Bar Q & A, Mercantile Law

SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION QUESTIONS IN COMMERCIAL LAW UP Law Complex

I.

A. 

Absolute Timber Co. (ATC) has been engaged in the logging business in Isabela. To secure one of its shipments of logs to be transported by Andok Shipping Co., ATC purchased a marine policy with an all-risk provision, Because of a strong typhoon then hitting Northern Luzon, the vessel sank and the shipment of logs was totally lost. ATC filed its claim, but the insurer denied the claim on several grounds, namely: (1) the vessel had not been seaworthy; (2) the vessel’s crew had lacked sufficient training; (3) the improper loading of the logs on only one side of the vessel had led to the tilting of the ship to that side during the stormy voyage; and (4) the extremely bad weather had been a fortuitous event. 

ATC now seeks your legal advice to know if its claim was sustain able. What is your advice? Explain your answer. (3%) 

SUGGESTED ANSWER 

ATC’s claim is sustainable. The all risk policy that ATC procured from the insurer insures against all causes of conceivable loss or damage except when the loss or damage was due to fraud or intentional misconduct committed by ATC (I New World International Development v. NYK FilJapan Shipping Corporation, G.R. No. 171468, August 24, 2011). The grounds of denial that the insurer invoked are not due to the fraud or • intentional misconduct of the insurer. 

ALTERNATIVE ANSWER 

The claim of Absolute Timber Company that the extreme bad weather is a fortuitous event is not valid. The ship was not seaworthy. Its loss was not due to the perils of the sea, but perils of the ship (Manila Steamship Company v. Abdulhaman, G.R. No. L-9534, September 29, 1956, 100 Phil 32). ATC’s negligence also bars it from invoking the defense of force majeure. 

B.

The newly restored Ford Mustang muscle car was just released from the car restoration shop to its owner, Seth, an avid sportsman. Given his passion for sailing, he needed to go to a round-the-world voyage with his crew on his brand-new 180-meter yacht. Hearing about his coming voyage, Sean, his bosom friend, asked Seth if he could borrow the car for his next roadshow. Sean, who had been in the business of holding motor shows and promotions, proposed to display the restored car of Seth in major cities of the country. Seth agreed and lent the Ford Mustang to Sean. Seth further expressly allowed Sean to use the car even for his own purposes on special occasions during his absence from the country. Seth and Sean then went together to Bayad Agad Insurance Co. (BAIC) to get separate policies for the car in their respective names. 

BAIC consults you as its lawyer on whether separate policies could be issued to Seth and Sean in respect of the same car. 

(a)    What is insurable interest? (2%) 

SUGGESTED ANSWER 

(a) Insurable interest is that interest which a person is deemed to have in the subject matter of the insured where he has a rela tion or connection to it such that the person will derive pecuniary benefit or advantage from the preservation of the subject matter or will suffer pecuniary loss or damage from its destruction, termination or injury by the happening of the event insured against it (44 CJS 870). 

(b)  Do Seth and Sean have separate insurable interests? Explain briefly your answer. (3%) 

SUGGESTED ANSWER 

(b) Seth and Sean have separate insurable interests. Seth’s neurable interest is his legal and/or equitable interest over the vehicle as an owner while Sean’s insurable interest is the safety of the vehicle which may become the basis of liábility in case of loss or damage to the vehicle (Malayan Insurance Co., Inc. v. Philippine First Insurance Co., G.R. No. 184300, July 11, 2012, 676 SCRA 268). 

II.

A.

Morgan, a lawyer, received a lot of diving and other water sports equipment as payment of his professional fees by Dennis, his client in a child custody case. Dennis owned a diving and water sports dealership in Anilao, Batangas. Morgan decided to name Dennis as entrustee because he did not have any experience in selling such specialized sports equipment. They executed a trust receipt agreement, with Morgan as entruster and Dennis as en trustee. 

Before the sports equipment could be sold, a strong typhoon hit Batangas. Anilao and other parts of Batangas experienced power outage. Taking advantage of the total darkness, unidentified thieves destroyed the padlocks of the establishment of Dennis, and carted off the equipment inside. 

Morgan demanded that Dennis pay the value of the stolen equipment, but the latter refused on the ground that he also had suffered from the effects of the typhoon, and insisted that the cause of the loss was fortuitous event or force majeure. 

