Dear Andrea,

This legal opinion seeks to answer your question as to what are your rights, legal
recourse and whether you can sue, whom you can sue, where, and what reliefs you can ask for.

Per our discussion and the documents you shown me, the following are the pertinent
facts:
On 1 February 2019, you bought a Merrell Hiking shoes using your BPI credit card for
P4,000 from the seller named Everest on the website OLX Philippines. Unfortunately, the
Merrell Hiking shoes were never delivered.

My answers to your questions and the reason for my answer are set below.
Questions and Answers:
Q1.) What are your rights?
A. There being a perfected contract of sale,1 you have the following rights:
1. Recover the amount paid. If the buyer has already paid the price and the seller
has not delivered the goods as per the contract, the buyer can recover the
amount paid.2
2. Specific performance. If the contract is for the sale of specific or ascertained
goods, the buyer may sue the seller for the specific performance of the contract
in case of breach of contract by the latter. 3
3. Recover damages in either case.4
4. As a legal consequence of the breach of contract, you have also legal rights to
initiate civil and criminal actions against the obligor.

1
Article 1318 of the Civil Code declares that no contract exists unless the following requisites concur: (1) consent
of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) cause of the
obligation established.
2
Art. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not
comply with what is incumbent upon him.

The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of
damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should
become impossible.
3
Art. 1165. When what is to be delivered is a determinate thing, the creditor, in addition to the right granted him
by Article 1170, may compel the debtor to make the delivery.
4
Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those
who in any manner contravene the tenor thereof, are liable for damages.
 Reason:
From the legal perspective, a contract is deemed perfected or given force when the
components of consent, object and consideration are present. When a seller offers to sell
goods at an offer price plus a buyer agrees to the cost, there’s a perfected contract of sale. But,
the consummation of a contract is already considered absolute in the sense of consensual
contracts – those that no longer requisite the procurement of special forms to be valid and
enforceable. Enforceability means the party can bring the case to any competent court of
justice to make certain the other party’s performance of the duty.
As a rule, a contract is perfected at the moment there is meeting of the minds upon a
determinate, and a certain price, even if neither is delivered.5 Under the Code,6 a contract is
generally constituted upon the acceptance by the buyer of the offer to sell. However, there are
nuances in online sales transactions; for example, the advertised product may not automatically
constitute as an offer and may be qualified by a statement that the purchase is still subject to
the seller’s confirmation. Often times in online sales, the buyer does not have the luxury of
actually meeting the seller. There is no means for the buyer to verify the credibility of the seller.
As such, the buyer, without any protection or assurance, might be transacting with a fly-by-
night seller; thus, exposing him to risks of fraud and misrepresentations.
On the other hand, The Philippines E-Commerce Law – provides for the formation and
validity of Electronic Contracts. – (1) Except as otherwise agreed by the parties, an offer, the
acceptance of an offer and such other elements required under existing laws for the formation
of contracts may be expressed in, demonstrated and proved by means of electronic data
message or electronic documents and no contract shall be denied validity or enforceability on
the sole ground that it is in the form of an electronic data message or electronic document, or
that any or all of the elements required under existing laws for the formation of the contracts is
expressed, demonstrated and proved by means of electronic documents.7
This law serves to facilitate domestic and international transactions and agreements
through the utilization of electronic and similar medium. By virtue of the e-Commerce Act,

5
Article 1315, New Civil Code
6
Article 1319, New Civil Code
7
Republic Act No. 8792, SEC. 16.
electronic data messages, electronic documents and electronic signatures attained legal
recognition.8 Clearly, documents in electronic form are treated as the legal and functional
equivalent of paper-based documents. Thus, despite the absence of a paper-based document
evidencing the sale, the online exchange is sufficient to evidence an online transaction. Giving
legal recognition to electronic documents means that online transactions produce legal
consequences. Hence, by virtue of such governing laws, you still have rights available as against
the wrong doer.

Q2.) What legal recourse to be undertaken?

A. The following are the legal recourses that you may availed of:
1. Complaint on Billing error or discrepancy under Philippine Credit Card Industry
Regulation Law.9 Write to your credit card company issuer’s billing inquiries
department within 30 days from statement date to report any error or
discrepancy due to the breach committed by Everest, the seller;
2. If not possible to recover the amount under the Banking system, then
immediately report the user Everest by contacting OLX Philippines Company and
provide the alleged account link, username or mobile number, date of payment,
screenshot of conversation via chats or SMS, including demands for refund or
delivery of the item bought, additional contact information or Image copy of
your credit card billing charging the said transaction;
3. Visit PNP-Anti-Cybercrime Group or National Bureau of Investigation or Office of
the Cybercrime. Report the The Cybercrime Prevention Act 10 covers most online
scams;
4. You may file a criminal case of Swindling (or estafa), which concerns most online
scams;11 or

8
“Information shall not be denied validity or enforceability solely on the ground that it is in the form of an
electronic data message or electronic document. Electronic data messages or electronic documents shall have the
legal effect, validity or enforceability as any other document or legal writing.” (Sec. 7, Implementing Rules and
Regulations of the e-Commerce Act)
9
RA 10870
10
Republic Act 10175
 5. File a civil case for collection of money under the Small Claims. 12

Q3.) Whether you can sue, against whom?

