BPI VS IAC, 1988
1962 of
FACTS: Rizaldy Zshornack filed a complaint against
COMTRUST alleging four causes of action.
CFI-ordered COMTRUST to restore to the dollar savings
account of Zshornack the amount of U.S $1,000.00 to earn
interest together with the remaining balance of the said
account at the rate fixed by the bank for dollar deposits under
Central Bank Circular 343 and to return to him the amount of
U.S. $3,000.00 without interest for the reason that the said
amount was merely held in custody for safekeeping, but was
not actually deposited with the defendant COMTRUST
because being cash currency, it cannot by law be deposited
with plaintiffs dollar account and defendant's only obligation is
to return the same to him upon demand;
Lastly, it ordered COMTRUST to pay him P8,000.00 as
damages suffered by plaintiff as a result of the failure of the
defendant bank to restore to his account the amount of U.S.
$1,000.00 and to return to him the U.S. $3,000.00 cash left for
safekeeping.
Undaunted, the bank comes to this Court praying that it be
totally absolved from any liability to Zshornack. The latter not
having appealed the Court of Appeals decision, the issues
facing this Court are limited to the bank's liability with regard to
the first and second causes of action and its liability for
damages.
We first consider the first cause of action, Rizaldy Zshornack
and his wife, Shirley Gorospe, maintained in COMTRUST a
dollar savings account and a peso current account at the QC
branch.
On October 27, 1975, an application for a dollar draft was
accomplished by Virgilio V. Garcia, Assistant Branch Manager
of COMTRUST Quezon City, payable to a certain Leovigilda D.
Dizon in the amount of $1,000.00. In the application, Garcia
indicated that the amount was to be charged to Dollar Savings
Acct. No. 25-4109, the savings account of the Zshornacks; the
charges for commission, documentary stamp tax and others
totalling P17.46 were to be charged to Current Acct. No.
210465-29, again, the current account of the Zshornacks.
There was no indication of the name of the purchaser of the
dollar draft.
On the same date, COMTRUST issued a check payable to the
order of Leovigilda D. Dizon in the sum of US $1,000 drawn on
the Chase Manhattan Bank, New York, with an indication that it
was to be charged to Dollar Savings Acct. No. 25-4109.
When Zshornack noticed the withdrawal of US$1,000.00 from
his account, he demanded an explanation from the bank. In
answer, COMTRUST claimed that the peso value of the
withdrawal was given to Atty. Ernesto Zshornack, Jr., brother
of Rizaldy, when he (Ernesto) encashed with COMTRUST a
cashier's check for P8,450.00 issued by the Manila Banking
Corporation payable to Ernesto.
Upon consideration of the foregoing facts, this Court finds no
reason to disturb the ruling of both the trial court and the
Appellate Court on the first cause of action. Petitioner must be
held liable for the unauthorized withdrawal of US$1,000.00
from private respondent's dollar account.
As for the second cause of action, the complaint filed with the
trial court alleged that on December 8, 1975, Zshornack
entrusted to COMTRUST, thru Garcia, US
$3,000.00 cash (popularly known as greenbacks)
for safekeeping, and that the agreement was embodied in a
document, a copy of which was attached to and made part of
the complaint. It was also alleged in the complaint that despite
demands, the bank refused to return the money.
In its answer, COMTRUST averred that the US$3,000 was
credited to Zshornack's peso current account at prevailing
conversion rates.
It must be emphasized that COMTRUST did not deny
specifically under oath the authenticity and due execution of
the above instrument.
Issue: WON the contract entered into is a contract of
depositum.
Held: Yes. The situation is one contemplated in Art.
the NCC:
Art. 1962. A deposit is constituted from the moment a person
receives a thing belonging to another, with the obligation of
safely keeping it and of returning the same. If the safekeeping
of the thing delivered is not the principal purpose of the
contract, there is no deposit but some other contract. As earlier
stated, the document and the subsequent acts of the parties
show that they intended the bank to safekeep the foreign
exchange, and return it later to Zshornack, who alleged in his
complaint that he is a Philippine resident. The parties did not
intended to sell the US dollars to the Central Bank within one
business day from receipt. Otherwise, the contract
of depositum would never have been entered into at all.
