Unchanged liability

In estafa with abuse of confidence, the offender (1) receives money, goods or other personal property in trust, or on commission, or for administration or under any obligation involving the duty to make delivery or to return the same; (2) misappropriates or converts such money or property or denies having received it as shown by his failure to return the same despite demand; and(3)to the prejudice or damage of the offended party. If the parties agree to change the manner of returning the property or the money constituting the proceeds in the sale of the property, will the criminal liability for estafa be extinguished? This is one of the questions raised in this case between Perla and Fely.

Between August 1991 to April 1993, Perla received from Fely several pieces of jewelry with a total value of P163,167.95.The agreement between them was that Perla would sell the jewelries and thereafter turn over or account for the proceeds of their sale or otherwise return to Fely the unsold pieces within two months from receipt thereof. Being relatives, Fely didn’t asked Perla for a receipt for said jewelries.

When Perla failed to remit the proceeds of the sale of the jewelries or to return the unsold pieces, Fely sent her a demand letter. But Perla still failed to turn over the proceeds of the sale or to return the unsold pieces, constraining Fely to refer the matter to the barangay captain for conciliation.

During the conciliation, Perla acknowledged receipt of the jewelries from Fely valued at P163,167.95. Then both of them also entered into a Kasunduan sa Bayaran wherein Perla promised to pay Fely P3,000 a month to answer for the jewelries which she received from the latter.

Perla still failed to comply with the Kasunduan despite demands, thus prompting Fely to file a criminal complaint for estafa. After trial on the merits, the lower court found Perla guilty of estafa. This decision was affirmed by the Court of Appeals. Perla questioned both decisions of the lower court and the CA. She contended among others that the kasunduan executed by her and Fely which stipulates that she was to pay for the pieces of jewelry received by her in monthly installments of P3,000 resulted in the novation of her obligation and extinguished her criminal liability.

Was she correct?

No.

For novation to take place, there must be: (1) a previous valid obligation; (2)agreement of all parties to the new contract; (3) extinguishment of the old contract; and (4) validity of the new one.

While there is really no hard and fast rule to determine what might constitute to be a sufficient change that can bring about novation, the touchstone of contrariety, however, would be an irreconcilable incompatibility between the old and the new obligations. The incompatibility must take place in any of the essential elements of the obligation, such as the object, cause or principal conditions thereof.

The kasunduan did not constitute a novation of the original agreement between Perla and Fely. The change in the manner of payment of Perla’s obligation did not render the Kasunduan incompatible with the original agreement, and hence did not extinguish Perla’s liability to remit the proceeds of the sale of the jewelry or return the same to Fely. "Any obligation to pay a sum of money is not novated, in a new instrument wherein the old is ratified, by changing only the terms of payment and adding other obligations not incompatible with the old one, or wherein the old contract is merely supplemented by the new one".

In any case, novation is not one of the grounds prescribed by the Revised Penal Code for the extinguishment of criminal liability. So Perla is guilty of estafa (Ocampo-Paule vs.Court of Appeals G.R.145872,February 4,2002).

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