Purpose of the Rule on Evidence: It is designed to enable the inquiry to proceed with least waste of time and effort, and at the same time guard against prejudice and arbitrariness.
Law of Evidence – Consists of those rules, statutory and judicial, which regulate the acceptance or rejection of the information to a legal tribunal which will justify a conclusion or judgment upon the matter in issue before it.
It furnishes matter of fact:
1. It prescribes the manner of presenting evidence
2. It fixes the qualification and the privileges of witnesses and the mode of examining them
3. It determines which are logically and in their nature evidential, what classes of things shall not be received
Evidence – anything that makes evident or clear to the mind, or such things collectively; any ground or reason for knowledge or certitude in knowledge; proof whether from immediate knowledge or from thought, authority or testimony; a fact or body of facts on which a proof, belief or judgment is based; that which shows or indicates.
In law, the matter to be proved is the contention of the litigant as to the issue, and it is most fundamental rule that evidence offered must correspond with the allegations and be confined to the point in issue. Scope of Law on Evidence
1. Prescribes the manner of presenting evidence
2. Fixes the qualification and privilege of witnesses and mode of examining them
3. Determines among the probative matters things which are logically and in their nature evidential, and what classes of things shall not be received.
RULE 128
Section 1. Evidence defined. – Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.
Component Elements:
1. Evidence as a means of ascertainment – Evidence may refer to the evidentiary fact or the manner of bringing this fact forward before the tribunal, or both.
Wigmore’s definition: any knowable fact or group of facts, not a legal or logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a
conviction, positive or negative, on the part of the tribunal, as to the truth of a proposition not of law or of logic, on which the determination of the tribunal is to be asked.
2. Sanctioned by these rules – means allowed under these rules or not excluded by these rules. 3. In a judicial proceeding – contemplates a jural conflict.
4. The truth respecting a matter of fact – refers to an issue of fact and is both substantive and procedural. The manner of proving these facts or acts is procedural and is governed by the rules on evidence.
Evidence Argumentation
The process of presentation or demonstration of the jural relation between the parties can be accomplished only by the use of a number of facts, the final logical result being the establishment of the total fact.
The invocation by counsel of ordinary rules of logic and rhetoric in the combination of assumed facts.
Factum Probandum Factum Probans
Ultimate fact to be established , the PROPOSITION of which evidence may be offered is given by the rules of substantive law and pleadings
Material evidencing the proposition. It is the evidential fact or the fact by which factum probandum is established.
Classification of Rules of Evidence
1. Rules of probative policy – to improve the probative value of the evidence offered. It consists of the following rules:
a. Exclusionary rule – excludes certain kinds of evidence, on grounds partly of relevancy and partly of policy
b. Preferential rules – requires one kind of evidence in preference over the other
c. Analytic rules – rules subject certain kinds of evidence to rigid scrutiny, so as to expose it possible weaknesses and shortcomings.
d. Prophylactic rules – rules which apply beforehand, certain measures to prevent risk or falsity or mistake.
e. Quantitative rules – require certain kinds of evidence to be produced in specific quantity. Appreciating the probable weakness of certain kinds of evidence, these require them to be associated with other evidence when presented.
2. Rules of Extrinsic Policy – these rules seek to exclude useful evidence for the sake of upholding other policies considered more paramount and are either absolute or conditional
Different Kinds of Evidence
1. Relevant Evidence – evidence having any value in reason as tending to prove any matter provable in an action. It is relevant when it has a tendency to establish the probability or improbability of a fact in issue. 2. Material Evidence – It is material when directed to prove a fact in issue as determined by the rules of
substantive law and pleadings.
3. Competent Evidence – it is competent when not excluded by law in a particular case.
4. Direct and Circumstantial Evidence – Direct when it proves the fact in dispute without the aid of any inference or presumption. Circumstantial when the proof of fact or facts from which, taken either singly or collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence. Circumstantial evidence is founded on experience and observed facts and coincidences establishing a connection between the known and proven facts and the facts sought to be proved. 5. Positive and Negative Evidence – Positive when it affirms that a fact did or did not occur while
negative when the witness states that he did not see or know the occurrence of a fact.
6. Rebutting Evidence - that which is given to repel, counteract or disprove facts given in evidence on the other side.
7. Primary or Best and Secondary Evidence – Primary or best evidence affords the greatest certainty of the fact in question. Secondary evidence indicates the existence of more original source of information. It is that which is inferior to primary evidence, and permitted by law only when the better evidence is not available.
8. Expert Evidence – It is testimony of one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by another person.
9. Prima Facie Evidence – it is the evidence which standing alone unexplained or uncontroverted, is sufficient to maintain the proposition affirmed.
10. Conclusive Evidence – incontrovertible
11. Cumulative evidence – Additional evidence of the same kind bearing on the same point. Evidence is not inadmissible simply because it is cumulative but considerable discretion may be exercised by the trial judge in determining the extent to which such evidence will be received and in limiting the number of witnesses who may testify to a particular fact.
12. Corroborative Evidence - additional evidence of a different kind and character, tending to prove the same point.
Evidence Proof
Means of proof Effect of evidence
Means tending to show guilt but all combined might Is the degree and quantity of evidence that law, it will entitle a person to relief or from which
entitlement may reasonably inferred; otherwise it becomes immaterial.
would not be in the nature of the proof but in the nature of facts required to be proved. The latter is in reality civil or penal law, not evidence.
Forms of Evidence
1. Testimonial evidence – evidence given in open court by witnesses who have knowledge of the facts 2. Documentary evidence – such as public records, private writings, business records, photographs, maps,
and the like
3. Object evidence – tangible objects or exhibits
4. Opinion testimony – recital of factual details by qualified experts in education, training or experience in particular fields.
Individuals and party litigants cannot, by private contract, stipulate rules of evidence that shall be binding on the courts. Parties to a contract may legally stipulate as to the effect of certain types of evidence on the contractual rights of the parties, so long as their agreements do not infringe upon the jurisdiction of the courts.
Section 2. Scope – The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules.
Rules of admissibility are in general the same for the trial of civil and of criminal cases. Whether a matter is true or false is the same in all cases. This general principle is the basic rule of admissibility of all evidence.
