Monday, December 17, 2007

Business for a cause (Setting up a Botika ng Bayan)

By Siesta-friendly

Want to do business with a social function? Why not set up a Botika ng Bayan? You profit from the sale of an essential product (pharmaceutical drugs) and you help the community because you are selling them at a price lower than other drugstores since your source is the government (via the latter’s trading company, the Philippine International Trading Corporation (PITC).

Eligible applicants for the Botika ng Bayan Program can be a sole proprietorship, partnership or corporation, even an employee’s association or a cooperative. Pre-qualification requirements are:

1) Valid and current registration, with the Cooperative Development Authority (CDA), SEC, DOLE, or any organization authorized and certified by a duly recognized agency;

2) Minimum revolving capital of P500,000.00 for the project, as evidenced by a certification issued by an authorized Bank

3) Valid government licenses, business permits, etc.

4) Proposed location plan or vicinity map with a floor plan of not less than 15 sq.m.

5) Capability to comply with the documentation, technical and other requirements of the Bureau of Food and Drugs (BFAD) in the filing of the application for a License to Operate (LTO) as Drugstore, including the availability of the services of a licensed Pharmacist.

You may download the forms and list of all documentary requirements from or obtain them from their office at National Development Company Bldg., 116 Tordesillas Street, Salcedo Village, Makati City.

Upon favorable evaluation by the PITC then the BFAD, you will sign an MOA with PITC and a surety bond for P500,000.00 is required to ensure faithful compliance of the terms and conditions of the MOA.

Basic Terms and Conditions include:

1) Outlets shall retail only PITC-authorized pharmaceutical and non-pharmaceutical products supplied by and sourced exclusively from PITC. The sale or retail of other products not supplied by or sourced from PITC shall be prohibited and, unless done with PITC’s prior written consent, shall entitle PITC to cancel its accreditation of the outlet,

2) All products supplied by PITC shall be sold at not higher than Maximum Retail Prices (MRP). Violation of this condition shall entitle PITC to revoke its accreditation of the outlet.

3) Deliveries made by PITC or its designated distributor shall be paid in full by the outlet through a 30-day post-dated check issued upon delivery. Late payments shall be subject to 2% interest per month. Failure to remit payments for previous deliveries shall entitle PITC to withhold processing of subsequent or follow up orders.

Any return or exchange of products delivered by PITC shall be allowed only within 7 working dates from delivery.

Returns shall be accepted only when one of the following conditions is present:

a) Defective or tampered packaging by which the outlet will be unable to retail the product to consumers;

b) PITC’s inability to provide the required Certificates of Product Registration (CPR) or Reports of Analysis for all medicines and batches or lots delivered; or

c) Remaining shelf or usable life of the products is less than 6 months.

Accreditation of an outlet shall be valid for 3 years, subject to further renewals, unless revoked or cancelled by PITC due to any violation of the rules or terms and conditions of the program or the MOA, non-payment of obligations, or unless earlier surrendered by the outlet prior to the expiration of the term.

The outlet’s standard obligations include:

1) Provide initial capitalization for the construction of the outlet and inventory of medicines to be sold;

2) Shoulder the overhead, manpower, legal and other expenses required to operate;

3) Purchase the standard program signage and other collaterals from PITC for use in the drug outlet; and

4) When requested, and subject to further negotiation, share in the expenses for marketing and advertising support for the program.

On the other hand, PITC’s standard obligations include:

1) Supply all drugs and medicines, and other consumer products, which shall be sold in the outlet;

2) Arrange to provide training support to the supervising Pharmacist and other personnel in the outlet;

3) Provide marketing, advertising and promotions support for the Program;

4) Arrange to make the standard signages, collaterals and product lists available for use in the outlet; and

5) Provide the outlet with copies of CPR, as well as BFAD Reports of Analysis for all batches delivered.

There are limitless reasons to criticize the government for what’s happened to our country and our people. We should find ways to improve ourselves and avoid leaving each other’s welfare in the hands of avaricious, selfish and incompetent leaders. Setting up a Botika ng Bayan could be an ideal start.

The following are interesting reads:
Botika ng Barangay not in poorest places
Botika ng Barangay drug prices can still be lower


Monday, December 10, 2007

CRAZY FOR YOU (Annulment of Marriage Based on Psychological Incapacity)

By Obiter07

Divorce is not legal in the Philippines. But the law has devised a way out for couples who cannot stay together under Article 36 of the Family Code on the ground of a mental state termed as “psychological incapacity”:

“A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization (As amended by E.O. 227).”

Psychological incapacity appears to be a catch-all phrase. It is not susceptible to exact definition, which was the intent of the framers of the law.

“The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit the applicability of the provision under the principles of ejusdem generis. Rather, the Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law.” SALITA vs. MAGTOLIS, et al,.[G.R. No. 106429. June 13, 1994.]

The Supreme Court, however, has set high standards in order to invoke this ground to annul a marriage. The inability to have sexual relations or a refusal to live together for a period of five (5) years does not suffice:

“Leouel argues that the failure of Julia to return home, or at the very least to communicate with him, for more than five years are circumstances that clearly show her being psychologically incapacitated to enter into married life. xxx Marriage is not an adventure but a lifetime commitment. We should continue to be reminded that innate in our society, then enshrined in our Civil Code, and even now still indelible in Article 1 of the Family Code. The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the family, and they are no doubt the tenets we still hold on to. The factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor society itself can always provide all the specific answers to every individual problem. SANTOS vs. COURT OF APPEALS, et al. [G.R. No. 112019. January 4, 1995.]

Being married to someone who is mentally unstable, an addict, an alcoholic, a homosexual or a lesbian is not enough and may merely provide grounds for legal separation. The foregoing “disorders” must be serious before they can be invoked.

“The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.” [Ibid.]

While a refusal to live together was not found to be sufficient ground for annulment of marriage based on psychological incapacity, a “senseless and protracted refusal” to have sexual relations may be.

“xxx If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity.” Evidently, one of the essential marital obligations under the Family Code is “To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage.” Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity. CHI MING TSOI vs. COURT OF APPEALS, et al. [G.R. No. 119190. January 16, 1997.]

Being at odds or arguing all the time does not an annulment make.

“On the other hand, in the present case, there is no clear showing to us that the psychological defect spoken of is an incapacity. It appears to us to be more of a “difficulty,” if not outright “refusal” or “neglect” in the performance of some marital obligations. Mere showing of ‘irreconcilable differences” and “conflicting personalities” in no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness. The evidence adduced by respondent merely showed that she and her husband could not get along with each other. There had been no showing of the gravity of the problem; neither its juridical antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric disorder but only incompatibility, not psychological incapacity. REPUBLIC OF THE PHILIPPINES vs. COURT OF APPEALS, et al. [G.R. No. 108763. February 13, 1997.]

Despite the stringent standards set by the Court, this ground can be and is being abused. Hence, the Court has laid down its guidelines for annulment which includes the participation of experts, the prosecuting attorney, and the Solicitor General. A marriage of two people is now crowded with strangers.

Thus, the following guidelines in the interpretation and application of Art. 36 of the Family Code were set in REPUBLIC OF THE PHILIPPINES vs. COURT OF APPEALS, et al. [G.R. No. 108763. February 13, 1997.] -

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.

(2) The root cause of the psychological incapacity must be -

(a) medically or clinically identified,
(b) alleged in the complaint,
(c) sufficiently proven by experts and
(d) clearly explained in the decision.

(3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.

A spouse may have said he was crazy for you before. But for you to get out of a marriage, he may need to be certified as one.


Friday, December 7, 2007

Greenpeace: Clean Energy Now


30 November 2007. Central Java Indonesia.
Hundreds of people stood together to create an image of “Clean Energy Now with a human wind turbine” on the site of a proposed nuclear power plant in the town of Muria . The Indonesian government is forging ahead with plans to build its first nuclear power plant in the shadow of a dormant volcano despite mounting opposition from residents and environmental groups.

© Greenpeace / Paul Hilton
Source: Greenpeace


Sunday, December 2, 2007

CARMA (Car Registration and Other Liabilities)

By Obiter07

It seems simple enough. You buy a car firsthand. Over time, you get to use it and drive around the city. But then, a new model catches your eye and you think, what if I sell my old car and buy myself that new one?

That is perfectly fine. So you bring your old car to a used car dealer or put up an advertisement. A buyer comes along, you execute the deed of sale, get paid and say good-bye to the jalopy you used to love. You think the change of name in the registration is just a formality and you leave it to the buyer to take care of it.

Are you home free? No, not totally, because the buyer may not take the time to change the registration papers which remains in your name. And as a result, any ill thing that befalls that car might come back to haunt you, like some bad karma that won’t go away. Dings and dents that it may cause as it wends it way along the roads, including bodily harm or injury, may end up to be your responsibility. Who knows? It might be used as get-away car in a bank robbery, tagged in a kidnapping,

Under the Insurance Code, a vehicle’s owner is defined as the “actual legal owner of the vehicle, in whose name such vehicle is registered with the Land Transportation Commission.”[1] And it is the owner who should secure motor vehicle liability insurance.[2]

Hence, it is therefore possible for the any complainant to insist upon collecting damages from you personally and not from the current de facto owner of the car. As held in BA FINANCE CORPORATION vs. COURT OF APPEALS, et al. [G.R. No. 98275. November 13, 1992.]:

“The Revised Motor Vehicles Law (Act No. 3992, as amended) provides that no vehicle may be used or operated upon any public highway unless the same is properly registered. It has been stated that the system of licensing and the requirement that each machine must carry a registration number, conspicuously displayed, is one of the precautions taken to reduce the danger of injury to pedestrians and other travelers from the careless management of automobiles, and to furnish a means of ascertaining the identity of persons violating the laws and ordinances, regulating the speed and operation of machines upon the highways (2 R. C. L. 1176). Not only are vehicles to be registered and that no motor vehicles are to be used or operated without being properly registered for the current year, but that dealers in motor vehicles shall furnish the Motor Vehicles Office a report showing the name and address of each purchaser of motor vehicle during the previous month and the manufacturer’s serial number and motor number. (Section 5[c], Act No. 3992, as amended.). “Registration is required not to make said registration the operative act by which ownership in vehicles is transferred, as in land registration cases, because the administrative proceeding of registration does not bear any essential relation to the contract of sale between the parties (Chinchilla vs. Rafael and Verdaguer, 39 Phil. 888), but to permit the use and operation of the vehicle upon any public highway (section 5 [a], Act No. 3992, as amended). The main aim of motor vehicle registration is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can be fixed on a definite individual, the registered owner. xxx [Underscoring supplied]

Your only remedy then would be to file a third party complaint against the buyer, assuming you can still find him or her. But this shouldn’t even be concern for you if you had just taken the time to have the transfer formally registered.

Here’s another thing. The general belief is that when it comes to buying things second hand, this should not come with any warranty on the part of the seller. So you sell the car, leaving it to the buyer to inspect, so that he can take it or leave it, with its warts and all. And if it conks out later on, that is his own look-out.

Not so, says the Court of Appeals. Used car sellers are liable for hidden defects says the Court. This relates to a case involving the sale of a Pajero by importers of used cars. The vehicle broke down while in use by the buyer and its transmission had to be replaced. The buyer sued the importers for breach of the implied warranty against hidden defects. The importers argued that the since the vehicle is secondhand, there is no such warranty, that it even stated in the receipt that there is “no guarantee” on the vehicle. The Court of Appeals upheld the lower court’s decision that “there is an implied warranty in the sale of secondhand articles where the buyer makes known to the seller the particular purpose for which the articles are acquired and it appears that the buyer relies on the seller’s skill.” And that there was no showing that the buyer had waived this warranty from the seller.[3] The fact that the seller in that case were importers with some degree of expertise could have been a factor.

While this is still a Court of Appeals decision, any seller of a car is put on notice not to rely on the simple form deeds of sale that they normally use. But the decision does have basis in Articles 1561 to 1562 of the New Civil Code.[4] To be safe, it should be expressly stated in the deed of sale that the buyer waives any and all warranties, including for hidden defects. But do expect some clever buyer to argue that such a waiver is void.

Now that you’ve sold your car and bought a new one, maybe your thoughts are now on dispensing with your proletarian duty of driving yourself and getting someone to do it for you.

That is all well and good, just as long as your keep in mind that any mistake that your driver makes can be your own, even while you were asleep at the back. This just might help keep you awake.

Article 2180 of the New Civil Code holds employers liable “for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.” And that an employer can avoid liability only if he can prove that he observed the diligence of a good father of a family to prevent damage.”

This kind of due diligence required has been discussed in the case of LARRY ESTACION VS. NOE BERNARDO, ET AL., G.R. No. 144723, February 27, 2006:

“In any case, assuming arguendo that Venturina did submit his license and clearances when he applied with petitioner in January 1992, the latter still fails the test of due diligence in the selection of her bus driver. Case law teaches that for an employer to have exercised the diligence of a good father of a family, he should not be satisfied with the applicant’s mere possession of a professional driver’s license; he must also carefully examine the applicant for employment as to his qualifications, his experience and record of service. Petitioner failed to present convincing proof that she went to this extent of verifying Venturina’s qualifications, safety record, and driving history. The presumption juris tantum that there was negligence in the selection of her bus driver, thus, remains unrebutted.” [Underscoring supplied]

Anyone for a walk?

[1] Section 373 (d).

[2] Section 377.

[3] Frialde, Used car sellers liable for hidden defects, says CA, The Philippine Star,

[4] Warranty Against Hidden Defects of or Encumbrances Upon the Thing Sold
ARTICLE 1561. The vendor shall be responsible for warranty against the hidden defects which the thing sold may have, should they render it unfit for the use for which it is intended, or should they diminish its fitness for such use to such an extent that, had the vendee been aware thereof, he would not have acquired it or would have given a lower price for it; but said vendor shall not be answerable for patent defects or those which may be visible, or for those which are not visible if the vendee is an expert who, by reason of his trade or profession, should have known them. (1484a)
ARTICLE 1562. In a sale of goods, there is an implied warranty or condition as to the quality or fitness of the goods, as follows:
(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are acquired, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose;
(2) Where the goods are brought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality. (n)