G.R. No.

171660               October 17, 2011

CONTINENTAL CEMENT CORPORATION Petitioner,

vs.
ASEA BROWN BOVERI, INC., BBC BROWN BOVERI, CORP., AND TORD B.
ERIKSON,** Respondents.

DECISION

DEL CASTILLO, J.:

"Except as provided by law or by stipulation, one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as
actual or compensatory damages."1

This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails the
Decision3 dated August 25, 2005 and the Resolution4 dated February 16, 2006 of the Court of
Appeals (CA) in CA-G.R. CV No. 58551.

Factual Antecedents

Sometime in July 1990, petitioner Continental Cement Corporation (CCC),

a corporation engaged in the business of producing cement,5 obtained the services of

respondents6 Asea Brown Boveri, Inc. (ABB) and BBC Brown Boveri, Corp. to repair its 160 KW Kiln
DC Drive Motor (Kiln Drive Motor).7

On October 23, 1991, due to the repeated failure of respondents to repair the Kiln Drive Motor,
petitioner filed with Branch 101 of the Regional Trial Court (RTC) of Quezon City a Complaint8 for
sum of money and damages, docketed as Civil Case No. Q-91-10419, against respondent
corporations and respondent Tord B. Eriksson (Eriksson), Vice-President of the Service Division of
the respondent ABB.9 Petitioner alleged that:

4. On July 11, 1990, the plaintiff delivered the 160 KW Kiln DC Drive Motor to the defendants
to be repaired under PO No. 17136-17137, x x x

The defendant, Tord B. Eriksson, was personally directing the repair of the said Kiln Drive
Motor. He has direction and control of the business of the defendant corporations.
Apparently, the defendant Asea Brown Boveri, Inc. has no separate personality because of
the 4,000 shares of stock, 3996 shares were subscribed by Honorio Poblador, Jr. The four
other stockholders subscribed for one share of stock each only.

5. After the first repair by the defendants, the 160 KW Kiln Drive Motor was installed for
testing on October 3, 1990. On October 4, 1990 the test failed. The plaintiff removed the DC
Drive Motor and replaced it with its old motor. It was only on October 9, 1990 that the plaintiff
resumed operation. The plaintiff lost 1,040 MTD per day from October 5 to October 9, 1990.

6. On November 14, 1990, after the defendants had undertaken the second repair of the
motor in question, it was installed in the kiln. The test failed again. The plaintiff resumed
operation with its old motor on November 19, 1990. The plaintiff suffered production losses
for five days at the rate of 1,040 MTD daily.

7. The defendants were given a third chance to repair the 160 KW Kiln DC Drive Motor.  On 1avvphi1

March 13, 1991, the motor was installed and tested. Again, the test failed. The plaintiff
resumed operation on March 15, 1991. The plaintiff sustained production losses at the rate
of 1,040 MTD for two days.

8. As a consequence of the failure of the defendants to comply with their contractual

obligation to repair the 160 KW Kiln DC Drive Motor, the plaintiff sustained the following
losses:

(a) Production and opportunity losses - ₱10,600,000.00

 This amount represents only about 25% of the production losses at the rate of
₱72.00 per bag of cement.

(b) Labor Cost and Rental of Crane - 26,965.78

(c) Penalties (at ₱987.25 a day) for

failure to deliver the motor from
Aug. 29, 1990 to July 31, 1991. - 331,716.00

(d) Cost of money interest of the

₱987.25 a day from July 18, 1990
to April 5, 1991 at 34% for 261 days - 24,335.59

Total Damages 10,983,017.42

9. The plaintiff has made several demands on the defendants for the payment of the above-
enumerated damages, but the latter refused to do so without valid justification.

10. The plaintiff was constrained to file this action and has undertaken to pay its counsel
Twenty Percentum (20%) of the amount sought to be recovered as attorney’s fees.10

Respondents, however, claimed that under Clause 7 of the General Conditions,11 attached to the
letter of offer12 dated July 4, 1990 issued by respondent ABB to petitioner, the liability of respondent
ABB "does not extend to consequential damages either direct or indirect."13 Moreover, as to
respondent Eriksson, there is no lawful and tenable reason for petitioner to sue him in his personal
capacity because he did not personally direct the repair of the Kiln Drive Motor.14

Ruling of the Regional Trial Court

On August 30, 1995, the RTC rendered a Decision15 in favor of petitioner. The RTC rejected the
defense of limited liability interposed by respondents since they failed to prove that petitioner
received a copy of the General Conditions.16 Consequently, the RTC granted petitioner’s claims for
production loss, labor cost and rental of crane, and attorney’s fees.17 Thus:

WHEREFORE, premises above considered, finding the complaint substantiated by plaintiff,

judgment is hereby rendered in favor of plaintiff and against defendants, hereby ordering the latter to
pay jointly and severally the former, the following sums:

₱10,600,00.00 for loss of production;

₱ 26,965.78 labor cost and rental of crane;

₱ 100,000.00 attorney’s fees and cost.

SO ORDERED.18

Ruling of the Court of Appeals

On appeal, the CA reversed the ruling of the RTC. The CA applied the exculpatory clause in the
General Conditions and ruled that there is no implied warranty on repair work; thus, the repairman
cannot be made to pay for loss of production as a result of the unsuccessful repair.19 The fallo of the
CA Decision20 reads:

WHEREFORE, premises considered, the assailed August 30, 1995 Decision of the Regional Trial
Court of Quezon City, Branch 101 is hereby REVERSED and SET ASIDE. The October 23, 1991
Complaint is hereby DISMISSED.

SO ORDERED.21

Petitioner moved for reconsideration22 but the CA denied the same in its Resolution23 dated February
16, 2006.
 Issues

Hence, the present recourse where petitioner interposes the following issues:

1. Whether x x x the [CA] gravely erred in applying the terms of the "General Conditions" of
Purchase Orders Nos. 17136 and 17137 to exculpate the respondents x x x from liability in
this case.

2. Whether x x x the [CA] seriously erred in applying the concepts of ‘implied warranty’ and
‘warranty against hidden defects’ of the New Civil Code in order to exculpate the
respondents x x x from its contractual obligation.24

Petitioner’s Arguments

Petitioner reiterates that the General Conditions cannot exculpate respondents because petitioner
never agreed to be bound by it nor did petitioner receive a copy of it.25 Petitioner also imputes error
on the part of the CA in applying the concepts of warranty against hidden defects and implied
warranty.26 Petitioner contends that these concepts are not applicable because the instant case does
not involve a contract of sale.27 What applies are Articles 1170 and 2201 of

the Civil Code.28

Respondents’ Arguments

Conversely, respondents insist that petitioner is bound by the General Conditions.29 By issuing
Purchase Order Nos. 17136-37, petitioner in effect accepted the General Conditions appended to
respondent ABB’s letter of offer.30 Respondents likewise defend the ruling of the CA that there could
be no implied warranty on the repair made by respondent ABB as the warranty of the fitness of the
equipment should be enforced directly against the manufacturer of the Kiln Drive
Motor.31 Respondents also deny liability for damages claiming that they performed their obligation in
good faith.32

Our Ruling

The petition has merit.

Petitioner and respondent ABB entered into a contract for the repair of petitioner’s Kiln Drive Motor,
evidenced by Purchase Order Nos. 17136-37,33 with the following terms and conditions:

a) Total Price: ₱197,450.00

b) Delivery Date: August 29, 1990 or six (6) weeks from receipt of order and down payment34

c) Penalty: One half of one percent of the total cost or Nine Hundred Eighty Seven Pesos
and Twenty five centavos (₱987.25) per day of delay.

Respondent ABB, however, not only incurred delay in performing its obligation but likewise failed to
repair the Kiln Drive Motor; thus, prompting petitioner to sue for damages.

Clause 7 of the General Conditions is not binding on petitioner

Respondents contend that under Clause 7 of the General Conditions their liability "does not extend
to consequential damages either direct or indirect."35 This contention, however, is unavailing because
respondents failed to show that petitioner was duly furnished with a copy of said General Conditions.
Hence, it is not binding on petitioner.

Having breached the contract it entered with petitioner, respondent ABB is liable for damages
pursuant to Articles 1167, 1170, and 2201 of the Civil Code, which state:

Art. 1167. If a person obliged to do something fails to do it, the same shall be executed at his cost.
This same rule shall be observed if he does it in contravention of the tenor of the obligation.
Furthermore, it may be decreed that what has been poorly done be undone.

Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay,
and those who in any manner contravene the tenor thereof, are liable for damages.

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good
faith is liable shall be those that are the natural and probable consequences of the breach of the
obligation, and which the parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages
which may be reasonably attributed to the non-performance of the obligation.

Based on the foregoing, a repairman who fails to perform his obligation is liable to pay for the cost of
the execution of the obligation plus damages. Though entitled, petitioner in this case is not claiming
reimbursement for the repair allegedly done by Newton Contractor,36 but is instead asking for
damages for the delay caused by respondent ABB.

