Best Evidence Rule

Order of preference of secondary evidence

Under the best evidence rule, the original

document must be produced whenever its
contents are the subject of inquiry.

1. Copy of the original;

2. A recital of the contents of the document in
some authentic document; or
3. By the testimony of witnesses

Secondary evidence
Secondary evidence is that which shows that
better or primary evidence exists as to the proof
of the fact in question. It is the class of evidence
that is relevant to the fact in issue, it being first
shown that the primary evidence of the fact is
not obtainable. It performs the same functions as
that of primary evidence. (Francisco, p. 68,
1992 ed)
Evidence which is necessarily inferior to
primary/best evidence and shows on its face that
better evidence exists.
(e.g. a photocopy of a document shows on its
face that a better piece of evidence exists,
namely the original of the document)

(Rule 130 Sec. 5)

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.
Following the English rule, it has been held in
this state that there are no degrees of secondary
evidence. The original having been lost, the
copy and the oral testimony are both secondary
evidence. Both are competent evidence in
establishing the contents of the lost paper.

High intensity diligent search

As observed by this Supreme Court, "the
destruction of the instrument may be proved by
any person knowing the fact. The loss may be
shown by any person who knew the fact of its
loss, or by anyone who has made, in the
judgment of the court, a sufficient examination
of the place or places where the document or
papers of similar character are kept by the
person in whose custody the document lost was,
and has been unable to find it; or has made any
other investigation which is sufficient to satisfy
the court that the instrument is indeed lost."
And "it is not even necessary to prove its loss
beyond all possibility of mistake. A reasonable
probability of its loss is sufficient, and this may
be shown by a bona fide and diligent search,
fruitlessly made, for it in places where it is likely
to be found." And after proving the due
execution and delivery of the document, together
with the fact that the same has been lost or
destroyed, its contents may be proved, among
others, by the recollection of witnesses.
(Paylago vs Jarabe)

The current authority in this country, as shown

by the adjudications in a majority of the states,
has adopted what is known as the American
rule, which holds that a copy of a lost paper is
the next best evidence, and, if it is available, oral
evidence is inadmissible. In this state we are
committed to the English rule, which holds that
there are no degrees in secondary evidence, and
that a party may give oral testimony of the
contents of a lost letter that is a private writing,
even though he may have a copy in his
possession or control. (Baroda vs State Bank)
When original document in the custody of
adverse party
When original document is in adverse partys
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
Calling for document not bound to offer

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.

complete and enforceable agreement embodied

in a document (Regalado, Vol. II, p. 730, 2008
ed.). It may refer to testimonial, real or
documentary evidence.

Evidence admissible if original is in the public

record

Parol refers to verbal expressions or words.

Verbal evidence, such as the testimony of a
witness at trial.

Rule 130 Section 3(d). When the original is a

public record in the custody of a public officer
or is recorded in a public office.

Applicability
stranger

to

contracting

parties

or

Parol Evidence Rule

Section 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.
Exceptions:
However, a party may present evidence to
modify, explain or add to the terms of written
agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
(b) The failure of the written agreement
to express the true intent and agreement
of the parties thereto;
(c) The validity
agreement; or

of

the

written

(d) 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.
Parol Evidence Defined
It is any evidence aliunde (extrinsic evidence)
which is intended or tends to vary or contradict a

The Parol Evidence Rule applies to "the parties

and their successors in interest." Conversely, it
has no application to a stranger to a contract. For
purposes of the Parol Evidence Rule, a person
who claims to be the beneficiary of an alleged
stipulation pour autrui in a contract (such as
petitioners) may be considered a party to that
contract. It has been held that a third party who
avails himself of a stipulation pour autrui under
a contract becomes a party to that contract. This
is why under Article 1311, a beneficiary of a
stipulation pour autrui is required to
communicate his acceptance to the obligor
before its revocation.
Moreover, to preclude the application of Parol
Evidence Rule, it must be shown that "at least
one of the parties to the suit is not party or a
privy of a party to the written instrument in
question and does not base a claim on the
instrument or assert a right originating in the
instrument or the relation established thereby."49
A beneficiary of a stipulation pour autrui
obviously bases his claim on the contract. He
therefore cannot claim to be a stranger to the
contract and resist the application of the Parol
Evidence Rule.
Thus, even assuming that the alleged oral
undertakings invoked by petitioners may be
deemed stipulations pour autrui, still petitioners
claim cannot prosper, because they are barred
from proving them by oral evidence under the
Parol Evidence Rule. (Pacres vs. Ygona)
Collateral unintegrated agreements

The rule excluding parol evidence to vary or

contradict a writing does not extend so far as to
preclude the admission of existing evidence to
show prior or contemporaneous collateral parol
agreements between the parties, but such
evidence may be received, regardless of
whether or not the written agreement contains
any reference to such collateral agreement, and
whether the action is at law or in equity.
(Mactan Cebu IAA vs CA)
Ambiguity and imperfection
falsa demonstration non nice cum de corpore
constat
It states that the false description does not injure
or vitiate a document if the subject is sufficiently
identified. The incorrect description shall be
rejected as surplusage while the correct and
complete description standing alone shall sustain
the validity of the writing (Regalado, Vol. II,
p. 735, 2008 ed.) Parol evidence is admissible to
prove mistake in the execution of a written
instrument.