“HOT! HOT! HOT!” Mctrouble in McParadise: The reason your coffee has warning labels.

Breakfast lovers at Mcdonlad’s know that breakfast isn’t complete without a hot cuppa’ Joe with cup holders and big warning labels which may be considered ubiquitous these days,  but back in the early 90’s no such things existed. This U.S case, regardless of whether it was a frivolous suit or not, paved the way for warning labels on our favorite hot beverages.

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At the cusp of winter in February of 1992, a 79 year old department store clerk named Stella Liebeck ordered a 49 cent cup of hot coffee at a nearby McDonald’s franchise drive through in Albuquerque, New Mexico with her grandson inside their Ford Probe sedan.

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Stella Lieback

Stella, who was at the passenger seat at the time, placed the styro foam cup between her knees and attempted to remove the plastic lid from the cup as she wanted to add sugar and cream to her coffee. Stella, who was then wearing sweatpants, attempted to remove the lid of her styro-foam cup of her coffee which then spilled onto her lap causing third degree burns over her inner thighs, perineum, buttocks, and genital and groin areas. The burns shortly extended to her subcutaneous fat, muscle, and bone. The sweatpants aggravated her injuries when it absorbed the scorching coffee, holding it next to her skin.

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A standard Mcdonald’s styfo foam cup for coffee in the early 1990’s.

The 79 year old department store clerk was hospitalized for eight days in which she underwent surgery and skin grafting and burn treatment which unfortunately resulted in her being permanently disfigured and disabled for two whole years.

Stella demanded from the Albuquerque franchise to pay her medical expenses totaling to approximately $11,000, which was refused by the billion dollar fast food giant.

Stella had no other recourse but to sue the local Mcdonald’s franchise which was later dropped from the lawsuit and subsituting the head honcho McDonald’s mother corporation itself.

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The Mcdonald’s Albuquerque, New Mexico franchise as seen in google maps.

It was later discovered during trial that Mcdonald’s coffee was served at a temperature of somewhere between 180 to 190 degrees Fahrenheit or 82 to 87 degrees celcius. For reference, water boils at a temperature of 212 degrees Fahrenheit or 100 degrees celcius.

The obvious question then is: Y u not make coffee less hot Mickey D?

THE SCALDING COFFEE CORPORATE PRACTICE

McDonald’s corporate policy states that that all coffee be served at 185 degrees, give or take five degrees to “fully extract the full coffee-flavor during the brewing process.” Billions of Mcdonald’s customers after all have enjoyed their coffee at this temperature with no complaints, right?

Well, nope!

It was revealed during Stella’s lawsuit against the big yellow M that there had been 700 claims brought against the fastfood giant between 1982 and 1992 due to people being burned by its coffee, some of them similarly situated with Stella on her third degree burns in which McDonald’s had previously spent over $500,000 in out of court settlement. Despite this fact, Mcdonald’s didn’t budge in changing its piping hot coffee corporate policy.

Mcdonald’s argued in court that Stella’s injuries were the result of her own negligence as she did not remove her clothing at the time of the coffee spillage. Mickey Ds further argued that her injuries were aggravated due to her old skin, making her more vulnerable to more serious injuries. An executive of the restaurant behemoth testified in open court that McDonald’s had chosen not to warn its customers of the possible severe burns its coffee could cause because “there are more serious dangers in restaurants.”

McDonald’s further stated that the number of hot coffee burns suffered by its customers are “statistically insignificant” in comparison to the one billion cups of coffee sold by McDonald’s each year.

McDonald’s quality assurance manager added fire to the coffee flame when he answered Stella’s lawyer’s question in this way:

Q: Well, I’m curious because I’ve shown you recordations here of some 700 people here that have been burned. Obviously, to you 700 people burned is not a significantly high enough number to turn down the heat. Do you have in mind a number of how many people would have to be burned for you to become so concerned that you would insist that burn specialists be consulted and something be done to sell this coffee at a lower temperature?

A: No, I don’t have a number in mind.

Mcdonald’s offered an expert witness saying that coffee served above 130 degrees Fahrenheit could produce third degree burns; therefore, it did not matter whether its coffee was served at 180 to 190 degrees Fahrenheit. This argument was possibly a stepping stone in making a conclusion that Mcdonald’s cannot be faulted for serving its piping hot coffee at such temperature since coffee was naturally supposed to be served hot, and hence it cannot be expected to serve coffee other than at a temperature above 130 degrees Fahrenheit.

Stella retorted and offered her own expert witness, one knowledgeable in thermodynamics, who testified that liquids can cause third degree burns to human skin in 2-3 seconds at 190 degrees; 12-15 seconds at 180 degrees; and in 20 seconds at 160 degrees, and so forth.

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The conclusion being drawn out of the testimony was that had Stella’s coffee been served to her a little less scalding, vital seconds could have been added to her response time to allow her to get out of her grandson’s car and remove her clothing to prevent more serious burns to her skin.  Unfortunately, the 79 year old grandmother had only about three seconds of reaction time to prevent any further damage to her.

The jury deliberated and sided with Stella, awarding her $200,000 compensatory damages, which was later decreased to $160,000 by the judge as it was determined that the injury was 20% Stella’s fault.

