Issuance of Writ of Preliminary Attachment

Allied Banking Corp. v. South Pacific Sugar Corp. (as cited in the case of Santiago and Tanchan v. Allied Banking Corporation G.R. No. 164510)

"Such general averment will not suffice to support the issuance of the writ of preliminary attachment. It is necessary to recite in what particular manner an applicant for writ of attachment was defrauded."

"...in this jurisdiction, fraud is never presumed."

"...written contracts x x x are presumed to have been entered into for a sufficient consideration."


Ng Wee v. Tankiansee (as cited in the case of Santiago and Tanchan v. Allied Banking Corporation G.R. No. 164510)

"The affidavit, being the foundation of the writ, must contain such particulars as to how the fraud imputed to respondent was committed for the court to decide whether or not to issue the writ. Absent any statement of other factual circumstances to show the respondent, at the time of contracting the obligation, had a preconceived plan or intention not to pay, or without any showing of how respondent committed the alleged fraud, the general averment in the affidavit x x x is insufficient to support the issuance of a writ of preliminary attachment."


Santiago and Tanchan v. Allied Banking Corporation G.R. No. 164510

"...rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practices fraud upon the creditor at the time of the execution of their agreement in that said debtor had a pre-conceived plan or intention not to pay the creditor. Being a state of mind, fraud cannot be merely inferred from a bare allegation of non-payment of debt or non-performance of obligation."

"...the requirement [to prove fraud] becomes all the more stringent when the application for preliminary attachment is directed against a defendant officer of a defendant corporation [in this case, a surety and principal debtor], for it will not be inferred from the affiliation of one to the other that the officer participated in or facilitated in any fraudulent practice attributed to the corporation."

Claim for damages:

"A wrongful attachment may give rise to liability for moral damages but evidence must be adduced not only for the torment and humiliation brought upon the defendant by the attaching party but also the latter's bad faith or malice in causing the wrongful attachment, such as evidence that the latter deliberately made false statements in its application for attachment. Absent such evidence of malice, that attaching party cannot be held liable for moral damages."


Liberty Insurance Corporation v. Court of Appeals (as cited in the case of Philippine Bank of Communications v. Court of Appeals G.R. No. 115678)

"To sustain an attachment on this ground [fraud], it must be shown that the debtor in contracting the debt or incurring the obligation intended to defraud the creditor. The fraud must relate to the execution of the agreement and must have been the reason which induced the other party into giving consent which he would not have otherwise given. To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the obligation sued upon. A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or intention not to pay x x x. Fraud is a state of mind and need not be proved by direct evidence but may be inferred from the circumstances attendant in each case."


Philippine Bank of Communications v. Court of Appeals G.R. No. 115678

",,,fraudulent intent not to honor the admitted obligation cannot be inferred from the debtor's inability to pay or comply with the obligations."

"...fraud may be gleaned from a preconceived plan or intention not to pay."

"...the lower court should have conducted a hearing and required private petitioner to substantiate its allegation of fraud, embezzlement and misappropriation."

"...not only was petitioner's application defective for having merely given general averments, what is worse, there was no hearing to afford private respondents an opportunity to ventilate their side, in accordance with due process, in order to determine the truthfulness of the allegations of petitioner."

"Time and again, we have held that the rules on the issuance of a writ of attachment must be construed strictly against the applicants. The stringency is required because the remedy of attachment is harsh, extraordinary and summary in nature. If all requisites for the granting of the writ are not present, the court which issues it acts in excess of its jurisdiction."


D.P. Lub Oil Marketing Center, Inc. v. Nicolas (as cited in the case of Philippine Bank of Communications v. Court of Appeals G.R. No. 115678)

"There is thus the necessity of giving to private respondents an opportunity to ventilate their side in a hearing, in accordance with due process, in order to determine the truthfulness of the allegations."

Psychological Incapacity

SANTOS vs. COURT OF APPEALS, 240 SCRA 20, January 4, 1995

• Psychological Incapacity must be characterized by

a)      gravity,

b)      juridical antecedence, and

c)       incurability

• Psychological Incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants concomitantly must be assumed and discharged by the parties to the marriage which include their mutual obligations to live together, observe love, respect and fidelity and render help and support

• The intendment of the law is to confine psychological incapacity to the most serious cases of personality disorders clearly demonstrative of utter  insensitivity or inability  to give meaning and significance to the marriage.

REPUBLIC OF THE PHILIPPINES vs. COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, G.R. No. 108763, February 13, 1997

• Mere showing of “irreconcilable differences” and “conflicting personalities” in no wise constitute psychological incapcity. 

• Root cause of psychological incapacity must be

a)      medically or clinically identified,

b)      alleged in the complaint,

c)       sufficiently proven by experts, and

d)      clearly expained in the decision

• The incapacity must be proven to be existing “at the time of the celebration” marriage. 

• Such incapacity must be shown to be medically and clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related  to marriage, like the exercise of a profession or employment in a job

• Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage (Art 68-71 & Art 220-225). The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will.

BRENDA B. MARCOS vs. WILSON G. MARCOS, G.R. No. 136490, October 19, 2000

• The foregoing guidelines in Santos v. Court of Appeals do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition.