Group-5-compiled.docx.-edited.docx

DOCUMENTARY EVIDENCE MEANING Documentary Evidence Consists of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents (Section 2, Rule 130, 1997 Rules of Court) Kinds of Documentary Evidence A. Writings or Paper Based Documents These are the most common and basic form of documentary evidence. It ranges from private letters addressed between people to public documents notarized by a notary public. Examples of these are written contracts, birth certificate, deed of sale, school records, holographic wills B. Any other writings on a solid surface such as blackboard, walls, shirts, tables, and floor Documentary Evidence may also appear on other surfaces which are not paper. Writings and carvings on a wall is an example as long as what is offered as evidence is the content. C. Electronic Evidence Through the Rules on Electronic Evidence, which took effect on August 1, 2001, text messages and other electronic documents may now be admitted as evidence. This is in line with the passing of the Electronic Commerce Act of 2000 (RA 8792). Electronic Documents is defined as information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded,

transmitted,

stored,

processed,

retrieved

or

produced

electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document

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Requisites for Admissibility A. Relevant 

None but facts having rational probative value are admissible



Evidence must have such a relation to the fact in issue as to induce belief on its existence or non-existence



The material presented as evidence must affect the issue or question.



It must have a bearing on the outcome of a case

B. Competent 

All facts having rational probative value are admissible unless some specific law or rule forbids



It should not be excluded by law or rules o

Example of incompetent evidence excluded by the Rules 

Section 36, Rule 130 of the Rules of Court prohibits the consideration of Hearsay Evidence 

Excluding hearsay also aims to preserve the right of the opposing party to cross-examine the originaldeclarant claiming to have a direct knowledge of the transaction or occurrence. If hearsay is allowed, the right stands to be denied because the declarant is not in court.It is then to be stressed that the right to crossexamine the adverse party’s witness. (Anna Lerma Patula v. People of the Philippines)

C. Authenticated Document 

Public Documents- admissible even without further proof of their due execution or genuineness 2

o

In Ernesto Salas v Sta.Mesa Corp, 

Public documents are admissible in evidence even without further proof of their due execution and genuineness.



Private Documents- admissible only when properly authenticated (Salic v Comelec G.R. No. 157007) o

In Salic v. Comelec, 

“No evidentiary value can be accorded private documents in the absence of collateral proof of due execution and genuineness thereof.”

D. Authenticated by competent witness 

It must be authenticated either: o

By the person who executed it

o

The person before whom its execution was acknowledged

o

Any person who was present and saw it executed

o

The person to whom the parties to the instruments have previously confessed its execution thereof

(Malayan Insurance Co., Inc v Philippine Nails and Wires Corporation citing Section 20, Rule 132 of the Rules of Court) E. Formally offered as Evidence 

The case of Heirs of Pedro Pasag v. Parocha was very instructive “The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any evidence that has not been offered shall be executed and rejected”



Rule 132, Section 34 (Ruevised Rules on Evidence) o Offer of evidence. — The court shall consider no evidence which has not been formally offered. The

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purpose for which the evidence is offered must be specified. 

A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial.(Parel v Prudencio)

However, there were instances where the rule on formal offering of evidence was relaxed: Tan v. Lim “It may be true that Section 34, Rule 132 of the rules directs the court to consider no evidence which has not been formally offered and that under Section 35, documentary evidence is offered after presentation of testimonial evidence. However, a liberal interpretation of these Rules would have convinced the trial court that a separate formal offer of evidence in Civil Case No. 6518 was superfluous because not only was an offer of evidence made in Civil Case No. 6521 that was being jointly heard by the trial court, counsel for Jose Renato Lim had already declared he was adopting these evidences for Civil Case No. 6518. The trial court itself stated that it would freely utilize in one case evidence adduced in the other only to later abandon this posture. Jose Renato Lim testified in Civil Case No. 6518. The trial court should have at least considered his testimony since at the time it was made, the rules provided that testimonial evidence is deemed offered at the time the witness is called to testify. Rules of procedure should not be applied in a very rigid, technical case as they are devised chiefly to secure and not defeat substantial justice. Republic v Fe Roa Gimenez “Rules of procedure are not ends in themselves. The object of these rules is to assist and facilitate a trial court's function to be able to receive all the evidence of the parties, and evaluate their admissibility and probative value in the context of the issues presented by the parties' pleadings in order to arrive at a conclusion as to the facts that transpired. Having been able to establish the facts, the trial court will then be able to apply the law and determine whether a complainant is deserving of the reliefs prayed for in the pleading. 4

Dismissal on the basis of a very strict interpretation of procedural rules without a clear demonstration of the injury to a substantive right of the defendant weighed against 19 years of litigation actively participated in by both parties should not be encouraged. NOTA BENE: These are mere exceptions to the General Rule. Rules governing the admissibility of Evidence A. Best Evidence Rule B. Parole Evidence Rule

BEST EVIDENCE RULE (a) Meaning of the rule The Best Evidence Rule is embodied in Sec. 3 of Rule 130 of the Rules of Court which provides that when the subject of inquiry is the contents of a document, the best evidence thereof is the original document itself and other evidence is not admissible, subject to exceptions The rule, applied to documentary evidence, operated as a rule of exclusion, that is, secondary evidence cannot be inceptively be introduced as the original writing itself must be produced in court. The Best Evidence Rule is often described as a misnomer. Despite the word “best,” the rule does not proclaim itself as the highest and most reliable evidence in the hierarchy of evidence. The term “best” has nothing to do with the degree of probative value in relation to other types of evidentiary rules. It is not intended to mean the most superior evidence. More accurately, it is the “original document” rule or the “primary evidence” rule.

(b) When applicable; exceptions The rule is applicable in the following instances:

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1. The subject matter must involve a document; 2. The subject of the inquiry is the contents of the document. Illustration: Mr. Carrascoso took an Air France flight from Manila to Rome. While on a stop-over in Bangkok, he was forcibly transferred from the first class to the tourist class in order to make way for “a white man.” Mr. Carrascoso resisted his transfer and a commotion occurred on board the plane. The purser recorded the incident in his notebook. Mr. Carrascoso sued Air France. During the trial, Mr. Carrascoso testified that the purser recorded the incident in his notebook and then read out the entry to him: “First-class passenger was forced to go to the tourist class against his will, and the captain refused to intervene.” Air France’s counsel moved to strike out the statement on the ground that the best evidence would be the notebook. The court ruled that motion to strike out should not be granted. The best evidence rule applies when the subject matter of inquiry is the contents of the document. Here, the subject of inquiry is not the contents of the notebook, but the purser’s statement to Mr. Carrascoso. Otherwise put the best evidence rule applies only to documentary evidence but not to testimonial or oral evidence. (Air France v. Carrascoso, 18 SCRA 115) The purpose of the rule is that the copy of the original is not as reliable as the original itself because of the possible inaccuracy in the process of copying and the danger of erroneous transmission of the original. However, the best evidence rule may be waived if not raised in the trial. Hence, if the documentary evidence were only photocopies, and it has been examined and

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admitted by the court, without objections as to its authenticity and due execution, means that the documents are deemed sufficient proof of the facts contained therein. Sec.3 of Rules 130 also made mention the exceptions in not presenting the original documents which are: 1. When the original has been lost, or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

-

When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. (Sec. 5, Rule 130)

2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; -

If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. (Sec. 6, Rule 130)

3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office.

