Dear Atty. Angela,

I have a close friend with whom I entrusted several expensive pieces of jewelry that she will sell on my behalf and will add a certain amount as her commission. We had a clear agreement that she would remit to me the earnings from said sale.

At first, it went well but three months after, she had not been replying to me. I sent ignored demand letters so I eventually filed a criminal case. The case is now with the court and she contacted me informing me that she partially deposited the demanded amount to my bank account.

With this, she said she no longer has any criminal liability. Is this correct?

Reggie

Dear Reggie,

No, she is still criminally liable despite having partially paid.

In the case of Degaños v. People, G.R. No. 162826 (2013), the Supreme Court explained that novation is not a ground under the law to extinguish criminal liability. Article 89 (on total extinguishment) and Article 94 (on partial extinguishment) of the Revised Penal Code list the various grounds for the extinguishment of criminal liability. Not being included in the list, novation is limited in its effect only to the civil aspect of the liability, and, for that reason, is not an efficient defense in estafa.

Novation is the extinguishment of an obligation by the substitution or change of the obligation by a subsequent one that terminates the first, by changing the object or principal conditions. In order that another may extinguish an obligation that substitutes it, it must be clear and expressed in the agreement of parties.

Moreover, this should be done before criminal information filed in court.

Novation as a defense could only be used before the case being elevated in court or when it is still at the prosecution level because up to that time, the original trust relation may be converted by the parties into an ordinary creditor-debtor situation.

Once the case reaches the court, the complainant can no longer retract and trial on the criminal aspect will ensue as the crime is considered as an offense against the state, as distinguished from a personal civil case.

Atty. Angela Antonio