Republic of the Philippines

6th Judicial Region

KEXYA O. GUSTILO
Plaintiff,
-vs.-
CIVIL CASE No. 20-11623
For: Collection for Sum of
Money with Damages
EUNICE C. VALAD-ON
Respondent.
x------------------------------------------------------------x

POSITION PAPER

(COMPLAINANT)

Complainant KEXYA O. GUSTILO (“Complainant”) through

the undersigned counsel and unto this Honorable Court respectfully

states that:

PREFATORY NOTE

This is a Complaint for collection of sum of money. Through an

Agreement executed by the Complainant and the Respondent that

Five (5) Automatic Solar Feeders in the amount of Two Million Pesos

(P2,000,000.00) per feeder was offered to the latter for a total price

of Ten Million Pesos (P10,000,000.00), payable in two (2)

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installments.

Respondent paid the first installment upon due date and all the

automatic feeders were delivered to her as provided in the

Agreement but failed to settle the second installment upon due date

and that she wishes to offer the products of FishTech Breeder and

Supplier to the Complainant in lieu of the agreed payment as she is a

partner to such. Complainant refused to accept such and desire to

impose what was stipulated in the Agreement. Likewise, claims for

damages and attorney’s fees are included in this Complaint.

Contracts entered into by parties give rise to stipulations which

govern their relationship. Parties, the debtor and creditor, to said

contracts are compelled for their respective performance or payment

of the obligation. Such agreements are governed by our Civil Laws.

As far as the second installment, which Respondent failed to

settle, her offer of the products of FishTech Breeder and Supplier

shall only fulfill the entirety of the obligation upon Complainant’s

acceptance, knowing that payment of said selling price is incomplete

and irregular, or without expressing any protest. Also, FishTech

Breeder and Supplier, being a juridical person, is a stranger to said

Agreement. FishTech Breeder and Supplier and Respondent are

distinct personalities; hence, a third person who has no interest in the

fulfillment of the obligation cannot bind Complainant to accept

payment or performance, unless such was stipulated in the

Agreement.

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 I. PARTIES

Complainant KEXYA O. GUSTILO (“Complainant”) is an

equipment supplier to fish farms. Her address is at Barangay Sapa,

Miagao, Iloilo, Philippines. She may be served notices, orders, legal

processes, and the judgment of the Honorable Court through her

counsel of record, ATTY. ANGEL MARIE S. LASQUITE at

ANGELITUD, AMUENDA AND LASQUITE Law Offices, RAV

Building, Brgy. Ungka 2, Pavia, Iloilo.

Respondent EUNICE C. VALAD-ON (“Respondent”) is a

partner of FishTech Breeder and Supplier, which is the biggest fish

farm of high-valued fishes in Western Visayas. The Respondent’s

residential address at Brgy. Aganan, Pavia, Iloilo, Philippines.

II. STATEMENT OF FACTS AND OF THE CASE

Before the instant suit was filed before the Honorable Court, the

Complainant was one of the feeds and equipment supplier for the

FishTech Breeder and Supplier, which is the biggest fish farm of high-

valued fishes in Western Visayas;

Complainant offered to sell Five (5) Automatic Solar Feeders in

the amount of Two Million Pesos (P2,000,000.00) per feeder to

Respondent for a total price of Ten Million Pesos (P10,000,000.00);

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 Respondent and Complainant executed an Agreement which

stated that said sum be paid by Respondent in two installments; the

first being on September 30, 2019 and the Second be on November

15, 2019. The Agreement of the Complainant and Respondent is

hereto attached and marked as Annex “A”;

Respondent paid the first installment but failed to pay the

second installment amounting to Five Million Pesos (P5,000,000.00)

on November 15, 2019. Respondent avers that she was not able to

come up with such amount since she received very low profit shares

due to their company losses at that time.

