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159617, A ! s" #, $%%7 &ACTS: On different dates, Lulu Jorge pawned several pieces of jewelry with Agencia de R. C. Sica !ara"a#ue to secure a loan. located in

On Octo$er %&, %&'(, two ar ed en entered the pawnshop and too) away whatever cash and jewelry were found inside the pawnshop vault. On the sa e date, Sica sent Lulu a letter infor ing her of the loss of her jewelry due to the ro$$ery incident in the pawnshop. Respondent Lulu then wrote$ac) e*pressing dis$elief, then re#uested Sica to prepare the pawned jewelry for withdrawal on +ove $er ,, $ut Sica failed to return the jewelry. Lulu, joined $y her hus$and Cesar, filed a co plaint against Sica with the R-C of .a)ati see)ing inde nification for the loss of pawned jewelry and pay ent of A/, ./ and 0/ as well as A1. -he R-C rendered its /ecision dis issing respondents2 co plaint as well as petitioners2 counterclai . Respondents appealed the R-C /ecision to the CA which reversed the R-C, ordering the appellees to pay appellants the actual value of the lost jewelry and A1. !etitioners .R denied, hence the instant petition for review on Certiorari. ISSUE: are the petitioners lia$le for the loss of the pawned articles in their possession3 4!etitioners insist that they are not lia$le since ro$$ery is a fortuitous event and they are not negligent at all.5 'E(): -he /ecision of the CA is A116R.0/. *ES Article %%(7 of the Civil Code provides: Art. %%(7. 0*cept in cases e*pressly specified $y the law, or when it is otherwise declared $y stipulation, or when the nature of the o$ligation re#uires the assu ption of ris), no person shall $e responsi$le for those events which could not $e foreseen or which, though foreseen, were inevita$le. 1ortuitous events $y definition are e*traordinary events not foreseea$le or avoida$le. 6t is therefore, not enough that the event should not have $een foreseen or anticipated, as is co only $elieved $ut it ust $e one i possi$le to foresee or to avoid. -he ere difficulty to foresee the happening is not i possi$ility to foresee the sa e. -o constitute a fortuitous event, the following ele ents ust concur: 4a5 the cause of the unforeseen and une*pected occurrence or of the failure of the de$tor to co ply with o$ligations ust $e independent of hu an will8 4$5 it ust $e i possi$le to foresee the event that constitutes the caso fortuito or, if it can $e foreseen, it ust $e i possi$le to avoid8 4c5 the occurrence ust $e such as to render it i possi$le for the de$tor to fulfill o$ligations in a nor al anner8 and, 4d5 the o$ligor ust $e free fro any participation in the aggravation of the injury or loss. -he $urden of proving that the loss was due to a fortuitous event rests on hi who invo)es it. And, in order for a fortuitous event to e*e pt one fro lia$ility, it is necessary that one has co itted no negligence or isconduct that ay have occasioned the loss. Sica had testified that there was a security guard in their pawnshop at the ti e of the ro$$ery. 9e li)ewise testified that when he started the pawnshop $usiness in %&':, he thought of opening a vault with the near$y $an) for the purpose of safe)eeping the valua$les $ut was discouraged $y the Central ;an) since pawned articles should only $e stored in a vault inside the pawnshop. -he very easures which petitioners had allegedly adopted show that to the the possi$ility of ro$$ery was not only foreseea$le, $ut actually foreseen and anticipated. Sica 2s testi ony, in effect, contradicts petitioners2 defense of fortuitous event. .oreover, petitioners failed to show that they were free fro have $een occasioned. any negligence $y which the loss of the pawned jewelry ay

Ro$$ery per se, just li)e carnapping, is not a fortuitous event. 6t does not foreclose the possi$ility of negligence on the part of herein petitioners. !etitioners erely presented the police report of the !ara"a#ue !olice Station on the ro$$ery co itted $ased on the report of petitioners2 e ployees which is not sufficient to esta$lish ro$$ery. Such report also does not prove that petitioners were not at fault. On the contrary, $y the very evidence of petitioners, the CA did not err in finding that petitioners are guilty of concurrent or contri$utory negligence as provided in Article %%(< of the Civil Code, to wit: Art. %%(<. -hose who in the perfor ance of their o$ligations are guilty of fraud, negligence, or delay, and those who in any anner contravene the tenor thereof, are lia$le for da ages. == Article >%>: of the Civil Code provides that with regard to pawnshops and other esta$lish ents which are engaged in

a)ing loans secured $y pledges, the special laws and regulations concerning the the provisions on pledge, ortgage and antichresis.

shall $e o$served, and su$sidiarily,

-he provision on pledge, particularly Article ><&& of the Civil Code, provides that the creditor shall ta)e care of the thing pledged with the diligence of a good father of a fa ily. -his eans that petitioners ust ta)e care of the pawns the way a prudent person would as to his own property. 6n this connection, Article %%(: of the Civil Code further provides: Art. %%(:. -he fault or negligence of the o$ligor consists in the o ission of that diligence which is re#uired $y the nature of the o$ligation and corresponds with the circu stances of the persons, of ti e and of the place. ?hen negligence shows $ad faith, the provisions of Articles %%(% and >><%, paragraph > shall apply. 6f the law or contract does not state the diligence which is to $e o$served in the perfor ance, that which is e*pected of a good father of a fa ily shall $e re#uired. ?e e*pounded in Cru@ v. Aangan that negligence is the o ission to do so ething which a reasona$le an, guided $y those considerations which ordinarily regulate the conduct of hu an affairs, would do8 or the doing of so ething which a prudent and reasona$le an would not do. 6t is want of care re#uired $y the circu stances. A review of the records clearly shows that petitioners failed to e*ercise reasona$le care and caution that an ordinarily prudent person would have used in the sa e situation. !etitioners were guilty of negligence in the operation of their pawnshop $usiness. Sica 2s testi ony revealed that there were no security easures adopted $y petitioners in the operation of the pawnshop. 0vidently, no sufficient precaution and vigilance were adopted $y petitioners to protect the pawnshop fro unlawful intrusion. -here was no clear showing that there was any security guard at all. Or if there was one, that he had sufficient training in securing a pawnshop. 1urther, there is no showing that the alleged security guard e*ercised all that was necessary to prevent any untoward incident or to ensure that no suspicious individuals were allowed to enter the pre ises. 6n fact, it is even dou$tful that there was a security guard, since it is #uite i possi$le that he would not have noticed that the ro$$ers were ar ed with cali$er .7B pistols each, which were allegedly po)ed at the e ployees. Significantly, the alleged security guard was not presented at all to corro$orate petitioner Sica 2s clai 8 not one of petitioners2 e ployees who were present during the ro$$ery incident testified in court. 1urther ore, petitioner Sica 2s ad ission that the vault was open at the ti e of ro$$ery is clearly a proof of petitioners2 failure to o$serve the care, precaution and vigilance that the circu stances justly de anded. -he ro$$ery in this case happened in petitioners2 pawnshop and they were negligent in not e*ercising the precautions justly de anded of a pawnshop. NOTES: ?e, however, do not agree with the CA when it found petitioners negligent for not ta)ing steps to insure the selves against loss of the pawned jewelries. Cnder Section %( of Central ;an) Circular +o. :(7, Rules and Regulations for !awnshops, which too) effect on July %:, %&(:, and which was issued pursuant to !residential /ecree +o. %%7, !awnshop Regulation Act, it is provided that pawns pledged ust $e insured, to wit: Sec. %(. 6nsurance of Office ;uilding and !awnsD -he place of $usiness of a pawnshop and the pawns pledged to it ust $e insured against fire and against $urglary as well as for the latter4sic5, $y an insurance co pany accredited $y the 6nsurance Co issioner. 9owever, this Section was su$se#uently a ended $y C; Circular +o. (,7 which too) effect on Octo$er %, %&'<, to wit: Sec. %( 6nsurance of Office ;uilding and !awns E -he office $uildingFpre ises and pawns of a pawnshop ust $e insured against fire. 4e phasis supplied5. where the re#uire ent that insurance against $urglary was deleted. O$viously, the Central ;an) considered it not feasi$le to re#uire insurance of pawned articles against $urglary. -he ro$$ery in the pawnshop happened in %&'(, and considering the a$oveD#uoted a end ent, there is no statutory duty i posed on petitioners to insure the pawned jewelry in which case it was error for the CA to consider it as a factor in concluding that petitioners were negligent. +evertheless, the preponderance of evidence shows that petitioners failed to e*ercise the diligence re#uired of the under the Civil Code.