The rules are applicable in proceedings like judicial, quasi-judicial, administrative and all other proceedings.
All relevant evidence should be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.
Quantum of evidence
1. Criminal cases – proof beyond reasonable doubt 2. Civil cases – preponderance of evidence
3. Administrative – substantial evidence
Preponderance of Evidence – meant simply evidence which is of greater weight, or more convincing, than that which is offered in opposition thereto. The testimony adduced by one side is more credible and conclusive than that of the other.
Proof beyond reasonable doubt - does not mean such degree of proof as excluding possibility of error and/or producing absolute certainty. Moral certainty is only required or that degree of proof which produces conviction in an unprejudiced mind.
Substantial evidence – amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
Section 3. Admissibility of Evidence – Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules.
Requirements of Admissibility
1. Relevancy - It must be relevant to the issue. Evidence is relevant if it may establish directly or indirectly the existence or non-existence of the facts in issue.
2. Competency – it is not excluded by the Rules on Evidence, the law and the constitution. Evidence is competent if it is not excluded by any rule of law for the purpose for which it is offered.
Two axioms of admissibility by Wigmore
1. None but facts having rational probative value are admissible. It prescribes merely that whatever is presented as evidence shall be presented on the hypothesis that it is calculated, according to the prevailing standards of reasoning, to effect rational persuasion.
2. All facts having rational probative value are admissible, unless some specific rule forbids. Everything having a probative value is ipso facto entitled to be assumed to be admissible, and that therefore any rule of policy which may be valid to exclude it is a superadded and abnormal rule.
Rule on Multiple admissibility
Evidence will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is presented, even if it does not satisfy the other requisites for its admissibility for other purposes.
Evidence may frequently be admissible as against one party but not as against another. Rule of Limited Admissibility
Where evidence is admissible for one purpose, it is not rendered inadmissible solely because it is improper or irrelevant for some other purpose.
Admissibility Weight
Evidence is admissible if it complies with the
requirements of relevancy and competency Or probative value is determined by the court
Admissibility Credibility
Evidence is admissible if it is relevant to the issue
and is not excluded by the law or these rules. Depends on the evaluation given to the evidenceby the court in accordance with the guidelines provided in Rule 133 of the Rules of Court and the doctrines laid down by the Supreme Court.
Curative admissibility
Improper Evidence admitted on one side without objection, does not give the other side the right to introduce in reply the same kind of evidence if objected to; however, when a plain and unfair prejudice would otherwise inure to the opponent, the court may permit him to use a curative counter-evidence to contradict the improper evidence presented.
Where improper evidence has been received against the objection of the opposing party, it is error for the court to refuse to allow the latter to contradict it.
Some conclusions:
1. If the inadmissible evidence sought to be answered is irrelevant and not prejudiced-aroused the judge should refuse to hear answering evidence. But if he does hear it, the party opening the door has no standing to complain
2. If the evidence, though inadmissible, is relevant to the issues and hence presumably damaging to the adversary’s case, or though irrelevant is prejudicearousing to a material degree, and if the adversary has seasonably objected or moved to strike, then the adversary should be entitled to give answering evidence as of right. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence 3. If again the first inadmissible evidence is relevant, or though irrelevant is prejudice-arousing, but the
adversary has failed to object or to move to strike out where such an objection might avoided the harm, then the allowance of answering evidence should rest in the judge’s discretion. He should weigh the probable influence of the first evidence, the time and distraction incident to answering it, and the possibility and effectiveness of an instruction to the jury to disregard it.
4. If the inadmissible evidence is so prejudice-arousing that an objection or motion to strike could not have erased the harm, then it seems that the adversary should be entitled to answer it as a matter of right. Conditional Admissibility – a fact offered in evidence may appear to be immaterial unless it is connected with other facts to be subsequently proved. In such a case, evidence of that fact may be received on condition that the other facts be afterwards proved. On failure to comply with this condition, the evidence already given shall be stricken out.
The Exclusionary Rule: a judicially created remedy which provides that evidence obtained in violation of the defendant’s constitutional rights must be suppressed from the government’s case in chief.
Scope of the Exclusionary Rule
The following are the rights protected by the rule:
1. Right against unreasonable search and seizure 2. Right to privacy and inviolability of communication 3. Rights of person under investigation for an offense 4. Right against self-incrimination
Fruit of the poisonous tree doctrine: posits that all evidence derived from an illegal search must be suppressed, whether it was obtained directly through the illegal search itself, or indirectly using information obtained in the illegal search.
Likewise known as the “but for” or taint doctrine which means that the evidence would not have come to light but for the illegal action of the police. The test is whether or not the evidence could not have been obtained but for the illegal action of the police.
Once the primary source (the tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the original illegally obtained evidence taints all evidence subsequently obtained.
Prohibition against wire-tapping
The law refers to a tap of wire or cable or the use of device or arrangement for the purpose of secretly overhearing, intercepting or recording the communication. There must be either physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken works.
Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place, there has been no violation of any privacy of which the parties may complain.
This is inadmissible and illegal under RA 4200, there being no consent thereto by both parties to the conversation. Thus, even a person privy to a communication who records his private conversation with another without the knowledge of the latter will qualify as a violator under the provision of RA 4200. Section 4. Relevancy; collateral matters – Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence; Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.
Relevancy – is the initial and true test of admissibility. The trial court will admit only evidence that bears such a sufficient relationship to the matters in dispute that it may be deemed relevant.
Sole test of relevancy: is whether or not the factual information tendered for communication to the fact finder would be helpful in the determination of the factual matter that is in dispute between the parties.
The test of relevancy is logical connection where the question is whether evidence is admissible to show a collateral fact or where proferred evidence is relevant to the collateral issue. Evidence is admissible to show a collateral fact that tends to prove or disprove a matter of fact which has been made an issue in the case.
Components of relevant evidence
1. Materiality – looks to the relation between the propositions for which the evidence is offered and the issues of the case. What is in issue is determined mainly by the pleadings, read in the light of the rules of pleadings and controlled by the substantive law. Issues not raised by the pleadings may be tried by express or implied consent of the parties.
case are in issue is to be determined mainly by the pleading, the applicable principles of substantive law, and by pre-trial orders, if any.
