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PART 1 TRIAL MEMORANDUM: Consider the following direct testimonies given in a hypothetical case for annulment of contract.

. Assume that you are the lawyer for either one of the parties. Using the information given, choose one side and write a memorandum of arguments that the court may consider before deciding the case. 1. Testimony of the Plaintiff

COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS: I am Anna Geronimo, 35 years old, married and an accountant. ATTY. RICHARD VALDEZ: With the Courts permission. Ms. Geronimo, do you know the defendant in this case, Mr. Peter Pascual? A: Yes. Q: How do you know him? A: My husband, Raul Geronimo, and I have been friends with him since our college days. Q: Could you please tell us why you filed this suit for annulment of contract with damages against him? A: My husband sold our one-bedroom condominium unit to Mr. Pascual without my consent. Q: Could you please tell us how you learned about the sale? A: I knew about the sale because I was the one who offered the property to Mr. Pascual. Q: Could you please elaborate on that? A: Since we got married in 2006, my husband and I have been living in a one-bedroom condominium unit. When I learned that I was having a baby sometime in 2008, we decided to buy a house to make room for the nanny and all the baby stuff we need. Q: When did you acquire this condo unit? A: My husband bought it in 2001 when he was still single. Q: But you have been living there since you got married? A: Yes. Q: So, how did Mr. Pascual learn about your plan to buy a house? A: Like I said, we were close friends. He usually came to our condo unit for weekend dinners. Sometime in January 2009, I mentioned our plan to him. He said that he would love to buy our condo unit should we finally decide to sell it. He mentioned something about it being a good investment. Q: When did the actual negotiations for the sale of the condo unit start? A: In April 2009, I called Mr. Pascual and informed him that we finally found a house. I told him that we were now selling our condo unit. Since he was still interested in buying it, I offered it to him at P2 million. He said that he will call back once the deed of sale and managers check were ready. Q: Did he call back? A: I left for the United States in May 2009 to give birth. He called my husband while I was away. Q: If you were the one who negotiated the sale, why are you saying now that your husband sold the condo unit without your consent? A: While I was in the United States, I decided not to sell the condo unit anymore. I thought it would be better to keep it in the meantime as an investment. Q: Did you tell your husband about this? A: Yes. He called me in June 2009. He said that he already signed the deed of sale and that he already has the managers check. When I told him that I already changed my mind, he said that we will just talk about it when I get back. Q: When did you return? A: In September 2009. Q: What happened then? A: I called Mr. Pascual and explained that we were no longer selling the condo unit. I even offered to return his money in cash. Q: Did he agree? A: No. He insisted that the sale had been consummated and refused to accept the money. Q: What did you do? A: I consulted a lawyer and decided to file a suit for annulment of contract with damages. ATTY. RICHARD VALDEZ: That is all for the witness, your honor.

2.

Statement of the Defendant

COURT STAFF: (After swearing in the witness) State your name and personal circumstances. WITNESS: I am Peter Pascual, 36 years old, single and a sales manager. ATTY. JUDD LAUREL: With the Courts permission. Mr. Pascual, do you know the plaintiff in this case, Ms. Anna Geronimo? A: Yes. Q: How do you know her? A: I have been friends with her and her husband, Raul Geronimo, since college. Q: Do you know why she filed this suit for annulment of contract with damages against you? A: She claims that her husband sold their one-bedroom condominium unit to me without her consent. Q: Could you please tell us how you learned that the condo unit was for sale? A: Sometime in January 2009, I visited their condo unit. Ms. Geronimo told me that they were planning to buy a house. They were expecting a baby soon and they would need a nursery room and storage area for their baby stuff. Q: What did you tell her when you heard that? A: Since I have been living in an apartment for several years, I thought it might be a good idea to invest and buy my own condo unit. Since the spouses Geronimo have been my friends for a long time, I have seen how they took care of their condo unit. Thus, I told Ms. Geronimo that I will buy it should they finally decide to sell it. Q: What did she say? A: She promised to call me once they have found a house. Q: Did she call? A: Yes. Q: When? A: In April 2009, she told me that they finally found a house. She asked if I was still interested in buying their condo unit. When I told her I was, she informed me that they were giving it for P2 million. Q: Did you accept the offer? A: Yes. I said that Ill call back once the deed of sale and managers check were ready. Q: When did the deed and payment become ready? A: I immediately asked a lawyer-friend to prepare the necessary deed of sale. I also prepared a managers check for P2 million. Sometime in June 2009, I met up with Mr. Geronimo. I told him that the sale could not have come at a better time since I was getting married and will use the condo unit as our conjugal home. After I handed him the managers check, he signed the deed of sale. Q: How about Ms. Geronimo? Did she sign the deed of sale? A: No. Q: Why not? A: She was in the United States to give birth. Q: When did you learn that Ms. Geronimo did not want to sell the condo unit anymore? A: When she returned in September 2009, Ms. Geronimo called me. She said they wont be selling the condo unit anymore. Q: What did you tell her? A: I told her that they cant back out now. The sale had been consummated. Q: Were you able to get the certificate of title from Mr. Geronimo? A: Yes. Q: To whom was it named? A: It was under the name of Mr. Geronimo. Q: Were you able to have it transferred in your name? A: Yes. Q: Did you tell Ms. Geronimo about that? A: Yes. Q: What did she say? A: She said that the condo unit was their property. Since there was no valid consent from her end, she will have the deed of sale annulled. Q: Would you know of any reason why she suddenly changed her mind?

