EN BANC

[G.R. No. L-41299. February 21, 1983.]

SOCIAL SECURITY SYSTEM, petitioner, vs. COURT OF

APPEALS, DAVID B. CRUZ, SOCORRO CONCIO CRUZ, and
LORNA C. CRUZ, respondents.

The Solicitor General for petitioner.

Eriberto D. Ignacio for respondents David Cruz, Socorro Concio Cruz
and Lorna Cruz.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; FINDINGS OF FACT

OF COURT OF APPEALS GENERALLY NOT SUBJECT TO REVIEW BY SUPREME
COURT. — The appraisal should be left undisputed following the general rule
that factual findings of the Court of Appeals are not subject to review by this
Court, the present case not being one of the recognized exceptions to that
rule.
2. POLITICAL LAW; STATE; IMMUNITY FROM SUIT; WAIVER THEREOF
BY THE GOVERNMENT IN RESPECT OF THE SSS; EFFECT OF WAIVER. — We
come now to the amenability of the SSS to the judicial action and legal
responsibility for its acts. To our minds, there should be no question on this
score considering that the SSS is a judicial entity with a personality of its
own. It has corporate powers separate and distinct from the government.
SSS' own organic act specifically provides that it can sue and be sued in
Court. These words "sue and be sued'' embrace all civil process incident to a
legal action. So that, even assuming that the SSS, as it claims, enjoys
immunity from suit as an entity performing governmental functions, by
virtue of the explicit provision of the aforecited enabling law, the
Government must be deemed to have waived immunity in respect of the
SSS, although it does not thereby concede its liability. That statutory law has
given to the private citizen a remedy for the enforcement and protection of
his rights. The SSS has been required to submit to the jurisdiction of the
Courts, subject to its right to interpose any lawful defense. Whether the SSS
performs governmental or proprietary functions thus becomes unnecessary
to belabor. For by the waiver, a private citizen may bring a suit against it for
varied objectives, such as, in this case, to obtain compensation in damages
arising from contract, and even for tort.
3. LABOR LAW AND SOCIAL LEGISLATION; SOCIAL SECURITY
SYSTEM; CONTRACTUAL LOAN AGREEMENTS; ENTERED INTO BY SSS FOR
PROFIT. — The proposition that the SSS is not profit-oriented was rejected in
the case of SSS Employees' Association vs. Hon. Soriano. But even
conceding that the SSS is not, in the main, operated for profit, it cannot be
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 denied that, in so far as contractual loan agreements with private parties are
concerned, the SSS enters into them for profit considering that the
borrowers pay interest, which is money paid for the use of money, plus other
charges.
4. ID.; ID.; EXPENDITURES; NOT CONFINED TO PAYMENT OF SOCIAL
SECURITY BENEFITS. — In so far as it is argued that to hold the SSS liable for
damages would be to deplete the benefit funds available for its covered
members, suffice it to say that expenditures of the System are not confined
to the payment of the social security benefits. For example, the system also
has to pay the salaries of its personnel. Moreover, drawing a parallel with the
NASSCO and the Virginia Tobacco Administration, whose funds are in the
nature of public funds, it has been held that those funds may even be made
the object of a notice of garnishment.
5. CIVIL LAW; DAMAGES; ACTION TO RECOVER; WHEN DAMAGE IS
CAUSED A CITIZEN, THE LATTER SHOULD HAVE A RIGHT OF REDRESS. —
What is of paramount importance in this controversy is that an injustice is
not perpetrated and that when damage is caused a citizen, the latter should
have a right of redress particularly when it arises from a purely private and
contractual relationship between said individual and the System.
6. ID.; ID.; NO BASIS FOR AWARD OF ACTUAL DAMAGES. — As basis
for the award of actual damages, the Trial Court relied on the alleged
expenses incurred by the private respondents for the wardrobe they were
supposed to use during their trip abroad which was allegedly aborted
because of the filing of the foreclosure application by the SSS. We find the
foregoing too speculative. There could have been other reasons why the trip
did not materialize. Moreover, it appears that private respondents' passports
has already expired but that they made no effort to secure new passports.
Nor did they secure the necessary visas from the local consulates of foreign
countries they intended to visit for their trip abroad.
7. ID.; ID.; SSS NOT LIABLE FOR MORAL AND TEMPERATE DAMAGES.
— Nor can the SSS be held liable for moral and temperate damages. As
concluded by the Court of Appeals "the negligence of the appellant is not so
gross as to warrant moral and temperate damages," except that, said Court
reduced those damages by only P5,000.00 instead of eliminating them.
Neither can we agree with the findings of both the Trial Court and
respondent Court that the SSS had acted maliciously or in bad faith. The SSS
was of the belief that it was acting in the legitimate exercise of its right
under the mortgage contract in the face of irregular payments made by the
private respondents, and placed reliance on the automatic acceleration
clause in the contract. The filing alone of the foreclosure application should
not be a ground for an award of moral damages in the same way that a
clearly unfounded civil action is not among the grounds for moral damages.
8. ID.; ID.; GRANT OF EXEMPLARY DAMAGES SET ASIDE IN THE
ABSENCE OF PROOF THAT SSS ACTED IN A WANTON, RECKLESS AND
OPPRESSIVE MANNER. — With the ruling out of the compensatory, moral and
temperate damages, the grant of exemplary or corrective damages should
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 also be set aside. Moreover, no proof has been submitted that the SSS had
acted in a wanton, reckless and oppressive manner.
9. ID.; ID.; SSS CAN BE HELD LIABLE FOR NOMINAL DAMAGES FOR
THE PURPOSE OF SUCH DAMAGES IS TO VINDICATE OR RECOGNIZE RIGHTS
WHICH HAVE BEEN VIOLATED. — However, as found by both the Trial and
Appellate Courts, there was clear negligence on the part of SSS when they
mistook the loan account of Socorro J. Cruz for that of private respondent
Socorro C. Cruz. Its attention was called to the error, but it adamantly
refused to acknowledge its mistake. The SSS can be held liable for nominal
damages. This type of damages is not for the purpose of indemnifying
private respondents for any loss suffered by them but to vindicate or
recognize their rights which have been violated or invaded by petitioner SSS.
10. LEGAL ETHICS; ATTORNEY AND CLIENT; ATTORNEY'S FEES;
AWARD THEREOF JUSTIFIED AS RESPONDENTS WERE COMPELLED TO
LITIGATE TO PROTECT THEIR INTEREST. — The circumstances of the case
also justify the award of attorney's fees, as granted by the Trial and
Appellate Courts, particularly considering that private respondents were
compelled to litigate for the protection of their interests.
MAKASIAR, J., dissenting:
1. CIVIL LAW; TORTS; NEGLIGENT ACTS; COMMITTED BY OFFICERS
AND EMPLOYEES OF PETITIONER SSS AMOUNTED TO NOT SIMPLY A
CONTRACTUAL BREACH BUT TORT. — To begin with, the negligent acts
committed by the officers and employees of the petitioner, Social Security
System, amounted to not simply a contractual breach but tort. For the record
is clear that petitioner's officers and employees were grossly negligent
bordering on malice or bad faith in applying for the extrajudicial foreclosure
of the mortgage contract executed in its favor by the spouses David B. Cruz
and Socorro Concio-Cruz, and that even after private respondents had
brought to the attention of the petitioner's officers and employees their
mistake, they insisted on their course of action, instead of making the
necessary rectifications, which grossly negligent and oppressive acts caused
damage to private respondents.
2. ID.; ID.; LIABILITY THEREOF EXISTS DESPITE PRESENCE OF
CONTRACTUAL RELATIONS BETWEEN PARTIES AS THE ACT THAT BREAKS
CONTRACT MAY ALSO BE A TORT. — The circumstance that there was a pre-
existing contractual relationship between the herein contending parties,
does not bar the tort liability of the officers and employees of petitioner;
because tort liability may still exist despite presence of contractual relations
as the acts that breaks the contract may also be a tort as in this case (Air
France vs. Carrascoso, L-21438, Sept. 28, 1966,18 SCRA 155, 161-169;
Singson and Castillo vs. Bank of the Philippine Islands, L-24837, June 27,
1968, 23 SCRA 1117, 1119-20).
3. ID.; QUASI-DELICT; EXTRA-CONTRACTUAL OBLIGATIONS; STATE
LIABLE WHEN IT ACTS THROUGH A SPECIAL AGENT. — Consequently, a
tortious act being involved, the applicable provision of law is Article 2180 in
relation to Article 2176 of the New Civil Code. Under Article 2180, ". . . The
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 State is responsible in like manner when it acts through a special agent; but
not when the damage has been caused by the official to whom the task done
properly pertains, in which case what is provided in Article 2176 shall be
applicable.''
4. ID.; ID.; ID.; SINCE SSS DID NOT ACT THROUGH A SPECIAL
AGENT, THE FORMER CANNOT BE HELD LIABLE FOR DAMAGES CAUSED BY
TORTIOUS ACTS OF ITS OFFICERS AND EMPLOYEES WHILE IN PERFORMANCE
OF THEIR REGULAR FUNCTIONS. — In the case at bar, the petitioner Social
Security Systems as the instrumentality of the State to implement the social
justice guarantee enunciated in the Constitution, did not act through a
special agent. Hence, the Social Security System cannot be liable for the
damages caused by the tortious acts of its officers and employees while in
the performance of their regular functions. The remedy therefore of private
respondents is to proceed against the guilty officers and employees of
petitioner Social Security System as mandated by Article 2176 of the New
Civil Code.
5. ID.; ID.; ID.; CONCEPT OF "SPECIAL AGENT" DOES NOT APPLY TO
ANY EXECUTIVE AGENT WHO IS AN EMPLOYEE OF THE ACTIVE
ADMINISTRATION AND WHO PERFORMS FUNCTIONS WHICH ARE INHERENT
IN AND NATURALLY PERTAIN TO HIS OFFICE AND WHICH ARE REGULATED BY
LAW AND REGULATIONS. — "The responsibility of the State is limited by
Article 1903 to the case wherein it acts through a special agent, . . . so that
in representation of the state and being bound to act as an agent thereof, he
executes the trust confided to him. This concept does not apply to any
executive agent who is an employee of the active administration and who on
his own responsibility performs the functions which are inherent in and
naturally pertain to his office and which are regulated by law and the
regulations." (Merritt vs. Government of the Philippine Islands, 34 Phil. 311)
6. CONSTITUTIONAL LAW; JUDICIAL POWER; RULE-MAKING; POWER
OF SUPREME COURT TO SUSPEND ITS OWN RULES TO SERVE ENDS OF
JUSTICE. — Further, We have, time and again, re-stated the rule that the
Supreme Court can suspend its own rules to serve the ends of justice. (Jose
vs. CA, et al., L-38581, March 31, 1976; Phil. Blooming Mills Employees
Organization, et al., vs. PBM Co., et al., L-31195, 51 SCRA 189, 215;
Ronquillo vs. Marasigan, May 31, 1962, 5 SCRA 304, 312-313; Ordoveza vs.
Raymundo, 63 Phil. 215)
7. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; ASSIGNMENT OF
ERROR; FAILURE TO DESIGN A DEFENSE AS AN ERROR ON APPEAL IS A PURE
TECHNICALITY THAT SHOULD NOT PREVAIL OVER SUBSTANTIAL ISSUES IN A
CONTROVERSY AS SAME WOULD NOT SERVE INTEREST OF JUSTICE. — While
Article 2180 of the New Civil Code was not invoked by the petitioner as a
defense, this does not prevent this Tribunal from taking cognizance of the
same. For as stressed in Ortigas, Jr. vs. Lufthansa German Airlines (June 30,
1975, 64 SCRA 610, 633), failure to assign a defense as an error on appeal is
a pure technicality that should not prevail over the substantial issues in a
controversy as the same would not serve the interest of justice, and "this
Court is clothed with ample authority to review matters even if they are not
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 assigned as errors to the appeal, if it finds that our considerations is
necessary in arriving at a just decision of the case" (citing Saura and Export
Co Inc., May 31, 1963, 8 SCRA 143).
8. ID.; ID.; ID.; ID.; PRINCIPLE THAT A DEFENSE NOT EXPRESSLY
PLEADED IS DEEMED WAIVED UNLESS SUCH FAILURE SATISFACTORILY
EXPLAINED IS MERELY A GENERAL RULE SUBJECT TO EXCEPTIONS. — The
principle that a defense not expressly pleaded is deemed waived unless
such failure is satisfactorily explained, is merely a general rule which is
subject to exceptions, among which is when the Court can take judicial
notice of the law, like Article 2180 of the New Civil Code.
9. ADMINISTRATIVE LAW; REVISED ADMINISTRATIVE CODE;
SECTION TWO; SCOPE OF TERM "GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES" REFERS TO THE CORPORATE GOVERNMENTAL ENTITY
THROUGH WHICH FUNCTIONS OF THE GOVERNMENT ARE EXERCISED
THROUGHOUT THE PHILIPPINE ISLANDS. — Is cannot likewise be seriously
questioned that the Social Security System is comprehended in the definition
in Section 2 of the Revised Administrative Code of the term Government of
the Republic of the Philippines . . . which refers to the corporate
governmental entity through which the functions of government are
exercised through out the Philippine Islands, including, save as the contrary
appears from the context, the various arms through which political authority
is made effective in the Philippines, whether pertaining to the central
Government or to the provincial or municipal branches or other forms of
local government" and the second paragraph of said Section 2 provides that
the term "national government" refers to the central government as
distinguished from the different forms of local government. There is nothing
therein nor in the Social Security Act, as, amended, intimating that the
national government does not include the Social Security System.
10. ID.; ID.; ID.; SOCIAL SECURITY SYSTEM ALTHOUGH HAVING A
CORPORATE OR JUDICIAL PERSONALITY, IS AN INTEGRAL PART OF THE
NATIONAL OR CENTRAL GOVERNMENT. — It is true that the Social Security
System has a corporate or juridical personality of its own. But this does not
remove it as an integral part of the national or central government. For such
corporate or juridical personality invested in it is more for facility and
convenience in the attainment of the objectives for which it was created by
the legislative.
11. POLITICAL LAW; STATE; IMMUNITY FROM SUIT; WAIVER
THEREOF BY SSS AS AN ENTITY PERFORMING GOVERNMENTAL FUNCTIONS
AND BY THE LAW CREATING IT. — Such vesting of corporate or juridical
personality in the Social Security System was never intended to destroy the
shield from liability afforded it as an integral part of the State or Government
by Article 2180 of the New Civil Code. Relatedly, such corporate or juridical
personality of the Social Security System and the express provision of the
law creating the same that it can sue and be sued, have the effect of merely
waiving its immunity from suit as an entity performing governmental
functions.

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 12. ID.; ID.; ID.; WAIVER THEREOF NOT AN ADMISSION OF ITS
LIABILITY. — SSS waiver of its immunity from suit is not an admission of its
liability. Such waiver merely allows a private citizen a remedy for the
enforcement and protection of his rights, but always subject to the lawful
defenses of the Social Security System — one of which is Article 2180 of the
New Civil Code as aforestated. In other words, such waiver of immunity from
suit is not equivalent to instant liability. The Social Security System can only
be held liable for damages arising from the tortious acts of its officers and
employees only if it acts through a special agent, which is not true in the
case at bar.
13. ID.; ID.; ID.; SSS NOT LIABLE FOR DAMAGES BECAUSE IT
PERFORMS GOVERNMENTAL FUNCTIONS. — It must be finally stressed that
the Social Security System cannot be liable for damages because it is an
entity or government performing governmental functions; hence, not profit-
oriented, The 1963 doctrine in SSSEA vs. Soriano (7 SCRA 1016 [1963]) that
the system is exercising proprietary functions, is no longer controlling. For in
1969, the distinction between constituent and ministrant functions of the
Government as laid down in the case of Bacani vs. Nacoco (100) Phil. 468
[1956]) has been obliterated. In the case of Agricultural Credit and
Cooperative Financing Administration (ACCFA) vs. Confederation of Unions in
Government Corporations and Offices (CUGGO) (30 SCRA 469 [1969]), this
Court in re-examining the aforesaid Bacani ruling observed that the trend
has been to abandon and reject the traditional "Constituent-Ministrant"
criterion in governmental functions in favor of the more responsive postulate
that the growing complexities of modern society have rendered the
traditional classification of government functions unrealistic and obsolete.
14. ID.; ID.; ID.; ID.; FUNCTION OF SSS IS THE ESTABLISHMENT AND
MAINTENANCE OF AN ADEQUATE SOCIAL SECURITY AND SOCIAL SERVICES.
— Considering therefore that the establishment and maintenance of an
adequate social security and social services, which the Social Security
System seeks to perform and achieve are functions pursuant to the basic
constitutional mandate directing the State to promote "social justice to
insure the well-being and economic security of all the people'' as well as the
police power of the State, the inescapable conclusion is that the function of
the SSS is and has always been governmental.

DECISION

MELENCIO-HERRERA, J : p

This Petition for Review on Certiorari of the Decision of the Court of

Appeals 1 stems from the following facts, as narrated by the Trial Court,
adopted by the Court of Appeals, and quoted by both petitioner 2 and private
respondents 3 :
"Sometime in March, 1963 the spouses David B. Cruz and
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 Socorro Concio Cruz applied for and were granted a real estate loan by
the SSS with their residential lot located at Lozada Street, Sto. Rosario,
Pateros, Rizal covered by Transfer Certificate of Title No. 2000 of the
Register of Deeds of Rizal as collateral. Pursuant to this real estate ban
said spouses executed on March 26, 1963 the corresponding real
estate mortgage originally in the amount of P39,500.00 which was later
increased to P48,000.00 covering the aforementioned property as
shown in their mortgage contract, Exhibit A and I. From the proceeds of
the real estate loan the mortgagors constructed their residential house
on the mortgaged property and were furnished by the SSS with a
passbook to record the monthly payments of their amortizations
(Exhibits B and B-1). The mortgagors, plaintiffs herein, complied with
their monthly payments although there were times when delays were
incurred in their monthly payments which were due every first five (5)
days of the month (Exhibits 3-A to 3-N). On July 9, 1968, defendant SSS
filed an application with the Provincial Sheriff of Rizal for the
foreclosure of the real estate mortgage executed by the plaintiffs on
the ground, among others:
'That the conditions of the mortgage have been broken
since October, 1967 with the default on the part of the mortgagor
to pay in full the installments then due and payable on the
principal debt and the interest thereon, and, all of the monthly
installments due and payable thereafter up to the present date; .
..

'That by the terms of the contract herein above referred to,

the indebtedness to the mortgagee as of June, 1968 amounts to
Ten Thousand Seven Hundred Two Pesos & 58/100 (P10,702.58),
Philippine Currency, excluding interests thereon, plus 20% of the
total amount of the indebtedness as attorney's fees, also secured
by the said mortgage." (Exhibit "C")
"Pursuant to this application for foreclosure, the notice of the
Sheriff's Sale of the mortgaged property was initially published in the
Sunday Chronicle in its issue of July 14, 1968 announcing the sale at
public auction of the said mortgaged property. After this first
publication of the notice, and before the second publication of the
notice, plaintiff herein thru counsel formally wrote defendant SSS, a
letter dated July 19, 1968 and received on the same date by said entity
demanding, among others, for said defendant SSS to withdraw the
foreclosure and discontinue the publication of the notice of sale of their
property claiming that plaintiffs were up-to-date in the payment of their
monthly amortizations (Exhibits "E" and "E-1"). In answer to this letter
defendant SSS sent a telegram to Atty. Eriberto Ignacio requesting him
to come to their office for a conference. This telegram was received by
said counsel on July 23, 1968 (Exhibit "G" and "G-1). To this telegraphic
answer, Atty. Ignacio sent a telegraphic reply suggesting instead that a
representative of the SSS be sent to him because his clients were the
aggrieved parties (Exhibit "G-2"). Nothing came out of the telegraphic
communications between the parties and the second and third
publications of the notice of foreclosure were published successively in
the Sunday Chronicle in its issues of July 21 and 28, 1968 (Exhibits "N-
1" and "0-1")." 4
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 On July 24, 1968, the Cruz spouses, together with their daughter Lorna
C. Cruz, instituted before the Court of First Instance of Rizal an action for
damages and attorney's fees against the Social Security System (SSS) and
the Provincial Sheriff of Rizal alleging, among other things, that they had
fully and religiously paid their monthly amortizations and had not defaulted
in any payment. cdrep

In its Answer, with counterclaim, the SSS stressed its right to foreclose
the mortgage executed in its favor by private respondents by virtue of the
automatic acceleration clause provided in the mortgage contract, even after
private respondents had paid their amortization installments. In its
counterclaim, the SSS prayed for actual and other damages, as well as
attorney's fees, for malicious and baseless statements made by private
respondents and published in the Manila Chronicle.
On September 23, 1968, the Trial Court enjoined the SSS from holding
the sale at public auction of private respondent's property upon their posting
of a P2,000.00 bond executed in favor of the SSS.
The Trial Court rendered judgment on March 5, 1971, the dispositive
portion of which reads:
"WHEREFORE, judgment is rendered against defendant SSS,
directing it to pay plaintiffs the following amounts:
(a) P2,500.00 as actual damage;
(b) P35,000.00 as moral damage;
(c) P10,000.00 as exemplary or corrective damages;
and
(d) P5,000.00 as attorney's fees.
Defendant SSS shall further pay the costs." 5

In respect of the moral and temperate damages awarded, the Trial

Court stated:
"With respect to moral and temperate damages, the Court holds
that the first publication of the notice was made in good faith but
committed by defendant SSS in gross negligence considering the
personnel at its command and the ease with which verifications of the
actual defaulting mortgagors may be made. On this initial publication
of the notice of foreclosure (Exhibits "M" and "M-1"), the Court believes
plaintiffs are entitled to the amount of P5,000.00. The second
publication of the notice of foreclosure is another matter. There was
already notice by plaintiffs to defendant SSS that there was no reason
for the foreclosure of their mortgaged property as they were never in
default. Instead of taking any corrective measure to rectify its error,
defendant SSS adopted a position of righteousness and followed the
same course of action contending that no error has been committed.
This act of defendant indeed was deliberate, calculated to cow
plaintiffs into submission, and made obviously with malice. On this
score, the Court believes defendant SSS should pay and indemnify
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 plaintiffs jointly in the sum of P10,000.00. Lastly, on the third
publication of the notice of foreclosure, the Court finds this continued
publication an outright disregard for the reputation and standing of
plaintiffs. The publication having reached a bigger segment of society
and also done with malice and callous disregard for the rights of its
clients, defendant SSS should compensate plaintiffs jointly in the sum
of P20,000.00. All in all, plaintiffs are entitled to P35,000.00 by way of
moral damages." 6

On appeal, the Court of Appeals affirmed the lower Court judgment in a

Decision promulgated on March 14, 1975, but upon SSS's Motion for
Reconsideration, modified the judgment by the elimination of the P5,000.00
moral damages awarded on account of the initial publication of the
foreclosure notice. To quote: LexLib

xxx xxx xxx

After a re-examination of the evidence, we find that the
negligence of the appellant is not so gross as to warrant moral and
temperate damages. The amount of P5,000.00 should be deducted
from the total damages awarded to the plaintiffs.
"WHEREFORE, the decision promulgated on March 14, 1975 is
hereby maintained with the sole modification that the amount of
P5,000.00 awarded on account of the initial publication is eliminated so
that the said amount should be deducted from the total damages
awarded to the plaintiffs.
SO ORDERED." 7

In so far as exemplary and corrective damages are concerned, the

Court of Appeals had this to say.
"The Court finds no extenuating circumstances to mitigate the
irresponsible action of defendant SSS and for this reason, said
defendant should pay exemplary and corrective damages in the sum of
P10,000.00 . . ."

Upon denial of its Motion for Reconsideration by respondent Court, the

SSS filed this Petition alleging:
"I. Respondent Court of Appeals erred in not finding that
under Condition No. 10 of the Mortgage contract, which is a self-
executing, automatic acceleration clause, all amortizations and
obligations of the mortgagors become ipso jure due and demandable if
they at any time fail to pay any of the amortizations or interest when
due;
"II. Respondent Court of Appeals erred in holding that a
previous notice to the mortgagor was necessary before the mortgage
could be foreclosed;

"III. Respondent Court of Appeals erred in not holding that,

assuming that there was negligence committed by subordinate
employees of the SSS in mistaking 'Socorro C. Cruz' for 'Socorro J. Cruz'
as the defaulting borrower, the fault cannot be attributed to the SSS,
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 much less should the SSS be made liable for their acts done without its
knowledge and authority;

"IV. Respondent Court of Appeals erred in holding that there

is no extenuating circumstance to mitigate the liability of petitioner;

"V. Respondent Court of Appeals erred in not holding that

petitioner is not liable for damages not being a profit-oriented
governmental institution but one performing governmental functions."
8