2. Probative value/probativeness – tendency of evidence to establish the proposition that it is offered to prove. Probativeness is a matter of common sense, logic and experience.
Relevant evidence is evidence that in some degree advances the inquiry. It is material and probative. As such it is admissible, at least prima facie. But this relevance does not ensure admissibility.
Degree of Probativeness required: Evidence need not be absolutely determinative of the fact which it is directed. It need not be conclusive.
Insufficient probativeness: Although evidence need not be very probative to be relevant, it must be sufficiently probative so that time spent on the matter would not be wasted.
Effect of finding of probativeness: A determination of probativeness, then is the legal conclusion that there exists a sufficient relationship between the evidence offered and the fact sought to be proved, such that reasonable persons might be helped in inferring one from the other.
Relevancy is the initial and true test of admissibility, and in the absence of some applicable exclusionary rule, legalistic defects which would bar the evidence for some other purpose which are inapplicable to the pupose for which it is offered, do not render it generally inadmissible.
Basic Rule: Evidence even though relevant, should be excluded if its probative value is substantially outweighed by the risk that its admission will cause (1) undue or unfair prejudice, (2) confusion of the issues, (3) misleading of the jury, (4) undue delay or waste of time, or (5) needless presentation of cumulative evidence.
Collateral Matters – are matters other than the facts in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue.
When a person’s conduct is in issue the fact that the person engaged in conduct of same sort on a different occasion may be shown as tending to shed light on some quality of the conduct in question, such intent, knowledge, good or bad faith, malice or other state of mind or bodily feeling.
Classification of Collateral Matters 1. Antecedent circumstances
a. Moral character, habit or customs b. Plan, design or conspiracy
There must be motive but if there is no proof thereof, this does not preclude conviction if there is sufficient proof of guilt. While motive is generally of great importance, it is not absolutely indispensable. While it is a recognized rule of human conduct that crime is the response of the evil mind to some temptation, and that men of sound mind are rarely prompted to commit it without some impelling motive, it does not follow, and it is not the law, that the prosecution, to justify a conviction in a given case.
2. Concomitant Circumstances
a. Opportunity – if the accused was the only one who had the opportunity to do the act charged, such circumstance maybe taken against him. Exclusive opportunity is not essential. It is enough that the person charged had an opportunity to do the act added to the chain of other
circumstances, leads to the inference that he is really the author of such act.
b. Incompatibility – when concomitant circumstances are incompatible with the doing of an act by a person, they may be proved to show that such person is not the author of the act. When it is impossible for a man to commit the crime charged, because at the time of its commission, he was at a place far from that of the crime, the accused should be discharged.
c. Alibi – one of the weakest defenses of the accused. A defendant must not only show that he was present at some other place about the time of the alleged crime, but also that he was at such other place for so long a time that it was impossible for him to have been at the place where the crime was committed, either before or after the time he was at such other place.
3. Subsequent Circumstances – circumstances taking place after the disputed fact occurred which may show the truth or falsity of the facts or controversy such as flight, concealment, nervousness, despair, fingerprint, footprint, articles left by accused, resemblance, bloodstains, offer of compromise, possession of stolen articles or counterfeit notes.
a. Flight – flight of the accuse is competent evidence against him as having a tendency to establish his guilt
b. Non-flight – no law or principle holding that nonflight by itself, is proof, let alone conclusive proof of innocence. It cannot prevail in the light of positive identification of the accused.
RULE 129
Section 1. Judicial notice, when mandatory – A court shall take judicial notice, without the introduction of evidence, of the existence and the territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.
The presumption prevails that when a cause is presented at the bar for trial, the Court is uninformed concerning the facts involved, and it is incumbent upon the litigants to the action to establish by evidence the facts upon which they rely. Judicial truth is different from actual moral truth.
Judicial Notice – cognizance of certain facts which judges may properly take and act on without proof because they are already known to him. It is based upon convenience and expediency.
Object of the rule: to save time, labor and expense in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed, and the tenor of which can safely be assumed from the tribunal’s general knowledge or from a slight search on its past.
In order for a court to take judicial notice of facts commonly known, it is not necessary that a request be made for it even where the taking of notice is permissive rather than compulsory.
Unless the taking of notice is required by statue or rule of law the court has some discretion whether to take judicial notice or not.
Legislative Facts Adjudicative Facts
Those which have relevance to legal reasoning and the lawmaking process whether in the formulation of a legal principle or ruling of a judge or court in enactment of a legislative body
Simply the facts of the particular case. These facts would be subject of proof except that, for one reason or another, judicial notice may be taken of them – usually because no reasonable person could dispute them.
Facts of the particular case which are
determinative of the outcome of litigation. Such facts are ordinarily established by evidence unless they are of such character that by common
acceptance they stand as established without other proof. It is these facts with which the rules of
Great body of information and expository material which contributes to rationalization by capable, intelligent and objectively thinking people in the process not only of ascertaining what the common law and social concepts are but also in promoting their improvement and development.
Section 2. Judicial Notice, when discretionary. – A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.
TEST OF NOTORIETY: Whether the fact involved is so notoriously known as to make it proper to assume its existence without proof.
The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or those persons familiar with the particular matter in question.
RANGE OF APPLICATION: Laws of the land and foreign laws. The latter must be alleged and proved, except foreign statute accepted by the government is subject to judicial notice; common law.
Administrative regulations are as a general rule judicially noticed because although they are not actually notorious, yet they would be capable of unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.
Official acts, proclamations, regulations, and reports may be judicially noticed. Courts will take judicial notice of its own records of case pending before it.
The court is not authorized to take judicial knowledge of the contents of the record of other cases in the adjudication of cases pending before them or even when said other cases have been heard or are pending in the same court notwithstanding the fact that both cases may have been heard or are really pending before the same judge.
Exceptions:
- Without objection or by agreement of the parties, it may be read into records or admitted as part of the record of the case then pending.
- The other proceedings or causes are so closely interwoven or interdependent.
- Where the interests of the public are in ascertaining the truth are of paramount importance.
- In cases seeking to determine what is reasonable exercise of discretion or whether or not a previous ruling applicable in a case under consideration.
