COCA-COLA BOTTLERS,
PHILS., INC. (CCBPI), Naga Plant,
Petitioner, - versus - QUINTIN J. GOMEZ, a.k.a. “KIT” GOMEZ and DANILO Respondents. |
G.R. No. 154491
Present: *QUISUMBING, J., Chairperson,
carpio MORALES, TINGA, VELASCO, JR., and BRION, JJ. Promulgated: November 14, 2008 |
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D E C I S I O N
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BRION, J.: |
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Is the hoarding of a competitor’s
product containers punishable as unfair competition under the Intellectual
Property Code (IP Code, Republic Act No. 8293) that would entitle the
aggrieved party to a search warrant against the hoarder? This is the issue we grapple with in this
petition for review on certiorari involving two rival multinational softdrink
giants; petitioner Coca-Cola Bottlers, Phils., Inc. (Coca-Cola) accuses
Pepsi Cola Products Phils., Inc. (Pepsi), represented by the respondents,
of hoarding empty Coke bottles in bad faith to discredit its business and to sabotage
its operation in Bicolandia.
BACKGROUND
The facts, as culled from the records,
are summarized below.
On
Municipal
Trial Court (MTC) Executive Judge
Julian C. Ocampo of Naga City, after taking the joint deposition of the
witnesses, issued Search Warrant No. 2001-01[3] to seize 2,500 Litro and 3,000 eight and 12 ounces empty Coke bottles at
Pepsi’s Naga yard for violation of Section 168.3 (c) of the IP Code.[4] The local police seized and brought to the
MTC’s custody 2,464 Litro and 4,036 eight and 12 ounces empty Coke bottles, 205
Pepsi shells for Litro, and 168 Pepsi shells for smaller (eight and 12 ounces)
empty Coke bottles, and later filed with the Office of the City Prosecutor of
Naga a complaint against two Pepsi officers for violation of Section 168.3 (c)
in relation to Section 170 of the IP Code.[5] The named respondents, also the respondents
in this petition, were Pepsi regional sales manager Danilo E. Galicia (
In their counter-affidavits, Galicia
and Gomez claimed that the bottles came from various Pepsi retailers and
wholesalers who included them in their return to make up for shortages of empty
Pepsi bottles; they had no way of ascertaining beforehand the return of empty
Coke bottles as they simply received
what had been delivered; the presence of the bottles in their yard was not
intentional nor deliberate; Ponce and Regaspi’s statements are hearsay as they
had no personal knowledge of the alleged crime; there is no mention in the IP
Code of the crime of possession of empty bottles; and that the ambiguity of the
law, which has a penal nature, must be construed strictly against the State and
liberally in their favor. Pepsi security
guards Eduardo E. Miral and Rene Acebuche executed a joint affidavit stating
that per their logbook, Lirio did not visit or enter the plant premises in the
afternoon of
The respondents also filed motions
for the return of their shells and to quash the search warrant. They contended that no probable cause existed
to justify the issuance of the search warrant; the facts charged do not
constitute an offense; and their Naga plant was in urgent need of the
shells.
Coca-Cola opposed the motions as the
shells were part of the evidence of the crime, arguing that Pepsi used the
shells in hoarding the bottles. It
insisted that the issuance of warrant was based on probable cause for unfair
competition under the IP Code, and that the respondents violated R.A. 623, the
law regulating the use of stamped or marked bottles, boxes, and other similar
containers.
THE MTC RULINGS
On
In their motion for reconsideration, the
respondents argued for the quashal of the warrant as the MTC did not conduct a
probing and exhaustive examination; the applicant and its witnesses had no
personal knowledge of facts surrounding the hoarding; the court failed to order
the return of the “borrowed” shells; there was no crime involved; the warrant
was issued based on hearsay evidence; and the seizure of the shells was illegal
because they were not included in the warrant.
