Past Bar Exam Memorandum2011

7/23/2019 Past Bar Exam Memorandum2011

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Prodigals NotesMemorandumGuidelines in preparation of Memorandum:

TRIAL MEMORANDUM FOR PLAINTIFF

MEMORANDUM FOR THE PLAINTIFF

Plainti, through counsel, respectfully submits this memorandum to wit:

Plainti, by counsel, respectfully states that:

Plainti, by counsel, respectfully submits its memorandum in the case:

Plaintif, through the undersigned counsel, unto this Honorale!ourt res"ect#ull$ su%its this Me%orandu% to su""ort her cause o#action and alleges&

PLAINI!!, through the undersigned counsel, most respectfully submitsthis Memorandum, as follows:

Plainti, by counsel most respectfully submits this memorandum andalleges:

Plaintif, by the undersigned counsel, avers that:

Plainti, through the undersigned counsel, respectfully submits thefollowing Memorandum and states that:

PREFATOR' (TATEMENT

"ptional but it may create a great impression, #nd if any article that

may described the claims of the side you ha$e chosen% It was the General

&ule or Law that support the argument that you're going to present% (ou can

#nd some on )uman &elation, *hapter two of the new ci$il code as

amended%

&ights may be wai$ed, unless the wai$er is contrary to law, public policy,

morals, or gooe customs or pre+udicial to a third person with a right recogniedby law% -Art% ., *i$il *ode/

0$ery person must, in e1ercise of his rights and in the performance of hisduties, act with +ustice, gi$e e$eryone his due, and obser$e honesty and goodfaith% -Art% 23 *i$il *ode/ (abuse of authority doctrine)

2) P a g e L a r r $ D * + u g a r i n g M a n i l a L a ! o l l e g e - . . /


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Prodigals NotesMemorandum

0$ery person who, contrary to law, willfully or negligently causes damageto another shall indemnify the latter for the same -Art% 45, *i$il *ode/% (Tortsand damages)

0$ery person who willfully causes loss or in+ury to another in a mannerthat is contrary to morals, good customs or public policy shall compensate thelatter for damages% -Art% 42 *i$il *ode/(in relation of Art 100 of RPC)

0$ery person who though an act of performance by another, or any othermeans, ac6uires or comes into possession of something at the e1pense of thelatter without +ust or legal ground, shall return the same to him -Art% 44 *i$il*ode/ (promise to marry)

In all contractual, property or other relations, when one of the parties is at

disad$antage on account of his moral dependence, ignorance, indigence, mentalwea7ness, tender age or other handicap, the courts must be $igilant for hisprotection% -Art% 48, *i$il *ode/

(TATEMENT OF THE !A(E 0 1NATURE OF THE !A(E2

9tatement of the *ase it gi$es a brief idea of what the case is all about%

It contains the following:

2% he nature of the case

4% *laims or Allegation of the Plainti and

;% he &espond or


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9tatement of facts is the narration of the MA0&IAL !A*9 of the case% =e

sure that you can identify what is material and rele$ant from immaterial and

irrele$ant, this is $ery important because this will be basis of your arguments

and discussions% Always narrate the facts in third person $oice%

2% o ma7e things to be simple, while reading the transcript or a>da$it for

getting the rele$ant facts, cross?out the facts that you thin7 that was

immaterial or irrele$ant to the case% 01ample

@% hat were you doing thereB

A% I was about to coo7 spaghetti for my son &ic7y when I realied I didn't

ha$e any tomato sauce so I went to Gloria 9upermart to buy tomato sauce

and some other things we needed in the house%

he answer is irrele$ant and immaterial because the focus of the

case was the Negligence and liability of the defendant or the

contributory negligence of the plainti%

4% Ma7e an outline, so that you can easily see the chronological e$ent of

the facts and it can also easily see the series of e$ent% It helps identify

the characters if e$er the problem in$ol$es #$e or more character%

01ample:

;) P a g e L a r r $ D * + u g a r i n g M a n i l a L a ! o l l e g e - . . /

Gloria 9upermart

about 25 a%m% on

May 22, 4525

Ms% =ueno and her 9on &ic7y,

2% 9hoppingC pic7ing up groceries

4% a small ball rolled along the aisle and &ic7y ran after

it

;% &ic7y slips with a hea$y bang on a wet section of the

aisle% -saw by Ms% =ueno/

8% &ic7y shrie7ed from pain in his right wrist which he

used to stop his fall

D% No any sign near that puddle or around it, warning

customers of the danger it presents

.% &ic7y was brought to the Philippine "rthopedic

)ospitalE% Ms% =ueno, mentally suered more pain than &ic7y

did

F% reco$er the use of his right wrist for si1 wee7s

3% 9pent P44,F85%55 for doctor's fee, hospitaliation,

Gloria 9upermart, Inc

2% e1ercised proper diligence in ma7ing its premises safe for its

customers that the accident in$ol$ing &ic7y was something it

could not reasonably anticipate and so beyond its control that,

in any e$ent, &ic7y and her mother contributed to &ic7y slipping

on the oor and suering physical in+ury and pain and that

Gloria 9upermart pro$ided immediate help and assistance to&ic7y and her mother%

4% Mr% *astro infer from the position of &ic7y that he bumped into

the shelf containing syrup bottles and 7noc7ed o some of


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(TATEMENT OF THE I((UE0(

The issues of the case as determined by the court in its pre-trial orderare as follows/

9tatement of issue or issues means the claim or disputes of the

parties% In the other words those facts that are contradict the theories of the

parties% his the MAIN I99H0C9

AR3UMENT( AND DI(!U((ION

Arguments will depend on the issueCs that was identi#ed on the

problem% =uild your case by the support of the side issues of contributing

factor% &easoning with logic is the $ery foundation of the memorandum and it

can be made by the suggested format such as follows: -I&A*/

2% Issues it may be the main issues or other issues that can be used to

support the main issue% !or e1ample:

)0)0& "& N" GL"&IA 9HP0&MA& I9 LIA=L0 !"& INJH&(

9H!!0&0< &I*K( =H0N" -this is the MAIN issue/

Issues the supporting the main issues are:

a% GL"&IA 9HP0&MA& I9 LIA=L0 !"&


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8% *onclusion%

!ON!LU(ION

"ptional for it may draw a general conclusion based on the arguments

that are established% It may be based on the law itself%

PRA'ER

he )0&0!"&0 phrase is the &elief that being Prayed for by the partiesto the court%

I% )0&0!"&0, premises considered, plainti most respectfully prays of this)onorable *ourt that +udgment be rendered in fa$or of plainti and againstdefendant:

2/


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;/ "ther +ust and e6uitable remedies under the circumstances are li7ewiseprayed for%

I% herefore, premises considered, it is respectfully prayed that


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Prodigals NotesMemorandum=ueno $s% Gloria 9upermart, Inc%, *i$il *ase No% 4E?224522, )earing of June

E, 4522%


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Prodigals NotesMemorandumA% I was at Gloria 9upermart%

@% hat were you doing thereB

A% I was about to coo7 spaghetti for my son &ic7y when I realied I didn't

ha$e any tomato sauce so I went to Gloria 9upermart to buy tomato sauce

and some other things we needed in the house%

@%


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Prodigals NotesMemorandum@%


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Prodigals NotesMemorandumA% )e is my son% I mentally suered more pain than he did% )e is my

only son% I don't 7now what I would do if I lose him% My husband and I waited

for years before we had &ic7y% And then this happens%

@% )ow much e1pense, if any, did you incur for the hospitaliation and

medical treatment of &ic7yB

A% I spent P44,F85%55 for doctor's fee, hospitaliation, and medicine% e

also bought toys for &ic7y to distract him from the pain that he suered% e

spent appro1imately PD,555%55%

@%


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Prodigals NotesMemorandumA% (es, 9ir%

@% 9till, you let him slip away from your control, when he ran after that

ballB

A% (es, 9ir, but the supermar7et should 7eep their eyes open for things

li7e loose balls running down their aisles, drawing children away from their

parents, and letting them slip on carelessly spilled li6uids%

@% =ut did you not notice that the aisles of Gloria 9upermart ha$e sales

cler7s that attend to in6uiries and needs of its customersB

A% Not all the time% hen my son had his accident, no one was around to

pre$ent it from happening%

A(% 9HNGA: hat is all, (our )onor%

01cerpts from ranscript of 9tenographic Notes

=ueno $s% Gloria 9upermart, Inc%, *i$il *ase No% 4E?224522, )earing of June

28, 4522


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*"H&: Proceed Atty% 9unga%

A(% 9HNGA:

@% Mr% *astro, you said that you are a supermar7et super$isor% !or whom

do you wor7 as supermar7et super$isorB

A% I ha$e been with Gloria 9upermart for D years already, 9ir%

@%


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Prodigals NotesMemorandumA% All supermar7ets allow customers to bring their children into the

store% It is often a necessity for them% It is understood of course that their

parents would loo7 after them, pre$enting them from misbeha$ing, causing

damage to the merchandise, or getting in+ured%

@% Ms% =ueno said that &ic7y slid on the oor because some syrup

seeped out of a lea7ing bottle in one of the shel$es%


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Prodigals NotesMemorandumA% (es, 9ir, but the scene suggested it%

@% 9ince you did not see what actually happened at that aisle, is it

possible for some other person to ha$e 7noc7ed o those bottlesB

A% (es, 9ir, that is possible but not li7ely since I did not see any person

lea$e the place in haste%

@% 9o, it is also possible that the syrup on the oor, spilled by someone

else, caused &ic7y to slip as he was running after some ball before you

showed upB

A% (es, that is possible, but unli7ely% he shel$es are carefully stoc7ed%

@%


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Prodigals NotesMemorandumresponsibility shall include the caring for and rearing of such children for ci$ic

consciousness and e>ciency and the de$elopment of their moral, mental

and physical character and well?being%

Art% 45% Parental authority and responsibility may not be renounced or

transferred e1cept in the cases authoried by law%

Art% 445% he parents and those e1ercising parental authority shall ha$e with

respect to their unemancipated children or wards the following rights and

duties:

-2/ o 7eep them in their company, to support, educate and instruct them by

right precept and good e1ample, and to pro$ide for their upbringing in

7eeping with their means111 111 111

-F/ o impose discipline on them as may be re6uired under the

circumstances and

-3/ o perform such other duties as are imposed by law upon parents and

guardians%

Art% 442% Parents and other persons e1ercising parental authority shall be

ci$illy liable for the in+uries and damages caused by the acts or omissions of

their unemancipated children li$ing in their company and under their

parental authority sub+ect to the appropriate defenses pro$ided by law%

!I8IL !ODE

P0&9"NAL LIA=ILI(

Art% 45% 0$ery person who, contrary to law, willfully or negligently causes

damage to another, shall indemnify the latter for the same%

NHI9AN*0

Art% .38% A nuisance is any act, omission, establishment, business, condition

of property, or anything else which:

2D) P a g e L a r r $ D * + u g a r i n g M a n i l a L a ! o l l e g e - . . /


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Prodigals NotesMemorandum-2/ In+ures or endangers the health or safety of others or 111 111

111

Art% .3E% he abatement of a nuisance does not preclude the right of any

person in+ured to reco$er damages for its past e1istence%

Attracti$e Nuisance

"ne who maintains on his premises dangerous instrumentalities or

appliances of a character li7ely to attract children in play, and who fails to

e1ercise ordinary care to pre$ent children from playing therewith or resorting

thereto, is liable to a child of tender years who is in+ured thereby, e$en if the

child is technically a trespasser in the premises% -)idalgo 0nterprises,

Inc%, $% =alandan, et al%, L?;844, June 2;, 23D4, 32 Phil% 8FF/

@HA9I?


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he doctrine of res ipsa lo6uitor applies where -2/ the accident was of such

character as to warrant an inference that it would not ha$e happened e1cept

for the defendant's negligence -4/ the accident must ha$e been caused by

an agency or instrumentality within the e1clusi$e management or control of

the person charged with the negligence complained of and -;/ the accident

must not ha$e been due to any $oluntary action or contribution on the part

of the person in+ured% -*hild Learning *enter, Inc% $% agorio, G%&% No% 2D5345,

No$ember 4D, 455D, 8E. 9*&A 4;./

he test for determining whether a person is negligent in doing an act

whereby in+ury 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 in+ured as a reasonable conse6uenceof the course actually pursuedB -Philippine National *onstruction *orporation

$% *ourt of Appeals, G%&% No% 2D34E5, August 44, 455D, 8.E 9*&A D.3/

Art% 42E3% hen the plainti's own negligence was the immediate and

pro1imate cause of his in+ury, he cannot reco$er damages% =ut if his

negligence was only contributory, the immediate and pro1imate cause of the

in+ury being the defendant's lac7 of due care, the plainti may reco$er

damages, but the courts shall mitigate the damages to be awarded%

*ontributory negligence is conduct on the part of the in+ured party,

contributing as a legal cause to the harm he has suered, which falls below

the standard which he is re6uired to conform for his own protection%

111 111 111

It is an act or omission amounting to want of ordinary care on the part of the

person in+ured which, concurring with the defendant's negligence, is the

pro1imate cause of the in+ury% -National Power *orporation $% )eirs of Noble

*asionan, G%&% No% 2.D3.3, No$ember 4E, 455F, DE4 9*&A E2/

Pro1imate cause is de#ned as that cause, which, in natural and

continuous se6uence, unbro7en by any e>cient inter$ening cause, produces

2E) P a g e L a r r $ D * + u g a r i n g M a n i l a L a ! o l l e g e - . . /


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Prodigals NotesMemorandumthe in+ury, and without which the result would not ha$e occurred% -&amos $%

