FIRST DIVISION

[G.R. No. 138334. August 25, 2003.]

ESTELA L. CRISOSTOMO , petitioner, vs . THE COURT OF APPEALS and

CARAVAN TRAVEL & TOURS INTERNATIONAL, INC. , respondents.

Bonifacio Law Office for petitioner.

Cabochan Reyes & Capones Law Offices for private respondent.

SYNOPSIS

Petitioner Estela L. Crisostomo contracted the services of respondent Caravan

Travel and Tours International, Inc. to facilitate her tour known as "Jewels of Europe." On
June 12, 1991, Meriam Menor, respondent's ticketing manager as well as petitioner's
niece, delivered petitioner's travel documents and plane tickets and informed her to be at
the airport on June 15, 1991, two hours before departure. On the stated date when the
petitioner went to the airport, the ight that she was supposed to take had departed the
previous day. She complained to Menor, but the latter prevailed upon her to take another
tour known as "British Pageant." Upon petitioner's return from Europe, she demanded from
respondent the reimbursement of P61,421.70 representing the difference between the
sum she paid for "Jewels of Europe" and the amount she owed respondent for the "British
Pageant" tour, but despite several demands, respondent company refused to reimburse
the amount, contending that the same was non-refundable. Thus, she led a complaint
against respondent for breach of contract of carriage and damages. In its answer,
respondent denied the responsibility and insisted that petitioner was duly informed of the
correct departure as legibly printed on the plane ticket two days ahead of the scheduled
trip. After trial, the lower court awarded damages to the petitioner on the basis that the
respondent was negligent, but it deducted 10% from the amount for the contributory
negligence of petitioner. On appeal, the Court of Appeals found petitioner to be more
negligent, hence, it directed her to pay the balance of the price for the "British Pageant."
Hence, this petition.
The Court did not agree with the nding of the lower court that Menor's negligence
concurred with the negligence of petitioner and resultantly caused damage to the latter.
Menor's negligence was not su ciently proved, considering that the only evidence
presented was petitioner's uncorroborated narration of the events. It is well-settled that
the party alleging a fact has the burden of proving it and a mere allegation cannot take the
place of evidence. If the plaintiff, upon whom rests the burden of proving his cause of
action, fails to show in a satisfactory manner facts upon which he bases his claim, the
defendant is under no obligation to prove his exception or defense. Contrary to petitioner's
claim, the evidence on record showed that respondent exercised due diligence in
performing its obligation under the contract and followed standard procedure in rendering
its services to petitioner. Accordingly, petitioner was ordered to pay respondent the
amount of P12,901.00 representing the balance of the price of the British Pageant
Package tour.

SYLLABUS
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 1. CIVIL LAW; LEASE; COMMON CARRIERS; CONTRACT OF CARRIAGE;
ELUCIDATED. — By de nition, a contract of carriage or transportation is one whereby a
certain person or association of persons obligate themselves to transport persons, things,
or news from one place to another for a xed price. Such person or association of persons
are regarded as carriers and are classi ed as private or special carriers and common or
public carriers. A common carrier is de ned under Article 1732 of the Civil Code as
persons, corporations, rms or associations engaged in the business of carrying or
transporting passengers or goods or both, by land, water or air, for compensation, offering
their services to the public.
2. ID.; ID.; ID.; TRAVEL AGENCY IS NOT A COMMON CARRIER. — It is obvious
from the above de nition that respondent is not an entity engaged in the business of
transporting either passengers or goods and is therefore, neither a private nor a common
carrier. Respondent did not undertake to transport petitioner from one place to another
since its covenant with its customers is simply to make travel arrangements in their behalf.
Respondent's services as a travel agency include procuring tickets and facilitating travel
permits or visas as well as booking customers for tours. While petitioner concededly
bought her plane ticket through the efforts of respondent company, this does not mean
that the latter ipso facto is a common carrier. At most, respondent acted merely as an
agent of the airline, with whom petitioner ultimately contracted for her carriage to Europe.
3. ID.; OBLIGATIONS AND CONTRACTS; CONTRACT BETWEEN THE TRAVEL
AGENCY AND ITS CLIENT IS ONE FOR SERVICES AND NOT ONE OF CARRIAGE. —
Respondent's obligation to petitioner in this regard was simply to see to it that petitioner
was properly booked with the airline for the appointed date and time. Her transport to the
place of destination, meanwhile, pertained directly to the airline. The object of petitioner's
contractual relation with respondent is the latter's service of arranging and facilitating
petitioner's booking, ticketing and accommodation in the package tour. In contrast, the
object of a contract of carriage is the transportation of passengers or goods. It is in this
sense that the contract between the parties in this case was an ordinary one for services
and not one of carriage. Petitioner's submission is premised on a wrong assumption.
4. ID.; ID.; TRAVEL AGENCY IS NOT BOUND TO OBSERVE EXTRAORDINARY
DILIGENCE IN THE PERFORMANCE OF ITS OBLIGATION. — The nature of the contractual
relation between petitioner and respondent is determinative of the degree of care required
in the performance of the latter's obligation under the contract. For reasons of public
policy, a common carrier in a contract of carriage is bound by law to carry passengers as
far as human care and foresight can provide using the utmost diligence of very cautious
persons and with due regard for all the circumstances. As earlier stated, however,
respondent is not a common carrier but a travel agency. It is thus not bound under the law
to observe extraordinary diligence in the performance of its obligation, as petitioner
claims.
5. ID.; ID.; STANDARD OF CARE REQUIRED FOR THE TRAVEL AGENCY IS THAT
OF A GOOD FATHER OF A FAMILY. — Since the contract between the parties is an ordinary
one for services, the standard of care required of respondent is that of a good father of a
family under Article 1173 of the Civil Code. This connotes reasonable care consistent with
that which an ordinarily prudent person would have observed when confronted with a
similar situation. The test to determine whether negligence attended the performance of
an obligation is: did the defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence.
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 6. REMEDIAL LAW; EVIDENCE; PRESUMPTIONS; EVIDENCE WILLFULLY
SUPPRESSED WOULD BE ADVERSE IF PRODUCED; EXCEPTIONS. — Respondent's failure
to present Menor as witness to rebut petitioner's testimony could not give rise to an
inference unfavorable to the former. Menor was already working in France at the time of
the ling of the complaint, thereby making it physically impossible for respondent to
present her as a witness. Then too, even if it were possible for respondent to secure
Menor's testimony, the presumption under Rule 131, Section 3(e) would still not apply. The
opportunity and possibility for obtaining Menor's testimony belonged to both parties,
considering that Menor was not just respondent's employee, but also petitioner's niece. It
was thus error for the lower court to invoke the presumption that respondent willfully
suppressed evidence under Rule 131, Section 3(e). Said presumption would logically be
inoperative if the evidence is not intentionally omitted but is simply unavailable, or when
the same could have been obtained by both parties.
7. ID.; ID.; WEIGHT AND SUFFICIENCY; MERE ALLEGATION CANNOT TAKE THE
PLACE OF EVIDENCE. — In sum, we do not agree with the nding of the lower court that
Menor's negligence concurred with the negligence of petitioner and resultantly caused
damage to the latter. Menor's negligence was not su ciently proved, considering that the
only evidence presented on this score was petitioner's uncorroborated narration of the
events. It is well-settled that the party alleging a fact has the burden of proving it and a
mere allegation cannot take the place of evidence. If the plaintiff, upon whom rests the
burden of proving his cause of action, fails to show in a satisfactory manner facts upon
which he bases his claim, the defendant is under no obligation to prove his exception or
defense.
8. CIVIL LAW; OBLIGATIONS AND CONTRACTS; TRAVEL AGENCY EXERCISED
DUE DILIGENCE IN PERFORMING ITS OBLIGATIONS UNDER THE CONTRACT; CASE AT
BAR. — Contrary to petitioner's claim the evidence on record shows that respondent
exercised due diligence in performing its obligations under the contract and followed
standard procedure in rendering its services to petitioner. As correctly observed by the
lower court, the plane ticket issued to petitioner clearly re ected the departure date and
time, contrary to petitioner's contention. The travel documents, consisting of the tour
itinerary, vouchers and instructions, were likewise delivered to petitioner two days prior to
the trip. Respondent also properly booked petitioner for the tour, prepared the necessary
documents and procured the plane tickets. It arranged petitioner's hotel accommodation
as well as food, land transfers and sightseeing excursions, in accordance with its avowed
undertaking. Therefore, it is clear that respondent performed its prestation under the
contract as well as everything else that was essential to book petitioner for the tour. Had
petitioner exercised due diligence in the conduct of her affairs, there would have been no
reason for her to miss the ight. Needless to say, after the travel papers were delivered to
petitioner, it became incumbent upon her to take ordinary care of her concerns. This
undoubtedly would require that she at least read the documents in order to assure herself
of the important details regarding the trip.
9. ID.; ID.; NEGLIGENCE OF THE OBLIGOR IN THE PERFORMANCE OF THE
OBLIGATION RENDERS HIM LIABLE FOR DAMAGES FOR THE RESULTING LOSS SUFFERED
BY THE OBLIGEE. — The negligence of the obligor in the performance of the obligation
renders him liable for damages for the resulting loss suffered by the obligee. Fault or
negligence of the obligor consists in his failure to exercise due care and prudence in the
performance of the obligation as the nature of the obligation so demands. There is no
xed standard of diligence applicable to each and every contractual obligation and each
case must be determined upon its particular facts. The degree of diligence required
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 depends on the circumstances of the speci c obligation and whether one has been
negligent is a question of fact that is to be determined after taking into account the
particulars of each case.
10. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL
FINDINGS OF THE TRIAL COURT ARE GENERALLY CONCLUSIVE UPON THE SUPREME
COURT; EXCEPTIONS. — The lower court declared that respondent's employee was
negligent. This factual nding, however, is not supported by the evidence on record. While
factual ndings below are generally conclusive upon this court, the rule is subject to
certain exceptions, as when the trial court overlooked, misunderstood, or misapplied some
facts or circumstances of weight and substance which will affect the result of the case.

DECISION

YNARES-SANTIAGO , J : p

In May 1991, petitioner Estela L. Crisostomo contracted the services of respondent

Caravan Travel and Tours International, Inc. to arrange and facilitate her booking, ticketing
and accommodation in a tour dubbed "Jewels of Europe." The package tour included the
countries of England, Holland, Germany, Austria, Liechtenstein, Switzerland and France at a
total cost of P74,322.70. Petitioner was given a 5% discount on the amount, which
included airfare, and the booking fee was also waived because petitioner's niece, Meriam
Menor, was respondent company's ticketing manager.
Pursuant to said contract, Menor went to her aunt's residence on June 12, 1991 — a
Wednesday — to deliver petitioner's travel documents and plane tickets. Petitioner, in turn,
gave Menor the full payment for the package tour. Menor then told her to be at the Ninoy
Aquino International Airport (NAIA) on Saturday, two hours before her ight on board
British Airways.
Without checking her travel documents, petitioner went to NAIA on Saturday, June
15, 1991, to take the ight for the rst leg of her journey from Manila to Hongkong. To
petitioner's dismay, she discovered that the ight she was supposed to take had already
departed the previous day. She learned that her plane ticket was for the flight scheduled on
June 14, 1991. She thus called up Menor to complain.
Subsequently, Menor prevailed upon petitioner to take another tour — the "British
Pageant" — which included England, Scotland and Wales in its itinerary. For this tour
package, petitioner was asked anew to pay US$785.00 or P20,881.00 (at the then
prevailing exchange rate of P26.60). She gave respondent US$300 or P7,980.00 as partial
payment and commenced the trip in July 1991.
Upon petitioner's return from Europe, she demanded from respondent the
reimbursement of P61,421.70, representing the difference between the sum she paid for
"Jewels of Europe" and the amount she owed respondent for the "British Pageant" tour.
Despite several demands, respondent company refused to reimburse the amount,
contending that the same was non-refundable. 1 Petitioner was thus constrained to le a
complaint against respondent for breach of contract of carriage and damages, which was
docketed as Civil Case No. 92-133 and ra ed to Branch 59 of the Regional Trial Court of
Makati City.
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 In her complaint, 2 petitioner alleged that her failure to join "Jewels of Europe" was
due to respondent's fault since it did not clearly indicate the departure date on the plane
ticket. Respondent was also negligent in informing her of the wrong ight schedule
through its employee Menor. She insisted that the "British Pageant" was merely a
substitute for the "Jewels of Europe" tour, such that the cost of the former should be
properly set-off against the sum paid for the latter.
For its part, respondent company, through its Operations Manager, Concepcion
Chipeco, denied responsibility for petitioner's failure to join the rst tour. Chipeco insisted
that petitioner was informed of the correct departure date, which was clearly and legibly
printed on the plane ticket. The travel documents were given to petitioner two days ahead
of the scheduled trip. Petitioner had only herself to blame for missing the ight, as she did
not bother to read or confirm her flight schedule as printed on the ticket.
Respondent explained that it can no longer reimburse the amount paid for "Jewels
of Europe," considering that the same had already been remitted to its principal in
Singapore, Lotus Travel Ltd., which had already billed the same even if petitioner did not
join the tour. Lotus' European tour organizer, Insight International Tours Ltd., determines
the cost of a package tour based on a minimum number of projected participants. For this
reason, it is accepted industry practice to disallow refund for individuals who failed to take
a booked tour. 3
Lastly, respondent maintained that the "British Pageant" was not a substitute for the
package tour that petitioner missed. This tour was independently procured by petitioner
after realizing that she made a mistake in missing her ight for "Jewels of Europe."
Petitioner was allowed to make a partial payment of only US$300.00 for the second tour
because her niece was then an employee of the travel agency. Consequently, respondent
prayed that petitioner be ordered to pay the balance of P12,901.00 for the "British
Pageant" package tour.
After due proceedings, the trial court rendered a decision, 4 the dispositive part of
which reads:
WHEREFORE, premises considered, judgment is hereby rendered as
follows:

1. Ordering the defendant to return and/or refund to the plaintiff the amount
of Fifty Three Thousand Nine Hundred Eighty Nine Pesos and Forty Three
Centavos (P53,989.43) with legal interest thereon at the rate of twelve
percent (12%) per annum starting January 16, 1992, the date when the
complaint was filed;
2. Ordering the defendant to pay the plaintiff the amount of Five Thousand
(P5,000.00) Pesos as and for reasonable attorney's fees;
3. Dismissing the defendant's counterclaim, for lack of merit; and
4. With costs against the defendant.

SO ORDERED. 5

The trial court held that respondent was negligent in erroneously advising petitioner
of her departure date through its employee, Menor, who was not presented as witness to
rebut petitioner's testimony. However, petitioner should have veri ed the exact date and
time of departure by looking at her ticket and should have simply not relied on Menor's
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 verbal representation. The trial court thus declared that petitioner was guilty of
contributory negligence and accordingly, deducted 10% from the amount being claimed as
refund.
Respondent appealed to the Court of Appeals, which likewise found both parties to
be at fault. However, the appellate court held that petitioner is more negligent than
respondent because as a lawyer and well-traveled person, she should have known better
than to simply rely on what was told to her. This being so, she is not entitled to any form of
damages. Petitioner also forfeited her right to the "Jewels of Europe" tour and must
therefore pay respondent the balance of the price for the "British Pageant" tour. The
dispositive portion of the judgment appealed from reads as follows:
WHEREFORE, premises considered, the decision of the Regional Trial Court
dated October 26, 1995 is hereby REVERSED and SET ASIDE. A new judgment is
hereby ENTERED requiring the plaintiff-appellee to pay to the defendant-appellant
the amount of P12,901.00, representing the balance of the price of the British
Pageant Package Tour, the same to earn legal interest at the rate of SIX PERCENT
(6%) per annum, to be computed from the time the counterclaim was led until
the nality of this decision. After this decision becomes nal and executory, the
rate of TWELVE PERCENT (12%) interest per annum shall be additionally imposed
on the total obligation until payment thereof is satis ed. The award of attorney's
fees is DELETED. Costs against the plaintiff-appellee.
SO ORDERED. 6

Upon denial of her motion for reconsideration, 7 petitioner led the instant petition
under Rule 45 on the following grounds:
I
It is respectfully submitted that the Honorable Court of Appeals committed
a reversible error in reversing and setting aside the decision of the trial court by
ruling that the petitioner is not entitled to a refund of the cost of unavailed
"Jewels of Europe" tour she being equally, if not more, negligent than the private
respondent, for in the contract of carriage the common carrier is obliged to
observe utmost care and extra-ordinary diligence which is higher in degree than
the ordinary diligence required of the passenger. Thus, even if the petitioner and
private respondent were both negligent, the petitioner cannot be considered to be
equally, or worse, more guilty than the private respondent. At best, petitioner's
negligence is only contributory while the private respondent [is guilty] of gross
negligence making the principle of pari delicto inapplicable in the case;
II
The Honorable Court of Appeals also erred in not ruling that the "Jewels of
Europe" tour was not indivisible and the amount paid therefor refundable;
III
The Honorable Court erred in not granting to the petitioner the
consequential damages due her as a result of breach of contract of carriage. 8

Petitioner contends that respondent did not observe the standard of care required
of a common carrier when it informed her wrongly of the ight schedule. She could not be
deemed more negligent than respondent since the latter is required by law to exercise
extraordinary diligence in the ful llment of its obligation. If she were negligent at all, the
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 same is merely contributory and not the proximate cause of the damage she suffered. Her
loss could only be attributed to respondent as it was the direct consequence of its
employee's gross negligence.

Petitioner's contention has no merit.

By de nition, a contract of carriage or transportation is one whereby a certain
person or association of persons obligate themselves to transport persons, things, or
news from one place to another for a xed price. 9 Such person or association of persons
are regarded as carriers and are classi ed as private or special carriers and common or
public carriers. 1 0 A common carrier is de ned under Article 1732 of the Civil Code as
persons, corporations, rms or associations engaged in the business of carrying or
transporting passengers or goods or both, by land, water or air, for compensation, offering
their services to the public.
It is obvious from the above de nition that respondent is not an entity engaged in
the business of transporting either passengers or goods and is therefore, neither a private
nor a common carrier. Respondent did not undertake to transport petitioner from one
place to another since its covenant with its customers is simply to make travel
arrangements in their behalf. Respondent's services as a travel agency include procuring
tickets and facilitating travel permits or visas as well as booking customers for tours.
While petitioner concededly bought her plane ticket through the efforts of
respondent company, this does not mean that the latter ipso facto is a common carrier. At
most, respondent acted merely as an agent of the airline, with whom petitioner ultimately
contracted for her carriage to Europe. Respondent's obligation to petitioner in this regard
was simply to see to it that petitioner was properly booked with the airline for the
appointed date and time. Her transport to the place of destination, meanwhile, pertained
directly to the airline.
The object of petitioner's contractual relation with respondent is the latter's service
o f arranging and facilitating petitioner's booking, ticketing and accommodation in the
package tour. In contrast, the object of a contract of carriage is the transportation of
passengers or goods. It is in this sense that the contract between the parties in this case
was an ordinary one for services and not one of carriage. Petitioner's submission is
premised on a wrong assumption.
The nature of the contractual relation between petitioner and respondent is
determinative of the degree of care required in the performance of the latter's obligation
under the contract. For reasons of public policy, a common carrier in a contract of carriage
is bound by law to carry passengers as far as human care and foresight can provide using
the utmost diligence of very cautious persons and with due regard for all the
circumstances. 1 1 As earlier stated, however, respondent is not a common carrier but a
travel agency. It is thus not bound under the law to observe extraordinary diligence in the
performance of its obligation, as petitioner claims.
Since the contract between the parties is an ordinary one for services, the standard
of care required of respondent is that of a good father of a family under Article 1173 of the
Civil Code. 1 2 This connotes reasonable care consistent with that which an ordinarily
prudent person would have observed when confronted with a similar situation. The test to
determine whether negligence attended the performance of an obligation is: did the
defendant in doing the alleged negligent act use that reasonable care and caution which an
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 ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence. 1 3
In the case at bar, the lower court found Menor negligent when she allegedly
informed petitioner of the wrong day of departure. Petitioner's testimony was accepted as
indubitable evidence of Menor's alleged negligent act since respondent did not call Menor
to the witness stand to refute the allegation. The lower court applied the presumption
under Rule 131, Section 3 (e) 1 4 of the Rules of Court that evidence willfully suppressed
would be adverse if produced and thus considered petitioner's uncontradicted testimony
to be sufficient proof of her claim.
On the other hand, respondent has consistently denied that Menor was negligent
and maintains that petitioner's assertion is belied by the evidence on record. The date and
time of departure was legibly written on the plane ticket and the travel papers were
delivered two days in advance precisely so that petitioner could prepare for the trip. It
performed all its obligations to enable petitioner to join the tour and exercised due
diligence in its dealings with the latter.
We agree with respondent.
Respondent's failure to present Menor as witness to rebut petitioner's testimony
could not give rise to an inference unfavorable to the former. Menor was already working in
France at the time of the ling of the complaint, 1 5 thereby making it physically impossible
for respondent to present her as a witness. Then too, even if it were possible for
respondent to secure Menor's testimony, the presumption under Rule 131, Section 3(e)
would still not apply. The opportunity and possibility for obtaining Menor's testimony
belonged to both parties, considering that Menor was not just respondent's employee, but
also petitioner's niece. It was thus error for the lower court to invoke the presumption that
respondent willfully suppressed evidence under Rule 131, Section 3(e). Said presumption
would logically be inoperative if the evidence is not intentionally omitted but is simply
unavailable, or when the same could have been obtained by both parties. 1 6
In sum, we do not agree with the nding of the lower court that Menor's negligence
concurred with the negligence of petitioner and resultantly caused damage to the latter.
Menor's negligence was not su ciently proved, considering that the only evidence
presented on this score was petitioner's uncorroborated narration of the events. It is well-
settled that the party alleging a fact has the burden of proving it and a mere allegation
cannot take the place of evidence. 1 7 If the plaintiff, upon whom rests the burden of
proving his cause of action, fails to show in a satisfactory manner facts upon which he
bases his claim, the defendant is under no obligation to prove his exception or defense. 1 8
Contrary to petitioner's claim, the evidence on record shows that respondent
exercised due diligence in performing its obligations under the contract and followed
standard procedure in rendering its services to petitioner. As correctly observed by the
lower court, the plane ticket 1 9 issued to petitioner clearly re ected the departure date and
time, contrary to petitioner's contention. The travel documents, consisting of the tour
itinerary, vouchers and instructions, were likewise delivered to petitioner two days prior to
the trip. Respondent also properly booked petitioner for the tour, prepared the necessary
documents and procured the plane tickets. It arranged petitioner's hotel accommodation
as well as food, land transfers and sightseeing excursions, in accordance with its avowed
undertaking.
Therefore, it is clear that respondent performed its prestation under the contract as
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 well as everything else that was essential to book petitioner for the tour. Had petitioner
exercised due diligence in the conduct of her affairs, there would have been no reason for
her to miss the ight. Needless to say, after the travel papers were delivered to petitioner,
it became incumbent upon her to take ordinary care of her concerns. This undoubtedly
would require that she at least read the documents in order to assure herself of the
important details regarding the trip.
The negligence of the obligor in the performance of the obligation renders him liable
for damages for the resulting loss suffered by the obligee. Fault or negligence of the
obligor consists in his failure to exercise due care and prudence in the performance of the
obligation as the nature of the obligation so demands. 2 0 There is no xed standard of
diligence applicable to each and every contractual obligation and each case must be
determined upon its particular facts. The degree of diligence required depends on the
circumstances of the speci c obligation and whether one has been negligent is a question
of fact that is to be determined after taking into account the particulars of each case. 2 1
The lower court declared that respondent's employee was negligent. This factual
nding, however, is not supported by the evidence on record. While factual ndings below
are generally conclusive upon this court, the rule is subject to certain exceptions, as when
the trial court overlooked, misunderstood, or misapplied some facts or circumstances of
weight and substance which will affect the result of the case. 2 2
In the case at bar, the evidence on record shows that respondent company
performed its duty diligently and did not commit any contractual breach. Hence, petitioner
cannot recover and must bear her own damage.
WHEREFORE, the instant petition is DENIED for lack of merit. The decision of the
Court of Appeals in CA-G.R. CV No. 51932 is AFFIRMED. Accordingly, petitioner is ordered
to pay respondent the amount of P12,901.00 representing the balance of the price of the
British Pageant Package Tour, with legal interest thereon at the rate of 6% per annum, to
be computed from the time the counterclaim was led until the nality of this Decision.
After this Decision becomes nal and executory, the rate of 12% per annum shall be
imposed until the obligation is fully settled, this interim period being deemed to be by then
an equivalent to a forbearance of credit. 2 3
SO ORDERED.
Davide, Jr., C .J ., Vitug, Carpio, and Azcuna, JJ ., concur.

Footnotes
1. TSN, March 4, 1993, pp. 4-6.
2. RTC Records, p. 1.
3. TSN, August 30, 1994, pp. 6-9.

4. Rollo, pp. 38-43.

5. Id. at 43; penned by Judge Lucia Violago Isnani.
6. Id. at 36.
7. Id. at 37.
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 8. Id. at 15.
9. Commentaries and Jurisprudence on the Commercial Laws of the Philippines, Vol. 4
(1993 Edition), Aguedo F. Agbayani, p. 1, citing 1 Blanco 640.
10. Id. at 4.
11. Civil Code of the Philippines, Article 1755.
12. Article 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows bad
faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.

13. Jarco Marketing Corporation v. Court of Appeals, 378 Phil. 991, 1003 (1999), citing
Picart v. Smith, 37 Phil. 809 (1918).
14. This rule states:
SEC. 3. Disputable presumptions. — The following presumptions are satisfactory
if uncontradicted, but may be contradicted and overcome by other evidence:
xxx xxx xxx
(e) That evidence willfully suppressed would be adverse if produced;
xxx xxx xxx
15. Supra, note 3 at 10.
16. The Revised Rules of Court in the Philippines, Vol. VII, Part II (1999 Edition) V.
Francisco, p. 92.

17. Pimentel v. Court of Appeals, 307 SCRA 38.

18. Castilex Industrial Corporation v. Vasquez, Jr., 378 Phil. 1009, 1018 (1999), citing Belen
v. Belen, 13 Phil. 202, 206 (1909), cited in Martin v. Court of Appeals, G.R. No. 82248, 205
SCRA 591 (1992).
19. Supra, note 2 at 60 & 94.
20. Bayne Adjusters and Surveyors, Inc. v. Court of Appeals, G.R. No. 116332, 323 SCRA
231 (2000), citing Articles 1170, 1172–73, Civil Code; Southeastern College, Inc. v. Court
of Appeals, 354 Phil. 434 (1998).
21. Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. IV (1999
Edition), Arturo M. Tolentino, p. 124.
22. Supra, note 13, citing Borillo v. CA, G.R. No. 55691, 209 SCRA 130 (1992); Mckee v.
Intermediate Appellate Court, G.R. No. 68102, 211 SCRA 517 (1992); and Salvador v.
Court of Appeals, 313 Phil. 36 (1995).
23. Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, 12 July 1994, 234
SCRA 78, 97.

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