Republic of the Philippines

Regional Trial Court

Branch__
Cebu City

JUAN D. TAMD,
Plaintiff,
Civil Case No.___
-versus- For: Breach of Contract &
Damages
HAHAHA ONLINE STORE.,
Defendant.

x- - - - - - - - - - - - - - - - - - - - - - - x

POSITION PAPER FOR DEFENDANT

DEFENDANT, HAHAHA ONLINE STORE, by counsel, respectfully

submits its Position Paper for the consideration of this Honorable Court,
and in support thereof, states:

THE CASE

(1) This case is against the HAHAHA ONLINE STORE, for alleged
breach of contract of certain goods purchased by the plaintiff, JUAN D.
TAMAD during the Shopzada 11.11 sale.

(2) The proprietor-owner of the store, MARVID D. MANGINIGLAD,

submits that there is no breach had faithfully complied with the terms of the
online selling and it was the negligence of the buyer, herein the plaintiff, on
his failure to exercise necessary caution in buying the said goods. Thus,
this case should be dismissed for utter lack of merit

PARTIES

(1) Plaintiff, JUAN D. TAMAD is a hardworking Filipino security guard.

He lives at 89 Camansi St., Mambaling, 6000 Cebu City, Philippines

(2) Defendant, HAHAHA ONLINE STORE is a business duly registered

before the DTI under Mr. Marvin D. Mangingilad, who is of legal age,
Taiwanese, married to a Filipina and having a residence at 11th Flr.,
AppleOne-Equicom Tower, Mindanao Ave., Cebu Business Park, 6000
Cebu City.





 (3) Shopzada, Inc. is a corporation duly organized, registered and

existing under and by virtue of the laws of the Republic of the Philippines
having a principal place of business at 14/F, E-Bloc 2 Bldg, W Geonzon St.,
6000 Cebu City

STATEMENT OF FACTS

(1) On 03 Nov 2020, the security agency announced that all employees
are invited to attend the Annual Dress-Up Christmas Party on 30 Nov 2020
(Monday). All participants were encouraged to wear their best costume
and to showcase their creativity.

(2) Mr. Tamad got excited and immediately rushed to the Shopzada to
buy the necessary attire. Fortunately, there is an upcoming Shopzada
11.11 online sale which offers great discounts to online shoppers. So, he
took advantage of the sale and added to cart the items he needed

(3) 28 Nov 2020, all of Mr. Tamad’s online orders were delivered.
However, he was shocked by what he received. He refused to accept the
Hoodie Jacket as he alleged that the XXL does not fit to his size
(Attachment A). As for the Airpods Pro, he has no choice but to accept
since it was too late to verify the authenticity of the product, claimed to be
fake (Attachment B)

ISSUES PRESENTED

(A) Whether or not Shopzada, HaHaHa Online Store committed breach

in the contract of sale with Mr. Tamad.

(B) What are the available rights, remedies of Mr. Tamad?

(a) What is/are the liability/ies of Shopzada, HaHaHa Online Store

to Mr. Tamad.
(b) What is/are the responsibility/ies of Mr. Tamad, as a buyer,
before making the online purchase

(C) Based on the problem presented, what are the respective rights
and obligations (if any) of the following parties:

(d) HaHaHa Online Store towards Shopzada

(e) HaHaHa Online Store towards Juan D. Tamad

 DISCUSSION

Whether or not Hahah Online Store committed breach in the contract

of sale with Mr. Tamad

For the yellow jacket

(1) The DEFENDANT (Hahaha Online Store), did not commit a breach in
the contract of sale, conversely would say that it is the PLAINTIFF, who is
in breach of contract in relation to non-acceptance, and consequently non
payment of a jacket under C.O.D terms (Cash on Delivery). Pursuant to
Article 1595 of the Civil Code, which states:

Art. 1595 Where, under a contract of sale, the ownership of

the goods has passed to the buyer and he wrongfully
neglects or refuses to pay for the goods according to the
terms of the contract of sale, the seller may maintain an
action against him for the price of goods”.

Where, under a contract of sale, the price is payable on a

certain day, irrespective of delivery or of transfer of title, and
the buyer wrongfully neglects or refused to pay such price,
the seller may maintain an action for the price although the
ownership in the goods has not passed.