*%"%L% &ealty *orporation, G%&% No% 2F835D, August 4F, 4553, D3E 9*&A D4./

Art% 42F5% he obligation imposed by Article 42E. is demandable not only for

one's own acts or omissions, but also for those of persons for whom one is

responsible%

111 111 111

he owners and managers of an establishment or enterprise are li7ewise

responsible for damages caused by their employees in the ser$ice of the

branches in which the latter are employed or on the occasion of their

functions%

111 111 111

he responsibility treated of in this article shall cease when the persons

herein mentioned pro$e that they obser$ed all the diligence of a good father

of a family to pre$ent damage%


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Prodigals NotesMemorandumArt% 445;% he party suering loss or in+ury must e1ercise the diligence of a

good father of a family to minimie the damages resulting from the act or

omission in 6uestion%

Art% 4428% In 6uasi?delicts, the contributory negligence of the plainti shall

reduce the damages that he may reco$er%

he underlying precept on contributory negligence is that a plainti who is

partly responsible for his own in+ury should not be entitled to reco$er

damages in full but must bear the conse6uences of his own negligence%

-National Power *orporation $% )eirs of Noble *asionan, G%&% No% 2.D3.3,

No$ember 4E, 455F, DE4 9*&A E2/

In Phoeni1 *onstruction, Inc%, $% Intermediate Appellate *ourt, where we heldthat the legal and pro1imate cause of the accident and of


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Prodigals NotesMemorandumRULE( OF !OURT

0I


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Prodigals NotesMemorandum9ec% ;%


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PREFATOR' (TATEMENT

0$ery person who, contrary to law, willfully or negligently causes damageto another shall indemnify the latter for the same -Art% 45, *i$il *ode/%

(TATEMENT OF THE !A(E 0 1NATURE OF THE !A(E2

his case refers to an action for reco$ery of damages #led by the plaintifor the in+uries sustained by her D?year old son when the latter slipped on thewet oor in one of the aisles of the defendant's grocery store% Plainti claimsthat the defendant is liable for the negligent act of its employees who failed toclear the puddle of li6uid through appropriate signs or barriers and claims thatthe gross negligence of the management and employees of respondent is thepro1imate cause of the in+ury% &espondent for its defense claims that it e1ercisedproper diligence in maintaining the safety of its customers and that the accident

is beyond its control% In addition, the respondent also claims that the e$ent wasmerely an unfortunate accident for which it could not be held liable% In anye$ent, defendant claims, the plainti is guilty of contributory negligence%

!ollowing the principle in Article 42E. of New *i$il *ode, Gloria 9upermart,Inc% should be held liable for the damages caused to plainti%

=oth parties ha$e presented their e$idences and witnesses% he case isnow submitted for decision%

(TATEMENT OF THE FA!T(

Plainti Jonna =ueno -=H0N"/, married, a resident of F3 Little =aguio 9t%,9an Juan *ity, Metro Manila, has been a customer of


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Prodigals NotesMemorandumclaimed that &ic7y complained of great pain and it too7 about si1 -./ wee7s forhim to reco$er%

=H0N" further claimed that &ic7y mo$ed with discomfort and di>culty,

unable to use both hands% Also, that as a mother, she suered mental pain%=H0N" blamed G9I for the in+uries suered by her son claiming that not anyemployee of G9I was there to pre$ent the incident that the wet oor caused&ic7y to slip on it%

G9I, on the other hand, denies the claims of =H0N" and through itswitness &ene *astro, claims that it e1ercised proper diligence in ma7ing itspremises safe for its customers% Moreo$er, G9I claims that the accident in$ol$ing&ic7y was something beyond its control that in any e$ent, &ic7y and her mothercontributed to &ic7y's slipping on the oor that G9I pro$ided immediate helpand assistance to &ic7y and her mother% !urthermore, G9I asserts that =H0N"has the responsibility for loo7ing after &ic7y's needs and safety%

(TATEMENT OF THE I((UE0(

he issues of the case, as determined by the court in its pre?trial order,are as follows:

I%

)0)0& "& N" GL"&IA 9HP0&MA& I9 LIA=L0 !"& INJH&( 9H!!0&0cient causeproduces the in+ury and without which the result would not ha$e occurred%

-&amos $s% *%"%L &ealty *orp% G%&% No% 2F835D, Aug% 4F, 4553, D3E 9*&A D4./%

he pro1imate cause of &ic7y's in+ury was the puddle of syrup on the oorwhich caused him to slide% he owners and managers therefore of theestablishment are li7ewise responsible for damages%