Is the justification of Dennis warranted? Explain your answer. (4%) 

SUGGESTED ANSWER 

The justification of Dennis is hot warranted. Under the trust receipt law, the loss of goods which are the subject of a trust receipt, pending their disposition, irrespective of whether or not it was due to the fault or negligence of the entrustee, shall not extinguish the obligation of the entrustee for the value thereof (Pres. Dec. 115, Sec. 10, January 29, 1973). 

ALTERNATIVE ANSWER 

The transaction is not really a trust receipt within the ambit of PD 115 since there is no loan component in the transaction. In a trust receipt, the entruster granted the loan to finance the acquisition of the goods, which goods are held in trust for the benefit of the entruster pend ing their disposition. Not being a trust receipt (where force majeure would not have been a defense), the supposed entrustee is not liable for the loss of the sports equipment following general principle that force majeure exempts the obligor from liability. 

B.

Safe Warehouse, Inc. (Safe) issued on various dates negotiable ware house receipts to Peter, Paul, and Mary covering certain goods deposited by the latter with the former. Peter, Paul, and Mary then negotiated and endorsed the warehouse receipts to Cyrus, Magnus, and Charles upon payment by the latter of valuable consideration for the warehouse receipts. Cyrus, Magnus, and Charles were not aware of, nor were they parties to any irregularity or infirmity affecting the title or the face of the warehouse receipts. 

On due dates of the warehouse receipts, Cyrus, Magnus, and Charles demanded that Safe surrender the goods to them. Safe refused because its warehouseman’s claim must first be paid. Cyrus, Magnus, and Charles refused to pay, and insisted that such claim was the liability of Peter, Paul, and Mary. 

(a)  What is a warehouseman’s claim? (3%) 

SUGGESTED ANSWER 

(a) A warehouseman’s lien consist of the storage charges as well as other fees and charges as may be stipulated in the warehouse receipt. 

(b) Is Safe’s refusal to surrender the goods to Cyrus, Magnus, and Charles legally justified? Explain your answer. (3%) 

SUGGESTED ANSWER 

(b) (Yes, Safe’s refusal to surrender the goods is justified. Under the Warehouse Receipts Law, the warehouseman may withhold delivery of the goods unless the demand to deliver is accompanied by an offer to pay the warehouseman’s lien. The lien is possessory in nature. It attaches to the goods regardless of who is the owner thereof. 

III. 

A. 

Data Realty, Inc. (DRI) was engaged in realty development. The family of Matteo owned 100% of the capital stock of DRI. Matteo was also the President and Chairman of the Board of Directors. Other members of Mat teo’s family held the major positions in DRI. Because of a nasty takeover fight with D&E Realty Co., Inc. (D&E), another realty developer, for the control of a smaller realty company with vast landholdings, DRI and D&E engaged in an expensive litigation that eventually led to a money judgment being rendered in favor of D&E

Meantime, DRI, facing inability to pay its liabilities as they fall due but still holding substantial assets, filed a petition for voluntary rehabilitation. Trying to beat the consequences of rehabilitation proceedings, D&E moved in the trial court for the issuance of a writ of execution. The trial court also hap pened to be the rehabilitation court. The writ of execution was issued. 

Serving the writ of execution, Metro, the court sheriff who had just passed his Credit Transactions subject in law school, garnished Matteo’s bank accounts, and levied his real properties, including his house and lot in Makati. 

Are the garnishment and levy of Matteo’s assets lawful and proper? Explain your answer. (4%) 

SUGGESTED ANSWER 

The garnishment and levy of Matteo’s assets are not valid, because Mateo is not covered by the rehabilitation proceedings or any stay order that the rehabilitation court may issue. It is DRI, with a legal personality separate and distinct from Matteo, which filed the petition for rehabilitation and would have been entitled to the effects of any commencement order (and stay order) that the court may issue. The commencement order would have the effect of setting aside any seizure of property or attempt to enforce a claim against the debtor. 

It would have been different if Matteo acted as surety and the court issues a commencement order with stay order, the effects of which are retroactive to the filing of the petition. In which event, the garnish ment of his deposits and level of assets would have been valid. 

ALTERNATIVE ANSWER 

On the assumption that DRI’s legal personality may be pierced to make it one and the same with Matteo, the garnishment of deposits and levy of assets are lawful and proper because the court has not issued yet a commencement order prior to the garnishment and levy. 

