An agreement serves as the law between parties

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Persida Acosta

Persida Acosta

Dear PAO,
My officemate and I agreed that she will sell the jewelry that I have on a commission basis. I gave her two necklaces, two rings and a pair of earrings last August 2015 and we agreed that she will turn over to me the proceeds of the sale and I will give her the commission per item, or to return to me the pieces of jewelry if she won’t be able to sell them on or before January 31, 2016.

By the first week of February, I asked her if she had already sold any of the pieces of jewelry. She said that she had a buyer who will pay her on February 12, 2016. I called her on February 13, but she said that she was busy and could not accommodate me. I called her up again five days later but her brother said she was out of town. I was starting to feel that she was avoiding me and I started to feel anxious because I have placed a great chunk of my savings in acquiring those pieces of jewelry. So I decided to send her a demand letter, but she disregarded it. When I went to her house, she could not answer me directly as to what happened to the pieces of jewelry. She even denied having received them.

I have been so stressed about this. I just want to know what legal action or actions I should take. Can I file a case for estafa against her? I hope you can enlighten me.

Marife


Dear Marife,
You and your officemate are bound to comply with the obligations that are incumbent upon each of you by virtue of the agreement which you have entered into. It serves as the law between you and must be complied with in good faith.

Based on the facts which you have shared, we believe that you may file a case against your officemate considering that she has failed to comply with her obligations, to wit, to turn over the proceeds of the sale of such pieces of jewelry should there be any, or to return the unsold pieces of jewelry.

You may opt to file a civil case for specific performance with damages if you will anchor your claim on her failure to comply with her obligations as per your agreement. Such case may be filed before the court which has jurisdiction over the place where you reside or where the respondent, your officemate, resides.

In the alternative, you may opt to file a complaint for swindling or estafa against your officemate, provided that you can substantiate that she has defrauded you by misappropriating or converting, to your prejudice, such pieces of jewelry which she received from you in trust or on commission. As provided for under Article 315 (1) (b) of the Revised Penal Code, penalty of imprisonment may be imposed upon any person who defrauds another by unfaithfulness or abuse of confidence, particularly by misappropriating or converting, to the prejudice of the latter, money, goods or any other personal property received by the former in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

It is worth mentioning that, according to the Supreme Court, “x x x The words “convert” and “misappropriate” connote the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage, but also every attempt to dispose of the property of another without right. In proving the element of conversion or misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts. x x x” (Pamintuan vs. People, 635 Phil. 514, 522 (2010))

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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