Damages may be sought for failed or delayed deliveries

Persida Acosta

Persida Acosta

Dear PAO,
I am very aware that food orders during the holidays will be very difficult, that is why a month before December 24, I already placed orders for our family dinner with one famous caterer/restaurant near our place. I was given a receipt for the orders. I even followed them up a week before scheduled delivery. We, however, ended up eating none from our pre-ordered menu from the caterer/restaurant when they failed to deliver the same to us. When I confronted them about it, the manager told me that our invoice (order slip) and receipt copy were placed on the Media Noche list instead of the Noche Buena list.

It was our family reunion last December 24 and we got really hungry. We opted for catering because we were about 60 persons and it will be very difficult to prepare and cook for such number, as well as to just take away food as short orders. The caterer/restaurant even made alibis before they finally revealed they were unable to prepare our orders. They, however, called us at around 10 o’clock in the evening that they can still deliver our orders despite the fact that three hours have already lapsed from the time the orders should have been delivered. Can the caterer/restaurant be held liable for what it caused us?

Sincerely yours,

Dear KJ,
The caterer/restaurant’s failure to deliver your ordered dishes is an actionable wrong. The Supreme Court speaking through former Associate Justice Bernardo Pardo already affirmed the award of damages in a similar situation, albeit, in that case of Francisco and Cebu Fountainhead Bakeshop et al. v. Ferrer et al. (G.R. No. 14029, 28 February 2001), when the bakeshop failed to deliver a wedding cake.

Even delays in the obligation to deliver, which was caused by either malice or neglect, can be an actionable wrong (RCBC v. CA, G.R. No. 133107, 25 March 1999; ponente, former Associate Justice Santiago Kapunan).

For an obligation to become due, however, there must already be a demand for its delivery or execution, which may be extrajudicial or judicial in nature (Rose Packing Company, Inc. v. CA, G.R. No. L-33084, 14 November 1988; ponente: former Associate Justice Edgardo Paras). Mere filing of a suit or a case is a sufficient form of demand (Palmares v. CA, G.R. No. 126490, 31 March 1998; ponente: former Associate Justice Florenz Regalado).

In your situation, the caterer’s failure to deliver the food you pre-ordered is considered a breach of contract. Hence, under Article 1191 of the New Civil Code of the Philippines, you, as the injured party, have the following recourse:

To seek fulfillment of the obli-gation (specific performance); or,

To rescind the obligation (rescission), which still can be exercised even if fulfillment of the obligation was chosen but the same is already impossible.

In either case, for the delay or the failure to deliver, and the anxieties caused by such delay or failure to deliver, damages may additionally be sought in either circumstance.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

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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