The jury further awarded Stella the amount of $2.7 million in punitive damages which was based on evidence that McDonald’s daily coffee revenues amounted to approximately $1.34 million, the award representing about two days worth of McDonald’s coffee sales back in the 90s. This award was later reduced to $480,000.00

Judge Robert H. Scott had this to say in his Decision in reducing the award by the jury:

I think that there was evidence and argument about the Defendant’s knowledge that the coffee could cause serious, third degree, full tissue burns. The Defendant McDonald’s knew that the coffee, at the time it was served, was too hot for human consumption . . . .

[T]he written transcript is not going to reveal the attitudes of corporate indifference presented by demeanor or of the witnesses for the Defendant McDonald’s as well as their employees, but the jury was exposed to it and I think that they properly considered it in their deliberations. And let me say that with knowing the risk of harm, the evidence and testimony would indicate that McDonald’s consciously made no serious effort to warn its consumers by placing just the most simple, adequate warning on the lid of the cup in which the coffee was served. . . . This is all evidence of culpable corporate mental state and I conclude that the award of punitive damages is and was appropriate to punish and deter the Defendant for their wanton conduct and to send a clear message to this Defendant that corrective measures are appropriate.

 In short, Mcdonald’s simply had to put warning labels in its Coffee.

About the author:

Joel Enrico Santos is a litigation lawyer handling Civil, Criminal, Labor, Immigration, Transportation, Corporate, and Land Registration cases. He is an Attorney working for a Makati based lawfirm and is a solo practitioner handling cases on his own since April, 2013. Get Schwifty!

Got a question or comment about this article? Post them below or in the blog’s facebook page! Visit our facebook page at De minimis

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Blog change announcement

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Good day everyone! Just some news about changes to the blog.

Starting with the obvious, the name “We don’t need roads” is no more. Some of you may wonder why the blog was named “We don’t need roads”. For those who didn’t get the reference, this line came from the 1985 film “Back to the Future 2” which is a movie about a time travelling duo named Doc Emmett L. Brown and a teenager named Marty Mcfly. The name is simply too long for memory which is the reason for the name change.

What has changed:
Blog name and website links.

The blog name has been changed to “De minimis” which is latin for “about minimal things.” This name highlights the simplistic and lighthearted nature of the blog articles and is short enough to stick to memory.

What isn’t changing:
The blog articles and the overall theme of the blog.

The entire blog has been moved to a new website which is easier to navigate with a better interface. All the previous blog articles have also been moved to the new site, so if you want to re-visit the previous articles, you may still view them over there.

Thank you to all readers and more content will be uploaded soon!

Cheers!

-J

25 Random Facts about Philippine Law you probably didn’t know.

1. The Philippines cannot initiate War.

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The 1987 Philippine Constitution prohibits the State from initiating war. The Legislature may only declare that the Philippines is involved a war or that a war exists.

Source: Sec. 23 (1), Article VI, 1987 Constitution.

2. The oldest law still in effect is 105 years old.

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The oldest law still in effect to this day is Act No. 2031 or what is known as the “Negotiable Instruments Law” which was enacted on February 03, 1911. The law essentially covers instruments such as Promissory Notes and bank checks.

3. Banishment is an actual penalty for a person convicted with a crime.

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The technical term for this penalty  is called Destierro which is Spanish for banishment. By its nature, Destierro is a lighter penalty than imprisonment. In serving the penalty, the accused is prohibited from residing within a radius of 25 kilometers from the accused’s actual residence for a specified length of time. Ironically, this penalty is for the benefit of the convicted criminal rather than a punishment since the convicted criminal is under the risk of being attacked by angry relatives of the offended party.

Source: Art. 27, Sec. 1, Chapter 3, Title 3, Book 1, Revised Penal Code of the Philippines, People v. Eduarte, et. al., G.R. No. 88232, February 26, 1990.

4. Marrying a first cousin is not considered incestuous by Philippine law, but merely contrary to public policy.

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Source: Sec. 38, Family Code of the Philippines.

5. A member of the Judiciary in the lower trial courts is called a “Trial Judge” or simply “Judge”, while those in the upper level courts which are the Court of Appeals, Supreme Court, and Sandiganbayan are called “Justices.”

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Sources: Sec. 3 and Sec. 15, Chapter 1, Batas Pambansa 129 or the Judiciary Reorganization Act of 1980; Sec. 4 (1), Article VIII, 1987 Constitution; Sec.1, Presidential Decree No. 1486.

6. In applying for a marriage license, your age can be determined by your physical appearance.

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Since you have to be of legal age to marry, the civil registrar where you will apply for a marriage license will need a copy of your birth certificate, baptismal certificate, an affidavit of anyone who personally knows you and can attest to your true age, or by mere presence of your parents. If none of those are impossible to produce, then the civil registrar may just take a look at you to determine if you are of legal age.

Source: Article 12, Family Code of the Philippines.

7. You can’t sue your spouse to be for breach of promise to marry.

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But you may recover the expenses for the wedding by filing a court case for damages against the guilty fiancé.

Source: Baksh v. Court of Appeals, G.R. No. 97336, February 19, 1993.

8. To be considered born alive, a baby must have been born at least 7 months and survive within 24 hours from birth.

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Source: Article 41, Chapter 2, Title 1, Book 1, Civil Code of the Philippines.

9. You own merely a portion of your condominium unit.

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You merely own the interior surfaces of the perimeter walls, floors, ceilings, windows and doors, but not the walls, floors, ceilings, windows, and doors themselves. You are however allowed to paint, repaint, put on tiles, or otherwise refinish and decorate the inner surfaces.

Source: Sec. 6 (a), Republic Act. No. 4726 or The Condominium Act.

10. All practice of professions are under the jurisdiction of the Professional Regulatory Commission, except for the practice of the profession of Law which the Supreme Court has exclusive jurisdiction.

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Source: Republic Act No. 8981 or the PRC Modernization Act of 2000; and Sec. 5 (5), Article VIII, 1987 Constitution of the Philippines.

11. It is unlawful for a dog or cat to be displayed in a pet shop for more than 14 days.

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Source: Sec. 7, Department of Agriculture Administrative Order No. 21, Series of 2003.

12. It is prohibited for stuffed animals to be displayed or sold in pet shops,  veterinary clinics, or hospitals.

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Source: Sec. 10 (10.5), Department of Agriculture Administrative Order No. 21, Series of 2003.

13. The “S.S” on top of documents that are notarized stands for “Scilicet” which is Latin for “it is permitted.”

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Source: Hob. 171; 1 P. Wms. 18; Co. Litt. 180b, note 1.

14. Lawyers are prohibited from advertising themselves or their legal services.

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Ever wondered why there aren’t commercials or newspaper ads about Philippine lawyers or law firms in the Philippines? It is because the practice of law is not a business or a money making venture, but a dignified profession. Only simple signs may be used which states their name, office address, brief biographical and informative data, or through the use of a calling card bearing the same basic information.

Source: Atty. Khan, Jr. v. Atty. Simbillo, A.C. No. 5299. August 19, 2003; Atty. Simbillo v. IBP Commission, G.R. No. 157053. August 19, 2003.

15. A foreign absolute divorce decree may be recognized and enforced in the Philippines.

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An absolute divorce decree obtained by a foreigner abroad against his or her Filipino citizen spouse can be recognized and enforced in the Philippines, notwithstanding that Divorce itself is inexistent under Philippine law. This applies only when it is the foreigner who obtained the divorce, and not by the Filipino spouse.

Source: Article 26, paragraph 2, Family Code of the Philippines.

16. A Search Warrant is valid for ten days, while a Warrant of Arrest has no expiration date.

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Sources: Sec. 10, Rule 126, Rules of Court; and People of the Philippines v. Givera, G.R. No. 132159. January 18, 2001.

17. Pregnant or nursing night workers cannot be dismissed if her actions were brought about her child rearing activities.

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Pregnant and nursing women who work the night shift (work hours covers the period of 10:00p.m to 6:00a.m, for 7 consecutive hours) cannot be terminated by their employer by reason of their acts which were committed solely by reason of or solely based on an act connected with pregnancy, childbirth and childcare responsibilities for a period before and after childbirth, for a period of at least sixteen (16) weeks which period shall be divided between the time before and after childbirth.

Source: Article 158, Chapter V, Book Three, Title III, Labor Code of the Philippines as amended by Republic Act No. 10151.

18. There are 2.91 billion pieces of notes valued at P913.001 billion and 25.59 billion pieces of coins valued at P28.78 billion in circulation as of September 30, 2016, excluding commemorative notes and coins.

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Source: Currency Management Sub-Sector, Banko Sentral ng Pilipinas.

19. While the Philippine Peso is the only legal currency in the Philippines, you may agree to settle an obligation or transaction in any other currency at the time of payment.

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Source: Sec. 1, Republic Act No. 8183

20. Lethal Injection was the only prescribed mode of killing a death convict. *

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Toxic doses of Sodium Thiopenthotal (to ensure rapid loss of consciousness or to induce coma), Pancuronium Bromide (to stop breathing), Potassium Chloride (to cause cardiac arrest and rapid death) are administered intravenously into the body of a convict.

Source: Sec. 2 (b), Rules and Regulations implementing Republic Act No. 8177.

21. A death sentence of a convicted criminal was carried out by the Bureau of Corrections not earlier than one (1) year nor later than eighteen (18) months after the Judgment of a Court has become final and executory. *

Source: Sec. 1, Republic Act No. 8177

22. A death row convict was only notified of his execution after sunrise of the day of his execution. *

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That’s brutal, fam.

Source: Sec. 16, Rules and Regulations implementing Republic Act No. 8177.

23. There is only one recognized form of a Last Will and Testament – a written form.

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This is because the Philippine Civil Code was initially drafted on March 20, 1947, and took effect on August 30, 1950. Back then, personal video or audio recording technology was limited to the wealthy.

Source: Article 804, Civil Code of the Philippines.

24. A Centenarian (100 year old) Filipino citizen shall be awarded a cash award of P100,000.00 from the National government and an undetermined amount as cash incentive from the local government where the Centenarian resides.

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Upon reaching 100 years old, Centenarians can literally “make it rain.”

Source: Sec. 4.0 (4.3), Department of Interior and Local Government (DILG) Memorandum Circular No. 2016-160, November 3, 2016.

25. A car dealer is obligated to pay you transportation allowance or provide you with a service vehicle during the repair of your brand new car.

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If you bought a new car and a defect arises which needs repairs by the dealer, the dealer may choose to: 1.) pay you a reasonable daily transportation allowance equivalent to an air-conditioned taxi fare to cover your commute to and from work; or 2.) provide you with a service vehicle for the duration of the repair.

Source: Sec. 7, Republic Act. No. 10642 or The Philippine Lemon Law.

*Death penalty by lethal injection was later repealed by Republic Act 9346 enacted on June 24, 2006.

About the author:

Joel Enrico Santos is a litigation lawyer handling Civil, Criminal, Labor, Immigration, Transportation, Corporate, and Land Registration cases. He is an Attorney working for a Makati based lawfirm and is a solo practitioner handling cases on his own since April, 2013. Wubalubadubdub!

Got a question or comment about this article? Post them below or in the blog’s facebook page! Visit our facebook page at We don’t need roads

7 Things about Philippine Law you Thought were True

The words of the law are known for being lengthy, verbose, and at times unnecessarily complicated. Take this excerpt from our own Constitution –

“The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.”

Wait.. whut?

Some provisions on the other hand are short and concise, yet hide their real meaning. Let’s take another excerpt from the Constitution –

“The separation of Church and State shall be inviolable.”

You might take this to mean that the Philippine government cannot interfere with the affairs of any religious group yet its true meaning is far more complex than what it appears to be, but that’s a story for some other time.

As each person makes up his own interpretation about the law, misconceptions are bound to proliferate. With a lack of proper information about these laws, anybody can form their own opinion about the law based on their plain and literal meaning. A little knowledge is in fact a dangerous thing.

  1. It’s not Libel or Slander because it’s true.

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Warren Buffet once said, “It takes 20 years to build a reputation and 5 minutes to ruin it.” For business magnates such as Mr. Buffet, their reputation is as valuable as their money or their assets, if not priceless.  It was the value of one’s reputation which made any attack on it, regardless of its truth, punishable by law. Whether it be driven by spite, animosity, or just a natural inclination to gossip, one cannot justify an attack on another’s reputation under the guise of truth alone. As a rule, truth alone will not relieve you of your liability for committing libel or slander. There must be good motives and justifiable reasons behind it.

So the next time you feel the urge of posting something on social media specifically about another person, you might want to re-think your actions because #lawsuit.

Source: Art. 361, Revised Penal Code

  1. There’s no contract if it’s not in writing.

Contracts are as ubiquitous as air. In fact, you probably entered into a contract seconds before reading this article without knowing it. Did you just order fast food take out? That’s technically a contract. You offer to buy their food and they accept it and deliver it to you for your consumption for a price. Did you and your friends agree to drop by on a Tuesday night at that bar for quiz night? Your flaky friend might want to reconsider bailing out on your #squad when you point out how many contracts like this he has violated.

Can you imagine how awkward and slow our society would be if every contract had to be made in writing?

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Cashier: “Welcome to Goodburger, home of the goodburger, can I take your order?”

You: “Yeah, i’d want a large goodburger and make that to go.”

Cashier: “Okay sir, kindly fill out this form and sign along the dotted line, please.”

While not all contracts are required to be in writing, certain contracts do and choosing not to put it in writing is risky and would have disastrous consequences. Do your research before comfortably agreeing on a specific subject matter especially if it concerns buying or selling land or contracts involving huge business deals. Some research goes a long way in keeping yourself protected.

Source: Article 1356, Civil Code of the Philippines.

  1. Special protocol license plates have traffic law immunity.

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There was a point in time in the late 2000s that license plates bearing the number “8” proliferated among motorists who thought displaying them in their cars would give them some sort of privilege on the road under the pretense that their vehicle belongs to a Congressman. Truth is, protocol plates issued to high ranking government officials such as the number “8” license plate do not give any kind of immunity to the vehicle or to the person riding it from obeying traffic laws or ordinances. It IS subject to traffic laws such as the coding scheme and the rider will be penalized for it should they commit a violation.

While it may be true that these protocol license plates do not give any privilege or immunity to the vehicle or its assigned official, it would be wise to yield and give way upon seeing these vehicles. A little show of courtesy to the public servants riding these vehicles goes a long way to the betterment of our country.

Para sa ekonomiya!

Sources: Executive Order 400 and 400-A, and DOTC D.O. NO. 2014-004 or the “Guidelines on the Issuance and Use of Protocol Plates”.

  1. If the sign says so, it’s true.

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Ever seen those signs littered in a parking lot that says something like, “The management shall not be responsible for the loss of items inside your car.”  Signs like that were meant to discourage the public rather than give true information. Should your hard earned precious iPads or gadgets get stolen, or even worse your car itself – who is to be blamed?

The management of a parking lot is responsible should their own direct hired employees be the cause of the loss or damage to the parked vehicles. Take note, however, in case of security guards assigned to establishments supplied by security agencies, the responsibility for the wrongful actions of its security guards falls on the security agency who supplied the security personnel to guard the parking lot, and not the management of the establishment.* In cases of valet parking specifically by hotels or inns, the responsibility falls on the management of the respective hotel or inn itself.**

Sources:

*Spouses Mamaril v. The Boy Scouts of The Philippines, G.R. No. 179382, January 14, 2013.