- Finality of the judgment in another case that was previously pending determination, and therefore, res judicata.
- Decisions of the CA which affect the case then pending.
The exceptions are applicable only when, in the absence of objection, with the knowledge of the opposing party, or at the request or with the consent of the parties, the case is clearly referred to or the original part of the records of the case are actually withdrawn from the archives and admitted as part of the record of the case then pending.à
An appellate court is without authority to take notice or take into consideration, the judicial records of a case previously decide by the trial court upon which said court did not have opportunity to pass. An appellate court cannot consult the records in another case to ascertain a fact not shown by the
records of the case before it, but could go to its other decisions for the law that is determinative of or applicable to the case under review.
Courts will take judicial notice of notorious historical happenings, geographical facts, laws and phenomenon of nature, and arts and sciences.
To take judicial notice of a custom it must be generally known and established and uniformity acted upon so as to raise a fair inference that it was known to both contracting parties and that they acted upon it. A custom must be proved as a fact according to the rules of evidence.
Courts may take judicial notice of religious matters, certain commercial or trade practices, habits, judicial notice deal
traits and diseases of men, and diseases and frailties. Judicial notice of entries in police report was allowed.
Section 3. Judicial notice, when hearing necessary.- During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case.
Hearing is necessary to afford reasonable opportunity to present evidence.
DISTINCTION BETWEEN JUDICIAL NOTICE OF SOURCES AND JUDICIAL NOTICE OF FACTS: The court may find that while the source is genuine, the fact recited therein is not clearly indisputable and should, therefore, be subject to proof.
If evidence is not necessary to establish a fact that is beyond dispute, evidence is not admissible to contradict the fact of which the court takes notice.
Section 4. Judicial admissions. – An admission verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.
Admissions should be offered in court to make them available to the court.
Judicial admission: an admission made in the course of the proceedings in the same case, verbal or written by a party accepting for the purposes of the suit the truth of some alleged fact, which said party cannot thereafter disprove.
GENERAL RULE: The allegations, statements, or admissions contained in a pleading are conclusive as against the pleader.
The instrument need not be presented formally in evidence for it may be considered as an admitted fact. An extrajudicial admission is not conclusive but disputable and must be formally offered in evidence
before the court may consider the admission as evidence.
Judicial admissions under this rule applies only to a pending case and may be made in pleadings either expressly or impliedly.
The following are NOT deemed admitted: immaterial allegations, incorrect conclusions of facts drawn from facts set out in the complaint, conclusions of law, general averments contradicted by specific averments, unliquidated damages.
No admissions may be made in: annulment of marriage and legal separation.à
An admission in a pleading in one action may be received in evidence against the pleader or his successor in interest on the trial of another action to which he is a party and material to the issues involved in such action.
Allegations in an answer are not necessarily judicial admissions. There can be no admission as to jurisdiction.
A party is bound by the admission contained on a pleading prepared by his attorney, although he did not swear to or know of the statements therein and even though he had no actual knowledge of the existence of the pleading.
However, when a lawyer acts beyond his authority, all he does is null and void although it may be beneficial to the client.
A stipulation of facts is a judicial admission of all the facts stated therein.
An amended pleading supersedes the original pleading which disappears from the records. So that defenses in the original pleading not reproduced in the amended pleadings are deemed waived and
cease to be judicial admissions.
The parties to any action may agree, in writing upon the facts involved in the litigation and require the judgment of the court upon the facts agreed upon, without the introduction of evidence.
A judicial admission in an affidavit used in the case when relevant, is competent evidence, even if merely adopted and not made by the party against whom it is used. It may be competent evidence for the adverse party on the trial of another issue different from that on which it was offered. The affidavit must, however, be formally offered in evidence in order to render it available.
One who prays for judgment on the pleadings without offering proof as to the truth of his own allegation and without giving the opposing party an opportunity to introduce evidence must be understood to admit the truth of all the material and relevant allegations of the opposing party, and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings. See Rule 26 of the Rules of Court
A plea of guilty admits all the material allegations of the information, including the attendant circumstances qualifying and/or aggravating the crime.
See Rules 116 regarding plea of guilty to a capital offense and 118 (pre trial agreements must be signed) of the Rules of Court
RULE 130
Section 1: Object as evidence. – Object as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.
Sources of Evidence
1. Testimonial Evidence – there is an inference from the human assertion to the fact asserted; testimony of man which may be oral or written.