;% G&ANING A&GH0N


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In the instant case, the plainti was able to pro$e the damages sueredsince the child &ic7y was hospitalied and was operated on his wrist and it too7. wee7s for the child to reco$er% Li7ewise, the fault or negligence of thedefendant was also pro$en in that it failed to e1ercise the diligence of a good

father of a family to pre$ent the damage and there was a connection betweenthe cause and eect between the fault or negligence and the damage incurred%

Moral damages can also be claimed by Ms% =ueno because of the physicalsuering, mental anguish, shoc7, social humiliation and similar in+uries which&ic7y has suered%

01cept as pro$ided by law or by stipulation, one is entitled to an ade6uatecompensation only for such pecuniary loss suered by him as he has dulypro$ed% 9uch compensation is referred to as actual or compensatory damages%And Ms% =ueno is entitled to such as shown by her hospital bills and receipts%

!ON!LU(ION


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&oll of Attorneys No% F28EM*L0 *ompliance No% II?F8;

he =ranch *ler7 of *ourt

&*, =ranch 2@ueon *ity

Greetings:

Please submit the foregoing Memorandum for the *ourt's consideration%

*opy furnished:

A( 0MIL 9HNGA*ounsel for


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Prodigals NotesMemorandumitness : (es, sir%*ourt 9ta : 9tate your name, age, status and other personalcircumstances%itness : I am =en @ue, .5 years old, married, and a resident of 24;

ridalo 9treet, Mandaluyong *ityP% Prosecutor : Mr% @ue, do you 7now Mr% )enry *hao who is the accused inthis case and, if so, under what circumstancesBitness : (es, sir% )e is the Manager of Atlas Parts% Last June 52, 4522,accused borrowed from me the amount of P D5,555%55, with DXCo monthlyinterest, payable in #$e -D/ e6ual monthly installments of P 24,D55%55% )esaid that the money will be used to pay for their stoc7s%P% Prosecutor :


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)undred Pesos

9gd% )enry*hao

Alloy =an7Pasong amo =ranchMa7ati

P% Prosecutor : cer: Mr% M

;2) P a g e L a r r $ D * + u g a r i n g M a n i l a L a ! o l l e g e - . . /


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Prodigals NotesMemorandumP% Prosecutor : May I re6uest that the stamps of dishonor and the reasonYAccount *losedY appearing at the bac7 of each instrument becorrespondingly mar7ed as 01hibits A?2 to 0?2, respecti$ely%*"H& : Mar7 them accordingly%

ce be mar7ed as 01hibit G for the prosecution%*"H& : Mar7 it then%P% Prosecutor : ciency of funds% In short, there is actual proof of lac7 of credit withdrawee ban7% he account is already closed and accused cannot e$en ma7ea deposit anymore%



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Prodigals NotesMemorandum*"H& : he manifestation is noted%P% Prosecutor : )as the accused paid the amounts co$ered by the dishonoredinstrumentsBitness : No, sir% )e has arrogantly refused to ma7e any payment%

P% Prosecutor : No further 6uestions%*"H& : *ross%


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Prodigals NotesMemorandumP% Prosecutor : ith the 7ind permission of the *ourt% Mr% *hao, is it not afact that Mr% @ue speci#cally re6uired you to issue chec7s to pay the monthlyinstallment of the loanBitness : (es, sir%

P% Prosecutor : (ou will agree with me that without those #$e -D/ chec7s, orN" slips as you call them, Mr% @ue will not lend money to youBitness : (es, sir%P% Prosecutor : (ou will also agree that the demand letter of Mr% @ue wasdeli$ered to yoZur o>ce address because that is the address that you ga$e toMr% @ue in connection with your transactionBitness : (es, sir% hat is possible, but I was not able to recei$e it because Ihad already resigned and I could not do anything anymore%P% Prosecutor : hat is all, (our )onor%LA4( AND 7URI(PRUDEN!EA* +ATA( PAM+AN(A +L3* --