**Durban Apartments v. Pioneer Insurance, G.R. No. 179419, January 12, 2011

  1. Married women must use their husband’s surname.

 

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One interesting story of how the tradition of a woman taking her husband’s family name after marriage traces its roots in English culture.  Back then, it was assumed that the husband would buy a house for their family. The last name of the husband would then become the name of their house.

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In the Philippines, a woman takes the family name of her husband. While customary, there is no law requiring the wife to do so. In fact, the bride to be has the absolute choice on this matter. The law gives the wife three (3) choices on how she wants to go about her name upon getting married. The first choice is to drop her surname altogether and replace it with that of her husband’s surname. That’s the common practice. Let’s use the name “Marge Bouvier” as an example. When she marries Homer Simpson, her name will become “Marge Simpson.”

The second choice is by retaining her surname, but adding the surname of her husband to it by a hyphen (-). So the name “Marge Bouvier” will become “Marge Bouvier-Simpson.

The last choice is rarely used, but is allowed by law. The married woman may choose to drop her entire first and last name, and use “Mrs.” and then followed by the complete name of her husband.  So in this case, “Marge Bouvier” will become Mrs. Homer Simpson.”

Source: Articles 370 and 371 of the New Civil Code

  1. You own your passport

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A Passport is commonly known to be a document that allows a person wishing to travel outside the country to be allowed entry into another. But did you know that your passport has other purposes too?

Other than being an official document of identity and nationality for purposes of travelling to other countries, your passport is also a request from the Philippine Government to the country of destination to allow the holder to pass safely and freely in their country AND give its holder aid and protection in case of emergency. Your passport is also the king of identification cards. It is declared by law that it is superior to all other official documents. So in the hierarchy of official documents, the passport is essentially king.

But the least known fact about your passport is that it does not belong to you.  The law explicitly states that a Philippine passport remains at all times the property of the Government, and the person to whom it is issued is a mere holder of it.*

Source: Sec. 11, Republic Act No. 8239 or the “Philippine Passport Act of 1996.”

  1. You can pay large bills.. in coins!

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This is more of a thought experiment than a misconception.

Have you ever wondered if you can pay for something entirely in coins? Ever thought of sending jars of coins to pay your internet service provider for giving you unacceptable and ridiculously slow internet speeds? Well, the law says you technically can, but to some limit.

There is term for the limit for which you can legally use your coins for payment and it is called “legal tender power.”

Legal tender power essentially means that when money is offered in payment of a debt, the same must be accepted. In other words, it is the maximum amount of coins to be considered as legal tender at any given transaction. Anything beyond the limit for each coin cannot be considered as “legal tender” and the payee is justified in not accepting it.

So, what is the legal tender power of each coin in the Philippines?

Below is a complete list of coins and its corresponding legal tender power –

Currency Legal tender power
P1 cent P100

or 10,000 pieces of P1 cent coins

P5 cents P100

or 2,000 pieces of P5 cent coins

 

P10 cents P100

or 1,000 pieces of P10 cent coins

P25 cents P100

or 400 pieces of P25 cent coins

P1 peso P1000
P5 peso P1000

or 200 pieces of P5 peso coins

P10 peso P1000

or 100 pieces of P10 peso coins

 

Just don’t attempt giving manong sorbetero a jar of 25 cents worth P10 pesos to buy a cone of dirty ice cream. Give the guy a decent bill.

Source: Section 52 of Republic Act No. 7653, Monetary Board Resolution No. 862       dated 6 July 2006, and BSP Circular No. 537 series of 2006.

About the author:

Joel Enrico Santos is a litigation lawyer handling Civil, Criminal, Labor, Immigration, Transportation, Corporate, and Land Registration cases. He is an Attorney working for a Makati based lawfirm and is a solo practitioner handling cases on his own since April, 2013. He is secretly saving up for his own Ghostbusters Proton pack.

Got a question or comment about this article? Post them below or in the blog’s facebook page! Visit our facebook page at We don’t need roads

THE STORY OF UNIVERSAL versus NINTENDO: How we almost lost Donkey Kong.

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Back in the early years of video games, there was a fierce competition over who will dominate the video game market. Unlike today where there are about three big contenders in the videogame industry, namely – Sony with their Playstation, Microsoft with their Xbox, and Nintendo with their Wii. But back in the day, the industry was teeming with gaming companies. Companies such as Atari, Coleco Vision, Vectrex, Tiger Electronics, LJN (God forbid), Sega, and of course Nintendo. However, most of these gaming companies went bankrupt or simply faded into obscurity.

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A typical Amusement Arcade in the 80s.

In 1981, the arcade scene was booming. Nintendo of Japan and its wholly owned subsidiary Nintendo of America, was taking over the gaming market with the sale of the extraordinarily successful video game known as “Donkey Kong”, which was the brainchild of Shigeru Miyamoto, also known for creating Super Mario Bros. and The Legend of Zelda.

Nintendo profited to around $180 million from the sale of approximately 60,000 video arcade machines in the United States and Canada. Despite this tremendous success, Nintendo remained to be a relatively small company.

