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Past Bar Exam Memorandum2011
Past Bar Exam Memorandum2011
Past Bar Exam Memorandum2011
Memorandum
Guidelines in preparation of Memorandum:
PREFATORY STATEMENT
Optional but it may create a great impression, find if any article that
may described the claims of the side you have chosen. It was the General
Rule or Law that support the argument that you’re going to present. You can
find some on Human Relation, Chapter two of the new civil code as
amended.
Rights may be waived, unless the waiver is contrary to law, public policy,
morals, or gooe customs or prejudicial to a third person with a right recognized
by law. (Art. 6, Civil Code)
Every person must, in exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good
faith. (Art. 19 Civil Code) (abuse of authority doctrine)
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Prodigals Notes
Memorandum
Every person who, contrary to law, willfully or negligently causes damage
to another shall indemnify the latter for the same (Art. 20, Civil Code). (Torts
and damages)
Statement of the Case it gives a brief idea of what the case is all about.
It contains the following:
1. The nature of the case;
2. Claims or Allegation of the Plaintiff; and
3. The Respond or Defense of the defendant
“Following the principle in Article 2176 of New Civil Code, Gloria Supermart,
Inc. should be held liable for the damages caused to plaintiff.
Both parties have presented their evidences and witnesses. The case is now
submitted for decision.”
STATEMENT OF FACTS
A. I was about to cook spaghetti for my son Ricky when I realized I didn’t
have any tomato sauce so I went to Gloria Supermart to buy tomato sauce
and some other things we needed in the house.
2. Make an outline, so that you can easily see the chronological event of
the facts and it can also easily see the series of event. It helps identify
the characters if ever the problem involves five or more character.
The issues of the case, as determined by the court in its pre-trial order,
are as follows:
1. Issues – it may be the main issues or other issues that can be used to
support the main issue. For example:
Widen your imagination on the possibilities that may happen, as if you are
the one who was involved in the situation itself.
CONCLUSION
PRAYER
The WHEREFORE phrase is the Relief that being Prayed for by the parties
to the court.
OTHER RELIEFS just and equitable under the premises are likewise prayed
for.
Other measures of reliefs that are just and equitable under the premises
are likewise prayed for.
Consider the following testimonies that the witnesses from either side
presented at the trial of the case. Assume that you are the lawyer either for
Bueno or for Gloria Supermart and write a trial memorandum for the side you
have chosen to represent. You would want to convince the trial court to
decide the case in your client’s favor.
———————————————————————————————————————
———-
Excerpts from Transcript of Stenographic Notes
COURT STAFF: (After swearing in the witness) State your name and personal
circumstances.
ATTY. REX BELTRAN: Your Honor, we are offering the testimony of Ms. Bueno
to prove that her son, Ricky, slipped on the wet floor of Gloria Supermart by
reason of the gross negligence of its management and employees, causing
him to suffer excruciating pain from a fractured arm and undergo great
discomfort and depression. Ms. Bueno herself incurred an enormous medical
expense and suffered from mental stress.
ATTY. BELTRAN:
A. Yes, Sir. But he was not very friendly. Afterwards, I brought Ricky to
the Philippine Orthopedic Hospital.
Q. You said that Ricky slipped on a wet floor section of the aisle. How did
you know that the section you referred to was wet?
A. I saw the puddle of liquid on the floor.
Q. Did you get to know what kind of liquid it was?
A. It was syrup that seeped out from a leaking bottle in a nearby shelf.
Q. Was there any supermarket cleaner nearby when you came near that
puddle of syrup?
A. None sir.
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Prodigals Notes
Memorandum
Q. Did you see any supermarket grocery clerk around?
A. None, Sir. There should have been someone to warn people of that
puddle of syrup on the floor.
Q. Did you see any sign near that puddle or around it, warning
customers of the danger it presents?
A. None, Sir, although I heard someone shout, “Hoy, bata, ingat! May
basa diyan!”
Q. You said that you brought your son, Ricky, to the Philippine
Orthopedic Hospital, who attended to your son at the hospital?
A. Dr. John D. Lim, an orthopedic surgeon. He was the physician at the
emergency room. I think he is in his mid-forties.
Q. You said it was his right wrist that Ricky complained of. How did you
know that?
A. He pointed to it while crying from pain. After we brought him to the
Philippine Orthopedic Hospital, I saw the doctor operate on his right wrist to
restore the position of a fractured bone. Later, the doctor showed me an x-
ray picture of the wrist bone before and after the operation.