A. Yes, you can sue as against the seller Everest and not as against OLX Philippines
Company which operates only as an online classified advertisement platform and has a
disclaimer on issues of genuineness, accuracy, and identity.
Reason:
OLX Philippines Company is duly organized and existing under Philippine laws
and registered with the Securities and Exchange Commission (SEC). It provides a collection of
online resources including classified advertisements, known as the Service, on the website
www.Olx.ph as well as in corresponding mobile applications, known as the Platform. Verily, OLX
is not a guarantor of successful transactions among its users. It acts as a venue to allow its users
who comply with its Terms to offer, sell, and buy products and services listed on its platform. In
short, any person may use the service and the platform at their own risk.
Under the Company’s disclaimer,13 it expressly makes no representation or
guarantee as to the accuracy or authenticity of the information contained in the third party
websites and disclaims all liabilities thereto. And users of the service and the platform is the
sole and primary liable for any indemnification for damages caused to a third party for any
breach, act or omission, fault, negligence, contributory or otherwise. Consequently, the failure
to deliver the Merrell Hiking shoes on the part of the seller Everest makes her the sole
responsible for said breach and the Company has no control and not a party to such
transaction. However, if it can be proved that OLX Philippines tolerated the act or omission of
fraud, it may be held liable for such act or omission. Nonetheless, in the absence of proof as to
OLX Philippines’ participation, it is still proper to go against the seller Everest on the ground of
breach of contract.

Q4.) Where to file and what reliefs can you ask for?

11
Article 315 of the Revised Penal Code
12
Revised Rules of Procedures for Small Claims Cases, as amended
13
https://help.olx.ph/hc/en-us/articles/213529557
 A. For Civil Case - small claims cases filed before the Metropolitan Trial Courts14
If you choose to file a civil action and you intend to recover your money 15and the
amount does not exceed the said jurisdictional amount, then file it with the nearest Municipal
Trial Court where you resides. Since you paid already P4, 000 through a credit card and your
order was never delivered, and then you can file a small claims case against Everest who is the
seller. File Form 1-SCC (Statement of Claim) against Everest (defendant) with the MeTC where
you reside and must be accompanied by Form 1-A-SCC (Verification and Certification of Non-
Forum Shopping). Since your claim is based on a contract of sale, 2 certified photocopies of
such contract and other actionable document/s shall be attached to Form 1-SCC. You should
also attach affidavits of witnesses and other supporting evidence.

For Criminal Cases

If you opt to file a criminal case, the usual case will be estafa or swindling. Estafa or
swindling is a crime of defrauding a person that may be committed in several ways or means.
One manner of committing such crime, as mentioned under our criminal laws, is when it is
done with unfaithfulness or abuse of confidence of a person as when a property is given or
transferred to another who thereafter misappropriates it.16
As can be gleaned from this provision, it is essential for you to establish, that: (1) Everest
in fact received the purchase price via credit card transactions; (2) she denies having received
the same; (3) such misappropriation, conversion or denial is to your prejudice; and (4) you has
in fact demanded from Everest the delivery of said items and/or refund of the purchase price
based on their agreement but to no avail.
We further wish to impart the ruling of our Supreme Court:
“x x x The essence of this kind of estafa is the appropriation or conversion of money or property
received to the prejudice of the entity to whom a return should be made. The words ‘convert’

14
small claims cases filed before the Metropolitan Trial Courts from PHP300,000 to PHP400,000, starting April 1,
2019
15
It applies to all actions that are purely civil in nature where the claim or relief prayed for by the plaintiff is solely
for payment or reimbursement of sum of money. Revised Rules of Procedure for Small Claims Cases (A.M. No. 08-
8-7-SC), as amended.
16
Article 315 (1) (b) of our Revised Penal Code
and ‘misappropriate’ connote the act of using or disposing of another’s property as if it were
one’s own, or of devoting it to a purpose or use different from that agreed upon. To
misappropriate for one’s own use includes not only conversion to one’s personal advantage,
but also every attempt to dispose of the property of another without right. In proving the
element of conversion or misappropriation, a legal presumption of misappropriation arises
when the accused fails to deliver the proceeds of the sale or to return the items to be sold and
fails to give an account of their whereabouts. x x x”17
Here you do not need to spend for a lawyer because you will be assisted by the
government through the prosecutor’s office. All you need to do is to approach the nearest
prosecutor’s office, preferably where you are located. A sworn affidavit is to be executed. In
this case, you may recover what you paid and at the same time the scammer will go to jail.
Note that you can file a criminal case or a civil case simultaneously if you want to, but
your best option is to file a criminal case because anyway, your claim for damages will be heard
in the same proceeding.
You may also opt to visit Camp Crame or designated regions where there is a PNP-Anti-
Cybercrime Group or the National Bureau of Investigation or Office of the Cybercrime. Personal
appearance is a must. Make sure to bring photocopies or printed screenshots of all the
evidence you have that will help the investigation. This was created to address illegal activities
committed that involve Information and Communication Technologies like mobile phones,
computers, software, and the Internet. While the law mostly deals with hacking, identity theft,
and data interference, it covers all crimes that are listed and penalized by the Revised Penal
Code if they are committed through information and communication technologies. The
Cybercrime Prevention Act increases the penalty for these crimes, making the penalty longer or
graver. Coordinate with said agency. Once the Prosecutor is able to determine a probable
cause, this case will be filed in court
I appreciate the opportunity to advise you regarding this matter. I hope that I was able
to answer your queries. Please be reminded that this advice is based solely on the facts you

17
Cheng vs. People(G.R. No. 174113, January 13, 2016; which reiterated the ruling in Pamintuan vs. People (G.R.
No. 172820, June 23, 2010
have narrated and our appreciation of the same. Please let me know if you have any questions
relating to this advice.

Yours sincerely,

(Sgd.) LEGAL COUNSEL