BY: Dean Ed Vincent Albano PERSONS 1. Is it necessary to prove a decree of foreign divorce in the Philippines? (Art 15 in rel. to Arts.

26, 35, 36, 37, 38) YES. If a foreign divorce is obtained, the legal effects, like custody of children must be determined in the Philippines. Reason: A foreign judgment merely contributes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary. A foreign judgment does not prove itself in the Philippines. What determines the validity of the marriage is not the law of the place where it was celebrated, but it is determined by the Philippine law, in view of Article 15, NCC. Hence, even if valid where it was celebrated, it is void in the Philippines if there is no compliance with the Philippine laws. (Roehr vs Rodriguez, 6-2002) 2. a) Is a void marriage a legal impediment to marry? (Arts. 2,3,4,5,7 FC) Yes. A void marriage is a legal impediment to marry. A person has yet to have a judicial declaration of finality of such marriage before he can remarry. The parties cannot determine for themselves the invalidity of their marriage. The declaration of nullity of the marriage is for their protection as they may be prosecuted for crimes. (Abundo vs CA) b) What is the legal effect of a subsequent marriage contracted by a person whose first marriage, which was not solemnized but the parties signed the marriage contract, was not declared void? The subsequent marriage is valid. If a marriage was not solemnized, and the man married another woman without the first marriage having been declared void, he cannot be charged with the crime of bigamy. The mere signing of the marriage contract was a mere private act, the marriage did not exist in the eyes of the law (Morigo vs People) 3. Is sexual infidelity or abandonment sufficient to have the marriage declared null and void on the ground of psychological incapacity? No. The mere sexual infidelity or abandonment by a spouse without proof of incapability of doing the essential duties to the marriage bond is not psychological incapacity (Dedel; Republic vs Hamano). There must be evidence that he is incapable of doing so due to some psychological, not physical illness. Requisites of psychological incapacity 1) has juridical antecedents 2) grave 3) incurable in addition, cite the guidelines provided set y the Supreme Court in the case of Republic vs Molina 4. Can the plaintiff claim moral damages in an action for nullity of marriage on the ground of psychological incapacity? No. The plaintiff cannot claim moral damages unless there is evidence that the marriage was done deliberately and with malice by the party who had knowledge of his disability and willfully concealed it. Since psychological incapacity means that one is truly incognitive of the basic marital covenants that one must discharge or assume, it removes the basis for the contention that the defendant purposely deceived the other spouse. No basis for award of moral damages. (Buenaventura vs Buenaventura, 3-31-05) 5. a) Is lesbianism, drug addiction, or being a prostitute sufficient to deprive a parent (mother OR father) of the custody of his/her child? No. The law provides that if a child is below the age of seven (7), the custody is awarded to the mother, except if there is a compelling reason to separate the child from the mother. The law gives preference to the mother because there is no man who can respond to the sorrows of a woman seeing a child of tender age being torn away from her. The mere fact that the mother is a lesbian or even a prostitute, as long as the relationship is not carried openly and in the eyes of the child that would be revolting to his/her moral development, is not a ground to separate the child from the mother. the mothers immoral conduct may constitute a compelling reason to deprive her of custody. But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not event the fact that a mother is prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child. To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care. It is not enough that the woman is a lesbian. He must demonstrate that she carried on her purported relationship with the person of the same sex in the presence of their son or under circumstances not conducive to the childs proper moral development.(Gualberto vs Gualberto) The mere fact that the father is a drug addict does not by itself disqualify him from having custody over the child. There must be proof that the father cannot support, develop the child morally because of the drug addiction. (Laxamana vs Laxamana) Is the mother entitled to have custody over an illegitimate child who have been recognized by the father? Yes. If the child is an illegitimate child, the mother gets the custody of the child even of the father recognized him. (David vs CA). But if the mother neglects her duties, then, the father can ask for the custody. b)

6. a) What is the effect of a marriage declared void on the ground of psychological incapacity? The property relation is co-ownership The same shall be partitioned and distributed equally Properties acquired are prima facie presumed to have been obtained through their joint efforts and industry. (Buenaventura vs Buenaventura) There can be no conjugal partnership if the marriage is void. (Tumlos vs Fernandez) b) What property relation will govern if a man and a woman, without legal impediment to marry, cohabited without the benefit of marriage? if a man and a woman cohabited without the benefit of marriage and without legal impediment to marry one another, and acquired property through their joint efforts and contributions, they are governed by the rule on co-ownership. There is no need to prove material contribution. (Uy vs CA) c) Is the rule on co-ownership applicable to cohabitations of a man and woman who have legal impediments to marry? No. If there is a legal impediment, then there must be proof of material contributions for them to be entitled to share. The properties are not absolutely governed by co-ownership. Co-ownership over the properties require material contributions. 7. a) Is prior recourse to a compromise necessary in a petition for settlement of estate? (Art 151, FC) No. If there is a petition for settlement of estate, there is no need to allege a prior recourse to compromise. The reason is that, it is not an adversarial or controversial suit. (Vda de Manalo vs CA) b) How about if a brother sued his sister and the latters husband? No. If a brother sued a brother-in-law and his sister for ejectment, there is no need to allege prior recourse to compromise or settlement because the suit is not limited to immediate members of the family. (Martinez vs Martinez) 8. Can an action to impugn legitimacy be availed by the children of the alleged father? (Art 166) Yes. An action to impugn the ligitimacy of a child can be extended to the children because they are the ones adversely affected with the presence of such child. (De Jesus vs Estate of Juan Dizon) By filing an action for partition of the estate of their alleged father using public documents where the alleged father recognized them, they impugned their own legitimacy. Children born within wedlock are presumed to be legitimate. There is no presumption more firmly fixed in law than the presumption that children born within wedlock are legitimate (Liyao vs Liyao;

9. Is it necessary for a child to seek judicial decree of recognition if he has any of the documents provided in Art. 172 (1), FC? No. If a child has any one of the documents under Art. 172 (1), he does not need to go to court and ask for recognition. These are consummated acts of recognition. (Eceta vs Eceta; Potenciano vs Reynoso) Essential Features of SC Resolution A.M. 02-11-10 (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages under The Family Code of the Philippines) A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife An action or defense for the declaration of absolute nullity of void marriage is imprescriptible With regards to petitions for annulment of voidable marriage, the provisions in the Family Code with respect to the persons who may bring the action, the grounds for bringing the same and the periods within which to file the same has been substantially repruduced No motion to dismiss the petition shall be allowed except on the parties; provided that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer If the respondent fails to file an answer, he shall not be declared in default by the court. In such case, the court shall order the public prosecutor to investigate whether collusion exists between the parties If no collusion exists, a pre-trial (mandatory) shall forthwith be set and conducted. If petitioner fails to appear during the pre-trial, the case shall be dismissed unless a valid excuse is proved before the court by counsel. If defendant fails to appear but has filed an answer, the court shall require the public prosecutor to investigate the non appearance without suspending the pre-trial The court shall thereafter require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence

During the trial, which must be conducted personally by the judge, the grounds for the absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed

NOTES: The basic principle that a void marriage does not prescribe and may therefore be attacked directly or collaterally still stands. When it comes to actions directly attacking a void marriage, SC Resolution A.M. 02-11-10 has made certain modifications to the rule by providing that only the husband and the wife may file a petition for declaration of absolute nullity of void marriage. As a consequence of which, a void marriage can no longer be assailed directly after the death of both spouses. However, the same void marriage may still be assailed collaterally by anybody whose rights may be affected by the void marriage even after the death of both spouses. Hence, in Gomez vs. Lipana (33 SCRA 615) where the marriage contracted is bigamous and null and void, the marriage was held to be subject to collateral attack in the intestate proceedings instituted by the judicial administratrix for the forfeiture of the husbands share in the conjugal property. PROPERTY 10. Can a machinery become an immovable property? Yes. A machinery is, as a rule, a movable property. But if an owner of a parcel of land or building attaches it to the land or building to respond to the needs of his business or industry, it becomes an immovable property because it is immobilized by destination. (Davao Saw Mills vs Castillo; Sergs property vs CA). If it is however attached by a lessee, it is still movable because the lessee could not have intended it to be immobilized by destination as his possession over the land is not permanent. This is the exception. The exception to the exception is, if the machinery is attached by the lessee, but with an agreement that upon expiration of the lease contract it will form part of the properties of the lessor as the lessee will not remove it. It is immobilized because the lessee acts as an agent of the lessor. 11. A lot was sold by the government to B. A made improvements on the same prior to the sale. B now demands the delivery of both the lot and the improvement. Is A entitled to compensation? Yes. The owner of improvement is entitled to compensation because he was a builder in good faith. When the buyer bought the property, the improvement was already there, hence his rights are governed by Arts. 448 & 456. The owner opted to appropriate when he applied for writ of execution despite knowledge that the auction sale did not include the house or improvement. Owner has the right of retention Related Doctrines: If one buys a parcel of land and relies upon the representation of the owner as to its location and builds a house thereon, he is a builder in good faith. (Pleasantville Devt. Corp. vs CA) There is no right of retention of a lessee. He can be evicted even before he gets paid (Geminiano vs CA). The mere fact that the lessor promised to sell or donate a property being leased does not make him a builder in good faith. The mere expectancy of becoming an owner does not make him a builder in good faith (Benitez; Labido cases) If a property is bought but it was already encroaching on the land of another, the buyer knowing the situation, is not considered builder in good faith (PNB vs CA) 12. Can a person who is unlawfully deprived of a movable recover the same from the present possessor? Will your answer be the same in a case where a check was issued in payment for a movable but the same was dishonor upon presentment? (Art. 559) Yes. If a person is unlawfully deprived, he can get back the object from the present possessor even if he bought it from the thief. The thief could not have transmitted a better right than what he had. However, if he bought it from a merchant store, he cant recover it. Even if there is already a sale but there is no intention to deliver until paid and the buyer cheated the seller, got it without paying, sold it to another, her can still recover. He is a thief. (Guzman vs Yapdianco) However, If a check is issued and it is dishonored, he is not unlawfully deprived because he is a mere unpaid seller. He can ask for payment; sue criminally (Ledesma; EDCA cases) 13. Distinguish positive from negative easements? When are they respectively acquired? (Arts. 616, 621, and 624) a) Positive easement where the estate is obliged to allow something to be done or to do it himself. b) Negative easement - servient estate is prohibited to do something which he could lawfully do where it not for the existence of the easement. Acquisition: a) Positive easement is acquired from the day the dominant estate exercises it. b) Negative easement from the day the dominant estate forbid by a public instrument the servient estate from executing an act which would be lawful without the easement

14. Art. 649 X claimed to have bought a property from Y, but failed to prove such claime. According to X, the property has been isolated, hence, he has no means of ingress or egress to a public highway. There is, however, a pathway but Y constructed a house on the same thereby isolating Xs property. May Y demand a right of way? How about X? Why? Answer: No, Y cannot demand a right of way because by his act of constructing house in the area allotted as a pathway in her property, she caused the isolation of the property from any access to a public highway. The conferment of an easement of right of way under Art 649 is subject to proof of the following requisites: 1) It is surrounded by other immovables and has no adequate outlet to a public highway 2) Payment of proper indemnity 3) The isolation is not the result of his own acts 4) The right of way claimed is at the point least prejudicial to the servient estate, and 5) To the extent consistent with the foregoing rule where the distance of the dominant estate to a public highway may be the shortest On the part of X, he cannot claim a legal easement because he failed to prove that he is the owner of the lot. Y is still the real party in interest to ask for it under the law. Sps De la Pea vs Olga Ramiscal Note: If the owner caused the isolation of his property, he cant demand a right of way. Thats his fault. (David-Chan vs CA) Related Doctrines: Easement of right of way cant be acquired in this case by prescription because the possession was merely tolerated, hence not adverse. It must be coupled with element of hostility towards the true owner. Mere expiration of the period of easement did not convert the possession to adverse one. Mere material possession is not adverse possession. There must be intent to possess as owner. Presumed to continue in the same character it started. It is the owner or any person who by virtue of a real right may cultivate or use any immovable surrounded by other immovable pertaining to other persons, who is entitled to demand a right of way through the neighboring estates. Since he was not able to prove his ownership over the land, he is not entitled to demand a right of way. (Bogo-Medellin case) The law says that the dominant estate cannot be the servient estate at the same time. One of the characteristic of an easement is that it can be imposed only on the property of another, never on ones own property. An easement can exist only when the servient and the dominant estates belong to different owners. (Borbajo vs Hidden View Homeowners Inc. Title may be acquired over an easement of right of way if 1. The parties had contractual right to use the land by voluntary easement; 2. The dominant estate filed a complaint against the owner for conferment of a legal easement of right of way under Art. 649 (Bogo-Medellin case) easement cant be acquired by mere tolerance (NPC vs Campos) an easement of right of way cannot be acquired by prescription because it is not a continuous easement, although it is apparent (Bogo-Medellin) Easement of right of way must be established at a point least prejudicial to a servient estate (Cristobal case)

15. a) When is a donation perfected? (Art 734, 737) Donation is perfected when the donor acquires knowledge of the donees acceptance, not when it is subscribed. Note: capacity of the donor and donee is determined at the time of perfection. b) Is forgery a ground for revocation of a donation? Yes, forgery is a ground to revoke a donation, even if not a crime against person, honor and property. Anything that offends the donor is a ground for revocation (Edicarte case) SUCCESSION * Must Remember: Formalities of Wills; Requisites of Notarial and Holographic Will 16. Is there preterition if the omitted heir is an a) adopted child? b) sister? c) daughter in law? d) Parents? a) Yes. There is preterition of an adopted child because he inherits like a legitimate child (Acain case) b) No. She is not a compulsory heir in the direct line. (Ventura v. Ventura)

c) No. She is not a compulsory heir in the direct line. (Rosales v. Rosales) d) There is preterition of parents if they are the only closest relatives. The law does not distinguish. (Nuguid v. Nuguid, Nepomuceno v. Court of Appeals) *Take note: concept of preterition (Art. 854) 17. What is the meaning of one degree in fideicommissary substitution? (Art. 863) In fideicommissary substitution, the first and the second heir are one degree apart. One degree means the second heir must be in the first degree of relationship with the first heir as the word degree is used in Arts. 963, 964 and 966. The second heir must be the child or parent of the first heir. (Palacios v. Ramirez, 111 SCRA 304) Note: Fideicommissary substitution cannot burden the legitime. (Art. 864) Fideicommissary substitution must be express to be valid. (Art. 865) The second heir inherits directly from the testator, not from the first. (Art. 866) 18. Explain the doctrine of Unintended Consequence? (Art. 902 in relation to Art. 992) The iron curtain which prohibits the illegitimate child from inheriting from the legitimate relatives of his father. If there is an illegitimate child of a legitimate decedent, he has no right of inheritance. But if there is an illegitimate child of an illegitimate decedent, he can represent himself as to his inheritance. This is the doctrine of unintended consequence. (Dela Merced v. Dela Merced) 19. When is there a right of accretion? The right of accretion happens if there is repudiation, in case of predecease if representation does not happen; in incapacity or unworthiness if representation does not take place (Arts. 1015-1018) If what is left is the free portion, accretion occurs among the compulsory heirs when left to two or more of them, or to any one of them and a stranger. If what is left is the legitime, or if repudiated, accretion does not arise. Heirs inherit in their own right. OBLIGATIONS AND CONTRACTS 20. Does the obligor incur liability in case of fortuitous event? It depends. The fortuitous event must be the proximate and only cause to exempt the obligor from liability. But if coupled with negligence, delay, etc., there is liability. The act of God becomes humanized. (NPC cases) 21. When can the court reduce the penalty stated in a penal clause? The court can reduce the penalty if it is iniquitous or unconscionable, and when the principal obligation has been partly or irregularly complied with by the debtor. (Art. 1229, Co v. Court of Appeals). But it can be done only while the contract is still the subject of litigation, not when it is the subject of a judgment that has already become final and executory. Go v. Court of Appeals: Rental was P6,000.00. The penalty agreed upon was P30,000.00 per month. It was reduced because it was unreasonable, iniquitous and unconscionable. 22. When is there dacion en pago? If a property is delivered as a mode of payment in lieu of cash with the consent of the creditor, there being no prior declaration of insolvency and no encumbrance over the property, there is dacion en pago. But if delivered to the creditor for him to sell and apply the proceeds to the obligation, then there is no dacion en pago. There is agency. (Lim Tay case) 23. Is a contract of mutuum perfected if a check is given as evidence of a loan? How about if a person agrees to lend money to another at a future time? (*Arts. 1315;1316;1318;1319) If a check is given as evidence of a loan, there is not contract of mutuum yet that is perfected. If a person agrees to lend money to another at a future time, there is no perfected contract of mutuum yet. If a contract is at all perfected, it is only a consensual contract to lend money. In both cases, for as long as the proceeds of the loans have not yet been delivered to the debtor, like the encashment of the check, there is no perfected contract of mutuum. (BPI case; Naguiat case) Notes: - If there is a mere offer without acceptance of the offer, there is no perfection of the contract. (Insular Life Assurance Corporation case) - If there is an offer to a person present, the acceptance must be immediate. If there is delay, there is no meeting of the minds. It can be withdrawn at anytime. The failure to immediately accept it is equivalent to counter-offer. (Malbarosa case) - The offer and acceptance must be exactly similar, otherwise, if there is variation of the acceptance, there is no meeting of the minds. (ABS-CBN case)

24. Does the registration of a parcel of land bought by a parent in the name of her son give rise to a presumption of trust? No. If one sells a property not his own and acquires a title over it later, he cannot invoke his own title as against the buyer from him because of the principle of estoppel. (Martin v. Reyes, Buction v. Gabar) SALES AND LEASE 25. Are the remedies of an unpaid seller under Art. 1484 NCC cumulative? NO. They are alternative. The reason is based on solutio indebiti. Once there is foreclosure of the mortgage over the thing, there is no other remedy because of the Recto Law which totally prohibits recovery of the unpaid balance. If it is not foreclosed, but an action for replevin is resorted to, and the sale is not going to fully satisfy the obligation; then the plaintiff can even attach or levy upon other properties of the defendant. If it is a loan secured by a mortgage and there is foreclosure, then, there can be recovery of the unpaid balance (Arts. 1484, 1485, 1486, NCC). 26. When is there double sale? There is double sale if the owner sells it twice or several times. If the sale is made by several persons, no double sale (Consolidated Rural Bank of Cagayan Valley, Inc. vs. CA; Art. 1544, NCC) Even if usufruct is annotated at the back of the title, the buyer is still a buyer in good faith. It is not an encumbrance (Hernandez vs. CA). If there is a notice of mortgage, the buyer cannot be a buyer in good faith (Gabriel vs. Mabanta, Mar. 26, 2003). A registered writ of attachment is more superior to an unregistered sale (Valderiso vs. Demaleivo). The law on double sale does not apply to an unregistered land because the acquisition is subject to a better or more superior right (Radiowealth Finance Corp. vs. Panlilio). 27. In case of non-payment in a contract of sale on installment, can the buyer ask for an extension of time to pay? The moment a notice of rescission by notarial act is given, the buyer cannot ask for extension to pay. But if a mere letter is sent, he can ask for extension to pay (Laforteza vs. Machuca, June 16, 2000). But a judicial or notarial rescission would be enough (Iringan vs. CA, Sept. 26, 2001; Art. 1592, NCC). 28. Can a lessee be a buyer in good faith? NO. A lessee is always a buyer in bad faith. If the lessor appropriates the improvement made made by the lessee, the latter is entitled to 50% compensation. The reason is to prevent him from imprisoning out the lessor (Recaza vs. Susana Realty). But the lessee has no right of retention (Resusia vs. CA; Chua vs. CA). The mere expectancy of becoming a owner because of the promise to sell or to donate made in a contract of lease does not make the lessee a builder in good faith for purposes of Art. 448 (Labido; Benitez cases; Art. 1678, NCC). 29. What are the effects of an impliedly renewed contract of lease? It does not mean that if there is an impliedly renewed contract, all the terms and conditions are renewed. Only those that are germane to possession are impliedly renewed. The original period is not likewise renewed. The period of the impliedly renewed contract is dependent upon the manner of payment (Chua vs. CA; Art. 1670, NCC). Requisites of Tacita Reconduccion (tacit renewal of a contract of lease): a) That the contract of lease should have ended; b) That the lessee should have continued enjoying the thing leased for 15 days; c) That such continued enjoyment should be with the acquiescence of the lessor; d) That a notice to the contrary by either party should not have been previously given; and e) That there should have been no express contract entered into by lessor and lessee after the old contract had ended. If there is a demand to increase rents but the lessee does not agree, there is no impliedly renewed contract because such demand is equivalent to a demand to vacate (Arevalo Ang Gomez Corp. case) PARTNERSHIP AND AGENCY 30. What is meant by the principle of delectus personae in partnership relations? This refers to the rule which is inherent in every partnership that no one can become a member of the partnership association without the consent of all the partners. Consequently, even if a partner will associate another person in his share in the partnership, the associate shall not be admitted into the partnership without the consent of all the partners, even if the partner having an associate should be a manager (Art. 1804, NCC). 31. What is the nature of the liability of the partners and the partnership? The nature of their liability is basically joint. There is no presumption of solidary liability except under Arts. 1822 and 1823, NCC.

32. What are the effects of the agents acts on the principal? If agent acts WITHIN the scope of his authority, he binds the principal. If the agent acts OUTSIDE the scope of his authority, the contract is unenforceable but can be ratified. If agent acts under APPARENT authority, the principal cannot question it. He is solidarily bound. If agent acts for and in his behalf only, agent does not bind principal. If a corporation knowingly prevents its officers, or nay agent, to perform acts within the scope of an apparent authority, holding him out to the public as possessing powers to do so, the corporation will, as against any person who has dealt in good faith with the corporation thru such agent be estopped from denying such authority (BPI vs. First Metro Investment Corp., May 21, 2004). The reason is that corporate transactions would speedily come to a standstill were every person dealing with a corporation held duty-bound to disbelieve every act of its responsible officers, no matter how regular they should appear (Francisco vs. GSIS, 117 SCRA 587). 33. What is the obligation of a third person dealing with one who claims to be an agent? Such person must investigate. Otherwise, he acts at his own peril. He then suffers his own losses because of his own negligence (Purefoods Corp. vs. CA). It is a well-settled rule that persons dealing with an agent are bound at their peril, if they would hold the principal liable, to ascertain not only the fact of agency, but also the nature and extent of authority and in case either is controverted, the burden of proof is upon them to establish it (Yu vs. Pan American Airways, 38 PHIL 453). The basis of agency is representation. A person who fails to inquire into the authority of the agent is chargeable with knowledge of the agents authority and his ignorance of that authority will not be an excuse (Bacaltos Coal Mines vs. CA, 245 SCRA 460; Art. 1902, NCC). 34. What are the modes of extinguishment of agency? 1. By its revocation; 2. By the withdrawal of the agent; 3. By the death, civil interdiction, insanity or insolvency of the principal or of the agent; 4. By the dissolution of the firm or corporation which entrusted or accepted the agency; 5. By the accomplishment of the object or purpose of the agency; 6. By the expiration of the period for which the agency is constituted (Art. 1919, NCC). 35. What are the instances when an agency cannot be revoked? a) If a bilateral contract depends on it; b) If it is a means of fulfilling an obligation already contracted; c) If a partner is appointed manager of a partnership in the contract of partnership and his removal from the management is unjustifiable (Art. 1927, NCC).

36. When is an agency coupled with an interest? An agency is coupled with an interest if it is established for the mutual benefit of the principal and the agent or for the interest of the principal and of the third person, and it cannot be revoked for as long as the interest of the agent or of a third person subsists. In an agency coupled with an interest, the agents interest is in the subject matter of the power conferred and not merely an interest in the exercise of the power because it entitles him to compensation (Lim vs. Saban, Dec. 16, 2004). LOAN 37. If a person asks for cash advance and he does not liquidate, can he be sued for estafa? NO. The cash advance is a form of a loan. It is not kept in the form of a trust (Kim vs. People, Jan. 1, 1991). If a person withdraws the cash equivalent of a check against uncollected deposit, can he be sued for estafa? NO. It is a perfected contract of mutuum (People vs. Ong, Dec. 20, 1991). A contract of mutuum is perfected only upon delivery of the proceeds of the loan. If a check is issued, it is not yet a perfected contract of mutuum. If encashed, it is perfected (Naguiat vs. CA). If a person agrees to lend money to another, is there a perfected contract of mutuum? NO. It is only a consensual contract to lend money (BPI case). 38. Cases on Interest: Medel vs. CA 66% interest. It was reduced because it was unreasonable, iniquitous, and shocking to the conscience of the court. Same rule was applied in Solangon vs. CA 72%; Cuaton vs. CA 120%; Imperial vs. Jaucian 192%. But in Sps. Pascual vs. Ramos - 84% interest was not reduced because it was not raised in the trial court. It was raised for the first time in the SC. Such a defense was considered waived. The Court said that it cannot unilaterally reduce the interest

agreed upon. Otherwise, it would be violative of the principle of mutuality of contract, that it would be writing the terms of the contract for the parties. When is legal interest imposed at 6% and 12%? If there is an award of a sum of money but in the form of damages, the interest is 6%. But from the time of the finality of the judgment up to the time of payment, it becomes a forbearance of money, it earns 12% (Eastern Shipping Lines vs. CA; Ag & P of Manila case; RCBC case; Vicente vs. Planters Dev. Bank, Jan. 25, 2003). In BSP vs. Sta. Maria, Jan. 13, 2003, where there was supply of labor and materials and a judgment relative thereto, the interest is 6%. The reason is that it is not a forbearance of money. If there is no agreement as to interest 12% (Commonwealth Inc. vs. CA, April 29, 2004). The interest is computed from the time of extrajudicial demand pursuant to Art. 1169, NCC. DEPOSIT 39. What are the rules on the liability of hotelkeepers or innkeepers for the deposit of goods in their hotel or inn? Whenever there is a guest in a hotel, and the guest is deprived of his things even if it was due to the acts of the employees of the hotelkeeper, the latter is liable except if there is a fortuitous event or force majeure. There is force majeure if there is a group of armed men who broke into the room with the use of force (Arts. 1998-2004, NCC). This is likened to the liability of a common carrier with respect to baggage (De Guzman vs. CA), where the baggage is placed at a proper compartment of a public conveyance, and there is loss, the common carrier is liable except if there is force majeure (Art. 1754, NCC). If there is loss of things belonging to a guest inside the safety deposit box, that is the responsibility of the hotelkeeper, especially if he has been remiss in complying with his duties. He cannot free himself by posting notices to the effect that he is not liable for the article brought by the guest. Any such stipulation is void (Art. 2003, NCC). The reason is that hotel business like a common carriers business is imbued with public interest. They are bound to protect not only heir guests but also their personal belongings. This twin duty constitutes the essence of the business. The law does not allow such duty to be negated or diluted by any contract (YHT Realty Corp. vs. CA, Feb. 17, 2005). COMPROMISE 40. What is the effect of a compromise upon the parties? A compromise partakes of the nature of a judgment. The aggrieved party can, in case of violation, execute it. But he can also abandon the compromise and insist on the original claim (Chavez vs. CA; Art. 2037; 2041, NCC). 41. What are the instances where the defense of the benefit of excussion is not proper? a. If the guarantor has expressly renounced it; b. If he has bound himself solidarily with the debtor; c. In case of insolvency of the debtor; d. When he has absconded, or cannot be sued within the Philippines unless he has left a manager or representative; e. If it may presumed that an execution on the property of the principla debtor would not result in the satisfaction of the obligation (Art. 2059, NCC) The defense of the benefit of excussion can be invoked by the guarantor. This is not a valid defense of the surety. It may be a total or partial defense. 42. Distinguish between Contract of indemnity against loss and Contract of indemnity against liability. In the first, the surety has to pay first the creditor before having recourse against the debtor; in the second, the surety does not need to pay the creditor before he has recourse against the debtor (Rep-Glass Corp. vs. Qua, July 30, 2004; Associated Insurance and Surety Corp. vs. Chua, 7 SCRA 52). 43. Can there be automatic appropriation of the object pledged? NO. The provision on automatic sale is pactum commissorium. But if the contract provides that the debtor will sell; will assign the object in case of non-payment of the obligation, there is no automatic appropriation, hence, no pactum commissorium. If something has yet to be done, there is no pactum commissorium (Uy vs. CA). If there is an equitable mortgage, can the debtor consolidate his ownership if the debtor does not pay? NO. The proper remedy is foreclosure. This is so because the creditor cannot appropriate the thing given by way of pledge or mortgage (Vasquez vs. CA, Feb. 4, 2005; Art. 2088, NCC). Does the law on pledge apply to the law on mortgage? YES if there is no inconsistency between the two laws (Dameca Wood Treatment vs. CA).

