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Bar Operations 2008


Bar Operations Head │ Arianne Reyes

Academics Head │ Henry Aguda

Ryan Balisacan

Subject Committee │ Dianne Ducepec * Michelle Dy *

Jeifan Dizon * Erwin Arandia *
Tin Rondario * Margaret Ching*
Kitchie Piñgol * Gem Hirang *
Lora Inguito * Quino Reyes *
Easter Castro * Nino Gonzales *
Peach Raymundo

Information Management Chino Baybay [Head] * Simoun

Salinas [Deputy] * Rania Joya
Committee │ [Design & Lay-out] * Ludee
Pulido [Documentations] * Linus
Madamba * Des Mayoralgo *
Jillian De Dumo * Mike Ocampo
* Abel Maglanque * Edan Marri
R. Cañete

Persons and Family Relations


I. Civil Personality 3
II. Citizenship and Domicile 6
III. Marriage 6
IV. Void Marriages 8
V. Voidable Marriages 11
VI. Legal Separation 14
VII. Rights and Obligations Between Husband and Wife 16
VIII. Property Relations Between Spouses 16
IX. The Family 25
X. Paternity and Filiation 26
XI. Adoption 29
XII. Support 32
XIII. Parental Authority 32
XIV. Funerals 34

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The effect of death upon the rights and
obligations of the deceased is determined by
law, by contract and by will (Art 42, par. 2).
Person - any being, natural (Art. 40, CC) or
Doubt as to the order of death:
juridical (Art. 42, CC), susceptible to legal
If they are called to succeed each other,
rights and obligations, and can be a subject of
whoever alleges the death of one prior to the
legal relations.
other, shall prove the same. In the absence of
proof, it is presumed that they died at the
Kinds of Capacity: (Art. 37, CC)
same time, and there will be no transmission
of rights from one to the other. (Art. 43, CC)
Juridical Capacity Capacity to Act
Fitness to be the subject Power to do acts Joaquin v. Navarro
of legal relations. with legal effect 93 Phil 257 (1953)
Inherent in every Acquired and The rule on Art. 43 was not applied in
natural person may be lost determining whether the mother or the son
Subject to died first. There were eyewitnesses who can
Lost only through death certain give evidence as to who died first. It is only
restrictions applied when it is impossible to determine
Inherent and who died first that the presumption applies.
Conditional and
ineffaceable attribute of
variable, it is
man; attaches to him by
acquired and
the mere fact of his 2. Juridical persons
may be lost.
being a man.
Kinds of juridical persons: (Art. 44, CC)

Kinds of persons: 1. The State and its political subdivisions;

2. Other corporations, institutions and
1. Natural persons entities for public interest or purpose,
created by law;
General Rule: 3. Corporations, partnerships and
Birth determines personality (Art 40). Death associations for private interest or
extinguishes civil personality (Art 42). purpose to which the law grants a
juridical personality.
A conceived child is considered born for all
purposes that are FAVORABLE to it, provided Governing laws:
it be born later (Art 40, 2nd clause) with the
following circumstances: Juridical Person Governing law
State Constitution
a. It is alive at the time it is completely Political Charter
delivered from the mother's womb. subdivision
b. But if the fetus had an intra-uterine life Public corporation Charter
of less than seven months, it should Private corporation Corporation Code,
survive for at least 24 hours after its Articles of
complete delivery. (Art. 41, CC) Incorporation and By-
Test of life: complete respiration.
Partnerships Stipulations of the
parties and
Burden of proof:
suppletorily by the
The presumption is that it was alive and the
general provisions on
burden of proof is on the party who alleges
the contrary.
Juridical persons may acquire and possess
Geluz v. CA
property of all kinds, incur obligations, and
G.R. No. 16439 (1961)
bring civil or criminal actions (Art. 46, CC).
An unborn fetus is not endowed with
personality. Parents of an unborn fetus
cannot sue for damages on its behalf as the
fetus, having no personality, does not have
rights which it can pass on. The family,
however, can recover moral damages.

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B. CAPACITY TO ACT AND Effect on Marriage:

RESTRICTIONS THEREON - Marriage contracted by any minor is
Presumption of Capacity:
Effect on Crimes:
Standard Oil Co. v. Arenas - 9 years and below= EXEMPT from
19 Phil 363 (1911) criminal liability. (Art. 12, RPC)
To prove insanity, it has to be proven that: - Over 9 years and under 15 = EXEMPT,
(1) The monomania of wealth was habitual (Art. 12, RPC)
and that it contributed to mental perturbation; - Unless he acted with
(2) that the act was caused by the discernment = Penalty is
monomania itself; (3) that the monomania lowered by at least 2 degrees.
existed at the moment he signed the surety. (Art. 68, RPC)
Capacity to act is presumed unless previously - 15 years and below 18 = MITIGATING
declared incapable by the court. circumstance. (Art. 13, RPC)

Restrictions/limitations on capacity to
act: (Art. 38, 39, CC,) 2. Insanity

1. Minority Effect on Contracts:

2. Insanity or imbecility - Insane persons cannot give consent to a
3. State of being deaf-mute contract. (Art. 1327, CC)
4. Prodigality - Contracts entered into during a lucid
5. Civil interdiction interval are valid. (Art. 1328, CC)
6. Family relations - The incapacitated person is not obliged
7. Alienage to make any restitution except insofar as
8. Absence he has been benefited. (Art. 1399, CC)
9. Married women (Art. 2259, CC)
Effect on Crimes:
- Insane persons are EXEMPT from
1. Minority criminal liability unless they acted during
a lucid interval. (Art. 12, RPC)
RA 6809 – Majority commences at the age of
18 years. Effect on Marriage:
- A marriage is VOIDABLE if either party
Effect on Contracts: was of unsound mind at the time of the
- Minors cannot give consent to a marriage.
contract. (Art. 1327, CC). - Except: When the insane person, after
- The parent’s consent is binding on the coming to reason, freely cohabited with
minor. (Shields v. Gross, 58 NY 2d 338) the other.
- If one of the parties to a contract is a
minor, the contract is voidable. (Art. Dumaguin v. Reynolds
1390, CC) 10 Phil. 381 (1952)
- If both parties are minors, the contract The presumption of mental incapacity in a
is unenforceable. (Art. 1403, CC) person under guardianship for mental
- Persons who are capable cannot allege derangement may be rebutted by evidence.
the incapacity of the other party. (Art. That person may enter a valid contract
1379, CC) provided it is proven—
- The minor is not obliged to make 1. That he was not insane at the time he
restitution except insofar as he has been entered into the contract, and
benefited. (Art. 1399, CC) 2. That his mental defect did not affect
- If there is active representation by the his capacity to appreciate the meaning
minors that they are of legal age, the and significance of the transaction.
contract is valid. (Mercado v. Espiritu, 37
Phil. 215)
- If there is only passive representation, 3. State of being deaf-mute
the contract is not valid. The fraud must
be actual and not constructive. Mere - Deaf-mutes cannot give consent to a
silence does not constitute fraud. contract. (Art. 1327, CC)
However, the minors must make - If the testator is a deaf-mute, he must
restitution to the extent they profited personally read the will. If unable to
from the money received. (Braganza v. read, he must designate 2 persons to
de Villa Abrille, 105 Phil. 456) read it and communicate to him the
contents thereof. (Art. 807, CC)
- Deaf-mutes can’t be witnesses to a will.
(Art. 820, CC)

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8. Absence
4. Prodigality
General Rule:
Martinez v. Martinez Absence of 7 years + unknown whether the
1 Phil. 182 absentee still leaves = presumed dead for all
To make a person legally unfit to run his own purposes.
affairs, his acts of prodigality must show:
1. A morbid mind, and Except:
2. A tendency to spend or waste the For the purpose of opening his succession, in
estate so as to expose the family to which case, the absentee is presumed dead
want or deprive the forced heirs of after 10 years. If disappeared after the age
their inheritance. of 75 years, 5 years will be sufficient. (Art.
390, CC)

5. Civil Interdiction Rule:

The following are presumed dead for ALL
Civil interdiction deprives the offender during purposes, including the division of estate
the time of his sentence of the following among the heirs: (VA-A-D)
rights— (PA-G-MA-MD)
1. Parental authority, 1. A person on board a vessel during a
2. Guardianship as to the person or sea voyage, or an aeroplane which is
property of any ward, missing, who has not been heard of for
3. Marital authority, 4 years since the loss of the vessel or
4. Management his property aeroplane;
5. Disposition of his property (Art. 34, 2. A person in the armed forces who has
RPC) taken part in war, and has been
missing for 4 years;
3. A person who has been in danger of
6. Family Relations death under other circumstances and
existence has not been known for 4
Effect on Crimes: years. (Art. 391, CC)
- No criminal liability if one acts in defense
of spouse, ascendants, descendants, Administration and enjoyment of
brothers or sisters, relatives by affinity conjugal partnership where one spouse is
and consanguinity within the 4th civil absent:
degree provided the requisites in Art. 11
and 12 of RPC are followed. - The other spouse may assume sole
- Mitigating circumstance: If one acts in powers of administration.
immediate vindication of a grave offense - These powers to NOT include disposition
committed against his spouse, or encumbrance without court authority
ascendants, or relatives by affinity or written consent of the other spouse.
within the same degrees. (Art. 13, RPC) - Effect of want of authority/consent:
VOID disposition or encumbrance.
Effect on Marriage: - BUT, the transaction is construed as a
- Incestuous and void – Marriages CONTINUING OFFER on the part of the
between ascendants and descendants; consenting spouse and the 3rd person.
between brothers and sisters, whether - It may be perfected as a binding
full or half blood. (Art. 37, FC) contract upon the acceptance by the
other spouse or authorization by the
Effect on Prescription: court before the offer is withdrawn by
- Prescription does not run between either or both offerors. (Art. 124, FC)
husband and wife. (Art. 1109, CC)

Effect on Property Relations: 9. Married Women

- Husband and wife cannot sell property to
each other except: General Rule:
- When separation of property A married woman may not sue or be sued
was agreed in the marriage alone without joining her husband.
- When there has been a judicial Except: (Rule 3, Sec. 4, ROC)
separation of property. (Art. 1. When they are judicially separated.
1490, CC) 2. If they have in fact been separated for
at least 1 year;
7. Alienage 3. When there is a separation of property
agreed upon in the marriage

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4. If the administration of all the property  Domicile of parents of a person at

in the marriage has been transferred to the time he was born.
her; 2. Domicile of Choice
5. When the litigation is between husband  Domicile chosen by a person,
and wife; changing his domicile of origin.
6. If the suit concerns her paraphernal  A 3rd requisite is necessary –
property; intention not to return to one’s
7. When the action is upon the civil domicile as his permanent place.
liability arising from a criminal offense; 3. Domicile by Operation of Law (i.e.,
8. If the litigation is incidental to the Article 69, domicile of minor)
profession, occupation or business in
which she is engaged; Construction of “residence”:
9. In any of the civil action referred to in
Art. 25-35 CC. - Although “residence” and “domicile” are
10. In an action upon a quasi-delict. used interchangeably, they are NOT
synonymous in connection with
Note: In cases #7-9, the husband must be citizenship, jurisdiction, limitations,
joined as party defendant if Art. 163, par. 3 school privileges, probate and
applies. succession. (Uytengsu v. Republic,

II. CITIZENSHIP AND DOMICILE - As used in the Naturalization Law,

residence means actual and
substantial residence, not domicile.
(Uytengsu v. Republic, 1954)
- HOWEVER, in election law, residence is
1. Those who are citizens of the synonymous with domicile.
Philippines at the time of the adoption (Romualdez-Marcos v. Comelec, 1995)
of the 1987 Constitution;
2. Those whose fathers or mothers are
citizens of the Philippines;
3. Those born before January 17, 1973,
of Filipino mothers, who elect
Philippine citizenship upon reaching the A. DEFINITION AND NATURE OF
age of majority; and MARRIAGE
4. Those who are naturalized in
accordance with law. (Art IV, §1, 1987 Definition of Marriage:
Consti.) 1. A special contract
2. of permanent union
B. DOMICILE 3. between a man and a woman
4. entered into in accordance with law
For Natural Persons: 5. for the establishment of conjugal and
The place of their habitual residence (Art. 50, family life.
CC). 6. It is the foundation of the family and
7. an inviolable social institution
For Juridical Persons: 8. whose nature, consequences, and
The place where their legal representation is incidents are governed by law and not
established, or where they exercise their subject to stipulation,
primary functions, unless there is a law or 9. except that marriage settlements may fix
other provision that fixes the domicile (Art. the property relations during the marriage
51, CC). within the limits provided by this Code.
(Art. 1, FC)
Domicile vs. Residence:
While domicile is permanent (there is intent to
remain), residence is temporary and may be Breach of promise to marry:
changed anytime (there is no necessary intent
to remain). Tanjanco v. CA
18 SCRA 994
Requisites of Domicile: Breach of promise to marry is not an
actionable wrong. The fact that the woman
1. Physical Presence agreed to have sexual intercourse for a year
2. Intent to remain permanently does not constitute seduction but mutual
Kinds of Domicile:
Wassmer v. Velez
1. Domicile of Origin 12 SCRA 648

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While mere breach is not an actionable wrong, contracting parties having good faith that he
Velez is still liable under Art. 21 of the Civil had authority to do so (Art 35, par. 2)
Code which provides that when a person
willfully causes loss or injury contrary to good
custom, he shall compensate the latter for C. FORMAL REQUISITES OF MARRIAGE
damages (costs of the wedding preparations). (SO-ML-MC)
It is the abuse of right which can be a cause
for moral or material damages. 1. Authority of the solemnizing officer;
2. A valid marriage license;
Trinidad v. CA 3. Marriage ceremony (Art 3, FC)
289 SCRA 188 (1998)
Absence of a marriage certificate is not proof
of absence of marriage. To prove the fact of a. Authority of solemnizing officer
marriage, the following would constitute
competent evidence: (1) the testimony of Who are authorized to solemnize
witnesses to matrimony; (2) the couple’s marriages? (JPSMCM)
public cohabitation; and (3) birth and 1. Any incumbent member of the judiciary
baptismal certificates of children born during within the court’s jurisdiction (Art. 7, par.
the union. 1);
2. Any priest, rabbi, imam, or minister of any
Presumption of marriage: church or religious sect
In case of doubt, all presumptions favor the a. Must be authorized by his church or
solidarity of the family. Thus, every religious sect.
intendment of law or facts leans towards the b. Must be registered with the civil
validity of marriage, the indissolubility of the registrar general.
marriage bonds, etc. (Art. 221, FC) c. Must act within the limits of the
written authority granted by the
d. At least one of the parties must be a
1. Legal Capacity of contracting parties member of the church or religious
who must be Male and Female; sect to which the solemnizing officer
2. Consent freely given in the presence of belongs. (Art. 7, par. 2)
the solemnizing officer. (Art. 2, FC) 3. Ship captain or airplane chief in the
following cases;
Jones v. Hallahan a. Where one or both of the parties are
501 S.W. 2d 588 in articulo mortis,
A license to enter into a same-sex marriage is b. While the ship is at sea or
a nullity since the parties are incapable of c. While the plane is in flight, or
entering into a marriage as the term is d. At stopovers or ports of call (Art 7,
defined. Marriage is defined by law as one par. 3; Art 31, FC).
entered into by a man and a woman. 4. Any military commander of a unit to which
a chaplain is assigned, in the absence of
People v Santiago the latter (Art 7, par. 4 FC);
51 Phil 68 a. Can only solemnize marriages in
When a person only married another to avoid articulo mortis between persons
prosecution because he raped her the same within the zone of military operation,
morning, the marriage is void for absence of whether members of the armed
consent on the part of the rapist. It was a forces or civilians (Art 32, FC).
mere ruse for him to escape criminal liability. 5. Consul-general, consul, or vice consul (Art.
7, par. 5 FC)
a. Can solemnize marriages between
Effects of absence of and defect in the Filipino citizens abroad. The issuance
requisites of marriage: (Art. 4, FC) of the marriage license and the
duties of the local civil registrar shall
Absence Defect Irregularity also be performed by said consular
Essential Void* Voidable official. (Art. 10, FC)
Formal Void* No effect on 6. Mayors (LGC)
validity but
party b. Marriage License
will be Marriages exempt from marriage license
liable. requirement: (ARMC)
1. Marriage in articulo mortis (Art. 27, FC)
*Except when it is solemnized by an 2. Marriage in remote and inaccessible places
unauthorized person with either or both (Art. 28, FC)

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3. Marriages by Muslims and cultural 2. Marriage in a remote place in accordance

minorities. (Art. 33, FC) with Art. 29;
4. Marriage by parties with who have 3. Where both of the parties request the
cohabited for at least 5 years. (Art. 34, solemnizing officer in writing, in which
FC) case the marriage may be solemnized at a
house or place designated by then in a
Ninal v Badayog sworn statement.
GR 133778 (2000)
There must be no legal impediment during the
entire five or more years that the parties are D. MARRIAGES CELEBRATED ABROAD
living as husband and wife.
General Rule:
Things to do at the local civil registrar: Marriages solemnized outside the RP in
a) File an application of marriage license accordance with the law of the foreign country
at the proper local civil registrar. (Art. shall be valid in the Philippines (lex loci
11, FC) celebrationis). (Art. 26, FC)
b) Present birth or baptismal certificate.
(Art. 12, FC) Exceptions: (AgeBI53PIPP)
c) If aged 18-21 years, present parental
consent. (Art. 14, FC) 1. Marriage between persons below 18
d) If aged 21-25, present parental years old – Art. 35(1)
advice. (Art. 15, FC) 2. Bigamous or polygamous marriage –
e) If aged 18-25, present certificate of Art. 35(4)
marriage counseling from your priest. 3. Mistake in identity – Art. 35 (5)
(PD 965) 4. Marriages void under Article 53 – Art.
f) Pay the required fees. (Art 19, FC) 35 (6)
g) If foreigner, present certificate of 5. Psychological incapacity – Art. 36
legal capacity issued by diplomat or 6. Incestuous marriages – Art. 37
consular officials. (Art. 21, FC) 7. Marriage void for reasons of public
policy – Art. 38
c. Marriage Ceremony

There is no particular form or religious rite IV. VOID MARRIAGES

required by law. (Art. 6, FC)
Minimum requirements by law:
1. The contracting parties appear personally
a. Under Art. 35
before the solemnizing officer
1. Contracted by anyone below 18 years old,
2. They declare in the presence of at least
even with consent of parents
two witnesses of legal age,
2. Solemnized by anyone not authorized to
3. That they take each other as husband and
do so,
a. except when one or both parties
4. The declaration shall be contained in the
believe that the solemnizing officer
marriage certificate,
had authority to do so.
5. Which shall be signed by the contracting
3. There is no marriage license,
parties and their witnesses and attested
a. except in marriage under
by the solemnizing officer. (Art. 6, FC)
exceptional circumstances
4. It is bigamous or polygamous,
Note: In a marriage in articulo mortis, when
a. except when first spouse has been
one or both parties are unable to sign the
absent for four years, or two years
marriage certificate, it shall be sufficient for
under extraordinary circumstances,
one of the witnesses to write the name of said
and the remaining spouse has a
party, which shall be attested by the
well-founded belief that the absent
solemnizing officer. (Art 6, par. 2)
spouse is dead, and is judicially
declared presumptively dead. (Art.
Places where marriage may be
celebrated (CCO): (Art. 8, FC)
5. There is a mistake in identity of the other
contracting party.
General Rule:
6. The subsequent marriage is void under
1. Chambers of the judge or in open court;
Art. 53:
2. Church, chapel, or temple
a. Marriage is void when Art. 52 is
3. Office of the Consul-general, consul, or
not complied with: the following
vice-consul, as the case may be.
must be recorded in the
appropriate civil registry:
1. Marriage in articulo mortis;

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i. Judgment of annulment or Terre v. Terre

of absolute nullity of 211 SCRA 6
marriage; Parties are not allowed to assume that their
ii. Partition and distribution of marriage is void even if such is the fact. They
the properties of the must file an action for declaration of nullity
spouses under Art. 40 before they remarry.
iii. Delivery of presumptive
legitimes of the children. Atienza v. Brillantes
243 SCRA 32
b. Under Art. 36 Art. 40 is applicable to remarriages entered
7. Psychological incapacity of any contracting into after the effectivity of the Family Code,
party, at the time of the celebration of the regardless of the date of the first marriage.
marriage, to comply with the essential The Family Code retroacts to the extent that it
marital obligations. does not impair rights.

c. Under Art. 37 Domingo v. CA

(Incestuous Relationships) 226 SCRA 572 (1993)
8. Between ascendants and descendants of A marriage void for lack of marriage license
any degree, legitimate or illegitimate. still needs a judicial declaration of such fact
9. Between brothers and sisters, whether full even for a purpose OTHER than remarriage
or half-blood, legitimate or illegitimate. (e.g. liquidation, partition, distribution and
separation of property between spouses,
d. Under Art. 38 custody and support of children, and delivery
(For Reasons of Public Policy) of the latter’s presumptive legitime). Art. 40
10. Between collateral blood relatives, not mean that JDN can only be invoked for
legitimate or illegitimate, up to the fourth purposes of remarriage.
civil degree.
11. Between step-parents and step-children. PSYCHOLOGICAL INCAPACITY
12. Between parents-in-law and children-in- (Art. 36, FC)
13. Between adopting parent and adopted Chi Ming Tsoi v. CA
child. 266 SCRA 234 (1997)
14. Between the surviving spouse of the Psychological incapacity involves the
adopting parent and the adopted child. senseless, constant, and prolonged refusal to
15. Between the surviving spouse of the comply with the essential marital obligations.
adopted child and the adopter. Procreation is one of the essential marital
16. Between an adopted child and a legitimate obligations under the Family Code. The
child of the adopter. prolonged refusal of a spouse to have sex with
17. Between adopted children of the same his spouse, even though capable, is equivalent
adopter. to psychological incapacity.
18. Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own Santos v. CA
spouse. G.R. 112109 (1995)
Psychological incapacity under Art. 36, FC is
The following CAN marry each other: not meant to comprehend all possible cases of
1. Brother-in-law and sister-in-law psychoses. It should refer, rather, to no less
2. Stepbrother and stepsister than a mental (not physical) incapacity that
3. Guardian and ward causes a party to be truly incognitive of the
4. Adopted child and illegitimate child of basic marital covenants that concomitantly
the adopted must be assumed and discharged by the
parties to the marriage. Psychological
e. Under Art. 44 incapacity must be characterized by (a)
Subsequent marriage contracted under Art. 41 gravity, (b) juridical antecedence, and (c)
and both parties are in bad faith. incurability.

Declaration of nullity of marriage Carating-Siayngco v. Siayngco

- The action imprescriptible. (Art. 39, G.R. No. 158896 (2004)
FC) Sexual infidelity, per se, does not constitute
- For purposes of remarriage, the nullity psychological incapacity. It must be shown
of a previous marriage may be invoked that respondent’s unfaithfulness is a
solely on the basis of a final judicial manifestation of a disordered personality
declaration of nullity (JDN) of the which makes him completely unable to
previous marriage. (Art. 40, FC) discharge the essential obligations of the
marital state and not merely due to his ardent
wish to have a child of his own flesh and

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blood. Mere showing of irreconcilable 1. The appearance of the Solicitor General

differences and conflicting personalities does is no longer necessary.
not constitute psychological incapacity. 2. Expert opinion need not be alleged, as
long as the physical manifestations of
psychological incapacity at the time of
Republic v. Quintero-Hamano
celebration of marriage are alleged.
G.R. No. 149498 (2004)
In proving psychological incapacity, there
Tenebro v. CA
should be no distinction between an alien
G.R. No. 150758 (2004)
spouse and a Filipino spouse. We cannot be
The subsequent judicial declaration of nullity
lenient in the application of the rules merely
of marriage on the ground of psychological
because the spouse alleged to be
incapacity does not retroact to the date of the
psychologically incapacitated happens to be a
celebration of the marriage insofar as the
foreign national. The medical and clinical rules
Philippine penal laws are concerned.
to determine psychological incapacity were
formulated on the basis of studies of human
As such, an individual who contracts a second
behavior in general.
or subsequent marriage during the
subsistence of a valid marriage is criminally
Republic v. Molina
liable for bigamy, notwithstanding the
268 SCRA 198 (1997),
subsequent declaration that the second
Guidelines for the interpretation of Art. 36:
marriage is void ab initio on the ground of
1. The burden of proof to show the nullity of psychological incapacity.
the marriage belongs to the plaintiff.
2. The root cause of the psychological Buenaventura v. CA
incapacity must be: G.R. No. 127358 (2005)
By declaring the petitioner as psychologically
a. medically or clinically identified, incapacitated (hence beyond the control of the
b. alleged in the complaint, party because of an innate inability), the
c. sufficiently proven by the experts,* possibility of awarding moral damages on the
d. clearly explained in the decision. same set of facts was negated.
3. The incapacity must be proven to be
existing at “the time of the celebration” of The award of moral damages should be
the marriage. predicated, not on the mere act of entering
4. Such incapacity must also be shown to be into the marriage, but on specific evidence
medically or clinically permanent or that it was done deliberately and with malice
incurable. by a party who had knowledge of his or her
5. Such illness must be grave enough to disability and yet willfully concealed the same
bring about the disability of the party to
assume the essential obligations of
Mallion v. Alcantara
G.R. No. 141528
6. The essential marital obligations must be
Res judicata applies to a petition for nullity of
those embraced by Articles 68 up to 71 of
marriage due to lack of marriage license,
the Family Code as regards the husband
where a prior petition for nullity of marriage
and wife as well as Articles 220, 221, and
based on psychological incapacity had been
225 of the same Code in regard to parents
denied. There is only one cause of action for
and their children.
both petitions—the nullity of the marriage.
7. Interpretations given by the National
Appellate Matrimonial tribunal of the
Moreover, in the first case, petitioner
Catholic Church in the Philippines, should
impliedly conceded that the marriage was
be given great respect by our courts.
conduced in accordance with law, since he
8. The trial court must order the prosecuting
never raised the issue of lack of marriage
attorney or fiscal and the Solicitor General
license. Petitioner is now bound by this
to appear as counsel for the state.**
*NOTE HOWEVER, that in the later case of
Marcos v. Marcos (343 SCRA 755; 2000), it
was held that there is no need for the
respondent to be examined by an expert, as
the psychological incapacity may be
established by the totality of the evidence

** A.M. No. 02-11-10-SC (March 13, 2003)

made the ff. modifications to the Molina

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BIGAMOUS MARRIAGE (Art. 41, FC) Exception: Said second marriage is not
bigamous if the first marriage was void due to
2 Kinds of bigamous marriage: the fact that no marriage ceremony was
solemnized at all. Here, the parties merely
VOID VOIDABLE signed a marriage contract on their own. No
bigamous bigamous marriage semblance of marriage, no need for judicial
marriage declaration of nullity.
Contracted during Contracted by spouse
subsistence of present upon the B. EFFECTS OF NULLITY
previous marriage presumption of death (ChiPCuPCDRDIDS) (Arts. 50-54, 43-44)
of first spouse
Good faith of 1. Children – considered illegitimate
remarrying party 2. Property Regime is dissolved – liquidation,
is immaterial; if in partition and distribution of the properties
bad faith, he of the spouses. If either spouse acted in
becomes liable for bad faith, his/her share in the net profits
bigamy will be forfeited:
a. In favor of the common children
General Rule: b. If none, in favor of the guilty
Marriage contracted by any person during the spouse by previous marriage
subsistence of a previous marriage is VOID. c. If none, in favor of the children of
Good faith is immaterial here. the innocent spouse.
3. Custody and support of the common
Exception: children will be decided
If before the celebration of the subsequent 4. Presumptive legitimes – must be delivered
marriage— 5. Creditors – of the spouses and of the
1. The first spouse has been absent for absolute community or conjugal
four consecutive years, or two years partnership must be notified of the
under extraordinary circumstances, proceedings of liquidation.
and 6. Conjugal dwelling – given to the spouse
2. The surviving spouse has a well- with whom majority of the children choose
founded belief that the spouse is dead, to remain.
and 7. Parties can remarry – after compliance
3. There is a judicial declaration of with Art. 52, FC.
presumptive death, without prejudice 8. Donation propter nuptias – remains valid,
to the effect of the reappearance of the (but if the donee contracted marriage in
absent spouse. Note: This is a bad faith, donations will be revoked)
VOIDABLE bigamous marriage. 9. Insurance benefits – innocent spouse may
revoke designation of guilty party as
Exception to the exception: beneficiary, even if such designation is
When both parties in the subsequent marriage irrevocable
acted in bad faith, the marriage is still void 10. Donations - If both parties of subsequent
(Art. 44, FC). marriage acted in bad faith, any donations
and testamentary dispositions made by
People v. Mendoza one party to the other by reason of
95 Phil. 845 (1954) marriage will be revoked
Mendoza contracted three marriages. He 11. Succession Rights – Party in bad faith
contracted the second marriage during the disqualified to inherit from innocent
subsistence of the first marriage. He spouse, whether testate or intestate
contracted the third marriage after the death
of his first wife. He was prosecuted for bigamy Note: Except for #1, the above also effects
on his third marriage. The Supreme Court apply to marriages which are annulled (and to
held that he is not guilty for bigamy for his voidable bigamous marriages.)
third marriage, since his prior subsisting
marriage has already been extinguished by
the death of his first wife. It is the second
marriage that is bigamous.
A. GROUNDS (CIF-mspd-FIS) (Art. 45, FC)
Morigo v. People
G.R. No. 145226 (2004) 1. One of the parties is 18 or above but
General Rule: Even if the first marriage is below 21, and there is no parental
judicially declared void only after contracting consent.
the second marriage, the second marriage is 2. Either party was of unsound mind
still bigamous. (insanity).

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3. The consent of either party was obtained further proceedings if the defendant fails to
through fraud (different from mistake in answer. A certification by the prosecutor that
identity): he was present during the hearing and even
a. through non-disclosure of a cross-examined the plaintiff does not suffice
previous conviction of a crime to comply with the mandatory requirement.
involving moral turpitude;
b. through concealment of the wife of
the fact that she was pregnant by Ground Who can Prescrip- Ratifica-
another man; (Art. 45) file tion tion
c. through concealment of a sexually- (Art. 47) (Art. 47) (Art. 45)
transmitted disease, even if not Lack of 1. 1. 5
serious or incurable;* parental Underage years
d. through concealment of drug consent party after Free
addiction, habitual alcoholism or attaining cohabita-
homosexuality/lesbianism. (Art.46, 21. tion after
FC) attaining
2. Parent 2. Before
4. The consent of either party was obtained age of
or child
through force, intimidation, or undue 21.
guardian reaches
5. Either party is physically unable to
consummate the marriage (impotence; Insanity 1. Sane 1. Any
this is different from sterility). spouse time
6. Either party has a serious and incurable with no before
sexually-transmissible disease, even if not knowledge the death
concealed.* of the of insane
other’s party
*STD: Art. 45 v. Art. 46 insanity
2. Legal
guardian tion of
Art. 45 STD Art. 46 STD insane
Ground for The STD is a type of of insane
annulment fraud which is a party
ground for annulment 3. Insane 2. During
Does not have to Must be concealed party lucid
to reason
be concealed interval
Must be serious Need not be serious or after
and incurable nor incurable regaining
It is the The STD itself is the sanity,
concealment that ground for annulment and
gives rise to the before
annulment Fraud Injured death
Five Free
party years cohabita-
Buccat v Buccat (defrau- after tion after
72 Phil. 19 ded party) discovery having
It held that it is unbelievable that the wife of fraud full
could have concealed the fact that she was 6 knowled-
months pregnant at the time of the marriage. ge of
Annulment not granted. fraud
Force, Injured Five Free
Aquino v Delizo intimida party years cohabita-
109 Phil. 21 tion, after tion after
The Supreme Court granted annulment undue disappea the force
because the wife concealed the fact that she influen- -rance of has
was 4 months pregnant during the time of the ce force or ceased
marriage. It argued that since Delizo was intimida- or
tion disappe-
“naturally plump,” Aquino could hardly be
expected to know, by mere looking, whether
or not she was pregnant at the time of the

Corpuz v. Ochoterena
AM No. RTJ-04-1861 (2004)
In a legal separation or annulment case, a
prior collusion investigation by the prosecuting
attorney is a condition sine qua non for

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Ground Who can Prescripti Ratificati C. EFFECTS OF PENDING

(Art. 45) file on on ACTIONS/DECREE (Art. 49, FC)
(Art. 47) (Art. 47) (Art. 45)
Impoten Healthy Five Deemed 1. The court shall provide for the support
ce party years ratified of the spouses,
after when 2. The custody of the common children,
marriage action giving paramount consideration to their
prescri- moral and material welfare, their
bes choice of parent with whom they wish
STD Healthy Five Deemed to remain.
party years ratified 3. The court shall also provide for
after when visitation rights of other parent.
marriage action
prescri- No child under 7 years shall be separated
bes from the mother unless there is a compelling
reason to do so.

B. MARRIAGE WHEN ONE SPOUSE To prevent collusion between the parties,

IS ABSENT fabrication or suppression of evidence, the
prosecuting attorney or fiscal shall appear on
Requirements for subsequent marriage to behalf of the State. (Art. 48, FC)
be valid when prior spouse is absent:
(Art. 41, FC)
1. The prior spouse had been absent for 4 D. VOID MARRIAGES vs.
consecutive years, or 2 years in cases VOIDABLE MARRIAGES
under Art. 391 CC.
2. The spouse present has a well-founded Void Marriage Voidable
belief that the absent spouse was already Marriage
dead. Nature INEXISTENT VALID until
3. The spouse present must institute a from the annulled by
summary proceeding for the declaration of beginning court
presumptive death of the absentee, Co- CANNOT be CAN be
without prejudice to the effect of validatio covalidated covalidated by
reappearance of the absent spouse. n prescription or
Effect of reappearance of absent spouse: cohabitation
Effect on No Community ACP exists
General rule: property Property, only unless another
The subsequent marriage remains valid. Co-ownership system is
Exception: through
It is automatically terminated by the recording marriage
of the affidavit of reappearance of the absent settlement
spouse. Legiti- General rule: Children are
macy of Children are LEGITIMATE if
Exception to the exception: children ILLEGITIMATE conceived
If there is a judgment annulling the previous (Art. 165) before decree
marriage or declaring it void ab initio. (Art. Exception: of annulment
42, FC) In void
Republic v. Bermudez-Lorino by reason of
G.R. No. 160258 (2005) psychologica
The RTC rendered a decision declaring the l incapacity
presumptive death of respondent’s absent (Art. 36) or
spouse based on Art. 41, FC. The Republic non-partition
appealed the decision to the CA. Applying of properties
Art. 247 FC, the SC ruled that the CA did not in a previous
have jurisdiction over the appeal because marriage
summary proceedings are immediately final (Art. 53),
and executory, and therefore unappealable. children are

100% UP LAW UP BAROPS 2008 Page 13 of 325


Void Marriage Voidable 7. Contracting by respondent of a

Marriage subsequent bigamous marriage, whether
How to May be Can only be in the Philippines of abroad.
impugn attacked attacked 8. Sexual infidelity or perversion.
DIRECTLY or DIRECTLY 9. Attempt on the life of petitioner by
COLLATERALLY (there must be respondent.
, except for annulment a. There is no need for criminal
purpose of decree) conviction.
remarriage 10. Abandonment of petitioner by respondent
(there must be without justifiable cause for more than
JDN) one year.
Effect of May still be Can no longer
death of impugned after be impugned Gandioco v Peñaranda
parties death of after death of 155 SCRA 725 (1989)
parties parties In sexual infidelity as a ground for legal
separation, there is no need for prior
E. JURISDICTION conviction for concubinage, because legal
separation only requires a preponderance of
Tamano v. Ortiz evidence, as opposed to proof beyond
291 SCRA 584 (1998) reasonable doubt required in concubinage.
PD No. 1083 (Code of Muslim Personal Laws
of the Philippines) does not provide for a Lapuz v. Eufemio
situation where the parties were married both 43 SCRA 177
in civil and Muslim rites. Consequently, the The action of the plaintiff in filing for legal
shari'a courts are not vested with original and separation does not survive after her death.
exclusive jurisdiction when it comes to Death of either spouse dissolves the marriage.
marriages celebrated under both civil and An action for legal separation is purely
Muslim laws. Hence, the Regional Trial Courts personal between the spouses.
have jurisdiction over such cases.
Dela Cruz. v. Dela Cruz
22 SCRA 333
Abandonment is not mere physical
VI. LEGAL SEPARATION abandonment but also financial and moral
desertion. There must be an intention never
A. GROUNDS (VAPIDHIBLA) (Art. 55, FC) to return.