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-

When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (Sec. 7, Rule 130)

(c) Meaning of the original Best evidence rule might therefore best refer as the “original writing rule” because it is a specific evidentiary requirement applicable to documentary evidence.1 Section 4, Rule 130 of the Rules of Court defines the Original of the document; a. The original of a document is one the contents of which are the subject of the inquiry. b. When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. c. When an entry is repeated in the regular course of business, one being copied from another at or near the time of transaction, all the entries are likewise equally regarded as originals. When the rule states that “the original of a document is one of the contents of which are subject of inquiry”, it actually speaks of an “original” as an original of documentary evidence and not the original of object evidence. Stated otherwise, the “original” is the document whose contents are to be proved.2

Section 4, Rule 130 (a) The original of a document is one the contents of which are the subject of the inquiry. Example:

1 2

APOSTOL, Sergio A.F., Essentials of evidence, p.67 FRANCISCO, R.J., Evidence, Part I, 1997

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In the case of SPOUSES ALFARO VS. CA (Mar. 28, 2007), the court held that, “original does not mean the first paper written, in contrast to a copy or transcript made later. The original depends upon the issue to be proved. It is immaterial whether that document was written before or after another, was copied from another, or was itself used to copy from, as long as its contents are the subject of inquiry”. In other words, in par(a), sec. 3, rule 130, what matters under the law is whether the contents of the document is the subject of inquiry. Time here is not an element. So “original” does not here mean necessarily the one first written.3 In contrary, “original” is relative to the particular issue.4 To further illustrate, in the case of news article published; If the subject of inquiry is who wrote the article, the original would be the story as prepared or typed by the author or manuscript itself submitted to the publisher. But if the issue to be established is whether the published story is libelous or not, the original is the story which appeared in the newspaper. Section 4, Rule 130 (b) when a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. This is best known as the Duplicate Original Rule.

Mechanically reproduced copies: 1. Carbon Copy Admissible as duplicate original when executed at the same time or about the same time. Imperfect carbon copies, however, although made at the same time as the original but if there is something else to be done

3 4

Ibid., p.134 id.,

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for it to be binding or there is incomplete signature, it’s not the best evidence.5 Example: In CAPITAL SHOES VS. TRAVELER KIDS (Sept. 24, 2004), the court ruled that, “when carbon sheet are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others”. 2. Reproduction from the same matrix (mimeograph, hectograph) Admissible when produced from same matrix as original Stated otherwise, writings with identical contents made by printing, mimeographing, lithography and other similar methods executed at the same time are considered originals. Thus, each newspaper sold in the newsstand is an original in itself.

Example: Provincial Fiscal of Pampanga v. Reyes August 5, 1931

5

FRANCISCO, R.J., Basic Evidence, 2017

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FACTS: The provincial fiscal of Pampanga filed two informations for libel against Guevarra. The informations alleged that the defendant, with malicious intent, published on page 9 of the weekly paper “Ing Magumasid”. The defendant demurred on the ground of duplicity of informations, he having only one libelous article in the “Ing Magumasid”. The fiscal attempted to present as evidence for the prosecution exhibits A, B, C, and D, which are copies of the “Ing Magumasid” containing the libelous article. Counsel for defendant objected to this evidence which objection was sustained. ISSUE: Whether the exhibits are admissible HELD: Yes. Certainly the copies of the weekly paper where the libelous article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best evidence of an article published in it. Respondent judge of CFI was required to admit Exhibits in question. 3. Blueprints and vellum tracings Held to be originals rather than copies 4. Telegraph and Cable messages If the issue is the contents of the telegram 

As received by the addressee The original dispatch is the copy of the message sent to the addressee



As sent by the sender Original is the message delivered

If the issue is the inaccuracy of the transmission 

Both telegrams as sent and received are originals6

BAR Question on 1997: When JZE loaned a sum of money to Bangs, JZE typed a single copy of the promissory note, which they both signed. JZE made two photocopies of the

6

FRANCISCO, R.J., Basic Evidence, 2017

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promissory note, giving one copy to Bangs and retaining the other copy, JZE entrusted the typewritten copy to his counsel for safekeeping. The copy with JZE’s counsel was destroyed when the law office was burned. b. Can the photocopies in the hands of the parties be considered “duplicate” originals? Answer: The photocopies are not duplicate originals. They cannot be deemed as having been made at the same time with the original because they were not signed like the original. The signatures that appear in photocopies are mere facsimiles of the original signature. They cannot be considered original.7 Section 4, Rule 130, © When an entry is repeated in the regular course of business, one being copied from another at or near the time of transaction, all the entries are likewise equally regarded as originals. To be considered originals under this provision, there are certain requisites that must be complied with:8 1. There must be entries made and repeated in the regular course of business; 2. The entries must be made at or near the time of the transaction.

Example: RAMOS VS. CA (Nov. 18, 1991) Facts:

7 8

FRANCISCO, R.J., Evidence, Part I, 1997 RIANO, Evidence, the Bar Lecture Series, 2016, p.147

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Ramos, the bank manager, and several others were prosecuted for Estafa, their modus operandi was that the depositors would issue worthless checks and Ramos, being the manager, would allow the encashment of the same or the drawing against uncleared check deposits. Evidence presented by the prosecution included audit worksheets, bank ledgers and Xerox copies of the dishonoured checks and check return slip. Ramos objected on the ground that these documents were not originals. ISSUE: Is Ramos’ contention correct? HELD: NO! Entries in the account ledgers of the depositors which are on file on the bank may be regarded as originals. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. SECONDARY EVIDENCE MEANING Secondary evidence is that which is inferior to primary.9 It is that species of evidence which becomes admissible, as being the next best, when the primary or best evidence of the fact in question is lost or inaccessible.10

Requisites for introduction of secondary evidence, under (a) of Section 3, Rule 130. General Rule: When the subject of inquiry is the contents of the document, the original must be produced.