On
The respondents responded by filing a
petition for certiorari under Rule 65 of the Revised Rules of Court before the
Regional Trial Court (RTC) of
THE RTC RULINGS
On
Accordingly,
as prayed for, Search Warrant No. 2001-02 issued by the Honorable Judge Julian
C. Ocampo III on July 2, 2001 is ANNULLED and SET ASIDE. The Orders issued by the Pairing Judge of Br.
1, MTCC of Naga City dated
SO ORDERED.[9]
In a motion for reconsideration,
which the RTC denied on
Bypassing the Court of Appeals, the petitioner
asks us through this petition for review on certiorari under Rule 45 of
the Rules of Court to reverse the decision of the RTC. Essentially, the petition raises questions
against the RTC’s nullification of the warrant when it found no grave abuse of
discretion committed by the issuing judge.
THE PETITION and
THE PARTIES’ POSITIONS
In its petition, the petitioner insists
the RTC should have dismissed the respondents’ petition for certiorari because
it found no grave abuse of discretion by the MTC in issuing the search
warrant. The petitioner further argues
that the IP Code was enacted into law to remedy various forms of unfair
competition accompanying globalization as well as to replace the inutile
provision of unfair competition under Article 189 of the Revised Penal
Code. Section 168.3(c) of the IP Code
does not limit the scope of protection on the particular acts enumerated as it
expands the meaning of unfair competition to include “other acts contrary to
good faith of a nature calculated to discredit the goods, business or services
of another.” The inherent element of
unfair competition is fraud or deceit, and that hoarding of large quantities of
a competitor’s empty bottles is necessarily characterized by bad faith. It claims that its Bicol bottling operation
was prejudiced by the respondents’ hoarding and destruction of its empty bottles.
The petitioner also argues that the
quashal of the search warrant was improper because it complied with all the
essential requisites of a valid warrant.
The empty bottles were concealed in Pepsi shells to prevent discovery
while they were systematically being destroyed to hamper the petitioner’s bottling
operation and to undermine the capability of its bottling operations in
Bicol.
The respondents counter-argue that
although Judge Ocampo conducted his own examination, he gravely erred and
abused his discretion when he ignored the rule on the need of sufficient
evidence to establish probable cause; satisfactory and convincing evidence is
essential to hold them guilty of unfair competition; the hoarding of empty Coke bottles did not
cause actual or probable deception and confusion on the part of the general
public; the alleged criminal acts do not show conduct aimed at deceiving the
public; there was no attempt to use the empty bottles or pass them off as the respondents’
goods.
The respondents also argue that the
IP Code does not criminalize bottle hoarding, as the acts penalized must always
involve fraud and deceit. The hoarding
does not make them liable for unfair competition as there was no deception or
fraud on the end-users.
THE ISSUE
Based on the parties’ positions, the
basic issue submitted to us for resolution is whether the Naga MTC was correct
in issuing Search Warrant No. 2001-01 for the seizure of the empty Coke bottles
from Pepsi’s yard for probable violation of Section 168.3 (c) of the IP Code. This
basic issue involves two sub-issues, namely, the substantive issue of whether
the application for search warrant effectively charged an offense, i.e., a violation of Section 168.3 (c)
of the IP Code; and the procedural issue of whether the MTC observed the procedures
required by the Rules of Court in the issuance of search warrants.
OUR RULING
We resolve to deny the petition for lack of merit.
We clarify at the outset that while
we agree with the RTC decision, our agreement is more in the result than in the reasons that supported it. The decision is correct in nullifying the
search warrant because it was issued on an invalid substantive basis – the acts imputed on the
respondents do not violate Section 168.3
(c) of the IP Code. For this reason, we
deny the present petition.
The issuance of a search warrant[10] against a personal property[11] is governed by Rule 126 of the Revised
Rules of Court whose relevant sections
state:
Section
4. Requisites
for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the things to be
seized which may be anywhere in the Philippines.
Section
5. Examination of complainant; record. — The judge must, before
issuing the warrant, personally examine
in the form of searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally known to
them and attach to the record their sworn statements together with the
affidavits submitted.
Section 6. Issuance and form of search warrant. —
If the judge is satisfied of the existence of facts upon which the application
is based or that there is probable cause to believe that they exist, he shall
issue the warrant, which must be substantially in the form prescribed by these
Rules. [Emphasis supplied]
To paraphrase this rule, a search
warrant may be issued only if there is
probable cause in connection with a specific offense alleged in an application
based on the personal knowledge of the applicant and his or her witnesses.
This is the substantive requirement in the issuance of a search warrant. Procedurally, the determination of probable
cause is a personal task of the judge before whom the application for search
warrant is filed, as he has to examine under oath or affirmation the applicant
and his or her witnesses in the form of “searching questions and answers” in
writing and under oath. The warrant, if issued, must particularly describe the
place to be searched and the things to be seized.
We paraphrase these requirements to
stress that they have substantive and procedural aspects. Apparently, the RTC recognized this dual
nature of the requirements and, hence, treated them separately; it approved of
the way the MTC handled the procedural aspects of the issuance of the search warrant
but found its action on the substantive aspect wanting. It therefore resolved to nullify the warrant,
without however expressly declaring that the MTC gravely abused its discretion
when it issued the warrant applied for.
The RTC’s error, however, is in the form rather than the substance of
the decision as the nullification of the issued warrant for the reason the RTC
gave was equivalent to the declaration that grave abuse of discretion was
committed. In fact, we so rule as the
discussions below will show.
Jurisprudence teaches us that probable
cause, as a condition for the issuance of a search warrant, is such reasons
supported by facts and circumstances as will warrant a cautious man in the
belief that his action and the means taken in prosecuting it are legally just
and proper. Probable cause requires facts
and circumstances that would lead a reasonably prudent man to believe that an
offense has been committed and the objects sought in connection with that
offense are in the place to be searched.[12]
Implicit in this statement is the
recognition that an underlying offense must, in the first place, exist. In
other words, the acts alleged, taken together, must constitute an offense and
that these acts are imputable to an offender in relation with whom a search
warrant is applied for.
In the context of the present case,
the question is whether the act charged – alleged to be hoarding of empty Coke
bottles – constitutes an offense under Section 168.3 (c) of the IP Code. Section 168 in its entirety states:
SECTION 168. Unfair Competition, Rights, Regulation and Remedies. —
168.1.
A person who has identified in the mind of the public the goods he manufactures
or deals in, his business or services from those of others, whether or not a
registered mark is employed, has a property right in the goodwill of the said
goods, business or services so identified, which will be protected in the same
manner as other property rights.
168.2. Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor.
168.3. In particular, and without in any way limiting
the scope of protection against unfair competition, the following shall be
deemed guilty of unfair competition:
(a) Any person, who is selling his goods and
gives them the general appearance of goods of another manufacturer or dealer,
either as to the goods themselves or in the wrapping of the packages in which
they are contained, or the devices or words thereon, or in any other feature of
their appearance, which would be likely to influence purchasers to believe that
the goods offered are those of a manufacturer or dealer, other than the actual
manufacturer or dealer, or who otherwise clothes the goods with such appearance
as shall deceive the public and defraud another of his legitimate trade, or any
subsequent vendor of such goods or any agent of any vendor engaged in selling
such goods with a like purpose;
(b) Any person who by any artifice, or
device, or who employs any other means calculated to induce the false belief
that such person is offering the services of another who has identified such
services in the mind of the public; or
(c) Any person who shall make any false
statement in the course of trade or who shall commit any other act contrary to
good faith of a nature calculated to discredit the goods, business or services
of another.
168.4. The remedies provided by Sections 156, 157 and
161 shall apply mutatis mutandis. (Sec. 29, R.A. No. 166a)
The petitioner theorizes that the
above section does not limit the scope of protection on the particular acts
enumerated as it expands the meaning of unfair competition to include “other acts
contrary to good faith of a nature calculated to discredit the goods, business
or services of another.” Allegedly, the
respondents’ hoarding of Coca Cola empty bottles is one such act.
We
do not agree with the petitioner’s expansive interpretation of Section 168.3 (c).
“Unfair competition,” previously
defined in Philippine jurisprudence in relation with R.A. No. 166 and Articles 188
and 189 of the Revised Penal Code, is now covered by Section 168 of the IP Code
as this Code has expressly repealed R.A. No. 165 and R.A. No. 166, and Articles
188 and 189 of the Revised Penal Code.
Articles 168.1 and 168.2, as quoted
above, provide the concept and general
rule on the definition of unfair competition.
The law does not thereby cover every
unfair act committed in the course of business; it covers only acts characterized
by “deception or any other means contrary to good faith” in the passing off of goods and services as
those of another who has established goodwill in relation with these goods or
services, or any other act calculated to produce the same result.
What unfair competition is, is
further particularized under Section 168.3 when it provides specifics of what
unfair competition is “without in any way limiting the scope of protection
against unfair competition.” Part of
these particulars is provided under Section 168.3(c) which provides the general
“catch-all” phrase that the petitioner cites. Under this phrase, a person shall be guilty of
unfair competition “who shall commit any other act contrary to good faith of a
nature calculated to discredit the goods, business or services of another.”
From jurisprudence, unfair
competition has been defined as the passing off (or palming off) or attempting
to pass off upon the public the goods or business of one person as the goods or
business of another with the end and probable effect of deceiving the
public. It formulated the “true test” of
unfair competition: whether the acts of defendant are such as are calculated to
deceive the ordinary buyer making his purchases under the ordinary conditions
which prevail in the particular trade to which the controversy relates.[13] One of the essential requisites in an action
to restrain unfair competition is proof of fraud; the intent to deceive must be
shown before the right to recover can exist.[14] The advent of the IP Code has not
significantly changed these rulings as they are fully in accord with what Section
168 of the Code in its entirety provides. Deception, passing off and fraud
upon the public are still the key elements that must be present for unfair
competition to exist.
The act alleged to violate the
petitioner’s rights under Section 168.3 (c) is hoarding which we gather to be
the collection of the petitioner’s empty bottles so that they can be withdrawn
from circulation and thus impede the circulation of the petitioner’s bottled
products. This, according to the
petitioner, is an act contrary to good faith – a conclusion that, if true, is
indeed an unfair act on the part of the respondents. The critical question, however, is not the
intrinsic unfairness of the act of hoarding; what is critical for purposes
of Section 168.3 (c) is to determine if the hoarding, as charged, “is of a
nature calculated to discredit the goods, business or services” of the
petitioner.
We hold that it is not. Hoarding as defined by the petitioner is not
even an act within the contemplation of the IP Code.
The petitioner’s cited basis is a
provision of the IP Code, a set of rules that refer to a very specific subject
– intellectual property. Aside from the
IP Code’s actual substantive contents (which relate specifically to patents,
licensing, trademarks, trade names, service marks, copyrights, and the
protection and infringement of the intellectual properties that these
protective measures embody), the coverage and intent of the Code is expressly
reflected in its “Declaration of State Policy” which states:
Section 2. Declaration of State Policy. — The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.
The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.
It
is also the policy of the State to streamline administrative procedures of
registering patents, trademarks and copyright, to liberalize the registration
on the transfer of technology, and to enhance the enforcement of intellectual
property rights in the
“Intellectual property rights” have
furthermore been defined under Section 4 of the Code to consist of: a) Copyright
and Related Rights; b) Trademarks and Service Marks; c) Geographic Indications; d) IndustrialDesigns; e) Patents; f) Layout-Designs
(Topographies) of Integrated Circuits; and g)Protection of Undisclosed
Information.
Given the IP Code’s specific focus, a
first test that should be made when a question arises on whether a matter is
covered by the Code is to ask if it refers to an intellectual property as
defined in the Code. If it does not,
then coverage by the Code may be negated.
A second test, if a disputed matter
does not expressly refer to an
intellectual property right as defined above, is whether it falls under
the general “unfair competition” concept and definition under Sections 168.1
and 168.2 of the Code. The question then
is whether there is “deception” or any other similar act in “passing off” of
goods or services to be those of another who enjoys established goodwill.