AN A* P0NALIVING )0 MAKING "& ciency offunds or credit or would ha$e been dishonored for the same reason had notthe drawer, without any $alid reason, ordered the ban7 to stop payment,shall be punished by imprisonment of not less than thirty -;5/ days but notmore then one -2/ year or by a #ne of not less than but not more than double

the amount of the chec7 which #ne shall in no case e1ceed wo )undredhousand Pesos, or both such #ne and imprisonment at the discretion of thecourt%he same penalty shall be imposed upon any person who, ha$ing su>cientfunds in or credit with the drawee ban7 when he ma7es or draws and issuesa chec7, shall fail to 7eep su>cient funds or to maintain a credit to co$er thefull amount of the chec7 if presented within a period of ninety -35/ days fromthe date appearing thereon, for which reason it is dishonored by the draweeban7%here %the chec7 is drawn by a corporation, company or entity, the personor persons who actually signed the chec7 in behalf of such drawer shall be

liable under this Act%9ection 4% 7'idence of 5nowledge of insu6cient funds? he ma7ing, drawingand issuance of a chec7, payment of which is refused by the drawee becauseof insu>cient funds in or credit with such ban7 when presented within ninety-35/ days from the date of the chec7, shall be prima facie e$idence of7nowledge of such insu>ciency of funds or credit unless such ma7er or



35/44

Prodigals NotesMemorandumdrawer pays the holder thereof the amount due thereon, or ma7esarrangements for payment in full by the drawee of such chec7 within #$e -D/ban7ing days after recei$ing notice that such chec7 has not been paid by thedrawee%

9ection ;% 8uty of drawee9 rules of e'idence? It shall be the duty of thedrawee of any chec7, when refusing to pay the same to the holder thereofupon presentment, to cause to be written, printed, or stamped in plainlanguage thereon, or attached thereto, the reason for draweeZs dishonor orrefusal to pay the same% Pro$ided, that where there are no su>cient funds inor credit with such drawee ban7, such fact shall always be e1plicitly stated inthe notice of dishonor or refusal% In all prosecutions under this Act, theintroduction in e$idence of any unpaid and dishonored chec7, ha$ing ZthedraweeZs refusal to pay stamped or written thereon or attached thereto, withthe reason therefor as aforesaid, shall be prima facie e$idence of the ma7ingor issuance of said chec7, and the due presentment to the drawee for

payment and the dishonor thereof, and that the same was properlydishonored for the reason written, stamped or attached by the drawee onsuch dishonored chec7%Notwithstanding receipt of an order to stop payment, the drawee shall statein the notice that there were no su>cient funds in or credit with such ban7for the payment in full of such chec7, if such be the fact%+* NE3OTIA+LE IN(TRUMENT( LA4A* N"% 45;2AN A* 0NIL0< Y)0 N0G"IA=L0 IN9&HM0N9 LA%Y9ection 2% "orm of negotiable instruments? An instrument to be negotiablemust conform to the following re6uirements:

-a/ It must be in writing and signed by the ma7er or drawer-b/ Must contain an unconditional promise or order to pay a sum certain inmoney-c/ Must be payable on demand, or at a #1ed or determinable future time-d/ Must be payable to order or to bearer and-e/ here the instrument is addressed to a drawee, he must be named orotherwise indicated therein with reasonable certainty%9ection 24.% ill of e:change de;ned ? A bill of e1change is anunconditional order in writing addressed by one person to another, signed bythe person gi$ing it, re6uiring the person to whom it is addressed to pay ondemand or at a #1ed or determinable future time a sum certain in money to

order or to bearer%9ection 2FD% Chec5 de;ned? A chec7 is a bill of e1change drawn on a ban7payable on demand% 01cept as herein otherwise pro$ided, the pro$isions ofthis Act applicable to a bill of e1change payable on demand apply to a chec7%!* RULE( OF !OURT&HL0 2;4

;D) P a g e L a r r $ D * + u g a r i n g M a n i l a L a ! o l l e g e - . . /


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Prodigals NotesMemorandum9ection ;8%


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Prodigals NotesMemorandum6uantum of proof re6uired is proof beyond reasonable doubt% )ence, for =% P%=ig% 44 cases, there should be clear proof of notice% Moreo$er, for notice bymail, it must appear that the same was ser$ed on the addressee or a dulyauthoried agent of the addressee% !rom the registry receipt alone, it is

possible that petitioner or his authoried agent did recei$e the demandletter% Possibilities, howe$er, cannot replace proof beyond reasonable doubt%he consistent rule is that penal statutes ha$e Yto be construed strictlyagainst the 9tate and liberally in fa$or of the accused% he absence of anotice of dishonor necessarily depri$es the accused an opportunity topreclude a criminal prosecution% As there is insu>cient proof that petitionerrecei$ed the notice of dishonor, the presumption that he had 7nowledge ofinsu>ciency of funds cannot arise%Lo


