount of the cost of constructing said fence as testified to
 by plaintiff Luz San Pedro as she was told that it is much costlier to demolish and reconstruct
a fence than to simply erect one because of the added expense involved in tearing it down
and hauling its debris. On the other hand, said plaintiff stated that the iron decorative grills of
the fence, which is re-usable, cost her P50,000.00, and it is only proper to deduct said
amount from the total cost of reconstructing the fence in question. At the same time, some
figures in the said estimate appear to be quite excessive, such as the estimated cost for
demolition which was quoted at P25,000.00 in addition to the amount of excavation priced
at P30,000.00 and the cost of hauling of scrap materials at P10,000.00. The court believes
that the sum of P300,000.00 for the demolition and reconstruction of the fence in question
would be reasonable considering that the original cost for its construction was only
about P200,000.00, and considering further that its iron grills are re-usable.

The plaintiffs are likewise entitled to recover attorney's fees considering that they were
compelled by the defendants to resort to court action in order to protect their rights and
interest, as defendants, particularly defendant Frank Batal, failed and refused repeatedly to
even attend the confrontation of conciliation meetings arranged between him and the
plaintiffs by the barangay authorities concerned, and to honor his promise to help in
shouldering the cost of reconstructing the fence in question.

On the other hand, there is no legal or factual bases for the claim of the plaintiffs for moral or
exemplary damages as there was no showing at all that defendants acted with malice or in
bad faith.

In a long line of cases, we have consistently ruled that in the absence of a wrongful
act or omission or of fraud or bad faith, moral damages cannot be awarded. (R & B
Surety Insurance Co. v. Intermediate Court of Appeals, 129 SCRA 736; Guita v.
Court of Appeals, 139 SCRA 576).17

WHEREFORE, the instant petition is DENIED and the assailed Decision and Resolution of the Court
of Appeals are AFFIRMED.

Costs against petitioners.

SO ORDERED.

Panganiban, C.J., Chairperson, Ynares-Santiago, Callejo, Sr., Chico-Nazario, J.J., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 174269 May 8, 2009

POLO S. PANTALEON, Petitioner,

vs.
AMERICAN EXPRESS INTERNATIONAL, INC., Respondent.

DECISION

TINGA, J.:

The petitioner, lawyer Polo Pantaleon, his wife Julialinda, daughter Anna Regina and son Adrian
Roberto, joined an escorted tour of Western Europe organized by Trafalgar Tours of Europe, Ltd., in
October of 1991. The tour group arrived in Amsterdam in the afternoon of 25 October 1991, the
second to the last day of the tour. As the group had arrived late in the city, they failed to engage in
any sight-seeing. Instead, it was agreed upon that they would start early the next day to see the
entire city before ending the tour.

The following day, the last day of the tour, the group arrived at the Coster Diamond House in
Amsterdam around 10 minutes before 9:00 a.m. The group had agreed that the visit to Coster
should end by 9:30 a.m. to allow enough time to take in a guided city tour of Amsterdam. The group
was ushered into Coster shortly before 9:00 a.m., and listened to a lecture on the art of diamond
polishing that lasted for around ten minutes.1 Afterwards, the group was led to the store’s showroom
to allow them to select items for purchase. Mrs. Pantaleon had already planned to purchase even
before the tour began a 2.5 karat diamond brilliant cut, and she found a diamond close enough in
approximation that she decided to buy.2 Mrs. Pantaleon also selected for purchase a pendant and a
chain,3 all of which totaled U.S. $13,826.00.

To pay for these purchases, Pantaleon presented his American Express credit card together with his
passport to the Coster sales clerk. This occurred at around 9:15 a.m., or 15 minutes before the tour
group was slated to depart from the store. The sales clerk took the card’s imprint, and asked
Pantaleon to sign the charge slip. The charge purchase was then referred electronically to
respondent’s Amsterdam office at 9:20 a.m.

Ten minutes later, the store clerk informed Pantaleon that his AmexCard had not yet been approved.
His son, who had already boarded the tour bus, soon returned to Coster and informed the other
members of the Pantaleon family that the entire tour group was waiting for them. As it was already
9:40 a.m., and he was already worried about further inconveniencing the tour group, Pantaleon
asked the store clerk to cancel the sale. The store manager though asked plaintiff to wait a few more
minutes. After 15 minutes, the store manager informed Pantaleon that respondent had demanded
bank references. Pantaleon supplied the names of his depositary banks, then instructed his
daughter to return to the bus and apologize to the tour group for the delay.

At around 10:00 a.m, or around 45 minutes after Pantaleon had presented his AmexCard, and 30
minutes after the tour group was supposed to have left the store, Coster decided to release the
items even without respondent’s approval of the purchase. The spouses Pantaleon returned to the
bus. It is alleged that their offers of apology were met by their tourmates with stony silence.4 The tour
group’s visible irritation was aggravated when the tour guide announced that the city tour of
Amsterdam was to be canceled due to lack of remaining time, as they had to catch a 3:00 p.m. ferry
at Calais, Belgium to London.5 Mrs. Pantaleon ended up weeping, while her husband had to take a
tranquilizer to calm his nerves.

It later emerged that Pantaleon’s purchase was first transmitted for approval to respondent’s
Amsterdam office at 9:20 a.m., Amsterdam time, then referred to respondent’s Manila office at 9:33
a.m, then finally approved at 10:19 a.m., Amsterdam time.6 The Approval Code was transmitted to
respondent’s Amsterdam office at 10:38 a.m., several minutes after petitioner had already left
Coster, and 78 minutes from the time the purchases were electronically transmitted by the jewelry
store to respondent’s Amsterdam office.

After the star-crossed tour had ended, the Pantaleon family proceeded to the United States before
returning to Manila on 12 November 1992. While in the United States, Pantaleon continued to use
his AmEx card, several times without hassle or delay, but with two other incidents similar to the
Amsterdam brouhaha. On 30 October 1991, Pantaleon purchased golf equipment amounting to US
$1,475.00 using his AmEx card, but he cancelled his credit card purchase and borrowed money
instead from a friend, after more than 30 minutes had transpired without the purchase having been
approved. On 3 November 1991, Pantaleon used the card to purchase children’s shoes worth
$87.00 at a store in Boston, and it took 20 minutes before this transaction was approved by
respondent.

On 4 March 1992, after coming back to Manila, Pantaleon sent a letter7 through counsel to the
respondent, demanding an apology for the "inconvenience, humiliation and embarrassment he and
his family thereby suffered" for respondent’s refusal to provide credit authorization for the
aforementioned purchases.8 In response, respondent sent a letter dated 24 March 1992,9 stating
among others that the delay in authorizing the purchase from Coster was attributable to the
circumstance that the charged purchase of US $13,826.00 "was out of the usual charge purchase
pattern established."10 Since respondent refused to accede to Pantaleon’s demand for an apology,
the aggrieved cardholder instituted an action for damages with the Regional Trial Court (RTC) of
Makati City, Branch 145.11 Pantaleon prayed that he be awarded ₱2,000,000.00, as moral damages;
₱500,000.00, as exemplary damages; ₱100,000.00, as attorney’s fees; and ₱50,000.00 as litigation
expenses.12

On 5 August 1996, the Makati City RTC rendered a decision13 in favor of Pantaleon, awarding him
₱500,000.00 as moral damages, ₱300,000.00 as exemplary damages, ₱100,000.00 as attorney’s
fees, and ₱85,233.01 as expenses of litigation. Respondent filed a Notice of Appeal, while
Pantaleon moved for partial reconsideration, praying that the trial court award the increased amount
of moral and exemplary damages he had prayed for.14 The RTC denied Pantaleon’s motion for
partial reconsideration, and thereafter gave due course to respondent’s Notice of Appeal.15

On 18 August 2006, the Court of Appeals rendered a decision16 reversing the award of damages in
favor of Pantaleon, holding that respondent had not breached its obligations to petitioner. Hence,
this petition.