Q. How long did Ricky stay in the hospital?
A. The doctor required Ricky to stay overnight at the hospital for pain
management and care. He ordered his release on the following day.
Q. Based on your observation, how long did it take for Ricky to recover
the use of his right wrist?
A. About six weeks.
Q. How did your son take these things that happened to him?
A. He complained of great pain at the beginning. Later, he moved with
discomfort and difficulty, unable to use both hands.
Q. How about you, Ms. Bueno? How did you take these events?
[Note: Assume that the marking and presentation of the receipts for the
expenses mentioned above, although omitted here, were done right.]
COURT: Cross.
ATTY. SUNGA:
Q. Ms. Bueno, you said that you brought your son Ricky to Gloria
Supermart on May 11, 2010. Did you need him to be there whenever you buy
your groceries?
A. No, Sir, but I did not have anyone to leave him home with.
Q. But when you took him there, you of course are aware that the
supermarket did not have a leave-your-child service?
A. Yes, Sir.
Q. Consequently, you were aware that the responsibility for looking after
Ricky’s needs and safety while in the supermarket is primarily in your hands
as his mother?
A. Yes, Sir, but supermarkets always expect children to come with their
parents and so it has to make sure that the place is safe for children.
Q. But do you agree that, as his mother, he is safer when he stays by
your side in a public place like a supermarket?
Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June
14, 2011
COURT STAFF: (After swearing in the witness) State your name and personal
circumstances.
ATTY. EMIL SUNGA: Your Honor, we are offering the testimony of Mr. Castro to
prove that Gloria Supermart exercised proper diligence in making its
premises safe for its customers; that the accident involving Ricky was
something it could not reasonably anticipate and so beyond its control; that,
in any event, Ricky and her mother contributed to Ricky slipping on the floor
and suffering physical injury and pain; and that Gloria Supermart provided
immediate help and assistance to Ricky and her mother.
ATTY. SUNGA:
Q. Mr. Castro, you said that you are a supermarket supervisor. For whom
do you work as supermarket supervisor?
A. I have been with Gloria Supermart for 5 years already, Sir.
Q. Do you know the plaintiff Jonna Bueno?
A. Yes, Sir, she has been a customer at our supermarket.
Q. Do you recall seeing her at your supermarket about 10 a.m. on May
11, 2010?
A. Yes, Sir.
Q. Why do you recall seeing her there at that time and on that date?
A. Because her son Ricky had an accident and I was around.
Q. Did you see how the accident happened?
A. No, Sir, but I was just at the next aisle fixing the new stocks of instant
noodles. When I heard the commotion, I quickly walked down there and saw
Ricky lying on the floor, crying with pain. Her mother, Ms. Bueno, was trying
to minister to him.
Q. What else did you see?
A. Some items from a nearby shelf had fallen down the floor.
Q. What were these items?
A. There were a couple of bottles of syrup, mostly in plastic bottles,
except one glass bottle that had broken and spilled part of its contents on
the floor.
Q. To what do you account this?
A. I could infer from the position of Ricky that he bumped into the shelf
containing syrup bottles and knocked off some of them.
Q. Did you speak to Ms. Bueno about it?
A. I talked to her at the hospital while we were waiting for Ricky’s
treatment to be finished and I asked her what happened.
Q. What did she say?
A. She said that Ricky saw a ball rolling down the aisle and he ran after
it. Somehow, he slipped on the floor and hurt his arm. She was so flustered.
Q. Are children allowed in your supermarket?
ATTY. BELTRAN:
Q. Mr. Castro, You said that you did not actually see the accident when it
happened, is that right?
A. Yes, Sir.
Q. In fact, you were in another aisle at that time?
A. Yes, Sir.
Q. So when you said that Ricky bumped into the shelf containing syrup
bottles and knocked off some of them, you were merely speculating on what
could have happened, right?
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Prodigals Notes
Memorandum
A. Yes, Sir, but the scene suggested it.
Q. Since you did not see what actually happened at that aisle, is it
possible for some other person to have knocked off those bottles?
A. Yes, Sir, that is possible but not likely since I did not see any person
leave the place in haste.
Q. So, it is also possible that the syrup on the floor, spilled by someone
else, caused Ricky to slip as he was running after some ball before you
showed up?