For failure of the First Division to obtain concurrence of the five

remaining members (Justices Plana and Gutierrez, Jr. could take no part), the
case was referred to the Court en banc.
The pivotal issues raised are: (1) whether the Cruz spouses had, in fact,
violated their real estate mortgage contract with the SSS as would have
warranted the publications of the notices of foreclosure; and (2) whether or
not the SSS can be held liable for damages.
The first issue revolves around the question of appreciation of the
evidence by the lower Court as concurred in by the Court of Appeals. The
appraisal should be left undisturbed following the general rule that factual
findings of the Court of Appeals are not subject to review by this Court, the
present case not being one of the recognized exceptions to that rule. 9
Accordingly, we are upholding the finding of the Court of Appeals that the
SSS application for foreclosure was not justified, particularly considering that
the real estate loan of P48,000.00 obtained by the Cruzes in March, 1963,
was payable in 15 years with a monthly amortization of P425.18, and that as
of July 14, 1968, the date of the first notice of foreclosure and sale, the
outstanding obligation was still P38,875.06 and not P10,701.58, as
published. cdrep

"The appellant was not justified in applying for the extra-judicial

foreclosure of the mortgage contract executed in its favor by the
spouses, David B. Cruz and Socorro Concio-Cruz. Exh. 'A'. While it is
true that the payments of the monthly installments were previously not
regular, it is a fact that as of June 30, 1968 the appellee, David B. Cruz
and Socorro Concio-Cruz were up-to-date and current in the payment of
their monthly installments. Having accepted the prior late payments of
the monthly installments, the appellant could no longer suddenly and
without prior notice to the mortgagors apply for the extra-judicial
foreclosure of the mortgage in July 1968." 10

A similar conclusion was reached by the trial Court.

"Defendant's contention that there was clerical error in the
amount of the mortgage loan due as of June, 1968 as per their
application for foreclosure of real estate mortgage is a naive attempt to
justify an untenable position. As a matter of fact plaintiffs were able to
establish that the mortgagor who actually committed the violation of
her mortgage loan was a certain 'Socorro J. Cruz' who was in arrears in
the amount of P10,702.58 at the time the application for foreclosure of
real estate mortgage was filed (Exhibits "BB" and "EE"). Defendant
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 mortgagee must have committed an error in picking the record of
plaintiff 'Socorro C. Cruz' instead of the record of 'Socorro J. Cruz'.
Defendant SSS, however, denied having committed any error and
insists that their motion for foreclosure covers the real estate mortgage
of spouses David E. Cruz and Socorro C. Cruz. This Court is nonetheless
convinced that the foreclosure proceedings should have been on the
real estate mortgage of 'Socorro J. Cruz' who was in arrears as of June,
1968 in the amount of P10,701.58, the exact amount mentioned in the
application for foreclosure of real estate mortgage by defendant SSS."
11

We come now to the amendability of the SSS to judicial action and legal
responsibility for its acts. To our minds, there should be no question on this
score considering that the SSS is a juridical entity with a personality of its
own. 12 It has corporate powers separate and distinct from the Government.
13 SSS' own organic act specifically provides that it can sue and be sued in

Court. 14 These words "sue and be sued" embrace all civil process incident to
a legal action. 15 So that, even assuming that the SSS, as it claims, enjoys
immunity from suit as an entity performing governmental functions, by
virtue of the explicit provision of the aforecited enabling law, the
Government must be deemed to have waived immunity in respect of the
SSS, although it does not thereby concede its liability. That statutory law has
given to the private citizen a remedy for the enforcement and protection of
his rights. The SSS thereby has been required to submit to the jurisdiction of
the Courts, subject to its right to interpose any lawful defense. Whether the
SSS performs governmental or proprietary functions thus becomes
unnecessary to belabor. For by that waiver, a private citizen may bring a suit
against it for varied objectives, such as, in this case, to obtain compensation
in damages arising from contract 16 , and even for tort.
A recent case squarely in point anent the principle, involving the
National Power Corporation, is that of Rayo vs. Court of First Instance of
Bulacan, 110 SCRA 457 (1981), wherein this Court, speaking through Mr.
Justice Vicente Abad Santos, ruled:
"It is not necessary to write an extended dissertation on whether
or not the NPC performs a governmental function with respect to the
management and operation of the Angat Dam. It is sufficient to say
that the government has organized a private corporation, put money in
it and has allowed it to sue and be sued in any court under its charter.
(R.A. No. 6395, Sec. 3[d]). As a government owned and controlled
corporation, it has a personality of its own, distinct and separate from
that of the Government. (See National Shipyards and Steel Corp. vs.
CIR, et al., L-17874, August 31, 1963, 8 SCRA 781). Moreover, the
charter provision that the NPC can 'sue and be sued in any court' is
without qualification on the cause of action and accordingly it can
include a tort claim such as the one instituted by the petitioners."

The proposition that the SSS is not profit-oriented was rejected in the
case of SSS Employees' Association vs. Hon. Soriano. 17 But even conceding
that the SSS is not, in the main, operated for profit, it cannot be denied that,
in so far as contractual loan agreements with private parties are concerned,
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 the SSS enters into them for profit considering that the borrowers pay
interest, which is money paid for the use of money, plus other charges. Cdpr

In so far as it is argued that to hold the SSS liable for damages would
be to deplete the benefit funds available for its covered members, suffice it
to say, that expenditures of the System are not confined to the payment of
social security benefits. For example, the System also has to pay the salaries
of its personnel. Moreover, drawing a parallel with the NASSCO and the
Virginia Tobacco Administration, whose funds are in the nature of public
funds, it has been held that those funds may even be made the object of a
notice of garnishment. 18
What is of paramount importance in this controversy is that an injustice
is not perpetrated and that when damage is caused a citizen, the latter
should have a right of redress particularly when it arises from a purely
private and contractual relationship between said individual and the System.
We find, however, that under the circumstances of the case, the SSS
cannot be held liable for the damages as awarded by the Trial Court and the
Appellate Tribunal.
As basis for the award of actual damages, the Trial Court relied on the
alleged expenses incurred by private respondents for the wardrobe they
were supposed to use during their trip abroad, which was allegedly aborted
because of the filing of the foreclosure application by the SSS. We find the
foregoing too speculative. There could have been other reasons why the trip
did not materialize. Moreover, it appears that private respondents' passports
had already expired but that they made no effort to secure new passports.
19 Nor did they secure the necessary visas from the local consulates of

foreign countries they intended to visit for their trip abroad. 20

Nor can the SSS be held liable for moral and temperate damages. As
concluded by the Court of Appeals "the negligence of the appellant is not so
gross as to warrant moral and temperate damages", 21 except that, said
Court reduced those damages by only P5,000.00 instead of eliminating
them. Neither can we agree with the findings of both the Trial Court and
respondent Court that the SSS had acted maliciously or in bad faith. The SSS
was of the belief that it was acting in the legitimate exercise of its right
under the mortgage contract in the face of irregular payments made by
private respondents, and placed reliance on the automatic acceleration
clause in the contract. The filing alone of the foreclosure application should
not be a ground for an award of moral damages in the same way that a
clearly unfounded civil action is not among the grounds for moral damages.
22

With the ruling out of compensatory, moral and temperate damages,

the grant of exemplary or corrective damages should also be set aside. 23
Moreover, no proof has been submitted that the SSS had acted in a wanton,
reckless and oppressive manner. 24
However, as found by both the Trial and Appellate Courts, there was
clear negligence on the part of SSS when they mistook the loan account of
Socorro J. Cruz for that of private respondent Socorro C. Cruz. Its attention
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 was called to the error, but it adamantly refused to acknowledge its mistake.
The SSS can be held liable for nominal damages. This type of damages is not
for the purpose of indemnifying private respondents for any loss suffered by
them but to vindicate or recognize their rights which have been violated or
invaded by petitioner SSS. 25
The circumstances of the case also justify the award of attorney's fees,
as granted by the Trial and Appellate Courts, particularly considering that
private respondents were compelled to litigate for the prosecution of their
interests. 26
WHEREFORE, the judgment sought to be reviewed is hereby modified
in that petitioner SSS shall pay private respondents: P3,000.00 as nominal
damages; and P5,000.00 as attorney's fees. prcd

Costs against petitioner Social Security System.

SO ORDERED.
Teehankee, Concepcion, Jr., Guerrero, Abad Santos, De Castro,
Vasquez and Relova, JJ., concur.
Fernando, C.J., in the result.

Separate Opinions
AQUINO, J., concurring:

I concur. The award of moral damages is not justified under arts. 2219
and 2220 of the Civil Code. I vote to award the private respondents the
additional sum of P2,000 as litigation expenses.
Plana, Escolin * and Gutierrez, Jr., ** JJ., took no part.

MAKASIAR, J., dissenting:

I dissent.

I
To begin with, the negligent acts committed by the officers and
employees of the petitioner, Social Security System, amounted to not simply
a contractual breach but tort. For the record is clear that petitioner's officers
and employees were grossly negligent bordering on malice or bad faith in
applying for the extrajudicial foreclosure of the mortgage contract executed
in its favor by the spouses David B. Cruz and Socorro Concio-Cruz, and that
even after private respondents had brought to the attention of the
petitioner's officers and employees their mistake, they insisted on their
course of action, instead of making the necessary rectifications, which
grossly negligent and oppressive acts caused damage to private
respondents. As found by the Court of Appeals:
"The appellant was not justified in applying for the extra-judicial
foreclosure of the mortgage contract executed in its favor by the
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 spouses David B. Cruz and Socorro Concio-Cruz, Exh. 'A'. While it is
true that the payments of the monthly installments were previously not
regular, it is a fact that as of June 30, 1968 the appellees, David B.
Cruz and Socorro Concio-Cruz were up-to-date and current in the
payment of their monthly installments. Having accepted the prior late
payments of the monthly installments, the appellant could no longer
suddenly and without prior notice to the mortgagors apply for the
extra-judicial foreclosure of the mortgage in July, 1968.

"It is obvious that the appellant applied for the extra-judicial

foreclosure of the mortgage in question because of the gross
negligence of its employees. This negligence was aggravated when the
appellant, after being informed of the error, insisted on proceeding
with the extra-judicial foreclosure by invoking alleged violations of the
mortgage contract. But these violations are either too minor to warrant
the drastic step of foreclosure or were deemed condoned when the
appellant accepted late payments prior to June 30, 1968. Hence the
trial court did not err in concluding that 'the act of defendant indeed
was deliberate, calculated to cow plaintiffs into submission and made
obviously with malice' " (p. 54, rec.; emphasis supplied).

The circumstance that there was a pre-existing contractual

relationship between the herein contending parties, does not bar the tort
liability of the officers and employees of petitioner; because tort liability may
still exist despite presence of contractual relations as the act that breaks the
contract may also be a tort, as in this case (Air France vs. Carrascoso, L-
21438, Sept. 28, 1966, 18 SCRA 155, 168-169; Singson & Castillo vs. Bank of
the Philippine Islands, L-24837, June 27, 1968, 23 SCRA 1117, 1119-20).
Consequently, a tortious act being involved, the applicable provision of
law is Article 2180 in relation to Article 2176 of the New Civil Code. Under
Article 2180, ". . . The State is responsible in like manner when it acts
through a special agent; but not when the damage has been caused by the
official to whom the task done properly pertains, in which case what is
provided in Article 2176 shall be applicable."
In the case at bar, the petitioner Social Security System as the
instrumentality of the State to implement the social justice guarantee
enunciated in the Constitution, did not act through a special agent. Hence,
the Social Security System cannot be liable for the damages caused by the
tortious acts of its officers and employees while in the performance of their
regular functions. The remedy therefore of private respondents is to proceed
against the guilty officers and employees of petitioner Social Security
System as mandated by Article 2176 of the New Civil Code. cdll

For as held in the leading case of Merritt vs. Government of the

Philippine Islands (34 Phil. 311).
"The responsibility of the State is limited by Article 1903 to the
case wherein it acts through a special agent, . . . so that in
representation of the state and being bound to act as an agent thereof,
he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the active administration
and who on his own responsibility performs the functions which are
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 inherent in and naturally pertain to his office and which are regulated
by law and the regulations."

While Article 2180 of the New Civil Code was not invoked by the
petitioner as a defense, this does not prevent this Tribunal from taking
cognizance of the same. For as stressed in Ortigas, Jr. vs. Lufthansa German
Airlines (June 30, 1975, 64 SCRA 610, 633), failure to assign a defense as an
error on appeal is a pure technicality that should not prevail over the
substantial issues in a controversy as the same would not serve the interest
of justice, and: "this Court is clothed with ample authority to review matters
even if they are not assigned as errors in the appeal, if it finds that our
consideration is necessary in arriving at a just decision of the case" (citing
Saura & Export Co., Inc., May 31, 1963, 8 SCRA 143). Further, We have, time
and again, re-stated the rule that the Supreme Court can suspend its own
rules to serve the ends of justice (Jose vs. C.A., et al., L-38581, March 31,
1976; Phil. Blooming Mills Employees Organization, et al. vs. PBM Co., et al.,
L-31195, 51 SCRA 189, 215; Ronquillo vs. Marasigan, May 31, 1962, 5 SCRA
304, 312-313; Ordoveza vs. Raymundo, 63 Phil. 275).
The principle that a defense not expressly pleaded is deemed waived
unless such failure is satisfactorily explained, is merely a general rule which
is subject to exceptions, among which is when the Court can take judicial
notice of such defense. In this case, We can take judicial notice of the law,
like Article 2180 of the New Civil Code. It must be emphasized that the
courts have as much duty as the Commission on August to protect the public
treasury from being mulcted or raided illegally. And this becomes more
imperative considering that a substantial portion of the funds of the
petitioner comes from the contributions of employees and workers in private
firms and is therefore in the nature of a trust fund to be expended only for
their welfare and benefit, with the government merely giving some subsidy.
Any amount of damages illegally assessed against the Social Security
System will deplete the benefit funds available to its covered members for
the contingencies of sickness, disability, retirement or death. LLpr

It cannot likewise be seriously questioned that the Social Security

System is comprehended in the definition in Section 2 of the Revised
Administrative Code of the term "Government of the Republic of the
Philippines . . . which refers to the corporate governmental entity through
which the functions of government are exercised throughout the Philippine
Islands, including, save as the contrary appears from the context, the
various arms through which political authority is made effective in the
Philippines, whether pertaining to the central Government or to the
provincial or municipal branches or other forms of local government." And
the second paragraph of said Section 2 provides that the term "national
government" refers to the central government as distinguished from the
different forms of local government. There is nothing therein nor in the
Social Security Act, as amended, intimating that the national government
does not include the Social Security System.
It is true that the Social Security System has a corporate or juridical
personality of its own. But this does not remove it as an integral part of the
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 national or central government. For such corporate or juridical personality
invested in it is more for facility and convenience in the attainment of the
objectives for which it was created by the legislative. Such vesting of
corporate or juridical personality in the Social Security System was never
intended to destroy the shield from liability afforded it as an integral part of
the State or Government by Article 2180 of the New Civil Code. Relatedly,
such corporate or juridical personality of the Social Security System and the
express provision of the law creating the same that it can sue and be sued,
have the effect of merely waiving its immunity from suit as an entity
performing governmental functions. Such waiver of its immunity from suit is
not an admission of its liability. Such waiver merely allows a private citizen a
remedy for the enforcement and protection of his rights, but always subject
to the lawful defenses of the Social Security System — one of which is Article
2180 of the New Civil Code as aforestated. In other words, such waiver of
immunity from suit is not equivalent to instant liability. The Social Security
System can only be held liable for damages arising from the tortious acts of
its officers and employees only if it acts through a special agent, which is not
true in the case at bar.
II
It must be finally stressed that the Social Security System cannot be
liable for damages because it is an entity of government performing
governmental functions; hence, not profit-oriented. The 1963 doctrine in
SSSEA vs. Soriano (7 SCRA 1016 [1963]) that the system is exercising
proprietary functions, is no longer controlling.
For in 1969, the distinction between constituent and ministrant
functions of the Government as laid down in the case of Bacani vs. Nacoco
(100 Phil. 468 [1956]) has been obliterated. In the case of Agricultural Credit
and Cooperative Financing Administration (ACCFA) vs. Confederation of
Unions in Government Corporations and Offices (CUGCO) [30 SCRA 649
(1969)], this Court in re-examining the aforesaid Bacani ruling observed that
the trend has been to abandon and reject the traditional "Constituent-
Ministrant" criterion in governmental functions in favor of the more
responsive postulate that the growing complexities of modern society have
rendered the traditional classification of government functions unrealistic
and obsolete.
WE held in the ACCFAcase, thus: LibLex

"The growing complexities of modern society, however, have

rendered this traditional classification of the functions of government
quite unrealistic, not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the government was called
upon to enter optionally, and only 'because it was better equipped to
administer for the public welfare than is any private individual or
groups of individuals,' continue to lose their well-defined boundaries
and to be absorbed within activities that the government must have
undertaken in its sovereign capacity if it is to meet the increasing
social challenges of the times. Here as almost everywhere, else, the
tendency is undoubtedly towards a greater socialization of economic
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 forces. Here of course, this development was envisioned indeed
adopted as a national policy, by the Constitution itself in its declaration
of principle concerning the promotion of social justice."

Chief Justice Fernando, then Associate Justice, in his concurring opinion

stressed that:
"The decision reached by this Court so ably given expression in
the opinion of Justice Makalintal, characterized with vigor, clarity and
precision, represents what for me is a clear tendency not to be
necessarily bound by our previous pronouncements on what activities
partake of a nature that is governmental . Of even greater significance,
there is a definite rejection of the 'constituent-ministrant' criterion of
governmental functions, followed in Bacani vs. National Coconut
Corporation. That indeed is cause for gratification. For me at least,
there is again full adherence to the basic philosophy of the Constitution
as to the extensive and vast power lodged in our government to cope
with the social and economic problems that even now sorely beset us.
There is therefore full concurrence on my part to the opinion of the
court, distinguished by its high quality of juristic craftsmanship' (pp.
666-667).

xxx xxx xxx

"4. With the decision reached by us today, the government is
freed from the compulsion exerted by the Bacani doctrine of the
'constituent-ministrant' test as a criterion for the type of activity in
which it may engage. It constricting effect is consigned to oblivion. No
doubts or misgivings need assail us that government efforts to
promote the public weal, whether through regulatory legislation of vast
scope and emplitude or through the undertaking of business activities,
would have to face a searching and rigorous scrutiny. It is clear that
their legitimacy cannot be challenged on the ground alone of their
being offensive to the implications of the laissez-faire concept. Unless
there be a repugnancy then to the limitations expressly set forth in the
Constitution to protect individual rights, the government enjoys a much
wider latitude of action as to the means it chooses to cope with grave
social and economic problems that urgently press for solution. For me,
at least, that is to manifest deference to the philosophy of our
fundamental law. Hence my full concurrence, as announced at the
outset" (pp. 682-683, emphasis supplied).

The 1935 Constitution declared:

"Sec. 5. The promotion of social justice to insure the well-
being and economic security of all the people should be the concern of
the State" (Art. II, Declaration of Principles).

The present 1973 Constitution provides under its Declaration of

Principles and State Policies (Article II), that
"The State shall promote social justice to ensure the dignity,
welfare, and security of all the people. Towards this end, the State shall
regulate the acquisition, ownership, use, enjoyment, and disposition of
private property, and equitably diffuse property ownership and profits"
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 (Section 6);

and
"The State shall establish, maintain, and ensure adequate social
services in the field of education, health, housing, employment,
welfare, and social security to guarantee the enjoyment by the people
of a decent standard of living" (Section 7).

The strictly governmental function of the SSS is spelled out

unmistakably in Section 2 of R.A. No. 1161 entitled "The Social Security Act
of 1954," thus:
"It is hereby declared to be the policy of the Republic of the
Philippines to develop, establish gradually and perfect a social security
system which shall be suitable to the needs of the people throughout
the Philippines, and shall provide protection against the hazards of
disability, sickness, old age and death."

As stated in the Explanatory Note to the Bill that became R.A. No.
1161, the Social Security Act of 1954:
"It is a recognized principle in free societies that the State must
help its citizens to make provision for emergencies beyond their
control, such as unemployment, sickness requiring expensive medical
treatment, and similar emergencies to a greater or lesser degree by
means of social security legislation in a variety of forms."

And this Court, in Roman Catholic Archbishop of Manila vs. SSS (L-
15045, 1 SCRA 10 [1961]), declared that "the Social Security Law was
enacted pursuant to the 'policy of the Republic to develop, establish
gradually and perfect a social security system which shall be suitable to the
needs of the people throughout the Philippines and provide protection to
employees against the hazards of disability, sickness, old age and death'
(Sec. 2, Republic Act No. 1161, as amended). Such enactment is a legitimate
exercise of the police power. It affords protection to labor, especially to
working women and minors, and is in full accord with the constitutional
provisions on the 'promotion of social justice to insure the well being and
economic security of all the people."
It is interesting to note that aforesaid pronouncement of this Court was
incorporated in the Social Security Act (R.A. 1161) by Presidential Decree No.
24 issued on October 19, 1972. Thus, as amended by said Decree, its
section 2 now reads: "It is the policy of the Republic of the Philippines to
establish, develop, promote and perfect a sound viable tax-exempt social
security service suitable to the needs of the people throughout the
Philippines, which shall provide to covered employees and their families
protection against the hazards of disability, sickness, old age, and death,
with a view to promoting their well-being in the spirit of social justice"
(emphasis supplied). And one of its whereases expressly states that "the
measure is necessary to effect reforms in SSS operations and to revitalize its
structure as an important agency in the promotion of the social and
economic development programs of the Government; . . ." (emphasis
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 supplied).
Considering therefore that the establishment and maintenance of an
adequate social security and social services, which the Social Security
System seeks to perform and achieve are functions pursuant to the basic
constitutional mandate directing the State to promote "social justice to
insure the well-being and economic security of all the people" (1935
Constitution) or "to insure the dignity, welfare and security of all the people"
as well as the police power of the State, the inescapable conclusion is that
the function of the SSS is and has always been governmental. LibLex

It thus becomes clear that petitioner Social Security System, under the
obtaining facts and applicable laws in the case, is not liable for the damages
caused to private respondents by the tortious acts of its officers and
employees to whom the task done properly pertained. prLL

A contrary rule as that enunciated in the majority opinion invites

conspiracy between officials and employees of the Social Security System
and private parties to create financial liabilities against the System. Its funds
are public funds and more importantly trust funds, which must be protected.

Footnotes

1. Penned by Justice Ramon C. Fernandez and concurred in by Justices Efren I.

Plana and Venicio Escolin.

2. pp. 3-7, Petitioner's Brief.

3. pp. 2-5, Respondents' Brief.

4. pp. 70-71, Record on Appeal.

5. p. 74, Record on Appeal, p. 62 Rollo.

6. pp. 73-74, Record on Appeal.

7. p. 59, Rollo.

8. pp. A-B, Brief for the Petitioner, p. 136, Rollo.

9. Talosig vs. Vda. de Nieva, 43 SCRA 473; Evangelista & Co. vs. Abad Santos,
51 SCRA 416; Tiongco vs. De la Merced, 58 SCRA 90; Perido vs. Perido, 63
SCRA 98; Alaras vs. Court of Appeals, 64 SCRA 671; T.J. Wolff & Co., Inc. vs.
Moralde, 81 SCRA 624.

10. p. 54, Rollo.

11. pp. 72-73; Record on Appeal.

12. SSS Employees' Association (PAFLU) vs. Soriano, 7 SCRA 1016 (1963).
13. SSS Employees' Association vs. Soriano, 9 SCRA 511 (1963).

14. Sec. 4(k), RA 1161; Sec. 4(k), PD 24.

15. Sinco, Philippine Political Law, Revised Ed., p. 34.

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 16. See Noda vs. Social Security System, 109 SCRA 218 (1981).

17. 9 SCRA 511 (1963).

18. NASSCO vs. Court of Industrial Relations, 8 SCRA 781 (1963); PNB vs.
Pabalan, 83 SCRA 595 (1978).

19. T.s.n., August 20, 1969, pp. 91-101.

20. T.s.n., ibid., 101; p. 20, Brief for defendant-appellant, Court of Appeals.
21. p. 2, Resolution, p. 59, Rollo.

22. Malonzo vs. Galang, 109 Phil. 16 (1960); Enervida vs. de la Torre, 55 SCRA
339 (1974).
23. Art. 2234, Civil Code.

24. Art. 2232, ibid.

25. Art. 2221, ibid.

26. Art. 2208, ibid.

* Justices Efren I. Plana and Venicio Escolin took part in the Decision under
review.
** Justice Hugo E. Gutierrez, Jr., then Acting Solicitor General, filed the Brief for
petitioner.

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