2. Circumstantial evidence – inference from the circumstance to the thing producing it; that of any
circumstance not a human assertion nor an autoptic preference from which an inference may be taken as to the existence or non-existence of a fact in dispute
3. Real Evidence or autoptic preference – omission of any step of conscious inference or reasoning and in proceeding by direct self-perception or autopsy; that which is addressed to the senses of the court as where the objects are exhibited for the personal observation of the judge (evidence of one’s own senses) REAL EVIDENCE
Physical or tangible evidence presented to the trier of fact for inspection as relevant to an issue in the case
Physical evidence is evidence to the highest order. It prevails over testimonial evidence. Scope of Real Evidence
Includes everything addressed to the five senses (vision, hearing, taste, smell, and touch) Real Evidence may be Direct of Circumstantial
a. Direct – can prove directly the fact for it is offered (e.g. personal injury case – direct exhibition of the injury itself)
b. Circumstantial – facts about the object are proved as the basis for an inference that other facts are true (e.g. paternity case – compare appearance of the baby and the alleged father, the fact that the child and the alleged father look alike, the court may then be asked to draw an inference that the parental
relationship exist) Admissibility of Real Evidence
Must be relevant Must not be hearsay Must not be privileged
violation of any pretrial order) Requirement of Authentication
The real evidence is what it purports to be or more precisely, that it is what its proponent say it is
Authentic – what it is claimed to be even though it consists of false information (falsified books kept by the defendant is authentic if it is introduced by the prosecution for the purpose of showing its falsity)
Relevance
Even if a thing is authentic does not mean that it is relevant Authentication is necessary:
1. To prevent the introduction of an object different from the one testified about 2. To insure that there have been no significant changes in the object’s condition Types of Authentication
a. By testimony
b. Chain of custody – if the real evidence is of a type which cannot easily be recognized or can readily be confused or tampered with
HOW? Establish a chain of custody: white powder seized from defendant and prosecution wishes to testify that it is found by the chemist to be heroin. Seizing officer sealed it in an envelope and signed it, placed it in a safe box which only he knows the combination, later took it out and delivered it to the chemist. Chemist testify that he received said envelope from the police officer
Particular types of real evidence
a. Documentary evidence: must comply with the rules of relevance, hearsay, privilege as well as authentication, best evidence rule and doctrine of completeness
b. Exhibition of injuries c. Personal appearance d. Inspection of body
Photographs, Motion Pictures, X-rays, Tape Recordings All these items fall within the definition of real evidence
Must be authenticated by special testimony showing that they are faithful reproductions of the object or person depicted
a. Photographs
Must be identified by the photographer as to its production and testified as to the circumstances under which they were produced
Maps, diagrams and sketches would only be admissible if first shown to be correct b. X-rays
Authentication must show that the process used is accurate; that the machine itself was in working order; that it was operated by a qualified operator; and that the evidence has come through a proper custodial chain
Competency depends on: (1) the science, skill, experience and intelligence of the party taking the picture and (2) the science, skill, experience and intelligence of the party testifying to it Maps and Diagrams (Pictorial Communication)
Justified on the ground that they are a form of pictorial reproduction of communication to the senses which may be used in lieu of descriptive testimony
Foundation must be laid by evidence of the correctness of the representation or the accuracy of the item used in demonstration
Chart and Tables
Hearsay when prepared out of court
If part of the testimony of the witness it is really a recognition of the principle that the hearsay bar does not apply when the witness is present in court and subject to cross examination with respect to his
illustrative material Drawings and Illustrations
Usable and admissible on the same principles as other types of testimonial aids, and subject to the same limitations of relevancy, utility, and discretionary control are drawings of various kinds and illustrations of a pictorial nature, vouched for and received in evidence as part of the testimony of the vouching witness. Paintings, Drawing and Maps
Authentication: accuracy or likeness must be affirmatively shown by the testimony of the artist or other competence witness
No presumption of correctness founded on their general use and employment, or on their being mechanical reproduction by a process which the court will judicially notice as existing as in the case of photographs.
Admitted not as evidence but to enable the court to better understand the oral testimony Motion Pictures
Admissible under the same principle governing still pictures and photograph records
A movie tone duly authenticated as an accurate portrayal of the words and actions of a person is admissible is relevant
Tape Recordings, Wire and Dictaphone Requirements of admissibility
1. The tape, wire or Dictaphone deice was capable of taking testimony 2. The person operating the device was competent to operate it 3. The recording is authentic and correct
4. The recording had been duly preserved 5. The testimony was voluntarily made 6. The speaker has been correctly identified
▪ This is subject to the limitation of RA 4200 or the Anti-Wire Tapping Law Paraffin Test Not Conclusive
The presence of gunpowder residue on hands is not conclusive proof that person had recently fire a gun Excessive perspiration or washing of hands with the use of warm water or vinegar may also remove
gunpowder nitrates on the skin
Conduct of paraffin test after more than 72hrs from the time of the shooting mat not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration View of the object
If object can be brought to the courtroom, the court can have it exhibited before it through a witness who may present it as an exhibit during his testimony and thereafter the court may have it examined or viewed in open court during trial in the presence of the parties.
View of the scene
Immovable or inconvenient to remove like buildings machinery animals or other heavy objects, the natural tendency is for the tribunal to go to the object in its place and there observe it
Inspection or view of the object should be made in the presence of the parties in open court an at all times subject to the control of the court, if made inside the courtroom or in connection with the trial, if made outside thereof
Paternity Cases
A comparison of the physical characteristics of the baby and alleged father constitutes real evidence Note: most courts will permit the exhibition under certain conditions (where child is sufficiently old to
Age of Person
If age of a person is in issue, the fact of age should be proved by sworn testimony; but where relative age is to be determined the court may take into consideration the appearance of the person as the latter is seen in court.
Demonstration
The court in its discretion may permit experiments or demonstrations to be performed in the courtroom Requisites:
1. Relevancy
2. The present condition of the object must be the same at the time is issue Grounds for Excluding Real Evidence
1. Inherent Limitations a. Relevancy
b. Illegally obtained Evidence 2. Non-inherent Limitations
a. Undue Prejudice: probative value is exceeded by its prejudicial effect b. Indecency or impropriety
c. Offensiveness to sensibilities
Exception to admissibility of indecent evidence: (1) there should be fair necessity for inspection; (2) the inspection should take place apart from the public courtroom in the sole presence of the tribunal and the parties
DEMONSTRATIVE EVIDENCE
Distinguished to Real Evidence: is not the real thing, instead, it has tangible or exemplifying purposes. It is visual aid.
Distinction not always clear, depends on the use to be made of it
Our rule does not make such distinction: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court
Types:
a. Selected demonstrative evidence: e.g. existing, genuine handwriting specimens used as standards of comparison by a handwriting expert
b. Prepared or reproduced demonstrative evidence: made specifically for trial Testimonial Foundation Required
SCIENTIFIC EVIDENCE
Requirements for admissibility
1. Must be shown that the experiment was conducted under conditions substantially similar to those existing at the time of the actual event being litigated
2. Expert Testimony
▪ Court may take judicial notice of the reliability of certain scientific tests Types:
1. Psychiatry and Psychology
2. Toxicology: blood tests, breathalyzer (analyze sample of breath to determine alcoholic content), nalline test for narcotics use
3. Forensic pathology
4. Photography, motion pictures and videotape 5. Microanalysis
6. Neutron Activation analysis 7. Fingerprinting
8. Firearms identification 9. Question document evidence 10. Polygraph testing
▪ Parties must all sign a written stipulation agreeing to admission of results ▪ Admissibility still subject to judicial discretion
▪ Right to cross examination 11. Vehicular speed detection
12. Spectographic voice identification Document as object evidence:
Two types:
o Documentary evidence, where it is produced in court to prove its contents and
o As object evidence, where it is produced to show its existence or condition as for instance whether it is genuine or forged
Section 2: Documentary Evidence. – Documentary Evidence consist of writings or any material
containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents.