Since the mere safekeeping of the greenbacks, without selling
them to the Central Bank within one business day from receipt,
is a transaction which is not authorized by CB Circular No. 20,
it must be considered as one which falls under the general
class of prohibited transactions. Hence, pursuant to Article 5 of
the Civil Code, it is void, having been executed against the
provisions of a mandatory/prohibitory law. More importantly, it
affords neither of the parties a cause of action against the
other. "When the nullity proceeds from the illegality of the
cause or object of the contract, and the act constitutes a
criminal offense, both parties being in pari delicto, they shall
have no cause of action against each other. . ." [Art. 1411, New
Civil Code.] The only remedy is one on behalf of the State to
prosecute the parties for violating the law.
We thus rule that Zshornack cannot recover under the second
cause of action.
TRIPLE-V FOOD SERVICES INC. vs. FILIPINO
MERCHANTS INSURANCE
COMPANY, GR. No. 160554, February 21, 2005
FACTS:
 Mary Jo-Anne De Asis dined at petitioner's Kamayan
Restaurant. De Asis was using a Mitsubishi Galant Super
Saloon Model 1995 issued by her employer Crispa Textile Inc.
 She availed of the valet parking service of petitioner and
entrusted her car key to petitioner's valet counter. Madridano,
valet attendant, noticed that the car was not in its parking slot
and its key no longer in the box where valet attendants usually
keep the keys of cars entrusted to them. The car was never
recovered.
 Crispa Textile filed a claim against its insurer, respondent
Filipino Merchants. Having indemnified Crispa for the loss of
the subject vehicle, FMICI, as subrogee to Crispa's rights, filed
with the RTC - Makati City an action for damages against
petitioner.
 Petitioner claimed that the complaint failed to adduce facts to
support the allegations of recklessness and negligence
committed in the safekeeping and custody of the subject vehicle.
When De Asis availed the free parking stab that contained a
waiver of petitioner’s liability in case of loss, she had thereby
waived her rights.
 RTC rendered judgment in favor of respondent FMICI
 Petitioner appealed to CA reiterating its argument that it was not
a depositary of the subject car and that it exercised due diligence
and prudence in the safe keeping of the vehicle. It further argued
that there was no valid subrogation of rights between Crispa and
respondent FMICI.
 CA dismissed petitioner's appeal and affirmed the decision of
RTC.
 Hence, petitioner's present recourse.
ISSUE: Whether or not petitioner Triple-V Food Services, Inc. is
liable for the loss.
HELD: YES.
When De Asis entrusted the car in question to petitioners
valet attendant while eating at petitioner's Kamayan Restaurant, the
former expected the car's safe return at the end of her meal. Petitioner
was constituted as a depositary of the same car. Petitioner cannot
evade liability by arguing that neither a contract of deposit nor that of
insurance, guaranty or surety for the loss of the car was constituted
when De Asis availed of its free valet parking service.
In contract of deposit, a person receives an object
belonging to another with the obligation of safely keeping it and
returning the same. A deposit may be constituted even without any
consideration. It is not necessary that the depositary receives a fee
before it becomes obligated to keep the item entrusted for
safekeeping and to return it later to the depositor.
The parking claim stub embodying the terms and conditions of the
parking, including that of relieving petitioner from any loss or
damage to the car, is essentially a contract of adhesion, drafted and
prepared as it is by the petitioner alone with no participation
whatsoever on the part of the customers who merely adheres to the
printed stipulations. While contracts of adhesion are not void in
themselves, yet this Court will not hesitate to rule out blind adherence
thereto if they prove to be one-sided under the attendant facts and
circumstances.
Petitioner must not be allowed to use its parking claim stub's
exclusionary stipulation as a shield from any responsibility for any
loss or damage to vehicles or to the valuables contained. It is evident
that De Asis deposited the car in question with the petitioner as part
of the latter's enticement for customers by providing them a safe
parking space within the vicinity of its restaurant. Safe parking space
is an added attraction to petitioner's restaurant business because
customers are somehow assured that their vehicle are safely kept.
Having entrusted the subject car fully expects the security of her car
while at petitioner's premises/designated parking areas and its safe
return at the end of her visit at petitioner's restaurant.
Petitioner's argument that there was no valid subrogation of
rights between Crispa and FMICI
The Policy that respondent FMICI issued to Crispa contains, the
item: "Insured's Estimate of Value of Scheduled Vehicle- P800.000".