Here comes a new challenger

During the 80s, Universal City Studios or Universal for short was a giant in the movie and music industry. Universal’s President, Sid Sheinberg, wanted to expand and enter the video gaming industry. Universal will soon use its alleged property rights over one popular Hollywood giant gorilla – King Kong.

The similarities between the great ape of the silver screen and Donkey Kong were somehow apparent to Sheinberg.

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(Left) 1976 remake of the movie King Kong (Right) Screen capture of the 1980s arcade game Donkey Kong.

These similarities will be taken advantage of by Universal to penetrate the highly lucrative video gaming industry. Sid Sheinberg took notice of Donkey Kong’s success in the arcade and home video game console market. He tested a round of Donkey Kong himself. After testing the game, he was convinced that Donkey Kong was a rip off of King Kong.

Universal demanded Nintendo to pay them royalties for its use of King Kong’s image to that of Donkey Kong. Nintendo, however, refused to pay. This infuriated Sid Sheinberg, for which he would famously tell Nintendo, “You’d better start saving money to pay your attorney’s fees, I view litigation as a profit center.”

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Thus, in 1982, Universal sued Nintendo for trademark infringement and unfair competition for its character Donkey Kong.

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Take note, 1980s Nintendo was not the powerhouse gaming company that we all know and presently love. It was a relatively small consumer electronics and software company. Little did it know that this case would be a landmark case that will establish Nintendo as a legitimate gaming company.

So, what exactly is a trademark infringement and unfair competition?

Imagine Coca-cola. The image that immediately comes to mind is their famous ribbon like script which says “Coca-Cola”. You call that a Trademark. A Trademark distinguishes your brand from the other competitors’ brands and it gives you exclusive rights to its use. Now imagine a similar soft drink company comes up with its own mark, but uses the exact same style as that of Coca-Cola – same lettering, same color, similar style, but is named “King-Cola”. Trademark infringement basically is copying another mark and using it for your own advantage, either to compete or simply to take advantage of your competitor brand’s popularity for your own benefit.

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Unfair competition on the other hand simply means imitating a certain product where the seller deceives the public into buying his own goods making them appear as the real deal. In simple terms, it’s a knockoff. Class “A” products anyone?

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Is that Shrek?

Enter player 1! John Kirby

Nintendo hired a lawyer with the name of John Kirby to represent it during trial. It is believed by many that the popular Nintendo character “Kirby” was named in his honor, although Masahiro Sakurai, the creator of the character claims he does not remember how the name “Kirby” came to be.

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John Kirby

Nintendo’s internal legal counsel by the name of Howard Lincoln was not impressed by the looks of Kirby. He observed Kirby to be “dishevelled, and out of sorts.” Little did they know that this unassuming lawyer was a brilliant litigator.

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Kirby was known to defend his clients tenaciously and adamantly and has won several cases concerning Intellectual Property Law. Lincoln and Kirby met with Nintendo of Japan’s president Hiroshi Yamauchi to discuss the merits of the Universal case. At the end of their meeting, Hiroshi stated, “We must win.”

Lincoln and Kirby also interviewed several of Nintendo’s staff, including Shigeru Miyamoto and Gunpei Yokoi, the creator of Gameboy. With all the information that they had, they flew back to the U.S to prepare for battle.

The battle begins

During trial, the judge actually had to play Donkey Kong and watch King Kong movies to determine if there were similarities between the two.  The Judge concluded that “the differences between them were great”, that the Donkey Kong game was “comical” and the Donkey Kong gorilla character was “farcical, childlike and nonsexual.” In contrast, the court described the King Kong character and story as “a ferocious gorilla in quest of a beautiful woman.” In summary, the court concluded that “Donkey Kong creates a totally different concept and feel from the drama of King Kong” and that at best, Donkey Kong was a parody of King Kong. If a mark is a parody of another mark, it is an exception to trademark infringement.

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But even more important than these conclusions from the judge, Nintendo discovered that Universal did not actually own King Kong because it didn’t really have any ownership over it. Nintendo also found out that Universal previously won another court case proving that King Kong was in public domain, which allowed Universal to use King Kong in its 1970s movie remake of the same name. This discovery along with the other arguments and conclusions by the Court made the case for Nintendo. Universal appealed their case up to the U.S Supreme Court seeking to overturn the trial court’s decision in favor of Nintendo, but was ultimately an exercise in futility. Nintendo was adjudged the winner of the case and was awarded an amount of $1.8 Million dollars.

Donkey Kong survived an untimely death. Were it not for the combined efforts of Nintendo’s staff and John Kirby, Donkey Kong would be a mere piece of history. The menacing ape went on to star in several games such as “Donkey Kong Country” for the Super Nintendo, “Super Smashbrothers” for the Nintendo 64, and numerous appearances in various titles.

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As for Nintendo’s lawyer John Kirby, Nintendo gave him a sailboat which was christened as “Donkey Kong.”

Special thanks to Norman Caruso a.k.a The Gaming Historian for some screenshots and for the inspiration to create this article.

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About the author:

Joel Enrico Santos is a litigation lawyer handling Civil, Criminal, Labor, Immigration, Transportation, Corporate, and Land Registration cases. He is an Associate Attorney with a Makati based lawfirm and is a solo practitioner handling cases on his own since April, 2013. He thinks Flat-Earth theory is interesting, but improbable… in this Universe.