1. Repeated physical violence or grossly

abusive conduct directed against B. DEFENSES
petitioner, a common child, or a child of
the petitioner. Grounds for denying legal separation
2. Physical violence or moral pressure to (4CMRPD) (Art. 56, FC)
compel petitioner to change religious or
political affiliation. 1. Condonation by aggrieved party
3. Attempt of respondent to corrupt or 2. Consent by aggrieved party to the
induce petitioner, a common child, or commission of the offense
child of petitioner, to engage in 3. Connivance between parties in the
prostitution or connivance in such commission of the offense
corruption or inducement. 4. Mutual guilt in ground for legal
4. Final judgment sentencing respondent to separation
imprisonment of more than 6 years, even 5. Collusion between parties to obtain
if pardoned (executive pardon, not decree of legal separation
pardon from offended party). 6. Prescription of action for legal
5. Drug addiction or habitual alcoholism of separation (5 years from occurrence of
respondent. the cause of action)
a. When it existed from the time of 7. Death of either party during pendency
celebration, and concealed from of action (Lapuz-Sy v Eufemio, G.R.
petitioner, can be a ground for No. L-30977, 1972)
annulment of marriage. 8. Reconciliation of parties during
b. When it occurred only after the pendency of action (Art. 66 par.1)
marriage, it is only a ground for
legal separation, whether concealed
or not.
6. Lesbianism or homosexuality of
respondent. Prescription:
a. Same as rules on drug addiction Action prescribes in five years from
occurrence of cause (Art. 57, FC)

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Reconciliation period: 6. Innocent spouse may also revoke

Action cannot be tried before six months have designation of guilty spouse as beneficiary
elapsed since the filing of the petition (Art. 58. in an insurance policy, even if such
FC) stipulations are irrevocable (Art. 64. FC).
7. Obligation for mutual support ceases, but
Attempts on reconciliation: the court may order the guilty spouse to
Action cannot be tried unless the court has support the innocent spouse. (Art. 198,
attempted to reconcile the spouses, and FC)
determined that despite such efforts, 8. The wife shall continue to use the surname
reconciliation is highly improbable (Art. 59, of the husband even after the decree for
FC) legal separation. (Art. 372, CC)

No decree of legal separation shall be based F. RECONCILIATION
upon a stipulation of facts or a confession of
judgment (Art. 60, par. 1. FC) How done:
Should the spouses reconcile, they should file
Collusion: a corresponding joint manifestation under
The court shall assign the prosecuting oath of such reconciliation. (Art. 65, FC)
attorney or fiscal to make sure that there is
no collusion between the parties, and that Effects of Reconciliation:
evidence is not fabricated or suppressed (Art. 1. Proceedings for legal separation shall
60, par. 2, FC) be terminated at whatever stage. (Art.
66, FC)
D. EFFECTS OF FILING PETITION FOR 2. If there is a final decree of legal
LEGAL SEPARATION (LAC) separation, it shall be set aside. (Art.
66, FC)
1. The spouses are entitled to live separately 3. The separation of property and
(Art. 61, par. 1. FC). forfeiture of share of guilty spouse
2. Administration of Community or Conjugal shall subsist, unless the spouses agree
Property – If there is no written to revive their former property regime
agreement between the parties, the court or to institute another property regime.
shall designate one of them or a third ( Art. 66 cf. Art. 67, FC)
person to administer the ACP or CPG. (Art. 4. Joint custody of children is restored.
61, par. 2, FC) 5. The right to intestate succession by
3. Custody of children – The court shall give guilty spouse from innocent spouse is
custody of children to one of them, if there restored.
is no written agreement between the 6. The right to testamentary succession
spouses. It shall also provide for visitation depends on the will of the innocent
rights of the other spouse. (Art. 62, cf. spouse.
Art. 49. FC)
Decrees of absolute divorce obtained by
Filipinos abroad have no validity and are not
1. The spouses can live separately (Art. 63.
recognized in the Phil. dfd
2. The ACP of CPG shall be dissolved and
liquidated, and the share of the guilty
(partial recognition of absolute divorce):
spouse shall be forfeited in favor the
- When the divorce is validly obtained by
common children, previous children, or
the alien spouses abroad which
innocent spouse (Art. 63. cf. Art. 42, par.
capacitates him/her to remarry, the
Filipino spouse shall likewise have the
3. Custody of the minor children shall be
capacity to remarry. (Art. 26, par. 2
awarded to the innocent spouse (Art. 63.
4. Guilty spouse shall be disqualified from
Twin elements for the application of par.
inheriting from innocent spouse by
2, Art. 26, FC:
intestate succession. The provisions in
1. There is a valid marriage that has been
favor of the guilty party in the will of the
celebrated between a Filipino citizen
innocent spouse shall also be revoked by
and a foreigner; and
operation of law. (Art. 63, FC)
2. A valid divorce is obtained abroad by
5. Donation propter nuptias in favor of the
the alien spouse capacitating him or
guilty spouse may be revoked (Art. 64.
her to remarry.

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2. Her maiden first name and her

Republic v. Orbecido husband's surname or
G.R. No. 154380 (2005) 3. Her husband's full name, but prefixing
Given a valid marriage between 2 Filipino a word indicating that she is his wife,
citizens, where one party is later naturalized such as “Mrs.”
as a foreign citizen and obtains a valid divorce
decree capacitating him or her to remarry, the Yasin v. Shari’a District Court
Filipino spouse remarry under Philippine law. G.R. No. 94986 (1995)
The woman only has an option and not a duty
The RECKONING POINT is not the citizenship to use the surname of her husband, as
of the parties at the time of the celebration of provided for in Art. 370, CC. Moreover, when
the marriage, but their citizenship at the time her husband dies, the woman can revert to
a valid divorce is obtained abroad by the alien her old name without need for judicial
spouse capacitating the latter to remarry. declaration.

2. Widows:
A widow may use the deceased husband’s
BETWEEN HUSBAND & WIFE surname as though he were still living. (Art.
373, CC)
(Arts. 68-71, FC) 3. Mistresses:

1. Live together Legamia v IAC

2. Observe mutual love, respect, and fidelity G.R. No. 63817 (1984)
3. Render mutual help and support The Supreme Court allowed the mistress to
4. Fix the family domicile. use her live-in partner’s name, since everyone
a. In case of disagreement, the court already knew that she was a mistress, so as
shall decide. to avoid confusion.
5. Jointly support the family.
6. Manage the household. 4. Divorcees

B. RIGHTS OF SPOUSES (Arts. 72-73, FC) Tolentino v. CA

G.R. No. 41427 (1988)
A divorced woman may continue using the
1. In case the other spouse neglects his or
surname of her former husband. Philippine
her duties or commit acts which tend to
laws are silent in this issue. Moreover, there
bring danger, dishonor or injury to the is no usurpation as she never represented
family, the aggrieved party may apply the
herself as Mrs. Arturo Tolentino after the
court for relief.
divorce, but simply as Mrs. Consuela David-
2. Either spouse may exercise any legitimate
profession, without need for consent of the
a. The other spouse may only object
on valid, serious, and moral VIII. PROPERTY RELATIONS
b. In case of disagreement, the Court
shall decide whether (1) the
objection is proper, and (2) benefit A. GENERAL PROVISIONS
has accrued to the family before OR
after the objection. Order to be followed: (ARTS. 74, 75, FC):
i. If BEFORE, enforce 1. Marriage settlements before
obligation against the marriage – spouses can agree to
separate property of spouse whatever regime they want, be it ACP,
who has not obtained CPG, or complete separation.
consent. 2. Family Code– If there are no
ii. If AFTER, enforce obligation marriage settlements, or if the regime
against community property agreed upon is void, the Absolute
Community of Property will be followed
C. USE OF SURNAME 3. Local Customs

1. Married Women: (Art. 370, CC)

A married woman may use:

1. Her maiden first name and surname
and add her husband's surname, or

100% UP LAW UP BAROPS 2008 Page 16 of 325


General Rule: (Art. 80, FC) 2. Made in consideration of the marriage

Property relations between Filipino spouses 3. In favor of one or both spouses
are governed by Philippine laws, regardless of
the place of marriage and their residence. Donations excluded:
1. Ordinary wedding gifts given after the
celebration of the marriage
The rule that ACP is the default mode of
2. Donations in favor of future spouses made
property relations absent any marriage
before marriage but not in consideration
settlement applies to all Filipinos, regardless
of the place of the marriage and their
3. Donations made in favor of persons other
than the spouses even if founded on the
intended marriage
Exceptions: (Art. 80, FC)
1. Where both spouses are aliens
Who may donate:
2. As to the extrinsic validity of contracts
1. spouses to each other
3. Contrary stipulation
2. parents of one or both spouses
3. 3rd persons to either or both spouses
Requirements for Marriage Settlements:
(Art. 77, FC)
Solis v. Barroso
1. Must be in writing (public or private)
53 Phil. 912 (1928)
2. Signed by the parties
Moreover, in donations propter nuptias, the
3. Executed before the celebration of the
marriage is really a consideration but not in
the sense of giving birth to the obligation.
4. If party needs parental consent,
There can be a valid donation even if the
parent/guardian must be a party to the
marriage never took place. However, the
absence of marriage is a ground for the
5. If party is under civil interdiction or
revocation of the donation.
other disability (not including insanity),
court appointed guardian must be a
Mateo v. Lagua
6. Must be registered in local civil registry
G.R. No. 26270 (1969)
– to affect third persons (If not
Donations propter nuptias are without onerous
registered, will not prejudice third
consideration, marriage being merely the
persons, ACP will apply)
occasion or motive for the donation, not its
cause. Being liberalities, they remain subject
General Rule:
to reduction for inofficiousness upon the
All modifications to the marriage settlement
donor’s death, if they should infringe the
must be made before the marriage is
legitime of a forced heir.
Distinguished from Ordinary Donations:
1. Legal Separation (Art. 63 (2), FC)
o The property regime is
2. Revival of the former property regime Does not require Express
express acceptance acceptance
upon reconciliation if the spouses
agree (Art. 66 (2))
May be made by Cannot be made
3. A spouse may petition the court for: minors (Art. 78) by minors
a. Receivership May include future Cannot include
b. Judicial separation of property, or property future property
c. The authority to be the sole If present property is No limit to
administrator of the conjugal donated and property donation of
partnership is not absolute present property
 If the other spouse abandons the community, limited provided
other without just cause or fails to to 1/5 legitimes are not
comply with his or her obligations impaired
to the family. (Art. 128) Grounds for Grounds for
4. Judicial Dissolution (Arts. 135 and 136) revocation - In Art. revocation - in
86 donation laws

Requisites of donations propter nuptias:

(Art. 82, FC)
1. Made before the celebration of marriage

100% UP LAW UP BAROPS 2008 Page 17 of 325


RULES: Harding v. Commercial Union

38 Phil. 464 (1918)
1. Before Marriage The prohibition on donations can only be
assailed by persons who bear such relation to
General Rule: the parties or the property itself, that their
Future spouses cannot donate to each other rights are being interfered with. Here, the
more than 1/5 of their present property insurance company of the donated car cannot
(excess shall be considered void) (Art. 84, FC) assail the validity of the donation.

Exception: Sumbad v. CA
If they are governed by ACP. G.R. No. 106060 (1999)
The donation made by a man to a woman was
2. During Marriage held valid because no proof was shown that
they were still living in a common-law
General Rule: relationship at the time of the donation.
Spouses cannot donate to each other, directly
or indirectly (donations made by spouses to C. ABSOLUTE COMMUNITY OF PROPERTY
each other during the marriage are void) (Art.

Exception: When it commences: At the precise

Moderate gifts on the occasion of any family moment of the celebration of the marriage
rejoicing. (Art. 88, FC). However, if the marriage is
celebrated before the Family Code took effect
(1988), the default property regime is the
Grounds for Revocation of Donation Conjugal Partnership of Gains (CPG).
Propter Nuptias (Art. 86, FC)
Waiver of Rights: (Art. 89, FC)
1. If the marriage is not celebrated or
judicially declared void ab initio, except General Rule:
donations made in settlements. NOT ALLOWED
2. When the marriage takes place without
the consent of the parents or guardians, Exceptions:
as required by law. 1. When there is judicial separation of
3. When the marriage is annulled, and the property
donee acted in bad faith. 2. When there is legal separation
4. Upon legal separation, if the donee is the 3. When the marriage is dissolved (by
guilty spouse. death of one of the spouses)
5. If there is a resolutory condition, and it is 4. When the marriage is annulled
not complied with.
6. When donee has committed an act of
ingratitude: (Art. 765, CC) 2. WHAT CONSTITUTES COMMUNITY
a. An offense against person or property PROPERTY
of donor, or his wife or children under
parental authority What it consists: All the property owned by
b. An imputation to the donor of any the spouses at the time of the celebration of
criminal offense, or any act involving the marriage or acquired thereafter. (Art. 91,
moral turpitude, even if proven, unless FC)
the crime is committed against the
donee, his wife or children under his Under the ACP, spouses cannot exclude
authority. specific properties from the regime.
c. Refusing to support the donor, if
he/she is legally required to do so.
What is Excluded (BGM): (Art. 92, FC)
*The action for filing for revocation of 1. Properties acquired by a gratuitous title,
donation prescribes. i.e. donation, inheritance by testate and
intestate succession, including the fruits of
Matabuena v Cervantes such properties
38 SCRA 284 (1971) EXCEPT: When it was expressly
The donation between common-law spouses provided by the donor or testator that the
falls within the provision prohibiting donations property shall form part of the ACP
between spouses during marriage.
2. Properties for personal use
EXCEPT: Jewelry - they form part of
the ACP

100% UP LAW UP BAROPS 2008 Page 18 of 325


3. Properties acquired before the marriage, - Only ff the debtor-spouse has no

for those with legitimate descendants with exclusive property or his or her
a former marriage (to protect rights of property is insufficient.
children by a former marriage). - The payments by the ACP are deemed
advances to be deducted from the
Presumption: share of the guilty spouse upon the
All properties acquired during the marriage liquidation of the absolute community.
form part of the ACP, unless it be proven that
they are excluded. (Art. 93, FC) 10. Expenses of Litigation between Spouses

(4 debts, 2 taxes, 2 expenses, DISPOSITION OF ACP
support, donation)
Administration of property:
1. Support Belongs to both spouses jointly. If they
- Spouses disagree the husband’s decision prevails.
o Even if not living together However, the wife has five years from the
except when a spouse leaves date of the decision to go to court for
conjugal home without just recourse. Otherwise, it is presumed that she
cause agreed with the husband’s decision. (Art. 96,
o Even during pendency of action FC)
for legal separation or
annulment of marriage Except:
- Common children When the other spouse is incapacitated, or
- Legitimate children of previous unable to participate in the administration
marriage (e.g. when abroad).

2. Debts and Obligations Contracted During Disposition of property:

Marriage Either spouse may, through a will, dispose
- Either by both spouses or one of them, his/her interest in the community property.
with the consent of the other. (Art. 97, FC) However, the will should refer
- In (2) and (3), creditors need not only to his/her own share in the community
prove that the debts benefited the property.
Donation of property:
3. Debts Contracted by one Spouse Without Donation of one spouse without the consent of
Consent of the other the other is not allowed (Art. 98, FC)
- ACP liable only to the extent that the
debt benefited the family. Except:
1. Moderate donations to charity due to
4. Tax, Liens, Repairs on Community family rejoicing or distress;
Property 2. Moderate gifts by each spouse to the
- Includes both major and minor repairs other due to family rejoicing. (note:
What’s moderate depends on the
5. Taxes and Expenses for Mere preservation socio-economic status of the family)
of Separate properties
- Applies only to separate properties by 5. DISSOLUTION OF ACP
either spouse being used by the family,
not those that do not benefit the ACP terminates upon: (Art. 99, FC)
family. 1. Death of either spouse – follow rules in
- Expenses limited to minor repairs. Art. 103
2. Legal Separation – follow rules in Arts. 63
6. Expenses for professional, Vocational, or and 64
Self-Improvement Course of Spouses 3. Annulment or judicial declaration of nullity
– follow rules in Arts. 50 to 52
7. Ante-nuptial Debts that Benefited the 4. Judicial separation of property during
Family marriage – follow rules in Arts. 134 to 138
- If the ante-nuptial debt did not benefit
the family, applicable rule is (9).
Rules on De Facto Separation:
8. Donations by Both Spouses to Common (ART. 100, FC):
Legitimate Children
De facto separation does not affect the ACP.
9. Ante-Nuptial Debts not under (7), Support EXCEPT that:
of Illegitimate Children, Liabilities of Either 1. Spouse who leaves the conjugal home
Spouse Arising from Crime or Quasi-Delict without just cause shall not be entitled

100% UP LAW UP BAROPS 2008 Page 19 of 325


to support. He/She, however, is still balance of separate properties shall be

required to support the other spouse delivered to respective spouses or their
and the family. heirs, and they will also divide into two
2. If consent is necessary for transaction equal shares whatever is left of the
but is withheld or otherwise community assets, without prejudice to
unobtainable, authorization may be the provisions of law on forfeitures and
obtained from the court. delivery of presumptive legitimes.
3. Support for family will be taken from
the ACP. Rules in Case of Termination of Marriage
4. If ACP is insufficient, spouses shall be by Death of One of the Spouses:
solidarily liable. (Art. 103, FC)
5. If it is necessary to administer or
encumber separate property of spouse 1. The community property shall be
who left, spouse present may ask for liquidated in the same proceeding for
judicial authority to do this. the settlement of the estate of the
6. If ACP is not enough and one spouse deceased spouse.
has no separate property, spouse who 2. If no such judicial settlement
has property is liable for support, proceeding is instituted, surviving
according to provisions on support. spouse shall liquidate the community
property either judicially or extra-
Abandonment: (Art. 101, FC) judicially within one year from the
Present spouse may petition the court for: death of the deceased spouse.
(a) receivership;
(b) judicial separation of property; or Procedure for Liquidation of Community
(c) authority to be the sole administrator Properties of Two Marriages:
of the absolute community, subject to (Art. 104, FC)
precautionary conditions that the court
may impose. 1. Determine the capital, fruits, and
income of each community upon such
*Spouse is prima facie considered to have proof as may be considered according
abandoned the other spouse and the family if: to the rules of evidence.
1. he/she has left for a period of three 2. In case of doubt as to which
months, community the existing properties
2. he/she has failed to inform his/her belong, they shall be divided between
whereabouts for a period of three two communities in proportion to the
months. capital and duration of each.


AND LIABILITIES 59 Phil. 733 (1934)
Javillo contracted 2 marriages. SC ruled that
Process of liquidation of ACP: each absolute community should be
(Art. 102, FC) considered owner of the parcels of land
1. Inventory of assets of ACP and of acquired during its existence. Death
spouses, with market values. discontinues ACP.
2. Obligations are paid with community
property, and separate obligations not Vda. De Delizo v. Delizo
charged to ACP paid by respective G.R. No 32820 (1976)
assets of spouses. In case of doubt as to which community the
3. Balance, or net remainder is divided existing properties belong, the same shall be
equally between the spouses, divided between the different communities in
irrespective of how much each brought proportion to the capital and duration of each.
into the community.
4. If obligations exceed the assets of the D. CONJUGAL PARTNERSHIP OF GAINS
ACP, nothing is divided. Creditors can
go after the separate properties of the WHERE IT APPLIES:
spouses, which are solidarily liable for
the deficiency. 1. For marriages before the implementation
5. If personal obligations of a spouse of the Family Code.
exceed his/her separate property, 2. For marriages after the Family Code, if
creditor can go after the share of the agreed to by the parties through a
spouse on the net remainder of the marriage settlement.
ACP, without prejudice to the
provisions of law on forfeitures and HUSBAND AND WIFE PLACE IN COMMON
delivery of presumptive legitimes. FUND:
6. After covering all community
obligations and obligations of spouses,

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1. The proceeds, products, fruits, and income B. If winning ticket is bought by conjugal
of their separate properties; funds = prize is conjugal
2. Everything acquired by them within - presumption is ticket bought during
marriage through their own efforts; marriage is bought by conjugal
3. Everything acquired by them by chance funds

EXCLUSIVE PROPERTIES OF THE Property bought on installments paid partly

SPOUSES: from exclusive funds of the spouses and partly
from conjugal funds:
I. Property by direct acquisition, or property
a.If full ownership is vested before the
that is originally exclusive:
marriage – it shall belong to the buyer-
1. Property brought into marriage by each
spouse as his/her own – Art. 109(1)
b.If full ownership was vested during
2. Property acquired by either spouse
the marriage – it shall belong to the
during the marriage by gratuitous
conjugal partnership
title – Art 109 (2)
Property belonging to one spouse converted
II. Property by substitution:
into another kind totally different in nature
3. Property acquired by right of
from its original form during marriage
redemption, by barter, or by
becomes conjugal in the absence of proof
exchange with property belonging to
that the expenses of conversion were
either spouse – Art. 109 (3)
exclusively for the account of the original
4. Property purchased with exclusive
owner-spouse, subject to reimbursement of
money of either spouse- Art. 109 (4)
the value of the original property from the
conjugal partnership
III. Other Separate Property:
5. Collection of credits belonging to one
Upon dissolution of marriage or partnership,
spouse exclusively
the net gains or benefits from the partnership
6. Sale of separate property of a spouse
shall be divided equally between the spouses,
7. Indemnity paid in cash of expropriation
unless they have agreed on another manner
of separate property or under an
of division in their marriage settlement.
insurance policy covering separate
Money received under the Social
8. Possession does not affect ownership
Security Act is not conjugal, although the
of separate property.
employee-spouse contributes to the SSS with
his salaries, but belongs to the designated
beneficiary under the Social Security Law
1. Acquired by Onerous Title during the
Intellectual property, like copyright or
Marriage at Expense of Common Fund
patent, should, according to Tolentino, citing
(Art. 117 (1));
Planiol and Ripert, be considered separate
2. Acquired through the Labor, Industry,
property of the spouse who produces or
Work, Profession of Either or both
invents or discovers it, this property being of
Spouses (Art. 117 (2));
a special type, almost a part of one's person
3. Fruits from common property;
or taken from his personality and the physical
4. Net fruits of exclusive property of each
or external manifestation of his intellect or
spouse (Art. 117 (3));
genius, that it is not simply a product of one's
5. Share of either spouse in hidden treasure,
work or industry but should be considered as
whether as finder or owner of property
pertaining exclusively to its creator
where treasure is found (Art. 117(4));
6. Acquired through occupation such as
Business property like trade-marks, trade
fishing or hunting (Art. 117 (5));
names, service marks, business goodwill, and
7. Livestock existing at dissolution of
similar kinds of property are, however, merely
partnership in excess of what is brought
accessories to some commercial
by either spouse to the marriage (Art. 117
establishment or product, so that if such
establishment or product is separate property
8. Acquired by chance, such as winnings from
of one spouse, then the business property is
gambling or betting (Art. 117 (7))
separate property, the same being an
accessory that follows the principal; but all
benefits or earnings derived from these
A. If winning ticket is bought by a spouse
different kinds of property during the
with his or her own money or was
marriage should belong to the conjugal
given gratuitously by a friend = the
property (Tolentino, id., citing the same
prize will be separate property of the
spouse who owns the ticket

100% UP LAW UP BAROPS 2008 Page 21 of 325


CHARGES UPON CPG (ART. 121) [cf. partnership by allowing it to be given

Charges to ACP]: gratuitously as in cases of donation of
(3 debts, 2 taxes, 2 expenses, support, conjugal partnership property, which is
donation) prohibited.

1. Support of the spouse, their common DISSOLUTION OF CPG (ART. 128):

children, and the legitimate children of
either spouse 1. Prepare an inventory of all properties
2. All debts and obligations contracted during 2. Amounts advanced by the conjugal
the marriage by the designated partnership in payment of personal debts
administrator-spouse for the benefit of the and obligations of either spouse shall be
CPG, or by both spouses or by one of them credited to the conjugal partnership.
with the consent of the other 3. Each spouse shall be reimbursed for
3. Debts and obligations contracted by either the use of his or her exclusive funds in the
spouse without the consent of the other to acquisition of property or for the value of
the extent that the family may have his or her exclusive property, the
benefited ownership of which has been vested by
4. All taxes, liens, charges, and expenses law in the conjugal partnership.
upon conjugal property 4. Debts and obligations of the conjugal
5. All taxes and expenses for mere partnership shall be paid out of the
preservation made during the marriage conjugal assets.
upon the separate property of either 5. Whatever remains of the exclusive
spouse properties of the spouses shall be
6. Expenses to enable either spouse to delivered
commence or complete a professional, 6. Indemnify loss or deterioration of
vocational, or other activity for self- movables belonging to either spouse, even
improvement due to fortuitous event, used for the
7. Ante-nuptial debts of either spouse insofar benefit of the family
as they have redounded to the benefit of 7. The net remainder of the conjugal
the family partnership properties, or the profits,
8. The value of what is donated or promised which shall be divided equally between
by both spouses in favor of their common husband and wife
legitimate children for the exclusive
purpose of commencing or completing a EXCEPTIONS:
professional or vocational course or other a. A different proportion or division was
activity for self-improvement agreed upon in the marriage
9. Expenses of litigation between the spouses settlements
unless the suit is found to groundless b. There has been a voluntary waiver or
forfeiture of such share as provided in
If the conjugal partnership is insufficient to this Code.
cover the foregoing liabilities, the spouses
shall be solidarily liable for the unpaid balance [NOTE: Dissolution of the conjugal property
with their separate properties. must be recorded in the registry of property in
order to affect third persons dealing with
Disposition or encumbrance of conjugal registered property.]
property requires:
A. The consent or approval by both De Ansaldo v. Sheriff of Manila
spouses; OR G.R. No. L-43257 (1937)
B. Judicial authority secured in court The Supreme Court ruled that the spouses are
not co-owners of the conjugal properties
Mere awareness of a transaction is NOT during the marriage and cannot alienate the
consent supposed ½ interest of each in the said
properties. The interest of the spouses in the
Ayala Investment v. Ching conjugal properties is only inchoate or a mere
286 SCRA272 expectancy and does not ripen into title until
The Supreme Court ruled that indirect benefits it appears after the dissolution and liquidation
that might accrue to a husband in signing as a of the partnership that there are net assets
surety or guarantee agreement not in favor of
the family but in favor of his employer
corporation are not benefits that can be ACP/CPG TERMINATES UPON (ART. 99
considered as giving a direct advantage AND 126):
accruing to the family. Hence, the creditors
cannot go against the conjugal partnership 5. Death of either spouse – follow rules in
property of the husband in satisfying the Art. 103
obligation subject of the surety agreement. A 6. Legal Separation – follow rules in Arts.
contrary view would put in peril the conjugal 63 and 64

100% UP LAW UP BAROPS 2008 Page 22 of 325


7. Annulment or judicial declaration of E. SEPARATION OF PROPERTIES

nullity – follow rules in Arts. 50 to 52 DURING MARRIAGE
8. Judicial separation of property during
marriage – follow rules in Arts. 134 to
In the absence of an express declaration in
the marriage settlements, the separation of
property between the spouses during the
CPG vs. ACP:
marriage shall not take place except by
judicial order. (Art. 134)
1. Each Properties Judicial separation of property may either be
Property spouse become part of voluntary or for sufficient cause.
acquired retains community
before his/her property SUFFICIENT CAUSES FOR JUDICIAL
. only fruits (ART. 135):
part of
conjugal 1. Spouse of the petitioner has been
property sentenced to a penalty which carries
with it civil interdiction.
2. Spouse of the petitioner has been
2. Part of Becomes conjugal
judicially declared an absentee.
Property conjugal property.
3. Loss of parental authority of the
acquired property
spouse of petitioner has been decreed
by the court.
4. Spouse of the petitioner has
abandoned the latter or failed to
comply with his or her obligations to
the family.
3. Upon Separate Net remainder of
5. The spouse granted the power of
dissolu- properties ACP divided
administration in the marriage
tion of are equally between
settlements has abused that power.
marriage returned; spouses or heirs.
6. At the time of the petition, the spouses
net profits
have been separated in fact for at
least one year and reconciliation is
highly improbable.
spouses or
Each spouse shall contribute to the family
expenses, in proportion to their income. In
4. Basis Capital and Mutual trust and case of insufficiency, the market value of their
properties confidence
separate properties. (Art. 146)
of spouses between spouses;
kept fosters oneness of Liability of spouses to the creditors of the
separate spouses
family shall be SOLIDARY. (Art. 146, par. 2)
1. ACP or CPG is dissolved and liquidated
2. The liability of the spouses to creditors
obstacle to shall be solidary with their separate
tion of
3. mutual obligation to support each
solidarity continues except when there is legal
5. Exclusive Easier to liquidate separation
Liquida- properties because net 4. rights previously acquired by creditors
tion will have remainder of are not prejudiced
to be community
identified properties are REVIVAL OF PROPERTY REGIME IN THE
and simply divided FF. INSTANCES (ART. 141):
returned, between spouses
and or heirs. 1.When the civil interdiction
sometimes terminates.
, identify- 2.When the absentee spouse
cation is reappears.
difficult. 3.When the court, being satisfied that the
spouse granted the power of

100% UP LAW UP BAROPS 2008 Page 23 of 325


administration in the marriage settlements  not Art. olygamous

will not again abuse that power, 37 marriage
authorizes the resumption of said (incestuo (Art.35(4))
administration. us void 6. incestuous
4.When the spouse who has left the marriage) marriages
conjugal home without a decree of legal  not Art. under
separation resumes common life with 38 (void Art.37
the other; marriage 7. Void
5.When parental authority is judicially by reason marriages
restored to the spouse previously of public by reason of
deprived thereof; policy) public policy
6.When the spouses who have separated  not under
in fact for at least one year, reconcile bigamous Art.38
and resume common life. 4. other void
7.When after voluntary dissolution of the marriages
absolute community of property or due to
conjugal partnership has been judicially absence of
decreed upon the joint petition of the formal
spouses, they agree to the revival of requisite
the former property regime. No voluntary
Salaries Separately
separation of property may thereafter be Owned in
and owned by
granted. equal shares
wages parties
142): ties Remains
acquired exclusive Remains
1. When one spouse becomes the through provided exclusive
guardian of the other. exclusive there is proof
2. When one spouse is judicially declared funds
an absentee. Proper-
3. When one spouse is sentenced to a ties Owned in
penalty which carries with it civil acquired Governed by common in
interdiction. by both rules on co- proportion to
4. When one spouse becomes a fugitive through ownership respective
from justice or is in hiding as an work or contribution
accused in a criminal case. industry
 Owned in
If the other spouse is not qualified by reason equal
of incompetence, conflict of interest, or any shares
other just cause, the court shall appoint a since it is
suitable person to be the administrator. presumed
to have
presumption of
Art.147 Art.148 efforts
Proper- When there is
1. man and 1. man and  if one
ties evidence of
woman woman party did
acquired joint
2. living 2. living not
while acquisition but
together together as participate
living none as to the
as husband in
together extent of actual
husband and wife acquisitio
and wife 3. NOT n,
there is a
3. with capacitated presumed
presumption of
Applica- capacity to to marry to have
equal sharing
bility marry (Art.35(1) contribute
(Art.5 under 18 d through
without years old) care and
any legal 4. adulterous maintenan
impedimen relationship ce of
t) (e.g. family and
 at least concubinage household
18 years ) Forfeitu- When only If one party is
old 5. bigamous/p re one of the validly married

100% UP LAW UP BAROPS 2008 Page 24 of 325


parties is in to another: 3. Such earnest efforts and the fact of

good faith, - his/her share failure must be alleged
the share of in the co-
the party in owned [NOTE: The case will be dismissed if it is
bad faith shall properties will shown that no such efforts were made.]
be forfeited: accrue to the
1. In favor of ACP/CPG of Exceptions to the general rule (VJLAFF):
their his/her existing a. Civil status of persons,
common valid marriage b. Validity of marriage or a legal
children separation,
2. In case of If the party c. Any ground for legal separation,
default of who acted in d. Future support,
or waiver bad faith is not e. Jurisdiction of courts,
by any or validly married f. Future legitime
all of the to another,
common his/her share
children shall be Hontiveros v. RTC
or their forfeited in the 309 SCRA 340 (1999)
descendan same manner Whenever a stranger is a party in a case
ts, each as that involving family members, the requisite
vacant provided in Art showing of earnest efforts to compromise is
share 147 no longer mandatory, as such inclusion of a
shall stranger takes the case out of the ambit of FC
belong to The same rules 151.
the on forfeiture
respective shall apply if FAMILY HOME - dwelling place of a person
surviving both parties and his family
descendan are in bad faith
ts Guidelines:
3. In the 1. It is deemed constituted from time of
absence actual occupation as a family residence
of such 2. It must be owned by person
descendan constituting it
ts, such 3. It must be permanent
share 4. Rule applies to valid and voidable and
belongs to even to common-law marriages under
the Arts.147 and 148
innocent 5. It continues despite death of one or
party more spouses or unmarried head of
family for 10 years or as long as there
is a minor beneficiary (Art.159)
6. Can only constitute one family home
The family home is exempt from:
FAMILY – basic social institution which public 1. Execution
policy cherishes and protects hence, no suit 2. Forced sale
between members of the family shall prosper 3. Attachment
unless compromise between parties has
failed. Exceptions in the exemption of the family
home from execution (Art. 156):
FAMILY RELATIONS INCLUDE: 1. Nonpayment of taxes.
2. Debts incurred prior to the constitution
1. Between husband and wife of the family home.
2. Between parents and children 3. Debts secured by mortgages on the
3. Among other ascendants and premises before or after such
descendants constitution.
4. Among brothers and sisters, full or half 4. Debts due to laborers, mechanics,
blood. architects, builders, materialmen and
others who have rendered service or
General Rule: furnished material for the construction
For a suit between members of the same of the building.
family to prosper, the following are required:
1. Earnest efforts towards a compromise
have been made
2. Such efforts have failed

100% UP LAW UP BAROPS 2008 Page 25 of 325


Beneficiaries of the family home 4. If the family home is sold for more than
(Art. 154): the value allowed, the proceeds shall be
1. Husband and wife, or an unmarried applied as follows:
person who is the head of the family a. First, the obligation enumerated in
2. Parents (may include parent-in-laws), Article 155 must be paid
ascendants, descendants, brothers and b. Then the judgment in favor of the
sisters (legitimate/illegitimate), who creditor will be paid, plus all the costs
are living in the family home and who of execution
depend on the head of the family for c. The excess, if any, shall be delivered
Requisites to be a beneficiary:
1. The relationship is within those PATERNITY - the relationship or status of a
enumerated person with respect to his or her child
2. They live in the family home (paternity includes maternity).
3. They are dependent for legal support
on the head of the family FILIATION - the status of a person with
respect to his or her parents.
Requirements for the sale, alienation,
donation, assignment, or encumbrance of TYPES OF FILIATION:
the family home: 1. Natural
1. the written consent of the person a. Legitimate (Art. 164)
constituting it, b. Illegitimate (Arts.165, 175, 176)
2. his/her spouse, and c. Legitimated (Arts. 167-172)
3. majority of the beneficiaries of legal 2. By Adoption (R.A. No. 8552 (“Domestic
age Adoption Act”) and R.A. No. 8043 (“Inter-
[NOTE: If there is a conflict, the Court will country Adoption Act”)
In case of death (ART. 159): 1. Legitimate proper
- The family home shall continue despite 2. Legitimated
the death of one or both spouses or of 3. Adopted
the unmarried head of the family for a
period of ten years, or as long as there 2 TYPES OF ILLEGITIMATE CHILDREN:
is a minor beneficiary. 1. Children of parents disqualified to marry
- The heirs cannot partition the home each other at conception and marriage.
unless the court finds compelling 2. Children of parents qualified to marry each
reasons therefor. other
Requisites for creditor to avail of the
right under article 160: A. LEGITIMATE CHILDREN
1. He must be a judgment creditor;
2. His claim is not among those excepted GENERAL RULE:
under Article155, and Those who are conceived OR born during a
3. He has reasonable grounds to believe that valid marriage
the family home is worth more than the
maximum amount fixed in Article 157 EXCEPTIONS to the general rule are
those children who are:
Procedure to avail of right under Article 1. Conceived as a result of artificial
160: insemination
1. The creditor must file a motion in the 2. Born of a voidable marriage before decree
court proceeding where he obtained a of annulment
favorable for a writ of execution against 3. Conceived or born before judgment of
the family home. annulment or absolute nullity under Art.
2. There will be a hearing on the motion 36 (psychological incapacity) becomes
where the creditor must prove that the final & executory
actual value of the family home exceeds 4. Conceived or born of a subsequent
the maximum amount fixed by the FC marriage under Art. 53 (failure to record
either at the time of its constitution or as the judgment, partition and distribution of
a result of improvements introduced properties, and delivery of children’s
thereafter its constitution. presumptive legitime)
3. If the creditor proves that the actual 5. Of mothers who may have declared
value exceeds the maximum amount the against their legitimacy or was sentenced
court will order its sale in execution. as an adulteress
6. Legally adopted
7. Legitimated, conceived and born outside of
wedlock of parents without impediment at

100% UP LAW UP BAROPS 2008 Page 26 of 325


the time of conception and who d. Vasectomy [NOTE: SEMPIO-DIY:

subsequently married A double vasectomy, together
with other pieces of evidence, can
For children by artificial insemination to show the impossibility of the
be considered legitimate: alleged father siring his supposed
1. The artificial insemination is made on the child; STA. MARIA: The fact that
wife, not on another woman AND the husband has undergone
2. The artificial insemination on the wife is vasectomy is not enough proof to
done with the sperm of the husband, or of rebut the presumption of
a donor, or both the husband and a donor legitimacy (Cocharan v.
AND Cocharan).]
3. The artificial insemination has been 3. Written authorization or ratification of
authorized or ratified by both spouses on a either parent of children conceived
written instrument executed and signed by through artificial insemination, when
them before the birth of the child, AND the was obtained through mistake,
4. The written instrument is recorded in civil fraud, violence, intimidation, or undue
registry together with the birth certificate influence
of the child
Who can impugn the legitimacy of a child
General Rule:
Liyao v. Liyao Only the husband can impugn the legitimacy
378 SCRA 563 (2002) of a child
A child born within a valid marriage is
presumed legitimate even though the mother Exceptions:
may have declared against its legitimacy or The heirs of the husband may impugn the
may have been sentenced as an adulteress. child’s filiation in the following cases:
The child himself cannot choose his own a. If the husband dies before the
filiation. expiration of period for filing the action
b. If the husband dies after filing without
If the husband, presumed to be the father, desisting
does not impugn the legitimacy of the child, If the child was born after the death of the
then the status of the child is fixed, and the husband
latter cannot choose to be the child of his
mother’s alleged paramour. When to impugn the legitimacy of a child:

Grounds to impugn the legitimacy of the 1. Within 1 year – from knowledge of the
child: birth or its recording in the civil register, if
1. Physically impossibility for the husband the impugner resides in the city or
to have sexual intercourse with his wife municipality where the birth took place or
within the first 120 days of the 300 was recorded;
days which immediately preceded the 2. Within 2 years – from knowledge of the
birth of the child because of: birth or its recording in the civil register, if
a. Physical incapacity of the the impugner resides in the Philippines
husband to have sexual other than in the city or municipality
intercourse with his wife where the birth took place or was
b. The fact that the husband and recorded;
wife were living separately in 3. Within 3 years – from knowledge of the
such a way that sexual birth or its recording in the civil register, if
intercourse was not possible, or the impugner resides abroad
c. Serious illness of the husband
which absolutely prevented NOTE: Legitimacy cannot be collaterally
intercourse attacked. It can only be impugned in a direct
2. Biological or other scientific grounds action.
that the child could not have been that 180 days
of the husband, except in the case of 300 days
Termination after
children conceived through artificial of 1st Celebration
of 2nd
insemination marriage of 2nd of 1st
a. Blood grouping tests – can marriage marriage
determine non-paternity but not
paternity (ex. A-B-O test).
b. Human Leukocyte Antigen Test
(HLA) – can prove identity
between child and father with a Child of Child of
probability exceeding 98%. the 1st the 2nd
c. DNA test marriage marriage

100% UP LAW UP BAROPS 2008 Page 27 of 325


If the birth of the child has been consider the child as his, by continuous and
concealed or was unknown to the husband or clear manifestations of parental affection and
his heirs, the above periods shall be counted: care, which cannot be attributed to pure
1. From the discovery or knowledge of charity.
the birth of the child
2. From the discovery or knowledge of “Continuous” means uninterrupted and
the fact of registration of the birth, consistent, but does not require any particular
whichever is earlier. length of time.


