2008 Bar Questions and Answers

7/30/2019 2008 Bar Questions and Answers

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May 1, 2009

Suggested Answers to Bar Exam Questions 2008 on

Mercantile Law

DISCLAIMER: Please verify correctness of answers using your own sources.

I

X corporation entered into a contract with PT Contruction Corp. for the latter to construct

and build a sugar mill within six (6) months. They agreed that in case of delay, PT

Construction Corp. will pay X Corporation P100,000 for every day of delay. To ensure

payment of the agreed amount of damages, PT Construction Corp. secured from Atlantic

Bank a confirmed and irrevocable letter of credit which was accepted by X Corporation in

due time. One week before the expiration of the six (6) month period, PT Construction

Corp. requested for an extension of time to deliver claiming that the delay was due to the

fault of X Corporation. A controversy as to the cause of the delay which involved the

workmanship of the building ensued. The controversy remained unresolved. Despite the

controversy, X Corporation presented a claim against Atlantic Bank by executing a draft

against the letter of credit.

1. Can Atlantic Bank refuse payment due to the unresolved controversy? Explain.

(3%)

2. Can X Corporation claim directly from PT Construction Corp.? Explain. (3%)

SUGGESTED ANSWER:

1. No, Atlantic Bank cannot refuse payment.

Under the independence principle of letters of credit, the issuing bank is obliged to pay a draft

drawn by the beneficiary upon tender of the required documents without need of examining themain contract, the letter of credit being an independent undertaking by the bank.

In the given case, the unresolved controversy as to the cause of the delay in the main contractdoes not in any way affect Atlantic Bank's obligation under the letter of credit. This is especially

true since the letter of credit is designated as irrevocable, which, thus, makes definite the bank's

undertaking to pay.

Hence, considering that all the required documents have been tendered by X Corporation,Atlantic Bank cannot validly refuse to pay.

2. Yes, X Corporation may directly claim from PT Construction Corp.

Under the Civil Code, which is suppletory to the Code of Commerce, a contract, once perfectedbinds the parties not only to the fulfillment of what has been stipulated but also to all the

consequences which according to their nature may be in keeping with good faith, usage and law.
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A careful perusal of the contract between X Corporationand PT Construction Corp. reveals the

intention of the parties to make the letter of credit answerable for damages occasioned by thelatter's delay. At the same time, there is no showing that this is the only remedy available to X

Corporation.

Hence, a claim against the letter of credit is merely an alternative recourse and does not in any

way prevent X Corporation from claiming directly against PT Construction Corp. (Transfield

Phils. Inc. vs. Luzon Hydro Corporation, G.R. No. 146717, Nov. 22, 2004)

II

Tom Cruz obtained a loan of P 1 Million from XYZ Bank to finance his purchase of 5,000

bags of fertilizer. He executed a trust receipt in favor of XYZ Bank over the 5,000 bags of

fertilizer. Tom Cruz withdrew the 5,000 bags from the warehouse to be transported to

Lucena City where his store was located. On the way, armed robbers took from Tom Cruz

the 5,000 bags of fertilizer. Tom Cruz now claims that his obligation to pay the loan to XYZ

Bank is extinguished because the loss was not due to his fault. Is Tom Cruz correct?

Explain. (4%)

SUGGESTED ANSWER:

No, Tom Cruz is not correct.

Under the Trust Receipts Law, the entrustee is liable for loss of the goods whether or not he is

negligent. Moreover, in a trust receipt transaction where a loan feature is involved, the obligation

for the loan is not extinguished until such loan is paid.

In the present case, the fact that the stealing of the goods was not Tom Cruz' fault does not

exculpate him from liability. This is especially true since the goods subject of the trust receipttransaction serves only as security for the payment of the loan. The loss of the security did not

impair XYZ Bank's title to the goods, which can only be extinguished once Tom Cruz pays the

advancement made.

Hence, it is not correct for Tom Cruz to avoid liability under the trust receipt on the premise that

the goods are lost without his fault.

III

1. As a rule under the Negotiable Instruments Law, a subsequent party may hold a

prior party liable but not vice-versa. Give two (2) instances where a prior party may

hold a subsequent party liable. (2%)

2. How does the "shelter principle" embodied in the Negotiable Instruments Law

operate to give the rights of a holder-in-due course to a holder who does not have

the status of a holder-in-due course? Briefly explain. (2%)

SUGGESTED ANSWER:1. The following are two (2) instances where a prior party may hold a subsequent party liable:

When the subsequent party is guilty of fraud as in the case of the author of the forgery

who is liable not only to the person whose signature he forged but also to all other partiesprejudiced by his forgery


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When the subsequent party is an accommodated party, the accommodating party, even

though a prior party, may hold him liable

2. Under the "shelter principle," the holder-in-due course, by negotiating the instrument, to aparty not a holder-in-due course, transfers all his rights as such holder to the latter, who thus

acquires the right to enforce the instrument as if he was a holder-in-due course. However, thisprinciple presupposes that the "sheltered" holder is not a party to any fraud or illegality impairingthe validity of the instrument.

IV

AB Corporation drew a check for payment to XY Bank. The check was given to an officer

of AB Corporation who was instructed to deliver it to XY Bank. Instead, the officer,

intending to defraud the Corporation, filled up the check by making himself as the payee

and delivered it to XY Bank for deposit to his personal account. AB Corporation came to

know of the officer's fraudulent act after he absconded. AB Corporation asked XY Bank to

recredit its amount. XY Bank refused.

1. If you were the judge, what issues would you consider relevant to resolve the case?

Explain (3%)

2. How would you decide the case? Explain. (2%)

SUGGESTED ANSWER:

1. If I were the judge, I would consider the following issues as relevant to the case:

Whether or not AB Corporation is negligent

If so, whether or not such negligence is the proximate cause

Whether or not there is contributory negligence on the part of XY Bank

2. AB Corporation must bear the loss.

The Negotiable Instruments Law provides that where an instrument is wanting in any material

particular,the person in possession thereof has prima facie authority to complete it by filling up

the blanks therein. This rule is founded upon the principle that where one of two persons mustsuffer by the bad faith of another, the loss must fall upon the one who first reposed confidence

and made it possible for the loss to occur.

Applying said principle to the case at bar, although AB Corporation cannot necessarily be faulted

for placing confidence on its own officer, the fact remains that such act is the proximate cause of

the loss. Moreover, there is no showing that XY Bank is likewise negligent. By the very nature

of negotiable instruments, one is not obligated to inquire beyond what appears on its face.

Hence, as between the drawer AB Corporation and drawee XY Bank, the former bears the loss.

V

Pancho drew a check to Bong and Gerard jointly. Bong indorsed the check and also forged

Gerard's endorsement. The payor bank paid the check and charged Pancho's account for

the amount of the check. Gerard received nothing from the payment.


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1. Pancho asked the payor bank to recredit his account. Should the bank comply?

Explain fully. (3%)

2. Based on the facts, was Pancho as drawer discharged on the instrument? Why?(2%)

SUGGESTED ANSWER:

1. Yes, the payor bank should comply.

Basic is the rule that if the payee's indorsement is forged, the drawee bank cannot debit thedrawer's account and the drawee bank shall bear the loss.

In the case at bar, it was the indorsement of Gerard, one of the joint payees, which was forged. Inthe first place, the payor bank had no right to pay the check due to such forgery. In the second

place, the fiduciary nature of their relationship requires the bank to treat the accounts of its

depositors with meticulous care. By paying the check where the payee's signature is forged, thebank is obviously wanting in that degree of care required by the nature of its functions.

Hence, the payor bank is obliged to recredit Pancho's account.

2. Yes, Pancho was discharged.

Under the Negotiable Instruments Law, a person secondarily liable may be discharged by any actwhich discharges the instrument. One of the acts that discharges the instrument is payment made

in due course by or in behalf of the principal debtor. The same law provides that payment in due

course is one made at or after maturity to the holder in good faith and without notice that title isdefective.

The facts of the case reveal that payment by payor bank to Bong is one made in due course, it

being made at or after maturity to the holder (Bong) in good faith and without notice that his titleis defective.

Such being the case, the negotiable instrument is discharged, which in turn discharges Pancho, asdrawer, from his secondary liability.

VI

On January 1, 2000, Antonio Rivera secured a life insurance from SOS Insurance Corp.

for P1 Million with Gemma Rivera, his adopted daughter, as the beneficiary. Antonio

Rivera died on March 4, 2005 and in the police investigation, it was ascertained that

Gemma Rivera participated as an accessory in the killing of Antonio Rivera. Can SOS

Insurance Corp. avoid liability by setting up as a defense the participation of Gemma

Rivera in the killing of Antonio Rivera? Discuss with reasons. (4%)

SUGGESTED ANSWER:

No, SOS Insurance Corp. cannot avoid liability by setting up as defense the participation ofGemma Rivera in the killing of Antonio Rivera.

Although the Insurance Code provides that the interest of the beneficiary in a life insurancepolicy shall be forfeited when the beneficiary is the principal, accomplice, or accessory in


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willfully bringing about the death of the insured, the same law also provides that in such an

event, the nearest relative of the insured shall receive the proceeds of said insurance if not

otherwise disqualified.

The facts of the case reveal that Gemma Rivera's participation as accessory is only based on the

findings of a police investigation. In other words, there is yet no final judgment of conviction.But assuming arguendo that a mere police investigation is enough to disqualify Gemma, the fact

remains that the law itself provides that the insurance proceeds shall pertain to the nearest

relatives of the insured.

Hence, all premises considered, the insurer cannot therefore escape liability by simply raising the

defense of Gemma's participation as an accessory to the crime.

VII

Terrazas de Patio Verde, a condominium building, has a value of P50 Million. The owner

insured the building against fire with three (3) insurance companies for the following

amounts:Northern Insurance Corp. - P20 MillionSouthern Insurance Corp. - P30 Million

Eastern Insurance Corp. - P50 Million

1. Is the owner's taking of insurance for the building with three (3) insurers valid?

Discuss. (3%)

2. The building was totally razed by fire. If the owner decides to claim from Eastern

Insurance Corp. only P50 Million, will the claim prosper? Explain. (2%)

SUGGESTED ANSWER:

1. Yes, as a general rule, the owner's taking of insurance for the building with three (3) insurers

is valid.This is a case of double insurance where the same person is insured by several insurersseparately in respect to the same subject and interest.

Under the Insurance Code, such an arrangement is not prohibited per se, although parties may

agree upon an "other insurance" clause, in which case the insured may be prohibited from takingadditional insurance without the insurer's consent.

In the present case, it does not appear that the parties agreed on an other insurance clause. Hence,in the absence of any showing that such a restriction exists, there is nothing to prevent the

insured from taking another insurance over the same property, subject only to the caveat that he

cannot recover more than the value of his interest in the thing insured.

2. Yes, the claim will prosper.

In case double insurance, the insured has the option to go after any one of the insurers unless thepolicy itself provides that insurers contribute ratably to the loss. In either case, he cannot recover

more than the value of his insurable interest.

In the case at bar, the insured, as owner, has an insurable interest up to P50 Million, the value of

the building. That being the case, he can therefore claim the entire P50 Million from Eastern

Insurance Corp. In turn, by the principle of contribution which applies in case of over-insurancedue to double insurance, Eastern Insurance Corp. may require the other insurers to contribute


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ratably to the loss, considering that they separately insure the same interest against the same

peril.

VIII

City Railways, Inc. (CRI) provides train services, for a fee, to commuters from Manila to

Calamba, Laguna. Commuters are required to purchase tickets and then proceed todesignated loading ang unloading facilities to board the train. Ricardo Santos purchased a

ticket for Calamba and entered the station. While waiting, he had an altercation with the

security guard of CRI leading to a fistfight. Ricardo Santos fell on the railway just as a

train was entering the station. Ricardo Santos was run over by the train. He died. In the

action for damages filed by the heirs of Ricardo Santos, CRI interposed lack of cause of

action, contending that the mishap occurred before Ricardo Santos boarded the train and

that it was not guilty of negligence. Decide.(5%)

SUGGESTED ANSWER:The contention of CRI is not tenable.

Under the law, the degree of care required of a common carrier is extraordinary diligence or theobligation to carry the passenger safely as far as human care and foresight can provide, using the

utmost diligence of very cautious persons with due regard to all the consequences. Thus, in case

of death or injury to passengers, the common carrier is presumed negligent and upon him rests

the burden of proof of exercise of extraordinary diligence. The duty to exercise extraordinarydiligence attaches from the moment the person who purchases the ticket from the carrier presents

himself at the proper place and in a proper manner to be transported.

In the given case, there is no doubt that CRI is a common carrier for the reason that it is engaged

in the business of transporting passengers by land, for compensation, offering its services to the

public. As such, it is required to exercise extraordinary diligence and this responsibility attachedfrom the moment Ricardo Santos purchased the ticket and entered the station. When Ricardo

died while he was within the premises of CRI, the latter is presumed to be at fault. This is true

even if Ricardo has not yet boarded the train, so long as he has presented himself to the carrier atthe proper place and in a proper manner.

Hence, CRI, as a common carrier, is liable to the heirs of Ricardo Santos.

IX

On October 30, 2007, M/V Pacific, a Philippine registered vessel owned by Cebu Shipping

Company (CSC), sank on her voyage from Hong Kong to Manila. Empire Assurance

Company (Empire) is the insurer of the lost cargoes loaded on board the vessel which were

consigned to Debenhams Company. After it indemnified Debenhams, Empire as subrogeefiled an action for damages against CSC.

1. Assume that the vessel was seaworthy. Before departing, the vessel was advised by

the Japanese Meteorological Center that it was safe to travel to its destination. But

while at sea, the vessel received a report of a typhoon moving within its general

path. To avoid the typhoon, the vessel changed its course. However, it was still at the

fringe of the typhoon when it was repeatedly hit by huge waves, foundered and

eventually sank. The captain and the crew were saved except three (3) who perished.


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Is CSC liable to Empire? What principle of maritime law is applicable? Explain.

(3%)

2. Assume the vessel was not seaworthy as in fact its hull had leaked, causing flooding

in the vessel. Will your answer be the same? Explain. (2%)

3. Assume the facts in question (b). Can the heirs of the three (3) crew members who

perished recover from CSC? Explain fully. (3%)

SUGGESTED ANSWER:

1. No, CSC is not liable to Empire.

The principle of maritime law applicable is the Doctrine of Limited Liability. Under this rule, the

exclusively real and hypothecary nature of maritime law operates to limit the liability of the

shipowner to the value of the vessel, earned freightage and proceeds of insurance if any. Hence,the phrase "NO VESSEL, NO LIABILITY." Total destruction or sinking of the vessel

extinguishes the maritime lien as there is no longer any res to which it can attach.

This doctrine is applicable in the case because, as the facts reveal, the ship sank and was totally

lost. The exception that the carrier failed to overcome the presumption of negligence is not

obtaining as in fact CSC was able to prove that the ship was seaworthy. Moreover, the loss is due

to a typhoon -- a fortuitous event, which is one of the exempting circumstances when the carriercan avoid liability.

Hence, CSC is not liable under the Doctrine of Limited Liability.

2. No, my answer will not be the same.

While as a rule, the shipowner's liability is limited only to the value of the vessel so that loss of

the vessel operates to extinguish his liability, the same rule has no application when the carrierfailed to overcome the presumption of negligence. Such presumption is only rebutted when the

carrier establishes that the vessel is seaworthy.

According to the facts of the case, the vessel is not seaworthy. Absent this requirement of

seaworthiness of the vessel, CSC has failed to overcome the presumption of negligence.

Hence, the Doctrine of Limited Liability is inapplicable and CSC is liable for the loss.

3. Yes, the heirs of the three (3) crewmembers who perished can recover from CSC. This is

because another exception to the applicability of the Limited Liability Rule is Workmen's

Compensation Claims.

However, in this case, the heirs cannot go after CSC directly since their claim based on

workmen's compensation would have be to be filed with the Social Security System (SSS). After

paying said claims, the SSS is subrogated to their rights and is thus entitled to go after CSC. Ineither case, CSC cannot raise the defense that its liability is limited to the value of his vessel.

X


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Nelson owned and controlled Sonnel Construction Company. Acting for the company,

Nelson contracted the construction of a building. Without first installing a protective net

atop the sidewalks adjoining the construction site, the company proceeded with the

construction work. One day a heavy piece of lumber fell from the building. It smashed a

taxicab which at that time had gone offroad and onto the sidewalk in order to avoid thetraffic. The taxicab passenger died as a result.

1. Assume that the company had no more account and property in its name. As

counsel for the heirs of the victim, whom will you sue for damages, and what theory

will you adopt? (3%)

2. If you were the counsel for Sonnel Construction, how would you defend your client?

What would be your theory? (2%)

3. Could the heirs hold the taxicab owner and driver liable? Explain. (2%)

SUGGESTED ANSWER:

1. As counsel for the heirs of the victim, I will sue Nelson as owner of Sonnel ConstructionCompany using the Doctrine of Piercing the Veil of Corporate Fiction.

As a general rule, the liability of a corporation is separate and distinct from that of the persons

comprising it. However, as an exception to the rule, the veil of corporate fiction may be pierced

when the separate personality of the corporation is used as a shield to avoid a clear legalobligation. In such an event, it is treated as a mere association of persons upon whom liability

attaches.

In the given case, Sonnel Construction Company has a clear legal obligation to the heirs of the

victim for its negligence in not installing a protective net atop the sidewalk before beginning

construction. Nelson, as owner of the company, cannot use the separate entity rule in order toavoid liability. This is especially true when the company had no more account and propertyunder its name.

2. If I were the counsel of Sonnel Construction, I would raise the defense of due diligence in theselection and supervision of its employees.

Under the doctrine of vicarious liability of employers, the employer may be relieved ofresponsibility for the negligent acts of their employees if they can show that they observed all the

diligence of a good father of a family to prevent damage.

In the given case, Sonnel Construction, as employer, may prove due diligence in the selectionand supervision of its employees by establishing that prior to hiring, it examined them as to their

qualifications, experience and service records and during the course of employment, it

formulated standard operating procedures, monitored their implementation and imposeddisciplinary measures for breaches thereof.

3. Yes, the heirs may hold the taxicab owner and the driver liable.


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As regards the taxicab owner, the heirs have two concurrent causes of action based on the

vicarious liability of an employer and based on contractual breach. In the first, the negligence of

the driver gives rise to the presumption of negligence of the taxicab owner as its employer. In thesecond, there is a contract of carriage between the taxicab owner and its passenger and the

breach thereof by the former gives rise to the presumption that it failed to exercise extraordinary

diligence.

In addition, the heirs also have two concurrent causes of action against the driver. First, they may

hold the driver criminally liable for reckless imprudence resulting in homicide. In which case,the taxicab owner is also subsidiarily liable in case the driver becomes insolvent. Second, the

heirs may likewise sue the driver for damages based on tort.

All four cases may be pursued separately and simultaneously for they are independent of eachother. The only caveat is that the plaintiff may not recover twice for the same negligent act.

XI

1. Since February 8, 1935, the legislature has not passed even a single law creating a

private corporation. What provision of the Constitution precludes the passage ofsuch a law? (3%)

2. May the composition of the board of directors of the National Power Corporation

(NPC) be validly reduced to three (3)? Explain your answer fully. (2%)

SUGGESTED ANSWER:

1. Section 16, Article XII of the 1987 Constitution provides that Congress shall not, except by

general law, provide for the formation, organization, or regulation of private corporations.

Government-owned or controlled corporations may be created or established by special chartersin the interest of the common good and subject to the test of economic viability.

2. Yes, the composition of the board of directors of the NPC may be validly reduced to three (3).

The NPC is a government-owned or controlled corporation (GOCC) governed by its own charter.

The limitation under the Corporation Code that the number of directors be not less than five (5)

but not more than fifteen (15) does not apply to a GOCCthat has its own charter.

XII

Pedro owns 70% of the subscribed capital stock of a company which owns an office

building. Paolo and Juan own the remaining stock equally between them. Paolo also owns a

security agency, a janitorial company and a catering business. In behalf of the office

building company, Paolo engaged his companies to render their services to the office

building. Are the service contracts valid? Explain. (4%)

SUGGESTED ANSWER:

Yes, the service contracts are valid.

Under the Corporation Code, contracts entered into by interlocking directors are valid if the

interest of the interlocking director in one corporation is nominal -- that is, less than 20% of theoutstanding capital stock -- and provided that the following conditions are met:


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the presence of such director in the board meeting approving the contract was not

necessary to constitute a quorom

his vote was not necessary to approve the contract

the contract is fair and reasonable under the circumstances.

According to the facts of the case, Pedro owns 70% of the stocks, leaving 30% to be divided

equally between Juan and Paolo. This shows that Paolo owns only a nominal interest of 15%.

Hence, provided that all the other conditions are met, Paolo's service contracts with the company

are valid.

XIII

Grand Gas Corporation, a publicity listed company, discover after extensive drilling a rich

deposit of natural gas along the coast of Antique. For five (5) months, the company did not

disclose the discovery so that it could quietly and cheaply acquire neighboring land and

secure mining information. Between the discovery and its disclosure of the information to

the Securities and Exchange Commission, all the directors and key officer of the company

bought shares in the company at very low prices. After the disclosure, the price of the

shares went up. The directors and officers sold their shares at huge profits.

1. What provision of the Securities Regulation Code (SRC) did they violate, if any?

Explain. (4%)

2. Assuming that the employees of the establishment handling the printing work of

Grand Gas Corporation saw the exploration reports which were mistakenly sent to

their establishment together with other materials to be printed. They too bought

shares in the company at low prices and later sold them at huge profits. Will they be

liable for violation of the SRC? Why? (3%)

SUGGESTED ANSWER:

1. The directors and key officers violated the provisions prohibiting insider trading.

Under the Securities Regulation Code, it shall be unlawful for an insider to sell or buy a security

of the issuer, while in possession of material information with respect to the issuer or the security

that is not generally available to the public.

In the given case, the directors and key officers are such insiders, they being directors and

officers of Grand Gas Corporation, the issuer. As such, their act of purchasing company shareswhile in possession of material non-public information.

Hence, the directors and key officers are guilty of insider trading in violation of the Securities

Regulation Code.

2. Yes, they are liable.

Under the Securities Regulation Code, a person whose relationship or former relationship to the

issuer gives or gave him access to material information about the issuer or security that is not


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generally available to the public is likewise an insider.

In the case at bar, it can be readily seen that the employees of the printing company received thematerial information through its relationship with Grand Gas Corporation as its printer. They are

therefore insiders. When they purchased the shares while in possession of material non-public

information, they committed insider trading.

Hence, they can be held liable for violation of the Securities Regulation Code.

XIV

Ace Cruz subscribed to 100,000 shares of stock of JP Development Corporation, which has

a par value of P1 per share. He paid P25,000 and promised to pay the balance before

December 31, 2008. JP Development Corporation declared a cash dividend on October 15,

2008, payable on December 1, 2008.

1. For how many shares is Ace Cruz entitled to be paid cash dividends? Explain. (2%)

2. On December 1, 2008, can Ace Cruz compel JP Development Corporation to issue

to him the stock certificate corresponding to the P25,000 paid by him? (2%)

SUGGESTED ANSWER:

1. Ace Cruz is entitled to be paid cash dividends for his entire subscribed shares of 100,000.

Under the Corporation Code, holders of subscribed shares not fully paid which are notdelinquent shall have all the rights of a stockholder. This includes the proprietary right of the

stockholder to receive dividends based on his total subscription.

2. No, Ace Cruz cannot compel JP Development Corporation to issue to him the stock certificate.

The Corporation Code provides that no certificate of stock shall be issued to a subscriber until

the full amount of his subscription together with interest and expenses (in case of delinquentshares) if any is due, has been paid.

XV

Eloise, an accomplished writer, was hired by Petong to write a bimonthly newspaper

column for Diario de Manila, a newly-established newspaper of which Petong was the

editor-in-chief. Eloise was to be paid P1,000 for each column that was published. In the

course of two months, Eloise submitted three columns which, after some slight editing,

were printed in the newspaper. However, Diario de Manila proved unprofitable and closed

only after two months. Due to the minimal amounts involved, Eloise chose not to pursue

any claim for payment from the newspaper, which was owned by New Media Enterprises.

Three years later, Eloise was planning to publish an anthology of her works, and wanted to

include the three columns that appeared in the Diario de Manila in her anthology. She asks

for your legal advice:

1. Does Eloise have to secure authorization from New Media Enterprises to be able to

publish her Diario de Manila columns in her own anthology? Explain fully. (4%)


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2. Assume that New Media Enterprises plans to publish Eloise's columns in its own

anthology entitled, "The Best of Diaro de Manila." Eloise wants to prevent the

publication of her columns in that anthology since she was never paid by the

newspaper. Name one irrefutable legal arguments Eloise could cite to enjoin New

Media Enterprises from including her columns in its anthology. (2%)

SUGGESTED ANSWER:

1. Yes, Eloise has to secure authorization from New Media Enterprise.

In case of a work by an author during and in the course of his employment, the copyright shall

belong to the employer, if the work is the result of his regular duties, even if the employee usesthe time, facilities and materials of the employer.

The facts reveal that Eloise created the works in question during the course of her employmentwith New Media Enterprises. Anent the fact that she was specifically hired by Petong to write a

bimonthly column, the said works are the result of her regular duties.

Hence, being a mere employee, Eloise is not the owner of the copyright and must therefore

secure the authority of the real owner before she can publish the works in her own anthology.

2. Eloise can invoke her moral rights in her works.

Although copyright over the works belong to the employer, the author of the work shall,

independently of the economic rights, have moral rights in her works. This includes the right tomake alterations to her work prior to, or withhold it from publication.

In the given case, Eloise as the true author continues to hold moral rights in her works, regardless

of the fact that New Media Enterprises owns the economic rights thereto.

Hence, she may enjoin New Media Enterprises from publishing her columns by invoking her

moral rights as author.

XVI

In 1999, Mocha Warm, an American musician, had a hit rap single called Warm Warm

Honey which he himself composed and performed. The single was produced by a

California record company, Galactic Records. Many noticed that some passages from

Warm Warm Honey sounded eerily similar to parts of Under Hassle, a 1978 hit song by the

British rock band Majesty. A copyright infringement suit was filed in the United States

against Mocha Warm by Majesty. It was later settled out of court, with Majesty receiving

attribution as co-author of Warm Warm Honey as well as a share in the royalties. By 2002,

Mocha Warm was nearing bankruptcy and he sold his economic rights over Warm Warm

Honey to Galactic Records for $10,000In 2008, Planet Films a Filipino movie producingcompany, commissioned DJ Chef Jean, a Filipino musician, to produce an original re-mix

of Warm Warm Honey for use in one of its latest films, Astig!. DJ Chef Jean remixed

Warm Warm Honey with salsa beat and interspersed as well a recital of a poetic stanza by

John Blake, a 17th century Scottish poet. DJ Chef Jean died shortly after submitting the

remixed Warm Warm Honey to Planet Films.Prior to the release of Astig!, Mocha Warm


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learns of the remixed Warm Warm Honey and demands that he be publicity identified as

the author of the remixed song in all the CD covers and publicity releases of Planet Films.

1. Who are the parties or entities entitled to be credited as author of the remixed

Warm Warm Honey? Reason out your answer. (3%)

2. Who are the particular parties or entities who exercise copyright over the remixed

Warm Warm Honey? Explain. (3%)

SUGGESTED ANSWER:1. The parties or entities entitled to be credited as author of the remixed Warm Warm Honey are

the following:

Mocha Warm, because as author, he has the moral right of attribution, which exists

independently of any grant of an assignment or license with respect to his economic

rights

Majesty, because as co-author, it is one of the original owners of the copyright and as

such has the right to be credited as author

DJ Chef Jean, because as an author commissioned to produce a derivative work, he

enjoys all the rights of a copyright holder as though it were a new work, withoutprejudice to any subsisting copyright over the original works

2. The parties or entities who exercise copyright over the remixed Warm Warm Honey are the

following:

DJ Chef Jean, as producer, for purposes of exhibition, and also as author commissioned

to produce a derivative work, he also exercises copyright over the work for all other

purposes.

Galactic Records, as owner of a subsisting copyright over the original work

Majesty, as author of the original work

XVII

On January 1, 2008, Al obtained a loan of P10,000 from Bob to be paid on January 30,

2008, secured by a chattel mortgage on a Toyota motor car. On February 1, 2008, Al

obtained another loan of P10,000 from Bob to be paid on February 15, 2008. he secured

this by executing a chattel mortgage on a Honda motorcycle. On the due date of the first

loan Al failed to pay. Bob foreclosed the chattel mortgage but the car was bidded for

P6,000 only. Al also failed to pay the second loan due on February 15, 2008. Bob filed an

action for collection of sum of money. Al filed a motion to dismiss claiming that Bob should

first foreclose the mortgage on the Honda motorcycle before he can file the action for sum

of money. Decide with reasons. (4%)

SUGGESTED ANSWER:

The motion to dismiss must be denied.Under the Chattel Mortgage Law, the mortgagee has tworemedies in case of default. He may file a collection suit or he may foreclose the chattel

mortgage with right to recover any deficiency. These remedies are alternative and neither one is

a condition sine qua non of the other.In the given case, Bob chose to file an action for collectionof sum of money. The law itself provides for this remedy to the mortgagee and nothing in its

language suggests that before such a remedy is availed of, there must first be foreclosure.Hence,


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all premises considered, the motion to dismiss is without merit because foreclosure is not

necessary for an action for collection of sum of money.

XVIII

1. Can a distressed corporation file a petition for corporate rehabilitation after the

dismissal of its earlier petition for insolvency? Why? (2%)

2. Can the corporation file a petition for rehabilitation first, and after it is dismissedfile a petition for insolvency? Why? (2%)

3. Explain the key phrase "equality is equity" in corporate rehabilitation proceedings.

(2%)

SUGGESTED ANSWER:

1. Yes, a distressed corporation can file a petition for corporate rehabilitation after the dismissal

of its earlier petition for insolvency. This is because a petition for corporate rehabilitation isgranted upon different grounds as a petition for insolvency. It is possible that the petition for

insolvency was not granted because the ground relied upon is insufficient to warrant a

declaration of a state of insolvency, but that the same ground may be obtaining in a petition forcorporate rehabilitation.

2. Yes, the corporation can file a petition for corporate rehabilitation first and after it is

dismissed, file a petition for insolvency, for the same reason as above. The grounds relied uponare different. For as long as the first petition is no longer pending but is already terminated, the

second petition based on a ground incompatible with the first may still be filed.

3. "Equality is equity" means that whenever a distressed corporation asks the Securities and

Exchange Commission for rehabilitation and suspension of payments, preferred creditors may no

longer assert preference, but shall stand in equal footing with other creditors. It is for this reasonthat during corporate rehabilitation, all pending claims, whether secured or unsecured, are

suspended. However, the preferred status of secured creditors still remain so that when thecorporation is declared insolvent and its assets are distributed, the secured creditors continue to

be preferred over the unsecured ones.

XIX

Industry Bank, which has a net worth of P1 Billion, extended a loan to Celestial Properties

Inc. amounting to P270 Million. The loan was secured by a mortgage over a vast

commercial lot in the Fort Bonifacio Global City, appraised at P350 Million. After audit,

the Bangko Sentral ng Pilipinas gave notice that the loan to Celestial Properties exceeded

the single borrower's limit of 25% of the bank's net worth under a recent BSP Circular. In

light of other previous similar violations of the credit limit requirement, the BSP advised

Industry Bank to reduce the amount of the loan to Celestial Properties under pain of severesanctions. When Industry Bank informed Celestial Properties that it intended to reduce the

loan by P50 Million, Celestial Properties countered that the bank should first release a part

of the collateral worth P50 Million. Industry Bank rejected the counter-proposal, and

referred the matter to you as counsel. How would you advise Industry Bank to proceed,

with its best interest in mind? (5%)


15/15

SUGGESTED ANSWER:

I would advise Industry Bank to release a part of the collateral worth P50 Million.

While it is true that under the Civil Code a mortgage is one and indivisible as to the contractingparties so that every portion of the property mortgaged is answerable for the whole obligation as

soon as it falls due, the Supreme Court has held that this rule is not applicable to a situationwhere only a portion of the loan was released. In such a case, the mortgage on the loan became

unenforceable to the extent of the unreleased portion.

In the case at bar, the loan agreement is for P270 Million. By reducing the amount to P220Million (or P270 Million less P50 Million), the real estate mortgage over the commercial lot

became unenforceable to the extent of P50 Million and subsists as a security only for P220

Million debt. In other words, in case of default of Celestial Properties, the mortgage can beforeclosed only to the extent of the P220 Million. (Central Bank of the Philippines vs. CA, 139

SCRA 46[1985])

Hence, it would be in the best interest of the bank to comply with its client's request since

retaining the entire collateral would not result in any benefit. On the contrary, it might damage its

relationship with its client by refusing to accommodate its request.

NOTHING FOLLOWS.

2008 Bar Questions and Answers

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