B.

Sid used to be the majority stockholder and President of Excellent Corporation (Excellent). When Meridian Co., Inc. (Meridian), a local conglomerate, took over control and ownership of Excellent, it brought along its team of officers. Sid thus became a minority stockholder and a minority member of the Board of Directors, 

Excellent, being the leading beverage manufacturer in the country, became the monopoly when Meridian’s own beverage business was merged with Excellent’s, thereby making Excellent virtually the only beverage manufacturer in the country. 

Left out and ignored by the management, Sid became a fiscalizer of sorts, questioning during the Board meetings the direction being pursued by Excellent’s officers. 

Ultimately, Sid demanded the inspection of the books and other corporate records of Excellent. The management refused to comply, saying that his right as a minority stockholder has been much reduced. 

State under what conditions may Sid properly assert his right to inspect the books and other corporate records of Excellent. Explain your answer. (3%) 

SUGGESTED ANSWER 

Sid may properly assert his right to inspect the books and other corporate records of Excellent under the following conditions: 

(1) the purpose of his inspection is legitimate and ger mane to his interest as a stockholder; 

(2) the right should be exercised during reasonable hours on business day; 

(3) he has not improperly used any information secured in previous examination (Section 74 of the Corporation Code; Terelay Investment v. Yulo, G.R. No. 160924, August 5, 2015, 765 SCRA 1). 

IV. 

Procopio, a Director and the CEO of Parisian Hotel Co., Inc. (P. risian), was charged along with other company officials with several count of estafa in connection with the non-remittance of SSS premiums the company had collected from its employees. During the pendency of the cases, Parisian filed a petition for rehabilitation. The court, finding the petition to be sufficient in form and substance, issued a commencement order together with a stay or suspension order. 

Citing the commencement order, Procopio and the other officers facing the criminal charges moved to suspend the proceedings in the estafa cases. 

(a) What is a commencement order, and what is the effect of its issuance? Explain your answer. (4%) 

SUGGESTED ANSWER 

(a) A commencement order is an order issued by the Reha bilitation Court if the petition for rehabilitation filed by the financially distressed debtor or by its creditor is sufficient in form and substance. The rehabilitation proceedings are commenced, upon issuance by the rehabilitation court of a commencement order. The stay order which is included in the commencement order shall suspend all actions or proceedings for the enforcement of claims against the debtor (Section 16 of FRIA). 

(b) Suppose you are the trial judge, will you grant the motion to suspend of Procopio, et al.? Explain your answer. (4%). 

SUGGESTED ANSWER 

(b) Under Section 18 of FRIA, the stay order does not include criminal action against the individual debtor, or owner, partner, director or officer of the debtor. 

V.

A.

Under the Nell Doctrine, so called because it was first pronounced by the Supreme Court in the 1965 ruling in Nell v. Pacific Farms, Inc. (G.R. No. 20850, November 29, 1965. 15 SCRA 415), the general rule is that where one corporation sells or otherwise transfers all of its assets to another corporation, the latter is not liable for the debts and liabilities of the transferor.

State the exceptions to the Nell Doctrine. (4%) 

SUGGESTED ANSWER 

The exceptions to the Nell doctrine are as follows: 

(1) When the buyer expressly or impliedly assumes the li abilities of the seller; 

(2) If the sale amounts to a merger or consolidation, 

(3) If the sale is entered into fraudulently or made in bad faith 

(4) If the buyer is merely a continuation of the personality of the seller or the so called business – enterprise transfer rule. 

B. 

Santorini Corporation (Santorini) was in dire straits. In order to firm up its financial standing, it agreed to entertain the merger and takeover offer of Proficient Corporation (Proficient), the leading company in their line of business. Erica, the major stockholder of Santorini, strongly opposed the merger and takeover. The matter of the merger and takeover by Proficient was included in the agenda of the next meeting of Santorini’s Board of Directors. However, owing to Erica’s serious illness that required her to seek urgent medical treatment and care in Singapore, she failed to attend the meeting and was consequently unable to cast her vote. The Board of Directors approved the merger and takeover. At the time of the meeting, Santorini had been in the red for a number of years owing to its recurring business losses and reverses. 