On that basis, RTC concluded that the coverage includes a full
comprehensive insurance of the vehicle in case of damage or loss.
Besides, Crispa paid a premium of P10,304 to cover theft. This is
clearly shown in the breakdown of premiums in the same policy,
FMICI, as correctly ruled by RTC and CA, was properly subrogated
to Crispa's rights against petitioner, pursuant to Article 2207 of the
New Civil Code.
CA Agro Industrial Dev Corp vs. CA
G.R. No. 90027, March 3, 1993
FACTS:
- On 3 July 1979, Sergio Aguirre (on behalf of petitioner) and Pugao
spouses entered into an agreement for the purchase of two parcels of
land for P350,625.00. P75,725.00 was paid as downpayment while
the balance was covered by 3 postdated checks.
-Titles to the lots shall be transferred to the petitioner upon full
payment of the purchase price and owner's copies of the certificates
of titles 284655 and 292434, shall be deposited in Security Bank’s
safety deposit box.
- Withdrawals can only be done upon joint signatures of petitioner’s
representative and the Pugaos upon full payment of the purchase
price.
- The stipulation contained the following:
"13. The bank is not a depositary of the contents of the safe and it has
neither the possession nor control of the same.
14. The bank has no interest whatsoever in said contents, except
herein expressly provided, and it assumes absolutely no liability in
connection therewith."
- 2 renter's keys were given to the renters, Aguirre and to Pugaos plus
a guard was with Security Bank. Safety deposit box has 2 keyholes,
one for the guard key and the other for the renter's key, which can be
opened only with the use of both keys.
- Mrs. Margarita Ramos offered to buy from the petitioner the 2 lots
at a price of P280,500.00. Mrs. Ramos demanded the execution of a
deed of sale which necessarily entailed the production of the
certificates of title.
- Aguirre and Pugaos, went to Security Bank to open the safety
deposit box and get the certificates of title. When opened in the
presence of the Bank's representative, the box had no certificates.
- Mrs. Ramos withdrew her earlier offer to purchase the lot.
- Hence, a complaint for damages was filed against the respondent
Bank
ISSUE: Whether the bank is liable for the loss of the contents in the
Safety Deposit Box
RULING:
No. Bank is not liable for the loss of the contents in the safety deposit
box.
As a general rule, the primary function of banks in renting out safety
deposit boxes are to have custody of funds, documents and objects
for safekeeping. Also, stipulations exempting depository from
liability for loss of thing deposited on account of fraud, negligence or
delay is void for being contrary to law and public policy.
In this case, no competent proof was presented where Bank was
aware of the agreement between the petitioner and the Pugaos to the
effect that the certificates of title were withdrawable from the safety
deposit box only upon both parties' joint signatures.
No evidence was submitted to reveal that the loss of the certificates
of title was Bank’s fraud or negligence. Both petitioner and Pugaos
agreed that each should have 1 renter's key, either of them could ask
the Bank for access to the safety deposit box and, along with the
Bank's own guard key, without the other renter being present.
Hence, the Bank is not liable for damages as there was no evidence to
prove such.
THE ROMAN CATHOLIC BISHOP OF JARO vs. GREGORIO DE LA PEÑA
G.R. No. L-6913, Nov. 21, 1913, 26 Phil. 144
FACTS :The plaintiff is the trustee of a charitable bequest made
for theconstruction of a leper hospital and that father Agustin
de la Peña was the duly authorized representative of the plaintiff
to receive the legacy.The defendant is the administrator of the
estate of Father Dela Peña.Father De la Peña had in his
possession, as trustee or agent, the sum ofP6,641, collected by
him for the charitable purposes. He mixed this trust fund with his
own and deposited the whole in Hongkong and ShanghaiBank in
Iloilo to his personal account or credit. Shortly thereafter and
during the war of the revolution, Father De la Peña was arrested
by themilitary authorities as a political prisoner and the entire
deposit was confiscated by the government.
ISSUE:Whether or not Father de la Peña is liable for the loss
of themoney under his trust?
HELD:No. While said trust funds were a part of the funds
deposited and which were removed and confiscated by the
military authorities of the United States and the Civil Code
states that "a person obliged to give something is also bound
to preserve it with the diligence pertaining to a good father of a
family", it also provides that "no one shall be liable for
events which could not be foreseen, or which having been
foreseen were inevitable, with the exception of the cases
expressly mentioned in the law or those in which the
obligation so declares."