The key question is whether respondent, in connection with the aforementioned transactions, had
committed a breach of its obligations to Pantaleon. In addition, Pantaleon submits that even
assuming that respondent had not been in breach of its obligations, it still remained liable for
damages under Article 21 of the Civil Code.

The RTC had concluded, based on the testimonial representations of Pantaleon and respondent’s
credit authorizer, Edgardo Jaurigue, that the normal approval time for purchases was "a matter of
seconds." Based on that standard, respondent had been in clear delay with respect to the three
subject transactions. As it appears, the Court of Appeals conceded that there had been delay on the
part of respondent in approving the purchases. However, it made two critical conclusions in favor of
respondent. First, the appellate court ruled that the delay was not attended by bad faith, malice, or
gross negligence. Second, it ruled that respondent "had exercised diligent efforts to effect the
approval" of the purchases, which were "not in accordance with the charge pattern" petitioner had
established for himself, as exemplified by the fact that at Coster, he was "making his very first single
charge purchase of US$13,826," and "the record of [petitioner]’s past spending with [respondent] at
the time does not favorably support his ability to pay for such purchase."17

On the premise that there was an obligation on the part of respondent "to approve or disapprove with
dispatch the charge purchase," petitioner argues that the failure to timely approve or disapprove the
purchase constituted mora solvendi on the part of respondent in the performance of its obligation.
For its part, respondent characterizes the depiction by petitioner of its obligation to him as "to
approve purchases instantaneously or in a matter of seconds."

Petitioner correctly cites that under mora solvendi, the three requisites for a finding of default are that
the obligation is demandable and liquidated; the debtor delays performance; and the creditor
judicially or extrajudicially requires the debtor’s performance.18 Petitioner asserts that the Court of
Appeals had wrongly applied the principle of mora accipiendi, which relates to delay on the part of
the obligee in accepting the performance of the obligation by the obligor. The requisites of mora
accipiendi are: an offer of performance by the debtor who has the required capacity; the offer must
be to comply with the prestation as it should be performed; and the creditor refuses the performance
without just cause.19 The error of the appellate court, argues petitioner, is in relying on the invocation
by respondent of "just cause" for the delay, since while just cause is determinative of mora
accipiendi, it is not so with the case of mora solvendi.

We can see the possible source of confusion as to which type of mora to appreciate. Generally, the
relationship between a credit card provider and its card holders is that of creditor-debtor,20 with the
card company as the creditor extending loans and credit to the card holder, who as debtor is obliged
to repay the creditor. This relationship already takes exception to the general rule that as between a
bank and its depositors, the bank is deemed as the debtor while the depositor is considered as the
creditor.21 Petitioner is asking us, not baselessly, to again shift perspectives and again see the credit
card company as the debtor/obligor, insofar as it has the obligation to the customer as
creditor/obligee to act promptly on its purchases on credit.

Ultimately, petitioner’s perspective appears more sensible than if we were to still regard respondent
as the creditor in the context of this cause of action. If there was delay on the part of respondent in
its normal role as creditor to the cardholder, such delay would not have been in the acceptance of
the performance of the debtor’s obligation (i.e., the repayment of the debt), but it would be delay in
the extension of the credit in the first place. Such delay would not fall under mora accipiendi, which
contemplates that the obligation of the debtor, such as the actual purchases on credit, has already
been constituted. Herein, the establishment of the debt itself (purchases on credit of the jewelry) had
not yet been perfected, as it remained pending the approval or consent of the respondent credit card
company.

Still, in order for us to appreciate that respondent was in mora solvendi, we will have to first
recognize that there was indeed an obligation on the part of respondent to act on petitioner’s
purchases with "timely dispatch," or for the purposes of this case, within a period significantly less
than the one hour it apparently took before the purchase at Coster was finally approved.
The findings of the trial court, to our mind, amply established that the tardiness on the part of
respondent in acting on petitioner’s purchase at Coster did constitute culpable delay on its part in
complying with its obligation to act promptly on its customer’s purchase request, whether such action
be favorable or unfavorable. We quote the trial court, thus:

As to the first issue, both parties have testified that normal approval time for purchases was a matter
of seconds.