MOTHER: G.R. No. 124814 (2004)
A certificate of live birth purportedly
 For the child to be considered the child of identifying the putative father is not
the 1st husband, the following requisites competent evidence of paternity when there is
must concur: no showing that the putative father had a
1. The mother must have married again hand in the preparation of said certificate. The
within 300 days from the termination local civil registrar has no authority to record
of her first marriage the paternity of an illegitimate child on the
2. The child was born within the same information of a third person.
300 days after the termination of the
former marriage of its mother While a baptismal certificate may be
3. The child was born before 180 days considered a public document, it can only
after the solemnization of its serve as evidence of the administration of the
mother's 2nd marriage sacrament on the date specified but not the
 For the child to be considered the child of veracity of the entries with respect to the
the 2nd husband, the following requisites child’s paternity. Thus, certificates issued by
must concur: the local civil registrar and baptismal
1. The mother must have married again certificates are per se inadmissible in evidence
within 300 days from the termination as proof of filiation and they cannot be
of the marriage admitted indirectly as circumstantial evidence
2. The child was born within the same to prove the same.
300 days after the termination of its
mother's first marriage Herrera v. Alba
3. The child was born after 180 days G.R No. 148220 (2005)
following the solemnization of its To be effective, the claim of filiation must be
mother's second marriage made by the putative father himself and the
NOTE: The first marriage must be terminated writing must be the writing of the putative
either by death or annulment. father. A notarial agreement to support a child
whose filiation is admitted by the putative
 There is no presumptive rule on the status father was considered acceptable evidence.
of a child born after 300 days following the Letters to the mother vowing to be a good
termination of the marriage. (Art. 169) father to the child and pictures of the putative
[Reason: 300 days is the longest period of father cuddling the child on various occasions,
gestation.] together with the certificate of live birth,
proved filiation. However, a student
B. PROOF OF FILIATION permanent record, a written consent to a
father’s operation, or a marriage contract
1. The record of birth appearing in the civil where the putative father gave consent,
register or a final judgment. cannot be taken as authentic writing.
2. An admission of legitimate filiation in a Standing alone, neither a certificate of
public document or a private handwritten baptism nor family pictures are sufficient to
instrument and signed by the parent establish filiation.
1. The child can bring the action during his
Or, in their Absence: lifetime
1. The open and continuous possession of the 2. If the child dies after reaching majority
status of a legitimate or illegitimate child; without filing an action, his heirs can
or longer file the action after death
2. Any other means allowed by the Rules of 3. If the child dies during minority in the
Court and special laws. state of insanity, his heirs can file the
action for him within 5 years form the
Jison v. CA child’s death
286 SCRA 495 (1998) 4. If the child dies after commencing the
To prove open and continuous possession of action, the action will survive and his heirs
the status of an illegitimate child, there must will substitute for him
be evidence of the manifestation of the
permanent intention of the supposed father to

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5. If the child is a minor, incapacitated or [i.e. children of those who are not
insane, his guardian can bring the action disqualified by any impediment to marry
in his behalf each other]


Those who are conceived and born outside a 1. Adulterous relationships
valid marriage are illegitimate. [NOTE: Proof 2. Incestuous relationships
of filiation is the same as that for legitimate 3. Bigamous relationships
children] 4. Void marriages by reasons of public policy
under Art. 38
RIGHTS OF LEGITIMATE AND  RIGHTS: Legitimated children shall
ILLEGITIMATE CHILDREN: enjoy the same rights as legitimate
children (Art. 179)
To bear the To bear the surname legitimation shall retroact from the time
surnames of the of their mother [may of the child’s birth. (Art. 180)
father and the also use the surname  DEATH OF CHILD: When the child dies
mother of the father if their before the celebration of the marriage,
filiation has been their legitimation shall benefit their
expressly recognized descendants. (Art. 181)
by the father (R.A.  IMPUGNING: Only those who are
9255)] prejudiced by their rights, within five
To receive support To receive support in years from the time of the cause of
from their parents, conformity with the action accrues. (Art. 182)
their ascendants, Family Code
and in proper
cases, their XI. ADOPTION
brothers and
conformity with The law merely The law
the provisions of makes legal merely
this Code on what exists by creates by
Support nature fiction a
Entitled to the The legitime of each relation
legitime and other illegitimate child shall which did
successional rights consist of one-half of not in fact
granted to them the legitime of a exist
by the New Civil legitimate child. Persons Only natural Generally
Code affected children applies to
D. LEGITIMATED CHILDREN Procedure Extrajudicial Always by
acts of parents judicial
Legitimation takes place by the subsequent decree
marriage of the child’s parents. It confers on Who Only by both By one
the child the rights of legitimate children, and applies parents parent
retroacts to the time of the child’s birth. alone
Effect Same status Creates a
REQUISITES FOR LEGITIMATION: and rights as a rel. only
1. The child was conceived and born outside legitimated between
of wedlock; child not only the child
2. The parents, at the time of child’s in relation to and the
conception, were not disqualified by any the legitimizing adopting
impediment to marry each other parents but parent
3. There is a valid marriage subsequent to also to other
the child’s birth. relatives


1. Child who is conceived and born outside of
wedlock; and
2. At the time of conception, the parents
were not disqualified by any impediment
to marry each other.

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R.A 8552: Domestic Adoption Act of 1998 c. if spouses are legally separated from
each other
A. Filipino Citizens
1. Of legal age The DSWD shall provide for the following
2. In possession of full civil capacity and legal services:
rights 1. Counseling services for the biological
3. Of good moral character parents, prospective parents, and
4. Has not been convicted of any crime prospective adoptee
involving moral turpitude 2. Exhaust all efforts to locate the biological
5. Emotionally and psychologically capable of parents, if unknown
caring for children
6. At least sixteen (16) years older than WHO MAY BE ADOPTED:
adoptee, except when adopter is biological
parent of the adoptee or is the spouse of 1. Any person below 18 years old who has
the adoptee’s parent been administratively or judicially declared
7. In a position to support and care for available for adoption
his/her children in keeping with the means 2. The legitimate child of one spouse by the
of the family other spouse
3. An illegitimate child by a qualified adopter
B. Aliens to improve the child’s status to that of
1. Possession of the same as the legitimacy
qualifications for Filipinos 4. A person of legal age if, prior to the
2. His/her country has diplomatic relations adoption, said person has been
with the Philippines consistently considered and treated by the
3. Has been living continuously for 3 years adopter(s) as his/her child since minority
(provided that absences not exceeding 60 5. A child whose previous adoption has been
days per 1 year for professional, business, rescinded
or emergency reasons are allowed) in RP 6. A child whose biological or adoptive
prior to filing of decree is entered except parent(s) has died, provided that no
this may be waived under the following: proceedings shall be initiated within 6
(i) A former Filipino Citizen who seeks to months from the time of death of said
adopt a relative within the 4th degree parent(s)
of consanguinity or affinity
(ii) One who seeks to adopt the legitimate CONSENT NECESSARY FOR ADOPTION:
or illegitimate child of his/her Filipino
spouse 1. The prospective adoptee if 10 years or
(iii)One who is married to a Filipino Citizen older
and seeks to adopt jointly with his/her 2. The prospective adoptee’s biological
spouse a relative within the 4th degree parents or legal guardian
of consanguinity or affinity of the 3. The prospective adopters’ legitimate and
Filipino spouse adopted children who are ten years or
4. Has been certified by his/her diplomatic or over and, if any, illegitimate children living
consular office or any appropriate with them
government agency that he/she has the 4. The prospective adopter’s spouse in
legal capacity to adopt in his/her country appropriate cases
5. His/her government allows the adoptee to
enter his/her country as his/her adoptee [NOTE: A decree of adoption shall be effective
6. Has submitted all the necessary clearances as of the date the original petition was filed. It
and such certifications as may be required also applies in case the petitioner dies before
the issuance of the decree of adoption to
C. Guardians protect the interest of the adoptee.]
With respect to theirs ward after the
termination of the guardianship and Tamargo v. CA
clearance of his/her accountabilities G.R. No. 85044 (1992)
Where the petition for adoption was granted
Husband and wife shall adopt jointly after the child had shot and killed a girl, the
except: Supreme Court did not consider that
a. if one spouse seeks to adopt the retroactive effect may be given to the decree
legitimate child of the other of adoption so as to impose a liability upon
b. if one of the spouse seeks to adopt the adopting parents accruing at a time when
his/her illegitimate child provided that adopting parents had no actual or physically
other spouse has signified his/her custody over the adopted child. Retroactive
consent affect may perhaps be given to the granting of
the petition for adoption where such is

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essential to permit the accrual of some benefit 4. Succession rights shall revert to its status
or advantage in favor of the adopted child. In prior to adoption, but only as of the date
the instant case, however, to hold that of judgment of judicial rescission. Vested
parental authority had been retroactively rights acquired prior to judicial rescission
lodged in the adopting parents so as to shall be respected.
burden them with liability for a tortious act
that they could not have foreseen and which R.A. 8043: Inter-Country Adoption
they could not have prevented would be unfair Act of 1995
and unconscionable.
EFFECTS OF ADOPTION: socio-legal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently
1. Parental Authority: residing abroad where the petition is filed, the
All legal ties between biological parents supervised trial custody is undertaken, and
and adoptee are severed, and the same the decree of adoption is issued outside the
shall be vested on the adopter, except if Philippines.
the biological parent is the spouse of the

2. Legitimacy: Only a legally-free child may be the subject

The adoptee shall be considered legitimate of inter-country adoption.
son/daughter of the adopter for all intents
and purposes. A legally-free child is one who has been
voluntarily or involuntarily committed to the
3. Succession: DSWD of the Philippines, in accordance with
Adopter and adoptee shall have reciprocal the Child and Youth Welfare Code.
rights of succession without distinction
from legitimate filiation, in legal and No child shall be matched to a foreign
intestate succession. If adoptee and adoptive family unless it is satisfactorily
his/her biological parents had left a will, shown that the child cannot be adopted
the law on testamentary succession shall locally.
Any foreign national or a Filipino citizen
Adoption, being in the best interest of the permanently residing abroad who has the
child, shall not be subject to rescission by the qualifications and none of the disqualifications
adopter(s). under the Act may file an application if
Adopted may request for rescission based on
the ff grounds: 1. Is least 27 years of age and at least 16
1. repeated physical and verbal years older than the child to be
maltreatment adopted, at the time of application
2. attempt on life of adoptee unless the adopter is the parent by
3. sexual assault or violence nature of the child to be adopted or the
4. abandonment and failure to comply spouse of such parent
with parental obligations 2. If married, his/her spouse must jointly
file for the adoption
However, the adopter(s) may disinherit the 3. Has the capacity to act and assume all
adopted based on causes ias enumerated in rights and responsibilities of parental
Art. 919 of the NCC. authority under his national laws, and
has undergone the appropriate
EFFECTS OF RESCISSION: counseling from an accredited
counselor in his/her country
1. The parental authority of the adoptee's 4. Has not been convicted of a crime
biological parents, if known, OR the legal involving moral turpitude
custody of the DSWD shall be restored if 5. Is eligible to adopt under his/her
the adoptee is still a minor or national law
incapacitated. 6. Is in a position to provide the proper
2. The reciprocal rights and obligations of the care and support and to give the
adopters and the adoptee to each other necessary moral values and example to
shall be extinguished. all his children, including the child to
3. The court shall order the Civil Registrar to be adopted
cancel the amended certificate of birth of 7. Agrees to uphold the basic rights of the
the adoptee and restore his/her original child as embodied under Philippine
birth certificate. laws, the U.N. Convention on the

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Rights of the Child, and to abide by the WHO ARE OBLIGED TO SUPPORT
rules and regulations issued to EACH OTHER:
implement the provisions of this Act 1. The spouses;
8. Comes from a country with whom the 2. Legitimate ascendants and descendants;
Philippines has diplomatic relations and 3. Parents and their legitimate children and
whose government maintains a the legitimate and illegitimate children of
similarly authorized and accredited the latter;
agency and that adoption is allowed 4. Parents and their illegitimate children and
under his/her national laws the legitimate and illegitimate children of
the latter; and
INTER-COUNTRY ADOPTION BOARD: 5. Legitimate brothers and sisters, whether
of full or half-blood.
 Acts as the central authority in matters
relating to inter-country adoption ORDER OF SUPPORT
 Ensures that all possibilities for adoption of (IF 2 OR MORE ARE TO GIVE SUPPORT):
the child under the Family Code have been 1. Spouses
exhausted and that inter-country adoption 2. Descendants, nearest in degree
is in the best interest of the child. 3. Ascendants, nearest in degree
4. Brothers and Sisters
[NOTE: When two or more are obliged to give
 The trial custody shall be for a period of 6 support, the payment shall be divided
months from the time of placement. between them in proportion to their
 It starts upon actual physical transfer of resources.]
the child to the applicant who, as actual
custodian, shall exercise substitute
parental authority over the person of the XIII. PARENTAL AUTHORITY
 The adopting parents shall submit to the PARENTAL AUTHORITY
governmental agency or the authorized (PATRIA POTESTAS):
and accredited agency, which shall in turn The mass of rights and obligations which
transmit a copy to the Board, a progress parents have in relation to the person and
report of the child's adjustment. The property of their children until their
progress report shall be taken into emancipation, and even after this under
consideration in deciding whether or not to certain circumstances (Manresa).
issue the decree of adoption.
1. The caring for and rearing of children for
XII. SUPPORT civic consciousness and efficiency;
2. The development of the moral, mental and
SUPPORT consists of everything physical character and well-being of said
indispensable for sustenance, dwelling, children
clothing, medical attendance, education and
transportation, in keeping with the financial RULES AS TO THE EXERCISE OF
capacity of the family. PARENTAL AUTHORITY:
1. The father and the mother shall jointly
KINDS OF SUPPORT: exercise parental authority over the
1. Legal – that which is required to be given persons of their common children. In
by law case of disagreement, the father's
2. Judicial – that which is required to be decision shall prevail, unless there is a
given by court order whether pendent elite judicial order to the contrary (Art.211)
or in a final judgment 2. If the child is illegitimate, parental
3. Voluntary or Conventional – by authority is with the mother.
CHARACTERISTICS OF SUPPORT 1. It is a natural right and duty of the
(PREVIW): parents (Art. 209)
1. Personal 2. It cannot be renounced, transferred or
2. Intransmissible waived, except in cases authorized by
3. Not subject to waiver or compensation law (Art 210)
with regard to future support 3. It is jointly exercised by the father and
4. Exempt from attachment or execution the mother (Art. 211)
5. Reciprocal on the part of those who are by 4. It is purely personal and cannot be
law bound to support each other exercised through agents
6. Variable 5. It is temporary

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minor are subsidiarily liable for said

PARENTAL PREFERENCE RULE: acts and omissions of the minor.
The natural parents, who are of good
character and who can reasonably provide for
the child, are ordinarily entitled to custody as Substitute Special Parental Authority
against all persons. Parental
OF DEATH, ABSENCE, REMARRIAGE, OR It is It is exercised concurrently
SEPARATION OF PARENTS: exercised in with the parental authority
case of of the parents and rests on
 In case one parent is absent or already death, the theory that while the
dead, the present or surviving parent absence, or child is in the custody of the
 Remarriage shall not affect the in case of person exercising special
parental authority over the children unsuitability parental authority, the
 In case of separation of parents, the of parents. parents temporarily
parent designated by the court. relinquish parental authority
 Innocent spouse gets custody of minor over the child to the latter.
 The court shall take into account all
St. Mary’s Academy v. Carpitanos
relevant considerations, especially the
choice of the child over seven years of 376 SCRA 473 (2002)
age, unless the parent chosen is unfit. The special parental authority and
responsibility applies to all authorized
activities, whether inside or outside the
NO child under 7 years of age shall be premises of the school, entity or institution.
separated from the mother, unless the court
finds compelling reasons to order otherwise.
Examples of compelling reasons are: THE PROPERTY OF THE CHILD:
o When the mother is insane;  The Father and Mother shall jointly
o with a communicable disease that exercise legal guardianship over the
property of the minor child without court
might endanger the life or health of the
child; appointment
o or is maltreating the child.  In case of disagreement, the father’s
decision shall prevail, unless there is
[NOTE: Prostitution or infidelity to husband
does not make a mother unfit as parent.] judicial order to the contrary
 If the market value of the property or the
SUBSTITUTE PARENTAL AUTHORITY annual income of the child exceeds
P50,000, the parent is required to furnish
1. The surviving grandparent a bond of not less than 10% of the value
2. Oldest brother or sister, over 21 years of the child’s property or income
old, unless unfit or unqualified.
3. Child’s actual custodian, over 21 years
old, unless unfit or unqualified
1. Conviction of parent for crime without civil
EXERCISED BY: 2. Treats child with excessive harassment
1. School, its administrators and and cruelty
teachers, or 3. Gives corrupting orders, counsel or
2. The individual, entity or institution example
engaged in child care. 4. Compels child to beg
5. Subjects or allows acts of lasciviousness
THE CHILD: 1. Upon death of parents
1. They are principally and solidarily liable 2. Upon death of child
for damages caused by the acts or 3. Upon emancipation of child
missions of the child while under their 4. If the parents exercising parental authority
supervision, instruction or custody. has subjected the child or allowed him to
HOWEVER, this liability is subject to be subjected to sexual abuse
the defense that the person exercising
parental authority exercised proper
2. The parents and judicial guardians of RIGHTS OF PARENTS UPON THEIR
the minor or those exercising CHILDREN:
substitute parental authority over the  To have them in their custody

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 To represent them in all matters  cooperate with the family in matters

affecting their interests for his own good
 Demand respect and obedience and
impose discipline on them [ART.4, PD603]
 Administer their property and income  strive to live an upright and virtuous
to support the child and the family life
 To give or withhold consent on  love, obey, respect his parents and
marriage, pre-nuptial, donation propter cooperate with them in strengthening
nuptias, adoption, and employment the family
 To disinherit them for just cause  extend his love to his brothers and
DUTIES OF PARENTS UPON THEIR  exert his utmost to develop his
CHILDREN: potentials
 Support and upbringing in accordance
to their means
 Educate, instruct, and provide them XIV. FUNERALS
with moral and spiritual guidance, and
love and understanding GENERAL GUIDELINES:
 Defend them against unlawful
aggression 1. Duty and right to make arrangement in
 Answer for damages caused by their funerals in accordance with Art. 199 of FC:
fault or negligence, and for civil liability a. Spouse
for crimes committed by them b. Descendants in nearest degree
 Give their lawful inheritance c. Ascendants in nearest degree
d. Brothers and sisters
RIGHTS OF CHILDREN: 2. The funeral shall be in keeping with the
social position of the deceased
[ART. 356, NCC] 3. The funeral shall be in accordance with the
 parental care expressed wishes of the deceased
 receive at least elementary education a. in the absence of expressed wishes,
 be given moral and civil training by his religious beliefs or affiliation
parents or guardian shall determine
 live in an atmosphere conducive to his b. in case of doubt, the persons in Art.
physical, moral, and intellectual 199 of FC shall decide
development 4. Any person who disrespects the dead or
allows the same shall be liable for
[ART.3, PD603] damages
 to be born well
 right to a wholesome family life
 right to a well-rounded development ***
 right to a balanced diet, adequate
clothing, shelter, proper medical
attention, and all basic physical
requirements of a healthy life
 raised in an atmosphere of morality
and rectitude
 education commensurate to his
 full opportunities for a safe and
wholesome recreation
 protection against exploitation and
other bad influences
 right to the care, assistance and
protection of the State
 right to an efficient and honest
 right to grow up as a free individual


[ART.357, NCC]
 obey and honor his parents or guardian
 respect old relatives and persons
holding substitute parental authority
 exert his utmost for his education and

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I. Classification 36
II. Ownership 41
III. Accession 42
IV. Quieting of Title 48
V. Ruinous Buildings and Tress in Danger of Falling 49
VI. Co-Ownership 49
VII. Condominium Law (Act. No. 4726) 55
VIII. Possession 57
IX. Usufruct 63
X. Easements 65
XI. Legal Easements 70
XII. Voluntary Easements 77
XIII. Nuisance 78
XIV. Registry of Property 80
XV. Different Modes of Acquiring Ownership 80
XVI. Prescription 81
XVII. Tradition 82
XVIII. Lease 83
XIX. Donation 89

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3. immovables by destination- (4) (5)

PROPERTY (6) (9) and object to remain at a fixed
place on a river, lake, or coast
4. immovables by analogy or by law-

CLASSIFICATION as to mobility Art. 416. Personal Property

Art. 414 (1) Immovable or real property (Movables):
(2) Movable or personal property FLONTS
(1)Those movables susceptible of
Art. 415. Immovables : MADAM’S C appropriation Not included in the
FLAT preceding article;
1. Land, buildings, roads, (2)Real property which by law is
constructions adhered to soil; considered as personal property;
2. Trees, plants, growing fruits-- (3)Forces of nature which are brought
attached to land/form integral under control by science;
part of immovable (4) all things which can be transported
3. Everything attached to from place to place without impairment
immovable in fixed manner-- of the real property to which they
cannot be separated without are fixed.
breaking / deterioration
4. Statues, reliefs, paintings,  Machinery which is movable in
objects for ornamentation in nature only becomes immobilized
buildings / on lands when placed in a plant by the owner
a. by the owner of of a property or plant, NOT when
immovable placed by a tenant, usufructuary etc.
b. manner reveals intention unless acting as an agent of the
to attach owner.
permanently (Davao Sawmill v. Castillo, 1935)
5. Machinery, receptacles,  ….a building is an immovable
instruments, implements property, irrespective of whether or
intended by owner for an not said structure and the land on
industry; works which which it is adhered belong to the
may be carried on in same owner. (Lopez v. Orosa)
building or on a piece of land,  Since only personal properties could
and tend directly to meet the be the subject of a chattel mortgage,
needs of industry or works the execution and registration of the
6. (6) Animal houses, pigeon- chattel mortgage and the foreclosure
houses, beehives, fish ponds, of the house are null and void.
breeding places in case (Associated Insurance & Surety
owner placed / preserves Co. v. Iya 1958 )
them with intention to be  It is undeniable that parties to a
permanently attached to land, contract may treat as personal
AND form permanent part of it property that which by nature would
--animals are included be real property; and for purposes of
7. Fertilizer actually used on a piece taxation, what is naturally personal
of land property may be classed as real
8. Mines, quarries, slag dumps, property. If the properties subject to
while matter their matter forms the chattel mortgage are indeed not
part of the bed, and waters personal properties, the mortgage
running or stagnant would be ineffective as against third
9. Docks and structures which, parties, but this is for the courts to
though floating, are intended by determine and not by the register of
their nature and object to remain deeds. (Standard Oil vs. Jaramillo
at a fixed place on a river, lake, 1923)
or coast;  Re: building under chattel mortgage-
10. Contracts for public works, and - separate treatment by the parties
servitudes and other real of a building from the land on which
rights over immovable it stands does not change the
property. immovable character. An inscription
of a deed of sale of real property in
Classification: the chattel mortgage registry cannot
1. immovables by nature - (1) and (8) be given the legal effect of an
2. immovables by incorporation- (2) (3) inscription in the registry of real

100% UP LAW UP BAROPS 2008 Page 36 of 325


property. (Leung Yee v. Strong mode and title. alone.

Machinery, 1981) (5) Not
 Where chattel mortgage is (5) Extinguished by extinguished
constituted on machinery the loss or by the loss or
permanently attached to the ground, destruction of destruction of
machinery is personal property and the thing. the thing.
mortgage is not null and void, (6) Gives rise to real (6) Produces
regardless of who owns the land. It actions against only personal
is undeniable that the parties to a 3rd persons actions against
contract may by agreement treat as definite
personal property that which by its debtor.
nature would be real property, as
long as no interest of third parties
may be prejudiced thereby. (Makati Classification of Movables
Leasing and Finance Corp v.
Wearever Textile Mills 1983) (a) Consumables – includes those
movables which cannot be used in a
Differences between Real Rights and manner appropriate to their nature
Personal Rights without their being consumed
(b) Non-consumable- includes all
Kinds of rights considered as property others
(a) Real (jus in re)—power belonging to
a person over a specific thing. It Classification According to
gives direct and immediate juridical Ownership
power over a thing susceptible of
being exercised against a a) Public Dominion 420
determinate person and the whole i. intended for public use
world. ii. intended for public service of state,
(b) Right of obligation or Personal (jus provinces, cities & municipalities
ad rem)—rights belonging to one Characteristics:
person to demand of another as a i. outside the commerce of men
definite passive subject, the ii. cannot be acquired through
fulfillment of a prestation to give, to prescription
do, or not to do. iii. not subject to attachment &
Real rights arises from iv. cannot be burdened by voluntary
(OPLUMEPARP) easement
1. Ownership
2. Possession * Art. 424. Property for public use, in
3. Lease the provinces, cities, and municipalities,
4. Usufruct consist of: (RSS FW P3)
5. Mortgage Roads, Streets, Squares, Fountains,
6. Easement Public Waters, Promenades, Public
7. Pledge Works for public service paid for by the
8. Antichresis local government
9. Redemption All other property possessed by any of
10. Preemption them is patrimonial.

Real Rights Personal Rights b) Private Ownership – 421

(1) One definite (1) There is a i. patrimonial property of state,
active subject definite active provinces, cities, municipalities
and the rest of and passive -exist for attaining economic ends
the world as object. of state
passive (2) Object is an -property of public dominion when
(2) Object is a intangible no longer intended for public
corporeal thing. thing. use/service – declared patrimonial
(3) Real right affects (3) Personal
the thing affects the ii. property belonging to private
directly. thing directly persons – individually or
through the collectively
prestation of
the debtor.
(4) The creation of (4) Creation of
the juridical the juridical
relation is by title is by title

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Cases  The sale to private parties of a public

 Churches and other consecrated road which has been validly closed
objects are outside the commerce of by the city government is valid. Basis
man (Barlin vs. Ramirez, 1907) : Art 422 CC (Cebu Oxygen and
 Reclaimed land is public property. In Acetylene v. Bercilles, 1975)
case of gradual erosion by the ebb  The attachment of the municipal
and flow of the tide, private property trucks, police cars, police station and
may become property of the public market stalls is void because the
domain, where it appears that the properties levied upon are exempt
owner abandoned it or permitted it from execution. Property for public
to be destroyed. When they stay in use of the municipality is not within
that condition until reclaimed by the commerce of man so long as it is
filling in done by the government, used by the public. (Vda. De
they continue to be government Tantoco vs. Municipal Council of
property after reclaiming. Immediate Iloilo)
possession by the former owner does  Under the law on Municipal
not confer on him ownership of the Corporations, however, to be
lots, because, as they were considered public property, it is
converted into property of the public enough that property be held and
domain, no private person could devoted for governmental purposes.
acquire title except in the form and (Province of Zamboanga del
manner established by law. Norte v. City of Zamboanga,
(Government of the Philippine 1967)
Islands v. Cabangis)


FORCIBLE ENTRY A civil proceeding to An action to seek the
UNLAWFUL ENTRY recover the better recovery of ownership,
right of possession necessarily including the
Possession unlawful except in cases of jus utendi and jus fruendi.
from time of entry. forcible
Prior physical entry/unlawful
possession is detainer.
INDISPENSABLE. Also used to refer to
Decision here is res an ejectment suit
judicata only as to filed after the
possession. expiration of 1 year
PRESCRIPTIVE PERIOD from the unlawful
1 year period starts withholding of
from last demand to possession of the
vacate. realty.
Possession was lawful
at first but later
became illegal, i.e.
defendant withholds
possession after
expiration of his right.
Prior physical
possession is NOT

100% UP LAW UP BAROPS 2008 Page 38 of 325


WHEN 1. When
APPLICABLE dispossession is
by any means
other than those
mentioned in
2. When, although
any of the
circumstances is
present, where
the 1 year
period for
bringing an
action for forcible
entry or unlawful
detainer has

ISSUE Physical/material Possession de jure Ownership, recovery of the

possession (possession of realty dominion over the property
de facto) (i.e. NOT civil independent of the as owner.
possession or title and restitution If the issue of possession
possession de jure, of possession. has already been decided,
which arises from the This action is distinct this is the only action that
ownership or is one of and different from can be filed.
the attributes of an action for
ownership), of which a recovery of title or
person 1) has been ownership.
deprived or 2) against A judgment
whom it has been rendered here is
withheld by any of the conclusive only as to
means/circumstances the question of
mentioned in RULE 70 possession, but not
as to the question of
WHO MAY 1. A person deprived An owner who is Legal owner or one with
INSTITUTE of the possession of dispossessed by the better right over the
any land or building means other than property.
by force, those mentioned in In an action for
intimidation, threat, RULE 70 RoC, or reconveyance, what is
strategy, or stealth when the possession sought is the transfer of
(forcible entry under of land is due to the property which has
RULE 70) ; tolerance of the been wrongfully/
2. A landlord, vendor, owner. erroneously registered in
vendee, or other It is not necessary another person’s name, to:
person against to wait until the 1) its rightful and legal
whom the expiration of 1 year owner; or 2) to one with
possession of any before the better right
land or building is commencement of
unlawfully withheld action.
after the expiration/ It can also be filed
termination of the after the expiration
right to hold of the 1 year period
possession by virtue if no action for
of any contract, forcible entry or
express or implied unlawful detainer
(unlawful detainer); has been filed during
or that time, otherwise,
3. The legal barred.
assigns of any such
landlord, vendor,

100% UP LAW UP BAROPS 2008 Page 39 of 325


vendee or other
WHAT HAS 1. Prior possession de For an action to
TO BE facto reconveyance to prosper,
ALLEGED 2. Undue deprivation the property should not
thereof have passed into the hands
When the complaint of an innocent purchaser
fails to aver acts for value.
constitutive of forcible
entry/unlawful detainer
(how he was
dispossessed), the
remedy should be
either accion publiciana
or accion
In an ejectment suit,
issue of ownership can
be passed upon by the
court only by
determining the issue
of possession de facto.
An action for ejectment
is merely a quieting
process. If plaintiff has
in his favor priority in
time, he has the
security that entitles
him to remain in the
property (even against
the owner himself) until
he is lawfully ejected by
a person having a
better right by an
accion publiciana or
accion reinvindicatoria.
FILED Summary In nature— Prescriptive Periods:
these cases involve a 1. 4 years—if based on
disturbance of social fraud from date of
order which must be issuance of
abated as promptly as certificate of title
possible without any over property
undue reliance on 2. 10 years—if based
technical and on implied or
procedural rules constructive trust
3. Imprescriptible—
when plaintiff is in
possession of
4. 30 years (without
prejudice to what is
established for the
acquisition of
ownership and other
real rights by
ART1141)—if real
actions over

100% UP LAW UP BAROPS 2008 Page 40 of 325


II. OWNERSHIP owners of such tenements. (Lunod v.

Art. 427. Ownership may be exercised 10. Right to Receive Just Compensation
over things or rights. in case of Expropriation (435)
exception 436: when any property is
Ownership is subject to restrictions condemned or seized by competent
imposed by: authority in the interest of health, safety
1. LAW and or security
2. RIGHTS of others 11. Right to Space and Subsoil
The right of the owner extends to the
Attributes of Ownership (UFADVPA) space and subsoil as far as necessary for
1. Jus possidendi- right to possess his practical interests or to the point
2. Jus Utendi (right to use)—right to where it is possible to assert his
enjoy by receiving the thing that dominion and there is the possibility of
it produces. obtaining some enjoyment or benefit.
Beyond these limits, he would have no
legal interests.
3. Jus abutendi—right to enjoy by 12. Right to Hidden Treasure (if found
consuming the thing by its use on his property)
4. Jus Disponendi—the right to a) hidden and unknown movables
dispose or encumber, transform, consist of money or precious
and even destroy the thing objects
owned. b) owner is unknown
5. Jus Fruendi – right to receive c) If treasure is found by a stranger
fruits by chance –½ belongs to finder;
6. Jus vindicandi—right to exclude the finder must not be trespasser
from the possession of the thing be entitled to a share.
owned by any other person to  Discovery by chance
whom the ownership has not When there is no purpose or intent
transmitted such thing, by the to look for the treasure.
proper action for restitution, with 13. Right to accession
the fruits, accessions, and 14. Right to recovery or possession/
indemnification for damages. ownership
7. jus accessionis- right to the Actions for possession:
accessories 1. movable – replevin (return of a
Other specific rights: (HARJEES) 2. immovable –
8. Right to Exclude: Doctrine of Self- a) forcible entry
Help (429) b) unlawful detainer
Elements: c) accion publiciana
a) Person exercising rights is owner d) accion reinvindicatoria
or lawful possessor e) Writ of Possession -- the original
b) There is actual or threatened registered owner is entitled to a
unlawful physical invasion of his writ of possession against the
property (not available to parties who appear and answer in
squatters) the land registration proceedings
c) Use force as may be reasonably and against all those who, having
necessary to repel or prevent it been served with process, do not
-Available only when possession appear or answer.
has not yet been lost, if already f) Writ of injunction
lost – resort to judicial process  May be used to prevent or
-May be exercised by 3rd person – restrain acts of trespass or illegal
negotiorum gestio interference by others of his
- Art. 431. cannot make use possession of the property.
thereof in such manner as to injure the
rights of a third person. Requisites in an action to recover
9. Right to Enclose or Fence without (a) Identity of the property
detriment to servitudes constituted (b) Strength of plaintiff’s title/ Better
thereon (430) Title
A person cannot enclose his tenement
and construct a fish pond that will Limitation of Real Right of
obstruct the natural flow of waters from Ownership
the upper tenements to the injury of the (1) For the benefit of the state and for
public interest (Police power,
eminent domain, taxation)

100% UP LAW UP BAROPS 2008 Page 41 of 325


(i) Expropriation for public use III. ACCESSION

(ii) Military requisitions
(iii) Zonification laws
(iv) Public or government monopolies Art. 440. The ownership of property
(v) Law on water and mines gives the right by accession to
(vi) Public health and safety everything which is produced thereby, or
(vii) Public easements which is incorporated or attached
thereto, either naturally or artificially.
(2) Legal servitudes and Voluntary
(3) Limitations imposed by party General Principles of Accession
transmitting property (1) Accessory follows the principal
(i) Either by contract or last will or (2) No unjust enrichment (Art. 443)
donations (3) All works, sowing, and planting
(ii) Stipulation on inalienability are presumed made by owner & at
his expense, unless otherwise proved
(4) True Owner Must Resort to Judicial (Art. 446)
Process (4) Accessory incorporated to
(5) It is unlawful to exercise the right of principal such that it cannot be
ownership in such a manner as to have separated without injury to work
no other effect than to injure a third constructed or destruction to
person without benefit to the owner. plantings or construction of works.
(5) Bad faith involves liability for
(a) Act in State of Necessity damages
 The law permits the injury or (6) Bad faith of one party neutralizes
destruction of things belonging to bad faith of the other (Art. 453).
others provided this is necessary (7) Ownership of fruits belong to the
to avert a greater danger or principal thing; Exceptions: (PULA)
dangers. (i) possession in good faith is
 Different from concept of self- entitled to fruits
help; the purpose is to protect (ii) usufructuary is entitled to fruits
the actor himself or another (iii) lessee is entitled to fruits
person at the expense of the (iv) antichretic creditor is entitled to
owner of the property who has no fruits
part in the state of necessity.
Kinds of Accession
(b) Liability of Proprietors under (1) Accession discreta – the right
Article 2191, for damagegs pertaining to the owner of a thing
caused by exposion of machinery, over everything produced thereby:
excessive smoke, falling of trees, (a) Natural fruits, or spontaneous
emanations from canals products of the soil, and the
(c) Fortified places or Fortresses- young and other products of
must comply with special laws animals (Art. 442)
and regulations (b) Industrial fruits, or those
(d) Easement of Aqueduct- must produced by lands of any kinds
observe proper distances and through cultivation or labor (Art.
prevent damage to neighboring 442)
tenements (c) Civil fruits, or rents of buildings,
(e) Planting of Trees the price of leases of and other
(f) Easements property and the amount of
(g) Lateral and Sub-adjacent perpetual or life annuities or
Support other similar income (Art. 442)

- Cannot commit crime in the  A dividend, whether in cash or

exercise of ownership (People stock, is income or fruit and
vs Segovia, 1958) consequently should go to the
- Can file action for recovery of usufructuary, rather than the
possession even if one has never owner of the shares of stock.
possessed the land; action is Dividend is declared only out of
plenary action for recovery of the profits of a corporation and
possession (De La Paz vs. not out of its capital. (Bachrach
Panis, 1995) vs. Seifert).

100% UP LAW UP BAROPS 2008 Page 42 of 325


 A bonus paid by the mortgage- Right of owner of materials (OM)

debtor to another who had
1. Right to be indemnified or paid of
mortgaged his land to secure the
value of property by owner of
payment of the debtor’s
obligation to a bank is not a civil
2. Right to remove materials if he
fruit of the mortgaged property.
can do so w/o injury to work
It is not income delivered from
constructed if owner has not paid
the property but a compensation
3. Right to damages and demolition
granted for the risk assumed by
even if with injury to work if
the owner of the property.
owner of land is in bad faith
(Bachrach vs. Talisay-Silay)


(2) Accession Continua – the right
pertaining to the owner of a thing
a) BPS / Land-owner +
over everything that is incorporated
Owner of Materials 447
or attached thereto, either naturally
or artificially.
- Land-owner GF: took
(a) With regard to immovable materials with no
property knowledge that it
(a.1) Accession industrial belonged to a 3rd
(BPS) person
- Land-owner BF: took
(i) Building,
materials knowing fully
(ii) Planting, or
well that it belonged to
(iii) Sowing (Arts. 445-456)
a 3rd person
- Owner of Materials GF:
(a.2) Accession natural (FACA) demanded payment /
no idea of taking
(i) Alluvium
- Owner of Materials BF:
(ii) Avulsion
(iii) Change in the course of
(iv)Formation of islands

(b) With regard to movable property

(b.1) Adjunction or
(i) inclusio or engraftment
(ii) soldadura or attachment
(a) ferruminatio – objects
are of the same metal
(b) plumbatura – objects
are diff. metals
(iii) tejido or weaving
(iv)pintura or painting
(v) escritura or writing
(b.2) Commixtion or confusion
(b.3) Specification

Accession Industrial
 Art. 446 establishes 2 disputable
presumptions regarding BPS:
(a) The works etc. were made by the
(b) They were made at the owner’s
Exception: When contrary is proven

100% UP LAW UP BAROPS 2008 Page 43 of 325


Land-owner / BPS (by himself or thru Owner of Materials

GF: pay value of materials and own the GF: right to be paid value of materials
thing built May remove materials if can be separated
without injury (no accession) but accession
prevails (hence, most likely only get paid)
BF: pay value of materials + damages
GF: right to be paid value of materials +
indemnity or remove materials even with
damage + indemnity
GF: pay value of materials regardless of BF: right to be paid value of materials
bf/gf of OM Another view: 449 by analogy, loses right
Another view: 449 by analogy, no to materials, no reimbursement
BF: (both considered good faith) BF: (both considered good faith)

a) BPS / Owner of Materials + Land-owner

- Land-owner GF: no knowledge of illegal BPS

- Land-owner BF: has knowledge of illegal BPS and does not oppose it
453 (2)
- BPS/OM GF: s/he does not know that he built on another’s land
- BPS/OM BF: has knowledge that he had no right to build, plant or sow

Land-owner BPS / Owner of Materials

GF: options GF
1. Appropriate works, sowing or planting
+ pay indemnity
2. Oblige BP to pay price of land (or pay
rent if land value > building and trees)
or Sower to pay rent
Rent – fixed by agreement of parties; if
not, by court 448

GF: options BF: loses what is built, planted or sown,

1. Appropriate without indemnity 449 with no right to indemnity 449
2. Compel removal without indemnity at Still entitled to reimbursement for
BPS’s expense 450 necessary expenses of preservation of the
3. Compel BP to pay price of land (no land 452
conditions) and Sower, the proper rent Whichever option chosen, must pay LO
450 damages 451
Whichever option chosen, entitled to
receive damages 451

BF: 447 by analogy 454 GF: options (447 by analogy – 454)

Pay value of materials + damages 1. Remove works, sowing or planting even
with damage
2. Force payment of indemnity

BF: (both considered GF) BF: (both considered GF) 453 (1)

b) BPS + Land-owner + Owner of Materials 455

100% UP LAW UP BAROPS 2008 Page 44 of 325


LO appropriates and pays indemnity: OM can proceed against LO only after BPS
refuses/cannot pay, OM cannot remove
LO sells land to BPS: OM can only proceed against BPS
LO compels demolition: OM cannot claim from LO, BPS solely liable
LO appropriates and pays indemnity: OM can proceed against LO only after BPS
refuses/cannot pay, OM cannot remove
LO sells land to BPS: OM can only proceed against BPS

BPS removes even with damage: OM can only go after BPS

BPS forces LO to pay indemnity: OM can’t demand removal/return but OM can proceed
against BPS and subsidiarily, the LO
Similar to GF-GF-(GF)-GF
LO appropriates and pays indemnity: OM can proceed against LO only after BPS
refuses/cannot pay, OM cannot remove

LO sells land to BPS: OM can only proceed against BPS


LO appropriates and pays indemnity: OM can proceed against LO only after BPS
refuses/cannot pay, OM cannot remove
LO sells land to BPS: OM can either ask BPS for indemnity + damages or remove
material even with damage

LO compels demolition: OM can compel return of material by removing even with

damage + damages or OM can ask for indemnity + damages
LO appropriates: OM can’t remove because right of removal applies only to BPS in BF,
LO can’t be prejudiced; OM only entitled to the value of materials (indemnity) +
damages from LO
LO sells land to BPS: OM can compel removal (straightforward 447) or ask BPS for
indemnity + damages

BPS removes even with damage: OM can either compel BPS to pay indemnity or to
return materials, in both cases + damages
BPS forces LO payment of indemnity: OM can’t demand removal/return but OM can
proceed against BPS and subsidiarily, the LO

Similar to GF-GF-(BF)-GF

LO appropriates and pays indemnity: OM can proceed against LO only after BPS
refuses/cannot pay, OM cannot remove
LO sells land to BPS: OM can either ask BPS for indemnity + damages or remove
material even with damage

100% UP LAW UP BAROPS 2008 Page 45 of 325


Cases: his and he is ignorant of any defect or

flaw in his title. And as good faith is
A forced co-ownership occurs when the
presumed, the LO has the burden of
BPS has acted in good faith. Owner of the
proving bad faith on the part of the BPS.
land ihas the right of retention (to pay)
(Pleasantville Dev’t. Corp. v CA, 1996)
because his right is older and because, by
the principle of accession, he is entitled to
After the BPS had refused to restore the
the ownership of the accessory thing.
land to the LO, to the extent that the
(Bernardo vs. Baticlan)
latter even had to resort to the present
Since the option to remove or demolish action to recover his property, the LO
improvement is given to the LO and it is could no longer be regarded as having
limited to paying for the improvement or impliedly assented or conformed to the
selling his land to the BPS, he cannot improvements thereafter made by
refuse to exercise his right of choice and appellant on the premises. (Felices v.
compel the builder to remove or demolish Iriola)
the improvement. He is entitled to such
removal only when after choosing to sell (2) Accession in Natural
his land, the other party fails to pay for
(i) Alluvium 457 – the accretion
the same. (Ignacio vs Hilario)
which lands adjoining the banks or
An order by a court compelling a builder in rivers, lakes, creeks or torrents
good faith to remove is building from land gradually receive from the
belonging to another who chooses neither
Requisites of alluvium: (CANG)
to pay for such building nor sell the land is
null and void for being offensive to Art. (a) The accretion must be gradual
448. (Sarmiento v. Agana)
(b) The cause must be the
While a possessor in good faith may retain current of the water
the property until he is reimbursed for
(c) The land where the
necessary and useful expenses, all the
accretion takes place must be
fruits he receives from the moment his
adjacent to the banks
good faith ceases must be deferred or
paid by him to the LO. He may, however, (d) must be natural
secure the reimbursement of his expenses
*riparian owner – owner of the land
by using the fruits to pay it off (deduct the
fronting such riverbanks
value of the fruits he receives from the
time his good faith ceases from the The alluvium, though automatically owned
reimbursement due him). (Ortiz vs by the riparian owner from the moment
Kayanan) the soil deposit can be seen, is not
automatically registered property, since it
A BPS in good faith does not lose his
is subject to acquisition through
rights under Art. 448 merely because of
prescription by 3rd persons. (Grande vs
the fact that some years after acquiring
the property in good faith, helearned
about and aptly recognized the right of (ii) Avulsion 459– takes place
the LO to a portion of the land occupied whenever the current of a river,
by the building. The supervening lake, creek or torrent segregates
awareness does not prejudice its right to from an estate on its bank a known
claim the status of a builder in good faith. portion of land and transfers it to
(Tecnogas Phil. Manufacturing Corp. another estate
vs CA)
Distinguished from Alluvium
The BPS in good faith should not pay
Alluvium Avulsion
rentals to the LO spouses. The spouses,
having opted to appropriate the 1. Deposit of soil is 1. Deposit of soil is
improvement on the lot, have to gradual sudden or abrupt
reimburse the BPS of the cost of
2. Deposit of the 2. The owner of the
construction of the building (in accordance
soil belongs to the property from which
with Art 546). The BPS has the right to
owner of the a part was detached
retain the improvements until he is
property where the retains the
reimbursed. An implied tenancy or
same was deposited ownership thereof
possession in fact is created pending the
(2 yrs)
payment of the corresponding indemnity.
(Pecson v CA) 3. The detached
3. The soil cannot
portion can be
Good faith consists in the belief of the be identified
builder that the land he is building on is

100% UP LAW UP BAROPS 2008 Page 46 of 325


Requisites of Avulsion (SIC) On lakes, and on navigable or

floatable rivers (Art. 464) or non-
(a) The segregation and transfer is
navigable and non-floatable rivers
caused by current of water
(Art. 465).
(b) The segregation and transfer must
be sudden or abrupt
(1) Ownership of islands formed through
(c) The portion of land
transported must be known and
identifiable (a) If formed:
(a.1) on the seas within Phil.
Rights of the riparian owner
(a.2) on lakes, and
 Removal within 2 years
 The former owner preserves his (a.3) on navigable or floatable waters,
ownership of the segregated portion the island belongs to the State
provided he removes (not merely
claims) the same within the period of
2 yrs. (b) If formed in non-navigable and
 Art. 460 applies only to uprooted non-floatable rivers:
trees. If a known portion of land with
(b.1) it belongs to the nearest riparian
trees standing thereon is carried away
owner or owner of the margin or
by the current to another land, Art.
bank nearest to it as he is
459 governs.
considered in the best position to
cultivate and develop the island
(iii) Change of river beds
(b.2) it is divided longitudinally in
– that which takes place when a river halves, if it is in the middle of the
bed is abandoned through the river
natural change in the course of the
waters (Art. 461)
(c) Concept of navigable river
 A navigable river is one which
Requisites for the application of Art.
forms in its ordinary condition by
itself or by uniting with other
(a) There must be a change in waters a continuous highway over
the natural course of the waters of with other waters a continuous
the river. highway over which commerce is
or may be carried on.
(b) The change must be abrupt
Test: A river is navigable if it is used or
or sudden.
susceptible of being used, in its ordinary
condition, as a highway of commerce, that
is, for trade and travel in the usual and
Right of owner of land occupied by
ordinary modes.
new river course
Accession Continua-Movable property:
1. Right to old bed ipso facto in
(1) Adjunction or Conjunction – that
proportion to area lost
which takes place whenever movable
2. Owner of adjoining land to old bed
things belonging to different owners
shall have right to acquire the
are united in such a way that they
same by paying its value – value
cannot be separated without injury,
not to exceed the value of area
thereby forming a single object (Art.
occupied by new bed
3. Formation of island in non-
navigable river Ownership of new object formed by
a) owner of margin nearest to adjunction
islands formed – if nearest to it
Owner of Principal  OP
b) owner of both margins – if
Owner of Accessory  OA
island is in the middle (divided
into halves longitudinally)
(a) union in Good Faith OP acquires
accessory, AND pays OA for its
(iv) Formation of islands
value in uncontroverted state.
either on the seas within the
jurisdiction of the Philippines. (b) union in Bad Faith

100% UP LAW UP BAROPS 2008 Page 47 of 325


-if OA incorporated in BF (b) If PT is in Bad Faith,

1. lose the thing and 1. OM shall appropriate work to
2. indemnify OP for himself
damages Without paying maker OR
-if OP acted in BF 2. demand indemnity for value of
1. OA has right to choose material & damages
-payment of value
-separation (even if BUT If transformed thing is more
destroys principal) valuable than material, owner of
2. OA indemnified material cannot appropriate
(c) If OP or OA made the
incorporation with the knowledge
(3) Commixtion or confusion – that which
and without the objection of the
takes place whenever there is a mixture of
other, their respective rights shall
things solid or liquid belonging to different
be determined as though both
owners, the mixture of solids being called
acted in good faith.
commixtion, while that of liquids,
(d) if involves 3 things Art. 466
confusion (Art. 472).
should be applied in an equitable
manner. The principal should be
determined and distinguished from Rights
the others which would be 1. If both owners are in good faith –
considered the accessories. Each owner shall acquire a right
proportional to the part belonging
TEST to determine principal in
to him (vis-a-vis the value of the
things mixed or confused)
In order of application, the principal is 2. If one owner is in bad faith – he
that: shall lose the thing belonging to
(a) To which the other (accessory) has him plus indemnity for damages
seen united as an ornament or for caused to owner of other thing
its use or perfection (Art. 467)- mixed with his thing
INTENT 3. If both in bad faith no cause of
(a) Of greater value, if they are action against each other
unequal values-VALUE
(a) Of greater volume, if they are of an
equal value (Art. 468)-VOLUME IV. QUIETING OF TITLE
(a) That of greater merits taking into
consideration all the pertinent legal
provision applicable as well as the It is a remedy or form of proceeding
comparative, merits, utility and originating in equity jurisprudence, which
volume of their respective things. has for its purpose an adjudication that a
claim of title or an interest in property,
adverse to that of complainant, is invalid,
(3) Specification – that which takes place so that the complainant and those
whenever a person imparts a new claiming under him may be forever free
form to materials belonging to another from any danger of the hostile claim.
person (Art. 474).
Ownership of the new object in (1) There is a cloud on title to real
specification property or any interest to real
property (Art. 476)
Person who made Transformation  PT
Owner of Material  OM (2) Plaintiff has legal or equitable title
to or interest in the subject/real
(a) If PT is in Good Faith, he shall property.
1. appropriate thing transformed (3) Instrument, record, claim,
as his own encumbrance or proceeding must be valid
2. indemnify owner of material and binding on its face but in truth and
in fact invalid, ineffective, voidable or
BUT If material is more precious than unenforceable; contract upon which
transformed thing OM may defendant relies has been extinguished or
1. appropriate new thing to himself terminated, or has prescribed
and indemnify labor OR (4) Plaintiff must return benefits
2. demand indemnity for received from the defendant.

100% UP LAW UP BAROPS 2008 Page 48 of 325


Differences between action to quiet title, action to remove a cloud, and action to
prevent a Cloud
Purpose is to put to an end Intended to procure the Removal of a possible
to vexatious troublesome cancellation; delivery; release foundation for a future
litigation over the property of an instrument, encumbrance hostile claim.
involved or claim, which constitutes a
claim in plaintiff’s title, and
which may be used to injure or
to vex him in his enjoyment of
his title.
Remedial action: involving a Preventive action: removes cloud Preventive action: to prevent
present adverse claim which may be used for future a future cloud on the title
Plaintiff asserts his own Declares his own title and also
estate and declares avers he source and nature of
generally that the the defendant’s claim, points
defendant claims some out its defects and prays it be
estate on the land, without declared void
defining it and avers that
the claim is without
foundation and calls on the
defendant to set forth the
nature of his claim for
Filed against people who have Filed against defendant who
claims; claims are more asserts claims based on an invalid
general in nature instrument (but not apparent)

Prescription of action—Imprescriptible which constitutes or casts a

if plaintiff is in possession; if not, cloud, doubt, question or shadow
prescribes within period for filing accion upon the owner’s title or interest
publiciana, accion reivindicatoria. in real property. Clearly, the acts
alleged may be considered
Notes: grounds for an action for forcible
An action for reconveyance: entry but definitely not one for
a) Prescribes in 10 years if the quieting of title. (Titong v. CA)
plaintiff is NOT in possession of
the property and if the action for
reconveyance is based on an
implied or constructive trust. The
point of reference is the date of TREES IN DANGER OF FALLING
registration of the deed or the
date of the issuance of the
certificate of title over the Liability for damages:
property. 1. collapse – engineer, architect or
b) Is IMPRESCRIPTIBLE if the contractor
person claiming to be an owner is 2. collapse resulting from total or
in actual possession of the partial damage; no repair made –
property. Here, the right to seek owner; state may compel him to
reconveyance in effect seeks to demolish or make necessary work
quiet title. (Olviga v. CA) to prevent if from falling
3. if no action – done by
 It is not necessary that the government at expense of owner
vendee has an absolute title. An
equitable title is sufficient to
clothe him with personality to VI. CO-OWNERSHIP
bring an action to quiet title.
(Pingol v. CA)
Art. 484. There is co-ownership
whenever the ownership of an undivided
 What plaintiff imagined as clouds
thing or right belongs to different
cast on his title were PR’s alleged
acts of physical intrusion and not.
an instrument, record, claim,
encumbrance or proceeding

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Characteristics of Co-ownership common.

(PUSAM) No term set limit As a rule, an
(1) plurality of owners, but only one set by law agreement to keep
real right of ownership the ownership for
(2) unity of material of the object of more than 10 years
ownership is void.
(3) recognition of ideal shares or aliquot Creditors of Creditors of a co-
(4) absolute control of each co-owner individual partners owner can attach
over his ideal share, not over specific cannot attach and his shares in the
portions of the property sell on execution co-owners and sold
(5) mutual respect among co-owners in the shares of on execution
regard to the use, enjoyment, and partners in the
preservation of the property owned partnership
in common. Can be Death or incapacity
extinguished by of a co-owner does
Differences between co-ownership the death or not affect existence
and joint tenancy incapacity of one of a co-ownership
Co-ownership Joint Ownership There is mutual A special authority
Tenancy in Joint tenancy, representation of is needed for such
Common, Tenancy in the parties representation.
Ownership in common, Notion of A partner cannot A co-owner can
Common, Co- “all-for one, one- transfer his rights freely dispose of
dominium for-all” to a 3rd person his share without
Civil law origin Common Law/ without the need to ask the
Anglo-American consent of the consent of the
origin others other co-owners.
Each co-owner Each joint owner, Distribution of Profits of a co-
owner of his ideal the surviving joint profits can be owner depend on
share owners are stipulated upon his proportionate
subrogated in his (profit-sharing) share; profit-
rights by accretion sharing is
Each co-owner Joint owner must invariable (Art.
may dispose of his obtain the consent 485) not subject to
undivided share of all the rest to stipulation
without the other’s dispose of his
consent. share. Sources of co-ownership
In case there is a The defense of one
co-owner who is a joint owner can be (1) Law
minor, minority as used as a defense (a) Cohabitation
a defense against by all joint owners. (i) Between man and woman
prescription is capacitated to marry each
exclusive to him. other. (Art 147, FC)
(ii) Between man and woman not
Differences between partnership capacitated to marry each
and co-ownership other (Art. 148, FC)

Ordinary Co-ownership (b) Absolute community property

Partnership (Art. 90, FC)
With legal/juridical No legal (c) two or more persons purchase
personality distinct personality distinct property and by common consent
from its members from its members legal title is taken in the name of
Created only by created by “LAW one of them for the benefit of all,
agreement or FOCUS” [Law, an implied trust is created in
contract to that Fortuitous Event, favor of the others in proportion
effect Occupancy, to each to interest of each. (Art.
Contract, 1452)
Purpose is to Purpose is (d) Succession
obtain profit collective (i) Intestate succession (1078)
enjoyment and to (ii) Testate—if property is given
maintain the unity to two or more heirs by the
and preservation of testator
the things owned in

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Redemption done by one of (8) full Ownership of proportion (493)

the co-owners/heirs will benefit
his other co-owner heirs despite
the fact that they did not (1)Right to share in the fruits and
contribute to the redemption benefits in proportion to his
money. interest

(e) Donation  PROVIDED the charges are borne by

 donation to several persons each in the same proportion
jointly, it is understood to be in  A contrary stipulation is VOID.
equal shares  Portions are presumed equal unless
 no rights of accretion unless the contrary is proved.
donor otherwise provides  Accretion added to any portion of
 but if donation is made to land co-owned becomes part of the
husband and wife jointly, there property in co-ownership and should
shall be a right of accretion, be divided according to each co-
unless contrary so provide. owners proportionate share.

(f) Chance – commixtion in good (2)Right to make repairs for

faith (Art. 472, NCC) preservation
(g) Hidden treasure – co-ownership
between finder and owner  Necessary expenses
(h) Easement of a party wall - taxes and expenses for the
(i) Occupation – Harvesting and preservation of the thing which if
fishing not made would endanger the
(Punsalan et al. v. Boon Liat existence of the thing or reduce
et al.) its value or productivity
(j) Condominium law - may be incurred upon the will of
Sec. 6(c) of RA 4726 – unless 1 co-owner, but if practicable, he
otherwise provided, common areas must give reasonable notice to
are held in common by the holders of the other co-owners
the units in equal shares, one for
each unit.  Useful expenses
- increase the income of the thing
(2)Contract owned in common for the benefit
(a) Two or more persons agree to of all the co-owners
create a co-ownership—maximum - a lone co-owner cannot incur
of ten years (494, 2nd par), such expenses without the
extendable by a new agreement. consent of the others and then
(b) Universal Partnership ask reimbursement (resolution of
(i) Of all present properties (Art. majority as per Art. 492)
1778-1779, NCC) - Effect of failure to notify co-
(ii) Of profits (Art. 1780, owners even if it was practicable
NCC) to do so: does not deprive co-
(c) Associations and Societies, owner of right to reimbursement.
whose articles are kept secret He is merely given the burden to
wherein anyone of the members prove the necessity of such
may contact in his own name repairs. He will not be fully
with third persons (no juridical reimbursed if others can prove
personality) that i.e., could have hired a
contractor who would charge less
Rights of each co-owner as to the
thing owned in common: FRom (3)Right to compel the other co-
CUERPO owner to contribute

(1) proportionate Fruits and benefits  For:

(485) 1. expenses for preservation
(2) Repairs for preservation (489-490) 2. taxes
(3) Compel contribution (488)  BUT co-owner has option not to
(4) Use according to purpose intended contribute by renouncing so much of
(486) his undivided interest equal to the
(5) bring an action for Ejectment (487) amount of contribution EXCEPT if
(6) legal Redemption (1620) waiver is prejudicial to co-ownership
(7) demand Partition and terminate co-
ownership (494-496; 498)

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(4)Right to use the thing according him upon termination of the co-
to its intended purpose ownership and, as earlier discussed,
that the remaining co-owners have
 may be altered by agreement, the right to redeem, within a
express or implied, provided: specified period, the shares which
- without injury or prejudice to may have been sold to the third
interest of co-ownership; and party (Reyes vs. Judge
- without preventing the use of Concepcion)
other co-owners
 Any act against the collective  Art 1621 presupposes that the land
interest is an act against ownership sought to be redeemed is rural. Both
and the remedies available to owners lands—that sought to be redeemed
in general may by used by the co- and the adjacent lot belonging to the
owner person exercising the right of
redemption—must be rural. If one or
(5)Right of to bring an action in both are urban, the right cannot be
ejectment invoked. (Halili v. CA, 1998)

 no need to implead all the other co-  Art. 1623 requires that the written
owners as co-plaintiffs because the notification should come from the
suit is deemed to be for the benefit vendor or prospective vendor, not
of all: a favorable decision will from any other person. It is the
benefit everyone but an adverse notification from the seller, which
decision will not affect them if they can remove all doubts as to the fact
are not parties in the case or they of the sale, its perfection, and its
did not give their consent to the validity, for in a contract of sale, the
action seller is in the best position to
 BUT action will not prosper if the confirm whether consent to the
action is for the benefit of himself essential obligation of selling the
only and not for the co-ownership property and transferring ownership
 For title to prescribe in favor of the thereof to the vendee has been
co-owner, however, there must be a given. (Francisco v. Boiser)
clear showing that he has repudiated
the claims of the other co-owners  The written notice of sale is
and that they have been mandatory for the tolling of the 30-
categorically advised of the exclusive day redemption period,
claim he is making to the property in notwithstanding actual knowledge of
question. Only then will the period of a co-owner. (Verdad v CA, 1996)
prescription being to run. (Cortes v.
Oliva)  A third person, within the meaning of
Art. 1620 of the Civil Code (on the
(6)Right to exercise legal right of legal redemption of a co-
redemption owner) is anyone who is not a co-
owner. (Pilapil v CA)
 Redemption of the property by a co-
owner does not vest in him sole
ownership over said property but will (7)Right to ask for partition
inure to the benefit of all co-owners.
Redemption is not a mode of  PARTITION: a division between two
termination of relationship. or more persons of real or personal
(Mariano v CA) property which they own as co-
partners, joins tenants or tenants in
 By the very nature of the right of common, effected by the setting
"legal redemption", a co-owner's apart of such interests so that they
right to redeem is invoked only after may enjoy and possess it in
the shares of the other co-owners severalty.
are sold to a third party or stranger
to the co-ownership. The law does  Gen rule: A co-owner can always ask
not prohibit a co-owner from selling, for a partition. There is no
alienating or mortgaging his ideal prescriptive period.
share in the property held in  Exceptions: (PUI SCAN)
common. The law merely provides 1. when partition is generally
that the alienation or mortgage shall Prohibited by law
be limited only to the portion of the 2. when partition would render the
property which may be allotted to thing Unserviceable, or the thing

100% UP LAW UP BAROPS 2008 Page 52 of 325


in common is essentially quota or ideal portion without any

Indivisible physical adjudication.
- no physical partition but thing
maybe sold and co-owners  Co-owner can substitute another
shall divide the proceeds person in the enjoyment of the thing
3. when there is a Stipulation
against it (not beyond 10 years)  Effect of transaction by each co-
4. when Condition of indivision is owner:
imposed by transferor (donor or 1. Limited to his share in the
testator) not exceed 20 years partition
5. Acquisitive prescription has set in 2. Transferee does not acquire any
facor of a stranger to co- specific portion of the whole
ownership or in favor of co- property until partition
owner. 3. Creditors of co-owners may
6. when legal Nature of community intervene in the partition to
prevents partition (e.g. party attack the same if prejudicial
wall) (Art. 499), except that creditors
cannot ask for rescission even if
 Either co-owner may demand the not notified in the absence of
sale of the house and lot at any time fraud (Art. 497)
and the other cannot object to such  Unless the partition is effected, each
demand. Thereafter the proceeds of heir cannot claim ownership over the
the sale shall be divided equally definite portion and cannot dispose
according to their respective of the same. Co-heir can only sell his
interests. (Aguilar v. CA) successional rights. (Carvajal v CA)

 Effects of partition:  Art 493 of the NCC allows the

1. It shall NOT prejudice third alienation of the co-owner of his part
persons who did not intervene in in the co-ownership. The effect of
the partition such alienation or mortgage shall be
2. There should be mutual limited to the portion which may be
accounting of benefits, allotted to him in the division upon
reimbursements, payment of the termination of the co-ownership
damages due to negligence or In short, a co-owner can enter into a
fraud, liability for defects of title contract of lease insofar as to his
and quality of portion assigned to interest. Therefore, he can also
each cancel such lease without the
3. The part allotted to a co-owner at consent from the other co-owner.
partition will be deemed to be (Castro v. Atienza)
possessed by such co-owner from
the time the co-ownership Duties and Limits to Rights of Co-
commenced. owners
4. Heir is exclusive owner of 1. pay for charges (485)
property adjudicated to him. 2. not to make alterations (491)
5. Co-owners reciprocally bound to after partition…
each other for warranty of title 3. mutually account (500)
and quality of part given to each 4. liability for defects in title and
(hidden defect) after partition. quantity (501)
6. Under Art. 1093, obligation of Duty not to make alterations
warranty is proportionate to
respective hereditary shares; Alteration: act by virtue of which a co-
insolvency of one makes the owner
others liable subject to  changes the thing from the state
reimbursement (joint liability) in which the others believe it
should remain or
(8)Right to full ownership of  withdraws it from the use to
proportion which they are desired to be
intended in opposition to the
 All that he can sell or freely dispose common or tacit agreement
is his undivided interest but he Consent of ALL the co-owners is required
cannot sell or alienate a concrete, if it changes the essence or nature of the
specific or definite part of the thing thing (present article refers to this)
owned in common because his right because it is an act of ownership.
over the thing is represented by a Acts of alteration that do not change the
essence or nature of the thing requires

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only the agreement of the majority and their decisions are binding upon
because it is merely an act of the minority. Majority may only
administration. proceed to act without notice to the
- but if withholding of consent by minority if the circumstances warrant
any one of the co-owners is urgency.
clearly prejudicial to the common
interest, courts may afford b) An administrator who may or may
adequate relief (491) not be a co-owner delegated by the
Acts of Acts of An administrator cannot, without the
Alteration/Acts Administration unanimous consent of all the co-
of Ownership owners, compromise on, donate,
Relates to the use, Also for the better cede, alienate, mortgage, or
substance or form enjoyment of the encumber in any manner the
of the thing property common property.

Have a more Effects are of The majority refers to the majority in

permanent result transitory interest or the financial majority. (50%
character + 1)

Consent of all is Consent of the When are acts seriously prejudicial?

necessary financial majority  So serious and affects the
will be binding interest of the co-owners in the
Contrary to the co- Does not give rise community
ownership to a real right over  Such that will cause injuries
agreement the thing owned in enough to justify the intervention
common. of the court

Effects of acts of alteration and (1) When the resolution calls for a
remedies of non-consenting co- substantial change or alteration of
owner : the common property or of the use
(a) Co-owner who made alterations to which it has been dedicated by
may lose whatever he has spent agreement or by its nature
as he will not be reimbursed (2) When the resolution goes beyond
(b) He may be ordered to demolish the limits of mere administration, or
or remove the alteration at his invades the proprietary rights of the
expense co-owners, in violation of Art. 491
(c) He will be liable for damages and (prohibiting against acts of
other losses alteration)
(d) Co-ownership will benefit from (3) When the majority leases, loans,
the alteration if other co-owners or other contracts without security,
decide to contribute to the exposing the thing to serious danger
expenses by reimbursing him to the prejudice of the other co-
(ratification) owners.
(e) If a house is built in a common (4) When the majority refuse to
lot, the co-owners are entitled to dismiss an administrator who is
the proportionate share of the guilty of fraud or negligence in his
rent. management, or does not have the
respectability, aptitude, and solvency
Lease becomes an act of ownership if: required of persons holding such
(1) It is recorded in the Registry position.
of Property (5) When resolution, if carried out,
(2) It is for more than 1 year would cause serious injury to the
thing itself, such as an agreement
Management of Property not to borrow money under
reasonable terms when it is
Who may manage: necessary for urgent repairs for
a) The co-owners themselves preservation, or for the payment of
Court cannot appoint an taxes.
administrator to manage a property
co-owned when the co-owners want Remedies of the minority
to handle the management. In this If the acts of the majority prejudice
management, the “majority” control the minority, the latter may ask for
injunction or at worse, a partition.

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(b) plaintiff is indeed a

Extinguishment of Co-Ownership co-owner of the
(1) Total destruction of the thing (c) how the property is
(2) Merger of all the interest in one to be divided
person between plaintiff
(3) Acquisitive prescription and defendants.
(a) By a third person  If property cannot be divided
(b) By one co-owner against the without great prejudice, the
other co-owners court may order such
Requisites: property be assigned to one
(i) Unequivocal acts of co-owner. Such co- owner
repudiation of the rights of will pay the others the value
the other co-owners (acts of their interests.
amounting to ouster of other
(ii) Open and adverse possession, VII. CONDOMINIUM LAW (ACT NO.
not mere silent possession for 4726)
the required period of
extraordinary acquisitive Concept of condominium
prescription.  Exclusive interest in units plus
(iii)Presumption is that undivided interest in common areas.
possession of a co-owner is  Partly co-ownership, partly under
not adverse. individual separate ownership
(4) Partition or division  Each unit belongs separately to one
(a) Right of Creditors of individual or more persons
Co-owners Art. 497  The land and the common areas are
 All creditors must be considered of common use by the different
to intervene in the partition of owners and are under co-ownership
the common property. either as contemplated by the Civil
 They must have become creditors Code or through a corporation.
during the co-ownership  Not governed by co-ownership as
 Co-owner debtors have the duty provided for in the Civil Code.
to notify the creditors of the  External surfaces are common areas
partition  Beams and posts are common areas
 Otherwise partition not binding  Easement, unless the master deed
on them says otherwise, is an exclusive
 They can contest such partition if easement.
they formulate a formal  Interest in the common areas will
opposition thereto. depend on interest in the condo
 Important documents in buying a
(b) Partition may be made: condo unit
(ii.) Orally (i) deed of sale
 Valid and enforceable (ii) enabling or master deed
among the parties. (iii)declaration of restrictions
 Statute of frauds does not
operate for partition is not Sec. 9 The owner of a project shall,
a conveyance of property prior to the conveyance of any
but merely a segregation condominium therein, register a
and designation of that declaration of restrictions relating to
part of the property which such project, which restrictions shall
belongs to the co-owners. constitute a lien upon each condominium
in the project and shall insure to and
(ii.) In writing bind all condominium owners in the
(a) Court will just project. Such liens, unless otherwise
confirm such provided, may be enforced by any
written agreement. condominium owner in the project or by
the management body of such project.
(a) Rules of Court does not The Register of Deeds shall enter and
preclude amicable settlement annotate the declaration of restrictions
between parties. upon the certificate of title covering the
land included within the project, if the
(b) Two principal issues in an land is patented or register under the
action for partition: land included within the project, if the

100% UP LAW UP BAROPS 2008 Page 55 of 325


land is patented or registered under the (ii) as the unit may lawfully be
Land Registration or Cadastral Acts. altered or reconstructed from
time to time
 Method of taxation (iii)such easement shall be
automatically terminated in
Sec. 25. Whenever real property has any air space upon
been divided into condominiums, each destruction of the units to
condominium separately owned shall be render it untenable
separately assessed, for purposes of real (c) Unless otherwise provided, the
property taxation and other tax common areas are held in
purposes to the owners thereof and the common by the holders of units,
tax on each such condominium shall in equal shares, one for each unit
constitute a lien solely thereon. (d) a non-exclusive ease ment for
ingress, egress, and support
 Partition of Common Areas through the common areas are
subject to such easements
Sec.7. Except as provided in the
(e) Each condominium unit owner
following section, the common areas
shall have the exclusive right to
shall remain undivided, and there shall
paint, repaint, tile, wax, paper, or
be no judicial partition thereof.
otherwise refinish and decorate
the inner surfaces of the walls,
(b) Who manages the condominium? ceilings, floors, windows, and
(i) condominium corporation doors, bounding his own unit
(preferred by law) – co- (f) Each condominium owner shall
terminous with the existence have the exclusive right to
of the condominium mortgage, pledge, encumber his
(ii) co-ownership condominium and to have the
(iii) association of owners same appraised independently of
the other condominiums but any
Rights and Obligations of obligation incurred by such
Condominium owner condominium owner is personal
What are the incidents of a to him.
condominium grant? (g) Each condominium owner has
(a) The boundary of the unit grant also the absolute right to sell or
(i) the interior surfaces of the dispose of his condominium
perimeter walls, floors, unless the master deed contains
ceilings, windows, and doors a requirement that the property
(ii) those which are not part of be first offered to the
the unit bearing walls, condominium owners within a
columns, floors, roofs, reasonable period of time before
foundations, and other the same is offered to outside
common structural elements parties.
of the building; lobbies,
stairways, hallways, and other Case
areas of common use,
elevator equipment and Ownership of a unit, therefore, is a
shafts, central heating, condition sine qua non to being a
central refrigeration, and shareholder in the condominium
central air-conditioning corporation By necessary implication,
equipment, reservoirs, tanks, the "separate interest" in a
pumps, and other central condominium, which entitles the holder
services and faicilities, pipes, to become automatically a share holder
ducts, flues, chutes, conduits, in the condominium corporation, as
wires and other utility provided in Section 2 of the
installations, wherever Condominium Act, can be no other than
located, except the outlets ownership of a unit. (Sunset View
thereof when located within Condominium v Judge Campos)
the unit.
(b) Exclusive easement for the use of
the air space encompassed by
the boundaries of th unit
(i) as it exists at any particular

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VIII. POSSESSION their heirs. It is still part of the public

domain until the patents are issued.
Definition and Concept (Director v. CA)
(1) Possession is the holding of a thing
of the enjoyment (exercise) of a
right (523), whether by material Degrees of holding of possession
occupation (de facto possession) or
by the fact that the thing or the right (1) Mere holding or possession without
is subjected to the action of our will. title whatsoever and in violation of
(2) It is a real right independent of and the right of the owner.
apart from ownership.  applies to both movables and
Essential requisites of possession  both the possessor and the public
(1) Holding or control of a thing or right know that the possession is wrongful
(corpus) consists of either:  there can be no acquisitive
(a) the material or physical prescription of movables under the
possession NCC (Art. 1133)
(b) subject action of our will-
exercise of a right (2) Possession with juridical title but
(c) constructive possession not that of ownership.
 peaceably acquired
 doctrine of constructive possession  this will never ripen into full
applies when the possession is under ownership as long as there is no
title calling for the whole, i.e., repudiation of concept under which
possession of a part is possession of the property is held (if such
the whole. repudiation is made known to the
 Constructive possession owner, then extraordinary
a) tradicion brevi manu (one who prescription of 30 yrs will apply)
possess a thing short of title of  e.g., possession by tenant,
owner – lease ); depositary, agent, bailee, trustee,
b) tradicion constitutum lessee, antichretic creditor
possesorium (owner alienates  even actual owner may be prevented
thing but continues to possess – by law from taking possession
depositary, pledgee, tenant)  a depositary bank is not a possessor
in this degree, since a deposit is
(2) Intention to possess (animus actually a loan to the bank
 it is a state of mind whereby the (3) Possession with just title or title
possessor intends to exercise and sufficient to transfer ownership, but
does exercise a right of possession, not from the true owner
whether or not such right is legal  title— deed of sale or contract of sale
 intention may be inferred from the  possession of a vendee from vendor
fact that the thing in question is who pretends to be the owner, i.e.,
under the power and control of the innocent buyer of stolen goods
possessor  good faith of buyer = just title
 may be rebutted by contrary  if in good faith, extraordinary
evidence prescription of 30 years will apply
 this degree of possession ripens
Cases: interesting full ownership by lapse of
The general rule is that the possession time
and cultivation of a portion of a tract of
land under a claim of ownership of all is (4) Possession with just title from the
a constructive possession of all, IF the true owner
remainder is not in the adverse  Transfer of possession transfers
possession of another. Possession in the ownership! (possession as an
eyes of the law does not mean that a incident of ownership)
man has to have his feet on every
square meter of ground before it can be Cases of possession
said that he is in possession. (Ramos
v. Director of Lands) (1) Possession for oneself, or
possession exercised in one’s own
The rule on constructive possession does name and possession in the name of
not apply when the major portion of the another.
disputed property has been in the  rights of possession may be
adverse possession of homesteaders and exercised through agents

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(a) necessary— exercised on behalf better right (e.g.,

of the conceived child, of juridical preemption)
persons, of persons not sui juris, (9) possession in GF and
and of the conjugal partnership possession in BF
(b) voluntary— in cases of agents or
administrators appointed by the (3) Possession in good faith and
owner or possessor possession in bad faith

(2) Possession in the concept of an  possession in good faith ceases from

owner and possession in the concept the moment defects in the title are
of a holder with the ownership made known to the possessor
belonging to another  when an action is filed to recover
possession, good faith ceases from
In the Concept of a Holder the date of the summons to appear
 such possessor acknowledges in at the trial
another a superior right which  GF consists in the possessor’s belief
he believes to be ownership, that the person from whom he
whether his belief be right or receive a thing was the owner of the
wrong same and could convey his title
 e.g. tenant, usufructuary, and  GF is always presumed
borrower  belief that one is the legal owner
must be based on some title or mode
In the Concept of Owner of acquisition, i.e., sale, donation,
 such possessor may be the owner inheritance
himself or one who claims to be  error in the application of the law, in
so the legal solutions that arise form
 only this class of possession can such application, in the appreciation
serve as title for acquiring of the legal consequences of certain
dominion acts, and in the interpretation of
 good faith or bad faith is doubtful provisions or doctrines, may
immaterial except for purposes of properly serve as the basis of GF-
prescription (GF: 10 yrs; BF: 30 mistake upon a doubtful or difficult
yrs) question of law as a basis of good
faith [Art 526 (3)]
Effects of possession in the concept
of an owner: Subjects of possession
(1) possession may by lapse of  All rights and things susceptible of
time ripen into full ownership, appropriation
subject to certain exceptions  Things which cannot be possessed:
(2) presumption of just title and (1) property of public dominion
cannot be obliged to show or (2) res communes
prove it Exception: for (3) easements (discontinuous or
purpose of prescription in Art non-apparent)
1131. (4) things specifically prohibited by
(3) possessor can bring all law
actions an owner can bring to  res nullius (abandoned or ownerless
protect his possession, except property)– may be possessed but
accion reivindicatoria cannot be acquired by prescription
(4) may employ self-help (Art Acquisition of Possession
(5) can ask for the inscription of (1) Ways of acquiring possession
his possession in the registry (a) Material occupation of the thing
of property  occupation is used in the general
(6) has right to the fruits and sense, i.e., a means of acquiring
reimbursement for expenses possession of things, not of rights
(assuming he is a possessor  kind of possession acquired is
in GF) only the fact of possession, not
(7) upon recovering possession the legal right of possession
from unlawful deprivers, can
demand fruits and damages (i) Doctrine of constructive
(8) generally, he can do possession
everything an owner is (ii) Includes constructive
authorized to do until he is delivery (equal to material
ousted by one who has a occupation in cases where

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occupation is essential to the (2) By whom possession may be

acquisition of prescription) acquired

traditio brevi manu (a) by same person

 one who possesses a thing Elements of personal acquisition
by title other than  must have the capacity to
ownership continues to acquire possession
possess the same but  must have the intent to
under a new title, that of possess
ownership  possibility to acquire
traditio constitutum possession must be present
 owner alienates the thing, (b) by his legal representative
but continues to possess Requisites:
the same but as that of  representative or agent has
depositary, pledge, or the intention to acquire the
tenant thing or exercise the right for
another, and not for himself
(b) subjection to the action of our  person for whom the thing
will has been acquired or right
 different from and exercised, has the intention of
independent of juridical acts possessing such thing or
and legal formalities as it exercising such right
refers more to the right of
possession that to possession (c) by his agent
as a fact (d) by any person without any
(i) traditio simbolica -- power whatsoever but subject to
effected by delivering some ratification, without prejudice to
object or symbol, placing proper case of negotiorum gestio
under the thing under the (e) Qualifiedly, minors and
control of the transferee, such incapacitated persons
as the keys to the warehouse  refers only to possession of
containing the goods things, not of rights, and to
delivered [Art 1498 (2)] acquisition of possession by
(ii) traditio longa manu – material occupation
effected by the transferor
pointing out to the transferee (3) What do not affect possession
the things which are being (a) acts merely tolerated
transacted (b) acts executed clandestinely AND
without knowledge of owner
(c) proper acts and legal formalities (c) acts by violence as long as the
 refers to the acquisition of possessor objects thereto (i.e.,
possession by sufficient title, he files a case)
whether inter vivos or mortis
causa, or lucrative or onerous If owner of a tract of land, to
 e.g., donations, succession, accommodate the public, permits them
contracts, judicial writs of to cross his property, it is not his
possession, writs of execution intention to divest himself of ownership
of judgments, and registration or to establish an easement. Such
of public instruments possession is not affected by acts of
possessory character which are merely
There was a perfect contract of pledge tolerated. (Cuaycong v Benedicto)
and the depositary was placed in the
possession of the goods after the As a squatter, she has no possessory
symbolic transfer by means of delivery rights over the disputed lot. The State’s
to him of the keys to the warehouse solicitude from the destitutes and the
where the goods were kept. (Banco have-nots does not mean that it should
Espanol Filipino v. Peterson) tolerate usurpations pf property, public
or private. (Astudillo v PHHC)

A possessor by mere tolerance is

necessarily bound by an implied promise
to vacate upon demand. (Peran v CFI)

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(4) Rules to solve conflict of (ii) accion publiciana (based on

possession superior right of possession, not
of ownership)
In case of conflict of possession, the (iii)accion reivindicatoria
following order of preference must be (recovery
followed: of
(1) present possessor or actual ownership)
possessor (iv) action for replevin – for
(2) if 2 or more possessors, the one recovery of movable property
longer in possession
(3) if dates of possession are the (b) Possessor can employ self-help
same, the one who presents a
title (2) Entitlement to fruits – possessor in
(4) if all the condition are equal, the GF/ BF
thing shall be placed in judicial  Possessor in GF is entitled to the
deposit pending determination of fruits received before the possession
possession or ownership through is legally interrupted.
proper proceedings  Possessor in BF has no right to
receive any fruits. Those already
Preference in case of conflict of gathered and existing will have to be
ownership (double sales) returned; with respect to those lost,
(1) for immovable property consumed, or which could have been
(a) first who registered his right received, he must pay the value.
in GF in the Registry of But the possessor in BF does not
Property have to pay interest on the value of
(b) if no registration, first who fruits he has to pay, because such
possessed in GF amount is unliquidated.
(c) if no possession, one who
presents the oldest title (3) Reimbursement for expenses (See
(2) for movable property: first who Table below
possessed in GF (4) Possession of movable acquired in
GF (in concept of an owner) is
Effects of Possession equivalent to title
 one who has lost a movable or has
(1) In general, every possessor has a been unlawfully deprived thereof
right to may recover it without
be respected in his possession; if reimbursement, except if possessor
disturbed therein, possessor has acquired it at a public sale (559)
right to be protected in or restored to  3 requisites to make possession of
said possession (539) movable equivalent to a title:
(a) action to recover possession (1) that the possession is in GF
(i) summary proceedings – (2) that the owner has voluntarily
forcible entry and unlawful parted with the possession of the
detainer. Plaintiff may ask for thing
writ of preliminary mandatory (3) that the possession is in the
injunction may be asked. concept of an owner
Within 10 days from filing of
complaint in forcible entry Presumptions in favor of the
- the same writ is available in possessor
unlawful detainer actions
upon appeal (Art 1674) (1) Of good faith until the contrary is
proved (Sideco vs. Pascua)
 The acquirer and possessor in (2) Of continutity of initial GF in
good faith of a chattel or movable which possession was commenced or
property is entitled to be possession in GF does not lose its
respected and protected in his character
possession as if he were the true Exception: in the case and from the
owner, until a competent court moment the possessor became aware or
rules otherwise. Such possession is not unaware of improper or wrongful
in good faith is equivalent to title possession.
and every possessor has a right (3) Of enjoyment of possession in
to be respected in his possession the same character in which was
(Arts 539 and 559). (Yu v acquired until the contrary is proved.

