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LEGAL NOTE 0137: WHAT IS PROCURING CAUSE?

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July 29, 2013

LEGAL NOTE 0137: WHAT IS PROCURING CAUSE?

 

SOURCE: ORIENTAL PETROLEUM AND MINERALS CORPORATION, PETITIONER, -VERSUS- TUSCAN REAL TV, INC., RESPONDENT. (G.R. NO. 195481, 10 JULY 2013, ABAD J.) SUBJECT/S: BROKER’S COMMISSION; PRINCIPLE OF PROCURING CAUSE. (BRIEF TITLE: ORIENTAL PETROLIUM VS. TUSCAN REALTY)

 

WHAT IS MEANT BY “PROCURING CAUSE”?

 

THE TERM “PROCURING CAUSE” REFERS TO A CAUSE WHICH STARTS A SERIES OF EVENTS AND RESULTS, WITHOUT BREAK IN THEIR CONTINUITY, IN THE ACCOMPLISHMENT OF A BROKER’S PRIME OBJECTIVE OF PRODUCING A PURCHASER WHO IS READY, WILLING, AND ABLE TO BUY ON THE OWNER’S TERMS.

 

THIS IS SIMILAR TO THE CONCEPT OF PROXIMATE CAUSE IN TORTS, WITHOUT WHICH THE INJURY WOULD NOT HAVE OCCURRED.

 

TO BE REGARDED AS THE PROCURING CAUSE OF A SALE, A BROKER’S EFFORTS MUST HAVE BEEN THE FOUNDATION OF THE NEGOTIATIONS WHICH SUBSEQUENTLY RESULTED IN A SALE.

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TUSCAN REALTY WAS ENGAGED BY ORIENTAL PETROLEUM TO LOOK FOR BUYERS FOR ITS CONDOMINIUM UNITS IN CORINTHIAN PLAZA. TUSCAN INTRODUCED GATEWAY TO ORIENTAL PETROLEUM AND A CONTRACT TO SELL WAS EXECUTED. HOWEVER GATEWAY ASSIGNED ITS RIGHT UNDER THE CONTRACT TO SELL IN FAVOR OF ANCHETA WHO ULTIMATELY BOUGHT THE PROPERTY. IS TUSCAN ENTITLED TO BROKER’S COMMISSION?

 

YES.

 

BECAUSE OF THE PRINCIPLE OF “PROCURING CAUSE”.

 

IT WAS ON ACCOUNT OF TUSCAN REALTY’S EFFORT THAT ORIENTAL PETROLEUM GOT CONNECTED TO GATEWAY, THE PROSPECTIVE BUYER, RESULTING IN THE LATTER TWO ENTERING INTO A CONTRACT TO SELL INVOLVING THE TWO CONDOMINIUM UNITS. ALTHOUGH GATEWAY TURNED AROUND AND SOLD THE CONDOMINIUM UNITS TO ANCHETA, THE FACT IS THAT SUCH ULTIMATE SALE COULD NOT HAVE HAPPENED WITHOUT GATEWAY’S INDISPENSABLE INTERVENTION AS INTERMEDIATE BUYER.

 

TO READ THE DECISION, JUST DOWNLOAD THE FILE BELOW.

SCD-2013-0020 -JULY 2013 – 0RIENTAL PETROLEUM

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CASE 2013-0020: ORIENTAL PETROLEUM AND MINERALS CORPORATION, PETITIONER, -VERSUS- TUSCAN REAL TV, INC., RESPONDENT. (G.R. NO. 195481, 10 JULY 2013, ABAD J.) SUBJECT/S: BROKER’S COMMISSION; PRINCIPLE OF PROCURING CAUSE. (BRIEF TITLE: ORIENTAL PETROLIUM VS. TUSCAN REALTY)

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CASE 2013-0020: ORIENTAL PETROLEUM AND MINERALS CORPORATION, PETITIONER, -VERSUS- TUSCAN REAL TV, INC., RESPONDENT. (G.R. NO. 195481, 10 JULY 2013, ABAD J.) SUBJECT/S: BROKER’S COMMISSION; PRINCIPLE OF PROCURING CAUSE. (BRIEF TITLE: ORIENTAL PETROLIUM VS. TUSCAN REALTY)

 

DISPOSITIVE:

 

“WHEREFORE, the Court DENIES the petition and AFFIRMS the Decision of the Court of Appeals in CA-G.R. CV 86417 dated August II, 2010.