A: Actually during that phone call, she told me that she wasnt happy that I was getting married and was going to use the condo unit as our conjugal home. I think she might be jealous because I always thought her to be extremely nice and sweet to me. But thats absurd. Shes already married and we have been really good friends. ATTY. JUDD LAUREL: That is all for the witness, your honor. Laws and jurisprudence that may apply 1. Article 96 of the Family Code The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. 2. Article 124 of the Family Code The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. 3. Article 1318 of the Civil Code There is no contract unless the following requisites concur: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; (3) Cause of the obligation which is established. 4. Article 1319 of the Civil Code Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter-offer. Acceptance made by letter or telegram does not bind the offerer except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered into in the place where the offer was made. 5. Article 1330 of the Civil Code A contract where consent is given through mistake, violence, intimidation, undue influence, or fraud is voidable. 6. Article 1390 of the Civil Code

The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. 7. Article 1431 of the Civil Code Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. 8. Jader-Manalo v. Camaisa, G.R. No. 147978, January 23, 2002, 374 SCRA 498 The law requires that the disposition of a conjugal property by the husband as administrator in appropriate cases requires the written consent of the wife, otherwise, the disposition is void. The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell to be effective, the consent of both husband and wife must concur. Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even granting that respondent Norma actively participated in negotiating for the sale of the subject properties, which she denied, her written consent to the sale is required by law for its validity. Significantly, petitioner herself admits that Norma refused to sign the contracts to sell. Respondent Norma may have been aware of the negotiations for the sale of their conjugal properties. However, being merely aware of a transaction is not consent. 9. Abalos v. Macatangay, Jr., G.R. No. 155043, September 30, 2004, 439 SCRA 649 Being essentially consensual, a contract of sale is perfected at the moment there is a meeting of the minds upon the thing which is the object of the contract and upon the price. However, ownership of the thing sold shall not be transferred to the vendee until actual or constructive delivery of the property. [T]he husband may dispose of conjugal property without the wifes consent if such sale is necessary to answer for conjugal liabilities mentioned in Articles 161 and 162 of the Civil Code. In Tinitigan v. Tinitigan, Sr., the Court ruled that the husband may sell property belonging to the conjugal partnership even without the consent of the wife if the sale is necessary to answer for a big conjugal liability which might endanger the familys economic standing. This is one instance where the wifes consent is not required and, impliedly, no judicial intervention is necessary. 10. Ainza v. Padua, G.R. No. 165420, June 30, 2005, 462 SCRA 614 The consent of both Eugenia and Antonio is necessary for the sale of the conjugal property to be valid. Antonios consent cannot be presumed. Except for the self-serving testimony of petitioner Natividad, there is no evidence that Antonio participated or consented to the sale of the conjugal property. Eugenia alone is incapable of giving consent to the contract. Therefore, in the absence of Antonios consent, the disposition made by Eugenia is voidable. 11. Co Chien v. Sta. Lucia Realty and Development, Inc., G.R. No. 162090, January 31, 2007, 513 SCRA 570 [A] person is considered in estoppel if by his conduct, representations or admissions or silence when he ought to speak out, whether intentionally or through culpable negligence, "causes another to believe certain facts to exist and such other rightfully relies and acts on such belief, as a consequence of which he would be prejudiced if the former is permitted to deny the existence of such facts." 12. Malbarosa v. Court of Appeals, G.R. No. 125761, April 30, 2003, 402 SCRA 168 The acceptance of an offer must be made known to the offeror. Unless the offeror knows of the acceptance, there is no meeting of the minds of the parties, no real concurrence of offer and acceptance. The offeror may withdraw its offer and revoke the same before acceptance thereof by the offeree. The contract is perfected only from the time an acceptance of an offer is made known to the offeror. If an offeror prescribes the exclusive manner in which acceptance of his offer shall be