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(4) Of non-interruption of therefore cannot be recovered anymore

possession in favor of present by any action.
possessor who proves possession at a
previous time until the contrary is Rules for Loss of Movables
proved. (554, 1120-1124) General Rule: possession of personal
property acquired in GF = title therefore
2 Kinds of Interruption the true owner cannot recover it
(1) Natural (Art 1122)—if Exception: if the true owner
interruption is for more than 1 (1) lost the movable or
year. (2) has been unlawfully
(2) Civil (Art 1123)— will start from deprived
the service of summons but the In either of these, he may recover the
proper action must be filed personal property not only from the
 in case of natural interruption, the finder but also from those who may
old possession loses all its juridical have acquired it in GF from such finder
effects and therefore cannot be or thief, without paying for any
tacked to the new possession for indemnity except if possessor acquired it
purposes of prescription in public sale but the possessor in GF is
 in case of civil interruption, if entitled to reimbursement.
possession is recovered, it can be
connected to the time that has Wild animals are possessed only while
elapsed as if it were continuous and they are under one's control;
can be counted in favor of domesticated or tamed animals are
prescription considered domestic or tame if they
(5) Of exclusive possession of retain the habit of returning to the
property allotted to a participant in a premises of the possessor. (Art. 560)
thing possessed in common for the
entire period during which co- (5) Reivindication—the most natural
possession lasted; mode of losing possession, i.e.,
(6) Of continuous possession or non- recovery or reivindication of the
interruption of possession of which thing by the lawful owner
he was wrongfully deprived for all
purposes favorable to him (561)
(7) Other presumptions with respect to
specific property rights
(i) Of extension of possession of real
property to all movables
contained therein so long as it is
not shown that they should be
excluded (Art. 426)
(ii) Non-interruption of possession of
hereditary property (Art. 533,
Art. 1078)
(iii)Of just title in favor of possessor
in concept of owner, subject to
Art. 1141

Loss of Possession

(1) Abandonment
(2) Assignment—WON gratuitously or
(3) Destruction—must be total/goes
out of commerce
(4) Possession of another—the
possession that is lost here refers
only to possession as a fact (de
facto), not the legal right of
possession (de jure)

NOTE: all the other 3 cases of loss of

possession (abandonment, assignment,
destruction) refer to loss of possession
de jure (real right of possession) and

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Effects of Possession in Good Faith or Bad Faith

Good Faith Bad Faith
Fruits Entitled to the fruits while possession Must reimburse fruits received or
received is in GF and before legal interruption fruits which legitimate possessor
(Art 544) could have received (549);

Entitled to expenses for production,

gathering, and preservation
Pending Entitled to a part of the expenses of
Fruits cultivation and a part of the network
harvest, both proportion to the time of
possession (545)

Owner may indemnify or allow

possessor in GF to finish cultivation
and the fruits will be indemnified for
his cultivation (545)

If possessor refuses concession, no

indemnity (545)
Charges Must share with the legitimate Same as with GF
possessor, in proportion to the time of
Necessary Right of reimbursement and retention Reimbursement only
Expenses in the meantime (545)
Useful Owner’s option to reimburse him No right to reimbursement. He also
Expenses either for expenses or for increase in cannot remove improvements even
value (546) he can do so without injury to the
principal thing
Retention prior to reimbursement

Limited right of removal (but should

not damage principal and owner does
not exercise option of payment of
expenses or increase in value) (547)
Ornamental Limited right of removal as above Limited right of removal (no injury to
Expenses (548) thing and lawful possessor does not
retain by paying for them) (548)
Deterioration No liability unless due to fraud or Liable WoN due to his fault,
or Loss negligence after becoming in BF negligence, fortuitous event
Costs of Bears cost Bears cost

Effects of Recovery of Possession

 Improvements caused by nature or
time shall always insure to the
benefit of the person who has
succeeded in recovering
possession. (Art. 551).
 One who recovers possession shall
not be obliged to pay for
improvements which have ceased
to exist at the time he takes
possession of the thing. (Art. 553)
 necessary expenses: lawful
possessor or owner has to pay for
them even if the object for which
they were incurred no longer exist

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IX. USUFRUCT  Lease by the owner before the start

of the usufruct is not extinguished by
Definition such usufruct.
USUFRUCT is a real right which gives the  Usufructuary will be liable to the
usufructuary owner for damages caused by the
- a right to enjoy the property of fault or negligence of the transferee
another or lessee.
- with the obligation of preserving  General rule: Lease by the usufruct
its form and substance, unless should terminated at the end of the
the title constituting it or the law usufruct or earlier.
otherwise provides. (Art.562)  Exception: leases of rural lands,
in which case the lease continues
Characteristics for the remainder of the
1. real right of use and enjoyment agricultural year
of property owned by another
2. of a temporary duration Right to improve the thing
3. transmissible  Useful improvements or expenses
4. may be constituted on real or only
personal property, on tangibles  No alteration of form and substance
or intangibles  Usufructuary may remove
improvements only if it is possible
Rights of Usufructuary: without damaging the property.
 The owner cannot compel the
A. As to the thing and its fruits usufructuary to remove the
1. right to possess and enjoy the improvements. BUT If the
thing itself, its fruits and usufructuary does not remove, he
accessions (566-567) has no right to be indemnified.
2. right to lease the thing (572)  Registry of improvements is
3. right to improve the thing necessary to protect the
usufructuary against third persons
Right to possess and enjoy the thing regarding the improvements.
itself, its fruits and accessions  If improvements cannot be removed,
 Fruits belong to the usufructuary such may be used to offset any
except when they diminish the damage caused by the usufructuary
substance of the thing (e.g., to the property.
minerals in quarries), in which case
they will belong to the usufruct only B. As to the usufructuary right itself
when the owner has dedicated the 1. Right to alienate
property to the exploitation of such  EXCEPT in purely personal
products. ones or when the title
 Dividends from shares are fruits. constituting the usufruct
 Rights may be transferred, assigned, prohibits the same.
or otherwise disposed of by the Examples:
usufructuary; - Legal usufruct of
 As to hidden treasure, usufructuary parents (Art. 226 FC)
is a stranger, so no right to it - Usufruct granted the
 Fruits pending at the beginning of usufructuary in
the usufruct belong to the consideration of his
usufructuary, with no obligation to person
refund the expenses of the owner. - Usufruct acquired
 But, if expenses for production were through caucion
incurred by third persons, they must juratoria
be reimbursed.
 Fruits growing at the time of the Sale by the usufructuary
termination of the usufruct belong to  Future crop may be sold; but such
the owner, but the usufructuary sale will be void if not ratified by the
must be reimbursed from the owner. It’s a sale of property not
proceeds of such fruits for his belonging to the usufructuary and
production expenses. those gathered at the termination of
the usufruct belonging to the owner.
Right to lease the thing  If things are consumable or were
 even without consent of owner appraised when delivered, the
 BUT no alienation, mortgage, pledge usufructuary can dispose of them.

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Rights of the naked owner demand by the owner, the

1. At the beginning of the usufruct latter may pay for the repairs,
 all obligations of the usufructuary with right of reimbursement
at the beginning of the usufruct from the usufructuary
2. During the usufruct 3. To Notify the Owner of Need to
 retains title to the thing and Undertake Extra-Ordinary Repairs
improve it  Those caused by exceptional
 may alienate the property circumstances, WON they are
3. At the termination or end of the necessary for the preservation
usufruct of the thing
 recover property from the  Those caused by the natural
usufructuary in the same use of the thing, but are not
preserved form and substance necessary for its preservation
with room for ordinary wear and  Naked owner obliged to
tear subject to ordinary repairs undertake them but when
made by the owner,
Obligations of the Usufructuary usufructuary pays legal
 These requirements are conditions interest on the amount while
merely to the entry upon the usufruct lasts
possession and enjoyment of the  Naked owner cannot be
property. compelled to undertake extra-
ordinary repairs
A. At the beginning of the usufruct or  If indispensable and owner
before the exercise of the right of fails to undertake
the usufruct extraordinary repairs- may be
1. To make an inventory EXCEPT made by the usufructuary
when 4. To notify owner of any act
 No one will be injured detrimental to ownership
thereby  OR ELSE, usufructuary will be
 Title constituting usufruct liable for damage and he
excused the making of cannot make extraordinary
inventory repairs
 Title constituting usufruct 5. To shoulder costs of litigation
already makes an inventory regarding the usufruct
2. To give a bond for the faithful 6. To answer for the fault of alienee,
performance of duties as lessee, or agent of the
usufructuary EXCEPT when usufructuary
 No prejudice would result
 Usufruct is reserved by donor Causes of extinguishment of
 Title constituting usufruct Usufruct (Art.603) DERM PLT
excused usufructuary 1. Death of the usufructuary, unless
 Caucion juratoria: a sworn a contrary intention clearly
undertaking wherein the appears;
usufructuary claims that he is 2. Expiration of the period for which
in dire need of the house and it was constituted, or by the
the implements/furniture and fulfillment of any resolutory
asks that he be allowed to condition provided in the title
enjoy the same even without creating the usufruct;
giving the required security 3. Renunciation of the usufructuary;
4. Merger of the usufruct and
B. During the usufruct ownership in the same person;
1. To take care of the things like a 5. Prescription;
good father of the family 6. Total Loss of the thing in
 bad use of the thing will not usufruct;
extinguish the usufruct 7. Termination of the right of the
 Owner becomes entitled to person constituting the usufruct
delivery and administration of
the thing should the Special Cases of Usufruct
abuse cause substantial
injury to the owner 1. over a pension or periodical income
2. To undertake Ordinary Repairs (570)
 for the preservation 2. of property owned in common (582)
 if not repairs made by 3. of head of cattle (591)
usufructuary, even after the 4. over deteriorable property (578)

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5. over vineyards and woodlands (575-  It is not essential that the benefit be
576) great. It is sufficient that there is a
6. on mortgaged property (600) determinate use or utility in favor of
7. over entire patrimony (598) a dominant estate.
8. over consumable property (574)  Not necessary that the right acquired
 quasi-usufruct under the servitude be exercised.
 may be on consumables, e.g.,  Servitudes can’t be established on
food, but must be replaced with things which are outside the
equal quantity if not appraised, commerce of man. Such things are
must be considered as on their inalienable. Imposition of an
value encumbrance would constitute an
 may also be on non-consumables alienation.
that gradually deteriorate by use,  Servitudes cannot be created on
e,g,, furniture or car in reality, property of public dominion.
the usufruct is converted into a
simple loan not upon consumable Easement v. Lease
things themselves which are EASEMENT LEASE
delivered to the Real right WON Real right only
usufructuary, but upon the registered, WON when it is
sum representing their value or real or personal registered, or
upon a quantity of things of the when its subject
same kind and quality the matter is real
usufructuary, in effect, becomes property and the
the owner of the things in duration exceeds 1
usufruct, while the grantor year.
becomes a mere creditor entitled Imposed only on May involve either
to the return of the value or of real property real or personal
the things of the same quantity property
and quality Limited right to the Limited right to
use of real both the
property of possession and use
X. EASEMENTS another, without of another’s
right of possession. property.
Art. 613. “Easement or Servitude”:
Easement v. Usufruct
encumbrance imposed upon an
immovable for the benefit of another EASEMENT USUFRUCT
immovable belonging to a different Imposed only on May involve either
owner... real property. real or personal
“Dominant estate”: the immovable in property.
favor of which the easement is Limited to a Includes all the
established particular or uses and fruits of
“Servient estate”: the immovable specific use of the the property.
which is the subject of the easement. servient estate.
Non-possessory Involves right of
Art. 614. “Personal Easements”: right over an possession in an
established for the benefit of a immovable immovable or
community, or of one or more persons movable.
to whom the encumbered estate does Not extinguished As a rule,
not belong. by death of the extinguished by
- real right or encumbrance imposed on dominant owner. the death of the
an immovable for the benefit of another usufructuary.
immovable belonging to a different
owner or for the benefit of a community
or one or more persons to whom the Essential Features of Easements or
encumbered estate does not belong by Real Servitudes (RAIL-IRI-NA-
which the owner is obliged to abstain RIP)
from doing or to permit a certain thing
to be done on his estate. (1) It is a real right. It gives rise to an
action in rem or real action against
 Easements cannot be established on any possessor of the servient estate.
personal property (2) It is a right enjoyed over another
 Burden should not be so great as to property (jus in re aliena). It cannot
amount to a taking of his property exist in one’s own property (nulli res
sua servit). Servient and dominant

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estates have to belong to different Classification

Real/Predial Personal
(3) It is a right constituted over an
immovable by nature not over In favor of In favor of a
movables. another community or
(4) It limits the servient owner’s immovable of 1 or more
right of ownership or the benefit of (Art.613) persons, may
the dominant estate. But servient be public or
tenement remains unimpaired. Being private
an abnormal limitation of ownership, (Art.614)
it cannot be presumed.
i. Public:
(5) It creates a relation between
vested in the

As to recepient of benefit
public at
(6) It can exist only between
large or in
neighboring tenements. It can’t be
some class of
created on another servitude.
(7) It cannot consist in requiring the
owner of the servient estate to do an
act unless the act is accessory to a ii. Private:
praedial servitude (obligation propter vested in a
rem). determinate
(8) It may consist in requiring the individual or
owner of the dominant estate certain
demanding that the owner of the persons
servient estate refrain from doing
Voluntar Legal Mixed
something (servitus in non faciendo),
or that the latter permit that Impose Created
something be done over the servient Establish d by law partly
property (servitus in patendo) but ed by will either by will
not in the right to demand that the or for or
owner of the servient estate do agreeme public agree-
something (servitus in faciendo) nt of the use or ment
As to its source

except if such act is an accessory parties or in the and

obligation to a praedial servitude. by a interest partly
(9) It is inherent or inseparable from testator of by law
estate to which they actively or (Art.619) private
passively belong. (Art. 617) persons
 Servitudes cannot exist without )
tenements. They are merely
Continuous Discontinou
accessory. This doesn’t mean they
don’t have juridical existence of their Use of which
As to its exercise

own. (Solid Manila vs. Bio Hong) is or may be Used at

 Inherence refers only to that portion incessant, intervals and
of the tenement affected by it. without the depend upon
Portion not affected can be alienated intervention acts of men
without the servitude. of any act of (Art.615)
 Contract of transmission of easement man.
by owner of the dominant estate (Art.615)
may constitute a renunciation or
extinguishments of easement Apparent Non-
As to WON its existence is

Made known
(10) It is intransmissible, cannot be and are Show no
alienated separately from the continually external
tenement. It can’t be the object of kept in view indication of
mortgage and exists even if not by external their
annotated. signs that existence
(11) It is indivisible. (618) reveal the (Art.615)
(12) It has permanence. use and
* In general,
enjoyment of

the same
are non-

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servient Positive Negative (a) Positive

easements- from
Imposes upon Prohibits the
the day on which
the owner of owner of the
the owner of the
the servient servient
dominant estate,
estate the estate from
or the person who

obligation of doing
may have made
allowing something
use of the

something to which he
be done or of could lawfully
commenced to
doing it do if the
exercise it upon
As to

himself easement did


the servient estate

(Art.616) not exist
(Art.616) (b) Negative
easements- from
the day on which
General Rules Relating to Servitudes the owner of the
dominant estate
(1) No one can have a servitude over
forbade, by an
his own property
(2) A servitude cannot consist in
before e notary
(3) There cannot be a servitude over
public, the owner
another servitude
of the servient
(4) A servitude must be exercised
estate, from
civiliter, in a way least
executing an act
burdensome to the owner of the
which would be
lawful without the
(5) A servitude must have a
perpetual cause.

Modes of Acquiring Easements

* Prescription does
not require good
(1) By Title All easements faith or just title.
General rules for
a juridical act - continious and
which gives rise to apparent (Art.620)
prescription of
the servitude such
- continous and ownership and
as the law (e.g.
non-apparent other real rights do
donation, contracts
easements not apply to it.
and wills)
* There must
- discontinous however be
easements, adverse possession
whether apparent or exercise of the
or non-apparent easement.

* Discontinuous (3) By deed of If easement has

easement can only recognition been acquired but
be acquired by title (Art.623) no proof of
and not by existence is
(4) By final
prescription. available, and
easement is one
that cannot be
(2) By Continuous and (5) By apparent acquired by
Prescription of apparent sign established prescription
10 years easements by the owner of
(Art.620) 2 adjoining
The existence of an
The time for
apparent sign of
easement between
two estates,

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established or Easement of light and view go together.

maintained by the Acquisition of easements is by title or by
owner of both, prescription. The visible and permanent
shall be sign of an easement is the title that
considered, should characterizes its existence. Existence of
either of them be the apparent sign had the same effect as
alienated, as a title a title of acquisition of the easement of
in order that the the light and view upon death of original
easement may owner. (Amor vs. Florentino)
continue actively
An easement of a right of way cannot be
and passively,
acquired through prescription because
unless, as the time
possession of right of way is intermittent
the ownership of
and discontinuous. Acquisitive
the two estates is
prescription requires that the possession
divided, the
be continuous or uninterrupted (Art.
contrary should be
1118). (Ronquillo v Roco)
provided in the
title of conveyance
of either of them,
Rights and Obligations of Owners of
or the sign
Dominant and Servient Estates
aforesaid should be
removed before
Art. 625. Upon establishment of an
the execution of
easement, all the rights necessary for
the deed. This
its use are considered granted.
provision shall also
apply in case of
(1) Rights of the dominant estate
the division of a
thing owned in
(a) To use the easement (Art.626)
common by two or
and exercise all rights necessary
more persons.
for the use (Art. 627)
(Art. 624.)
(b) To use at his expense all
necessary works for the use and
preservation of the easement.
(Art. 627)
(c) In a right of way, to ask for
Cases change in width of easement
sufficient for needs of dominant
The road is clearly a servitude
voluntarily constituted in favor of the
community under Art. 531. Having been
 Such right of way may be
devoted by NNSC to the use of the
demanded when there is
public in general, the road is charged
absolutely no access or even
with public interest. And while so
when there is one, it is difficult or
devoted. NNSC may not establish
grossly insufficient. Art. 651
discriminatory exceptions against any
also provides that “the width of
private persons. (North Negros Sugar
the easement of right of way
Co. vs Hidalgo)
shall be that which is sufficient
Since the construction of the church, for the needs of the dominant
there had been a side door in the wall estate, and may accordingly be
through which the worshippers attending changed from time to time.”
mass enter and leave, passing and (Encarnacion v CA)
entering the land in question. As this use
of the land has been continuous, it is
evident that the church has acquired a (2)Obligations of dominant estate
right to such use by prescription, in view (UNAC)
of the time that has elapsed since the (a) To use easement for the benefit
church was built and dedicated to of immovable and in the manner
religious worship, during which period originally established. (Art. 626)
the Municipality has not prohibited the (b) To notify owner of the servient
passage over the land by persons who estate before making repairs in
attend services held by the church. manner inconvenient to servient
(Municipality of Dumangas vs Bishop estate. (Art. 627)
of Jaro) (c) Not to alter easement or render it

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(d) If there are several dominant  If cause for cessation of merger is

estates unless he renounces his inherent like nullity or rescission,
interest: to contribute the easement is reestablished. If
expenses of works necessary for extrinsic, there is no revival.
use and preservation servitude.  If the owner of the merged estate
(Art. 628) sells one of the estates later,
easement is not reestablished.
 Owner of dominant estate has the
right to use accessory servitudes or (2)Non- user for 10 years
those necessary for the use of other (a) Computation of period
servitudes regarded as principals (1) Discontinuous easements:
ones. counted from the day they
 Works must be executed in the ceased to be used
manner of least inconvenience to the (2) Continuous easements:
servient who cannot recover counted from the day an act
indemnity for the inevitable damages adverse to the exercise took
that may be suffered by the servient place
owner. (b) Use by a co-owner of the
 If dominant owner violates dominant estate bars prescription
restrictions, he can be compelled to with respect to others (Art.633)
restore the things their original (c) Servitudes not yet exercised
condition and to pay indemnity for cannot be extinguished by non-user
the damages.
 If dominant tenement is alienated,  Non – user must be due to
transferee can be required to restore abstention by dominant owner and
things their original condition but he not to fortuitous event. If dominant
cannot be required to pay indemnity estate is used in common, exercise
because this is a personal liability of of the easement of one of the co –
the former owner. owner inures to the benefit of all
others and preserves the easement
(3) Rights of the servient estate which is indivisible.
(RC)  Erection of works incompatible with
(a) To retain ownership and use of the exercise of the easement or
his property (Art 630) totally obstructing the servitude,
(b) To change the place and manner agreed to by the owner of the
of the use of the easement dominant estate, amounts to tacit
renunciation and extinguishes the
(4)Obligations of the servient estate servitude.
(IC)  Right or power to claim exercise of
(a) Not to impair the use of the the legal servitude do not prescribe.
easement. (Art. 629)
(b) To contribute proportionately to (3) Impossibility of use
expenses to use the easement
[Art 628(2)]  When either or both of the estates
fall into such condition that the
 Owner of servient tenement must easement cannot be used; but it
abstain from rendering the use of the shall revive if the subsequent
easement more inconvenient to the condition of the estates or either of
owner of the dominant estate. them should again permit its use,
 If owner of the servient estate unless when the use becomes
performs act or constructs works possible, sufficient time for
impairing the use of the servitude, prescription has elapsed, in
the owner of the dominant tenement accordance with the provisions of the
may ask for the destruction of such preceding number;
works and restoration with damages.  This mode arises from the condition
Injunction is another remedy. of the tenements and only suspends
 the servitude unlit such time when it
Modes of Extinguishment of can be used again.
Easements (Art.631) (MINERRO)  10 years cap for suspension,
otherwise, extinguished by
(1)Merger – must be absolute, perfect prescription as previously provided.
and definite, not merely temporary. Eg. Flooding of servient tenement
over which a right of way exists.

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(4) Expiration of term or fulfillment XI. LEGAL EASEMENTS

of resolutory condition
 By the expiration of the term or the Art. 634. Imposed or mandated by law
fulfillment of the condition, if the and which have for their object either
easement is temporary or public use or the interest of private
conditional; persons, and thereby become a
continuing property right.
(5) Renunciation of owner of the
dominant estate 2. KINDS (as to their use or object)
(1) Public legal easements – for public or
communal use
 It must be specific, clear, express. (2) Private legal easements – for the
 Fact that owners of the dominant interest of private persons or for private
estate refrained from claiming the use including:
servitude without any positive act to  Waters
imply a real waiver or renunciation  Right of way
does not bring the case within the  Party Wall
provisions of this article.  Light & View
 Occurs only in voluntary easements.  Drainage
 Intermediate Distances
(6) Redemption agreed upon  Against Nuisance
between the owners.  Lateral & Subjacent Support

 By the redemption agreed upon (1)Laws Governing Legal Easements

between the owners of the dominant
Generally, special laws and the CC
and servient estates.
govern easements but note that
private legal easements may be
-Stipulated conditions, which
governed by agreement of the
extinguish easements.
interested parties whenever the law
does not prohibit it and no injury is
(7) Other causes not mentioned
suffered by a third person.
(a) Annulment or rescission or
cancellation of the title constituting
(a) Those established for the use of
the easement.
water or easements relating
(b) Termination of the right of grantor
waters (Arts. 637 – 648)
to create the easement ( e.g.
(1) Natural drainage of waters
redemption of the property sold a
with stones or earth carried
retro because of the exercise of the
with them
right of conventional redemption (
 waters which form in upper
Art. 1618)
tenements and flow to the lower
(c) Abandonment of the servient
ones by force of nature and not by
those caused by acts of man.
(d) Eminent domain
 Owner of tenements cannot
(e) Special cause of extinction of legal
construct works to increase the
right of way, the opening of an
burden of this servitude.
adequate outlet to the highway
 Owner of the lower tenements
extinguishes the easement, if
cannot make works which impede
servient owner makes a demand
the servitude. But he can construct
for such extinguishment.(Art. 655)
work necessary to prevent damage
(f) Registration of the servient estate
to himself provided it does not
impede the servitude and he does
(g) Permanent impossibility to make
not cause damage to other
use of the easement.
 Rain water from roofs of buildings
and water from houses must be
received on one’s own land.
 It is the duty of the owner of the
building to direct the rainwater to a
public place or to establish an
easement of passage of water
through a neighboring tenement.

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Case Compulsory easements for drawing

The dikes are continuous easements water or for watering animals can be
since it does depend upon the act of imposed only for reasons of public use in
man, but is due to gravity. Being such, it favor of a town or village, after payment
is subject to the extinction to the non- of the proper indemnity. (Art. 640)
user (20 years in the Old Code and 10
years in the New Code). (Ongsiaco v. Easements for drawing water and for
Ongsiaco) watering animals carry with them the
obligation of the owners of the servient
(2) Easements on lands along estates to allow passage to persons and
riverbanks animals to the place where such
easements are to be used, and the
 For public use: 3m zone along indemnity shall include this service.
margins for navigation, floatage, (Art. 641)
fishing and salvage.
 If navigable – Towpath easement for Easements of the right of way for the
navigation and floatage passage of livestock known as animal
 If private land – expropriate, since it path, animal trail or any other, and
is for private use. those for watering places, resting places
and animal folds, shall be governed by
(3) Abutment of Land the ordinances and regulations relating
thereto, and, in the absence thereof, by
 Non – owner builder of the dam pay the usages and customs of the place.
owner of land for the abutment of (Art. 657)
the land.
 abutment – part of dam that extends  Without prejudice to rights legally
to the riverbank or dam acquired, the animal path shall not
 if no easement previously exceed the width of 75 meters, and
established, and the dam floods the the animal trail that of 37 meters
land – injured owner or his and 50 centimeters.
representative can remove it as  Whenever it is necessary to establish
private nuisance. a compulsory easement of the right
of way or for a watering place for
(4) Aqueduct animals, the provisions of this
Section and those of Articles 640 and
Any person who may wish to use upon 641 shall be observed. In this case
his own estate any water of which he the width shall not exceed 10
can dispose shall have the right to make meters.
it flow through the intervening estates,
with the obligation to indemnify their (6) Stop lock and sluice gate
owners, as well as the owners of the
lower estates upon which the waters Art. 647. One who for the purpose of
may filter or descend. (Art. 642.) irrigating or improving his estate, has to
construct a stop lock or sluice gate in
Obligation of the dominant estate: the bed of the stream from which the
(1) To prove that he can dispose of the water is to be taken, may demand that
water and that it is sufficient for the use the owners of the banks permit its
for which it is intended; construction, after payment of damages,
(2) To show that the proposed right of including those caused by the new
way is the most convenient and least easement to such owners and to the
onerous to third persons; other irrigators.
(3) To indemnify the owner of the
servient estate (a)Easement of right of way

 The easement of aqueduct for  Requisites before demanding a right

private interest cannot be imposed of way (Articles 649-650)
on buildings, courtyards, annexes, or (a) owner, or anyone with a real
outhouses, or on orchards or gardens right to cultivate, or use
already existing. immovable
 For legal purposes, the easement of (b) not due to acts of the proprietor
aqueduct shall be considered as of the dominant estate
continuous and apparent. (c) surrounded by immovables
belonging to others, without
(5) Drawing waters and adequate outlet to public highway
watering materials i. absolutely no access

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ii. difficult or dangerous to use servitude may be demanded with the

(d) right of way claimed is the least payment of the indemnity.
prejudicial to the servient estate  On the other hand, if grantor/
(e) payment of the proper indemnity exchanger/ vendor‘s property
(i) permanent passage – value of becomes isolated, he must pay
the land indemnity.
(ii) without permanent passage –
payment of damages Art. 654. If the right of way is
permanent, the necessary repairs shall
 To justify the imposition of this be made by the owner of the dominant
servitude, there must be a real estate. A proportionate share of the
necessity for it. Mere convenience is taxes shall be reimbursed by said owner
not enough. Even when there is a to the proprietor of the servient estate.
necessity, if it can be satisfied
without imposing the servitude,  Obligations of praedium dominans;
servitude should not be imposed. necessary repairs, proportionate
 Owner can not by his own act isolate share of taxes.
his property from the public highway
and then claim an easement of way Art. 655. If the right of way granted to
through an adjacent estate. a surrounded estate ceases to be
 Access to highway may be necessary because its owner has joined
demanded: it to another abutting on a public road,
(a) when there is absolutely no the owner of the servient estate may
access to a public highway demand that the easement be
(b) when even if there is one, it is extinguished, returning what he may
difficult or dangerous to use have received by way of indemnity. The
or is grossly insufficient interest on the indemnity shall be
 Payment of the value of the land for deemed to be in payment of rent for the
permanent use of easement does not use of the easement.
mean an alienation of the land The same rule shall be applied in
occupied. case a new road is opened giving access
 Criterion of the least prejudice to the to the isolated estate.
servient estate must prevail over the In both cases, the public highway must
criterion of the shortest distance. substantially meet the needs of the
(Quimen v. Quimen) dominant estate in order that the
 Before judicial decision, easement may be extinguished.
establishment of any road would
constitute an invasion of the land  Extinguishment Not Ipso Jure –
with all consequences resulting from (only) owners of the servient estate
such transgression. has to ask for it and return
 It is the needs of the dominant indemnity.
estate which determines the width of  Owner of the dominant estate may
the passage. Servitude may thus be not ask for the return of the
modified after it has already been indemnity unless servient owner asks
established. for the extinguishment.
 Offset interest of the indemnity with
Whenever a piece of land acquired by rentals of the land.
sale, exchange or partition, is
surrounded by other estates of the Art. 656. If it be indispensable for the
vendor, exchanger, or co-owner, he construction, repair, improvement,
shall be obliged to grant a right of way alteration or beautification of a building,
without indemnity. to carry materials through the estate of
another, or to raise therein scaffolding
In case of a simple donation, the donor or other objects necessary for the work,
shall be indemnified by the donee for the the owner of such estate shall be obliged
establishment of the right of way. (Art. to permit the act, after receiving
652) payment of the proper indemnity for the
damage caused him.
 Servitude without indemnity is
considered as a tacit condition of the  This may be demanded by owner and
sale, exchange or partition, but not usufructuary.
implied in a simple donation.  Word indispensable should not be
 When the right of way originally understood as indicating that it
established without indemnity should would be impossible to construct or
disappear or become useless, a legal repair the building. It is enough that

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it would be extremely difficult to do

so without the easement. Art. 659. The existence of an easement
of party wall is presumed, unless there
Animal Path is a title, or exterior sign, or proof to the
 Without prejudice to rights legally contrary:
acquired, the animal path shall not (1) In dividing walls of adjoining
exceed the width of 75 meters, and buildings up to the point of common
the animal trail that of 37 meters elevation;
and 50 centimeters. (2) In dividing walls of gardens or yards
 Whenever it is necessary to establish situated in cities, towns, or in rural
a compulsory easement of the right communities;
of way or for a watering place for (3) In fences, walls and live hedges
animals, the provisions of this dividing rural lands.
Section and those of articles 640 and
641 shall be observed. In this case  Co-ownership must be accepted
the width shall not exceed 10 unless the contrary appears from the
meters.(570a) title showing that the entire wall
belongs exclusively to one of the
Cases property owners or unless there is an
exterior sign to destroy such
A voluntary easement of right of way presumption.
could be extinguished only by mutual
agreement or by renunciation of the Art. 660. It is understood that there is
owner of the dominant estate. The an exterior sign, contrary to the
opening of an adequate outlet to a easement of party wall:
highway can extinguish only legal or (1) Whenever in the dividing wall of
compulsory easements, not voluntary buildings there is a window or opening;
easements. (La Vista v. CA) (2) Whenever the dividing wall is, on
one side, straight and plumb on all its
An easement of right of way can be facement, and on the other, it has
established through continued use. similar conditions on the upper part Art.
(Vda. de Baltazar v CA) 657. Easements of the right of way for
the passage of livestock known as
(c) Easement of party wall animal path, animal trail or any other,
and those for watering places, resting
Art. 658. The easement of party wall places and animal folds, shall be
shall be governed by the provisions of governed by the ordinances and
this Title, by the local ordinances and regulations relating thereto, and, in the
customs insofar as they do not conflict absence thereof, by the usages and
with the same, and by the rules of co- customs of the place.
ownership Without prejudice to rights legally
acquired, the animal path shall not
 Party wall is a co-ownership in a exceed in any case the width of 75
special class by itself: meters, and the animal trail that of 37
(1) It is indivisible. meters and 50 centimeters.
(2) The part pertaining to each co- Whenever it is necessary to establish a
owner can be materially compulsory easement of the right of way
designated. or for a watering place for animals, the
(3) Rights of a co-owner of a party provisions of this Section and those of
wall are greater than those of an Articles 640 and 641 shall be observed.
ordinary co-owner and with In this case the width shall not exceed
respect to increasing the height 10 meters. (570a), but the lower part
of the wall. slants or projects outward;
 Wall may be owned in common by (3) Whenever the entire wall is built
the adjoining owners either form its within the boundaries of one of the
construction or by a subsequent act. estates;
Each owner can insert the beams of (4) Whenever the dividing wall bears the
his building in the wall to the extent burden of the binding beams, floors and
of its entire thickness. roof frame of one of the buildings, but
 A party wall is one which is built by not those of the others;
common agreement by getting land (5) Whenever the dividing wall between
from the adjoining tenements in courtyards, gardens and tenements is
equal parts. Each owner may use the constructed in such a way that the
wall but only to the extent of one- coping sheds the water upon only one of
half of its thickness. the estates;