Erica seeks your legal advice regarding her right as a stockholder opposed to the corporate action. Explain your answer. (4%) 

SUGGESTED ANSWER 

Erica may exercise her appraisal right. Appraisal right is the right of the stockholder to demand the payment of the fair value of his shares after dissenting from a corporate act in the cases specified by law. Merger is one of those instances (Section 81 gf the Corporation Code). It is imperative, however, that she attends the stockholders’ meeting or files her written dissent, otherwise, she cannot exercise such right. 

C.

Samito is the President and a Director of Lucky Bank (Lucky), a commercial bank holding its main office in Makati. His brother, Othello, owned a big fishing business based in Malabon. Othello applied for a loan of P50 million with Lucky. Othello followed the ordinary banking procedures in all the stages of the processing of his application. When required, he made the necessary arrangements to guarantee the loan. Thus, in addition to the real estate mortgage, Othello executed a joint and solidary suretyship, issued postdated checks, and submitted all other requirements prescribed by Lucky. 

When the loan application was about to be approved and the pro ceeds released, BG Company, a keen competitor of Othello in the fishing in dustry, wrote to the Board of Directors and the management of Lucky ques tioning the loan on the ground of conflict of interest due to Samito and Othello being brothers, citing the legal restriction against bank exposure of directors, officers, stockholders or their related interests. (DOSRI). 

(a) What are the three restrictions imposed by law on DOSRI transactions? (4%) 

SUGGESTED ANSWER 

(a) The restrictions are as follows: 

(1) The Transactions must be approved by at least majority of the entire board excluding the director concerned; 

(2) The required approval shall be entered upon the records of the bank and copy of such entry shall be submitted to the BSP;) 

(3) Unless the loan is non-risk, the loan must not exceed the book value of the paid up shares of the borrowing DOSRI and the amount of unencumbered deposits. (Section 36 of RA 8791). 

(b) Is BG Company’s opposition based on conflict of interest and violation of the restrictions on DOSRI transactions legally and factually correct? Explain your answer. (4%) 

SUGGESTED ANSWER 

(b) BG Company’s opposition based on conflict of interest and violation of the restrictions on DOSRI transactions are not legally and factually correct. The “related interest” referred to under DOSRI ex tends only to the spouse of any Director, Officer or Stockholder, his ascen dants and descendants up to the first degree of affinity or consanguinity. Brothers are second degree relatives and as such, cannot be considered DOSRI accounts. 

(Note: It is recommended that the examinees be given outright credit for this question regardless of the answer because the question is answerable based on the Manual of Banking regulations, which are not included in the syllabus). 

VI.

A.

Hortencio owned a modest grocery business in Laguna. Because of the economic downturn, he incurred huge financial liabilities. He remained afloat only because of the properties inherited from his parents who had both come from landed families in Laguna. His main creditor was Puresilver Company (Puresilver), the principal supplier of the merchandise sold in his store. 

To secure his credit with Puresilver, he executed a real estate mortgage with a (dragnet clause involving his family’s assets worth several millions of pesos. 

Nonetheless, Hortencio, while generally in the black, now faces a situation where he is unable to pay his liabilities as they fall due in the ordinary course of business. What will you advise him to do to resolve his dire financial condition? Explain your answer. (5%) 

SUGGESTED ANSWER 

If Hortencio is doing business as a registered sole proprietorship, he can file a petition for rehabilitation. Under FRIA, a sole proprietorship can now file a petition for rehabilitation. The remedy may be availed of in case of actual or technical insolvency. In the petition, he can pray for the issuance of a commencement order which includes a stay order. The stay order, once issued, has the effect of enjoining the enforcement of claims against Hortencio. 

If Hortencio is not registered as a sole proprietorship, he can file a petition for suspension of payments in the city or province in which he has resided for six months prior to the filing of the petition, a remedy available to an individual debtor who has more assets than liabilities but foresees the impossibility of paying his debts when they respectively fall due (Section 94, FRIA). 

B. 

Wyatt, an internet entrepreneur, engaged in a sideline business of creating computer programs for selected clients on a per project basis and for servicing basic computer problems of his friends and family members. His main job was being an IT consultant at Futurex Co., a local computer company. 

Because of his ill-advised investments in the stock market and the fraud perpetrated against him by his trusted confidante, Wyatt was already drowning in debt, that is, he had far more liabilities than his entire assets. 