Writing – handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols or any combination thereof,
BEST EVIDENCE RULE
Section 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consist of numerous accounts or other documents which cannot be examined in court without great loss of time and fact sought to be established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a public office.
General Rule: the exclusion of secondary evidence of the contents of a written instrument; original document itself must be presented
Exception: some legal excuse can be shown for failure to produce the original writing. (LCNP)
1. Original has been lost or destroyed or cannot be produced in court- without bad faith on the part of the offeror;
2. Original is in the custody or under the control of the party against whom the evidence is offered and the latter fails to produce it after reasonable notice;
3. Original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established for them is only the general result of the whole;
4. Original is a public record in the custody of a public officer or is recorded in a public office. Best evidence rule- misleading name; better referred to as the ORIGINAL WRITITNG RULE.
The duty to produce the original arises only when the subject of the inquiry is the contents of the writing Limitation Upon Best Evidence Rule:
a. Proof of Collateral Facts Not Within Rule
instruments as mere inducements are not within the rule.
b. The rule requiring production of the original instrument itself does not apply to the proof of facts evidenced/recorded by the writing rather than to the language or terms of the writing. (Ex: fact of ownership of land or chattels)
c. The Best Evidence Rule has no application to prove a fact which has an existence independently of any writing.
- The rule excludes testimony designed to establish the terms of a document but does not exclude testimony which concerns the document without aiming to establish its terms.
d. The best evidence rule refers merely to proof of what are the contents of a writing and not as proof of the truth of the facts asserted therein.
- Ex: narration of events in a letter, which recitals are often hearsay--- the letter is not admissible to prove the truth of its recitals unless it qualifies as an exception to the hearsay rule.
Additional Illustrative Cases where Rule DOES NOT APPLY: e. To make testimony coherent and intelligible.
- Ex: I was there to get a letter. There is no need to produce the leetr.
f. To admission as to contents of writing and where subject of preliminary cross examination, to lay the basis for confrontation (LAYING THE PREDICATE)
- Section 16,Rule 132
- First: admission is offered; Second: counsel asks preliminary questions if accused made statements,etc; Third: counsel asks if he made written statements.
g. Where there is no bona fide dispute on the contents of document and no useful purpose would be served by its production.
Rule Waived if No Proper Objection Made
- The proper time for making such objection is when the formal offer is made not during the identification merely of the secondary evidence.
- BUT its admission is still subject to the rules on weight and sufficiency of evidence Section 4. Original of document. –
(a) The original of a document is one the contents of which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. Principles When More Than One Original
- Where there are 2 or more originals, any of them may be used without accounting for the others. - A COPY however may not be used without accounting for other original copies.
What is the ORIGINAL?
- The original of the document is one the contents of which are the subject of inquiry. - The original depends upon the issue to be proved.
- Ex: libelous article---- 1. To prove who the author is, the original is the manuscript sent to the editor; 2. To prove the libelous publication, the original is the article appearing in the newspaper. The Rule on Duplicate Original
a. When a document is in 2 or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals.
➢ Duplicate Original- a signed carbon copy or duplicate of a document executed at the same time as the original.
b. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all entries are likewise equally regarded as originals.
Section 5. When original document is unavailable. – When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.
Section 5 WHEN ORIGINAL DOCUMENT IS UNAVAILABLE (EXCEPTION 1)
Secondary evidence is admissible when the original documents are unavailable. The correct order of proof:
1. Existence; 2. Execution; 3. Loss; 4. Contents.
*This order may be changed if necessary in the discretion of the court. Primary Evidence Outside the Jurisdiction
- Where the original is in another country, if the party seeking to introduce the evidence has shown himself unable to produce it, secondary evidence is admissible.
Proof of EXECUTION and DELIVERY: by any person or persons-1. Who executed the document;
2. Before whom its execution was acknowledged; 3. Who was present and saw it executed and delivered;
4. Who after its execution and delivery, saw it and recognized the signatures;
5. To whom the parties to the instrument had previously confessed the execution thereof. Proof of DESTRUCTION: by any person knowing the fact
Proof of LOSS: by any person/anyone-1. Who knew the fact of loss;
2. Who has made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the persons in whose custody the document lost was, and has been unable to find it.
3. Who has made investigation which is sufficient to satisfy the court that the instrument is indeed lost.
Proof of LACK OF RECORD- Section 28,Rule 132
- A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the record of his office, accompanied by a certificate as above provided is admissible as evidence that the records of his office contain no such record or entry.
Intentional loss or destruction- inadmissible. Proof of CONTENTS: by any
person-1. Who signed the document; 2. Who read it;
3. Who heard it read knowing or it being proved from other sources that the document so read was the one in question;
4. Who was present when the contents of the document were talked over between the parties thereto to such extent as to give him reasonable full information as to its contents;
5. To whom the parties to the instrument have confessed or stated the contents thereof. *Warning of SC in Enriquez Case: Counsel should not characterize the document but ask only knowledge of execution of document.
Degrees of Secondary Evidence
a. American Rule: the secondary evidence which is admissible is the best secondary evidence obtainable.
➢ If it appears that there is in existence secondary evidence of a more satisfactory kind than the secondary evidence which a party offers, he will be required to produce the better evidence if he can do so ; he will not be permitted to introduce the inferior secondary evidence offered unless he can show that the better secondary evidence and the original primary evidence are unavailable.
➢ Ex: copy of lost writing better than oral evidence in relation thereto
b. English Rule: Where the original of a writing has been lost, the copy and oral testimonies relating to such writing are both secondary evidence, and both are competent evidence in establishing the contents of the lost writing.
*We have adopted the AMERICAN RULE.
Section 6. When original document is in adverse party`s custody or control. – If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss.
Section 6 WHEN ORIGINAL DOCUMENT IS IN ADVERSE PARTY’S CUSTODY OR CONTROL (EXCEPTION 2) Requisites: (PRSF)
1. Opponent’s possession or control of the original;
➢ Not necessary to show that the original is in the actual possession of the adversary; ➢ It is sufficient that the circumstances are such as to indicate that the writing is in his
possession or control.