9

SIBAL, Jose Agaton & SALAZAR, Jaime Jr., Compendium of Evidence, 2006 Ibid., p.55

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First exception of the Best evidence rule; (a)

When the original has been lost or destroyed, or cannot be produced

in court, without bad faith on the part of the offeror; In short, the provision allows the presentation of secondary evidence in the absence of the primary evidence. Section 5, Rule 130 provides when original document is unavailable, it states as follows: “When the original has been lost, or destroyed, or cannot be produced in court and its unavailability is without bad faith on the part of the offeror, three types of secondary evidence may, in the stated order of preference, be given. The next best evidence is a copy, followed by a recital of the contents in some authentic document, and lastly, the testimony of the witness”. Requisites of Secondary Evidence that it may be presented:11 1. The execution or existence of the original 2. The loss and destruction of the original or its non-production in court 3. Unavailability of the original is not due to bad faith on the part of the offeror Proof required proving the contents of the documents base on the requisites:12 1. By a copy of the original 2. By a recital of the contents of the document in some authentic document 3. By the testimony of witnesses But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument.13 Although the order may be changed if necessary in the discretion of the court, accordingly, the correct order of proof is as follows:14 1. Existence

11

TAN, Ferdinand, Evidence, A Compendium for Bench and Bar, 2014 TAN, Ferdinand, Evidence, A Compendium for Bench and Bar, 2014 13 FRANCISCO, R.J., Evidence, Part I, 1997 p.155 14 ONG CHING PO v. Court of Appeals, Dec. 20, 1994 12

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2. Execution 3. Loss 4. Contents Requisites for the admissibility of secondary evidence:15 1. Due execution of the original 2. Loss, destruction, or unavailability of all such originals 3. Reasonable diligence and good faith in the search for or attempt to produce the original The above requisites are in accord to the well-settled principle that before secondary evidence can be presented, all duplicated and/or counterpart must be accounted for, and no excuse for the non-production of the original document itself can be regarded as established until all its parts are unavailable.16 Example: If the original is executed in triplicate copies, you have to account for all of the three. Proof of due execution of a lost or destroyed original document:17 1. The testimony of the person who executed it 2. Testimony of any person before whom its execution was acknowledge 3. Any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signature. Proof of loss or destruction of the original document:18 1. Loss may be shown by any person who knew the fact of its loss

15

TAN, Ferdinand, Evidence, A Compendium for Bench and Bar, 2014 p.149 DELA CRUZ v. Court of Appeals, Oct. 21, 1998 17 TAN, Ferdinand, Evidence, A Compendium for Bench and Bar, 2014 18 Ibid., p.150 16

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2. By anyone who has made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept 3. By the person in whose custody the document was lost, and unable to find it 4. Those who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. Proof of loss dispensed with by admission19 1. Where both parties admit that an instrument has been lost, this is sufficient to warrant the reception of secondary evidence 2. The contents of an instrument may be proved against a party be his admissions in writing, without accounting for non-production of the original document

Country Bankers Insurance Corp. v. Antonio Lagman G.R. No. 165487, July 13, 2011 Facts: Country Bankers filed a complaint for a sum of money against Lagman. Lagman mentioned during the direct examination that there are actually 4 duplicate originals in 1990 bond: first is kept by the NFA, second is with the loan officer of the NFA in Tarlac, third is with Country Bankers and last was in his possession. He also admitted that he kept a copy but he could no longer produce it because he had already severed his ties with Country Bankers whom he was a surety for the warehouse receipt extended to Santos. For such reason, Lagman presented a photocopy and prove the contents of the original. Issue: Whether photocopy may be used without accounting for the other original Held: No. A party must first present to the court proof of loss or other satisfactory explanation for the non-production of the original instrument. When more than

19

FRANCISCO, R.J., Basic Evidence, 2017

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one original copy exist, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can be given of any one. A photocopy may not be used without accounting for the other originals. Despite the knowledge of the existence and whereabouts of these duplicate originals, Lagman merely presented a photocopy. Neither did Lagman explain why he failed to secure the original from any of the other custodians as he mentioned in the testimony. Clearly, Lagman failed to exert diligent efforts to produce the original. (e) In cases under (b) of Sec. 3, Rule 130 Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: xxx (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; xxx Question: Ajax Powder Corporation, a utility company, sued in the Regional Trial Court to enforce a supposed right of way over a property owned by Simplicio. At the ensuing trial, A jax presented its retired field auditor who testified that he knows for a fact that a certain sum of money was periodically paid to Simplicio for some time as consideration for a right of way pursuant to a written contract. The original contract was not presented. Instead, a purported copy, identified by the retired field auditor as such, was formally offered as part of his testimony. Rejected by the trial court, it was finally made the subject of an offer of proof by Ajax.

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Can Ajax validly claim that it has sufficiently met its burden by proving the existence of the contract establishing its right of way? Explain. Answer: Ajax cannot validly make the claim. When the subject of the inquiry is the contents of a writing, as in the instant case, the original document must be presented in evidence. If secondary evidence is to be offered like a copy thereof, the proponent has to lay the basis for the admission of the copy of the document. This Ajax failed to do.

MAGDAYAO vs PEOPLE [G.R. No. 152881. August 17, 2004] FACTS: An Information was filed charging petitioner with violation of B.P. Blg. 22. The petitioner, assisted by counsel, entered a plea of not guilty. When the case for trial was called on June 7, 1995 for the prosecution to adduce its evidence, the petitioner and his counsel were absent. The prosecution presented the private complainant, Ricky Olvis, who testified on direct examination that on September 30, 1991, the petitioner drew and issued a check in the amount of P600,000.00. The drawee bank dishonored the check for the reason "Drawn Against Insufficient Funds" stamped on the dorsal portion of the check. Olvis testified that when informed that his check was dishonored, the petitioner pleaded for time to pay the amount thereof, but reneged on his promise. Olvis then filed a criminal complaint against the petitioner for violation of B.P. Blg. 22 on September 4, 1992, docketed as I.S. No. 92-368. The petitioner again offered to repay Olvis the amount of the obligation by retrieving the dishonored check and replacing the same with two other checks: one for P400,000.00 and another for P200,000.00 payable to Olvis. Taking pity on the petitioner, he agreed. He then returned the original copy of the check to the

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petitioner, but the latter again failed to make good on his promise and failed to pay the P600,000.00. The prosecution moved that such direct examination of Olvis be continued on another date, and that the petitioner be ordered to appear before the court so that he could be identified as the drawer of the subject check. The trial court granted the motion and set the continuation of the trial on June 13, 1997. In the meantime, the prosecution marked a photocopy of PNB Check No. 399967 as Exhibit "A," and the dorsal portion thereof as Exhibit "A-1." The prosecution offered in evidence the photocopy of PNB Check No. 399967, which the court admitted The petitioner then filed an Omnibus Supplemental Motion and to Allow Him to Adduce Evidence alleging, inter alia, that: h) Despite the absence of the original, with only a xerox copy of the PNB Check worth P600,000.00, and further stressing that the same was paid, the prosecutor insisted, against the vigorous objection of accused, in filing the case in Court In its Opposition to the said motion, the prosecution averred that it dispensed with the presentation of the original of the dishonored check because the same had been returned to the petitioner. It also pointed out that the petitioner failed to object to the presentation of the photocopy of the dishonored check. The petitioner insisted that the photocopy of the subject check was inadmissible in evidence because of the prosecution’s failure to produce the original thereof. All motions of petitioner were denied. Trial court adjudged petitioner guilty. CA affirmed ISSUE: Whether or not the photocopy of PNB Check No. 399967, adduced in evidence by the prosecution, is inadmissible in evidence under Rule 129, Section 1 of the Revised Rules of Evidence; hence, has no probative weight HELD: It is admissible. We agree with the petitioner that it was incumbent upon the prosecution to adduce in evidence the original copy of PNB Check No. 399967 to