Petitioner is entitled to penalties under Purchase Order Nos. 17136-37

As per Purchase Order Nos. 17136-37, petitioner is entitled to penalties in the amount of ₱987.25
per day from the time of delay, August 30, 1990, up to the time the Kiln Drive Motor was finally
returned to petitioner. Records show that although the testing of Kiln Drive Motor was done on
March 13, 1991, the said motor was actually delivered to petitioner as early as January 7,
1991.37 The installation and testing was done only on March 13, 1991 upon the request of petitioner
because the Kiln was under repair at the time the motor was delivered; hence, the load testing had
to be postponed.38

Under Article 122639 of the Civil Code, the penalty clause takes the place of indemnity for damages
and the payment of interests in case of non-compliance with the obligation, unless there is a
stipulation to the contrary. In this case, since there is no stipulation to the contrary, the penalty in the
amount of ₱987.25 per day of delay covers all other damages (i.e. production loss, labor cost, and
rental of the crane) claimed by petitioner.

Petitioner is not entitled to recover production loss, labor cost and the rental of crane

Article 1226 of the Civil Code further provides that if the obligor refuses to pay the penalty, such as
in the instant case, 40 damages and interests may still be recovered on top of the penalty. Damages
claimed must be the natural and probable consequences of the breach, which the parties have
foreseen or could have reasonably foreseen at the time the obligation was constituted.41

Thus, in addition to the penalties, petitioner seeks to recover as damages production loss, labor cost
and the rental of the crane.

Petitioner avers that every time the Kiln Drive Motor is tested, petitioner had to rent a crane and pay
for labor to install the motor.42 But except for the Summary of Claims for Damages,43 no other
evidence was presented by petitioner to show that it had indeed rented a crane or that it incurred
labor cost to install the motor.

Petitioner likewise claims that as a result of the delay in the repair of the Kiln Drive Motor, its
production from August 29, 1990 to March 15, 1991 decreased since it had to use its old motor
which was not able to produce cement as much as the one under repair;44 and that every time the
said motor was installed and tested, petitioner had to stop its operations; thereby, incurring more
production losses.45 To support its claim, petitioner presented its monthly production reports46 for the
months of April to June 1990 showing that on the average it was able to produce 1040 MT of cement
per day. However, the production reports for the months of August 1990 to March 1991 were not
presented. Without these production reports, it cannot be determined with reasonable certainty
whether petitioner indeed incurred production losses during the said period. It may not be amiss to
say that competent proof and a reasonable degree of certainty are needed to justify a grant of actual
or compensatory damages; speculations, conjectures, assertions or guesswork are not sufficient.47
Besides, consequential damages, such as loss of profits on account of delay or failure of delivery,
may be recovered only if such damages were reasonably foreseen or have been brought within the
contemplation of the parties as the probable result of a breach at the time of or prior to
contracting.48 Considering the nature of the obligation in the instant case, respondent ABB, at the
time it agreed to repair petitioner’s Kiln Drive Motor, could not have reasonably foreseen that it would
be made liable for production loss, labor cost and rental of the crane in case it fails to repair the
motor or incurs delay in delivering the same, especially since the motor under repair was a spare
motor.49

For the foregoing reasons, petitioner is not entitled to recover production loss, labor cost and the
rental of the crane.

Petitioner is not entitled to attorney’s fees

Neither is petitioner entitled to the award of attorney’s fees. Jurisprudence requires that the factual
basis for the award of attorney’s fees must be set forth in the body of the decision and not in the
dispositive portion only.50 In this case, no explanation was given by the RTC in awarding attorney’s
fees in favor of petitioner. In fact, the award of attorney’s fees was mentioned only in the dispositive
portion of the decision.

Respondent Eriksson cannot be made jointly and severally liable for the penalties

Respondent Eriksson, however, cannot be made jointly and severally liable for the penalties. There
is no showing that respondent Eriksson directed or participated in the repair of the Kiln Drive Motor
or that he is guilty of bad faith or gross negligence in directing the affairs of respondent ABB. It is a
basic principle that a corporation has a personality separate and distinct from the persons
composing or representing it; hence, personal liability attaches only in exceptional cases, such as
when the director, trustee, or officer is guilty of bad faith or gross negligence in directing the affairs of
the corporation.51

In sum, we find petitioner entitled to penalties in the amount of ₱987.25 per day from August 30,
1990 up to January 7, 1991 (131 days) or a total amount of ₱129,329.75 for the delay caused by
respondent ABB. Finally, we impose interest at the rate of six percent (6%) on the total amount due
from the date of filing of the complaint until finality of this Decision. However, from the finality of
judgment until full payment of the total award, the interest rate of twelve percent (12%) shall apply.52

WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated August 25, 2005 and
the Resolution dated February 16, 2006 of the Court of Appeals in CA-G.R. CV No. 58551 are
hereby REVERSED and SET ASIDE. Respondent ABB is ORDERED to pay petitioner the amount
of ₱129,329.75, with interest at 6% per annum to be computed from the date of the filing of the
complaint until finality of this Decision and 12% per annum thereafter until full payment.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO DIOSDADO M. PERALTA*

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

* In lieu of Associate Justice Lucas P. Bersamin, per Special Order No. 1110 (Revised)
dated September 30, 2011.