 

SO ORDERED.”

 

SUBJECTS/DOCTRINES/DIGEST:

 

TUSCAN REALTY WAS ENGAGED BY ORIENTAL PETROLEUM TO LOOK FOR BUYERS FOR ITS CONDOMINIUM UNITS IN CORINTHIAN PLAZA. TUSCAN INTRODUCED GATEWAY TO ORIENTAL PETROLEUM AND A CONTRACT TO SELL WAS EXECUTED. HOWEVER GATEWAY ASSIGNED ITS RIGHT UNDER THE CONTRACT TO SELL IN FAVOR OF ANCHETA WHO ULTIMATELY BOUGHT THE PROPERTY. IS TUSCAN ENTITLED TO BROKER’S COMMISSION?

 

YES.

 

BECAUSE OF THE PRINCIPLE OF “PROCURING CAUSE”.

 

IT WAS ON ACCOUNT OF TUSCAN REALTY’S EFFORT THAT ORIENTAL PETROLEUM GOT CONNECTED TO GATEWAY, THE PROSPECTIVE BUYER, RESULTING IN THE LATTER TWO ENTERING INTO A CONTRACT TO SELL INVOLVING THE TWO CONDOMINIUM UNITS. ALTHOUGH GATEWAY TURNED AROUND AND SOLD THE CONDOMINIUM UNITS TO ANCHETA, THE FACT IS THAT SUCH ULTIMATE SALE COULD NOT HAVE HAPPENED WITHOUT GATEWAY’S INDISPENSABLE INTERVENTION AS INTERMEDIATE BUYER.

 

 

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WHAT IS MEANT BY “PROCURING CAUSE”?

 

THE TERM “PROCURING CAUSE” REFERS TO A CAUSE WHICH STARTS A SERIES OF EVENTS AND RESULTS, WITHOUT BREAK IN THEIR CONTINUITY, IN THE ACCOMPLISHMENT OF A BROKER’S PRIME OBJECTIVE OF PRODUCING A PURCHASER WHO IS READY, WILLING, AND ABLE TO BUY ON THE OWNER’S TERMS.

 

THIS IS SIMILAR TO THE CONCEPT OF PROXIMATE CAUSE IN TORTS, WITHOUT WHICH THE INJURY WOULD NOT HAVE OCCURRED.

 

TO BE REGARDED AS THE PROCURING CAUSE OF A SALE, A BROKER’S EFFORTS MUST HAVE BEEN THE FOUNDATION OF THE NEGOTIATIONS WHICH SUBSEQUENTLY RESULTED IN A SALE.

 

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ORIENTAL PETROLEUM  CLAIMS THAT GATEWAY WAS NOT A READY, WILLING, AND ABLE PURCHASER AND THAT IT IN FACT ASSIGNED ITS RIGHT TO ANCHETA WHO BECAME THE ULTIMATE BUYER AND THAT, MOREOVER, IT WAS NOT TUSCAN REALTY THAT INTRODUCED ANCHETA TO ORIENTAL PETROLEUM. IS THIS CONTENTION CORRECT?

 

NO. 

 

THERE IS NO QUESTION THAT THE CONTRACT TO SELL THAT ORIENTAL PETROLEUM CONCLUDED WITH GATEWAY WAS A VALID AND BINDING CONTRACT TO SELL, WHICH PRECLUDED ORIENTAL PETROLEUM FROM PEDDLING THE PROPERTIES TO OTHERS. INDEED, ORIENTAL PETROLEUM EXECUTED A DEED OF ABSOLUTE SALE IN ANCHETA’S FAVOR BY VIRTUE OF GATEWAY’S ASSIGNMENT TO HIM OF ITS RIGHTS UNDER THE CONTRACT TO SELL. CONSEQUENTLY, IT CANNOT BE SAID THAT ORIENTAL PETROLEUM FOUND A DIRECT BUYER IN ANCHETA WITHOUT THE INTERMEDIATE CONTRACT TO SELL IN FAVOR OF GATEWAY, TUSCAN REALTY’S PROPOSED BUYER.

