Contract of Insurance

I prefer saving my money with the bank rather than investing it with any insurance agency except compulsory social security services.

Just like any other kind of contract, the Contract of Insurance has a personal characteristic. It takes effect only between the parties, his heirs and assigns. Under the Pour Autrui Doctrine, the contracting parties must have clearly and deliberately conferred a favor upon such a third person in order the latter may be allowed to avail himself of a benefit granted to him by the terms of the contract. Therefore, a third person, not a party to a contract cannot validly file an action against parties thereto and cannot generally demand the enforcement of the same EXCEPT in Motor Vehicle Insurance.

Parties to an Insurance Contract

1. Insurer

- Banks cannot be insurers.

2. Insured

- Any person with capacity to contract and having an insurable interest in the life or property insured. A public enemy who is a citizen of the country with which the Philippines may be at war cannot be insured.

- Insurable interest is the interest which the law requires a person making a contract of insurance to have in the person or thing insured to prevent the contract from becoming a wagering contract.

3. Beneficiary

- The person designated to receive the proceeds of the policy when the risk attaches.

Classes of insurance

1. Life Insurance > dependent upon human life
2. Non-life Insurance, which may be:

a.) Fire Insurance.
b.) Marine Insurance.
c.) Casualty Insurance.
d.) Suretyship

Photocopying of Books: infringement or not?

    Photocopying or buying pirated books is taboo for me.      Even though I was just a poor working law student then, I have never hesitated to buy original textbooks no matter how expensive they were except if the book i urgently need is out of stock.     My ultimate goal is to remunerate the intellect of the author.   After all, I am benefiting from his excellent work and efforts, so why not bless him.   However, sometimes, I am guilty of purchasing hand-me-down novel books (I am not fond of romantic novel).    

    I cannot understand why some law students (or non-law students) photocopy the ENTIRE book but can afford to buy high-tech and expensive cell phone/gadget almost every semester.    

It is not infringement if a student or a NATURAL person photocopies a published work in a SINGLE copy EXCLUSIVELY for research and private study but not for commercial use as permitted by Section 187 of the Intellectual Property Code of the Philippines (R.A. 8293).   Published works are works, which, with the consent of the authors, are made available to the public by wire or wireless means (that includes the use of internet).

The reproduction of the ENTIRE book, or a substantial part thereof or the substantial diminution of the value of the original work, if made WITHOUT the consent of the author shall constitute infringement.   A person infringing the right protected shall pay the owner of the copyright, his assigns or heirs actual, moral and exemplary damages and shall be guilty of a crime punishable by imprisonment.

The protection of the INTELLECTUAL product such as literary, scholarly, scientific or artistic work is called copyright.   To obtain a copyright, the author must apply for a Philippine Copyright at The National Library.      It is thereby the copyright proprietor who shall have the exclusive right to file an action for infringement which has a 2-year prescriptive period.

  

Mama Parraaa!

I do not hesitate to tell a taxi, bus or jeepney driver, who appears to be reckless and lacks right conduct, to slow down. I boldly and gently (I’m afraid to be thrown out of the jeepney window haha) remind them that both him and his passengers have dependent or family that cares for and relies on them thus, they are required to exercise high degree of care. Forgive me, I have always wished for the complete vanishment of all the jeepneys in the Philippines for being the major contributors to air pollution and heavy traffic jam.

I certainly think most of those drivers (especially jeepney drivers) are not aware that they are bound and subject to the provisions of Contract of Transportation. It is a contract whereby a person, natural or juridical, obligates himself to transport person or goods, or both, from one place to another, by land, water, or air, for a price or compensation. The drivers cannot validly argue that they are not bound by the contract since it is not in writing. As a general rule (Article 1356, New Civil Code), contracts shall be obligatory and valid in WHATEVER FORM (whether verbal or in writing). There are only 2 exceptions; it is when the form is needed for:

1. VALIDITY e.g. donation of real property;
2. ENFORCEABILITY under the Statute of Frauds. (Art. 1403 par. 2 , NCC)

The Contract of Transportation falls under NEITHER exceptions. It is imbued with public interest requiring common carriers to carry passengers and goods safely using utmost diligence of very cautious person with due regard for all circumstances. The Law on Common Carriers (Articles 1732 to 1766, Civil Code) imposes an exacting standard. Failure to observe extraordinary diligence renders it liable for any damage that may be sustained by its passengers or goods.