A. Yes, that is possible, but unlikely. The shelves are carefully stocked.
Q. Do accidents resulting in injury happen in your supermarkets?
A. Yes but not so often; about one accident a year, if I remember right.
These things are unavoidable because hundreds of people come to the
supermarket everyday.
Q. How about shoplifting, does this happen often?
A. Every now and then, Sir. It’s normal for supermarkets.
Q. So naturally you must have some procedure for dealing with events
like accidents or shoplifting?
A. Yes, Sir.
Q. To protect your rights and interests, is that correct?
A. Yes, Sir.
Q. Since Ricky had this serious accident that you claim was not your
fault as the scene suggested, did your supermarket bother to take pictures of
the puddle on the floor and the bottles of syrup that you said Ricky had
knocked off?
A. No, Sir.
FAMILY CODE
PARENTAL AUTHORITY
ART. 209. Pursuant to the natural right and duty of parents over the person
and property of their unemancipated children, parental authority and
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Prodigals Notes
Memorandum
responsibility shall include the caring for and rearing of such children for civic
consciousness and efficiency and the development of their moral, mental
and physical character and well-being.
Art. 220. The parents and those exercising parental authority shall have with
respect to their unemancipated children or wards the following rights and
duties:
(1) To keep them in their company, to support, educate and instruct them by
right precept and good example, and to provide for their upbringing in
keeping with their means;
xxx xxx xxx
(8) To impose discipline on them as may be required under the
circumstances; and
(9) To perform such other duties as are imposed by law upon parents and
guardians.
Art. 221. Parents and other persons exercising parental authority shall be
civilly liable for the injuries and damages caused by the acts or omissions of
their unemancipated children living in their company and under their
parental authority subject to the appropriate defenses provided by law.
CIVIL CODE
PERSONAL LIABILITY
Art. 20. Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.
NUISANCE
Art. 697. The abatement of a nuisance does not preclude the right of any
person injured to recover damages for its past existence.
Attractive Nuisance
QUASI-DELICTS
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. (Jarco
Marketing Corporation v. Court of Appeals, G.R. No. 129792, December 21,
1999, 321 SCRA 375)
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Prodigals Notes
Memorandum
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. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920,
November 25, 2005, 476 SCRA 236)
Art. 2179. 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.
Art. 2180. 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.
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.
DAMAGES
Art. 2217. 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.
Art. 2219. Moral damages may be recovered in the following and analogous
cases:
EVIDENCE
Sec. 42. Part of res gestae. — Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in evidence as part of res
gestae. xxx
Sec. 48. General rule. — The opinion of witness is not admissible, except as
indicated in the following sections.
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by the
plaintiff; (2) the fault or negligence of the defendant or some other person
for whose act he must respond; and (3) the connection of cause and effect
between the fault or negligence and the damages incurred. (Child Learning
Center, Inc. v. Tagorio, G.R. No. 150920, November 25, 2005, 476 SCRA 236)
JONNA BUENO
Plaintiff,
x---------------------x
This case refers to an action for recovery of damages filed by the plaintiff
for the injuries sustained by her 5-year old son when the latter slipped on the
wet floor in one of the aisles of the defendant’s grocery store. Plaintiff claims
that the defendant is liable for the negligent act of its employees who failed to
clear the puddle of liquid through appropriate signs or barriers and claims that
the gross negligence of the management and employees of respondent is the
proximate cause of the injury. Respondent for its defense claims that it exercised
proper diligence in maintaining the safety of its customers and that the accident
is beyond its control. In addition, the respondent also claims that the event was
merely an unfortunate accident for which it could not be held liable. In any
event, defendant claims, the plaintiff is guilty of contributory negligence.
Following the principle in Article 2176 of New Civil Code, Gloria Supermart,
Inc. should be held liable for the damages caused to plaintiff.
Both parties have presented their evidences and witnesses. The case is
now submitted for decision.
On May 11, 2010, at about 10:00 a.m., plaintiff BUENO, together with her
son Ricky went to GSI to buy groceries. BUENO claimed that while she and her
son were picking up groceries at the shelves, a small ball rolled along the aisle
and Ricky ran after it then soon thereafter, she saw him slip with a heavy bang
on a wet section of the aisle. No sign near the puddle warning customers of the
danger was present although she heard someone shouted “Hoy, bata, ingat!
May basa diyan!” So, immediately, BUENO came to Ricky’s side to help him and
brought him to the hospital where he stayed overnight for medication. BUENO
BUENO further claimed that Ricky moved with discomfort and difficulty,
unable to use both hands. Also, that as a mother, she suffered mental pain.