Plaintiff testified that his personal experience with the use of the card was that except for the three
charge purchases subject of this case, approvals of his charge purchases were always obtained in a
matter of seconds.

Defendant’s credit authorizer Edgardo Jaurique likewise testified:

Q. – You also testified that on normal occasions, the normal approval time for charges would
be 3 to 4 seconds?

A. – Yes, Ma’am.

Both parties likewise presented evidence that the processing and approval of plaintiff’s charge
purchase at the Coster Diamond House was way beyond the normal approval time of a "matter of
seconds".

Plaintiff testified that he presented his AmexCard to the sales clerk at Coster, at 9:15 a.m. and by the
time he had to leave the store at 10:05 a.m., no approval had yet been received. In fact, the Credit
Authorization System (CAS) record of defendant at Phoenix Amex shows that defendant’s
Amsterdam office received the request to approve plaintiff’s charge purchase at 9:20 a.m.,
Amsterdam time or 01:20, Phoenix time, and that the defendant relayed its approval to Coster at
10:38 a.m., Amsterdam time, or 2:38, Phoenix time, or a total time lapse of one hour and [18]
minutes. And even then, the approval was conditional as it directed in computerese [sic] "Positive
Identification of Card holder necessary further charges require bank information due to high
exposure. By Jack Manila."

The delay in the processing is apparent to be undue as shown from the frantic successive queries of
Amexco Amsterdam which reads: "US$13,826. Cardmember buying jewels. ID seen. Advise how
long will this take?" They were sent at 01:33, 01:37, 01:40, 01:45, 01:52 and 02:08, all times
Phoenix. Manila Amexco could be unaware of the need for speed in resolving the charge purchase
referred to it, yet it sat on its hand, unconcerned.

xxx

To repeat, the Credit Authorization System (CAS) record on the Amsterdam transaction shows how
Amexco Netherlands viewed the delay as unusually frustrating. In sequence expressed in Phoenix
time from 01:20 when the charge purchased was referred for authorization, defendants own record
shows:

01:22 – the authorization is referred to Manila Amexco

01:32 – Netherlands gives information that the identification of the cardmember has been
presented and he is buying jewelries worth US $13,826.
 01:33 – Netherlands asks "How long will this take?"

02:08 – Netherlands is still asking "How long will this take?"

The Court is convinced that defendants delay constitute[s] breach of its contractual obligation to act
on his use of the card abroad "with special handling."22 (Citations omitted)

xxx

Notwithstanding the popular notion that credit card purchases are approved "within seconds," there
really is no strict, legally determinative point of demarcation on how long must it take for a credit card
company to approve or disapprove a customer’s purchase, much less one specifically contracted
upon by the parties. Yet this is one of those instances when "you’d know it when you’d see it," and
one hour appears to be an awfully long, patently unreasonable length of time to approve or
disapprove a credit card purchase. It is long enough time for the customer to walk to a bank a
kilometer away, withdraw money over the counter, and return to the store.

Notably, petitioner frames the obligation of respondent as "to approve or disapprove" the purchase
"in timely dispatch," and not "to approve the purchase instantaneously or within seconds." Certainly,
had respondent disapproved petitioner’s purchase "within seconds" or within a timely manner, this
particular action would have never seen the light of day. Petitioner and his family would have
returned to the bus without delay – internally humiliated perhaps over the rejection of his card – yet
spared the shame of being held accountable by newly-made friends for making them miss the
chance to tour the city of Amsterdam.

We do not wish do dispute that respondent has the right, if not the obligation, to verify whether the
credit it is extending upon on a particular purchase was indeed contracted by the cardholder, and
that the cardholder is within his means to make such transaction. The culpable failure of respondent
herein is not the failure to timely approve petitioner’s purchase, but the more elemental failure to
timely act on the same, whether favorably or unfavorably. Even assuming that respondent’s credit
authorizers did not have sufficient basis on hand to make a judgment, we see no reason why
respondent could not have promptly informed petitioner the reason for the delay, and duly advised
him that resolving the same could take some time. In that way, petitioner would have had informed
basis on whether or not to pursue the transaction at Coster, given the attending circumstances.
Instead, petitioner was left uncomfortably dangling in the chilly autumn winds in a foreign land and
soon forced to confront the wrath of foreign folk.