44. What is the proper form of a contract of antichresis? It must be in writing, and must contain the principal and interest. Otherwise, it is void. This is an exception to the rule under Art. 1356 that contract shall be obligatory in whatever form they may have been entered into, provided all the essential requisites for their validity are present (Art. 2134, NCC). 45. When shall the officious manager be liable for any fortuitous event? a. If he undertakes risky operations which the owner was not accustomed to embark; b. If he has preferred his own interest to that of the owner c. If he fails to return the property or business after demand by the owner; d. If he assumed the management in bad faith (Art. 2147, NCC). Except when the management was assumed to save the property or business from imminent danger, the officious manager shall be liable for fortuitous events: a) If he is manifestly unfit to carry on the management b) If by his intervention he prevented a more competent person from taking up the management (Art. 2148, NCC). TORTS AND DAMAGES 46. What is the nature of the liability of a registered owner of a vehicle for damages? It is primary in nature. The registered owner of a vehicle is liable for damages regardless of whether the driver is authorized or not (Villanueva vs. Domingo, Sept. 20, 2004; Basilio vs. CA, Jan. 18, 2000) What is the nature of the liability of the employer for the acts of his employees? The liability of the employer and employee is solidary. Even if the employee is not served with summons, trial can be held. If the employer cannot prove the diligence of a good father of a family, he is solidarily liable (Cerego vs. Tuazon, Mar. 23, 2004; Sps. Hernandez vs. Sps. Dolor, July 30, 2004). Is the employer liable if the employee is not performing his task at the time of the accident? NO, because the act was done beyond company time and premises. However, if the employee is running an errand for the employer, the latter shall be liable (Castilex Industrial Corp. vs. Vasquez, Dec. 21, 1999). Is an employer liable for a defamatory statement made by the employee within the scope of his employment? YES, the employer is solidarily liable with the employee. Joint tortfeasors are jointly and severally liable for the tort they commit (Filipinas Broadcasting Network, Inc. vs. Ago Medical and Educational Center-Bicol Christian College of Medicine, Jan. 17, 2005) 47. What is the doctrine of volenti non fit injuria? To which a person assents is not esteemed in law as an injury. This refers to a self-inflicted injury or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is negligent in doing so. Art. 19, NCC commonly known as the principle of abuse of right, is not a panacea for all human hurts and social grievances. When a right is exercised in a manner which does not conform with the standards in Art. 19 and result in damage to another, a legal wrong is thereby committed for which the wrongdoer must e responsible. The object of Art. 19 is to set certain standards which must be observed not only in the performance of duty but even in the exercise of a right (Nikko Hotel Manila Garden vs. Roberto Reyes, Feb. 28, 2005). 48. May compensatory damages be awarded based on testimony? NO. Documentary evidence should be presented to substantiate the claim for damages for the loss of earning capacity. There are exceptions, like: a) When the deceased was employed as a daily wage worker, earning less than the minimum wage under the current laws; b) When the deceased is self-employed earning less than the minimum wage under the current labor laws. If the heirs cannot be awarded compensatory damages, they may be entitled to temperate or moderate damages which are more than nominal but less than compensatory if the court finds that some pecuniary loss has been suffered but its amount cannot be proved, especially so that the fact of loss of earnings has been established (Victory Liner Inc. vs. Ammad, Nov. 25, 2004). 49. Can there be recovery of damages for loss or impairment of earning capacity in cases of temporary or permanent personal injury? YES. Such damages covers the loss sustained by the dependents or heirs of the deceased, consisting of the support they would have received from him had he not died. The necessary expenses that he used for his own needs have to be deducted from the gross income (Magbanua vs. Tabusares, June 4, 2004; Art. 2205, NCC).