indicated by the offeree, an acceptance of the offer in the manner prescribed will bind the offeror. On the other hand, an attempt on the part of the offeree to accept the offer in a different manner does not bind the offeror as the absence of the meeting of the minds on the altered type of acceptance. An offer made inter praesentes must be accepted immediately. If the parties intended that there should be an express acceptance, the contract will be perfected only upon knowledge by the offeror of the express acceptance by the offeree of the offer. An acceptance which is not made in the manner prescribed by the offeror is not effective but constitutes a counter-offer which the offeror may accept or reject. The contract is not perfected if the offeror revokes or withdraws its offer and the revocation or withdrawal of the offeror is the first to reach the offeree. The acceptance by the offeree of the offer after knowledge of the revocation or withdrawal of the offer is inefficacious. The termination of the contract when the negotiations of the parties terminate and the offer and acceptance concur, is largely a question of fact to be determined by the trial court. 13. Bautista v. Silva, G.R. No. 157434, September 19, 2006, 502 SCRA 334 To establish his status as a buyer for value in good faith, a person dealing with land registered in the name of and occupied by the seller need only show that he relied on the face of the seller's certificate of title. But for a person dealing with land registered in the name of and occupied by the seller whose capacity to sell is restricted, such as by Articles 166 and 173 of the Civil Code or Article 124 of the Family Code, he must show that he inquired into the latter's capacity to sell in order to establish himself as a buyer for value in good faith. 14. Ravina v. Villa Abrille, G.R. No. 160708, October 16, 2009, 604 SCRA 120 In the present case, the property is registered in the name of Pedro and his wife, Mary Ann. Petitioners cannot deny knowledge that during the time of the sale in 1991, Pedro was married to Mary Ann. However, Mary Anns conformity did not appear in the deed. Even assuming that petitioners believed in good faith that the subject property is the exclusive property of Pedro, they were apprised by Mary Anns lawyer of her objection to the sale and yet they still proceeded to purchase the property without Mary Anns written consent.