Complainant verbally demanded the amount from Respondent

but instead, FishTech Breeder and Supplier sent a letter dated

November 27, 2019. FishTech Breeder and Supplier, to which

Respondent is a partner at, offered the high-value products of the

FishTech Breeder and Supplier, that the total of the amount of the

products to be given to Complainant will also be Five Million Pesos

(P5,000,000.00) to settle the account; Attached hereto is a copy of

the Letter of FishTech Breeder and Supplier dated November 27,

2019 and marked as Annex “B”;

FishTech Breeder and Supplier was not a party in the

Agreement executed by the Complainant and the Respondent.

Though Respondent was a partner in such company, it was only

Complainant and Respondent that were involved in the Agreement. It

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was also not stipulated in the Agreement that she can pay you in any

modes other than cash but only agreed that payment be made cash;

Complainant refused to accept such offer and sent them a letter

declining their offer and demanding her to pay the remaining balance

amounting to Five Million Pesos (Php 5,000,000.00). Attached hereto

is a copy of the Reply Letter of the Complainant dated December 1,

2019 and marked as Annex “C”;

Complainant did not accept those products as a means of

payment for the second installment because even though the

products offered to her were known to be high-valued, she will have

to handle the transportation and logistics of the products to be

delivered in those countries in its freshest condition. Furthermore, it is

not Complainant’s field of expertise in the hauling of high-value

products because some countries have a very high standard when it

comes to imported fishes and with lack of proper connections and

manpower, Complainant might even incur losses.

Complainant claims that she cannot be compelled to accept

any other performance to comply with the obligation. That the offer of

FishTech Breeder and Supplier of their high-value products to settle

the account of Respondent for her remaining balance of Five Million

Pesos (P5,000,000.00) in the second installment of the Five (5)

Automatic Solar Feeders is not valid to extinguish the obligation that

we exclusively both entered into.

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 Complainant desires to impose the fulfillment of the obligation

as stipulated in the Agreement executed on September 22, 2019.

Hence, this Position Paper.

III. ISSUE

I. WHETHER THE COMPLAINANT, UNDER THE CIVIL CODE,

CAN BE COMPELLED TO ACCEPT ANY OTHER

PERFORMANCE TO COMPLY WITH THE OBLIGATION

IV. DISCUSSION and ARGUMENTS

I. COMPLAINANT CANNOT BE COMPELLED TO ACCEPT

ANY OTHER PERFORMANCE TO COMPLY WITH THE

OBLIGATION

The Complainant cannot be compelled to accept another

performance. As provided in articles of the Civil Code of the

Philippines, the obligation is deemed fully complied with when the

obligee accepts the performance, knowing its incompleteness or

irregularity, and without expressing any protest or objection; and that

the obligee cannot be compelled to accept payment or performance

from a third (3rd) person with no interest in said obligation, unless a

stipulation in the contract expressly so states.

Contracts give rise to stipulations agreed thereto by the parties,

creating a legal tie between its executors as it is a meeting of the

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minds. For the fulfillment of the obligation, the parties under such

contract are compelled to their respective performances.

Article 1233 of the Civil Code of the Philippines provides that a

debt shall be understood as paid when the performance or payment

has been completely rendered or delivered. Such payment or

performance does not only include money, delivery of a thing, but

also of rendering a service depending on the terms stipulated on the

agreement by the parties.

In the case at bar, on September 22, 2019, Plaintiff and

Respondent entered into an Agreement to which the former offered to

sell Five (5) Automatic Solar Feeders in the amount of Two Million

Pesos (P2,000,000.00) per feeder was offered to which the latter

agreed to buy for a total price of Ten Million Pesos (P10,000,000.00)

The Agreement stipulated that the selling price be paid by

Respondent into two (2) installments. The first installment being on

September 30, 2019, delivering to the Respondent the five automatic

solar feeders; and the second installment being on November 15,

2019.

The Respondent, on September 30, 2019, paid the first

installment and the five automatic solar feeders were delivered to the

fish farm of Ms. Valad-on in Dumanggas, Iloilo. Respondent’s failed

to settle the remaining balance on November 15, 2019 so Plaintiff

sent written demand to the former. In a reply, Respondent wished to

make payments by offering the high-value fish products of FishTech

accept such.

Under Article 1235 of the Civil Code, the law provides that:

"When the obligee accepts the performance, knowing its

incompleteness or irregularity, and without expressing any

protest or objection, the obligation is deemed fully complied

with."