2. Reasonable notice to the opponent to produce the original; ➢ The giving of notice at the trial satisfies the requirement.
➢ The notice must be so framed that there can be no reasonable doubt as to what papers are meant. It is sufficient if the adverse party may reasonable understand that a certain document is required.
3. Satisfactory proof of its existence;
4. Failure or refusal of the opponent to produce the original in court. Effect of Non-Production After Notice
- Every reasonable intendment will be in favor of secondary evidence, if it is vague or uncertain. - And it is then too late for the party having possession of the primary evidence to use it in rebuttal. Voluminous Writings; Summaries In Lieu of Originals (EXCEPTION 3)
- Requisites: (PMG)
1. There must be proof of voluminous character of records;
2. The records and accounts should be made accessible to the adverse party so that the correctness of summary may be tested on cross-examination;
3. The general result sought to be proved is one capable of being ascertained by calculation.
Original is a Public Record in the Custody of a Public Officer or Recorded in a Public Office (EXCEPTION 4)
- Exception to Exception: Upon order of court and where the inspection is shown to be essential to the just determination of the case or action or proceeding pending.
➢ Meaning that the court will order the production of the original document in the custody of the public officer.
Kinds of Secondary Evidence:
- Under Exceptions 1 and 2: 1. By a copy thereof;
2. By a recital of its contents in an authentic document; 3. By recollection of witness.
- Under Exception 3: Summary of the voluminous documents or records. - Under Exception 4:
1. Certified true copy; 2. Official Publication.
Section 7. Evidence admissible when original document is a public record – When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof.
When Secondary Evidence Is Inadmissible
- Secondary evidence is inadmissible to take the place of that which has evidentiary force only by authority of express statutory enactment.
- Ex: notary public’s certificate of protest Effect of Error in Admitting Secondary Evidence
- Error in admitting secondary evidence may be rendered harmless by the subsequent introduction of the primary evidence to the same point.
Section 8. Party who calls for document not bound to offer it. – A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence.
The mere production of documents upon the trial, pursuant to notice duly served, does not make such documents evidence; it is not until the party who demanded their production examines them and OFFERS THEM IN EVIDENCE that they assume the status of evidentiary matter.
PAROL EVIDENCE RULE (Sec. 9)
Sec. 9 Evidence of written agreements: When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to the terms of the written agreement if he PUTS IN ISSUE IN HIS PLEADING: [ FIVE ]
1. The Failure of the written agreement to express the true intent of the parties thereto; 2. An Intrinsic ambiguity, mistake or imperfection in the written agreement;
3. The Validity of the written agreement;
4. The Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.
The term “agreement” includes wills.
NOTE: Exceptions must be alleged in the pleadings and if not alleged parol evidence is inadmissible to prove the true agreement.
1. To give stability to a written agreement;
2. To remove the temptation and possibility of perjury; 3. To prevent possible fraud.
REQUISITES:
1. There must be a valid contract;
2. The terms of the agreement must be reduced to writing;
3. The dispute is between parties and their successors in interest; and/or
- The parol evidence rule does not apply and may not properly be invoked by either party to the litigation against the other, if at least one of the parties to the suit is not a party or privy of a party to the written instrument in question and does not claim on the instrument or assert a right originating in the instrument or in the relation established by it. Elsewise stated, the rule is not applicable where the controversy is between one of the parties to the document and third persons (Lechugas vs. CA).
4. There is dispute as to the terms of the agreement.
When no timely objection or protest is made to the admission of parol evidence, and when the motion to strike out said evidence came too late and if the other party against whom such evidence was presented cross-examined the witness who testified in respect to the contract, said party will be understood to have waived the benefits of the law. Parol evidence under those facts is competent and admissible. (Abrenica vs. Gonda, No.10100, August 15, 1916)
Parol Evidence – Any evidence aliunde which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document.
Evidence Aliunde (Extrinsic Evidence)
It may refer to a testimonial, real or documentary evidence.
NOTE: No express trust concerning an immovable or any interest therein may be proved by parol evidence (Art. 1443, Civil Code).
WHEN PAROL EVIDENCE RULE APPLIES
GENERAL RULE: Parol Evidence Rule applies only to INTEGRATED (finalized) AGREEMENTS (intended by both parties as the final and exclusive written memorial of their dealings).
THEORY OF INTEGRATION OF JURAL ACTS
Previous acts and contemporaneous transactions of the parties are deemed integrated and merged in the written instrument which they have executed.
When the parties have reduced their agreement to writing, it is presumed that they have made the writing the ONLY REPOSITORY and MEMORIAL OF THE TRUTH, and whatever is not found in the writing must be understood to have been waived and abandoned.
EXCEPTION:
Collateral Oral Agreements
- A contract made prior to or contemporaneous with another agreement and IF ORAL and NOT INCONSISTENT with written contract IS ADMISSIBLE within the exception to parol evidence rule. An agreement is collateral if it meets the ff. REQUIREMENTS:
1. It is not a part of the integrated written agreement in any way;
2. It is not inconsistent with the written agreement in any way, including both the express and implied provisions of the written agreement; and
NOTE: The Parol Evidence Rule does not apply when the COLLATERAL ORAL AGREEMENT refers to SEPARATE and DISTINCT SUBJECTS.
RATIO: The parties to a contract cannot be presumed to have embodied in a single writing all the agreements which they had on different subjects.
Rule on Collateral Agreements to Reconvey at the Time of Execution of Deed of Conveyance
Parol evidence on a collateral agreement to reconvey is allowed where it appears that consideration indeed was not the only consideration agreed upon by the parties, and that the purchaser succeeded in obtaining from the vendor a deed of absolute sale under a false promise that he would later execute a deed authorizing the vendor to repurchase the property within a period of time. Parol evidence is admissible because it tends to prove fraud and the true considerations of contracts.
PAROL EVIDENCE RULE APPLICABLE TO “WILLS”
The general rule is that no evidence on the terms of the will and its attestation clause is admissible other than the contents of the will. However, under Art. 789 of the New Civil Code, when there is an imperfect
description in the will, or when no person or property exactly answers the description, mistakes and omissions must be corrected if the error appears from the contexts of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declaration.