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(6) Whenever the dividing wall, being necessary for the preservation of the
built of masonry, has stepping stones, party wall by reason of the greater
which at certain intervals project from height or depth which has been given it.
the surface on one side only, but not on If the party wall cannot bear the
the other; increased height, the owner desiring to
(7) Whenever lands inclosed by fences raise it shall be obliged to reconstruct it
or live hedges adjoin others which are at his own expense and, if for this
not inclosed. purpose it be necessary to make it
In all these cases, the ownership of the thicker, he shall give the space required
walls, fences or hedges shall be deemed from his own land.
to belong exclusively to the owner of the
property or tenement which has in its Art. 665. The other owners who have
favor the presumption on any one of not contributed in giving increased
these signs. (573) height, depth or thickness to the wall
may, nevertheless, acquire the right of
part-ownership therein, by paying
Art. 661. Ditches or drains opened proportionally the value of the work at
between two estates are also presumed the time of the acquisition and of the
as common to both, if there is no title or land used for its increased thickness.
sign showing the contrary.
There is a sign contrary to the part- Art. 666. Every part-owner of a party
ownership whenever the earth or dirt wall may use it in proportion to the right
removed to open the ditch or to clean it he may have in the co-ownership,
is only on one side thereof, in which without interfering with the common and
case the ownership of the ditch shall respective uses by the other co-owners.
belong exclusively to the owner of the
land having this exterior sign in its  Each part-owner can use the party
favor. wall only in proportion to his interest

Art. 662. The cost of repairs and (d) Easement of Light and View
construction of party walls and the
maintenance of fences, live hedges, Art. 667. No part-owner may, without
ditches, and drains owned in common, the consent of the others, open through
shall be borne by all the owners of the the party wall any window or aperture of
lands or tenements having the party wall any kind.
in their favor, in proportion to the right
of each.  Such act would imply the exercise of
Nevertheless, any owner may exempt the right of ownership by the use of
himself from contributing to this charge the entire thickness of the wall. It
by renouncing his part-ownership, would be an invasion of the right of
except when the party wall supports a the other part owners.
building belonging to him.
Art. 668. The period of prescription for
the acquisition of an easement of light
Art. 663. If the owner of a building, and view shall be counted:
supported by a party wall desires to (1) From the time of the opening of the
demolish the building, he may also window, if it is through a party wall; or
renounce his part-ownership of the wall, (2) From the time of the formal
but the cost of all repairs and work prohibition upon the proprietor of the
necessary to prevent any damage which adjoining land or tenement, if the
the demolition may cause to the party window is through a wall on the
wall, on this occasion only, shall be dominant estate.
borne by him.
Art. 669. When the distances in Article
670 are not observed, the owner of a
Art. 664. Every owner may increase the wall which is not party wall, adjoining a
height of the party wall, doing at his own tenement or piece of land belonging to
expense and paying for any damage another, can make in it openings to
which may be caused by the work, even admit light at the height of the ceiling
though such damage be temporary. joints or immediately under the ceiling,
The expenses of maintaining the wall in and of the size of thirty centimeters
the part newly raised or deepened at its square, and, in every case, with an iron
foundation shall also be paid for by him; grating imbedded in the wall and with a
and, in addition, the indemnity for the wire screen.
increased expenses which may be

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Nevertheless, the owner of the tenement rise to the easement of light and
or property adjoining the wall in which view by prescription.
the openings are made can close them
should he acquire part-ownership Art. 672. The provisions of Article 670
thereof, if there be no stipulation to the are not applicable to buildings separated
contrary. by a public way or alley, which is not
He can also obstruct them by less than three meters wide, subject to
constructing a building on his land or by special regulations and local ordinances.
raising a wall thereon contiguous to that
having such openings, unless an Art. 673. Whenever by any title a right
easement of light has been acquired. has been acquired to have direct views,
balconies or belvederes overlooking an
 Openings allowed are for the purpose adjoining property, the owner of the
of admitting light. They can be servient estate cannot build thereon at
made only in the walls of buildings less than a distance of three meters to
and not in the walls separating be measured in the manner provided in
gardens or yards because they have Article 671. Any stipulation permitting
no need for such openings distances less than those prescribed in
 The period to require the closing of Article 670 is void. Art. 673. Whenever
the illegal opening begins to run from by any title a right has been acquired to
the moment such opening is made. have direct views, balconies or
But it is only the action to compel the belvederes overlooking an adjoining
closure which prescribes property, the owner of the servient
 Although action to compel the closing estate cannot build thereon at less than
has prescribed, this does not mean a distance of three meters to be
servitude has been acquired by measured in the manner provided in
person who opened them. Servitude Article 671. Any stipulation permitting
is negative and period for acquisitive distances less than those prescribed in
prescription will begin to run only Article 670 is void.
from the time that the owner
asserting the servitude has forbidden  This article refers to a true servitude.
the owner of adjoining tenement Acquisition may be through contact,
from doing something he latter could testament, or prescription. Distance
lawfully do without the servitude. may be increased by stipulation of
the parties. It may also be extended
Art. 670. No windows, apertures, by prescription.
balconies, or other similar projections
which afford a direct view upon or (e)Drainage of Buildings
towards an adjoining land or tenement
can be made, without leaving a distance Art. 674. The owner of a building shall
of two meters between the wall in which be obliged to construct its roof or
they are made and such contiguous covering in such manner that the rain
property. water shall fall on his own land or on a
Neither can side or oblique views upon street or public place, and not on the
or towards such conterminous property land of his neighbor, even though the
be had, unless there be a distance of adjacent land may belong to two or
sixty centimeters. more persons, one of whom is the owner
The nonobservance of these distances of the roof. Even if it should fall on his
does not give rise to prescription. own land, the owner shall be obliged to
collect the water in such a way as not to
 Direct View— that which is obtained cause damage to the adjacent land or
from a wall parallel to the boundary tenement.
line, such that from the opening in
such wall, it is possible to see the  Falling water is res nullius and has
adjoining tenement without the no owner. Every owner of a house
necessity of putting out or turning or building would have aright to
one’s head dispose of it in any manner even to
 Side or oblique view—that which is the prejudice of neighbors had it not
obtained from a wall a an angle with been for the provisions in this Code
the boundary line such that in order  Last sentence is an exception to Art
to see the adjoining tenement, it is 637 which requires lower tenements
necessary to put out or turn one’s to receive water flowing naturally
head to the left or to the right from higher tenements.
 Mere opening of windows in violation
of the present article does not give

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Art. 675. The owner of a tenement or a any damage to the neighboring lands or
piece of land, subject to the easement of tenements.
receiving water falling from roofs, may
build in such manner as to receive the Art. 679. No trees shall be planted near
water upon his own roof or give it a tenement or piece of land belonging to
another outlet in accordance with local another except at the distance
ordinances or customs, and in such a authorized by the ordinances or customs
way as not to cause any nuisance or of the place, and, in the absence
damage whatever to the dominant thereof, at a distance of at least two
estate. meters from the dividing line of the
estates if tall trees are planted and at a
 Receive water through distance of at least fifty centimeters if
(1) another roof shrubs or small trees are planted.
(2) another outlet Every landowner shall have the right to
 In accordance with local ordinances demand that trees hereafter planted at a
or customs shorter distance from his land or
 Not a nuisance to the dominant tenement be uprooted.
estate The provisions of this article also apply
to trees which have grown
Art. 676. Whenever the yard or court of spontaneously. (591a)
a house is surrounded by other houses,
and it is not possible to give an outlet
through the house itself to the rain Art. 680. If the branches of any tree
water collected thereon, the should extend over a neighboring estate,
establishment of an easement of tenement, garden or yard, the owner of
drainage can be demanded, giving an the latter shall have the right to demand
outlet to the water at the point of the that they be cut off insofar as they may
contiguous lands or tenements where its spread over his property, and, if it be
egress may be easiest, and establishing the roots of a neighboring tree which
a conduit for the drainage in such should penetrate into the land of
manner as to cause the least damage to another, the latter may cut them off
the servient estate, after payment of the himself within his property.
property indemnity.
 Owner of the neighboring tenement
can cut the roots without necessity of
(f) Intermediate Distances notice to the owner of the trees. But
and Works for Certain as to the branches, it is necessary to
Constructions and Plantings as that they be cut.

Art. 677. No constructions can be built Art. 681. Fruits naturally falling upon
or plantings made near fortified places adjacent land belong to the owner of
or fortresses without compliance with said land.
the conditions required in special laws,
ordinances, and regulations relating (g) Easement against Nuisance
Art. 682. Every building or piece of land
Art. 678. No person shall build any is subject to the easement which
aqueduct, well, sewer, furnace, forge, prohibits the proprietor or possessor
chimney, stable, depository of corrosive from committing nuisance through
substances, machinery, or factory which noise, jarring, offensive odor, smoke,
by reason of its nature or products is heat, dust, water, glare and other
dangerous or noxious, without observing causes.
the distances prescribed by the
regulations and customs of the place, Art. 683. Subject to zoning, health,
and without making the necessary police and other laws and regulations,
protective works, subject, in regard to factories and shops may be maintained
the manner thereof, to the conditions provided the least possible annoyance is
prescribed by such regulations. These caused to the neighborhood.
prohibitions cannot be altered or
renounced by stipulation on the part of Nuisance—that class of wrongs which
the adjoining proprietors. arise from unreasonable, unwarranted,
In the absence of regulations, such or unlawful use by a person of his own
precautions shall be taken as may be property and which produces material
considered necessary, in order to avoid annoyance, inconvenience, discomfort,

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or harm that the law will presume a

consequent damage. Art. 687. Any proprietor intending to
make any excavation contemplated in
 Whether the effects of the use of the three preceding articles shall notify
one’s property constitutes a nuisance all owners of adjacent lands.
depends upon the circumstances.
Their penetration into another  Notice enables the adjoining owner
tenement in a limited measure is to take the necessary precautions to
permissible. Even if these effects protect their lands and buildings. It
cause material injury, they would must be sufficient to inform the
constitute a nuisance if they result nature and the extent of the
from the utilization of a tenement in proposed excavation.
a manner which is usual or current in Although person making the excavation
the locality. has given notice, he is bound to exercise
reasonable care and skill so as not to
cause damage.
(h) Easement of Lateral and
Subjacent Support
Art. 684. No proprietor shall make such
excavations upon his land as to deprive Art. 688. Every owner of a tenement or
any adjacent land or building of piece of land may establish thereon the
sufficient lateral or subjacent support. easements
 which he may deem suitable, and
 Owner has a right to excavate on his  in the manner and form which he
own land up to the boundary line of may deem best
the building land. This easement  provided he does not contravene
prevents him from excavating so the laws, public policy or public
close as to deprive the adjoining order
estate of its natural support and
cause it to crumble. Art. 690. Whenever the naked
 There are cases where surface ownership of a tenement or piece of land
belongs to one person and substrata belongs to one person and the beneficial
may belong to or be lawfully used by ownership to another, no perpetual
others. This is where easement of voluntary easement may be established
subjacent support exists. Owners of thereon without the consent of both
rights below the surface may owners.
excavate but this imposes upon them
the duty to refrain from removing Art. 691. In order to impose an
such sufficient support which will easement on an undivided tenement, or
protect the surface from subsiding piece of land, the consent of all the co-
owners shall be required.
Remedies for violation:
(1) Action for damages The consent given by some only, must
(2) Injunction be held in abeyance until the last one of
 Action may be maintained against all the co-owners shall have expressed
anyone who causes the injury his conformity.
whether he is the owner or not.
Contractor is liable jointly with the But the consent given by one of the co-
owner of the land. It is the person owners separately from the others shall
who made the excavation which bind the grantor and his successors not
causes the injury and not the person to prevent the exercise of the right
in possession when the injury occurs, granted.
who is liable for damages.
Art. 693. If the owner of the servient
Art. 685. Any stipulation or estate should have bound himself, upon
testamentary provision allowing the establishment of the easement, to
excavations that cause danger to an bear the cost of the work required for
adjacent land or building shall be void. the use and preservation thereof, he
may free himself from this obligation by
Art. 686. The legal easement of lateral renouncing his property to the owner of
and subjacent support is not only for the dominant estate.
buildings standing at the time the
excavations are made but also for
constructions that may be erected.

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Who may establish voluntary (2) Annoys or offends the senses; or

easements: (3) Shocks, defies or disregards decency
 The OWNER possessing capacity to or morality; or
ENCUMBER property may constitute (4) Obstructs or interferes with the free
voluntary servitudes. (Art. 688) passage of any public highway or street,
 The usufructuary, and even the or any body of water; or
possessor in good faith, does not (5) Hinders or impairs the use of
have the right to do so because the property.
creation of a servitude is a Classification of Nuisance
disposition of part of the right of Nature
ownership, and no one but an 1. Nuisance Per Se or at Law
owner may do this. 2. Nuisance Per Accidens or in Fact
 A general capacity to contract is not
sufficient. Scope Of Their Injurious Effects
 If there are various owners, ALL 1. Public
must CONSENT, but consent once 2. Private
given is irrevocable. (Art. 690 and 3. Mixed
 Hence, their consent need not be Nuisance Per Se (Nuisance at Law)
simultaneous.  nuisance at all times and under any
circumstances, REGARDLESS OF
In whose favor they are established: LOCATION OR SURROUNDINGS.
(a)Praedial Servitudes
 For the owner of the dominant Nuisance Per Accidens (Nuisance in
estate Fact)
 For any other person having any  One that becomes a nuisance by
juridical relation with the reason of circumstances and
dominant estate, if the owner surroundings
ratifies it.
(b)Personal Servitudes Public Nuisance
 For anyone capacitated to accept  It causes hurt, inconvenience, or injury
to the public, generally, or to such part
In case of property under usufruct of the public as necessarily comes in
 The usufructuary must not be contact it
prejudiced (Art 689)  public nuisance=common nuisance
 It is a direct encroachment upon public
Rights and Obligations rights or property which results
 These are determined by the— injuriously to the public
(1) Title, and
(2) Possession (in case of Private Nuisance
prescription enlarging or  One which violates only private rights
diminishing the initial voluntary and produces damages to but one or a
easement) (Art. 692) few persons
 Where the owner bound himself
to pay for the maintenance or do Liability of Creator of Nuisance
some service he may abandon his  General Rule: he who creates a
tenement and relieve himself of his nuisance is liable for the resulting
obligation (Art. 693) damages and, ordinarily, his liability
continues as long as the nuisance
 To produce the transmission of continues.
ownership over the tenement  He whose duty is to abate a nuisance
abandoned, the abandonment must should answer for the consequences
be made in the proper juridical form resulting from its continuance
required for the transmission of the  No one is to be held liable for a
ownership of immovable property. nuisance which he cannot himself
physically abate
 All parties to the creation or
XIII. NUISANCE maintenance of a nuisance per se are
responsible for its effect without
Art. 694. A nuisance is any act, limitation of conditions or of time.
omission, establishment, business,
condition of property, or anything else Liability of Transferees
which: (HOSDU)  To render him liable, he must
(1) Injures or endangers the health or knowingly continue the nuisance, and
safety of others; or generally, he is not liable for

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continuing it in its original form, unless  In other words, a public nuisance is

he has been notified of its existence not actionable by an individual unless
and requested to remove it, or has and until it becomes as to him, a
actual knowledge that it is a nuisance private nuisance; i.e., until he suffers
and injurious to the rights of others. some special and definite harm.
 Nature of liability is solidary
Art. 704. Any private person may abate
Art. 697. The abatement of a nuisance a public nuisance which is specially
does not preclude the right of any injurious to him by removing, or if
person injured to recover damages for necessary, by destroying the thing which
its past existence. constitutes the same, without
committing a breach of the peace, or
Art. 698. Lapse of time cannot legalize doing unnecessary injury. But it is
any nuisance, whether public or private. necessary:
(1) That demand be first made upon the
No Prescription owner or possessor of the property to
 The creation and maintenance of a abate the nuisance;
public nuisance is punishable criminally (2) That such demand has been
hence, it should prevent the rejected;
acquisition of a right to maintain it. (3) That the abatement be approved by
the district health officer and executed
Art. 699. The remedies against a public with the assistance of the local police;
nuisance are: and
(1) A prosecution under the Penal Code (4) That the value of the destruction
or any local ordinance (only for public does not exceed three thousand pesos.
nuisance): or
(2) A civil action; or Right of Individual to Abate a Public
(3) Abatement, without judicial Nuisance
proceedings. Requisites
1. Must be exercised only in cases
Judgment With Abatement of urgent or extreme necessity
2. Nuisance must be actually
Art. 700. The district health officer shall existing at the time when
take care that one or all of the remedies abatement is undertaken
against a public nuisance are availed of. 3. The summary abatement should
be resorted to within a reasonable
Art. 701. If a civil action is brought by time after knowledge of the
reason of the maintenance of a public nuisance is acquired or should have
nuisance, such action shall be been acquired by the person
commenced by the city or municipal entitled to abate
mayor. 4. Must give a reasonable notice of
his intention; a demand must be
Art. 702. The district health officer shall made
determine whether or not abatement, 5. The means employed must be
without judicial proceedings, is the best reasonable
remedy against a public nuisance. 6. The abatement must be approved
by the district health officer
Art. 703. A private person may file an 7. The property must not be
action on account of a public nuisance, if destroyed unless it is absolutely
it is specially injurious to himself. necessary to do so; the civil code,
however, provides a limitation, that
Special Injury to Individual the value of destruction shall not
 GENERAL RULE: a public nuisance exceed three thousand pesos
gives no right of action to any 8. The right must always be
individual but must be abated by a exercised with the assistance of the
proceeding instituted in the name of local police
the State
 EXCEPTION: an individual who Art. 705. The remedies against a
suffered some special damage by private nuisance are:
reason of a public nuisance, different (1) A civil action; or
from that sustained by the general (2) Abatement, without judicial
public, may maintain a suit in equity proceedings.
for an injunction to abate it, or an
action for damages

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Right to Damages title of ownership and of real rights

 A person may maintain an action at which affect it and even where the
law for damages caused by a nuisance capacity of free disposition on the part
 The payment of damages is generally of an individual is modified
a mere reparation for past injuries,
and not an authority to continue the Purposes of the Principle of Publicity
wrong.  To give notice of the true status of the
 each repetition of it gives rise to a new property
cause of action  To record transmissions and
modifications of real rights
Defenses to Action  To prevent fraud
 Public Necessity  To guarantee the effectivity of rights
 Estoppel
Art. 709. The titles of ownership, or of
Art. 706. Any person injured by a other rights over immovable property,
private nuisance may abate it by: which are not duly inscribed or
 removing, or annotated in the Registry of Property
 if necessary, by destroying the shall not prejudice third persons.
thing which constitutes the
nuisance Art. 710. The books in the Registry of
o without committing a Property shall be public for those who
breach of the peace or have a known interest in ascertaining
doing unnecessary injury the status of the immovables or real
o procedure for extrajudicial rights annotated or inscribed therein.
abatement of a public
nuisance by a private Art. 711. For determining what titles
person be followed are subject to inscription or annotation,
as well as the form, effects, and
Who may sue on Private Nuisances cancellation of inscriptions and
 Ownership of the legal title is not annotations, the manner of keeping the
necessary. Even a possessor may sue books in the Registry, and the value of
the entries contained in said books, the
Art. 707. A private person or a public provisions of the Mortgage Law, the
official extrajudicially abating a nuisance Land Registration Act, and other special
shall be liable for damages: laws shall govern.

(1) If he causes unnecessary injury; or

(2) If an alleged nuisance is later
declared by the courts to be not a real ACQUIRING OWNERSHIP
TITLE - the remote cause of
Remedies of Property Owner
 He may bring an action for replevin, or Every juridical right which gives a means
enjoin its sale and damages if it is has
to the acquisition or real rights but
been sold; or action to enjoin private
which in itself is insufficient
parties from proceeding to abate a
supposed nuisance MODE- the proximate cause of
 Ask court to determine WON it is
indeed a nuisance
The specific cause which produces
dominion and other real rights as a
result of the co-existence of special
XIV. REGISTRY OF PROPERTY status of things, capacity, and intention
of persons and fulfillment of the
Art. 708. The Registry of Property has requisites of law
for its object the inscription or
annotation of acts and contracts relating Modes of acquiring ownership
to the ownership and other rights over (POSTDI)
immovable property. 1) Occupation
2) Intellectual Creation
Concept 3) Donation
 The Registry of Real Property may be 4) Prescription
defined as a public center where the 5) Succession
true condition of real estate is made 6) Tradition
clear by registering all transferable

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XVI. PRESCRIPTION Things not subject to prescription:

1. public domain
It is the mode by which one 2. in transmissible rights
acquires ownership and other real rights 3. movables possessed through a
thru lapse of time; also a means by crime
which one loses ownership, rights & 4. registered land
actions; retroactive from the moment
period began to run Renunciation of prescription:
Kinds:  persons with capacity to alienate
1. Acquisitive may renounce prescription
1. Extinctive already obtained but not the right
to prescribe in the future
Comparison between Acquisitive  may be express or tacit
Prescription and Extinctive Prescription  prescription is deemed to have
Acquisitive Extinctive been tacitly renounced;
Prescription Prescription renunciation results from the acts
Usurpacion Prescription w/c imply abandonment of right
It is the possessor One looks at the acquired
who does the act neglect of the  creditors & persons interested in
owner/ his making prescription effective may
omission avail themselves notwithstanding
Expressly vests the Statute of express or tacit renunciation
property and limitation that
raised a new title merely bars the
Prescription Of Ownership & Other
in the occupant right of action
Real Rights
Important feature Important feature
is the claimant in is the owner out of
possession possession Kinds of Acquisitive prescription
1. ordinary
2. extra-ordinary
Who may acquire by prescription:
a. person who are capable of Requisites for ordinary prescription:
acquiring property by other legal 1. possession in good faith
modes 2. just title
b. STATE 3. within time fixed by law
c. minors – through guardians of  4 years for movables
personally  8 years for immovables
4. in concept of an owner
Against whom prescription run: 5. public, peaceful, uninterrupted
1. minors & incapacitated person
who have guardians Requisites for extra-ordinary
2. absentees who have prescription:
administrators 1. just title is proved
3. persons living abroad who 2. within time fixed by law
have administrators  10 years for movables
4. juridical persons except the  30 years for immovables
state with regards to property 3. in concept of an owner
not patrimonial in character 4. public, peaceful, uninterrupted
5. between husbands & wife
6. between parents & children  GOOD FAITH- Reasonable belief that
(during minority/insanity) person who transferred thing is the
7. between guardian & ward owner & could validly transmit
(during guardianship) ownership
8. between co-heirs/co-owners -Must exist throughout the entire
9. between owner of property & period required for prescription
person in possession of
property in concept of holder  JUST TITLE (TRUE & VALID) –
must be proved & never
Things subject to prescription: all things presumed
within the commerce of men a) Titulo Colorado -
a. private property b) Titulo putativo -
b. patrimonial property of the state  title must be one which would
have been sufficient to

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transfer ownership if grantor Prescription of Actions

had been the owner By lapse of time fixed by law
 through one of the modes of  30 years
transferring ownership but -action over immovables from
there is vice/defect in time possession is lost
capacity of grantor to  10 years
transmit ownership -mortgage action
-upon written contract
 IN CONCEPT OF OWNER -upon obligation created by law
 possession not by mere -upon a judgement
tolerance of owner but  8 years
adverse to that of the owner -action to recover movables from
 claim that he owns the time possession is lost
property  6 years
-upon an oral contract
 PUBLIC, PEACEFUL & -upon a quasi-contract
 Must be known to the owner -actions if periods are not fixed
of the thing by law
 Acquired & maintained w/o  4 years
violence -upon injury to rights of plaintiff
 Uninterrupted (no act of -upon a quasi-delict
deprivation by others) in the  1 year
enjoyment of property -for forcible entry & detainer
-for defamation
a) Natural Rights not extinguished by
-through any cause, possession ceases prescription:
for more than 1 year 1. demand right of way
-if 1 year of less – as if no interruption 2. abate public /private nuisance
3. declare contract void
b) Civil 4. recover property subject to
-produced by judicial summons; except expressed trust
 void for lack of legal solemnities 5. probate of a will
 plaintiff desist from 6. quiet title
complaint/allow proceedings to
 possessor is absolved from XVII. TRADITION
complaint Requisites:
i. express or tacit 1. Pre-existence of right in estate of
renunciation grantor
ii. possession in wartime 2. Just cause or title for the
 RULES IN COMPUTATION OF 3. Intention- of both grantor and
PERIOD: grantee
a. Present possessor may tack his 4. Capacity- to transmit and to
possession to that of his grantor acquire
or predecessor in interest 5. An act giving it in outward form,
b. Present possessor presumed to physically, symbolically, or legally
be in continuous possession I
intervening time unless contrary Legal Maxim:
is proved “Non nudis pactis, sed tranditione,
c. First day excluded, last day dominia rerum transferentur”
included (Not by mere agreement but by delivery,
is ownership transferred)
Tacking Period
 there must be privity between Kinds of Tradition:
previous & present possessor
 possible when there is succession of a. Real Tradition
rights b. Constructive Tradition
 if character of possession different: i. Symbolic Delivery
predecessor in bad faith possessor ii. Delivery by Public Instrument
in good faith – use extraordinary iii. Traditio Longa Manu- “long
prescription hand”; placed in the sight of

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vendee so that he can take service or

possession of the property labor
iv. Traditio Brevi Manu- “short Lease of things
hand”; transferee already in (1) Concept
possession of the property but
not as owner Art. 1643. In the lease of things, one of
v. Traditio Constitum the parties binds himself to give to
Possessorium- owner remains another the enjoyment or use of a thing
in possession but not as owner for a price certain, and for a period
e.g. lease which may be definite or indefinite.
vi. Quasi-Tradition- subject However, no lease for more than ninety-
matter: property right; e.g. right nine years shall be valid.
to collect credit
vii. Tradition by operation of law (2) Consumable things cannot be the
subject matter of lease, Except
(a) consumables only for display
XVIII. LEASE or advertising. eg. Wedding
cakes for display in
General Characteristics of Every Goldilocks, wine in a
Lease showcase of a store
(1) Temporary duration (b) goods are accessory to an
(2) Onerous industrial establishment e.g.,
(3) Price is fixed according to coal in a factory
contract duration
(3) Special characteristics of lease of
Kinds of Lease things;
(1) Lease of things—movables and (a) essential purpose is to
immovables transmit the use and
 no lease for more than 99 years enjoyment of a thing
shall be valid (b) consensual
(c) onerous
(2) Lease of work or contract of (d) price fixed in relation to
labor period of use or enjoyment
 no relation of principal and agent (e) temporary
does not exist between them.
(4) Lease distinguished from sale,
(3) Lease of Services usufrunct, commodatum
 no principle of representation
unlike in agency In case of doubt-INTENTION of the
 The will of both parties is parties should be the guide in determining
necessary for the extinguishment the contract entered into.
of the obligation Lease Sale
(i) Only the use or
Lease of Contract for enjoyment of the
Service a piece of things is
work transferred, and
Manner of The price is In proportion only for a
paying the paid in to the work determinate period
price relation to accomplished Plain redundancy to Price of the thing
the fix or mention the was fixed in the
duration of price of the thing contract
the labor or which is the subject-
service matter thereof
Existence If the lessor If the lessor May be in money, or Price must be in
of a workstation works by in fruits, or in some money or its
relation of under the himself, other useful thing or equivalent
dependenc direction of independently some other
e between the lessee, of the lessee, prestation
lessor and receiving in the manner
lessee instructions he deems
from him most
on the adequate for
manner of the execution Lease Usufruct
rendering of the work

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Real right only by Always a real right  CANNOT be perpetual- there

exception: when must always be a period, which
registered and for may be definite or indefinite
more than 1 year  If the period is indefinite, and the
Constitutor/Lessor To constitute thing leased is rural land,
need not be an usufruct, constitutor art.1682 shall apply; if it is urban
owner e.g. must be the owner land art. 1687 governs.
sublessor,  If the thing is neither rural nor
usufruct urban land, the provisions of the
Lessor places and Owner merely allows two articles should be applied by
maintains lessee usufructuary to use analogy.
in the enjoyment and enjoy the
of the thing property (i) rural land
Use is limited to Includes all possible
that written in the uses and manner of Art. 1682. The lease of a piece of rural
contract enjoyment of land, when its duration has not been
property EXCEPT in fixed, is understood to have been for all
distinction of normal the time necessary for the gathering of
or abnormal usufruct the fruits which the whole estate leased
Must be definite, Maybe for an may yield in one year, or which it may
otherwise court indefinite period of yield once, although two or more years
may fix the same time have to elapse for the purpose.
through the
proper action (ii) urban land
BOTH the lessee and the usufructuary
USE and ENJOY the thing. Art. 1687. If the period for the lease
has not been fixed, it is understood to
Lease Commodatum be from year to year, if the rent agreed
Consists in the Consists in the upon is annual; from month to month, if
cessation of the use cessation of a thing it is monthly; from week to week, if the
of a thing to to another but this rent is weekly; and from day to day, if
another but this is is essentially the rent is to be paid daily.
essentially onerous gratuitous
BOTH consist in the cession of the use of Rent Courts can fix a longer term
a thing to another monthly lessee occupied premises for
more than a year
(5) Price In Lease
 Price may be in money, or in weekly lessee has been in possession
fruits, or in some other useful for over six months
things; some other prestation Daily lessee has stayed in the place
 TENANCY CONTRACT- when the for over one month
price consists of a certain
percentage of the fruits obtained Capacity of Lessee
from the thing. But is regarded as Those who are disqualified to buy certain
having the character more of a things cannot lease such things. (ART.
partnership rather than a lease. 1646, 1490,1491)

Amount of Rent Lease of Real Estate

 If the parties are not able to fix Every lease of real estate may be
the price, or the basis for its recorded in the Registry of Property to
determination, the contract is be binding upon 3rd persons.
ABSOLUTELY VOID. If the lessee
has entered upon the possession Purchase of Leased Land
and enjoyment of the thing, he  Where a purchaser of land at the
will be liable for the damages for time of the purchase has FULL
the occupation of the thing. KNOWLEDGE of the fact that the land
has been leased to a third person, he
(6) Period of lease is BOUND to respect said lease,
 When the lease is for such time although it is not recorded upon the
as the lessor or lessee may certificate of title.
please, it is considered as on for
life, ending upon the death of the (7) Assignment of lease
party who would have terminated Art. 1649. The lessee cannot assign the
the contract. lease without the consent of the lessor,

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unless there is a stipulation to the preservation of the thing leased in the

contrary. manner stipulated between the lessor
and the lessee.
 However, a mere transfer of
rights of the lessee, and not of (i) for rents
the contract itself, would not
require the lessor’s consent, Art. 1652. The sublessee is subsidiarily
unless there is an express liable to the lessor for lessee’s rent but
stipulation to the contrary. not responsible beyond the amount of
rent due from him at the time of the
(8) Sublease extrajudicial demand by the lessor.
Payments of rent in advance by the
Art. 1650. When in the contract of lease sublessee shall be deemed not to have
of things there is no express prohibition, been made, so far as the lessor's claim
the lessee may sublet the thing leased, is concerned, unless said payments were
in whole or in part, without prejudice to effected in virtue of the custom of the
his responsibility for the performance of place.
the contract toward the lessor.
(ii) for the use and preservation
Assignment of Sublease of the thing leased
lease  Without prejudice to his obligation
There is a transfer Merely another toward the sublessor, the
to a third person of contract of lease, sublessee is bound to the lessor for
the rights and where the original all the acts which refer to the use
obligations arising lessee becomes in and preservation of the thing
from the lease turn a lessor leased in the manner stipulated
contract between the lessor and the lessee.
A sale of the Even when the
lessee’s rights, and lessor consents to (9) Rights and obligations of lessor
when the lessor the sub-lease, the and lessee
gives his consent, original lease
the original lessee contract subsists (a) obligation of lessor
is released and is binding on
the lessee Art. 1654. The lessor is obliged:
Succession by Juxtaposition of 2 (1) To deliver the thing which is the
particular title to leases object of the contract in such a condition
one contract of as to render it fit for the use intended;
lease (2) To make on the same during the
lease all the necessary repairs in order
 Effects to keep it suitable for the use to which it
(1) Remedy when property is has been devoted, unless there is a
subleased despite prohibition: stipulation to the contrary;
recission and damages, or (3) To maintain the lessee in the
damages only. peaceful and adequate enjoyment of the
(2) When in the contract of lease, lease for the entire duration of the
there is no express contract.
prohibition, the lessee may
sublet the thing leased, in (i) Warranty of Lessor
whole or in part, without  IN the cases where the return of
prejudice to his responsibility the price is required, REDUCTION
for the performance of the shall be made in proportion to the
contract toward the lessor. time during which the lessee
enjoyed the thing.
(a) House Rental Law (RA 877)—  Art. 1547, 1555, 1561, 1566,
there is a presumption that there 1567, 1568, 1569
would be no sublease unless the  Liability for the warranty is not
lessor allows it equivalent to liability in damages.
(b) obligation of sublessee to lessor  The lessor is liable for the warranty
of the thing leased against any
hidden defects it may have, even
Art. 1651. Without prejudice to his when UNKNOWN to said lessor.
obligation toward the sublessor, the  But this liability for warranty of the
sublessee is bound to the lessor for all thing leased does not amount to an
acts which refer to the use and obligation to indemnify the tenant
for damages, which is only to be

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allowed, when lessor acted with  To maintain the lessee on the

fraud and in bad faith by peaceful and adequate enjoyment
concealing the defect and not of the lessee for the entire
revealing it to the lessee. duration of the contract.
 Failure to do so releases the
(ii) Making of Repairs lessee from the obligation to pay
 It implies the putting of something what is stipulated in the contract
back into the condition in which it from the date he ceased to
was originally and NOT an occupy the premises.
 It is the duty of the lessee to give (b) obligations of lessee (Art.
NOTICE of the need of repairs to the 1657)
lessor, and he shall be liable for the
damages which by his neglect may (i) Pay Rent
be suffered by the owner.  arises only when the contract has
 Lessor is NOT bound to make repairs been actually carried into effect
caused by the lessee himself. by the delivery of the thing
leased to the lessee for the
Effect of Urgent Repairs purpose stipulated in the
 During the lease it should contract.
become necessary to make some
urgent repairs upon the thing Increase and Decrease of Rent
leased, which cannot be deferred  Increase and decrease in the
until the termination of the lease, price of lease shall be 10% per
the lessee is obliged to tolerate year, net of the assessed
the work. violation of the property
 If the repair lasts for more than
40 days, the rent shall be Failure to Pay for Rent
reduced in proportion to the  Eviction, recover the unpaid rent,
time-including the 40 days- and plus accrued legal interest
the part of the property of which thereon at the rate of 6% per
the lessee has been deprived. year.
 When the work is of such a
nature that the portion which the Place and Time
lessee and his family need for  Payment of rent shall be made at
their dwelling becomes the domicile of the lessee; and
uninhabitable, he may rescind with respect to the time, the
the contract if the main purpose custom of the place shall be
of the lease is to provide a followed.
dwelling for the lessee.
 If after having been notified, the ii. Use the Thing Leased as a
lessor fails to make urgent Diligent Father
repairs, the lessee, to avoid  Standard: diligent father of a
imminent danger, may order the family, in the absence of
repairs at the lessor’s expense. stipulation, to that which may be
inferred from the nature of the
Dangerous Conditions thing leased, according to the
 The lessee may terminate the custom of the place.
lease at once by notifying the  The lessee is responsible for the
lessor, even if at the time the deterioration of the thing leased,
contract was perfected the unless he proves that it took
former knew of the dangerous place without his fault.
condition or waived the right to  The lessee is liable for any
rescind the lease on account of deterioration caused by members
the condition. of his household and by his guest
and visitors.
iii. Pay Expenses for the Deed of
Art. 1661. The lessor cannot alter the Lease (Art. 1662-1667)
form of the thing leased in such a way
as to impair the use to which the thing is c. Right of lessee to suspend
devoted under the terms of the lease. payment of rentals
Art. 1658. The lessee may suspend the
(iii) Peaceful Possession payment of the rent in case the lessor
fails to make the necessary repairs or to

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maintain the lessee in peaceful and (e) Lessor not obliged to answer
adequate enjoyment of the property for mere act of trespass by a
leased. third person

d. Right to ask for rescission (10) Grounds for ejectment of

lessee by lessor
Liability for Breach of Duties
 If the lessor or lessee should not
comply with the obligation set Termination of Lease
forth in ART 1654 and 1657, the (1) by the expiration of the
aggrieved party may ask for: period;
(1) rescission of the contract; (2) by the total loss of the
(2) indemnification for thing;
damages; (3) by the resolution of the right
(3) only damages, of the
allowing the contract to lessor, such as when the
remain in force lessor is usufruct is
 The lessor cannot be held terminated;
responsible for damages from (4) by the will of the purchaser or
defects unknown to both parties. transferee of the things;
(5) by rescission due to
Alternative Remedies nonperformance of the
 Performance of the contract and obligation of one of the
rescission parties.
 In either case, the aggrieved
party is entitled to such damages Period
but may not upon rescission of  If at the end of the contract the
the contract recover the damages lessee should continue enjoying
that are appropriate only where the thing leased for fifteen days
the performance is demanded. with the acquiescence of the
lessor, and unless a notice to the
Rescission of the Contract contrary by either party has
 Where the plaintiff alleges and previously given, it is understood
submits proof that the defendant that there is an implied new
is in possession of a parcel of lease, not for the period of the
land as lessee, and the latter has original contract but for the time
not paid the proper rents, he may established in art. 1682(rural)
be compelled, by reason of his and 1687(urban)
inability to pay to:  When the parties have made no
(1) return the leased agreement and the tenant
property; remains in possession with the
(2) the lessor has a acquiescence of the lessor for 15
right to rescind the days after the expiration of the
contract; term, the duration of the tenancy
(3) recover the unpaid is governed by article 1682 and
rents 1687.
(4) eject the tenant
from the land Tacit Renewal
 The execution of the deed shall  The fifteen-day period which
be equivalent to delivery but this brings about a tacit renewal of
is a rebuttable presumption. the lease, is not applicable to
 If the thing leased has never successive renewals.
been placed in possession of the
lessee, he has the remedy of
rescission. Judicial Ejectment
 The lessor may judicially eject
Enforcement of Lease the lessee for any of the following
 Where the lessor resumes causes:
possession of his leased property (1) When the period agreed
for its protection after the lessee upon, or that which is fixed
has abandoned the same, the for the duration of leases
lessor has still the right to hold under Art 1682 (rural) and
the lessee responsible until the 1687(urban), has expired;
termination of the lease.