Plot twist: you’ve committed a crime.

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On December 8, 1930, the Philippine congress passed a piece of general legislation which is known as the Revised Penal Code which took effect on January 1, 1932. It was a continuation of the old penal code which had to be revised to fit the existing conditions at that time.

In 1932, society was different. It was a different time, a different place, and a different mind-set.  Most crimes are universal and can never go outdated like Murder or Theft. These crimes date back to the era of the Bible and any debate on whether these are considered crimes are pretty much settled.

Despite it being 83 years in existence, some crimes remained in the code regardless of the changes in society’s norms and customs. Efforts have been made to pass a new Criminal Code to supersede the antiquated Penal Code. In fact, the Department of Justice has created a committee back in April 2011 to draft it. The working draft can be viewed at the DOJ’s website (doj.gov.ph). Until this new Criminal Code is passed by Congress into law, these remnants of an era long gone will still remain, waiting for the next person to commit them.

1. You’re a bum.

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Back in the day, a bum was called a Vagrant. (What a classy term). But it ain’t so classy when a homeless person gets snatched by cops from his cardboard box home in the streets and taken to prison. A Vagrant is defined as one who loiters around public places or wandering the country or streets without visible means of support. And take note of the term “visible”. If you appear to be financially poor to the naked eye, you’re in for a treat. So, if you’re a simple kind of person bereft of the superficialities of this world, then consider yourself a prime target for an arrest! Christopher McCandless would have hated society even more had he been arrested for tramping.

Believe it or not, people were in fact arrested for this crime as late as 2003, where two women were arrested for wandering and loitering around the streets of Davao.*

We sure live in enlightened  times.

Jail time: 2 months to a maximum of 2 years and 4 months.

Source: Article 202 of the Revised Penal Code.

*People of the Philippines v. Evangeline Siton and Krystel Sagarano, G.R. No. 169364, September 18, 2009

2. You’ve challenged someone to a duel.

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Challenging someone to a fist fight may be seen as immature and tasteless these days, but in the past, it was a way of life and honor. A gentleman’s way of settling disputes.

Challenging someone to a duel means that you actually have to challenge somebody to an actual formal duel. Yes, just like ancient times. Think spaghetti Westerns. And take note, it is merely challenging someone to a duel that is considered a crime, regardless if you’ve actually had a duel and regardless if the challenge was accepted.

Jail time: 6 months to over 2 years.

Source: Article 261 of the Revised Penal Code.

3. You were in a riot.

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“A riot,” as Martin Luther King, Jr. said, “is the language of the unheard.” But this quote has nothing to do with the kind of riot we’re talking about. We’re not talking about protests gone bad because of the oppression of ethnic and racial minority groups, we’re talking about bar room brawls, random sweaty men, spontaneous fist fights for an ill-mannered singing of “My Way” in a karaoke bar, or a Tuesday afternoon at an Irish Pub. If you find yourself in a spontaneous free for all, get yourself out immediately because when the cops arrive and they can’t identify who killed who or who punched who, everyone who appears to have used any form violence will be arrested. Sure, there’s self defense, but you’ll have to explain that later on after you’re charged with this crime. Imagine the hassle that’s going to be.

Jail time: 2 years, 6 years up to a max of 12 years.

Source: Article 251 of the Revised Penal Code.

4. You’re a widow who marries another guy within three hundred and one days after the death of your husband.

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While most widows would voluntarily abstain from any kind of dating or relationship while their husband’s death is still fresh, some would find new love relatively early, because hey, life goes on right?

Yet, it is still considered a crime for a widow to marry another guy within an exact period of three hundred and one days following the death of their ex-husband. Widowers however are not included in this crime.

The purpose why this was made into a crime was because there were scenarios where widows were left pregnant with their dead husband’s child. Back in 1932, I suppose there was no way of detecting if a woman is pregnant in the early weeks of her pregnancy. If the widow marries and gets pregnant by another guy within 301 days following the death of her husband, who is to say whose baby it is?

This is what Congress wanted  – to prevent confusion in determining the true father of the child in that kind of scenario. Back in 1932, DNA testing did not exist. So this seemed to be the best solution at that time. But now, determining who a child’s father is relatively easy through a simple DNA test.

Jail time: 1 month to 6 months.

Source: Article 351 of the Revised Penal Code.

STRANGE TALES

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“The difference between fiction and reality? Fiction has to make sense.” – Tom Clancy

While I have no doubt in Mr. Clancy’s skill in coming up with rich plotlines for his novels, i’m pretty sure his imaginative brain can’t come close to the offbeat theme of real life. And like what he said, fiction has to make sense. Reality, on the other hand, is a library of weird, and these actual court cases will attest to that.

1. Man gets arrested for looking from side to side and holding his abdomen.

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The story:

An informant called a police station about three suspicious-looking persons standing in a corner in Tondo, Manila. A surveillance team of officers in civilian clothing was immediately dispatched to the area. According to the surveillance team, they saw two men “looking from side to side,” and the other was “holding his abdomen.”

The Coppers approach the persons and identified themselves as policemen. The two men suddenly ran away but were immediately arrested and their bodies were searched.