 

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ORIENTAL PETROLEUM FURTHER POINTS OUT THAT TUSCAN REALTY TOOK NO PART IN ITS NEGOTIATION WITH GATEWAY. IS THEIR ARGUMENT MERITORIOUS?

 

NO.

 

THAT MAY BE THE CASE BUT THE REASON WHY TUSCAN REALTY REFRAINED FROM DOING SO WAS BECAUSE OF ORIENTAL PETROLEUM’S ADVICE THAT IT WOULD HENCEFORTH DIRECTLY NEGOTIATE THE SALE WITH GATEWAY.

 

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ASSUMING THE ADVICE AMOUNTED TO A REVOCATION OF TUSCAN REALTY’S AUTHORITY TO SELL, IS TUSCAN STILL ENTITLED TO COMMISSION?

 

YES.

 

THE COURT HAS ALWAYS RECOGNIZED THE BROKER’S RIGHT TO HIS COMMISSION, ALTHOUGH THE OWNER REVOKED HIS AUTHORITY AND DIRECTLY NEGOTIATED WITH THE BUYER WHOM HE MET THROUGH THE BROKER’S EFFORTS. IT  WOULD BE UNFAIR NOT TO GIVE THE BROKER THE REWARD HE HAD EARNED FOR HELPING THE OWNER FIND A BUYER WHO WOULD PAY THE PRICE.

 

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LASTLY, ORIENTAL PETROLEUM ARGUES THAT THIS IS JUST A SIMPLE CASE OF NON-FULFILLMENT OF A SUSPENSIVE CONDITION. IT CLAIMS THAT THE COMMISSION IS ONLY TO BE AWARDED IF THE PROPERTIES WERE SOLD AT A MINIMUM OF PL20,000.00 PER SQUARE METER AND THAT THE DELIVERY MUST BE MADE WITHIN THE FIRST WEEK OF JANUARY 1997. IS THIS ARGUMENT CORRECT?

 

NO. 

 

THESE ARE JUST LAME EXCUSES TO AVOID LIABILITY. AS THE CA CORRECTLY NOTED, ORIENTAL PETROLEUM DID NOT RAISE THE ISSUE REGARDING THE DELIVERY DEADLINE IN ITS ANSWER. AS FOR THE FACT THAT THE PROPERTIES WERE EVENTUALLY SOLD FOR LESS THAN THE ORIGINAL ASKING PRICE, THAT ACTION WAS WITHIN ORIENTAL PETROLEUM’S DISCRETION. IT DECIDED THE MATTER UNILATERALLY WITHOUT CONSULTING ITS BROKER. CONSEQUENTLY, IT SHOULD BE DEEMED TO HAVE WAIVED ITS OWN MINIMUM PRICE REQUIREMENT.

 

TO READ THE DECISION, JUST DOWNLOAD THE FILE BELOW.

SCD-2013-0020 -JULY 2013 – 0RIENTAL PETROLEUM

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LEGAL NOTE 0131: ON TERMINATION/DISMISSAL OF A PROBATIONARY EMPLOYEE. CAN HE/SHE BE TERMINATED ON GROUND OF CHRONIC TARDINESS? SHOULD EMPLOYER INFORM HER AT THE TIME OF HIRING THAT ONE STANDARD IS: NO TARDINESS? WHAT ARE THE GROUNDS FOR TERMINATING A PROBATIONARY EMPLOYEE?

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August 20, 2012

LEGAL NOTE 0131: ON TERMINATION/DISMISSAL OF A PROBATIONARY EMPLOYEE. CAN HE/SHE BE TERMINATED ON GROUND OF CHRONIC TARDINESS? SHOULD EMPLOYER INFORM HIM/HER AT THE TIME OF HIRING THAT ONE STANDARD IS: NO TARDINESS? WHAT ARE THE GROUNDS FOR TERMINATING A PROBATIONARY EMPLOYEE?

 

SOURCE: MYLENE CARVAJAL VS. LUZON DEVELOPMENT BANK (G.R. NO. 186169, 12 AUGUST 2012, PEREZ, J.) SUBJECT/S: DISMISSAL OF A PROBATIONARY EMPLOYEE. (BRIEF TITLE: CARVAJAL VS. LUZON DEVELOPMENT BANK).

 

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DISPOSITIVE PORTION:

 

In sum, petitioner was validly dismissed from probationary employment before the expiration of her 6-month probationary employment contract. If the termination is for cause, it may be done anytime during the probation; the employer docs not have to wait until the probation period is over. With a valid reason for petitioner’s dismissal coupled with the proper observance of due process, the claim for back wages must necessarily fail.

In view of the foregoing, we find no reason to disturb the findings and conclusions of the Court of Appeals.

 

WHEREFORE, the petition is DENIED.

 

 

SO ORDERED.

 

 

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SUBJECTS/DOCTRINES/DIGESTS

 

 

CARVAJAL, A PROBATIONARY EMPLOYEE, FILED A CASE FOR ILLEGAL DISMISSAL. SHE WON. BUT SHE FILED AN APPEARL AT NLRC QUESTIONING THE COMPUTATION OF BACKWAGES.  RESPONDENT BANK RAISED THE ISSUE OF ILLEGAL DISMISSAL. NLRC UPHOLD ILLEGAL DISMISSAL. BUT CA RULED THERE WAS NO ILLEGAL DISMISSAL. AT SC  CARVAJAL ARGUED THE ISSUE ON DISMISSAL MUST NOT BE RAISED BECAUSE IT HAS ALREADY BECOME FINAL WHEN THE BANK DID NOT APPEAL THE ARBITER’S DECISION. IS CARVAJAL CORRECT?

 

 

NO. AN APPEAL, ONCE ACCEPTED BY SC, THROWS THE ENTIRE CASE FOR REVIEW AND SC CAN REVIEW MATTERS NOT SPECIFICALLY RAISED AS ERROR IF THEIR CONSIDERATION IS NECESSARY FOR A JUST RESOLUTION OF THE CASE.

 

 

“Truly, it is axiomatic that an appeal, once accepted by this Court, throws the entire case open to review, and that this Court has the authority to review matters not specifically raised or assigned as error by the parties, if their consideration is necessary in arriving at a just resolution of the case.”

 

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CARVAJALARGUED THAT SHE COULD NOT BE DISMISSED ON THE GROUND OF HER CHRONIC TARDINESS BECAUSE WHEN SHE WAS NOT HIRED SHE WAS NOT INFORMED THAT NOT INCURRING  “CHRONIC TARTIDESS” IS A REASONABLE STANDARD SHE MUST OBSERVE. THE IMPLEMENTING RULES PROVIDE THAT WHEN NO STANDARDS ARE MADE KNOWN TO THE EMPLOYEE AT THE TIME OF EMPLOYMENT, HE SHALL BE DEEMED A REGULAR EMPLOYEE. IS CARVAJAL CORRECT?

 

 

NO. IT IS BUT COMMON SENSE THAT SHE MUST ABIDE BY THE WORK HOURS IMPOSED BY THE BANK. PUNCTUALITY IS A REASONABLE STANDARD IMPOSED ON EVERY EMPLOYEE.  THE RULE ON REASONABLE STANDARDS MADE KNOWN TO THE EMPLOYEE PRIOR TO ENGAGEMENT SHOULD NOT BE USED TO EXCULPATE A PROBATIONARY EMPLOYEE WHO ACTS IN A MANNER CONTRARY TO BASIC KNOWLEDGE AND COMMON SENSE, IN REGARD TO WHICH THERE IS NO NEED TO SPELL OUT A POLICY OR STANDARD TO BE MET.

 

 

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WHAT ARE THE LEGAL CAUSES FOR TERMINATING A PROBATIONARY EMPLOYEE?

 

 

THERE ARE THREE:

 

 

(1) A JUST CAUSE  OR

 

 

(2) AN AUTHORIZED CAUSE AND

 

 

(3) WHEN HE FAILS TO QUALIFY AS A REGULAR EMPLOYEE IN ACCORDANCE WITH REASONABLE STANDARDS PRESCRIBED BY THE EMPLOYER.22

 

“A probationary employee, like a regular employee, enjoys security of tenure. However, in cases of probationary employment, aside from just or

authorized causes of termination, an additional ground is provided under Article 281 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of the engagement. Thus, the services of an employee who has been engaged on probationary basis may be terminated for any of the following: (1) a just or (2) an authorized cause and (3) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer.”

 

 

READ THE FULL CASE BY DOWNLOADING THE FILE BELOW.

SCD-2012-0067-CARVAJAL-AUG 2102

 

 

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