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xistence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

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Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences. [31]

In dealing with others, it is not enough that one has pure intentions. One has the duty to be prudent, to exercise due diligence as circumstances would require. If one is negligent and such negligence causes injury or death, this becomes a cause of action. [32]

“Actionable Negligence may either be culpa contractual, culpa aquiliana, or criminal negligence.” [33] However, being an act of liberality, the action for damages for a donation can rarely, if at all, be based on contract. It should be noted that “the bases of liability are separate and distinct from each other even if only one act or omission is involved.” [34] Hence, prior to the passage of Food Donation Act, a donor can be held liable under the following:

A. Quasi-Delict

The Civil Code provides that,

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. [35]

Therefore, the essential requisites of a quasi-delict are (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. [36]

Clearly, a donor whose negligence caused injury to, or the death of, the beneficiary can be held liable under this provision as such situation meets all the aforementioned requisites.

It is important to note that a pre-existing contractual relation between the parties does not bar an action based on quasi-delict. A donor cannot escape liability by simply hiding behind a deed or contract of donation. The liability, however, should not be based on the contract but on some other source such as a deliberate and malicious violation of the contract. [37] In Air France v. Carrascoso, the Court held that “the act that breaks the contract may also be a tort. [38] ”

It should be noted that Article 2176, whenever it refers to fault or negligence, covers not only acts 'not punishable by law' but also acts criminal in character, whether intentional and voluntary or negligent. As such, both a civil case and crimina