The police recovered an unlicensed .38 caliber Smith and Wesson Revolver with six live bullets in the chamber and a fan knife. One of the two men was charged with unlawful possession of an unlicensed firearm.

The Verdict:

The two persons were acquitted on the ground of an illegal warrantless arrest. There was nothing to support the arresting officers’ suspicion other than the man’s darting eyes and his hand on his abdomen.

The Court went on to say –

“It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society.”

Source: People v. Mengote, G.R. No. 87059 June 22, 1992.

2. Man submits himself to medical examination to prove to his wife that he is potent and capable of getting an erection. Medical results reveal the unexpected.

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The story:

A woman sued his husband to nullify their marriage on the ground that her husband was psychologically incapacitated, impotent, and a closet homosexual because he did not show his penis to her and refused to have sex with her.

The woman said that she had observed her husband using an eyebrow pencil and sometimes the cleansing cream of his mother. According to her, the man married her to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man. The husband submitted himself to a medical examination to prove that he is potent and capable of an erection.

His penis was examined by a physician. The medical results showed that there was no evidence of impotency on the part of the husband and that he is capable of an erection.

The doctor said that he asked the husband to masturbate to find out whether or not he has an erection. The doctor found out that from the original size of two (2) inches, or five (5) centimeters, the penis of the husband lengthened by one (1) inch and one centimeter.

The court decision:

The Marriage was nullified. The prolonged refusal of the husband to have sexual intercourse with his wife is considered a sign of psychological incapacity rendering himself incapable of fulfilling his marital obligations to his wife. 

Source: Chi Ming Tsoi v. Court of Appeals, G.R. No. 119190, January 16, 1997

3. The curious case of the Reindeer Horn.

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The story:

Heirs of several deceased Filipino seamen sued the latter’s Norwegian employer for death compensation benefits. The deceased Filipino seamen died on board a vessel operated by the Norwegian employer.

The employer denied the claims and said that the deaths of the seamen were a result of their self-inflicted injuries because the deceased seafarers allegedly implanted fragments of reindeer horn in their respective sexual organs and died due to severe tetanus and massive viral infections.

According to the foreign employer, the implanted fragments of the horn of a reindeer or antelope in their respective sexual organs was done while on a voyage between Sweden and South Korea.

The reindeer horn was found left by a Greek officer from a previous voyage. One of the Filipino seamen allegedly found the horn and asked for it from the Chief Officer. The seaman gave the horn to the Second Engineer to carve and shape for implantation. Afterwards, the shaped fragments of the horn were inserted by the seamen subcutaneously into their respective sex organs. The implantations were made surgically without sanitary and sterile facilities, which resulted in severe tetanus and massive viral infections.

How did it end?

Death compensation benefits were awarded to the heirs of the deceased seamen. The Norwegian employer failed to prove that the deaths were in fact caused by the deliberate acts of the seamen inserting reindeer horn in their penis.

Source: NFD International v. NLRC, G.R. No. 116629     January 16, 1998

4. Passengers sue a local airline company for upgrading them from Business class to First class for free.

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The story:

On their return flight to Manila, four passengers booked a flight with an airline bound for Manila from Hong Kong with two other companions. All the passengers were booked in the business class section of the flight.

When boarding time was announced, the ground stewardess told two of the four passengers that they were upgraded to First Class for free. The two passengers refused the upgrade, reasoning that it would not look nice for them as hosts to travel in First Class and their guests, in the Business Class since they were going to discuss business matters during the flight.

The ground stewardess reasoned that the business class was already fully booked. The ground stewardess told them that if they would not avail themselves of the privilege, they would not be allowed to take the flight. Eventually, the two passengers gave in and proceeded to the First Class Cabin.

Upon their return to Manila, the two passengers wrote the airline’s manager and demanded that they be indemnified in the amount of P1million for the “humiliation and embarrassment” caused by its employees. They also demanded a written apology from the management, preferably a responsible person with a rank of no less than the Country Manager, as well as the apology from the ground stewardess. The two passengers eventually sued the airline and was awarded a total of a little over Sixteen Million Pesos (Php16,000,000.00).

The court’s decision:

Involuntary upgrading of the passenger’s seat accommodation is considered a breach of contract of carriage. By insisting on the upgrade, the airline breached its contract of carriage with their passengers. The Supreme Court however reduced the award of damages to the suing passengers a mere Five Thousand Pesos (Php5,000).

Source: Cathay Pacific v. Spouses Vasquez, G.R. No. 150843.  March 14, 2003.

5. A 30 year old female elementary teacher marries her sixth grade student.

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The story:

A female Bacolod City highschool teacher was fired by her employer school when school authorities found out about her marriage to her sixth grade student. The two fell in love during a remedial class the school offered to its students. Two months after the couple’s church wedding, the teacher was suspended without pay and was eventually terminated her from work. School authorities reasoned out that her termination was “For abusive and unethical conduct unbecoming of a dignified school teacher and that her continued employment is inimical to the best interest, and would downgrade the high moral values, of the school.”

The court decision:

The Court found that the school failed to prove and substantiate their claim that the teacher took advantage of her position to court her student.  Teacher was found illegally terminated from her work.

Source: Chua-Qua v. Clave, G.R. No. 49549 August 30, 1990