 By placing the money in the bank and mixing it with
his personal funds the father did not thereby assume
an obligation different from that under which he would
have lain if such deposit had not been made, nor did
he thereby make himself liable to repay the money at
all hazards. If the sum had been forcibly taken from
his pocket or from his house by the military forces of
one of the combatants during a state of war, it is clear
that under the provisions of the Civil Code he would
have been exempt from responsibility. The fact that
he placed the trust fund in the bank in his personal
account does not add to his responsibility. Such
deposit did not make him a debtor who must respond
at all hazards.
Obiter dicta:
We do not enter into a discussion for the purpose of
determining whether he acted more or less negligently by
depositing the money in the bank than he would if he had left it
in his home; or whether he was more or less negligent by
depositing the money in his personal account than he would
have been if he had deposited it in a separate account as
trustee. We regard such discussion as substantially fruitless,
inasmuch as the precise question is not one of negligence.
There was no law prohibiting him from depositing it as he did
and there was no law which changed his responsibility be
reason of the deposit. While it may be true that one who is
under obligation to do or give a thing is in duty bound, when he
sees events approaching the results of which will be
dangerous to his trust, to take all reasonable means and
measures to escape or, if unavoidable, to temper the effects of
those events, we do not feel constrained to hold that, in
choosing between two means equally legal, he is culpably
negligent in selecting one whereas he would not have been if
he had selected the other.
Durban Apartments Corporations v. Pioneer Insurance and
Surety Corporation
G.R. No. 179419. January 12, 2011
Nachura, J.
FACTS:
 On 20 April 2002, Jeffrey See went to City Garden
Hotel in Makati City where he stopped his Suzuki
Vitara in front of the hotel and approached by parking
attendant Vicente Justimbaste, told him that it will be
parked in front of the hotel. The key was given to
Justimbaste, and a customer’s claim stub was issued.
 On 1 May 2002, See was informed that his Vitara was
carnapped. The incident was reported to the Makati
City Police, and also to PNP Traffic Management
Group in Camp Crame. The vehicle was never
recovered.
 The Vitara was insured by Pioneer Insurance, See
filed his claim and he was received Php1,163,250
after being verified by Vesper Insurance Adjuster-
Appraisers.
 Pioneer in turn sent demand letters to Durban (doing
business under the name and style of City Garden
Hotel), but Durban did not pay Pioneer including
Php100,000 as attorney’s fees and Php3,000 per
court appearance.
 Petitioners claim that See is not a guest of the hotel,
but merely a guest of Ching Montero. But Vesper’s
investigation led to the fact that See’s key was even
kept in City Garden Hotel’s safety key box.
 RTC ruled in favor of respondent, CA affirmed the
decision.
 Hence, this petition.
ISSUE: WON a contract of deposit was perfected between See
and City Garden Hotel.
RULING: Yes.
Article 1962 obligates the person receiving a thing belonging to
another to safely keep and return the thing. In relation, Article
1998 classifies the deposit made in hotels or inns as a
necessary deposit, and constitutes such keepers of hotels or
inns responsible as depositaries. A deposit is constituted from
the moment a person receives a thing belonging to another,
with the obligation of safely keeping it and returning the same.
If the safekeeping of the thing delivered is not the principal
purpose of the contract, there is no deposit but some other
contract.
In this case, the delivery by See of the keys of his Vitara to
petitioner through Justimbaste perfected the Contract of
Deposit, hence obligates Justimbaste to safely keep it and to
return it.
Thus, petitioner should be liable for the loss of See’s vehicle.
CHAN V. MACEDA, 2003
FACTS:
NATURE: petition for review under Rule 45
 Bonifacio S. Maceda, Jr., obtained a P7.3 million
loan from the Development Bank of the Philippines
for the construction of his New Grand Hotel Project
in Tacloban City.
 Thereafter, Maceda entered into a building
construction contract with Moreman Builders Co.,
Inc., (Moreman). They agreed that the construction
would be finished not later than December 22,
1977.
 Respondent purchased various construction
materials and equipment in Manila. Moreman, in
turn, deposited them in the warehouse of Wilson
and Lily Chan, herein petitioners. The deposit was
free of charge.