What legal recourse remained available to Wyatt? Explain your answer. (5%) 

SUGGESTED ANSWER 

If Wyatt is registered as sole proprietorship, he may file a petition for rehabilitation or voluntary liquidation. Under FRIA, an insolvent debtor may file a petition for rehabilitation even if the assets are less than liabilities. The petition should include a rehabilitation plan and nominee for rehabilitation receiver. He can also file a petition for voluntary liquidation since his liabilities exceed his assets. The objective of liquidation is to get a discharge, maximize recovery of assets and effect equitable distribution of such assets based on the rules on concurrence and preference of credit. 

If he is not registered as a sole proprietorship, he may only file a petition for voluntary liquidation since his assets are less than liabilities (Section 103 of FRIA). Petition for suspension of payments is not available as a remedy to an individual debtor not registered as a sole proprietorship. 

VII. 

A. 

Virtucio was a composer of Ilocano songs who has been quite popu lar in the Ilocos Region. Pascuala is a professor of music in a local university with special focus on indigenous music. When she heard the musical work of Virtucio, she purchased a CD of his works. She copied the CD and sent the second copy to her Music class with instructions for the class to listen to the CD and analyze the works of Virtucio. 

Did Pascuala thereby infringe Virtucio’s copyright? Explain your an swer. (4%) 

SUGGESTED ANSWER 

Pascuala did not infringe on the rights of Virtucio. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research and similar purposes is not an infringement of copyright (Section 185 of RA 8293, as amended). In this case, Virtucio’s reproduction of the limited number of CD was før classroom use and educational purposes thus negating copyright infringement.

B. 

Super Biology Corporation (Super Biology) invented and patented a miracle medicine for the cure of AIDS. Being the sole manufacturer, Super Biology sold the medicine at an exorbitant price. Because of the sudden prevalence ofAIDS cases in Metro Manila and other urban areas, the Department of Health (DOH) asked Super Biology for a license to produce and sell the AIDS medicine to the public at a substantially lower price. Super Biology, citing the huge costs and expenses incurred for research and development, rerused. 

Assuming you are asked your opinion as the legal consultant of DOH, discuss how you will resolve the matter. (4%) 

SUGGESTED ANSWER 

DOH may file a petition for compulsory license with the Director. of Legal Affairs of the Intellectual Property Office to exploit the patented medicine even without the agreement of the patent owner on the ground of public interest, in particular, health (Section 193 of RA 8293, as amended). Once granted, the DOH may then produce and sell the AIDS medicines for a cheaper price subject to payment of reasonable royalties to Super Biology. 

VIII. 

A. 

Flora, a frequent traveller, found a purse concealed between the cushions of a large sofa inside the VIP lounge in NAIA while she was waiting for her flight to be called. Inside the purse was a very valuable diamond-studded necklace. She decided not to turn over the purse to the airport management, and instead to keep it. On her return from her travels, she had a dependable jeweller appraise the necklace, and the latter told her that the necklace was easily worth at least P5 million in the open market. To test the appraisal, she pawned the necklace for P2 million. She then deposited the entire amount in her checking account with Metro Bank. Promptly, Metro Bank reported the transaction to the Anti-Money Laundering Council (AMLC). 

Given that her appropriation of the necklace was theft, may Flora be successfully prosecuted for money laundering? Explain briefly your answer. (4%) 

SUGGESTED ANSWER 

Flora may not be prosecuted for money laundering. Money laundering is a crime whereby the proceeds of an unlawful activity are transacted making it appear that they originated from legitimate sources. One of the ways of committing money laundering is if a person knows the cash relates to unlawful activity and transaction. Under the rules implementing the Anti-Money Laundering Law, however, only qualified theft (not) simple theft) is considered an unlawful activity. In the case presented, the theft committed by Flora did not become qualified because it was not committed with grave abuse of discretion. 

B. 

Prosperous Bank is a domestic bank with head office in Makati. It handles the banking requirements of thousands of clients. 

The AMLC initiated a discreet investigation of the financial transactions of Lorenzo, a suspected drug trafficker based in Naga City. The intelligence group of the AMLC, in coordination with the counterpart group from the PDEA and the NBI, gathered ample evidence establishing Lorenzo’s unlawful drug activities. The AMLC had probable cause that his deposits and investments in various banks, including Prosperous Bank, were related to money laundering. 