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(2) Lack of payment of the price terminate the lease except when
stipulated; the contract provided otherwise
(3) Violation of any of the or purchaser is aware of lease.
conditions agreed upon in the  If the buyer makes use of this
contract; right, the lessee may demand
(4) When the lessee devotes the that he be allowed to gather the
thing leased to any use or fruits of the harvest which
service not stipulated which corresponds to the current
causes the deterioration agricultural year and that the
thereof, or if he does not vendor indemnify him for
observe due diligence in its damages suffered. This right does
use. not extend to the gathering of
 When the lease contract does not fishes, which require 2 years
have a definite period, but is before they are of any
terminable upon 30 days notice, commercial value.
the lease will terminate upon the  The act of the new owner of
expiration of 30 days from the giving notice of an increase of
receipt of notice, whether the rent, when the existing lease is of
termination coincides with the an indefinite time, or when the
rent day or not. original period has expired,
 The landlord has the right to constitutes a notice of
increase the rent after the termination of the original lease.
expiration of the stipulated
period. And if no period is
stipulated, in a lease of urban Right to Repurchase
property, notice by the lessor of  The purchaser in a sale with the
an increase in rent is equivalent right to redemption cannot make
to notice of termination of the use of the power to eject the
original agreement. lessee until the end of the period
of redemption.
(12) Right of purchaser of  But when the vendor remains in
leased land possession as a tenant, and he
fails to pay the agreed rent, he
Art. 1676. The purchaser of a piece of may be evicted by the vendee
land which is under a lease that is not even before the period of
recorded in the Registry of Property may redemption has expired.
terminate the lease, save when there is
a stipulation to the contrary in the (13) Useful improvements in
contract of sale, or when the purchaser good faith made by lessee.
knows of the existence of the lease.
If the buyer makes use of this right, Indemnity For Improvements
the lessee may demand that he be  If the lessee makes, in good
allowed to gather the fruits of the faith, useful improvements the
harvest which corresponds to the current lessor upon the termination of
agricultural year and that the vendor the lease shall pay the lessee
indemnifies him for damages suffered. one-half of the value of the
If the sale is fictitious, for the improvements at that time.
purpose of extinguishing the lease, the
supposed vendee cannot make use of (14) Special provisions for
the right granted in the first paragraph leases of rural lands
of this article. The sale is presumed to  It is urban when the principal
be fictitious if at the time the supposed purpose is dwelling.
vendee demands the termination of the  It is rural when the principal
lease, the sale is not recorded in the purpose is exploitation of the soil.
Registry of Property.

Art. 1677. The purchaser in a sale with

the right of redemption cannot make use
of the power to eject the lessee until the
end of the period for the redemption.

Sale Of Leased Property

 The purchaser which is under a
lease that is not recorded in the
Registry of Property may

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XIX. DONATION o Nature of a donation is not made to

depend by the title given by the
Characteristics: donor but by what is expressed.
a) Unilateral – obligation imposed on o To determine whether mortis causa
the donor or inter vivos, nature of act, whether
b) Consensual – perfected at time donor it is disposition or execution, is
knows of acceptance controlling.

Requisites of Donation: Inter vivos

(1) Consent and capacity of parties  In doubt, conveyance should be
(2) Animus donandi (causa) deemed a donation inter vivos to
(3) Delivery of thing donated avoid uncertainty as to the
(4) Form as prescribed by law ownership of the property.
 Where the ownership and
There must be impoverishment in fact possession as well as
of donor’s patrimony and enrichment on administration were turned over
part of donee. to the donee but right to reap
and dispose of the fruits was
Requirements of a donation: deferred until after donor’s
1. subject matter – anything of death, donation is inter vivos
value; present property & not  General rule: Donation inter vivos
future, must not impair legitime is irrevocable EXCEPT:
2. causa – anything to support a 1. During the subsequent birth
consideration: generosity, of the donor’s children
charity, goodwill, past service, 2. Failure of donee to comply
debt which conditions imposed
3. capacity to donate & dispose & 3. Ingratitude of donee; and
accept donation 4. Reduction of the donation by
4. form – depends on value of reason of inofficiousness
Donation mortis causa
Kinds of Donation  A donation mortis causa not in
the form of a will is not valid and
A. As to its taking effect does not transmit any right.
1. Inter Vivos (729, 730, 731)  If the donor reserves the right to
2. Donation mortis causa (728) dispose of all the properties
3. Propter nuptias (Art. 82, 87 purportedly donated, there is no
Family Code) donation inter vivos but mortis

What rules Intention of the parties prevail

Inter if the intention is to make the donation effective
vivos – during the donor’s lifetime:
Governed by the
take effect ART 729: even if the thing donated is delivered
rules on
during the only at the time of the donor’s death, it is inter
contracts and
lifetime of vivos and the fruits of the thing belongs to the
obligations with
the donor donee unless the donor provides otherwise
regard to
ART 730: even if there is a fixing of an event or
portions not

the imposition of a suspensive condition which

provided in the
may take place beyond the natural expectation
title on
of the life of the donor
donations ART
ART 731: If the resolutory condition is the
donor’s survival (i.e. if donor does not die, the
donation already effective shall terminate)
Mortis They partake of
causa – the nature if
take effect testamentary
upon the provisions and
death of are governed by
the donor the rules on
Succession ART

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B. As to Cause or Consideration WHEN PERFECTED: ACCEPTANCE BY

1. Simple (Art.725) THE DONEE: GENERALLY
2. Remuneratory (Art.726)
3. Onerous (Art.733) ART 734: Donation is perfected at the
(See Table in the appendix) moment the donor knows of the
donee’s acceptance
C. As to its Effectivity or WHO MAY ART 745: Only these
Extinguishment ACCEPT: persons may accept;
1. Pure otherwise, void
2. Conditional (730, 731)—donation 1) donee personally
is not carried out until the day comes 2) authorized person
but it produces effects with a special
power for the
With a term – He who donates with a purpose or with a
term has already disposed of the general sufficient
thing donated and cannot revoke it power
nor can he dispose the thing in favor WHEN TO ART 746: During lifetime
of another unless the donor ACCEPT of donor and donee
postpones execution and reserves
the right to revoke DONATION OF IMMOVABLES:
Perfection of Donation
presumes a demandable juridical FORM OF Public document
relation. The donor can no longer DONATION
withdraw and he can be compelled to CONTENTS Property donated is
comply. OF specified and the value of
Acceptance is necessary because DONATION the charges which the
nobody is obliged to receive a benefit donee must satisfy
against his will. FORM OF Same deed of donation
When the donation and the acceptance ACCEPTANCE or in a separate public
are in the same instrument, signed document; if separate,
by both donor and donee, donation the donor shall be
is perfected. notified in an authentic
After perfection, donation can only be form and this shall be
revoked by the consent of the donee noted in both
or by judicial decree especially when instruments
the donation is onerous. WHEN TO During lifetime of donor
Mere declaration of an intention without ACCEPT
intent to transfer is not a donation
even if accepted.


Oral In writing
Value of the thing Value of the
donated < or = thing donated
P5,000 > P5,000;
otherwise, void
delivery of the
thing or the
document which
represents the

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ART 735: All persons who may contract ART 738; All those not specially

and dispose of their property disqualified by law


ART 736: Donor’s capacity determined

at the time of the making of the

ART 736: Guardians and trustees with
respect to the property entrusted to
ART 739: Void donations:
1) those made between persons guilty of adultery or concubinage at the time
of the donation (the declaration of nullity may be brought by the spouse of
the donor or donee and only preponderance of evidence is needed)

2) those found guilty of the same criminal offense inconsideration thereof

ART 739 (3): public officer or his wife,
descendants and ascendants by reason
of his office
ART 740: Those who cannot succeed by
will cannot be donees
ART 743: Donations made to
incapacitated persons are void although
made under the quise of another
ART 741: Minors may become donees
but acceptance must be made through

their parents or legal representative

ART 742: Donations made to unborn
children may be accepted by persons


who would legally represent them if

they were already born

Who may receive? 5. Art. 2012 “Any person who is

e. All those who are not specially forbidden from receiving a donation
disqualified by law – e.g. under Art. 739 cannot be named
husband and wife during beneficiary of a life insurance policy
marriage, not propter nuptias by the person who cannot make a
f. Even if incapacitated – e.g. donation to him.”
minors, insane, etc. (acceptance
made through parents or legal Double Donations
guardian); conceived and unborn Apply double sales to double donations
(acceptance made through legal
representatives if they were Who may accept (Art. 745, 747)
born) - donee personally or through
Capacity required is for disposition person
inter vivos and not mortis causa. Both - representatives of incapacitated
capacity to contract and the capacity to must make notification and
dispose of property must exist in order notation
to have capacity to donate.
Capacity to accept is also governed by If the donor dies before he learns of the
rules on succession acceptance, the donation does not take
effect, even if the acceptance is made
Other persons disqualified to receive during the lifetime of the donor.
1. priest who heard confession of donor Form of Donations
during his last illness
2. relatives of priest within 4th degree, (a) Personal property (Art. 748)
church, order, community where
priest belongs Document of donation need not be public
3. physician, nurse, etc. who took care instrument. When donation does not
of donor during his last illness exceed P5,000, it may be made orally or
4. individuals, corporations, in writing. If made orally, there must be
associations not permitted simultaneous delivery. If no

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simultaneous delivery, donation is void the donee or his heirs accept, the
unless it is made in writing. donation subsists but in reality it is a
new and valid one.
The law does not require that when the
donation is made in writing the While a donation of immovable property
acceptance should also be in writing (if not made in a public instrument is not
value does not exceed P5,000). effective as a transfer of title, it is a
circumstance which may explain the
(b) Real property (Art. 749) adverse and exclusive character of the
possession of the intended donee and
Art. 1357 is not applicable. Donee such possession may ripen into
cannot bring an action to compel the ownership by prescription.
donor to execute a public instrument of
donation. That article is applicable only Rules in Art. 748 and 749 not
to contracts which validly exist and applicable to:
cannot be held applicable to a case i. onerous donations
where the form is required in order to ii. modal donations
make it valid. iii. mortis causa donations
iv. donations propter nuptias
Where the donor executed private
instruments of donation and after his
death his only heir executed a public What may be given:
instrument ratifying the donation, such  All or part of donor’s present
public instrument cannot be considered property provided he reserves
as having retroactively perfected the sufficient means for the support
gift. It might serve as a quitclaim on the of the ff:
part of the heir who is estopped from  himself
asserting any right to the properties.  relatives who by law are entitled
to his support
If the instrument of donation has been  legitimes shall not be impaired
recorded in the registry of property, the  when w/o reservation or if
instrument that shows the acceptance inofficious, may be reduced on
should also be recorded. petition of persons affected
 except: conditional donation &
If acceptance has been made but before donation mortis causa
the donor has been notified, the donor  except: future property (Osorio
dies, the donation is not perfected. If vs. Osorio)
the donor’s heirs ratify the donation and

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WHAT MAY BE DONATED All present property of the LIMITATION: he reserves in

ART 750 donor or part thereof full ownership or in usufruct,
sufficient means for his
support and of all relatives
who at the time of
acceptance of the donation
are by law entitled to be
RESERVATION: reduction of
the donation
WHAT MAY NOT BE ART 751; Donations cannot
DONATED: comprehend future property;
those which the donor cannot
dispose of at the time of the
ART 752: No person may give
or receive by way of donation
more than what he may give
or receive by will
DONATIONS MADETO ART 753: No accretion (i.e. EXCEPTION: those given to
SEVERAL PERSONS one donee does not get the husband and wife except
JOINTLY share of the other donees when the donor otherwise
who did not accept) provides
WHAT THE DONEE ART 754: to be subrogated to
ACQUIRES WITH THE all the rights and actions that
THING would pertain to the donor in
case of eviction
OBLIGATIONS OF THE ART 754: No obligation to EXCEPT: when donation is
DONOR warrant onerous
EFFECT: if the donor shall be
This also applies in case of
bad faith on his part with
regard to hidden defects
WHAT MAY BE RESERVED ART 755: Right to dispose If donor dies without
BY THE DONOR may be reserved exercising this right, the
portion reserved shall belong
to the donee
USUFRUCT vs. OWNERSHIP ART 757: The ownership of
the property may be donated
to one person and the
usufruct to another
REVERSION ART 758: The donor may LIMITATION: The third
provide that the property will person should be living at the
go back to him or to another time of the donation
person for any case or OTHERWISE: reversion is
circumstances void but obligations subsists
OBLIGATION OF DONEE TO ART 758: If the donation EXCEPT: When contrary
PAY DONOR’S DEBTS imposes this obligation on the intention appears
donee, only those debts
previously contracted shall be
paid by said donee and in no
case shall he be responsible
for debts exceeding the value
of the thing donated
IN FRAUD OF CREDITORS ART 759: If there is no PRESUMPTION that donation
stipulation for the donee to in fraud of creditors: when at
pay debts, he shall only be the time of donation, the
responsible when the donor did not reserve
donation was made in fraud sufficient property to pay his
of creditors debts prior to the donation

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 In General considered as limited to the value

(1) Donee may demand actual of the thing donated.
delivery of the thing donated. Creditors may demand the
(2) Donee is subrogated to rights of rescission of the donation. If the
donor in the property credits exceed the value of the
donated. property, the donee cannot be
(3) Donor not obligated to warrant held liable for such excess.
things donated, except in If the donee has alienated the
onerous donations in which case, property to one who acquired it in
donor is liable for eviction good and he is unable to return
up to the extent of the burden. it, he will be held liable in
(4) Donor is liable for eviction or damages but the damages cannot
hidden defects in case of bad exceed the value of the property
faith on his part. itself.

Donations propter nuptias of property

subject to encumbrances are valid. Donations of Future Property (751)

Art. 85 FC-Effect of foreclosure- Future property includes all property

Donations by reason of marriage of that belongs to others at the time the
property subject to encumbrances shall donation is made, although it may or
be valid. In case of foreclosure of the may not later belong to the donor.
encumbrance and the property is sold BUT these can be donated:
for less than the amount of the 1. properties to which the donor
obligation secured, the donee shall not has a RIGHT, although the
be liable for the deficiency. If the delivery of such properties to him
property is sold than the total amount of may be fixed for a future date
said obligation, the donee shall be 2. those properties which pertain
entitled to the excess. to him CONDITIONALLY, and will
become his upon the happening of
Donation to several donees jointly—no a suspensive condition.
right of accretion Except Properties of an existing INHERITANCE
1. donation provides otherwise cannot be considered future property of
2. donation to husband and wife the heirs after the death of the
jointly with right of accretion (jus predecessor, because the rights of the
accrescendi), unless the donor heirs are acquired on the moment of
provides otherwise. death, even if the delivery to them of
the property may be delayed.
Special Provisions
(1) Reservation by donor of power to
dispose (in whole or in part) or to Revocation of Donations
encumber property donated. - applies only to donation inter vivos
(755) - not applicable to onerous donations
(2) Donation of naked ownership to
one donee and usufruct to  With regards to donations made by
another. (756) person without children or
(3) Conventional reversion in favor of descendants at time of donation:
donor or other person. (757) 1. If donor should have legitimate,
(4) Payment of donor’s debt (758) legitimated or illegitimate
(a) If expressly stipulated-donee children
to pay debts contracted 2. If child came out to be alive & not
before the donation, unless dead contrary to belief of donor
specified otherwise, but in no 3. If donor subsequently adopts a
case shall the donee be minor child
responsible for debts
exceeding value of property  Action for revocation based on failure
donated, unless clearly to comply with condition in case of
intended conditional donations
(b) If there is no stipulation-  Action for revocation by reason of
donee answerable only for ingratitude
donor’s debt only in case of 1. Donee commits offense against
donation in fraud of creditors. person, honor, property of donor,
Liability of the donee for the spouse, children under his
debts of the donor should be parental authority

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2. Donee imputes to donor any d) donor died w/o having

criminal offense or any cat known the ingratitude
involving moral turpitude even if done
he should prove it unless e) criminal action filed but
act/crime has been committed abated by death
against donee himself, spouse or 3. can only make heirs of donee
children under his parental liable if complaint was already
authority filed when donee died
3. Donee unduly refuses to give
support to donor when legally or
morally bound to give support to
donor Inofficious donations:
1. shall be reduced with regards to
the excess
Exception to rule on 2. action to reduce to be filed by
intransmissibility of action with heirs who have right to legitimate
regards to revocation due to at time of donation
ingratitude: 3. donees/creditors of deceased
1. personal to the donor; general donor cannot ask for reduction of
rule is heir cannot institute if donation
donor did not institute 4. if there are 2 or more donation:
2. heirs can only file in the ff cases: recent ones shall be suppressed
a) donor has instituted 5. if 2 or more donation at same
proceedings but dies time – treated equally &
before bringing civil action reduction is pro rata but donor
for revocation may impose preference which
b) donor already instituted must be expressly stated in
civil action but died, heirs donation
can substitute
c) donee killed donor or his
ingratitude caused the
death of the donor

Pure/Simple Remuneratory Conditional Onerous
a) Consideration Liberality or merits of Valuable Valuable consideration
Merits of donee donee or burden/ consideration is given
charge of past imposed but value
services provided they is less than value of
do not constitute thing donated
demandable debt
b) law to apply/ Law on donations Extent of burden Law on obligations
forms imposed>oblicon
Law on donations excess>donation
c) form of Required Required Required
d) reservation Applicable Applicable Not Applicable
w/regards to
personal support
& legitime
e) warranty
against eviction
& hidden defects
In bad faith only In bad faith only In bad faith only Applies
f) revocation
Applicable Applicable Applicable Applicable
g) effect of considered not written considered not Obligation nullified
impossible/ written
illegal conditions
considered not

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Ipso jure revocation, no needs court action needs court action
need for action., court
decision is merely
Extent: portion which may Extent: whole portion but Extent: Whole portion returned
impair legitime of heirs court may rule partial
revocation only
Property must be returned Property in excess Property to be returned
Alienation/mortgages done
prior to recording in
Register of Deeds:
If already sold or cannot Alienations/mortgages Prior ones are void; demand value
be returned – the value imposed are void unless of property when alienated and
must be returned registered with Register of can’t be recovered or redeemed
If mortgaged – donor may Deeds from 3rd persons
redeem the mortgage with
right to recover from
Fruits to be returned at filing Fruits to be returned at filing
of action for revocation of complainant
Prescription of action is 4 Prescription is 4 years from Prescription is 1 year from knowledge
years from birth, etc. non-fulfilment of fact and it was possible for him to
bring action
Action cannot be renounced Action cannot be renounced
in advance
Right of action transmitted to Right of action at instance of Heirs can’t file action
heirs donor but may be transmitted
to heirs
Action extends to donee’s Action does not extend to
heirs donee’s heirs

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Birth, Within 4 years Transmitted to Property Fruits returned
appearance, from birth, children and returned/ from the filing of
adoption legitimation descendants upon value (if the complaint
and adoption death of donor sold)/
with right to
Non compliance Within 4 years May be transmitted to Property Fruits received
with condition from non donor’s heirs and returned, after having
compliance may be exercised alienations failed to fulfill
against donee’s heirs and condition
mortgages returned
void subject
to rights of
third person
in good faith
Ingratitude Within 1 year Generally not Property Fruits returned
after transmitted to heirs returned but from the filing of
knowledge of of donor/donee alienations the complaint
the fact and
before the
notation of
compliant for
revocation in
the registry
of property
Failure to At any time by Not transmissible Reduced to Donee entitled
reserve sufficient the donor or the extent
means for relatives necessary to
support entitled to provide
support support
Inofficiousness Within 5 years Transmitted to Donation Donee entitled
for being in from death of donor’s heirs takes effect
excess of what donor on the
the donor can lifetime of
give by will donor.
only upon his
death with
regard to the
Fraud against Rescission Transmitted to Returned for Fruits returned/
creditors within 4 years creditor’s heirs or the benefit of if impossible
from the successors in interest creditor who indemnify
perfection of brought creditor for
donation/ action damages
knowledge of
the donation

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I. Succession in General 99
II. Testamentary Succession 99
III. Legal or Intestate Succession 109
IV. Provisions Common to Testamentary and Intestate Succession 114

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DEFINITION OF SUCCESSION (Art. 774, 3. Of sound mind at the time of the

CC) execution of the will (Art. 798, CC)
- It is a mode of acquisition *Supervening capacity or incapacity does
- by virtue of which the property, not affect the will.
rights and obligations
- to the extent of the value of the C. FORMALITIES OF WILLS
inheritance, of a person
- are transmitted through his death KINDS OF WILLS
to another or others 1. Notarial – an ordinary or attested will
- either by his will or by operation of (Articles 804-808, CC)
law 2. Holographic – a handwritten will (Art.
810, CC)
1. Testamentary – that which results COMMON REQUIREMENTS TO BOTH
from the designation of an heir, made WILLS (Art. 804, CC)
in a will executed in the form 1. In writing
prescribed by law. (Art. 779, CC) 2. In a language or dialect known to the
2. Legal or Intestate – that which takes testator
place by operation of law in the
absence of a valid will. REQUISITES FOR A VALID NOTARIAL
3. Mixed – that which is effected partly WILL
by will and partly by operation of law. 1. In writing (Art. 804, CC)
(Art. 780, CC) 2. In a language or dialect known to the
testator (Art. 804, CC)
KINDS OF HEIRS 3. Subscribed at the end by the testator
1. Compulsory – those who succeed by himself or by the testator’s name
force of law to some portion of the written by some other person in his
inheritance, in an amount presence, and by his express direction
predetermined by law, of which they (Art. 805, CC)
cannot be deprived by the testator, *Requisite of a signature: satisfied by
except by a valid disinheritance. They a thumbprint Matias vs. Salud. However, a
succeed regardless of a will. cross does not. Garcia vs. Lacuesta
2. Voluntary or Testamentary – those 4. Attested and subscribed by three or
who are instituted by the testator in more credible witnesses in the
his will, to succeed to the portion of presence of the testator and of one
the inheritance of which the testator another (Art. 805, CC)
can freely dispose. They succeed by *Test of Presence: Not whether they
reason of a will. actually saw each other sign, but
3. Legal or Intestate – those who whether they might have seen each
succeed to the estate of the decedent other sign had they chosen to do so
who dies without a valid will, or to the considering their mental and physical
portion of such estate not disposed of condition and position with relation to
by will. They succeed in the absence of each other at the moment of
a valid will. inscription of each signature. Jaboneta
vs. Gustilo, 5 Phil. 541
I. TESTAMENTARY SUCCESSION 5. Each and every page, except the last,
must be signed by the testator or by
the person requested by him to write
A. CONCEPT his name, and by the instrumental
witnesses of the will, on the left
DEFINITION OF WILL (Art. 783, CC) margin. (Art. 805, CC)
- It is an act *Exceptions:
- whereby a person is permitted a. when the will consists of only one
- with the formalities prescribed by page
law b. when the will consists of only two
- to control to a certain degree pages, the first of which contains
- the disposition of his estate all dispositions and is signed at
- to take effect after his death the bottom by the testator and
the witnesses, and the second
B. TESTAMENTARY CAPACITY page contains only the attestation
clause duly signed at the bottom
TESTAMENTARY CAPACITY by the witnesses. Abangan vs.
1. All persons who are not expressly Abangan
prohibited by law (Art. 796, CC)
2. Eighteen (18) years old and above *Note: The inadvertent failure of one
(Art. 797, CC) witness to affix his signature to one

100% UP LAW UP BAROPS 2008 Page 99 of 325


page of a testament, due to the AMENDING A WILL

simultaneous lifting of two pages in the 1. Notarial – only through a codicil
course of signing, is not per se 2. Holographic –
sufficient to justify denial of probate. a. Dispositions may be added below
Icasiano vs. Icasiano, 11 SCRA 422 the signature, provided that said
6. Each and every page of the will must dispositions are also dated and
be numbered correlatively in letters signed, and everything is written by
placed on the upper part of each page. the hand of the testator himself
(Art. 805, CC) example, page one of b. Certain dispositions or additional
five pages matter may be suppressed or
7. It must contain an attestation clause, inserted provided that such is
stating the following (Art. 805, CC) signed by the testator and written
a. The number of pages used upon by the hand of the testator himself
which the will is written. c. Through a codicil which may either
b. The fact that the testator signed be notarial or holographic
the will and every page, or caused
some other person to write his EFFECT OF INSERTION WRITTEN BY
name, under his express direction, ANOTHER PERSON ON THE VALIDITY OF
in the presence of the instrumental A HOLOGRAPHIC WILL WRITTEN BY THE
witnesses. TESTATOR
c. All the instrumental witnesses When Made Effect
witnessed and signed the will and After the execution of Insertion is
all the pages in the presence of the the will, without the considered not
testator and of one another. consent of the testator written. The validity
8. It must be acknowledged before a of the will cannot
notary public by the testator and the be defeated by the
witnesses. (Art. 806, CC) malice or caprice of
* Note: The notary public before whom a third person.
the will was acknowledged cannot be After the execution of Will is valid.
considered as the third instrumental the will, with the Insertion is void.
witness since he cannot acknowledge consent of the testator
before himself his having signed the After the execution of Insertion becomes
will. To allow such would have the the will, validated by part of the will.
effect of having only two attesting the testator by his Entire will becomes
witnesses to the will which would be in signature void because it did
contravention of Articles 805 and 806. not comply with the
Cruz vs. Villasor, 54 SCRA 31 requirement that it
must be wholly
DEAF OR A DEAF-MUTE (Art. 807, CC) Contemporaneous to Will is void because
1. Testator must personally read the will, the execution of the will it is not written
if able to do so. entirely by the
2. Otherwise, testator shall designate two testator.
persons to read the will and
communicate its contents to him in RULES IN CASE OF SUBSEQUENT
some practicable manner. DISPOSITIONS
Subsequent Effect
BLIND (Art. 808, CC) Not dated
The will shall be read to the testator twice – Last disposition is
1. Once by one of the subscribing signed and dated
witnesses Not signed Void
2. Once by the notary public before whom Dated
the will is acknowledged
Signed Void but it does not
Not dated affect the validity of
the other dispositions
1. In writing (Art. 804, CC)
or the will itself
2. In a language or dialect known to the
testator (Art. 804, CC)
3. Entirely written, dated, and signed by
NOTARIAL WILL (Arts. 820 – 821, CC
the hand of the testator himself (Art.
810, CC)
1. Of sound mind
2. Of the age of 18 years or more
3. Not blind, deaf or dumb

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4. Able to read and write 4. Intrinsic validity of testamentary

5. Domiciled in the Philippines provisions
6. Have not been convicted of falsification
of a document, perjury or false JOINT WILL
testimony - A single testamentary instrument
- which contains the wills of two or
INTERESTED WITNESS (Art. 823, CC) more persons
- A witness who attests to the - jointly executed by them
execution of a will which gives a - either for their reciprocal benefit or
legacy or devise to that witness, or for the benefit of a third person
his spouse, or his parent or his
*Effect: The devise or legacy, insofar as it - Executed pursuant to an agreement
concerns that witness or his spouse or his between two or more persons
parent or his child, shall be void unless - to dispose of their property in a
there are three other witnesses to such particular manner
will. His competence as a witness shall - each in consideration of the other
subsist. separate wills of two persons which
are reciprocal in their provisions
As to time Governing Law RECIPROCAL WILLS
Formal Validity Law in force at the time - Testators name each other as
the will is made beneficiaries
Intrinsic Validity Law of decedent’s - under similar testamentary plans
nationality at the time
of his death (Art. 16, Note: A will that is both joint and mutual is
CC) one executed jointly by two or more persons,
the provisions of which are reciprocal and
As to Place which shows on its face that the devises are
Testator Place of Governing Law made in consideration of the other. Such is
Execution of prohibited under Art. 819, CC. Prohibition is
the Will applicable only to joint wills executed by
Filipino Philippines Philippine Law Filipinos.
(Art. 16, CC)
Outside of 1. Law of the D. CODICIL AND INCORPORATION
the country in BY REFERENCE
Philippines which it is
(Art. 815, executed; or
CC) 2. Philippine Law
826, CC)
Alien Philippines 1. Philippine Law; - It is a supplement or addition to a
(Art. 817, or will
CC) 2. Law of the - made after the execution of a will
Country of - and annexed to be taken as a part
which testator of the will
is a citizen or - by which any disposition made in
subject. the original will is explained, added
Outside the 1. Law of the to, or altered
Philippines place where - It is executed as in the case of a
(Art. 816, the will is will.
CC) executed; or
place where REFERENCE (Art. 827, CC)
the testator 1. The document or paper referred to in
resides; or the will must be in existence at the
3. Law of the time of the execution of the will.
testator’s 2. The will must clearly describe and
country; or identify the same, stating among other
4. Philippine Law things the number of pages thereof.
3. It must be identified by clear and
ASPECTS OF THE WILL GOVERNED BY satisfactory proof as the document or
THE NATIONAL LAW OF THE paper referred to therein. And
DECEDENT (Arts. 16 and 1039, CC) 4. It must be signed by the testator and
1. Order of succession the witnesses on each and every page,
2. Capacity to succeed except in case of voluminous books of
3. Amount of successional rights account or inventories.

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E. REVOCATION OF WILLS AND conditional and dependent upon the

efficacy of the new disposition; and
TESTAMENTARY DISPOSITIONS if for any reason, the new will
intended to be made as a
MODES OF REVOKING A WILL (Art. 830, substitute is inoperative, the
CC) revocation fails and the original will
1. By implication of law remain in full force. Molo vs. Molo,
2. By the execution of a will, codicil or 90 Phil. 37
other writing executed as provided in
the case of wills
3. By burning, tearing, canceling, or
obliterating the will with the intention DISALLOWANCE OF WILLS
of revoking it, by the testator himself,
or by some other person in his PROBATE
presence, and by his express direction - It is a special proceeding by which
the validity of a will may be
*Note: It must be done any time before established.
the death of the testator. The right of - Probate court may pass upon the
revocation cannot be waived or restricted. title thereto, but such
(Art. 828, CC) determination is provisional, not
conclusive, and is subject to the
LAWS WHICH GOVERN REVOCATION final decision in a separate action
(Art. 829, CC) to resolve title. Pastor vs. CA 1983
PLACE OF TESTATOR’S GOVERNING - Probate of a will bars criminal
REVOCATION DOMICILE LAW prosecution of the alleged forger of
In the Philippines or Philippine the probated will. Mercado vs.
Philippines in some Law Santos 1938
other country
Outside the Philippines Philippine MATTERS TO BE PROVED IN A PROBATE
Philippines Law 1. Whether the instrument which is
Foreign 1. Law of offered for probate is the last will and
country the place testament of the decedent
where the 2. Whether the will has been executed in
will was accordance with the formalities
made; or prescribed by law
2. Law of 3. Whether the testator had testamentary
the place capacity at the time of the execution of
in which the will
had his WILL (Art. 839, CC) – FIFU SM
domicile 1. If the Formalities required by law have
at the not been complied with.
time of 2. If the testator was Insane, or
revocatio otherwise mentally incapable of
n. making a will, at the time of its
DOCTRINE OF DEPENDENT RELATIVE 3. If it was executed through Force or
REVOCATION under duress, or the influence of fear,
- A revocation subject to a condition or threats.
does not revoke a will unless and 4. If it was procured by Undue and
until the condition occurs. Thus, improper pressure and influence, on
where a testator “revokes” a will the part of the beneficiary or of some
with the proven intention that he other person.
would execute another will, his 5. If the Signature of the testator was
failure to validly make a latter will procured by fraud.
would permit the allowance of the 6. If the testator acted by Mistake or did
earlier will. not intend that the instrument he
- Where the act of destruction is signed should be his will at the time of
connected with the making of affixing his signature thereto.
another will so as to fairly raise the *This list is exclusive.
inference that the testator meant
the revocation of the old to depend
upon the efficacy of the new
disposition intended to be
substituted, the revocation will be

100% UP LAW UP BAROPS 2008 Page 102 of 325


REVOCATION VS. DISALLOWANCE 1. cause for institution of heirs

REVOCATION DISALLOWANCE must be stated in the will
Voluntary act of the Given by judicial 2. cause must be shown as false
testator decree 3. it must appear form the face of
With or without Must always be for a the will that the testator would
cause legal cause not have made such institution
May be partial or Always total except if he had known the falsity of
total when the ground of the cause. Austria vs. Reyes
fraud or influence for 1970
example affects only
certain portions of the RULES REGARDING A PERSON’S RIGHT
1. If testator has no compulsory heirs
a. He can give his estate to any
person having capacity to succeed.
DEFINITION OF INSTITUTION OF HEIRS b. He must respect restriction
(Art. 840, CC) imposed by special laws.
- It is an act by virtue of which a 2. If testator has compulsory heirs
testator designates in his will a. He can give the disposable portion
- the person/s who are to succeed to strangers.
him in his property and b. Legitimes of compulsory heirs must
transmissible rights and be respected.
REQUISITES FOR A VALID INSTITUTION 1. There must be a total omission of one,
OF HEIR (DACCVP) some or all of the heir/s in the will.
1. Designation in will of person/s to 2. The omission must be that of a
succeed compulsory heir.
2. Will specifically assigns to such person 3. The compulsory heir omitted must be
an inchoate share in the estate of the direct line.
3. The person so named has capacity to 4. The omitted compulsory heir must be
succeed living at the time of the testator’s
4. The will is formally valid death or must at least have been
5. No vice of consent is present conceived before the testator’s death.
6. No preterition results from the effect of
such will EFFECTS OF PRETERITION (Art. 854, CC)
1. The institution of the heir is annulled.
THREE PRINCIPLES IN THE INSTITUTION 2. Devises and legacies shall remain valid
OF HEIRS as long as they are not inofficious.
1. Equality – heirs who are instituted 3. If the omitted compulsory heir should
without designation of shares shall die before the testator, the institution
inherit in equal parts. (Art. 846, CC) shall be effectual, without prejudice to
2. Individuality – heirs collectively the right of representation.
instituted are deemed individually
named unless a contrary intent is
proven. (Art. 847, CC)
3. Simultaneity – when the testator calls
to the succession a person and his
children, they are all deemed to have
been instituted simultaneously and not
successively. (Art. 849, CC)i


(Art. 850, CC)
- General Rule: The statement of a
false cause for the institution of an
heir shall be considered as not
- Exception: If it appears from the
will that the testator would not
have made such institution if he
had known the falsity of such
cause. In this case, the institution
shall be annulled.
- Requisites of Annulment under

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Tacit deprivation of legitime Express deprivation of legitime
Presumed to be involuntary as it is an Always voluntary
omission to mention an heir or though
mentioned, is not instituted as an heir. But it
may also be voluntary.
Presumed by law to be a mere oversight or Legal cause is present
The omitted compulsory heir gets his Even a compulsory heir may be totally
legitime plus his share in the free portion not excluded. If disinheritance is not lawfully
disposed of by way of legacies and devises. made, the compulsory heir is restored to his


Voluntary No right transmitted to the No right transmitted to Voluntary heir
heirs of the voluntary heir. the heirs of the who repudiated
voluntary heir. cannot transmit
any right to his
own heirs.
Compulsory Right to the legitime and not Compulsory heir may be Compulsory heir
to the free portion represented but only who repudiated
transmitted to the with respect to his cannot transmit
representatives of the legitime. any right to his
compulsory heir. own heirs.

1. Simple or Pure – the rights to the DEFINITION OF SUBSITUTION (Art. 857,
succession are transmitted from the CC)
moment of the death of the decedent.
(Art. 777, CC) - It is the appointment of another
2. Conditional – may be potestative, heir
causal or mixed. (See Arts. 871 – 884) - so that he may enter into the
*Disposicion Captatoria – disposition inheritance in default of the heir
made upon the condition that the heir originally instituted.
shall make some provision in his will in
favor of the testator or of any other CLASSES OF SUBSITITUTION
person. This is void. (Art. 875, CC) 1. Vulgar or Simple – the testator may
3. With a Term – designation of the day designate one or more person/s to
or time when the effects of the substitute the heir/s instituted in case
institution of an heir shall commence such heir/s should: (Art. 859, CC)
or cease. (Art. 885, CC) a. die before him (predecease)
4. Modal – institution where the testator b. should not wish to accept the
states the following: (Art. 882, CC) inheritance (renounce)
a. the object of the institution; or c. should be incapacitated to accept
b. the purpose of the application of the inheritance (incapacitated)
the property left by the testator; or 2. Brief or Compendious (Art. 860, CC)
c. the charge imposed by the creator a. Brief - two or more persons
upon the heir. designated by the testator to
*Doctrine of Constructive substitute for only one heir.
Compliance – When without the fault b. Compendious – One person is
of the heir, the modal institution designated to take the place of two
cannot take effect in the exact manner or more heirs.
stated by the testator, it shall be 3. Reciprocal – If the heirs instituted in
complied with in a manner most unequal shares should be reciprocally
analogous to and in conformity with his substituted, the substitute shall acquire
wishes. (Art. 883, CC) the share of the heir who dies,
renounces, or is incapacitated, unless
it clearly appears that the intention of
the testator was otherwise. If there are
more than one substitute, they shall
have the same share in the

100% UP LAW UP BAROPS 2008 Page 104 of 325


substitution as in the institution. (Art. Surviving spouse- SS

861, CC) Legimate Parents- LP
4. Fideicommissary – if the testator Illegitimate Parents- ILP
institutes an heir with an obligation to
preserve and to deliver to another the COMPULSORY HEIRS
property so inherited. The heir If the testator is a If the testator is an
instituted to such condition is called LEGITIMATE ILLEGITIMATE
the first heir or the fiduciary heir, the CHILD CHILD
one to receive the property is the 1. LC and 1. LC and descendants
fideicommissary or the second heir. descendants
(Art. 863, CC) 2. In default of no. 2. ILC and
1, LP and ascendants descendants
SUBSTITUTION (Arts. 863 – 865, CC) 2, ILP only
1. A fiduciary or first heir instituted 4. IC and 4. SS
entrusted with the obligation to descendants
preserve and to transmit to a
fideicommissary substitute or second SPECIFIC RULES ON LEGITIMES
heir the whole or part of the 1. Direct Descending Line
inheritance. a. Rule of preference between
2. The substitution must not go beyond lines - Those in the direct
one degree from the heir originally descending line shall exclude those
instituted. in the direct ascending and
3. The fiduciary heir and the collateral lines, and those in the
fideicommissary are living at the time direct ascending line shall, in turn,
of the death of the testator. exclude those in the collateral line.
4. The fideicommissary substitution must b. Rule of proximity – the relative
be expressly made. nearest in degree excludes the
5. The fideicommissary substitution is farther one
imposed on the free portion of the c. Right of representation ad infinitum
estate and never on the legitime. in case of predecease, incapacity or
disinheritance. For decedents who
I. LEGITIMES are legitimate children, only the
legitimate descendants can
DEFINITION OF LEGITIME (Art. 886, CC) represent. For decedents who are
- It is that part of the testator’s illegitimate children, both the
property which he cannot dispose legitimate and illegitimate
of descendants can represent.
- because the law has reserved it for d. If all the legitimate children
his compulsory heirs repudiate their legitime, the next
generation of legitimate
CLASSES OF COMPULSORY HEIRS (Art. descendants succeed in their own
887, CC) right.
1. Primary – those who have precedence 2. Direct Ascending Line
over and exclude other compulsory a. Rule of division by lines
heirs b. Rule of equal division – the
a. Legitimate children and legitimate relatives who are in the same
descendants with respect to their degree shall inherit in equal shares
legitimate parents and ascendants 3. Non-impairment of legitime
2. Secondary – those who succeed only
in the absence of the primary
compulsory heirs
a. Legitimate parents and legitimate
ascendants with respect to their
legitimate children and descendants
b. Illegitimate parents with respect to
their illegitimate children
3. Concurring – those who succeed
together with the primary or the
secondary compulsory heirs
a. Widow or widower (legitimate)
b. Illegitimate children and illegitimate

Legitmate children- LC
Illegitimate children- ILC

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LC alone ½ (divided by
# of children)
1 LC, ½ ¼
LC, SS ½ (divided by Same as the share
# of children) of 1 LC
LC, ILC ½ ½ of the share of 1
1 LC, SS, ½ ¼ ½ of the share of 1
ILC (preferred) LC
2 or more ½ (divided by Same as the share ½ of the share of 1
LC, # of children) of 1 LC LC
LP alone ½

LP, ¼ ½
LP, SS ¼ ½

LP, SS, 1/8 ¼ ½

ILC alone ½ (divided by # of
ILC, 1/3 1/3 (divided by #
SS of children)
SS alone ½ or 1/3 if
marriage in
articulo mortis
ILP alone ½

ILP, SS ¼ ¼

Adopter 1/3 1/3 1/3

ILC, SS (adopter)

STEPS IN DETERMINING THE LEGITIME portion and restore it to the estate if

OF COMPULSORY HEIRS the donation is inofficious.
1. Determine the gross value of the 7. Distribute the residue of the estate in
estate at the time of the death of the accordance with the will of the
testator. testator.
2. Determine all debts and charges which
are chargeable against the estate. REMEDY OF COMPULSORY HEIR IN CASE
3. Determine the net value of the estate OF IMPAIRMENT OF LEGITIME
by deducting all debts and charges 1. If the impairment is total, then there
from the gross value of the estate. may be preterition if the compulsory
4. Collate or add the value of all heir omitted is either an ascendant or
donations inter vivos to the net value descendant. Art. 854, CC would come
of the estate. in to play, i.e., there will be an
5. Determine the amount of the legitime annulment of the institution of heirs
from the total thus found. and a reduction of devises and
6. Impute the value of all donations inter legacies.
vivos made to compulsory heirs 2. If the impairment is partial, then the
against their legitime and of the value compulsory heir is entitled to
of all donations inter vivos made to completion of legitime under Art. 906,
strangers against the disposable free CC.