A Xerox copy of a lost or destroyed will is admissible because comparison can be made with the standard writing of the testator (Bonilla vs. Aranza).
RULE ON INTRINSIC AMBIGUITY
Intrinsic or Latent Ambiguity — when the writing on its face appears clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain.
Extrinsic or Patent Ambiguity —ambiguity is apparent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used.
Parol evidence cannot be used to ratify or supplement a void contract
Intermediate Ambiguity — where the ambiguity consists in the use of equivocal words designating the person or subject matter, parol evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the court in arriving at the meaning of the language used. (This kind of ambiguity results from the use of words susceptible of two interpretation)
✷ INTRINSIC and INTERMEDIATE AMBIGUITIES are curable by evidence aliunde or extraneous evidence. PATENT AMBIGUITY cannot be cured by evidence aliunde.
Principle of “Falsa Demonstratio non nocet cum de corpore constat” “An erroneous description does not spoil the act.”
✷ False description does not injure or vitiate a document, provided that the thing or person intended has once been sufficiently described.
✷ Where there are two descriptions in a deed, the one having been superadded to the other, and one description being complete and sufficient of itself while the other which is subordinate and superadded is incorrect, the incorrect description or feature of circumstance of the description is rejected as surplusage,
and the complete and correct description is allowed to stand alone. RULE ON MISTAKE
✷ Parol Evidence is admissible to prove mistake in the execution of a written agreement.
RATIO: It would be unjust and inequitable to allow the enforcement of a written instrument which does not reflect or disclose the real meeting of the minds of the parties.
Elements of Mistake:
1. It should be a mistake of fact and not a mistake of law;
- Mistake of fact is a mistake not caused by the neglect of a legal duty on the part of the person making the mistake and consisting in 1) an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract; or 2) belief in the present existence of a thing material to the contract which does not exist, or in the past existence of such a thing which has not existed. Mistake of law happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect.
2. It should be mutual or common to both parties to the instrument;
- However, under Art. 1363 NCC when one party was mistaken and the other knew or believed that the instrument did not state their real agreement; but concealed that fact from the former, the instrument may be reformed.
3. It should be alleged and proved by clear and convincing evidence.
NOTE: The ground that the written agreement fails to express the true intent of the parties can only be invoked when the contract is literally ambiguous or obscure in its terms and that the contractual intention of the parties cannot be understood from the mere reading of the instrument.
RULE ON IMPERFECTION
Where a writing, although embodying an agreement is manifestly incomplete, and is not intended by the parties to exhibit the whole agreement, but only to define some of its terms, the writing is conclusive as far as it goes. But such parts of the actual contract as are not embraced within its scope may be established by parol. Imperfection includes an inaccurate statement in the agreement, or incompleteness in the writing, or the presence of inconsistent provisions therein.
RULE ON CONDITIONAL AGREEMENTS
Conditions qualifying the operation of a clear and complete written agreement are not allowed, for they would tend to vary, alter or contradict terms of written agreement.
1. Conditions Precedent — When the operation of a contract is made to depend on the occurrence of an event, parol evidence is allowed. May be established by parol evidence because there is no varying of the terms of the written contract by extrinsic agreement for the reason that there is no contract in existence; there is nothing to which to apply the excluding rule.
2. Conditions Subsequent — may not be established by parol evidence. Parol Evidence of True Consideration
Parol evidence is admissible to prove fraud and the true consideration of the contract. Parol evidence may be admitted to prove:
That the consideration was greater or less than that which is expressed in the writing; That the consideration has failed;
That a new consideration is agreed upon to take the place of a previous one which failed; PROVIDED, it does not tend to change the terms of the contract as well as the recital of consideration.
➔ The judicial tendency is toward holding that the recital of consideration or the acknowledgment of payment in a deed is open to almost unlimited explanation. However, it has been held that where the consideration stated in the deed is not pecuniary and is SPECIFICALLY CONTRACTUAL in nature, a different or additional consideration cannot be shown by parol.
Parol Evidence of Warranty in Sales
When the written contract for the sale of personal property is manifestly and complete contract between the parties and there is no claim of fraud or mistake, parol evidence is INADMISSIBLE.
Where the contract is manifestly incomplete, or when an agreement wholly independent of and collateral to the written instrument entered into, parol evidence is ADMISSIBLE.
Parol Evidence is ADMISSIBLE to show that an absolute sale or a pacto de retro is an equitable mortgage in any of the following cases:
1) The price of the sale is unusually inadequate;
2) The vendor remained in possession as lessee or otherwise;
3) Upon the expiration of the right to repurchase, another instrument extending or granting a new period is executed;
4) The purchaser retains for himself a part of the purchase price; 5) The vendor binds himself to pay the taxes on the thing sold;
6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.
Waiver of Parol Evidence Rule
A protest or objection against the admission of any evidence must be made at the proper time i.e. as soon as the grounds therefore become reasonably apparent, and that if not so made will be understood to have been waived.
The court cannot disregard evidence which would ordinarily be incompetent under the Rules but has been rendered admissible by the failure of a party to object thereto.
➔ Cross examination is not a waiver of the parol evidence rule. Statute of Frauds
The term statute of frauds is descriptive of statutes which require certain classes of contracts to be in writing; its purpose is to prevent fraud and perjury in the enforcement of obligations depending for their evidence upon the unassisted memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a writing signed by the party to be charged.
➔ Its application is limited. It makes only ineffective actions for SPECIFIC PERFORMANCE of the contracts covered by it.
➔ It does not apply to contracts which are either totally or partially executed BECAUSE the intention of the parties becomes apparent by their execution, and execution concludes, in most cases, the rights of parties.
N.B. The statute of frauds simply provides for the manner in which contracts under it shall be proved; the contract exists and is valid.
Agreements covered by the statute of frauds:
1) Contracts which by their terms are not to be performed within one year from the making of the agreement - Applies to agreements not to be performed on EITHER side within a year from the making thereof. 2) Promise to answer for the debt, default or miscarriage of another
- Defined as an undertaking by a person, not originally liable, for the purpose of securing or performing the same duty for which the original debtor continues to be liable.