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prove the contents thereof, more specifically the names of the drawer and endorsee, the date and amount and the dishonor thereof, as well as the reason for such dishonor. Section 3, Rule 129 of the Revised Rules on Evidence specifically provides that when the subject of inquiry is the contents of the document, no evidence shall be admissible other than the original thereof. The purpose of the rule requiring the production by the offeror of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it and presents inferior or secondary evidence in its place, the presumption is that the latter evidence is withheld from the court and the adverse party for a fraudulent or devious purpose which its production would expose and defeat. As long as the original evidence can be had, the court should not receive in evidence that which is substitutionary in nature, such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. Such photocopies must be disregarded, being inadmissible evidence and barren of probative weight

Furthermore, under Section 3(b), Rule 130 of the said Rules, secondary evidence of a writing may be admitted when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice. To warrant the admissibility of secondary evidence when the original of a writing is in the custody or control of the adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable notice, that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its existence. The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document. The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such

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party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted. In this case, Olvis, the private complainant, testified that after the check was dishonored by the drawee bank for insufficiency of funds, he returned it to the petitioner upon the latter’s offer to pay the amount of the check by drawing and issuing two checks, one for P400,000.00 and the other for P200,000.00. However, the petitioner still failed to satisfy his obligation to Olvis The petitioner cannot feign ignorance of the need for the production of the original copy and the fact that the prosecution was able to present in evidence only a photocopy thereof because the original was in his possession In fact the petitioner complained of the prosecution’s violation of the best evidence rule. The petitioner, however, never produced the original of the check, much less offered to produce the same. The petitioner deliberately withheld the original of the check as a bargaining chip for the court to grant him an opportunity to adduce evidence in his defense, which he failed to do following his numerous unjustified postponements.

Pacasum vs People G.R. No. 180314, April 16, 2009 “Under Section 3(b) of Rule 130, secondary evidence of a writing may be admitted when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable

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notice… Under the circumstances, since there was proof of the existence of the Employees Clearance as evidenced by the photocopy thereof, and despite the reasonable notices made by the prosecution to the accused and her assistant secretary to produce the original of said employees clearance they ignored the notice and refused to produce the original document, the presentation and admission of the photocopy of the original copy of the questioned Employees Clearance as secondary evidence to prove the contents thereof was justified” RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01-7-01-SC) (a) Scope, coverage, meaning of electronic evidence, electronic data message. DEFINITION Section 1(h) Rule 2 of the Rules on Electronic Evidence: Electronic Evidence refers to information, data, figures, symbols, or other modes of written expressions, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved, or produced electronically. It includes digitally signed documents ad any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with “electronic data message” Electronic data Message – refers to information generated, received or stored by electronic, optical or similar means (Section 1 (g) Rule 2 on Rules on Electronic Evidence Examples of electronic evidence: 1.

emails

2.

recorded or saved text messages

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3.

computer-generated documents

4.

scanned documents

5.

Duplicate document

Admissibility of electronic Document: Admissible if it complies with the rules on admissibility prescribed by the rules of Court and related laws, and if it is authenticated in the manner prescribed by the Rules on electronic Evidence Purpose/s of Electronic Evidence: 1.

To establish a right;

2.

To extinguish an obligation; or

3.

To prove or affirm a fact ( Sec 1 [h], Rule 2, Rules on Electronic Evidence)

Electronic documents are functional equivalents of paper-based documents. Section 1 Rule 3 of the Rules on Electronic Evidence “Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum of any other form of writing, such terms shall be deemed to include an electronic document as defines in these Rules” BURDEN OF PROOF Sec 1, Rule 5 of the Rules on electronic Evidence: “the person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule”

b) Probative value of electronic documents or evidentiary weight; method of proof

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PROBATIVE VALUE OF ELECTRONIC DOCUMENTS In assessing the evidentiary weight of an electronic document, certain factors may be considered: (a) The reliability of the manner or method in which it was generated, stored or communicated; Example: Accuracy of the contents of the e-mail, Facebook messages, etc. vis-à-vis the surrounding conditions of the proceedings (b) The reliability of the manner in which its originator was identified; In the case of Ang vs. CA20, the Complainant Ang contended that he himself received obscene text messages from an unidentified person who was harassing his former girlfriend (the complainant) and he merely forwarded the same to the complainant, using his cellphone. But Ang never presented the cellphone number of the unidentified person who sent the messages to him to authenticate the same.

The RTC dismissed such version and so did the

Supreme Court which sustained Ang’s conviction. His inability to present the cellphone number pointed to his guilt as the originator of the scandalous SMS. (c) The integrity of the information and communication system; (d) The familiarity of the witness or the person who made the entry with the communication

and

information

system;

the

nature

and

quality

of

information; Example: When a Facebook post is attributed against defendant, the court may consider the latter’s understanding on how to manipulate the social media site for

20

Ang vs. Court of Appeals, G.R. No. 182835.

24

him/her to be able to produce the post. It is weighty evidence if indeed, defendant has shown considerable know-how in accessing and operating his/her Facebook account. In the case of Nuez vs. Cruz-Apao21, the Court found that the text messages corroborated the testimony of the complainant and his witness. The complainant was considered to have personal knowledge of the incriminating text messages and could testify on their contents.

(f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message.22 When the court finds that the reliability of the foregoing has been duly established, it may then consider the electronic evidence as vital in the navigation of the proceedings in which it is involved.

METHOD OF PROOF All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party.23 (c) How to authenticate electronic documents and electronic signatures AUTHENTICATION OF ELECTRONIC DOCUMENTS

21

Nuez vs. Cruz-Apao, A.M. No. CA-05-18-P. Sec. 1, Rule 7, Rules on Electronic Evidence, A.M. No. 01-7-01-SC. 23 Secs. 1 & 2, Rule 9, Ibid. 22

25

The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity. The authentication of electronic documents requires any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or Example: Retina scan, PDF, etc. (c) by other evidence showing its integrity and reliability to the satisfaction of the judge.24 Example: A Facebook post composed by Mrs. W. It reads “Mrs. X is a kleptomaniac who keeps stealing from the women in her knitting circle as well as their other neighbors. She deserves to be publicly humiliated for her unsavory behavior.” This is a libelous post that grants the aggrieved damages should defendant lose the case. There are two situations that could come up. If a record of the libelous Facebook post was kept so to speak, such would be considered as electronic evidence in accordance with the Rules on Electronic Evidence. If there is no record of such Facebook post after it had been deleted, it shall now be considered as Ephemeral Communication. Ephemeral electronic communication are telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. The REE provides for the method of proof of the Facebook post in question when it states: “Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has

24

Sec. 2, Rule 5, Rules on Electronic Evidence, A.M. No. 01-7-01-SC

26

personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.”25 Following the Rule on ephemeral communication, an example would be that the prosecution may present a witness to testify that he (the witness) saw Mrs. W write the post in her Facebook account because, according to her, he “she abhors people who take hard-earned things get taken away from their rightful owners.”

Aznar v Citibank G.R. No. 164273 March 28, 2007 FACTS Aznar is a holder of a Mastercard issued by Citibank. He and his wife planned to take their two grandchildren on an Asian tour. For the trip, Aznar made a total advance deposit of P485, 000.00 with Citibank with the intention of increasing his credit limit to P635, 000. Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, said card was dishonored. When he tried using the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to buy plane tickets for Bali, it was dishonored again because his card was blacklisted by Citibank. This forced him to buy tickets in cash. He was humiliated by the blacklisting which was allegedly worsened when Ingtan Agency warned of swindlers trying to use blacklisted cards, clearly alluding to him. Aznar filed a Complaint for damages against Citibank. To prove that respondent blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT,

25

Par. 1, Sec. 2, Rule 11, Rules on Electronic Evidence, A.M. No. 01-7-01-SC

27

issued to him by Ingtan Agency which shows that his card in question was declared over the limit. The RTC dismissed the complaint for lack of merit. A Motion for Reconsideration was filed and the case was re-raffled. The Motion was eventually granted in the court that took cognizance of the case. Citibank was then held liable. ISSUE: W/N the evidence qualifies as electronic evidence following the Rules on Electronic Evidence which provides print-outs to be originals. RULING: NO, it does not. Such cannot be considered admissible as its authenticity and due execution were not sufficiently established by the Petitioner. Even if examined under the Rules on Electronic Evidence, the authentication would still be found to be wanting. Aznar’s testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-out’s integrity and reliability. Aznar was not able to demonstrate how the information reflected on the printout was generated and how said information could be relied upon as true.

AUTHENTICATION OF ELECTRONIC SIGNATURES An electronic signature may be authenticated in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verity the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.26

26

Sec. 2, Rule 6, Rules on Electronic Evidence, A.M. No. 01-7-01-SC

28

(d) Electronic documents vis-à-vis the hearsay rule Rule 8 BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule on hearsay evidence. Section 2. Overcoming the presumption. – The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof.27

What Constitute Business Records: Business records constitute records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes

28

Requisites to an exception to the rule on hearsay evidence: A memorandum, report, record, or data compilation of acts, events, conditions, opinions or diagnosis: (1) Made by electronic, optical or other similar means

27

Rule 8 Rules on Electronic Evidence, A.M. No. 01-7-01-SC

28

Sec 1(b), Rule 2 Rules on Electronic Evidence, A.M. No. 01-7-01-SC

29

(2) Made at or near the time of or from transmission or supply of information (3) Made by a person with knowledge thereof (4) Kept in the regular course or conduct of a business activity, (5) Such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means (6) Abovementioned facts shown by the testimony of the custodian or other qualified witnesses29 The presumption provided above may be overcome by evidence of— (1) Untrustworthiness of the source of information (2) Untrustworthiness of the method of the preparation, transmission or storage thereof (3) Untrustworthiness of the circumstances of the preparation, transmission or storage thereof30

(e) Audio, photographic, video, and ephemeral evidence. RULE 11 AUDIO, PHOTOGRAPHIC. VIDEO AND EPHEMERAL EVIDENCE SECTION 1. Audio, video and similar evidence. – Audio, photographic and video evidence of events, acts or transactions shall be admissible provided is shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. SECTION 2.

Ephemeral electronic communication. – Ephemeral electronic

communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.

29

Sec 1, Rule 8 Rules on Electronic Evidence, A.M. No. 01-7-01-SC

30

Sec 2, Rule 8 Rules on Electronic Evidence, A.M. No. 01-7-01-SC

30

A

recording

of

the

telephone

conversation

or

ephemeral

electronic

communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply31. Audio, Photographic, Video and Ephemeral Evidence refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.32 How proven (1) By the testimony of a person who was a party to the same; (2) By the testimony of a person who has personal knowledge thereof; or (3) In the absence or unavailability of such witnesses, by other competent evidence33 When recorded, the communication ceases to be ephemeral and shall be proven in the same manner as proving audio, photographic and video evidence34

Admissibility of Ephemeral Evidence Audio, video and similar evidence, to be admissible shall be— (1) shown, presented or displayed to the court and (2) identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof35

31

Rule 11 Rules on Electronic Evidence, A.M. No. 01-7-01-SC

32

Sec 1(k), Rule 2, Rules on Electronic Evidence, A.M. No. 01-7-01-SC

33

Sec 2, Rule 11 Rules on Electronic Evidence, A.M. No. 01-7-01-SC

34

Section 2, Rule 11, Rules on Electronic Evidence, A.M. No. 01-7-01-SC

35

Section 1, Rule 11, Rules on Electronic Evidence, A.M. No. 01-7-01-SC

31

Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.36 If ephemeral electronic communication and recording of telephone conversation under Sec. 2, Rule 11 of the Rules on Electronic Evidence are recorded or embodied in an electronic document, then the provisions of Rule 5 (“Authentication of Electronic Documents”) shall apply. Case In the case of Nuez V Cruz-Apao37, a case involving a Court of Appeals employee who sent short message service (SMS) or text messages to a litigant demanding P1,000,000.00 in exchange for a favorable decision, was another occasion to assess the probative value of electronic evidence, this time in the form of text messages. The Court sustained the findings of the Court of Appeals investigating committee which admitted the text messages in evidence, since these are considered as “ephemeral electronic communication” by Rule 2, Sec. 1 (k) of the REE, i.e. “telephone

conversations,

text

messages…

and

other

electronic

forms

of

communication the evidence of which is not recorded or retained.” The Court found that the text messages corroborated the testimony of the complainant and his witness. The complainant was considered to have personal knowledge of the incriminating text messages and could testify on their contents, since Rule 11 Sec. 2 of the REE provides the “ephemeral electronic communications

36

Section 2, Rule 11, Rules on Electronic Evidence, A.M. No. 01-7-01-SC

37

Nuez vs Cruz Apao A.M. No. CA-05-18-P, April 12, 2005

32

shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof.”38 PAROL EVIDENCE RULE The Parol Evidence Rule is embodied in Sec. 9, Rule 130 of the Rules of Court: Sec. 9. Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

The term "agreement" includes wills. (7a) Parol evidence is any evidence aliunde (oral or written), which is intended or tends to vary or contradict a complete and enforceable agreement in a document.39 It may refer to testimonial, real or documentary evidence. “Parol” evidence means something “oral” or verbal. With reference to contracts, it means extraneous evidence or evidence aliunde.40 As used in the Rules of Court, the term refers not only to oral

38

https://obitir.wordpress.com/2013/02/20/text-messages-as-electronic-evidence/

39

Regalado, Vol. II, p. 730, 2008 ed. Black’s law Dictionary, 5th Ed., pp. 1005, 1006

40

33

but also to written evidence which are outside to the written contract between the parties.41 In other words, any oral evidence of an agreement should be excluded when the existing agreement is already in writing.

42

The rule is based on the presumption

that the parties have made the written instrument the only repository and memorial of the truth and whatever is not found in the instrument must have been waived and abandoned by the parties. Hence, parol evidence cannot serve the purpose of incorporation into the contract additional contemporaneous conditions which are not mentioned at all in the writing, unless the case falls under any of the exceptions to the rule.43 This rule was devised to give certainty to written transactions, to preserve the reliability and to protect the sanctity of written agreements. When two parties have already entered into a transaction and embodied their agreement in a written instrument, one cannot later come to Court and claim a different agreement apart from the one written in the instrument. This is the general rule. However, the law provides for a few exceptions which will be later tackled in this paper. The purpose of the Parol evidence rule is to forbid any addition to, or contradiction of, the terms of a written agreement by testimony or other evidence purporting to show that different terms were agreed upon by the parties, varying the purport of the written contract. Whatever is not found in the writing is understood to have been waived and abandoned.44 Hence, put simply, the basis of this rule is that when the parties have reduced their agreement into writing, all their previous and contemporaneous agreements on the

matter are

merged therein. The

effect would

be

that any

prior or

contemporaneous verbal agreement is not admissible to vary contradict or defeat the operation of a valid instrument.

41

Evidence (The Bar Lectures Series) Williard B. Riano, 2016 Congregations of the Religious of the Virgin Mary vs. CA, 291 SCRA 385 43 Cu vs. CA, 195 SCRA 647 44 SeaOil Petroleum Corp. v. Autocorp Group, 2008; Estrada v. Ramos, 468 SCRA 597 42

34

(a) Application of the Parol Evidence Rule The parol evidence rule only becomes operative when the issues in the litigation are the terms of a written agreement. It must be stressed that not all writings will trigger the application of the parol evidence rule. That writing must embody an agreement. Under section 9 Rule 130 of Rules of Court, the written agreement is already “considered as containing all the terms agreed upon xx.” Whatever is not found in the writing is understood to have been waived and abandoned.45

In a particular case, the Court had occasion to rule that the “writing” which embodies the agreement of the parties need not be in a particular form.46 The Court ruled against the party who wants to introduce parol evidence “overcome” the contents of the promissory note in question because he contends that such promissory note is not a public instruments with the formalities prescribed by law.47 It was held that the rule does not specify that the written agreement should be embodied in a public instrument. The Court stated in such case: “For the parol evidence to apply, a written contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes, and other instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence.”48

The requisites for the application of the parol evidence rule can be summarized as follows: 1. There must be a valid contract;

45

Edrada v. Ramos, 468 SCRA 597 Inciong, Jr. v. Court of Appeals, G.R. No. 96405, June 16, 1996, 247 SCRA 578 47 Id. 48 Id. 46

35

2. The terms of the agreement must be reduced to writing; 3. The dispute is between the parties or their successors-in-interest; and 4. There is dispute as to the terms of the agreement.

Parol Evidence Rule and Wills As previously stated, the parol evidence rule only applies to contractual obligation embodied in written instruments. However, by virtue of last paragraph of Sec. 9, Rule 130, which explicitly states that “The term "agreement" includes wills,” the parol evidence rule applies to wills in that there can be no evidence of the terms of the will other than the contents of the will itself. This is the only writing which, although not legally an agreement is considered to be one for purposes of the application of the parol evidence rule. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.49 In the law of Succession, if the ambiguity is patent, the will must be disregarded. However, if it is latent, one may look into the evidences allowed by law. These latent ambiguities must be resolved by examining the will itself. If such ambiguity cannot be resolved by the examination of the will itself, reference can be made to extrinsic evidence or the surrounding circumstance, except oral declarations of the testator. The reason behind this is that testator can no longer refute whatever is attributed to him and it is easy to fabricate.

When Parol Evidence does not apply The parol evidence rule does not apply to persons who are not parties to a deed and do not base their claim on it.50 Only the parties to the written agreement and their successors-in-interest are bound by the parol evidence rule. In example, if the object of the litigation is a contract of sale entered into by A and B, any person

49 50

Art. 783, The New Civil Code of the Philippines Eagleridge Development Corp. v. Cameron Granville 3 Asset Management Inc., 741 SCRA 557

36

who is a total stranger to the writing is not bound by the its terms and such stranger may be allowed to introduce extrinsic or parol evidence against the efficacy of the writing.51 A & B on the other hand, save for the exceptions provided under Sec. 9, Rule 130 of the Rules of Court, will not be allowed to introduce extrinsic or parol evidence to modify, explain, or add to the terms of the contract of sale entered into by them. The rule does not apply when third parties are involved or those not privy to the written instrument in question and does not base a claim or assent a right originating in the instrument.52 It must also be noted that the parol evidence rule does not apply to oral agreements. As previously stressed, for the said rule to apply, there must be an agreement embodied in a written instrument. This is explicitly stated in the first paragraph of Sec. 9, Rule 130 that “terms of an agreement have been reduced to writing.”

SPOUSES BONIFACIO AND LUCIA PARAS, vs. KIMWA CONSTRUCTION AND DEVELOPMENT CORPORATION G.R. No. 171601, April 8, 2015, Leonen, J. For parol evidence to be admitted, the party must put in issue in his pleadings any of the four exceptions under Rule 130 Sec. 9 of the Rules on Evidence. Facts: Kimwa is a construction firm that sells concrete aggregates while Lucia Paras was a concessionaire of a sand and gravel permit. They entered into an agreement where 40,000 cubic meters of aggregates were allotted by Lucia as supplier to Kimwa. Kimwa hauled 10,000 cubic meter of aggregates however, it stopped. Lucia alleged that Kimwa violated the agreement, thus she filed a complaint alleging that Kimwa approached Lucia to purchase gravel and sand but she informed them that her

51 52

Lechugas v. CA, G.R. No. L- 39972 & L-40300 (1986) id.

37

concession area was due to be rechanneled on May 15, 1995, when her Special Permit expires. Thus, she will enter into a contract provided that the 40,000 cubic meter aggregates will be extracted before May 15, 1995. Kimwa assured her that it will be hauled before such date. In its Answer, Kimwa denied committing to obtain such and asserted that the Agreement articulated that the true intention is that 40,000 cubic meters was a maximum limit and that May 15, 1995 was never set as a deadline. Invoking the Parol Evidence Rule, it insisted that Spouses Paras were barred from introducing evidence which would show that the parties had agreed differently.

Issue: Whether the Spouses Paras are allowed to introduce evidence which would show a different agreement.

Ruling: YES. Two things must be established for parol evidence to be admitted: first, that the existence of any of the four exceptions under Rule 130 Sec. 9 has been put in issue in a party's pleading or has not been objected to by the adverse party; and second, that the parol evidence sought to be presented serves to form the basis of the conclusion proposed by the presenting party. Petitioners Spouses Paras pleaded in the Complaint they filed before the trial court a mistake or imperfection in the Agreement, as well as the Agreement's failure to express the true intent of the parties. Further, respondent Kimwa, through its Answer, also responded to petitioners Spouses Paras' pleading of these issues. This is, thus, an exceptional case allowing admission of parol evidence. Accordingly, the testimonial and documentary parol evidence sought to be introduced by petitioners Spouses Paras, which attest to these supposed flaws and what they aver to have been the parties' true intent, may be admitted and considered. Respondent Kimwa is liable for failing to haul the remainder of the quantity which it was obliged to acquire from petitioner Lucia Paras.

(b) When can Parol Evidence Be Introduced The rule in prohibiting parol evidence is not absolute.

38

A party may present evidence when he desires to modify, explain or add to the terms of the written agreement53 by putting in issue in the pleadings any of the following: a) An intrinsic ambiguity, mistake or imperfection in the written agreement; An instance when evidence aliunde or parol evidence may be allowed is when an intrinsic ambiguity exists in the written agreement. It must be emphasized, however, that the mere existence of an intrinsic ambiguity will not authorize the admission of parol evidence. It is very important that the intrinsic ambiguity be put in issue in the party’s pleading. It is the raising of the issue of intrinsic ambiguity in the pleading which will authorize the introduction of parol evidence. However, even if a pleader raises as an issue the extrinsic or patent ambiguity in a contract or will, the court will not allow parol evidence to explain the ambiguity or supply the deficiency. The rule only allows parol evidence in the case of an intrinsic or latent ambiguity.54 Intrinsic or latent ambiguity is one which is not apparent on the face of the document, but which lies in the person or thing that is the subject of the document or deed. In other words, the ambiguity is intrinsic or latent when the language of the writing is clear and intelligible and suggests writing a single meaning, but some matter extraneous to the writing creates the ambiguity.55 Thus, the document is clear on its face but matters outside the agreement create the ambiguity. To illustrate, if a testator owns only one parcel of land and bequeaths that land to his grandson, described in the will as Jose Navidad, but it was discovered later that he has two grandsons with the same name, there also exists an intrinsic or latent ambiguity. Parol evidence may be introduced to prove the grandson intended in the will provided that the will’s intrinsic ambiguity is put in issue.56 If ambiguity is intermediate, both latent and patent, parol evidence is admissible57

53

Carganillo v. People, G.R. no. 182424, September 22, 2014 Evidence (The Bar Lectures Series) Williard B. Riano, 2016 55 Black’s Law Dictionary 56 Evidence (The Bar Lectures Series) Williard B. Riano, 2016 57 Regalado, citing 20 Am. Jur 1011 54

39

Mistake refers to mistake of fact which is mutual to the parties.58 The pleading does not need to specifically state words and phrases such as “mistake”, “imperfection” or failure to express the true intent of the parties.” When the other party responds to the allegations by making the proper denial, such matters have already been put in issue.59 Imperfection includes inaccurate statement in the agreement or incompleteness in the writing or the presence of inconsistent provisions. b) The failure of the written agreement to express the true intent and agreement of the parties thereto; Mistake or imperfection of the writing may be a reason for the failure of the instrument or writing to embody the intention of the parties. This does not mean, however, that the mistake or imperfection prevented the meeting of the minds between or among parties. This only means that despite the meeting of the minds, the true agreement of the parties is not reflected in the instrument.60 Fraud, inequitable conduct or accident61, ignorance, lack or skill, negligence or bad faith on the part of the person drafting the instrument62 are some other reasons enumerated in substantive law for the failure of the instrument to express the true intention of the parties. To illustrate, if a document appears to be a sale, parol evidence may be resorted to if the same does not express the true intent of the parties because it is actually a loan. The owner of the property may prove that the contract is really a loan with mortgage by raising as an issue in the pleading the fact that the document is not really a sale.63

58

BPI v. Fidelity and Surety, Co., G.R. No. L-26743 (1927) Spouses Paras v. Kimwa Construction and Development Corporation, G.R. No. 171601, April 8, 2015 60 Evidence (The Bar Lectures Series) Williard B. Riano, 2016 61 Art. 1359, Civil Code of the Philippines 62 Art. 1364, Civil Code of the Philippines 63 Madrigal v. Court of Appeals, 456 SCRA 247 59

40

The purpose thereof is to enable court to ascertain the true intention of the parties.64 When there is a meeting of the minds between the parties, but their true intention is not expressed in the instrument by any of the causes provided by law, one of the parties may ask for the reformation of the instrument.65 Reformation is given when the mistake is mutual. By mutual mistake is meant that the parties must have come to an actual oral agreement before they have attempted to reduce it to writing, which attempt fails by reason of mistake, and reformation enforces the original contract.66 In an action for reformation of the instrument, the plaintiff may introduce parol evidence to show the real intention of the parties. It presupposes that a meeting of the minds exists between the parties, i.e., there is a contract between them although the instrument that evidences the contract does not reflect the true agreement of the parties by reason of fraud or mistake. However, reformation of the instrument cannot be brought to reform simple donations interviews wherein no condition is imposed; wills; or when the real agreement is void.67 c) The validity of the written agreement; or Parol Evidence may be admitted to show: 1. True consideration of a contract; 2. Want/Illegality of consideration; 3. Incapacity of parties; 4. Fictitious/simulated contract; and 5. Fraud in inducement68

64

Tolentino v. Gonzales Sy Chiam, G.R. No. 26085 (1927) Art. 1359, Civil Code of the Philippines 66 Centenera vs. Garcia Palicio, 29 Phil. 470 67 Art. 1366, Civil Code of the Philippines 68 Regalado, Vol. II, p. 730, 2008 ed. 65

41

The rule that evidence of a parole promise cannot be shown for the purpose of enlarging or changing the written contract, where the action is one to enforce the contract is however, not applicable where the action is in fraud to rescind the contract and to prove the oral promise as the fraudulent representation which acted as the inducement to the sale. The prohibition does not apply where the purpose of the evidence is to show that no written of the parole contract ever existed, that the minds of the parties never met on the terms of such contract and that there never existed any consideration upon which such an agreement could be founded.69 d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The key words are “putting in issue” in the pleading. Unless duly pleaded, a party will be barred from offering extrinsic evidence over the objection of the adverse pleading. To justify the introduction of parol evidence a party must, for instance, establish that an alleged agreement failed to express the true intent of the parties. Until and unless this has been successfully carried out, there is no right in esse to speak of.70 The parole evidence rule does not preclude the admission of extrinsic evidence of a valid prior or contemporaneous parole agreement which is collateral both in form and substance in that, although related in general sense to the written instrument in question, it is independent thereof and does not vary or contradict the express or implied provision thereof nor invade the particular field which the instrument undertakes expressly or impliedly to cover, but instead has for its subject a matter which the parties might naturally deal with separately.71 Otherwise, without complying with the requirements, i.e., putting in issue in the pleadings, parol evidence cannot be introduced. “Provided that a party puts in issue in its pleading any of the four (4) items enumerated in the second paragraph of Sec.

69

Basic Evidence, Ricardo J. Francisco, 2017 Duvas Corporation vs. Export and Industry Bank, G.R. No. 163011, 7 June 2007 71 Basic Evidence, Ricardo J. Francisco, 2017 70

42

9, Rule 13, a party may present evidence to modify, explain or add to the terms of the agreement.”72 Moreover, the parol evidence can be waived by failure to invoke the benefits of the rule. This waiver may be made by failure to object to the introduction of evidence aliunde. Inadmissible evidence may be rendered admissible by failure to object.73 Failure to object to thew parol evidence presented by the adverse party operates as a waiver of the protection of the parol evidence rule.74 Even if parol evidence is admitted, such admission would not mean that the court would give probative value to the parol evidence. Admissibility is not the equivalent of probative value or credibility.75

National Irrigation Administration vs. Gamit G.R. No. 85869 November 6, 1992

PAROL EVIDENCE: Testimony of Gamit alleging mistake and fraud

FACTS: In a contract of lease, Gamit leased 30,000 sqm. of his land to National Irrigation Admin for 10 yrs. However, Gamit alleged that the contract of lease entered into, by and between him and NIA does not express the real agreement or intention of the parties, as there was error or mistake of fact on the part of Gamit, aggravated by his state of financial distress at the time the contract was signed, and NIA acted fraudulently or inequitably, exercising undue influence over him on account of the latter's financial distress, in such a way that their real agreement was not reflected or expressed in the contract of lease signed by the parties. According to Gamit, the real agreement or intention of the parties was only for the lease of the twenty five

72

Spouses Paras v. Kimwa Construction and Development Corporation, G.R. No. 171601 Santiago v. Court of Appeals, 278 SCRA 98 74 Willex Plastic Industries Corporation v. Court of Appeals, 256 SCRA 478 75 Evidence (The Bar Lectures Series) Williard B. Riano, 2016 73

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(25,000) thousand square meters by defendant at the rate of P0.10 centavos per square meter, for a period of ten (10) years from date of execution with the right of defendant to purchase the area upon the termination of the lease, on a price certain or consideration to be negotiated and agreed upon, by and between the parties after the lapse of the ten (10) year period. Gamit further alleged that it was not the real agreement or intention of the parties, at least that of herein plaintiff, to have the rentals paid as forming part of the purchase price later to be negotiated or agreed upon, much less was it their intention at least on the part of herein plaintiff, that the price shall, not exceed P25,000.00, otherwise, there will be a gross inadequacy of the purchase price, enough to shock the conscience of man and that of the court; that it was not also the intention or agreement of the parties, at least that of herein plaintiff, that in case the lease contract is not renewed after the lapse of the ten (10) year period, for failure of the parties to make bilateral communication, the lessor or his successors or assigns are deemed to have allowed continued use of the land in suit without any additional compensation whatsoever and neither was it the true agreement or real intention the parties, at least on the part of herein plaintiff, that upon payment of the rental amount of P25,000.00, herein plaintiff shall be deemed to have conveyed and ceded all his rights and interest on the subject property, in favor of herein defendant.

ISSUE: Whether the parol evidence is admissible in this case HELD: Yes. As a general rule, parol evidence is not admissible for the purpose of varying the terms of a contract. However, when the issue that a contract does not express the intention of the parties and the proper foundation is laid therefor — as in the present case — the court should hear the evidence for the purpose of ascertaining the true intention of the parties. From the foregoing premises, we hold that the trial court erred in holding that the issue in this case is a question of law and not a question of fact because it merely involves the interpretation of the contract between the parties. The lower court erred in not conducting a trial for the purpose of determining the true intention of the parties. It failed to appreciate the distinction between interpretation and reformation

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of contracts. While the aim in interpretation of contracts is to ascertain the true intention of the parties, interpretation is not, however, equivalent to reformation of contracts. "Interpretation" is the act of making intelligible what was before not understood, ambiguous, or not obvious. It is a method by which the meaning of language is ascertained. The "interpretation" of a contract is the determination of the meaning attached to the words written or spoken which make the contract. On the other hand, "reformation" is that remedy in equity by means of which a written instrument is made or construed so as to express or conform to the real intention of the parties. In granting reformation, therefore, equity is not really making a new contract for the parties but is confirming and perpetuating the real contract between the parties which, under the technical rules of law, could not be enforced but for such reformation. As aptly observes by the Code Commission, the rational of the doctrine is that it would be unjust and inequitable to allow the enforcement of a written instrument which does not reflect or disclose the real meeting of the minds of the parties. Since the complaint in the case at bar raises the issue that the contract of lease does not express the true intention or agreement of the parties due to mistake on the part of the plaintiff (private respondent) and fraud on the part of the defendant (petitioner), the court a quo should have conducted a trial and received the evidence of the parties for the purpose of ascertaining the true intention of the parties when they executed the instrument in question.

(c) Distinctions between the best evidence rule and parol evidence rule Best Evidence Rule

Parol Evidence Rule

45



Under the best evidence evidence



Parol

evidence

rule,

generally

the

rule, generally the original document

document presented in court may not be

is required to be presented in court

the original document. when the issue is

except under circumstances provided

won

by law.

executed or circumstances surrounding

such

document

was

actually

its execution.



Secondary evidence is not admitted in



lieu of the original if such is available.

Precludes evidence

the to

admission

prove

the

of

terms

other of

a

document other than the contents of the document itself for the purposes of varying the terms of the writing.



In application, it does not apply to all



types of evidence, it only applies when

Applies to contracts or agreements where the parties agreed to set forth in writing.

the evidence is documentary and the contents of the document is subject to the inquiry 

This does not apply when the issue is



This does not apply to oral contracts.



This rule forbids any addition to or

the execution or existence or the circumstances

surrounding

its

execution. (Arceo vs People, 495 SCRA 204)

•

•

As to purpose, this rule ensures that the exact content of the document is

contradiction to the terms of the written

brought before the court.

agreement

Extrinsic or material aspect

evidence purporting to show different

by

testimony

or

other

terms agreed upon by the parties I

46

•

Substantial hazard of inaccuracy in

conflict to the written contract. Intrinsic

the human process of making a

aspect.

another copy.



(Seaoil Petroleum Corp. vs Auto corp group, 569 SCRA 387)

•

As to purpose, insurance against



Designed to give certainty to written

fraud, protects against misleading

agreements of transactions. To preserve

inferences

their reliability and protect their sanctity.

resulting

from

the

Un/intentional introduction of selected portion of a larger set of writings. •

Republic vs Mupas,

•

Gr 181892



Can be invoked by any party to an



Can be invoked only by parties who have

action whether or not he participated

privity to the contract or any person

in the writing involved.

affected thereby. Real party in interest.

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