BUENO blamed GSI for the injuries suffered by her son claiming that not any
employee of GSI was there to prevent the incident; that the wet floor caused
Ricky to slip on it.
GSI, on the other hand, denies the claims of BUENO and through its
witness Rene Castro, claims that it exercised proper diligence in making its
premises safe for its customers. Moreover, GSI claims that the accident involving
Ricky was something beyond its control; that in any event, Ricky and her mother
contributed to Ricky’s slipping on the floor; that GSI provided immediate help
and assistance to Ricky and her mother. Furthermore, GSI asserts that BUENO
has the responsibility for looking after Ricky’s needs and safety.
The issues of the case, as determined by the court in its pre-trial order,
are as follows:
I.
III.
Diligence on the part of Gloria Supermart Inc. should not be presumed but
should be proven that its management and employees were not grossly
negligent in making its premises safe for its customers.
In the instant case, there was negligence on the part of the Supermart
since it failed to install any warning sign on the puddle of syrup on the floor,
warning the customers of the due consequences thereof. Furthermore, in any big
grocery stores such as the Gloria Supermart, there should always be a standby
floor cleaner who will eventually mop the floor in case there is liquid in it since it
is fact that a fitted or cemented floor is usually “slippery when wet”. There was
no supermarket cleaner nearby when Ricky slipped on the floor was was alleged
by Ms. Bueno during the investigation, hence proving the negligence of the
management in making the premises safe.
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 defendants negligence; (2) the accident must have been caued
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 have been due to any voluntary action or contribution on the part of the
person injured (chilled Learning Center Inc., b. Tagorio, GR No. 150920, Nov. 25,
2005, 476 SCRA236)
In this case, it was evident that the accident would have happened if it
were not for the defendants’ negligence because it did not immediately wipe the
spilled syrup. The cause of the accident was as well within the exclusive
25 | P a g e Larry D. Bugaring Manila Law
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Prodigals Notes
Memorandum
management and control of the person charged with the negligence complained
of because Mr. Castro could have assigned a floor cleaner in the area and the
accident was not due to any voluntary action or contribution on the part of the
person injured as will be proven in the succeeding paragraphs.
Jonna was not negligent in watching over her son, while they were grocery
shopping. Indeed, parents have the natural right and duty to take care and
discipline their children. But Jonna did not show lack of due care when she let
Ricky run after the ball. The records show that she was watching her son at that
time. Furthermore, a child running after a ball does not necessarily mean that he
is engaged in play. The child may be actually trying to fetch the ball and return it
to its rightful place or owner. There was no reason for Jonna discipline nor
closely monitor her child at that time. Also, Jonna couldn’t have reasonably
foreseen her son’s mishap. As mentioned earlier, the syrup was presumably
transparent and couldn’t be detected unless scrutinized up close. She also had
good reason to believe that the supermarket regularly maintains the cleanliness
of its store. There is no basis to find her negligent.
As was alleged by Mr. Castro during the investigation, Ricky bumped into
the shelf containing the syrup bottles and knocked off such bottles thus causing
the spilling of the liquid on the floor. This was not, however, proven by Mr. Castro
because he did not actually see Ricky bump into the shelf. Mr. Castro was merely
speculating it as what he has stated during the investigation. As based on Rules
on Evidence Sec. 36, a witness can testify only to those facts which he knows of
his personal knowledge. Therefore, it cant be said that Ricky’s accident was due
to his own contributory negligence.
As stated in National Power Corp.vs. Heirs of Noble Casionan, 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 which is
required to conform for his own protection. It is an act or omission amounting to
want of ordinary care on the part of the person injured which concurrig with the
defendants negligence, is the proximate cause of the injury.
The proximate cause of Ricky’s injury was the puddle of syrup on the floor
which caused him to slide. The owners and managers therefore of the
establishment are likewise responsible for damages.
In his testimony, Rene Castro made a baseless inference that the syrup on
the floor must have come from one of the bottles that Ricky knocked off from
the shelf when he ran wild down the aisle. This should not be given credence
since Rene himself testified that he did not see how the incident happened.
Therefore, he did not have the competence to testify on that matter. But
granting, for the sake of argument, that there is no proof as to who or what
caused the spillage, Gloria Supermart should still be held liable based on the
doctrine of res ipsa loquitor. First of all, Ricky’s accident, as explained earlier,
was due to the supermarket employees’ negligence in failing to maintain the
cleanliness of the store. Secondly, it is without a doubt that the supermarket’s
premises is within exclusive management and control of Gloria Supermart.
