themselves who create the obligation, and the function of the law is merely to regulate the relation thus

created. [
Calalas v. CA, 2000]
Defense of employer for negligence of employee "From this article [Article 1903] two things are apparent: (1) That when an
injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him
after the selection, or both; and
(2) that that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that
if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence
of a good father of a family, the presumption is overcome and he is relieved from
liability." [Cangco v. Manila Railroad, 1918]
On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents,
when such acts or omissions cause damages which amount to the breach of a contract, is not based upon a mere presumption
of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and care in this regard
does not relieve the master of his liability for the breach of his contract. [ Ibid.]
Intersections
Article 2176. 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 quasi-delict
xxx.
[W]hether negligence occurs as an incident in the course of the performance of a contractual undertaking or is itself the
source of an extra-contractual obligation, its essential characteristics are identical. There is always an act or omission productive
of damage due to carelessness or inattention on the part of the defendant. xxx [T]he practical result is identical xxx. [Cangco v.
Manila Railroad, 1918]
The field of non-contractual obligation is much more broader than that of contractual obligation, comprising, as it does, the
whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a
person is bound to another by contract does not relieve him from extra-contractual liability to such person. When such a
contractual relation exists the obligor may break the contract under such conditions that the same act which constitutes a
breach of the contract would have constituted the source of an extra-contractual obligation had no contract existed between
the parties. [Ibid.]
The definition of quasi-delict in Article 2176 expressly excludes cases where there is a "preexisting contractual relation
between the parties." [Fores v. Miranda, 1959]
And this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the
act that breaks the contract may be also a tort." [Air France v. Carrascoso, 1966]
The Court has not in the process overlooked another rule that a quasi-delict can be the cause for breaching a contract that
might thereby permit the application of applicable principles on tort even where there is a pre-existing contract between the
plaintiff and the defendant. xxx The test (whether a quasi-delict can be deemed to underlie the breach of a contract) can be
stated thusly: Where, without a pre-existing contract between two parties, an act or omission can nonetheless amount to an
actionable tort by itself, the fact that the parties are contractually bound is no bar to the application of quasi-delict provisions to
the case. [Far East Bank v. CA, 1995]
A perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations,
arise only between parties not otherwise bound by contract, whether express or implied. However, this impression has not
prevented this Court from determining the existence of a tort even when there obtains a contract. xxx Air France is authority for
the view that liability from tort may exist even if there is a contract, for the act that breaks the contract may be also a tort.
[PSBA v. CA, 1992]
[A] pre-existing contractual relation between the parties does not preclude the existence of a culpa aquiliana xxx. [Syquia v.
CA, 1993]
[L]iability for tort may arise even under a contract, where tort is that which breaches the contract. Stated differently, when
an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no
contract existed between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort
to apply. [LRT v. Navidad, 2003]
The law on quasi-delict xxx is generally applicable when there is no pre-existing contractual relationship between the parties.
[ Consolidated Bank v. CA, 2003]
Negligence
C ONCEPT OF NEGLIGENCE

In Common Law
Negligence is a matter of risk – that is to say, of recognizable danger of injury. It has been defined as "conduct which involves
an unreasonably great risk of causing damage," or, more fully, conduct "which falls below the standard established by law for
the protection of others against unreasonable risk of harm." "Negligence is conduct and not a state of mind." [ Prosser &
Keeton]

In Philippine Law
Definition
Article 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of
the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a
good father of a family shall be required.
Article 2178. The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict.
A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one
which