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Prodigals NotesMemorandum3osiaco ;s* !hingG%&% No% 2E;F5E, April 2., 4553, DFD 9*&A 8E2=%P% =ig% 44 imposes a distinct ci$il liability on the signatory of the chec7which is distinct from the ci$il liability of the corporation for the amount

represented from the chec7% he ci$il liability attaching to the signatoryarises from the wrongful act of signing the chec7 despite the insu>ciency offunds in the account, while the ci$il liability attaching to the corporation isitself the $ery obligation co$ered by the chec7 or the consideration for itse1ecution% (et these ci$il liabilities are mista7en to be indistinct% heconfusion is traceable to the singularity of the amount of each%If we conclude, as we should, that under the current &ules of *riminalProcedure, the ci$il action that is impliedly instituted in the =%P% =ig% 44 actionis only the ci$il liability of the signatory, and not that of the corporation itself,the distinctness of the cause of action against the signatory and that againstthe corporation is rendered beyond dispute% It follows that the actions

in$ol$ing these liabilities should be ad+udged according to their respecti$estandards and merits% In the % =% P% =ig% 44 case, what the trial court shoulddetermine is whether or not the signatory had signed the chec7 with7nowledge of the insu>ciency of funds or credit in the ban7 account, while inthe ci$il case the trial court should ascertain whether or not the obligationitself is $alid and demandable% he litigationof both 6uestions could, in theory, proceed independently andsimultaneously without being ultimately conclusi$e on one or the other%

&0PH=LI* "! )0 P)ILIPPIN09

M0&"P"LIAN &IAL *"H&

NAI"NAL JH


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Prodigals NotesMemorandum*omplainant

?$ersus? *riminal*ase No% .E?24;8D

!or #$e -D/ counts of $iolation

of =atas Pambansa

=lg% 44 -=%P%44/

)0N&( *)A"

Accused

1???????????????????????????????????????????1

MEMORANDUM FOR THE A!!U(ED

Accused, through counsel, respectfully submit this memorandum to

with

PREFATOR' (TATEMENT

0$ery person must, in e1ercise of his rights and in the performance of hisduties, act with +ustice, gi$e e$eryone his due, and obser$e honesty and goodfaith% -Art% 23, *i$il *ode/%

(TATEMENT OF THE !A(E

his case refers to a criminal action for $iolation of =atas Pambansa

=lg% 44 -=%P%44/ #led by Mr% =en @ue -*omplainant/ for the #$e chec7s issued

by Mr% )enry *hao -Accused/ dishonored by Alloy =an7, for the reason of

account closedR% he Accused for its defense claims that the money

barrowed is for the payment of the stoc7s of Atlas Parts -company/, which is

ci$il liability of the company itself and not by the Accused, under the

principle of separate personality of the corporation%

=oth parties ha$e presented their e$idences and witnesses% he case isnow submitted for decision%

(TATEMENT OF THE FA!T(



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"n June 2, 4522, the *omplainant lent money to the Accused, Manager

of Atlas Parts, the amount of P D5,555%55, with DU monthly interest, payable

in #$e -D/ e6ual monthly instalment of P 24,D55%55, for the payment of their

stoc7s% As per agreement, the Accused issued and deli$ered to the

*omplainant #$e -D/ *hec7s to wit *hec7 No% 552 dated July 2, 4522 *hec7

No% 554 dated August 2, 4522 in the same amount *hec7 No% 55; dated

9eptember 4, 4522 *hec7 No% 558 dated "ctober 2, 4522 and *hec7 No%

55D dated No$ember 2, 4522 all are in the same amount of P 24, D55%55, at

the residence of the *omplainant in Mandaluyong *ity% he chec7s was

deposited by the *omplainant on their respecti$e dates on its account at

=ce of the

Accused, gi$ing him to ma7e good his promise%

)owe$er, on the middle of June 4522, the Accused resigned as

manager of Atlas Parts, thus, he was not aware of the dishonor as well the

demand letter sent by the *omplainant%

THE (TATEMENT OF I((UE

he issue on this case, as determined by the )onorable *ourt in its

pre?trial order is )0)0& "& N" )0 A**H90< I9 GHIL( HN


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Prodigals NotesMemorandumnot sure or assumed that the demand letter sent to the Accused was

recei$ed by the latter, under the &ules of *ourt, it is the fundamental

principle that, there should be a proof of ser$ice which should be made by

such a>da$it and registry receipt issued by the mailing o>cer as well the

registry return card% his principle was enlightenment in the case of Alfere

$s% People, G%&% No% 2F4;52, January ;2, 4522, .82 9*&A 22. states that

!>>> Receipts for registered letters and return receipts do not

themsel'es pro'e receipt9 they must be properly authenticated

to ser'e as proof of receipt of the letter claimed to be a notice of

dishonor>>> The prosecution must also pro'e actual receipt of

the said notice because the fact of ser'ice pro'ided for in the

law is rec5oned from receipt of such notice of dishonor by the

drawee of the chec5.