 Unfortunately, Moreman failed to finish the
construction of the hotel at the stipulated time.
Hence, respondent filed with the then Court of First
Instance (CFI, now Regional Trial Court), Branch 39,
Manila, an action for rescission and damages
against Moreman.
 CFI-rescinding the contract between Moreman and
respondent and awarding to the latter P445,000.00
as actual, moral and liquidated
damages; P20,000.00 representing the increase in
the construction materials; and P35,000.00 as
attorney's fees. Moreman interposed an appeal to
the Court of Appeals but the same was dismissed.
 Meanwhile, during the pendency of the case,
respondent ordered petitioners to return to him
the construction materials and equipment which
Moreman deposited in their warehouse.
Petitioners, however, told them that Moreman
withdrew those construction materials in 1977.
 Hence, respondent filed with the Regional Trial
Court an action for damages with an application for
a writ of preliminary attachment.
 In the meantime, respondent was appointed Judge
of the Regional Trial Court, Branch 12, San Jose
Antique.
 After almost four (4) years, the trial court dismissed
respondent's complaint for his failure to prosecute
and for lack of interest."
 Five years thereafter, respondent filed a motion for
reconsideration, but the same was denied because
of the failure of respondent and his counsel to
appear on the scheduled hearing.
 Subsequently,, respondent filed a second motion for
reconsideration. This time, the motion was granted
and the case was ordered reinstated on January 10,
1995, or ten (10) years from the time the action was
originally filed.
 The trial court issued an order declaring petitioners
in default.
 Petitioners filed with the Court of Appeals a
petition for certiorari to annul the trial court's order
of default, but the same was dismissed in its Order.
 SC-AFFIRMED CA.
 Thus, upon the return of the records to the RTC,
respondent was allowed to present his evidence ex-
parte.
 Upon motion of respondent, which was granted by
the trial court, the depositions of his witnesses, a
labor contractor, testified that he was contracted
by petitioner Lily Chan to get bags of cement from
the New Gran Hotel construction site and to store
the same into the latter's warehouse in Tacloban
City. Aside from those bags of cement, deponent
also hauled about 400 bundles of steel bars from
the same construction site, upon order of
petitioners. Corresponding delivery receipts were
presented. Deponent Alfredo Maceda testified that
he was respondent's Disbursement and Payroll
Officer who supervised the construction and kept
inventory of the properties of the New Gran Hotel.
While conducting the inventory, he found that the
approximate total value of the materials stored in
petitioners' warehouse was P214,310.00. This
amount was accordingly reflected in the
certification signed by Mario Ramos, store clerk and
representative of Moreman who was present
during the inventory.
 Deponent Damiano Nadera testified on the current
cost of the architectural and structural
requirements needed to complete the construction
of the New Gran Hotel.
ISSUES: 1. Has respondent presented proof that the
construction materials and equipment were
actually in petitioners ‘warehouse when he asked
that the same be turned over to him? NO
2. If so, does respondent have the right to demand
the release of the said materials and equipment or
claim for damages? NO
HELD:
Under Article 1311 of the Civil Code, contracts are
binding upon the parties (and their assigns and
heirs) who execute them. When there is no privity
of contract, there is likewise no obligation or
liability to speak about and thus no cause of action
arises. Specifically, in an action against the
depositary, the burden is on the plaintiff to prove
the bailment or deposit and the performance of
conditions precedent to the right of action. A
depositary is obliged to return the thing to the
depositor, or to his heirs or successors, or to the
person who may have been designated in
thecontract.In the present case, the record is bereft
of any contract of deposit, oral or written, between
petitioners and respondent. If at all, it was only
between petitioners and Moreman. And granting
arguendo that there was indeed a contract of
deposit between petitioners and Moreman, it is still
incumbent upon respondent to prove its existence
and that it was executed in his favor. However,
respondent miserably failed to do so. The only
pieces of evidence respondent presented to prove
the contract of deposit were the delivery receipts.
Significantly, they are unsigned and not duly
received or authenticated by either Moreman,
petitioners or respondent or any of their authorized
representativees. Hence, those delivery receipts
have no probative value at all. While our laws grant
a person the remedial right to prosecute or
institute a civil action against another for the
enforcement or protection of a right, or the
prevention or redress of a wrong, every cause of
action ex-contractu must be founded upon a
contract, oral or written, express or implied.
Moreover, respondent also failed to prove
that therewere construction materials and
equipment in petitioners' warehouse at the time he
made a demand for their return. Considering that
respondent failed to prove (1) the existence of any
contract of deposit between him and petitioners,
nor between the latter and Moreman in his
favor,and (2) that there were construction
materials in petitioners' warehouse at the time of
respondent's demand to return the same, we hold
that petitioners have no corresponding obligation
or liability to respondent with respect to thosec
onstruction materials. Anent the issue of damages,
petitioners are still not liable because, as expressly
provided for in Article 2199 of the Civil Code, actual
or compensatory damages cannot be presumed,
but must be proved with reasonable degree of
certainty. A court cannot rely on speculations,
conjectures, or guesswork as to the fact and
amount of damages, but must depend upon
competent proof that they have been suffered by
the injured party and on the best obtainable
evidence of the actual amount thereof. It must
point out specific facts which could afford a basis
for measuring whatever compensatory or actual
damages are borne.
YHT REALTY CORPORATION VS. CA & MAURICE
McLOUGHLIN, GR. No. 126780, February 17, 2005
FACTS:
 Respondent McLoughlin would stay at Tropicana Hotel every
time he is here in the Philippines and would rent a safety deposit
box.
 The safety deposit box could only be opened through the use of
2 keys, one of which is given to the registered guest, and the
other remaining in the possession of the management of the
hotel.
 McLoughlin allegedly placed the following in his safety deposit
box – 2 envelopes containing US Dollars, one envelope
containing Australian Dollars, Letters, credit cards, bankbooks
and a checkbook.
 When he went abroad, a few dollars were missing and the
jewelry he bought was likewise missing.
 Eventually, he confronted Lainez and Paiyam who admitted that
Tan opened the safety deposit box with the key assigned to him.
McLoughlin went up to his room where Tan was staying and
confronted her. Tan admitted that she had stolen McLouglin’s
key and was able to open the safety deposit box with the
assistance of Lopez, Paiyam and Lainez. Lopez alsto told
McLoughlin that Tan stole the key assigned to McLouglin while
the latter was asleep.
 McLoughlin insisted that it must be the hotel who must assume
responsibility for the loss he suffered.
 Lopez refused to accept responsibility relying on the conditions
for renting the safety deposit box entitled “Undertaking For the
Use of Safety Deposit Box”
 The RTC and CA both decided that such undertaking is null and
void as contrary to the express provisions of the law.
ISSUE: WON the Undertaking signed by the respondent is valid.
HELD: NO.
Art. 2003 was incorporated in the New Civil Code as an expression
of public policy precisely to apply to situations such as that presented
in this case. The hotel business like the common carrier’s business is
imbued with public interest. Catering to the public, hotelkeepers are
bound to provide not only lodging for hotel guests and security to
their persons and belongings. The twin duty constitutes the essence of
the business. The law in turn does not allow such duty to the public to
be negated or diluted by any contrary stipulation in so-called
“undertakings” that ordinarily appear in prepared forms imposed by
hotel keepers on guests for their signature.
In the case of De Los Santos v. Tan Khey, CA ruled that to hold
hotelkeepers or innkeeper liable for the effects of their guests, it is
not necessary that they be actually delivered to the innkeepers or their
employees. It is enough that such effects are within the hotel or inn.
With greater reason should the liability of the hotelkeeper be
enforced when the missing items are taken without the guest’s
knowledge and consent from a safety deposit box provided by the
hotel itself, as in this case.
Para. (2) and (4) of the “undertaking” manifestly contravene Art.
2003, CC for they allow Tropicana to be released from liability
arising from any loss in the contents and/or use of the safety deposit
box for any cause whatsoever. The undertaking was intended to bar
any claim against Tropicana for any loss of the contents of the safety
deposit box whether or not negligence was incurred by Tropicana or
its employees.
The New Civil Code is explicit that the responsibility of the hotel-
keeper shall extend to loss of, or injury to, the personal property of
theguests even if caused by servants or employees of the keepers of
hotels or inns as well as bystrangers, except as it may proceed from
any force majeure. It is the loss through force majeure that may spare
the hotel-keeper from liability. In this case, there is no showing that
the act of the thief or robber was done with the use of arms or
through an irresistible force to qualify the same as force majeure.