PART 2 LEGAL OPINION: Below is an exchange between you and a hypothetical client. Based on the information given, write (1) a brief legal opinion/advice specifying the relevant facts of the case, the legal problems raised by your hypothetical client, your assessment of the issues involved, and the possible courses of action that may be taken under the law; and (2) one legal document that may be used in connection with your recommended course of action. Judy Ann Sanchez has come to consult you about the possibility of her bringing a lawsuit against McBee as a result of the injuries she sustained after she fell from the food chains staircase. Judy Ann brought along her daughter, Mara Clarita, to the interview. Mara Clarita witnessed what happened. The following is your interview with her. Interview with Mara Clarita Sanchez, accompanied by client, Judy Ann Sanchez January 10, 2011 Q: Mara, where were you on October 18, 2010? A: I was at McBee-Metropark Branch with my mother, Judy Ann. Q: Did you see your mother fall from the staircase? A: Yes. Q: What exactly happened? A: We have just ordered some spaghetti and sundaes. Since the ground floor was already filled with people, we decided to eat at the second floor. But when we reached the staircase, we found out that there was a birthday party upstairs and it was closed to the public. Q: So where did you eat? A: I approached a crew and asked if he could find a table for us. Q: What did he do? A: He said that the birthday party was about to end so we can go up and eat there. Q: Did you go upstairs? A: Yes. My mother went up first. Q: What happened next? A: On her way up, she met the McBee mascot (which was a pink bee) who was hurrying down with another crew member. Since the mascot was so big, he hit my mother by the shoulder. Q: What happened then? A: My mother lost her balance. She missed four steps and hit her head, shoulders, back and buttocks on each step. Q: What did you when you saw your mother? A: I was shocked and temporarily rendered motionless. When I realized what happened, I immediately rushed to my mothers side. I told the crew to call an ambulance. Q: What did your mother do? A: She was crying. She complained of extreme back pain and could not stand up. Q: What happened next? A: The store manager approached us. She said that it would be faster if we use her car on the way to the hospital. Two crew members carried my mother and we brought her to the nearest hospital for treatment. When you asked Judy Ann what she has done so far with the case, she told you that she asked the management of McBee-Metropark Branch to pay her P100,000 in damages for what she suffered. Although the management paid for the hospital bills, she suffered pain and was greatly inconvenienced by the weekly physical therapy she was undergoing since the accident. When you asked about the managements response to her demand for damages, she gave you the following letter: December 15, 2010 Judy Ann Sanchez 911 Bluewhale Street Palanan, Makati City Dear Ms. Sanchez: I am writing in reference to your letter dated November 18, 2010 addressed to Ms. Anna Batungbacal, Manager of the McBee-Metropark Branch. She endorsed your letter to me as Operations Manager in charge of the McBee-Metropark Branch. We, at McBee-Metropark Branch are very sorry for any inconvenience your family may have experienced in connection with your unfortunate accident last October 18, 2010. As Ms. Batungbacal and I told you during our hospital visit on October 19, 2010, we truly understand how you and your family feel about the incident. We assure you that we will continue to shoulder all expenses related to your weekly physical therapy until such time that you are fully restored to your previous health. Our conversation helped us understand each others situation. I hope that with this, any past misunderstanding has been cleared up, and we can now put this unfortunate incident behind us. Please accept my sincerest apologies in behalf of the McBee-Metropark Branch team. We truly hope to see you and your family in our store again. Thank you. Very truly yours,

McBee Foods Corporation By: Ted Pallone Operations Manager Metro Manila (South) Area

Laws and jurisprudence that may apply 1. Article 2176 of the Civil Code 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. 2. Article 2179 of the Civil Code When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. 3. Article 2180 of the Civil Code The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. 4. Article 1170 of the Civil Code 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. 5. Article 2202 of the Civil Code In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant. 6. Article 2203 of the Civil Code The party suffering loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question. 7. Article 2214 of the Civil Code In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover. 8. Article 2215 of the Civil Code In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article, as in the following instances: (1) That the plaintiff himself has contravened the terms of the contract; (2) That the plaintiff has derived some benefit as a result of the contract; (3) In cases where exemplary damages are to be awarded, that the defendant acted upon the advice of counsel; (4) That the loss would have resulted in any event; (5) That since the filing of the action, the defendant has done his best to lessen the plaintiff's loss or injury. 9. Article 2216 of the Civil Code No proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or exemplary damages, may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion of the court, according to the circumstances of each case. 10. Article 2217 of the Civil Code Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission.

11. Article 2219 of the Civil Code Moral damages may be recovered in the following and analogous cases: xxx xxx xxx (2) Quasi-delicts causing physical injuries; xxx xxx xxx 12. Article 2221 of the Civil Code Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. 13. Article 2229 of the Civil Code Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. 14. Article 2231 of the Civil Code In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. 15. Jarco Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21, 1999, 321 SCRA 375 An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. It is "a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens." On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Negligence is "the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury." Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence. 16. Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236 The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendant's negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured. 17. Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569 The test for determining whether a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precautions to guard against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this provision, is always necessary before negligence can be held to exist. 18. Saludaga v. Far Eastern University, G.R. No. 179337, April 30, 2008, 553 SCRA 741 In order for force majeure to be considered, respondents must show that no negligence or misconduct was committed that may have occasioned the loss. An act of God cannot be invoked to protect a person who has failed to take steps to forestall the possible adverse consequences of such a loss. One's negligence may have concurred with an act of God in producing damage and injury to another; nonetheless, showing that the immediate or proximate cause of the damage or injury was a fortuitous event would not exempt one from liability. When the effect is found to be partly the result of a person's participation - whether by active intervention, neglect or failure to act - the whole occurrence is humanized and removed from the rules applicable to acts of God. 19. Philippine National Construction Corporation v. Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569 Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. 20. Mangaliag v. Catubig-Pastoral, G.R. No. 143951, October 25, 2005, 474 SCRA 153 It must be remembered that moral damages, though incapable of pecuniary estimation, are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly caused a person. Moral damages are awarded to enable the injured party to obtain means, diversions or amusements that will serve to alleviate the moral suffering he/she has undergone, by reason of the defendant's culpable action. Its award is aimed at restoration, as much as possible, of the spiritual status quo ante; thus, it must