Accordingly, the AMLC now transmits to Prosperous Bank a formal demand to allow its agents to examine the banking transactions of Lorenzo, but Prosperous Bank refuses the demand. 

Is Prosperous Bank’s refusal justified? Explain your answer. (4%) 

SUGGESTED ANSWER 

Prosperous Bank’s refusal is not justified. Notwithstanding the provisions of RA 1405, RA 6426 and RA 8791, the AMLC may inquire into or examine any particular deposit or investment with any bank or non-bank financial institution if there is a probable cause that the deposits are related to unlawful activity under the Anti-money laundering law, as in this case. Bank inquiry order from the court is not necessary since the predicate crime is violation of the Dangerous Drugs Law (Section 11 of RA 9160, as amended). 

 IX. 

A. 

Alfred issued a check for P1,000.00 to Benjamin, his friend, as pay ment for an electronic gadget. The check was drawn against Alfred’s account with Good Bank. Benjamin then indorsed the check specially in favor of Ce sar. However, Cesar misplaced the check. Dexter, a dorm mate of Cesar, found the check altered its amount to P91,000.00 and forged Cesar’s indorsement by way of a blank indorsement in favor of Felix, a known jeweler. Felix then caused the deposit of the check in his account with Solar Bank. As collect ing bank, Solar Bank stamped “all previous indorsements guaranteed” on the check. Seeing such stamp of the collecting bank, Good Bank paid the amount of P91,000.00 on the check. 

May Good Bank claim reimbursement from Alfred? Explain your answer. (4%) 

SUGGESTED ANSWER 

Good Bank may claim reimbursement from Alfred but only for the amount of P1,000. It cannot recover the Php90,000 difference because payment made under a materially altered check is not payment done in accordance with the instructions of the drawer. When Good Bank did not pay according to the tenor of the instrument, then it has no right to claim reimbursement from Alfred much less the right to deduct the erroneous payment it made from Alfred’s account (Metrobank v. Cablizo, G.R. No. 154469, December 6, 2006, 510 SCRA 259; Areza v. Express Savings Bank, G.R. No. 176697, September 10, 2014). 

ALTERNATIVE ANSWER 

No. Good Bank cannot claim reimbursement from Alfred. The general rule is that in case of forgery of the indorsement of the payee of the check, the drawer cannot debit the drawer’s account and the loss shall be borne by the drawee bank. The depository or collecting bank is liable to the drawee bank in case of forged endorsement (or endorsements other than the payee) because it guarantees all prior endorsements. 

B.

In 2006, Donald, an American temporarily residing in Cebu City, is sued to Rhodora a check for $50,000 drawn against Wells Fargo Bank with offices in San Francisco, California. Rhodora negotiated the check and delivered it to Yaasmin, a Filipina socialite who frequently travelled locally and internationally. Because of her frequent travels, Yaasmin misplaced the check. It was only 11 years later on, in 2017, when she found the check inside a diary kept in her vault in her Hollywood, California house. 

Discuss and explain the rights of Yaasmin on the check. (4%) 

SUGGESTED ANSWER 

Yasmin can not enforce the check against Donald and Rhodora since more than ten years had lapsed from check issuance. Action on the check is barred by the statute of limitations 

ALTERNATIVE ANSWER 

This is a case of stale check, a check not presented within a reasonable time from issuance, hence, Wells Fargo will be justified in refusing to honor the check if presented for payment. What Yasmin can do is to request’ Donald the drawer to issue a new check to Yasmin in her capacity as the endorsee of Rhodora, the original payee. Donald, the drawer shall be discharged from liability only if the delay caused nim prejudice (Art 1249 of the Civil Code). 

X.

Wisconsin Transportation Co., Inc. (WTC) owned and operated an inter-island deluxe bus service plying the Manila-Batangas-Mindoro route. Three friends, namely: Aurelio, Jerome, and Florencio rode on the same WTC bus from Manila bound for Mindoro. Aurelio purchased a ticket for himself. Jerome, being a boyhood friend of the bus driver, was allowed a free ride by agreeing to sit during the trip on a stool placed in the aisle. Florencio, already penniless after spending all of his money on beer the night before, just stole a ride in the bus by hiding in the on-board toilet of the bus. 

During the trip, the bus collided with another bus coming from the opposite direction. The three friends all suffered serious physical injuries. 