What if the person died at the age of 100? The formula for loss of earning capacity remains the same (Smith Bell Dodwell Shipping Agency vs. Borja, June 10, 2002). Otherwise, the formula or basis in computing the earning capacity will never become final, being always subject to the eventuality of death. The computation should not change. 50. The driver of a jeep suddenly turned left and collided with a motorcycle driven by X, resulting in the death of the latter. What is the proximate cause of the mishap? The abrupt and sudden left turn by the driver of a jeep without first establishing his right of way was the proximate cause of the mishap. If X is guilty of contributory negligence, the award of damages may be reduced (Lambert vs. Heirs of Castillon, Feb. 23, 2005). 51. Can there be liability for tort if there is a contract? Generally, NO. The exception is when there is an act that violates the contract and the act is independent of the contract (Air France vs. Carrascoso, Sept. 23, 1966) LAND TITLES AND DEEDS By. Atty. Ciriaco Cruz 52. One of the modes of acquiring title is reclamation of the land of the public domain, who may undertake reclamation projects? Under the Local Government Code, local governments are allowed to undertake reclamation projects. However, this was revoked by PD 3-A to the end that only the national government is exclusively authorized to engaged in reclamation projects. PD 3-A returned to the national government the power to reclaim areas under water whether foreshore or inland (RP vs Pasay City, 299 SCRA 199) 53. What is the rationale for PD 3-A allowing only the national government to exclusively undertake reclamation projects? Based on the Regalian Doctrine, the first right to reclaim submerged land is the function of the sovereign who owns title to all the lands and waters of the public domain and unless the State (through Congress) grants this right, it is only the national government that is capable of reclamation works and can assert title to reclaimed lands. (RP vs Pasay City, 299 SCRA 199) 54. What is the main difference in the disposition of lands of the public domain by the Public Estates Authority (PEA) and the Bases Concession Development Authority (BCDA)? While the PEA is the control implementing agency tasked to undertake reclamation projects nationwide, BCDA is an entirely different government entity which is authorized by law to sell specific government lands that have long been declared by presidential proclamation as military reservation for use of the AFP under the DND. On the other hand, the PEA as the central implementing agency tasked to undertake reclamation projects nationwide, took the place of DENR as the government agency charged with leasing or selling all reclaimed lands in the same manner that such land would have been public lands under the DENR. BCDAs mandate is specific and limited in area, that is, to sell specific government lands that have long been declared by Presidential Proclamation as military reservation, while PEAs mandate is general and nationwide. Under Executive Order 525, PEA holds reclaimed public lands as a government agency primarily responsible for integrating, directing and coordinating all reclamation projects for and in behalf of the national government, whereas under the BCDA law (RA 7227), there is no need for reclassification of lands to patrimonial property so as to sell them to private persons. (Chavez vs PEA, 403 SCRA 1) 55. What is the required period of possession and occupation of land of the public domain to enable an applicant for registration of title to said land, to succeed in his application? Since June 12, 1945 or earlier. (Section 12, PD 1529; RP vs Doldol, 295 SCRA 359; RP vs Lao, 405 SCRA 291) 56. When may a forged document be a root of valid title? If title is already transferred from the name of the owner to the name of the forger or that indicated by said forger (Fule vs Legare, 7 SCRA; Solival vs Frncisco 170 SCRA) 57. What cause of action should be taken by an oppositor in the land registration proceedings who was erroneously declared in default when he failed to appear on the date of initial hearing but had earlier filed an opposition? Should a motion to lift the order of general default in so far as he is concerned fail, he may file a petition for certiorari, instead of an appeal. (Omico Mining vs Villejos, 63 SCRA 300) 58. May an alien acquire lands and seek registration thereof/ Yes. RA 8179 allows natural born Filipinos who lost their citizenship to acquire a maximum of 5,000 square meters urban land and not more than 3 hectares of rural land.

10

59. What is the present time frame to seek judicial confirmation of title or apply for administrative legalization of lands of the public domain? Up to December 31, 2020 pursuant to RA 9176. 60. What is the Indigenous Peoples Rights Act (IPRA)? RA 8371 refers to all areas of land generally occupied, possessed or utilized by individuals, families and clans of indigenous people under claims of individual or traditional group ownership. This includes ancestral domains conspiring lands, occupied and utilized by indigenous people uder claim of ownership. 61. What is the present status of this law? The law is being implemented by the National Commission on Indigenous Peoples operating under the office of the President. Earlier, the constitutionality of the law was brought to the Supreme Court but the votes en banc were equally divided, hence the majority vote was not obtained and upon redeliberation. The voting remanded the same necessitating the dismissal of the petition impugning the constitutionality of the law. (Cruz, et al vs Secretary of DENR, et al, 347 SCRA 128)

11