In incomplete or irregular payment or performance of an

obligation, the obligation is deemed fully complied with when the

obligee knowing its incompleteness shall pose no objection or protest

against such performance.

FishTech Breeder and Supplier, a juridical person in the form of

a partnership, to which Respondent is a partner, offered to provide

Plaintiff its high-value fish products to settle the second installment to

which the Plaintiff refused to accept.

Paragraph 1 of Article 1236 of the Civil Code of the Philippines

provides that:

"The creditor is not bound to accept payment or performance

by a third person who has no interest in the fulfillment of the

obligation, unless there is a stipulation to the contrary."

FishTech Breeder and Supplier, having a distinct and separate

personality from Respondent, a stranger to the Agreement and

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without interest to the fulfillment of the obligation, cannot compel

Plaintiff to accept the payment or performance, unless there is a

stipulation to the contrary.

RESERVATION

Complainant respectfully reserves his right to present additional

documentary and testimonial evidence in the course of the

proceedings.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is respectfully

prayed of the Honorable Court that judgment be rendered in the

following:

1. ORDERING the respondent to pay the Complainant the amount

of Five Million Pesos (PhP 5,000,000.00) Philippine Currency,

representing Defendant's Outstanding Balance plus interest;

2. ORDERING the respondent to pay the Attorney’s Fees since

Complainant was compelled to hire the services of counsel for

an agreed sum of Fifty Thousand Pesos (PhP50,000.00),

Philippine Currency plus Three Thousand Pesos

(PhP3,000.00), Philippine Currency for counsel’s appearance

fee per appearance in court;

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3. ORDERING, the respondents to pay the amount of Php

100,000.00 to the Complainant, as and by way of the moral and

exemplary damages;

4. ORDERING the respondents to pay judicial costs and litigation

expenses in the sum of Twenty Thousand Pesos

(PhP20,000.00), Philippine Currency; and

5. And DECLARING Complainant cannot be compelled to accept

any other performance to comply with the obligation.

Respondent to pay the said obligations to the Complainant.

Other reliefs consistent with justice and equity are likewise

prayed for.

RESPECTFULLY SUBMITTED.

February 26, 2020, Iloilo, Philippines

ANGELITUD, AMUENDA AND LASQUITE Law Offices

By:

ATTY. ANGEL MARIE S. LASQUITE

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 PTR No. 1451025- January 12, 2018, PTO Iloilo
IBP O.R. No. 852012— January 11, 2018, IBP-Iloilo Chapter
MCLE Compliance NO. IV 000-52105. 27 January 2019

REPUBLIC OF THE PHILIPPINES )

CITY OF ILOILO ) S.S.

X----------------------------------------------X

VERIFICATION / CERTIFICATION

I, KEXYA O. GUSTILO, of legal age, Filipino and a resident of

Barangay Sapa, Miagao, Iloilo, Philippines after having been duly

sworn to in accordance with law do hereby depose and say:

That I am the Plaintiff in the above-entitled case;

That I caused the foregoing Position Paper to be prepared;

That I have read and understood the same, and that all the

allegations stated therein are true and correct of my own knowledge

and information;

That I have not caused any other action or proceeding involving

the same issues before the Supreme Court, the Court of Appeals, or

any other tribunal or agency, and if there is any, such action or

proceeding which is either pending or may have been terminated, I

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must state the status thereof and if I should thereafter learn that a

similar action or proceeding has been filed or is pending before the

Supreme Court, the Court of Appeals, or any other tribunal or agency,

I undertake to report the fact within five (5) days therefrom to the

court or agency wherein the original pleading and sworn certification

contemplated herein has been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this

________day of _______________ at Iloilo City, Philippines.

KEXYA O. GUSTILO
Affiant
ID No. ___________

SUBSCRIBED AND SWORN to before me, this ___________

day of _____________________ at the City of Iloilo, Philippines.

Affiant exhibiting to me his competent evidence of identity written

below his name.

Doc. No. ________

Page No. ________

Book No. ________

Series of 2018.

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