For the AirPods Pro

(1) In relation to the authenticity of the “Airpods Pro”, in the case of

SCHMID & Oberly, Inc v. RJL Martinez Fishing Corp., G.R. No. 75198, it
was held that:

“this Court rules that SCHMID was merely acting as an

indentor (dealer) in the purchase and sale of the twelve (12)
generators xx . Not being the vendor, SCHMID cannot be held
liable for the implied warranty for hidden defects under the
Civil Code”.

(2) Considering, Hahaha Online Store is only acting as a dealer or agent,

and not really a vendor, thus, should not be liable for any breach of
contract in relation to the breach of warranty against hidden defects.

(3) Provided that there is really a defect on the AirPod, such defect must
be considered important. In the case of Bryan vs. Hankins, 44 Phil. 87
[1922]; Gochangco vs. Dean, 47 Phil. 687 [1925].) it was held that “the
defect is important if: (1) it renders the thing sold unfit for the use for which
it is intended; or (2) if it diminishes its fitness for such use to such an extent

 that the vendee would not have acquired it had he been aware thereof or
would have given a lower price for it.”

(6) There was no clear misrepresentation of the product made by

Hahaha Online store. In the case of Erquiaga vs. Court of Appeals, 367
SCRA 357 that “The basic premise of the doctrine of caveat emptor is
that there be no misrepresentation by the seller”. As per product
description, item displayed have no indication or misrepresentation that it
was original product. It may have stated that it has 100% original apple
airpods (see ATTACHMENT B), but “it is usual exaggerations in trade, and
when the other party had an opportunity to know the facts, are not
themselves fraudulent (Art. 1340) and by looking at the price itself,
“AirPods Pro” in the Official Apple Store (ATTACHMENT C) it should have
put him off, as the price posted is too good to be true (ATTACHMENT B).
Thus, Mr. Tamad, should have been impelled to go beyond the pictures and
description, and should have inquired further with the seller.

Damages

(1) As a possible consequence of an alleged breach of contract are

damages, in the decided case of Nutrimix Feeds Corporation vs. Court
of Appeals, 441 SCRA 357 [2004].) it was held that:

“A manufacturer or seller of a product cannot be held liable for

any damage allegedly caused by the product in the absence of
any proof that the product in question was defective. The
defect must be present upon delivery or manufacture of the
product, or when the product left the seller’s or manufacturer’s
control; or when the product was sold to the purchaser; or the
product must have reached the user or consumer without
substantial change in the condition it was sold. Tracing the
defect to the seller or manufacturer requires some evidence
that there was no tampering with, or changing of the product.”

Available rights, remedies of Mr. Tamad

(1) Given that the MR. TAMAD could prove by preponderance of

evidence that there is breach of contract, and he suffered any form of injury,
the following remedy set forth in Article 1598 for specific performance may
apply:

“Art. 1598. Where the seller has broken contract to deliver

specific or ascertained goods, a court may, on the application
of the buyer, direct that the contract shall be performed
specifically, without giving the seller the option of retaining
the goods on payment of damages. The judgment or decree

 may be unconditional, or upon such terms and conditions as

to damages, payment of the price and otherwise, as the court
may deem just. (n)”

(2) Aside from the above mentioned, MR. TAMAD may also availed of
Article 1599 which lays down the remedies in case of breach of warranty:

“Art. 1599. Where there is a breach of warranty by the seller,

the buyer may, at his election:

(1) Accept or keep the goods and set up against the

seller, the breach of warranty by way of recoupment
in diminution or extinction of the price;
(2) Accept or keep the goods and maintain an action
against the seller for damages for the breach of
warranty;
(3) Refuse to accept the goods, and maintain an action
against the seller for damages for the breach of
warranty;
(4) Rescind the contract of sale and refuse to receive the
goods or if the goods have already been received,
return them or offer to return them to the seller and
recover the price or any part thereof which has been
paid.”
xxx

(2) However, Mr. Tamad in relation to the “Jacket” he refused to accept

the applicable remedy at his option are either paragraphs 3 or 4. In relation
to the “AirPods Pro” that he accepted already, he can only choose either
paragraphs 1, 2, or 4.

(3) Lastly, the DEFENDANT does not submit that he is in breach of

contract, but rather it only laid down the possible applicable rights and
remedies the PLAINTIFF may have based on the issues presented.

Liabilities of Shopzada, HaHaHa Online Store to Mr. Tamad.

(4) As a vendor, the principal obligations of HaHaHa Online Store are

provided in the different provisions of Civil code, namely:

ART. 1495. The vendor is bound to transfer the ownership

of and deliver, as well as warrant the thing which is the
object of the sale.

ART. 1537. The vendor is bound to deliver the thing sold

and its accessions and accessories in the condition in

 which they were upon the perfection of the contract. All the
fruits shall pertain to the vendee from the day on which the
contract was perfected

ART. 1547. In a contract of a sale, unless a contrary

intention appears, there is:

xxx xxx

(2) An implied warranty that the thing shall be free

from any hidden faults or defects, or any charge or
encumbrance not declared or known to the buyer.

xxx xxx

ART. 1164. Every person obliged to give something is also

obliged to take care of it with the proper diligence of a
good father of a family, unless that law or the stipulation of
the parties required another standard of care

Responsibilities of Mr. Tamad, as a buyer, before making the online

purchase

(1) The responsibilities of Mr. Tamad is he should be vigilant as a buyer

and make sure he reads the information correctly and he should be aware
of any defects.

If the vendee is aware of the defect in the thing he buys or

lack of title in the vendor, he cannot later complain
thereof. He is deemed to have willfully and voluntarily
assumed the risk attendant to the sale. (Martinez vs.Court
of Appeals, 56 SCRA 647 [1974].)

(2) Mr. Tamad must make sure that the item he is buying is within the
regulations and within his standards and that every information given is
correct, otherwise the Seller would not be liable.

The respective rights and obligations of the following parties:

HaHaHa Online Store towards Shopzada

(1) Being a seller, HaHaHa online store should abide by Article 46.
Prohibited Acts and Article 50 Prohibition Against Deceptive Sales Acts
and Practices of the RA 7394. The seller is also obliged to pay the
commission fee based on the contract and abide by the terms and
conditions of the contract in using the platform “Shopzada”HaHaHa Store

 is bound by the contract of Shopzada and must perform the necessary

obligations within due time.

HaHaHa Online Store towards Juan D. Tamad

(1) HaHaHa store does not have any more obligations towards Mr.Tamad
since HaHaHa store already fulfilled all his obligations but HaHaHa store
still has rights to ask for payment (in relation to Attachment A).

ART. 1582. The vendee is bound to accept delivery and to

pay the price of the thing sold at the time and place stipulated in
the contract.

If the time and place should not have been stipulated, the
payment must be made at the time and place of the delivery of
the thing sold. (1500a)

(2) Mr. Tamad after being delivered the parcel of good should have
accepted and paid the price stipulated. Mr. Tamad still have not performed
his principal obligations towards HaHaHa toward the purchase of the
Hoodie Jacket (see Attachment A)

PRAYER

WHEREFORE, HAHAHA ONLINE STORE respectfully prays that

after due consideration, the Honorable Court finds merit in the
position of the Proprietor and issue a dismissal of this case.

The Proprietor prays for such further or other relief as may be

deemed just or equitable.

Respectfully submitted, December 9, 2020, Cebu City,

UROT, TORREFRANCA & PARTNERS

Counsel for HaHaHa Online Store
10th Floor, Ayala Center Cebu Tower
Archbishop Reyes Ave., Cebu Business Park
Cebu City
Tel. No. (032) 635-1432
mailbox@utplaw.com.ph

 By

ATTY. IAN KHARLO TORREFRANCA

Roll No. 52999
PTR No. 7118396/12-17-15/Cebu
IBP P.R. No. 961609/12-15-15/Cebu
MCLE Compliance No. V - 000497 December 15, 2015

ATTY DAVE UROT

Roll No. 52910
PTR No. 7118112/12-18-15/Cebu
IBP P.R. No. 961612/12-15-15/Cebu
MCLE Compliance No. V - 0004999 December 15, 2015

COPY FURNISHED:

ATTY. NINOTCHKA TRIA

Counsel for Shopzada
Cebu City, Philippines

ATTY. DONALD SALANG

Counsel for Juan D. Tamad
Cebu City, Philippines

Attachment “C”