What are WTC’s liabilities, if any, in favor of Aurelio, Jerome, and Florencio? Explain your answer. (4%) 

SUGGESTED ANSWER 

WTC, as a common carrier, is liable to Aurelio for breach of contract of carriage. In case of death or injury to passenger, there is a presumption of fault on the part of the common carrier unless it exercised extraordinary diligence in ensuring the safety of its passengers. WTC is also liable to Jerome for breach of contract although Jerome was carried gratuitously. However, for Jerome, a stipulation limiting the liability of WTC for negligence is valid but not for willful acts or gross negligence (Article 1758 of the Civil Code). There being no contract of carriage between WTC and Florencio, WTC is not liable to Florencio for breach of contract, but WTC may be liable for a quasi-delict, if its driver was driving negligently. 

XI. 

TRUE or FALSE – EXPLAIN BRIEFLY YOUR ANSWER. 

(a) A conviction under the Trust Receipts Law shall bar a prosecution for estafa under the Revised Penal Code. (2%) 

SUGGESTED ANSWER 

(a) True, because the criminal violation of the trust receipts agreement as when the entrustee does not deliver the proceeds of the sale of the goods subject of the trust receipt or fails to return the goods in case of non sale already constitutes estafa under the Revised Penal Code. 

(b) The term capital in relation to public utilities under Sec. 11, Art. XII of the 1987 Constitution refers to the total outstanding capital stock comprising both common and non-voting preferred shares. (2%) 

SUGGESTED ANSWER 

(b) False, because it only relates to common and voting preferred shares as held in Heirs of Gamboa v. Teves (G.R. No. 176579, October 9, 2012). To construe broadly the term capital as the total outstanding capital stock including both common and non voting preferred shares, “grossly contravenes the intent and letter of the Constitution that the State shall develop a self-reliant and independent national economy effectively controlled by Filipino citizens. Control means owning the shares that are allowed to vote the directors of the corporation who will manage and con trol the business affairs thereof. 

(Note: An answer based on the most recent case of Roy v. Herbosa, G.R. No. 207246, April 18, 2017 (a case decided after the cut-off date of the 2017 Bar exams ) where the SC held that the term capital means both the voting shares and the total outstanding capital stock should also be considered correct]. 

(c) Forgery is a real defense but may only be raised against a holder not in due course. (2%) 

SUGGESTED ANSWER 

(C) False, because forgery, as a real defense, can be raised even against a holder in due course. 

(d) News reports are not copyrightable. (2%) 

SUGGESTED ANSWER 

(d) True. Under Section 175 of the Intellectual Property Code (R.A. 8293, June 6, 1997) “news of the day and other miscellaneous facts having the character of mere items of press information” are “un protected subject matter”, therefore, not copyrightable. 

(e)  The law on life insurance prohibits double insurance. (2%) 

SUGGESTED ANSWER 

False. Double insurance only applies to property insurance. 

XII. 

Onassis Shipping, Inc. (Onassis) operated passenger vessels and car. go trucks, and offered its services to the general public. In line with its vision and mission to protect the environment, Go-Green Asia (Go-Green), an NGO affiliated with Greenpeace, entered into a contract with Onassis whereby Go Green would operate with its own crew the M/V Dolphin, an ocean-going passenger vessel of Onassis. 

While on its way to Palawan carrying Go-Green’s invited guests who were international and local observers desirous of checking certain environ mental concerns in the area, the M/V. Dolphin encountered high waves and strong winds caused by a typhoon in the West Philippine Sea. The rough seas led to serious physical injuries to some of the guests. 

Discuss the liabilities of Onassis and Go-Green to the passengers of the M/V Dolphin. Explain briefly your answer. (3%) 

SUGGESTED ANSWER 

The contract that Onassis and Greenpeace entered into is a bare boat or demise charter because Greenpeace was not only given possession of the vessel but also the command and control of the navigation as a out of its authority to hire its own crew who will man the vessel. The bareboat charter effectively converts Onassis from a common carrier to a private carrier (Federal Phoenix Assurance v. Fortune Sea Carrier. Inc.. G.R. No. 188118, November 23, 2015). Being a mere lessor, and having ceased to be the owner of the vessel with respect to the navigation. Onas sic has no liability to the passengers who contracted with Greenpeace Greenpeace is the one liable to the passengers for the injuries they sus. tained in the course of the navigation. 

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