be proportionate to the suffering inflicted. Since each case must be governed by its own peculiar circumstances, there is no hard and fast rule in determining the proper amount. 21. B.F. Metal (Corporation) v. Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA 618 In the case of moral damages, recovery is more an exception rather than the rule. Moral damages are not punitive in nature but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person. In order that an award of moral damages can be aptly justified, the claimant must be able to satisfactorily prove that he has suffered such damages and that the injury causing it has sprung from any of the cases listed in Articles 2219 and 2220 of the Civil Code. Then, too, the damages must be shown to be the proximate result of a wrongful act or omission. The claimant must establish the factual basis of the damages and its causal tie with the acts of the defendant. In fine, an award of moral damages would require, firstly, evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; secondly, a culpable act or omission factually established; thirdly, proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and fourthly, that the case is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code. 22. Philippine Commercial International Bank v. Alejandro, G.R. No. 175587, September 21, 2007, 533 SCRA 738 [N]ominal damages may be awarded to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, and not for indemnifying the plaintiff for any loss suffered by him. Its award is thus not for the purpose of indemnification for a loss but for the recognition and vindication of a right. Indeed, nominal damages are damages in name only and not in fact. They are recoverable where some injury has been done but the pecuniary value of the damage is not shown by evidence and are thus subject to the discretion of the court according to the circumstances of the case. 23. B.F. Metal (Corporation) v. Lomotan, G.R. No. 170813, April 16, 2008, 551 SCRA 618 Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages. Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded.

Suggested ANSWERS to the 2010 BAR EXAM Questions on Public International Law

I. The dictatorial regime of President A of the Republic of Gordon was toppled by a combined force led by Gen. Abe, former royal guards and the secessionist Gordon Peoples Army. The new government constituted a Truth and Reconciliation Commission to look into the serious crimes committed under President As regime. After the hearings, the Commission recommended that an amnesty law be passed to cover even those involved in mass killings of members of indigenous groups who opposed President A. International human rights groups argued that the proposed amnesty law is contrary to international law. Decide with reasons. (4%) Suggested Answer: The proposed amnesty law is contrary to international law. The indigenous group may constitute an ethnic group which is protected by the law on Genocide. If the mass killing was committed with the intent to destroy (dolus specialis) the said ethnic group as such, in whole or in part, then the crime of Genocide was committed. The international norm for the prevention, prosecution and punishment of Genocide is a peremptory (just cogens) norm of international law and, therefore, non-derogable. (Prosecutor v. Blagojevic and Jokic, ICTY, January 17, 2005) Even if the mass killing was not committed with the dolus specialis to destroy the ethnic group as such, the same may still constitute the Crime Against Humanity of Extermination if the mass killing was widespread and systematic or the War Crime of Intentionally Attacking Civilians if the same took place in the context of or was associated with an armed conflict. The norm for the prevention, prosecution and punishment of crimes against humanity and war crimes are also customary norms of international and therefore binding on all States. (Prosecutor v. Stakic, ICTY, July 31, 2003) Thus, Republic of Gordon has the obligation under international law to prosecute and punish all those involved in the mass killing of the members of the indigenous group and providing amnesty to those involved is violative of this obligation. II. Compare and contrast the jurisdiction of the International Criminal Court and International Court of Justice. (3%) Suggested Answer: The jurisdiction of the International Criminal Court (ICC) primarily deals with the prosecution of individuals for core international crimes, while the jurisdiction of the International Court of Justice (ICJ) deals with contentious proceedings between States. As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is limited to the most serious crimes of concern to the international community as a whole, particularly: (a) the Crime of Genocide; (b) Crimes against Humanity; (c) War crimes; and (d) the Crime of Aggression. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 308). On the other hand, the jurisdiction of the ICJ covers legal disputes which the States refer to it. This includes disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; and (d) the nature or extent of the reparation to be made for the breach of an international obligation. (Article 36, ICJ Statute) The ICJ also has jurisdiction to give an advisory opinion on any legal question as may be requested by the General Assembly or the Security Council or on legal questions arising within the scope of the activities of other organs and specialized agencies of the U.N. upon their request and when so authorized by the General Assembly. (Article 96, U.N. Charter) As to jurisdiction over the persons or parties (ratione personae), the ICC shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, and shall be complementary to national criminal jurisdictions. (Art. 1, Rome Statute) On the other hand, only States may be parties in cases before the ICJ and their consent is needed for the ICJ to acquire jurisdiction. ( R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 185) III. A, a British photojournalist, was covering the violent protests of the Thai Red-Shirts Movement in Bangkok. Despite warnings given by the Thai Prime Minister to foreigners, specially journalists, A moved around the Thai capital. In the course of his coverage, he was killed with a stray bullet which was later identified as having come from the ranks of the Red-Shirts. The wife of A sought relief from Thai authorities but was refused assistance. A. B. Is there state responsibility on the part of Thailand? (2%) What is the appropriate remedy available to the victims family under international law? (3%)

Suggested Answer: A. No, there is no state responsibility on the part of Thailand because the acts of the Thai Red-Shirts were not the acts of Thailand. Under the Principle of Attribution or Imputation, a State only incurs liability for individual acts or omission which can be attributed to it. The Thai Red-Shirts are not its officials, agents, or representatives and they were not acting on the instructions of, or under the direction or control of, the Thai Government. ( R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, pp. 65-66)

B. Unless the Red-Shirts becomes the new Government of Thailand or Thailand acknowledges and adopts the conduct of the Red-Shirts as its own, the victims family has no appropriate remedy under international law. Their remedy, if any, if only available under the domestic laws of Thailand by the institution of the appropriate criminal cases against the persons responsible for A killing and the filing of an action to recover damages arising from As death. IV. Choose the statement which appropriately completes the opening phrase: A State which resorts to retorsion in international law A. B. C. D. E. must ensure that all states consent to its act. cannot curtail migration from the offending state. can expel the nationals of the offending state. should apply proportionate response within appreciable limit. None of the above.

Explain your answer. (2%) Suggested Answer: D. A State which resorts to retorsion in international law should apply proportionate response within appreciable limits. Retorsion consists in retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nature of unfriendly acts done primarily in pursuance of legitimate State interests but indirectly hurtful to other States. ( R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 233) To be valid in international law, acts of retorsion should not be excessive when compared to the unfriendly acts committed by the offending State. Moreover, they should not violate a States obligation under Article 2(3) of the U.N. Charter to settle their disputes by peaceful means in such a manner that international peace and security and justice are not endangered. XI. Which statement best completes the following phrase: (1%) Freedom from torture is a right A. B. C. D. E. subject to derogation when national security is threatened. confined only during custodial investigation. which is non-derogable both during peacetime and in a situation of armed conflict. both (a) and (b) none of the above.

Suggested Answer: C. Freedom from torture is a right which is non-derogable both during peacetime and in a situation of armed conflict. Article 2(2) of the U.N. Convention Against Torture provides that No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. Because of the importance of the values it protects, the prohibition of torture has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary rules. The most conspicuous consequence of this higher rank is that the norm prohibiting torture cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force. ( Prosecutor v. Furundzija, ICTY, December 10, 1998) XXVII. What is the concept of association under international law? (2%) Suggested Answer: Under international law, an association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. (C.I. Keitner and W.M. Reisman, Free Association: The United States Experience, 39 Tex. Int'l L.J. 1 (2003)). In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. ( Henkin, et al., International Law: Cases and Materials, 2nd ed., 274 (1987)) In deciding the constitutionality of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001, the Supreme Court had ruled that the concept of association under international law is not recognized under the 1987 Constitution as it runs counter to the

national sovereignty and territorial integrity of the Republic. (Province of North Cotabato v. GRP Peace Panel on Ancestral Domain, G.R. No. 183591, Oct. 14, 2008)