** Sometimes referred as Tord B. Eriksson in some parts of the records.

1
 Civil Code, Article 2199.

2
 Rollo, pp. 30-166 with Annexes "A" to "M" inclusive.

3
 Id. at 54-64; penned by Associate Justice Vicente Q. Roxas and concurred in by Associate
Justices Portia Aliño-Hormachuelos and Juan Q. Enriquez, Jr.

4
 Id. at 66-67.

5
 Id. at 30.

6
 The two corporations merged on June 10, 1988, with Asea Brown Boveri, Inc. as the
surviving entity. (Id. at 88).

7
 Id. at 55.

8
 Id. at 79-81.

9
 Id. at 90.

10
 Id. at 79-81.

11
 Id. at 95. Clause 7 provides:

Clause 7. GENERAL LIABILITY AND MAINTENANCE GUARANTEE

All machinery and apparatus for our manufacture is guaranteed to be of high grade
material and of good and careful workmanship and we undertake to correct and
make good any defect or defects which may develop under normal and proper use
within the guarantee period and which are due solely to faulty design, material, or
workmanship, provided always that we are notified immediately after the defect is
discovered and that such defective parts are promptly returned. The repaired or new
parts will be delivered free or in the case of goods for exports f.o.b. Defective parts
thus replaced remain our property. Unless otherwise stated in the tender or order
confirmation the guarantee period is twelve months for all ordinary machinery and
apparatus operated under normal conditions. The guarantee period is reckoned from
the date delivery is made, or if delivery cannot be made on account of delays caused
by circumstances beyond our control, from the date the goods are ready for dispatch
at our premises. All liability on our part ceases at the termination of the guarantee
period.

Our liability is in all cases limited as provided in these conditions and does not extend
to consequential loss either direct or indirect, nor to expenses for repair or
replacements or otherwise paid or incurred without our written authority.
12
 Id. at 93-94.

13
 Id. at 95.

14
 Id. at 90-91.

15
 Id. at 97-107; penned by Judge Pedro T. Santiago.

16
 Id. at 106.

17
 Id.

18
 Id.

19
 Id. at 59-63.

20
 Id. at 54-64

21
 Id. at 63.

22
 Id. at 68-78.

23
 Id. at 66-67.

24
 Id. at 276.

25
 Id. at 277-279.

26
 Id. at 279.

27
 Id.

28
 Id. at 280-282.

29
 Id. at 248.

30
 Id.

31
 Id. at 255.

32
 Id. at 259.

33
 Id. at 82-83.

 Down payment was made on July 18, 1990; TSN dated July 27, 1994, Direct Examination
34

of Jessica Alonzo, p. 12.

35
 Rollo, p. 89.

36
 TSN dated June 15, 1994, Direct Examination of Engr. Juanito Fernando, p. 9.

37
 Records, p. 391.

38
 Id.

39
 Art. 1226. In obligations with a penal clause, the penalty shall substitute the indemnity for
damages and the payment of interests in case of noncompliance, if there is no stipulation to
the contrary. Nevertheless, damages shall be paid if the obligor refuses to pay the penalty or
is guilty of fraud in the fulfillment of the obligation.
 The penalty may be enforced only when it is demandable in accordance with the
provisions of this Code.

40
 Rollo, pp. 81 and 88.

41
 Civil Code, Article 1174.

42
 TSN dated July 27, 1994, Direct Examination of Jessica Alonzo, p. 9.

43
 Records, p. 343.

44
 TSN dated July 27, 1994, Direct Examination of Jessica Alonzo, pp.4-11.

45
 Id.

46
 Records, pp. 340-342.

47
 Citytrust Banking Corporation v. Villanueva, 413 Phil. 776, 787 (2001).

 Mendoza v. Philippine Air Lines, Inc., 90 Phil. 836, 844 (1952), citing Chapman v. Fargo,
48

L.R.A. (1918 F) p. 1049.

49
 TSN dated June 15, 1994, Direct Examination of Engr. Juanito Fernando, pp. 4-5.

 Mercury Drug Corporation v. Baking, G.R. No. 156037, May 25, 2007, 523 SCRA 184,
50

192.

 Queensland-Tokyo Commodities, Inc. v. George, G.R. No. 172727, September 8, 2010,

51

630 SCRA 304, 315.

 Duarte v. Duran, G.R. No. 173038, September 14, 2011, citing Tropical Homes, Inc. v.
52

Court of Appeals, 338 Phil. 930, 943-943 (1997), and Eastern Shipping Lines, Inc. v. Court of
Appeals, G.R. No. 97412, July 12, 1994, 234 SCRA 78, 95-97.