Common carriers are presumed to have been at fault or negligent in case of death of or injuries to passengers or loss of goods except if it is due to a fortuitous event. The award of damages for death is computed on the basis of the life expectancy of the deceased passenger which is 2/3 of 80 less his age at the time of his death. Take for instance, the life expectancy of a 20-year-old deceased passenger is computed below:

80
x .67 (2/3)
53.60 >2/3 of 80;

53.60 – 20 = 33.60 years > life expectancy

The heirs of a deceased passenger are entitled to recover from the negligence of the Common Carriers:

1. the total earnings for the life expectancy;
2. damages for his death;
3. moral damages for mental anguish of the heirs;
4. burial expenses; and
5. attorney’s fees, if a lawsuit has been filed.

Negotiable Instruments

The lifeblood of negotiable instrument is negotiation.

A Negotiable Instrument is a WRITTEN contract as a SUBSTITUTE for money, and its delivery does NOT by itself operate as a payment. It is not a legal tender thus, may be refused by a creditor. Its commercial functions are to supplement the currency of the government and to substitute for money and increase the purchasing medium.

On the other hand, a legal tender is defined as currency that cannot legally be refused in payment of debt or is that which a debtor may compel a creditor to accept in payment of the debt. It generally refers to government-issued CASH Money such as coins and notes.

But is it not amazing that Jesus Christ's life and blood paid the ransom which is the price that must be paid to God for our debt! We accrue spiritual debt every time we fail to honor God by living in obedience to Him through sins of both omission and commission.

1 Timothy 2:5-6

⁵For there is one God and one mediator between God and men, the man Christ Jesus, ⁶who gave himself as a ransom for all men—the testimony given in its proper time.

In relation to the legal concepts, an instrument to be negotiable must contain all the requisites enumerated in Sec. 1 of the Negotiable Instruments Law (Act No. 2031):

1. It must be IN WRITING and SIGNED by the Maker or Drawer;
2. Must contain an UNCONDITIONAL promise or order to pay a sum certain
in money;
3. Must be payable on demand, or at a fixed or DETERMINABLE future time;
4. Must be payable to ORDER or to BEARER; and
5. Where the instrument is addressed to a drawee, he must NAMED or
otherwise indicated therein with reasonable certainty.

Common Forms of Negotiable Instruments:

1. Promissory Note - an unconditional promise to pay; and
2. Bill of Exchange – an unconditional order requiring a person to pay to
bearer.
3. Check – is a bill of exchange drawn on a bank payable on demand.

Other Forms:

1. Certificate of Deposit;
2. Trade Acceptance;
3. Bonds;
4. Drafts; and
5. Letter of Credit.

Similar to, but NOT, Negotiable Instruments:

1. Treasury Warrants;
2. Money Orders;
3. Warehouse Receipts;
4. Bills of Lading; and
5. Trust Receipts.

Under sec. 23, when the signature of the Maker or Drawer is forged, it is the signature that shall become wholly inoperative but the instrument is still operative. Thus, a holder in due course although cannot enforce payment thereof against the maker or drawer can still enforce the same against the indorser.

Whereas, if it is forgery in signature of Indorser, a holder in due course and any party subsequent to the forgery cannot enforce it against the parties to an instrument PRIOR to said forgery. Except, in the case of a check where the drawer is guilty of negligence which causes the bank to honor such a check.

Sec. 52 provides that a holder in due course is one who takes the instrument “in good faith and for value”; and at the time the instrument was negotiated to he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

However, sec. 59 provides that every holder is deemed prima facie (obvious) to be a holder in due course.

Related Article:

Who are the Persons Criminally Liable?