Separately from these tests is the
application of the principles of statutory construction giving particular
attention, not so much to the focus of the IP Code generally, but to the terms
of Section 168 in particular. Under the
principle of “noscitur a sociis,” when a particular word or phrase is ambiguous
in itself or is equally susceptible of various meanings, its correct
construction may be made clear and specific by considering the company of words
in which it is found or with which it is associated.[15]
As basis for this interpretative analysis,
we note that Section 168.1 speaks of
a person who has earned goodwill with respect to his goods and services and who
is entitled to protection under the Code, with or without a registered
mark. Section 168.2, as previously discussed, refers to the general
definition of unfair competition. Section
168.3, on the other hand, refers to the specific instances of unfair
competition, with Section 168.1
referring to the sale of goods given the appearance of the goods of another; Section 168.2, to the inducement of
belief that his or her goods or services are that of another who has earned
goodwill; while the disputed Section 168.3
being a “catch all” clause whose coverage the parties now dispute.
Under all the above approaches, we
conclude that the “hoarding” - as defined and charged by the petitioner – does
not fall within the coverage of the IP Code and of Section 168 in
particular. It does not relate to any
patent, trademark, trade name or service mark that the respondents have
invaded, intruded into or used without proper authority from the petitioner. Nor are the respondents alleged to be
fraudulently “passing off” their products or services as those of the
petitioner. The respondents are not also alleged to be undertaking any representation
or misrepresentation that would confuse or tend to confuse the goods of the
petitioner with those of the respondents, or vice versa. What in fact the
petitioner alleges is an act foreign to the Code, to the concepts it embodies
and to the acts it regulates; as alleged, hoarding inflicts unfairness by
seeking to limit the opposition’s sales by depriving it of the bottles it can
use for these sales.
In this light, hoarding for purposes
of destruction is closer to what another law - R.A. No. 623 – covers, to wit:
SECTION 1. Persons engaged or licensed to engage in the manufacture, bottling or selling of soda water, mineral or aerated waters, cider, milk, cream, or other lawful beverages in bottles, boxes, casks, kegs, or barrels, and other similar containers, with their names or the names of their principals or products, or other marks of ownership stamped or marked thereon, may register with the Philippine Patent Office a description of the names or are used by them, under the same conditions, rules, and regulations, made applicable by law or regulation to the issuance of trademarks.
SECTION 2. It shall be unlawful for any person, without the written consent of the manufacturer, bottler or seller who has successfully registered the marks of ownership in accordance with the provisions of the next preceding section, to fill such bottles, boxes, kegs, barrels, or other similar containers so marked or stamped, for the purpose of sale, or to sell, dispose of, buy, or traffic in, or wantonly destroy the same, whether filled or not, or to use the same for drinking vessels or glasses or for any other purpose than that registered by the manufacturer, bottler or seller. Any violation of this section shall be punished by a fine or not more than one hundred pesos or imprisonment of not more than thirty days or both.
As its coverage is defined under
Section 1, the Act appears to be a measure that may overlap or be affected by the
provisions of Part II of the IP Code on “The Law on Trademarks, Service Marks
and Trade Names.” What is certain is
that the IP Code has not expressly repealed this Act. The Act appears, too, to have specific
reference to a special type of registrants – the manufacturers, bottlers or
sellers of soda water, mineral or aerated waters, cider, milk, cream, or other
lawful beverages in bottles, boxes, casks, kegs, or barrels, and other similar
containers – who are given special protection with respect to the containers
they use. In this sense, it is in fact a law of specific coverage and
application, compared with the general terms and application of the IP Code. Thus,
under its Section 2, it speaks specifically of unlawful use of containers and
even of the unlawfulness of their wanton destruction – a matter that escapes
the IP Code’s generalities unless linked with the concepts of “deception” and
“passing off” as discussed above.
Unfortunately, the Act is not the law
in issue in the present case and one that the parties did not consider at all
in the search warrant application. The
petitioner in fact could not have cited it in its search warrant application
since the “one specific offense” that the law allows and which the petitioner
used was Section 168.3 (c). If it serves
any purpose at all in our discussions, it is to show that the underlying
factual situation of the present case is in fact covered by another law, not by
the IP Code that the petitioner cites. Viewed in this light, the lack of
probable cause to support the disputed search warrant at once becomes apparent.