!urthermore, in the same case it states that the consistent rule is that

penal statutes ha$e to be construed strictly against the 9tate and liberally

in fa$or of the Accused%R Hnder the facts, there is insu>cient proof that the

Accused recei$ed the notice of dishonored as well the demand letter, the

presumption that the Accused had a 7nowledge Account *losed cannot arise%

hus, the *omplainant failed to inform the Accused about the

dishonored chec7s which depri$e the Accused his right of due process for

there was no $alid notice and demand made by the *omplainant against the

Accused%

II*THE !HE!=( 4A( I((UED +'THE A!!U(ED IN HI( !APA!IT'A( (I3NATOR' IN +EHALF OFTHE ATLA( PART(*

Granting arguendo that the accused issued the chec7s, the facts

clearly shows that the Accused as his capacity as the manager of Atlas Parts

-company/, he borrowed money to the *omplainant for the payment of the

company stoc7s, it also shows that being a manager he is authoried

signatory in e$ery transactions made by the company% In the *ase of Gosiaco

$s% *hing, G%&% No% 2E;F5E, April 2., 4553, DFD 9*&A 8E2, the 9upreme

*ourt )eld that:



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!P## imposes a distinct ci'il liability of the chec5

which is distinct from the ci'il liability of the corporation for

the amount represented from the chec5 The ci'il liability

attaching to the signatory arises from wrongful act of

signing the chec5 despite the insu6ciency of ;nds in the

account while the ci'il liability attaching to the corporation

is itself the 'ery obligation co'ered by the chec5 for its

e:ecution.

Hnder the principle of separate personality of the corporation to its

o>cer and stoc7holders, the facts of this case clearly shows that the act

made by the Accused was for the bene#t of the *ompany itself, thus, as the

ruling of the 9upreme *ourt in the case of Gosiaco $s% *hing, the prosecutionfailed to established the fact that Accused use the barrowed money to his

own bene#t and also the prosecution also failed to established that the

Accused wrongfully signed the chec7s despite the 7nowledge of insu>ciency

of funds in the account%

herefore, from the premises, the Accused does not issued a worthless

chec7s but he issued the chec7s to his capacity as signatory because of his

position of being manager to the *ompany, which shows that the

*omplainant does not ha$e any cause of action against the Accused ci$illy or

criminally, particularly, $iolation of =%P%44

III* THE A!TION 4A( FILED ON

THE 4RON3 8ENUE

In the case of Isip $s% People, G% &% No% 2E543F, June 4., 455E, D4D9*&A E;D the 9upreme *ourt pronounce that:

!The place where the crime was committeddetermines not only the 'enue of the action but is anessential element of 4urisdiction +t is a fundamental rule

that for 4urisdiction to be ac3uired by courts in criminalcases the o,ense should ha'e been committed or any oneof its essential ingredients should ha'e ta5en place withinthe territorial 4urisdiction of the court Territorial 4urisdictionin criminal cases is the territory where the court has4urisdiction to ta5e cogni?ance or to try the o,ense



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allegedly committed therein by the accused Thus it cannotta5e 4urisdiction o'er a person charged with an o,enseallegedly committed outside of that limited territory.

he concept of $enue of actions in criminal cases, unli7e in ci$il cases,is +urisdictional% Hnder the facts of the case the transaction happened on theresidence of the *omplainant which is the *ity of Mandaluyong, it is afundamental principle under the &ules of *ourt that +urisdiction of a courto$er the criminal case is determined by the allegations in the complaint orinformation% And once it is so shown, the court may $alidly ta7e cognianceof the case% )owe$er, if the e$idence adduced during the trial shows that theoense was committed somewhere else, the court should dismiss the actionfor want of +urisdiction% he facts disclosed that the information was #led inthe *ity of Manila

hus, the case against the Accused should be dismissed on the ground

of want of +urisdiction o$er the sub+ect matter%

PRA'ER

)0&0!"&0, it is respectfully prayed that this )onorable *ourt willdecide in fa$or of the Accused and against *omplainant, the following reliefs:

2%


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Prodigals NotesMemorandumhe =ranch *ler7 of *ourt&*, =ranchWWManila *ity

Greetings:

Please submit the foregoing Memorandum for the *ourt'sconsideration%

*opy furnished:

A( (*ounsel for *omplainant

E9PLANATION

In $iew of time and manpower restrictions -constrained/, the abo$eMemorandum was ser$ed $ia registered mail as personal ser$ice could notbe a$ailed of without causing undue hardship to plainti%

-9gd%/ A(% *ounsel for Accused

Past Bar Exam Memorandum2011

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