Thirdly, it has been established that Ricky did not contribute to his injury. Any
other person would have slipped, had they stepped on the syrup-coated floor. All
these three elements put into operation the doctrine of res ipsa loquitor, which
strengthens plaintiff’s position that the supermarket is liable for damages.
In every tort case filed under Art. 2176 of the Civil Code, plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by the plaintiff;
(2) the fault or negligence of the defendant or some other person whose act he
must respond and (3) the connection of cause and effect between the fault or
negligence and the damage incurred. (Child learning Center Inc. v. Tagorio)
Moral damages can also be claimed by Ms. Bueno because of the physical
suffering, mental anguish, shock, social humiliation and similar injuries which
Ricky has suffered.
CONCLUSION
PRAYER
OTHER RELIEFS just and equitable under the premises are likewise prayed
for.
Greetings:
Copy furnished:
EXPLANATION
Memorandum 2012
Mr. Henry Chao is charged before the Metropolitan Trial Court (MeTC) Manila
with five (5) counts of Violation of Batas Pambansa Big. 22 (B.P. 22). Consider
the factual scenario from the testimonies of complainant Mr. Ben Que and
accused Mr. Henry Chao.
Assume to be the Defense Counsel and prepare a MEMORANDUM
FOR THE ACCUSED for your client, Mr. Henry Chao.
Testimony of Mr. Ben Que
(After the cases were called for joint trial)
P. Prosecutor : Good Morning, Your Honor. Appearing for the prosecution.
Ready.
D. Counsel : Good Morning, Your Honor. Appearing as counsel for the
accused. Ready.
P. Prosecutor : We are calling to the witness stand, the complainant, Mr.
Ben Que, who will prove the commission of the offense.
Court Staff : Mr. Ben Que, do you swear to tell the truth, the whole truth
and nothing but the truth in this proceeding?
DISHONORED/RETU
RNED
Reason: Account
Closed
Officer: Mr. M
BEN QUE
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Prodigals Notes
Memorandum
Complainant
HENRY CHAO
Accused
x-------------------------------------------x
PREFATORY STATEMENT
Every person must, in exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good
faith. (Art. 19, Civil Code).
Both parties have presented their evidences and witnesses. The case is
now submitted for decision.
STATEMENT OF THE FACTS
Furthermore, in the same case it states that the consistent rule is that
penal statutes have “to be construed strictly against the State and liberally
in favor of the Accused.” Under the facts, there is insufficient proof that the
Accused received the notice of dishonored as well the demand letter, the
presumption that the Accused had a knowledge Account Closed cannot arise.
Granting arguendo that the accused issued the checks, the facts
clearly shows that the Accused as his capacity as the manager of Atlas Parts
(company), he borrowed money to the Complainant for the payment of the
company stocks, it also shows that being a manager he is authorized
signatory in every transactions made by the company. In the Case of Gosiaco
vs. Ching, G.R. No. 173807, April 16, 2009, 585 SCRA 471, the Supreme
Court Held that:
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Prodigals Notes
Memorandum
“B.P.22 imposes a distinct civil liability of the check
which is distinct from the civil liability of the corporation for
the amount represented from the check. The civil liability
attaching to the signatory arises from wrongful act of
signing the check despite the insufficiency of finds in the
account, while the civil liability attaching to the corporation
is itself the very obligation covered by the check for its
execution.”
In the case of Isip vs. People, G. R. No. 170298, June 26, 2007, 525
SCRA 735 the Supreme Court pronounce that:
PRAYER
1. Dismiss the Case against the Accused on the ground of lack of Cause
of Action and want of Jurisdiction;
2. Moral damages for the mental anguish, fright and serious anxiety
experienced by the Accused;
3. Exemplary or corrective damages;
4. Cost of litigation
Other measures of reliefs that are just and equitable under the
premises are likewise prayed for.
Manila City, Philippines. November 27, 2011.
ATTY. X
Counsel for Accused
PTR No. 54815, 1/17/2011
IBP No. 589546
Roll of Attorneys No. 8147
MCLE Compliance No. II-843
Greetings:
Copy furnished:
ATTY Y
Counsel for Complainant
EXPLANATION
(Sgd.) ATTY. X
Counsel for Accused