Where, as in this case, the imputed acts
do not violate the cited offense, the ruling of this Court penned by Mr.
Justice Bellosillo is particularly instructive:
In
the issuance of search warrants, the Rules of Court requires a finding of probable
cause in connection with one specific
offense to be determined personally by the judge after examination of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized. Hence, since
there is no crime to speak of, the search warrant does not even begin to
fulfill these stringent requirements and is therefore defective on its face. The nullity of the warrant renders moot and
academic the other issues raised in petitioners’ Motion to Quash and Motion for
Reconsideration. Since the assailed
search warrant is null and void, all property seized by virtue thereof should
be returned to petitioners in accordance with established jurisprudence.[16]
Based on the foregoing, we conclude
that the RTC correctly ruled that the petitioner’s search warrant should
properly be quashed for the petitioner’s failure to show that the acts imputed
to the respondents do not violate the cited offense. There could not have been any probable cause to
support the issuance of a search warrant because no crime in the first place
was effectively charged. This conclusion renders unnecessary any
further discussion on whether the search warrant application properly alleged
that the imputed act of holding Coke empties was in fact a “hoarding” in bad
faith aimed to prejudice the petitioner’s operations, or whether the MTC duly
complied with the procedural requirements for the issuance of a search warrant
under Rule 126 of the Rules of Court.
WHEREFORE, we hereby DENY the petition for lack of merit. Accordingly, we confirm that Search Warrant
No. 2001-01, issued by the Municipal Trial Court, Branch 1,
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE
CONCUR:
LEONARDO A. QUISUMBING
Acting Chief Justice |
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CONCHITA CARPIO MORALES Associate Justice |
DANTE O. TINGA Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
CERTIFICATION
LEONARDO
A. QUISUMBING
Acting Chief Justice
* Acting Chief Justice.
[1] See Paragraph 3 of the Application; records, p. 96.
[2]
[3]
[4] Sec. 168. Unfair Competition, Rights, Regulations and Remedies. –
xxx xxx xxx
Sec. 168.3: In particular, and without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition:
xxx
(c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or service of another.
[5] Sec. 170. Penalties. – Independent of the civil and administrative sanctions
imposed by law, a criminal penalty of imprisonment from two years to five years
and a fine ranging from Fifty thousand pesos (P50,000) to Two hundred
thousand pesos (P200,000), shall be imposed on any person who is found
guilty of committing any of the acts mentioned in Section 155, Section 168 and
Subsection 169.1.
[6] Penned by Pairing Judge Irma Isidora M. Boncodin, MTC, Branch 1, Naga; records, p. 23.
[7] Penned by Acting Presiding Judge Jose P. Nacional, MTC, Branch 1, Naga; id, p. 22.
[8] Decision penned by Judge Ramon A. Cruz, RTC, Branch 21; id., pp. 202-211.
[9]
[10] Rule 126,
Section 1. Search warrant defined. —
A search warrant is an order in writing issued in the name of the People of the
[11] Rule 126,
Section 3. Personal property to be seized. — A search warrant may be issued
for the search and seizure of personal property:
(a) Subject of
the offense;
(b) Stolen or
embezzled and other proceeds or fruits of the offense; or
(c) Used or
intended to be used as the means of committing an offense.
[12] La Chemise Lacoste, S. A. v. Judge Fernandez, G.R. Nos. 63796-97, May 21, 1984, 129 SCRA 373.
[13] Alhambra
Cigar & Cigarette Manufacturing Co v. Mojica, 27 Phil. 266 (1914).
[14] Compania
General de Tabacos de Filipinas v. Alhambra Cigar & Cigarette Manufacturing
Co., 33 Phil. 485 (1916).
[15]
Agpalo, Statutory Construction, 3rd (1995) Ed., at p. 159,
citing Co Kim Chan v. Valdez Tan Keh, 75 Phil 371, and Soriano v.
Sandiganbayan, G.R. No. 65952,
[16] Supra note 12, pp. 705-706.