Moral damages avail in cases of breach of contract where the defendant acted fraudulently or in bad
faith, and the court should find that under the circumstances, such damages are due. The findings of
the trial court are ample in establishing the bad faith and unjustified neglect of respondent,
attributable in particular to the "dilly-dallying" of respondent’s Manila credit authorizer, Edgardo
Jaurique.23 Wrote the trial court:

While it is true that the Cardmembership Agreement, which defendant prepared, is silent as to the
amount of time it should take defendant to grant authorization for a charge purchase, defendant
acknowledged that the normal time for approval should only be three to four seconds. Specially so
with cards used abroad which requires "special handling", meaning with priority. Otherwise, the
object of credit or charge cards would be lost; it would be so inconvenient to use that buyers and
consumers would be better off carrying bundles of currency or traveller’s checks, which can be
delivered and accepted quickly. Such right was not accorded to plaintiff in the instances complained
off for reasons known only to defendant at that time. This, to the Court’s mind, amounts to a wanton
and deliberate refusal to comply with its contractual obligations, or at least abuse of its rights, under
the contract.24

xxx

The delay committed by defendant was clearly attended by unjustified neglect and bad faith, since it
alleges to have consumed more than one hour to simply go over plaintiff’s past credit history with
defendant, his payment record and his credit and bank references, when all such data are already
stored and readily available from its computer. This Court also takes note of the fact that there is
nothing in plaintiff’s billing history that would warrant the imprudent suspension of action by
defendant in processing the purchase. Defendant’s witness Jaurique admits:

Q. – But did you discover that he did not have any outstanding account?

A. – Nothing in arrears at that time.

Q. – You were well aware of this fact on this very date?

A. – Yes, sir.

Mr. Jaurique further testified that there were no "delinquencies" in plaintiff’s account.25

It should be emphasized that the reason why petitioner is entitled to damages is not simply because
respondent incurred delay, but because the delay, for which culpability lies under Article 1170, led to
the particular injuries under Article 2217 of the Civil Code for which moral damages are
remunerative.26 Moral damages do not avail to soothe the plaints of the simply impatient, so this
decision should not be cause for relief for those who time the length of their credit card transactions
with a stopwatch. The somewhat unusual attending circumstances to the purchase at Coster – that
there was a deadline for the completion of that purchase by petitioner before any delay would
redound to the injury of his several traveling companions – gave rise to the moral shock, mental
anguish, serious anxiety, wounded feelings and social humiliation sustained by the petitioner, as
concluded by the RTC.27 Those circumstances are fairly unusual, and should not give rise to a
general entitlement for damages under a more mundane set of facts.

We sustain the amount of moral damages awarded to petitioner by the RTC. There is no hard-and-
fast rule in determining what would be a fair and reasonable amount of moral damages, since each
case must be governed by its own peculiar facts, however, it must be commensurate to the loss or
injury suffered.28 Petitioner’s original prayer for ₱5,000,000.00 for moral damages is excessive under
the circumstances, and the amount awarded by the trial court of ₱500,000.00 in moral damages
more seemly. 1avvphi 1

Likewise, we deem exemplary damages available under the circumstances, and the amount of
₱300,000.00 appropriate. There is similarly no cause though to disturb the determined award of
₱100,000.00 as attorney’s fees, and ₱85,233.01 as expenses of litigation.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is
REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Makati, Branch 145 in Civil
Case No. 92-1665 is hereby REINSTATED. Costs against respondent.

SO ORDERED.
DANTE O. TINGA
Associate Justice

<p

WE CONCUR:

CONCHITA CARPIO MORALES*

Associate Justice
Acting Chairperson

PRESBITERO J. VELASCO, JR. TERESITA LEONARDO DE CASTRO**

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES

Associate Justice
Acting Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson’s
Attestation, it is hereby certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice