MALACAÑANG

d. Department of Social Welfare and Development

e. Department of Science and Technology

f. Department of Health

g. Department of Public Works and Highways

h. Department of Education

i. Other agencies whose operations the President or the NDRRMC may deem necessary.

The Heads of Offices of the foregoing agencies shall determine which of their respective divisions or units, particularly those related to disaster risk reduction and management, shall maintain its operations.

SEC. 5. Report to the President.-The NDRRMC chaired by the Secretary of National Defense shall immediately inform the Office of the President, through the Executive Secretary, of the cancellation or suspension of classes and work in government offices in the affected areas.

SEC. 6. Concurrent Authority.-The Office of the President, through the Executive Secretary, shall have concurrent authority with the NDRRMC to cancel or suspend classes and work in government

offices in the affected areas.

MANILA

MEMORANDUM ORDER No. 29

REQUEST FOR THE CONCURRENCE OF THE PRESIDENT IN THE DEPUTATION OF THE ARMED FORCES OF THE PHILIPPINES (AFP) AND THE PHILIPPINE NATIONAL POLICE (PNP), FOR THE PURPOSE OF ENSURING FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE CONDUCT OF THE 04 FEBRUARY 2012 SPECIAL ELECTIONS FOR THE POSITION OF MEMBER, HOUSE OF REPRESENTATIVES, SECOND LEGISLATIVE DISTRICT, PROVINCE OF ZAMBALES.

WHEREAS, the Commission on Elections (COMELEC), through its Resolution No. 9312 (s. 2011), resolved to request the concurrence of the President in the deputation of law enforcement agencies and other instrumentalities of the government including the AFP and PNP, in connection with the 04 February 2012 special Elections for the position of Member, House of Representatives, Second Legislative District, Province of Zambales; and

WHEREAS, pursuant to Section 2 (4), Article IX-C of the Constitution, the COMELEC is empowered to deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the AFP, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, hereby concur with COMELEC Resolution No. 9312 deputizing law enforcement agencies and

instrumentalities of the Government, including the AFP and PNP, to assist the COMELEC in ensuring the free, orderly, honest, peaceful, and credible conduct of the 04 February 2012 Special Elections for

[G.R. No. 146839. March 23, 2011]

FIRST DIVISION

ROLANDO T. CATUNGAL, JOSE T. CATUNGAL, JR., CAROLYN T. CATUNGAL and ERLINDA CATUNGAL-WESSEL, Petitioners, vs. ANGEL S. RODRIGUEZ, Respondent.

SYLLABUS

of the Ruling of the Court

1. REMEDIAL LAW; APPEALS; ISSUES; A PARTY IS NOT ALLOWED TO COMPLETELY CHANGE HIS THEORY OF THE CASE ON APPEAL AND TO ABANDON HIS PREVIOUS ASSIGNMENT OF ERRORS IN HIS BRIEF; RATIONALE; A JUDGMENT THAT GOES BEYOND THE ISSUES AND PURPORTS TO ADJUDICATE SOMETHING ON WHICH THE COURT DID NOT HEAR THE PARTIES IS NOT ONLY IRREGULAR BUT ALSO EXTRAJUDICIAL AND INVALID.-This is not an instance where a party merely failed to assign an issue as an error in the brief nor failed to argue a material point on appeal that was raised in the trial court and supported by the record. Neither is this a case where a party raised an error closely related to, nor dependent on the resolution of, an error properly assigned in his brief. This is a situation where a party completely changes his theory of the case on appeal and abandons his previous assignment of errors in his brief, which plainly should not be allowed as anathema to due process. Petitioners should be reminded that the object of pleadings is to draw the lines of battle between the litigants and to indicate fairly the nature of the claims or defenses of both parties. In Philippine National Construction Corporation v. Court of Appeals, we held that "[w]hen a party adopts a certain theory in the trial court, he will not be permitted to change his theory on appeal, for to permit him to do so would not only be unfair to the other party but it would also be offensive to the basic rules of fair play, justice and due process." We have also previously ruled that "courts of justice have no jurisdiction or power to decide a question not in issue. Thus, a

judgment that goes beyond the issues and purports to adjudicate something on which the court did not hear the parties, is not only irregular but also extrajudicial and invalid. The rule rests on the fundamental tenets of fair play."

2. ID.; ID.; ID.; CHANGING OF LEGAL THEORIES ON APPEAL IS PROSCRIBED.-Verily the first time petitioners raised their theory of the nullity of the Conditional Deed of Sale in view of the questioned provisions was only in their Motion for Reconsideration of the Court of Appeals' Decision, affirming the trial court's judgment. The previous filing of various citations of authorities by Atty. Borromeo and the Court of Appeals' resolutions noting such citations were of no moment. The citations of authorities merely listed cases and their main rulings without even any mention of their relevance to the present case or any prayer for the Court of Appeals to consider them. In sum, the Court of Appeals did not err in disregarding the citations of authorities or in denying petitioner's motion for reconsideration of the assailed August 8, 2000 Decision in view of the proscription against changing legal theories on appeal.

3. CIVIL LAW; OBLIGATIONS AND CONTRACTS; CONTRACTS; A CONDITION IMPOSED ON THE PERFECTION OF A CONTRACT AND A CONDITION IMPOSED MERELY ON THE PERFORMANCE OF AN OBLIGATION, DISTINGUISHED; CONDITION IN THE SUBJECT CONDITIONAL DEED OF SALE THAT PAYMENT OF THE BALANCE OF THE PURCHASE PRICE IS CONDITION ON THE SUCCESSFUL NEGOTIATION OF A ROAD RIGHT OF WAY BY THE VENDEE IS A MIXED CONDITION.-In the past, this Court has distinguished between a condition imposed on the perfection of a contract and a condition imposed merely on the performance of an obligation. While failure to comply with the first condition results in the failure of a contract, failure to comply with the second merely gives the other party the option to either refuse to proceed with the sale or to waive the condition. This principle is evident in Article 1545 of the Civil Code on sales***. Paragraph 1(b)

of the Conditional Deed of Sale, stating that respondent shall pay the balance of the purchase price when he has successfully negotiated and secured a road right of way, is not a condition on the perfection of the contract nor on the validity of the entire contract or its compliance as contemplated in Article 1308. It is a condition imposed only on respondent's obligation to pay the remainder of the purchase price. In our view and applying Article 1182, such a condition is not purely potestative as petitioners contend. It is not dependent on the sole will of the debtor but also on the will of third persons who own the adjacent land and from whom the road right of way shall be negotiated. In a manner of speaking, such a condition is likewise dependent on chance as there is no guarantee that respondent and the third party-landowners would come to an agreement regarding the road right of way. This type of mixed condition is expressly allowed under Article 1182 of the Civil Code.

4. ID.; ID.; ID.; RESCISSION OF THE CONTRACT

UNWARRANTED; FILING OF AN ACTION IN COURT FOR THE FIXING OF PERIOD WITHIN WHICH THE VENDEE MUST COMPLY WITH HIS OBLIGATION, PROPER REMEDY.-Furthermore, it is evident from the language of paragraph 1(b) that the condition precedent (for respondent's obligation to pay the balance of the purchase price to arise) in itself partly involves an obligation to do, i.e., the undertaking of respondent to negotiate and secure a road right of way at his own expense. It does not escape our notice as well, that far from disclaiming paragraph 1(b) as void, it was the Catungals' contention before the trial court that said provision should be read in relation to paragraph 1(c) ***. The Catungals' interpretation of the [s]tipulation was that Rodriguez's obligation to negotiate and secure a road right of way was one with a period and that period, i.e., "enough time" to negotiate, had already lapsed by the time they demanded the payment of P5,000,000.00 from respondent. Even assuming arguendo that the Catungals were correct that the respondent's obligation to negotiate a road right of way was one with an uncertain period, their rescission of the Conditional Deed of Sale would still be unwarranted. Based on their own theory, the Catungals had a remedy under Article 1197 of the Civil Code ***. What the Catungals should have done was to first file an action in court to fix the period within which Rodriguez should accomplish the successful negotiation of the road right of

052041-2

5. ID.;

way pursuant to the above quoted provision. Thus, the Catungals' demand for Rodriguez to make an additional payment of P5,000,000.00 was premature and Rodriquez's failure to accede to such demand did not justify the rescission of the contract.

ID.; ID.; INTERPRETATION OF CONTRACTS; RULES; APPLICATION TO THE CASE AT BAR.-It is petitioners' strategy to insist that the Court examine the first sentence of paragraph 5 alone and resist a correlation of such sentence with other provisions of the contract. Petitioners' view, however, ignores basic rule in the interpretation of contracts that the contract should be taken as a whole. Article 1374 of the Civil Code provides that "[t]he various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly." The same Code further sets down the rule that "[i]f some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual." Similarly, under the Rules of Court it is prescribed that "[i]n the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all" and "for the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown so that the judge may be placed in the position of those whose language he is to interpret." Bearing in mind the aforementioned interpretative rules, we find that the first sentence of paragraph 5 must be taken in relation with the rest of paragraph 5 and with the other provisions of the Conditional Deed of Sale.

6. ID.; ID.; ID.; RESCISSION OF CONTRACT; THE VENDEE'S OPTION ΤΟ RESCIND THE CONTRACT IS NOT PURELY POTESTATIVE; EFFECT IF CONDITION IS NOT FULFILLED.-Rodriguez's option to rescind the contract is not purely potestative but rather also subject to the same mixed condition as his obligation to pay the balance of the purchase price - i.e., the negotiation of a road right of way. In the event the condition is fulfilled (or the negotiation is successful), Rodriguez must pay the balance of the purchase price. In the event the condition is not fulfilled (or the negotiation fails), Rodriguez has the choice either (a) to not proceed with the

sale and demand return of his downpayment or (b) considering that the condition was imposed for his benefit, to waive the condition and still pay the purchase price despite the lack of road access. This is the most just interpretation of the parties' contract that gives effect to all its provisions.

7. ID.; ID.; ID.; WHERE THE POTESTATIVE CONDITION IS IMPOSED NOT ON THE BIRTH OF THE OBLIGATION BUT ON ITS FULFILLMENT, ONLY THE CONDITION IS AVOIDED, LEAVING UNAFFECTED THE OBLIGATION ITSELF.-[E]ven if we assume for the sake of argument that the grant to Rodriguez of an option to rescind, in the manner provided for in the contract, is tantamount to a potestative condition, not being a condition affecting the perfection of the contract, only the said condition would be considered void and the rest of the contract will remain valid. In Romero, the Court observed that "where the so-called 'potestative condition' is imposed not on the birth of the obligation but on its fulfillment, only the condition is avoided, leaving unaffected the obligation itself."

8. ID.; ID.; ID.; HAVE THE FORCE OF LAW BETWEEN THE CONTRACTING PARTIES AND SHOULD BE COMPLIED WITH IN GOOD FAITH; A COURT HAS NO ALTERNATIVE BUT TO ENFORCE THE CONTRACTUAL STIPULATIONS IN THE MANNER THEY HAVE BEEN AGREED UPON AND WRITTEN.-It cannot be gainsaid that "contracts have the force of law between the contracting parties and should be complied with in good faith." We have also previously ruled that "[b]eing the primary law between the parties, the contract governs the adjudication of their rights and obligations. A court has no alternative but to enforce the contractual stipulations in the manner they have been agreed upon and written." We find no merit in petitioners' contention that their parents were merely "duped" into accepting the questioned provisions in the Conditional Deed of Sale. We note that although the contract was between Agapita Catungal and Rodriguez, Jose Catungal nonetheless signed thereon to signify his marital consent to the same. We concur with the trial court's finding that the spouses Catungals' claim of being misled into signing the contract was contrary to human experience and conventional wisdom since it was Jose Catungal who was a practicing lawyer while Rodriguez was a non-lawyer. It can be reasonably presumed that Atty. Catungal and his wife reviewed the provisions of the contract, understood and accepted its provisions before they affixed their signatures thereon.

9. ID.; ID.; ID.; VENDEE IS GIVEN A PERIOD OF THIRTY DAYS FROM THE FINALITY OF THE DECISION TO NEGOTIATE A ROAD RIGHT OF WAY; THE COURT FIXED THE PERIOD IN ORDER TO AVOID FURTHER DELAY AND MULTIPLICITY OF SUITS.— After thorough review of the records of this case, we have come to the conclusion that petitioners failed to demonstrate that the Court of Appeals committed any reversible error in deciding the present controversy. However, having made the observation that it was desirable for the Catungals to file a separate action to fix the period for respondent Rodriguez's obligation to negotiate a road right of way, the Court finds it necessary to fix said period in these proceedings. It is but equitable for us to make a determination of the issue here to obviate further delay and in line with the judicial policy of avoiding multiplicity of suits. If still warranted, Rodriguez is given a period of thirty (30) days from the finality of this decision to negotiate a road right of way. In the event no road right of way is secured by Rodriguez at the end of said period, the parties shall reassess and discuss other options as stipulated in paragraph 1(b) of the Conditional Deed of Sale and, for this purpose, they are given a period of thirty (30) days to agree on a course of action. Should the discussions of the parties prove futile after the said thirty (30) day period, immediately upon the expiration of said period for discussion, Rodriguez may (a) exercise his option to rescind the contract, subject to the return of his downpayment, in accordance with the provisions of paragraphs 1(b) and 5 of the Conditional Deed of Sale or (b) waive the road right of way and pay the balance of the deducted purchase price as determined in the RTC Decision dated May 30, 1992.