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3. If the impairment is through donation, 3. It must be made in a valid will.

the remedy is collation. 4. It must be made expressly, stating the
cause in the will itself.
CONCEPT OF RESERVA TRONCAL (Art. 5. The cause must be certain and true,
891, CC) and must be proved by the interested
- The ascendant who inherits from heir if the person disinherited should
his descendant deny it.
- any property which the latter may 6. It must be unconditional.
have acquired by gratuitous tile 7. It must be total.
- from another ascendant, or a
brother or sister, SUMMARY OF CAUSES OF
- is obliged to reserve such property DISINHERITANCE
- as he may have acquired by
operation of law Art. 919- children/ descendants
- for the benefit of relatives within Art. 920- parents/ ascendants
the third degree Art. 921- spouse
- and who belong to the line from Art. 1032- unworthiness
which said property came.
Chua vs. CFI, 78 SCRA 406 and Gonzales vs. 32
CFI, 104 SCRA 161 Guilty/convicted of
1. that the property was acquired by a attempt against life of *
* * *
descendant (prepositus) from an testator/spouse/
ascendant or from a brother or sister ascendant/descendant
(source) by gratuitous title Accused
2. that the prepositus died without an testator/decedent of
issue crime punishable by *
3. that the property is inherited by * * *
imprisonment of 6
another ascendant (reservista) by years or more, found
operation of law groundless, false
4. that there are relatives within the 3rd Causes
degree (reservatarios) belonging to the testator/decedent to
line from which said property came make will or change *
* * *
one by fraud,
violence, intimidation,
A F or undue influence
E Unjustified refusal to
* * *
support testator
Convicted of adultery
C or concubinage with *
* *
(Reservatario) D G (Reservista) spouse of
Maltreatment of
testator by word and *
H deed
(Prepositus) Leading a
dishonorable or *
disgraceful life
J. DISINHERITANCE Conviction of crime
which carries penalty *
DEFINITION OF DISINHERITANCE (Art. of civil interdiction
915, CC) Abandonment of
- It is the act by which the testator children or inducing
- for just cause children to live *
- deprives a compulsory heir of his *
corrupt and immoral
right to the legitime. life or attempted
against virtue
Loss of parental
1. Heir disinherited must be designated
Attempt by one
by name or in such a manner as to
parent against life of
leave no room for doubt as to who is
the other UNLESS *
intended to be disinherited.
there is reconciliation
2. It must be for a cause designated by
between parents
Spouses given cause *

100% UP LAW UP BAROPS 2008 Page 107 of 325


for legal separation favor of the estate.

Failure to report legatee/devisee
violent death of onerously
decedent within one * 5. Not belonging to Effective
month, unless the testator at the
authorities have time the will is
already taken action executed but he has
Force, violence, ordered that the thing
intimidation or undue be acquired in order
influence to prevent that it be given to the
another from making * legatee/devisee.
a will or revoking one 6. Not belonging to Void
already made or who the testator at the
supplants or alters time the will is
the latter’s will executed and the
Falsifies or forges a testator erroneously
supposed will of the believed that the
decedent thing pertained to
REVOCATION OF DISINHERITANCE 7. Not belonging to Effective
1. Reconciliation the testator at the
2. Subsequent institution of the time the will is
disinherited heir executed but
3. Nullity of the will which contains the afterwards it becomes
disinheritance his by whatever title.
8. Already belonged Ineffective
*Note: The moment the testator uses one of to the
the acts of unworthiness as a cause for legatee/devisee at
disinheritance, he thereby submits it to the the time of the
rules on disinheritance. Thus, reconciliation execution of the will
renders the disinheritance ineffective. even though another
person may have
K. LEGACIES AND DEVISES interest therein
9. Already belonged Ineffective
DEVISES legatee/devisee at
1. Compulsory heir the time of the
2. Voluntary heir execution of the will
3. Legatee or devisee even though it may
4. Estate have been
DEVISE 10. Testator had Legatee/devisee can
STATUS OF EFFECT ON THE knowledge that the claim nothing by
PROPERTY GIVEN LEGACY/DEVISE thing bequeathed virtue of the
BY LEGACY/DEVISE belonged to a third legacy/devise
1. Belonging to the Effective person and the
testator at the time of legatee/devisee
the execution of the acquired the property
will until his death gratuitously after the
execution of the will.
2. Belonging to the Revoked
testator at the time of 11. Testator had Legatee/devisee can
the execution of the knowledge that the demand
will but alienated in thing bequeathed reimbursement from
favor of a 3rd person belonged to a third the heir or estate.
person and the
3. Belonging to the No revocation. There
testator at the time of is a clear intention to
acquired the property
the execution of the comply with the
by onerous title.
will but alienated in legacy/devise.
favor of the legatee
4. Belonging to the Legatee/devisee can
VS. ART. 950, CC
testator at the time of demand
the execution of the reimbursement from ART. 911 ART. 950
will but alienated in the heirs or the Order of Preference Order of Preference

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(LIPO) (RPSESO) affecting the bequests; sale of the

1. Legitime of 1. Remuneratory thing to pay the debts of the deceased
compulsory legacy/devise during the settlement of his estate.
heirs 2. Preferential *Note: List is not exclusive.
2. Donations Inter legacy/devise
vivos 3. Legacy for Support
3. Preferential 4. Legacy for II. LEGAL OR INTESTATE
legacies or Education
devises 5. Legacy/devise of
4. All Other Specific,
legacies or determinate thing CAUSES OF VACANCY IN SUCCESSION
devises pro rata which forms a part 1. Disinheritance – the testator creates
of the estate it himself
6. All Others pro rata 2. Repudiation – the heir does
Application: Application: something
1. When the 1. When there are no 3. Incapacity or Predecease –
reduction is compulsory heirs something happens to the heir
necessary to and the entire
preserve the estate is HOW VACANCIES ARE FILLED
legitime of distributed by the 1. Substitution (Art. 857, CC)
compulsory testator as legacies 2. Representation (Art. 970, CC)
heirs from or devises; or 3. Accretion (Art. 1015, CC)
impairment 2. When there are 4. Intestate Succession
whether there compulsory heirs
are donations but their legitime CAUSES FOR LEGAL OR INTESTATE
inter vivos or has already been SUCCESSION (Art. 960, CC)
not; or provided for by the 1. If a person dies without a will
2. When, although, testator and there 2. If a person dies with a void will
the legitime has are no donations 3. If a person dies with a will which has
been preserved inter vivos. subsequently lost its validity
by the testator *Art. 950 governs 4. When the will does not institute an heir
himself there when the question 5. When the will does not dispose of all
are donations of reduction is the property belonging to the testator.
inter vivos. exclusively among Legal succession shall take place only
*Art. 911 legatees and with respect to the property which the
governs when devisees testator has not disposed.
there is a themselves. 6. If the suspensive condition attached to
conflict between the institution of the heir does not
compulsory happen or is not fulfilled
heirs and the 7. If the heir dies before the testator
devisees and 8. If the heir repudiates the inheritance,
legatees. there being no substitution, and no
right of accretion takes place
*Note: In case of reduction, the inverse order
9. When the heir instituted is incapable of
of payment should be followed.
succeeding, except in cases provided in
the Civil Code
1. Testator transforms the thing
bequeathed in such a manner that it
does not retain either the form or the
1. Rule of Preference Between Lines –
denomination it had.
Those in the direct descending line
2. Testator by any title or for any cause
shall exclude those in the direct
alienates the thing bequeathed, or any
ascending and collateral lines, and
part thereof, it being understood that
those in the direct ascending line shall,
in the latter case the legacy or devise
in turn, exclude those in the collateral
shall be without effect only with
respect to the part alienated. Except:
2. Rule of Proximity – the relative nearest
When the thing should again belong to
in degree excludes the farther one.
the testator after alienation by virtue
(Art. 962, CC)
of the exercise of the right of
3. Rule of Equal Division – the relatives
who are in the same degree shall
3. Thing bequeathed is totally lost during
inherit in equal shares. (Articles 987
the lifetime of the testator, or after his
and 1006, CC)
death without the heirs’ fault.
4. Other causes: nullity of the will; non-
compliance with suspensive conditions

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a. Division in the ascending line

(between paternal and maternal *Notes:
grandparents) - In the direct line, representation
b. Division among brothers and takes place ad infinitum in the
sisters, some of whom are of the direct descending line, never in the
full and others of half-blood ascending.
c. Division in cases where the right of - In the collateral line, representation
representation takes place takes place only in favor of the
4. Rule of Barrier between the legitimate children of the brothers or sisters
family and the illegitimate family – the (i.e., nephews and nieces) whether
illegitimate family cannot inherit by of the full or half-blood and only if
intestate succession from the they concur with at least one uncle
legitimate family and vice-versa. (Art. or aunt.
992, CC)
5. Rule of Double Share for full blood RIGHT OF REPRESENTATION IN
collaterals – when full and half-blood TESTAMENTARY SUCCESSION
brothers or sisters, nephews or nieces, 1. When a compulsory heir in the direct
survive, the full blood shall take a descending line had predeceased the
portion in the inheritance double that testator and was survived by his
of the half-blood. (Articles 895 and children or descendants.
983, CC) 2. When a compulsory heir in the direct
descending line is excluded from the
RELATIONSHIP (Articles 963 – 969, CC) inheritance due to incapacity or
1. Number of generations determines unworthiness and he has children or
proximity. descendants.
2. Each generation forms a degree. 3. When a compulsory heir in the direct
3. A series of degrees forms a line. descending line is disinherited and he
4. A line may either be direct or has children or descendants;
collateral. representation covers only the
5. A direct line is that constituted by the legitime.
series of degrees among ascendants 4. A legatee or devisee who died afther
and descendants (ascending and the death of the testator may be
descending). represented by his heirs.
6. A collateral line is that constituted by
the series of degrees among persons RIGHT OF REPRESENTATION IN
who are not ascendants or INTESTATE SUCCESSION
descendants, but who come from a 1. When a legal heir in the direct
common ancestor. descending line had predeceased the
7. Full blood – same father and mother. decedent and was survived by his
8. Half-blood – only one of either parent children or descendants.
is the same. 2. When a legal heir in the direct
9. In adoption, the legal filiation is descending line is excluded from the
personal and exists only between the inheritance due to incapacity or
adopter and the adopted. The adopted unworthiness and he has children or
is deemed a legitimate child of the descendants.
adopter, but still remains as an 3. When brothers or sisters had
intestate heir of his natural parents predeceased the decedent and they
and other blood relatives. had children or descendants.
4. When illegitimate children represent
DEFINITION OF THE RIGHT OF their deceased illegitimate parents in
REPRESENTATION (Art. 970, CC) the estate of their grandparents.
- It is a right created by fiction of law 5. When nephews and nieces inherit
- by virtue of which the together with their uncles and aunts in
representative is raised to the place representation of their deceased
and degree of the person parents who are brothers or sisters of
represented said uncles and aunts.
- and acquires the rights which the
latter would have if he were living
or if he would have inherited.

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1 LC and LC and LC and
Legitimate descendants Legitimate descendants Legitimate descendants
2 LP and ILC and ILC and Illegitimate
Legitimate ascendants Illegitimate descendants descendants
3 ILC and ILP LP or ILP and
Illegitimate descendants Legitimate ascendants,
Adoptive parents
5 Legitimate siblings, Illegitimate siblings, Siblings,
Nephews, Nephews, Nephews,
Nieces Nieces Nieces
6 Legitimate collateral relatives State State
within the 5th degree
7 State


Intestate Heir
LC and Ascendants, No one SS and
Legitimate descendants Collaterals and ILC
ILC ILP, No one SS
and Descendants Collaterals and LC and
State LP
LP and Collaterals and LC ILC and
Legitimate ascendants State SS
ILP Collaterals and LC and ILC SS
SS Collaterals other than No one LC, ILC, LP, ILP
siblings, nephews and Siblings
nieces Nephews
Siblings, All other collaterals LC, ILC, LP, ILP SS
Nephews and
Nieces State
Other collaterals within Collateral more remote LC, ILC, LP, ILP and Collaterals in the same
5th degree in degree and SS degree
State No one Everyone No one


LC ½ ½ 1
TOTAL ½ ½ 1

LC ½ ½
SS ¼ ¼ ½
TOTAL ¾ ¼ 1

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LC Remaining portion of Whole estate divided
estate after paying equally between total
legitimes # of children plus the
SS Legitimes to be # of children plus the
divided equally SS (see above)
Same as share of 1 LC
between total # of
children plus the SS
TOTAL Varies on no. of Varies on no. of 1
children children

LC ½ Remaining portion of Whole estate divided
estate after paying by the ratio of 2:1 for
legitimes each LC as compared
to the ILC
ILC ½ share of 1 LC Legitimes to be 1 for each ILC
divided by the ratio of provided that legitimes
2 for each LC, 1 for wouldn’t be impaired
each ILC
TOTAL Varies on # of children Varies on # of children 1

LC ½ Remaining portion of Whole estate divided
estate after paying by the ratio of 2 for
legitimes to be divided each LC
by the ratio of 2:1 for
each LC and each
ILC, respectively
ILC ½ share of 1 LC or ¼ 1 for each ILC (see 1 for each ILC
SS ¼ Same share as a LC Legitimes wouldn’t be
TOTAL Varies depending on # Varies depending on # 1
of ILC of ILC

LC ½ Remaining portion of Whole estate divided
estate, if any after by the ratio of 2:1 for
paying legitimes to be each LC and ILC
divided by the ratio of respectively
2 for each LC
ILC ½ share of each LC 1 for each ILC (see 1 for each ILC (see
above) above)
SS Same share as one Same share as a LC, Same share as a LC,
LC provided legitimes provided legitimes
are not impaired are not impaired
TOTAL Varies depending on Varies depending on 1
no. of ILC no. of ILC

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LP ½ ½ 1
TOTAL ½ ½ 1



testate Heir
LP ½ ½
ILC ¼ ¼ ½
TOTAL ¾ ¼ 1

LP ½ ½
SS ¼ ¼ ½
TOTAL ¾ ¼ 1

LP ½ ½
SS 1/8 1/8 ¼
ILC ¼ ¼
TOTAL 7/8 1/8 1

ILC alone ½ ½ 1
TOTAL ½ ½ 1

ILC 1/3 1/6 ½
SS 1/3 1/6 ½
TOTAL 2/3 1/3 1

SS ½ or 1/3 ½ or 1/3 1
TOTAL ½ or 1/3 ½ or 1/3 1




ILP ½ ½ 1
TOTAL ½ ½ 1

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ILP ¼ ¼ ½
SS ¼ ¼ ½
TOTAL ½ ½ 1

Siblings, nephews, ½ ½ 1
TOTAL ½ ½ 1

SS ½ ½
Siblings, nephews, ½ ½
TOTAL ½ ½ 1


LC, ILC, SS As in the case of ordinary intestate succession
LP or ascendants or ILP Adopter ½
LP or ascendants or ILP or Adopter ½
LP or ascendants ½
ILC or descendants ½
LP or ascendants 1/3
SS 1/3
ILC or descendants 1/3
Adopter alone Entire estate
Collateral blood relatives As in the case of ordinary intestate succession



- It is a right by virtue of which
- when two or more persons are called to the same inheritance, devise or legacy
- the part assigned to one who renounces or cannot receive his share or who died
before the testator
- is added or incorporated to that of his co-heirs, co-devisees, or co-legatees.

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Predecease Representat'n Accretion Representat'n
Intestate Succession Intestate Succession Intestate Succession

Incapacity Representat'n Accretion Representat'n

Intestate Succession Intestate Succession Intestate Succession

Disinheritance Representat'n - -
Intestate Succession

Repudiation Intestate Succession Accretion Accretion

B. CAPACITY TO SUCCEED f. Physician, surgeon, nurse,

health officer or druggist who
REQUISITES FOR CAPACITY TO took care of the testator during
(Art. 1024 – 1025, CC)
1. The heir, legatee or devisee must 2. BASED ON MORALITY OR
be living or in existence at the PUBLIC POLICY (Art. 739, CC)
moment the succession opens; and a. Those made in favor of a
2. He must not be incapacitated or person with whom the testator
disqualified by law to succeed. was guilty of adultery or
concubinage at the time of the
WHO ARE INCAPABLE OF making of the will.
SUCCEEDING b. Those made in consideration of
1. BASED ON UNDUE INFLUENCE a crime of which both the
OR INTEREST (Art. 1027, CC) - testator and the beneficiary
PIGRAP have been found guilty.
a. Priest who heard the last c. Those made in favor of a public
confession of the testator officer or his spouse,
during his last illness, or the descendants and ascendants,
minister of the gospel who by reason of his public office.
extended spiritual aid to him 3. BASED ON ACTS OF
during the same period; UNWORTHINESS (Art. 1032,
b. Individuals, associations and CC) – See table under
corporations not permitted by disinheritance
law to inherit;
c. Guardian with respect to PARDON OF ACTS OF UNWORTHINESS
testamentary dispositions given EXPRESS IMPLIED
by a ward in his favor before Made by the Effected when the
the final accounts of the execution of a testator makes a
guardianship have been document or any will instituting the
approved, even if the testator writing in which the unworthy heir with
should die after the approval decedent condones knowledge of the
thereof; except if the guardian the cause of cause of incapacity
is his ascendant, descendant, incapacity
brother, sister, or spouse; Cannot be revoked Revoked when the
d. Relatives of the priest or testator revokes the
minister of the gospel within will or the
the fourth degree, the church, institution
order, chapter, community,
organization, or institution to
which such priest or minister
may belong;
e. Attesting witness to the
execution of a will, the spouse,
parents, or children, or any one
claiming under such witness,
spouse, parents, or children;

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C. ACCEPTANCE AND repudiates the inheritance in

his capacity as a testamentary
REPUDIATION OF INHERITANCE heir, he will be considered to
have also repudiated the
CHARACTERISTICS – VIR (Articles inheritance as a legal heir.
1041 – 1042, 1056, CC) - If he repudiates it as a legal
1. Voluntary and free heir, without his being a
2. Irrevocable except if there is testamentary heir, he may still
vitiation of consent or an unknown accept it in the latter capacity.
will appears
3. Retroactive
D. COLLATION (Articles 1061 –
REQUISITES (Art. 1043, CC) 1077, CC)
1. certainty of death of the decedent
2. certainty of the right to the CONCEPT OF COLLATION
inheritance - To collate is to bring back or to
return to the hereditary mass
ACCEPTANCE VS. REPUDIATION - in fact or by fiction
1. Acceptance involves the - property which came from the
confirmation of transmission of estate of the decedent, during
successional rights, while his lifetime by donation or other
repudiation renders such gratuitous title
transmission ineffective. - but which the law considers as
2. Repudiation is equivalent to an act an advance from the
of disposition and alienation. inheritance.
3. The publicity required for
repudiation is necessary for the - It is the act by virtue of which,
protection of other heirs and also the compulsory heir who
of creditors. concurs with other compulsory
heirs in the inheritance bring
FORMS OF ACCEPTANCE (Articles back to the common hereditary
1049 – 1050, CC) mass
1. Express Acceptance – one made - the property which they may
in a public or private document. have received from the testator
2. Tacit Acceptance – one resulting - so that a division may be
from acts by which the intention to effected according to law and
accept is necessarily implied or the will of the testator.
from acts which one would have no
right to do except in the capacity of OPERATIONS RELATED TO
an heir. Examples would be when COLLATION
the heir sells, donates or assigns 1. Collation – adding to the mass of
his right, when the heir demands the hereditary estate the value of
partition of the inheritance, when the donation or gratuitous
the heir alienates some objects of disposition.
the inheritance, etc. 2. Imputing or Charging – crediting
the donation as an advance on the
FORMS OF REPUDIATION (Art. 1051, legitime (if the donee is a
CC) compulsory heir) or on the free
1. in a public instrument portion (if the donee is a stranger).
acknowledged before a notary 3. Reduction – determining to what
public; or extent the donation will remain
2. in an authentic document – and to what extent it is excessive
equivalent of an indubitable writing or inofficious.
or a writing whose authenticity is 4. Restitution – return or payment
admitted or proved; or of the excess to the mass of
3. by petition presented to the court hereditary estate.
having jurisdiction over the
testamentary or intestate PERSONS OBLIGED TO COLLATE
proceeding 1. General Rule: compulsory heirs
HEIRS IN TWO CAPACITIES (Art. a. when the testator should
1055, CC) have so expressly provided
- If a person is called to the b. when the compulsory heir
same inheritance as an heir by should have repudiated his
will and by law and he inheritance

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2. Grandchildren who survive with E. PARTITION AND

their uncles, aunts, or first cousins
and inherit by right of DISTRIBUITON OF ESTATE
representation (Articles 1078 – 1105, CC)
*Note: Grandchildren may inherit
from their grandparent in their own CONCEPT OF PARTITION (Art. 1079,
right, i.e., as heirs next in degree, CC)
and not by right of representation - It is the separation, division
if their parent repudiates the and assignment
inheritance of the grandparent, as - of a thing held in common
no living person can be among those to whom it may
represented except in cases of belong.
disinheritance and incapacity in - The thing itself or its value may
which case grandchildren are not be divided.
obliged to bring to collation what
their parent has received WHO MAY EFFECT PARTITION
gratuitously from their 1. decedent, during his lifetime by an
grandparent. act inter vivos or by will
2. heirs
WHAT TO COLLATE 3. competent court
1. Any property or right received by 4. third person designated by the
gratuitous title during the decedent
testator’s lifetime.
2. All that they may have received WHO CAN DEMAND PARTITION
from the decedent during his 1. compulsory heir
lifetime. 2. voluntary heir
3. All that their parents would have 3. legatee or devisee
brought to collation if alive. 4. any person who has acquired
interest in the estate
1. Absolutely no collation DEMANDED – PAPU
a. Expenses for support, 1. when expressly Prohibited by the
education (only elementary testator for a period not exceeding
and secondary), medical 20 years
attendance, even in 2. when the co-heirs Agreed that the
extraordinary illness, estate shall not be divided for a
apprenticeship, ordinary period not exceeding 10 years,
equipment, or customary renewable for another 10 years
gifts. (Art. 1067, CC) 3. when Prohibited by law
2. Generally not imputable to 4. when to partition the estate would
legitime render it Unserviceable for the use
a. Expenses incurred by for which it is intended
parents in giving their
children professional, PROHIBITION TO PARTITION
vocational or other career 1. The prohibition to partition for a
unless the parents so period not exceeding 20 years can
provide, or unless they be imposed on the legitime.
impair the legitime. 2. If the prohibition to the partition is
b. Wedding gifts by parents for more than 20 years, the excess
and ascendants consisting is void.
of jewelry, clothing, and 3. Even if a prohibition is imposed,
outfit except when they the heirs by mutual agreement can
exceed 1/10 of the sum still make the partition.
disposable by will.
- It is one that merely allocates
specific items or pieces of
property on the basis of the
pro-indiviso shares fixed by law
or given under the will to heirs
or successors.

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1. Between a true heir and several 1. Alfonso, a bachelor without any
mistaken heirs – partition is void. descendant or
2. Between several true heirs and a ascendant, wrote a last will and testament
mistaken heir – transmission to in which he devised, “all the properties of
mistaken heir is void which I may be possessed at the time of
3. Through error or mistake, share of my death” to his favorite brother Manuel.
true heir is allotted to mistaken At the time he wrote the will, he owned
heir – partition shall not be only one parcel of land. But by the time
rescinded unless there is bad faith he died, he owned 20 parcels of land. His
or fraud on the part of the other other brothers and sisters insist that his
persons interested, but the latter will should pass only the parcel of land he
shall be proportionately obliged to owned at the time it was written, and did
pay the true heir of his share. The not cover his properties acquired, which
partition with respect to the should be by intestate succession. Manuel
mistaken heir is void. claims otherwise. Who is correct?
1. If the will was in fact a partition Manuel is correct because under Art. 793,
2. If the beneficiaries of the void will NCC, property acquired after the making
were legal heirs of a will shall only pass thereby, as if the
testator had possessed it at the time of
IMPORTANT PERIODS TO REMEMBER making the will, should it expressly appear
1 month or Testator, if publicly known by the will that such was his intention.
less before to be insane, burden of Since Alfonso’s intention to devise all
making a will proof is on the one properties he owned at the time of his
claiming validity of the death expressly appears on the will, then
will all the 20 parcels of land are included in
20 years Maximum period testator the devise.
can prohibit alienation of
5 years from To claim property 2. Cristina, the illegitimate daughter of
delivery to escheated to the State Jose and Maria, died intestate, without
the State any descendant or ascendant. Her
1 month To report knowledge of valuable estate is being claimed by Ana,
violent death of decedent the legitimate daughter of Jose, and
lest he be considered Eduardo, the legitimate son of Maria. Is
unworthy either, both, or neither of them entitled to
5 years from Action for declaration of inherit? Explain.
the time incapacity & for recovery
disqualified of the inheritance, devise Answer:
person took or legacy Neither Ana nor Eduardo is entitled to
possession inherit ab intestate from Cristina. Both
30 days from Must signify are legitimate relatives of Cristina’s
issuance of acceptance/repudiation illegitimate parents and therefore they fall
order of otherwise, deemed under the prohibition prescribed un Art.
distribution accepted 992, NCC (Manuel vs. Ferrer, 242 SCA
1 month form Right to repurchase 477; Diaz vs. CA, 182 SCRA 427).
written notice hereditary rights sold to a
of sale stranger by a co-heir
10 years To enforce warranty of 3. (a) Luis was survived by 2 legitimate
title/quality of property children, 2 illegitimate children, his
adjudicated to co-heir parents, and 2 brothers. He left an estate
from the time right of of P1 million. Who are the compulsory
action accrues heirs of Luis, how much is the legitime of
5 years from To enforce warranty of each, and how much is the free portion of
partition solvency of debtor of the his estate, if any?
estate at the time
partition is made (b) Suppose Luis, in the preceding
question, died intestate. Who are his
4 years form Action for rescission of
intestate heirs, and how much is the share
partition partition on account of
of each in his estate?

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Suggested Answer:
(a) The compulsory heirs are the 2
legitimate children and the 2 illegitimate
children. The parents are excluded by the
legitimate children, while the brothers are
not compulsory heirs at all.
Their respective legitimes are:
1. The legitime of the 2 legitimate
children is ½ of the estate (P500,000) to
be divided between them equally, or
P250,000 each.
2. The legitime of each illegitimate
child is ½ the legitime of each legitimate
child or P125,000.
Since the total legitimes of the compulsory
heirs is P750,000, the balance of
P250,000 is the free portion.

(b) The intestate heirs are the 2

legitimate children and the 2 illegitimate
children. In intestacy, the estate of the
decedent is divided among the legitimate
and illegitimate children such that the
share of each illegitimate child is ½ the
share of each legitimate child.
Their shares are:
1. For each legitimate child:
2. For each illegitimate child:

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Obligations and Contracts

Title 1. Obligations 121
I. General Provisions 121
II. Effect of Obligations 122
III. Different Kinds of Obligations 128
IV. Extinguishment of Obligations 141

Title 2. Contracts 148

I. General Provisions 148
II. Essential Requisites of a Contract 149
III. Form of Contracts 155
IV. Reformation of Instruments 157
V. Interpretation of Contracts 158
VI. Rescissible Contracts 159
VII. Voidable Contracts 161
VIII. Unenforceable Contracts 162
IX. Void or Inexistent Contracts 163

Title 3. Natural Obligations 166

Title 4. Estoppel 166

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TITLE I: OBLIGATIONS II. Sources (Art. 1157)

Chapter I: General Provisions
I. Concept Quasi-contracts
Definition Quasi-delicts
Art. 1156, NCC
An obligation is a juridical necessity to give, to LAW
do or not to do.
General Rule
The legal relation established between one Obligations derived from law are not
party and another, whereby the latter is presumed; only those expressly determined in
bound to the fulfillment of a prestation which this Code or in special laws are demandable,
the former may demand of him. (Manresa) and shall be regulated by the precepts of the
law which establishes them; and as to what
Elements has not been foreseen, by the provisions of
Active subject (obligee/ creditor) this Book. (Article 1158)
- the one in whose favor the obligation is
constituted *Those imposed by the law itself.
- the person who is entitled to demand

Passive subject (obligor / debtor) CONTRACTS

- the one bound to the fulfillment
- the person who has the duty of giving, Definition
doing or not doing A contract is a meeting of minds between two
persons whereby one binds himself, with
Prestation (object) respect to the other, to give something or to
- the conduct which has to be observed by render some service (1305)
the debtor/obligor
- duties of the obligor General Rule
Requisites: The contracting parties may establish
1. it must be Licit such stipulations, clauses, terms and
2. it must be Possible, physically and conditions as they may deem convenient,
judicially provided they are not contrary to Law,
3. it must be Determinate or Morals, Good customs, Public order and
determinable; and Public policy (1306)
4. it must have a Possible equivalent in
money Contracts as force of law between
Vinculum juris – obligations arising from contracts have the
(efficient cause; juridical or legal tie) force of law between the contracting
– that which binds or connects the parties to parties and should be complied with in
the obligation. This can be easily known good faith (1159)
by knowing the sources of obligations. (de
Distinction between natural and civil
obligations Definition
It is the juridical relation resulting from lawful,
Civil Natural Obligations voluntary, and unilateral acts by virtue of
Obligations (Art. 1423) which the parties become bound to each other
(Art. 1156) to the end that no one shall be unjustly
Based on Based on equity and enriched or benefited at the expense of
positive law natural law another (2142)
Give a right of Do not grant a right
action to of action to enforce Lawful Distinguishing it from
compel their their performance; crimes
performance but after voluntary Voluntary Differentiating it from
fulfillment by the quasi-delict, which are
obligor, they based on fault and
authorize the negligence
retention of what Unilateral Distinguishing it from
has been delivered contract which is based
or rendered by on agreement
reason thereof

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Obligations derived from quasi-contracts shall fault or negligence, if there is no pre-existing

be subject to the provisions of Chapter 1, Title contractual relation between the parties, is
XVII of this Book (1160) called a quasi-delict and is governed by the
Kinds of quasi-contracts provisions of this Chapter.

1. Negotiorum gestio (unauthorized Governing Rules

management) – Obligations derived from quasi-delicts shall
2. Solutio Indebiti (undue payment) be governed by the provisions of Chapter
2, Title XVII of this Book, and by special
1. Negotiorum Gestio laws (1162)
This takes place when a person voluntarily – Title XVIII on damages
takes charge of another’s abandoned – Articles 19-36 on human relations
business or property without the owner’s
authority (Article 2144)
Chapter II: Effect of Obligations
This juridical relation does not arise in
either of these instances:
1. Obligation to Give
a. When the property or business
2. Obligation to Do
is not neglected or abandoned
3. Obligation Not to do
b. If in fact the manager has been
tacitly authorized by the owner
2. Solutio Indebiti
This takes place when something is
determinate Generic thing (1246)
received when there is no right to demand
it, and it was unduly delivered thru
mistake (2154) It is identified by It is identified only
its individuality; by its specie. The
hence, it cannot debtor can give
DELICTS (Obligations Ex Delicto) be substituted anything of the same
with another class as long as it is
Governing Rules although the of the same kind.
Pertinent provisions of the RPC and other intended
substitute is of Creditor cannot
penal laws subject to Art 2177 Civil Code
the same kind demand a thing of
Art. 100, RPC and quality. superior quality;
Every person criminally liable for a felony is neither can the
also civilly liable debtor deliver a
thing of inferior
Chapter 2, Preliminary title, on Human quality.
Relations (Civil Code) *Limited Generic thing – when the generic
objects are confined to a particular class, e.g.,
Title 18 of Book IV of the Civil Code - on an obligation to deliver one of my horses
damages (Tolentino)

What civil liability arising from a crime

includes Specific/ Determinate Thing
Reparation of damage caused Duties of the obligor:
Indemnity for consequential damages
1. To preserve or take care of the thing due
*Standard of care:
Definition that of a good father of a family
An act or omission with fault or negligence unless the law or stipulation requires
causing damage to another; not a crime nor another standard of care
2. To deliver the thing itself (1244)
Article 2176, New Civil Code
Whoever by act or omission causes damage to 3. To deliver the fruits of the thing (Art.
another, there being fault or negligence, is 1164, par. 1)
obliged to pay for the damage done. Such *When does the right to the fruits begin to
From the time the duty to deliver arises:
when there is no term/condition

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– from the perfection of the fruits, interests damages in case of

contract from the time the breach of
when there is a term/condition obligation to obligation
– from the moment the term or deliver arises.
condition arises
4. To deliver the accessions and accessories
of the thing (Art. 1166) – To do it (1167)
*Accessories - those joined to or included with – To shoulder the cost if someone else does
the principal for the latter’s better use, it (1167)
perfection or enjoyment – To undo what has been poorly done
*Accessions – additions to or improvements – To pay damages (1170-1172, 2201-2202)
upon a thing
If a person obliged to do something fails to do
5. To pay for damages in case of breach it, the same shall be executed at his cost.
This same rule shall be observed if he does it
Generic Thing is in contravention of the obligation.
Furthermore, it may be decreed that what has
Duties of the obligor: been poorly done be undone. (1167)

1. To deliver a thing which is of the quality *The creditor may demand that the obligation
intended by the parties taking into be performed by the debtor himself or by a
consideration the purpose of the obligation third person at the expense of the debtor.
and other circumstances (1246) However, in cases where the personal
qualifications of the debtor are taken into
2. To be liable for damages in casa of fraud, account, the only remedy of the creditor is an
negligence, or delay, in the performance action for damages. In the Balane notes,
of his obligation, or contravention of the there is no action for compliance for an
tenor itself (1170) obligation to do because such would be
involuntary servitude which is prohibited by
Personal Right Real Right the constitution.
Before delivery After delivery
Jus ad rem/ jus in jus in re – a right
personam – a enforceable OBLIGATION NOT TO DO:
right enforceable against the world.
only against a – Not to do what should not be done
definite passive – To shoulder the cost to undo what should
subject, the not have been done (1168)
debtor – To pay damages (1170, 2201-2202)
Right pertaining to Right pertaining to
the person to a person over a *If undoing is not possible, either physically
demand from specific thing, or legally, or because of rights acquired by
another, as a without a passive third persons who acted in good faith, or for
definite passive subject individually some other reason, his remedy is an action
subject, the determined against for damages caused by the debtor’s violation
fulfillment of a whom such right of his obligation. (Manresa)
prestation to give, may be personally
to do or not to do enforced II. BREACH OF OBLIGATION

Rights of a Creditor Voluntary - the debtor, in the performance of

the obligation is guilty of fraud, negligence,
Specific Generic delay or contravention of the tenor of the
To compel To ask for obligation
specific performance of the
performance obligation Involuntary – debtor is unable to comply
To recover To ask that the with his obligation because of a fortuitous
damages in case obligation be event
of breach of the complied with at
obligation, the expense of the A. MODES OF BREACH (1170)
exclusive or in debtor
addition to 1. Fraud
specific 2. Negligence
performance 3. Delay
Entitlement to To recover 4. Contravention the tenor thereof

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FRAUD NEGLIGENCE (fault or culpa)

It is the deliberate or intentional evasion of It is the absence of due diligence.

the normal fulfillment of an obligation.
(Manresa) It is any voluntary act or omission, there
being no malice, which prevents the normal
It implies some kind of malice or dishonesty fulfillment of an obligation. (1173, 1174)
and it cannot cover cases of mistake and
errors in judgment made in good faith. It is Distinction between fraud and negligence
synonymous to bad faith. (O’leary v.
Macondray & Co., Inc., G.R. No. 21383, Fraud Negligence
March 25, 1924) There is There is no deliberate
deliberate intention to cause
*Responsibility arising from fraud is intention to damage.
demandable in all obligations (fraud in the cause
performance) damage.
Liability Liability may be
*Waiver of action for future fraud is void for cannot be mitigated.
being contrary to law and public policy (Art. mitigated.
1171) because the advance renunciation of Waiver for Waiver for future
the creditor would practically leave the future fraud is negligence may be
obligation without effect. void. allowed in certain
*Past fraud can be renounced. The fraud a) gross – can never
referred to is fraud in Article 1170, which is be excused in
the malice or bad faith in the performance of advance; against
the obligation. public policy
b) simple – may be
Kinds of Fraud excused in certain
Fraud in the Fraud in the Execution
Performance Diligence Required
(Art. 1170) Causal Incidental
Fraud Fraud (dolo 1. That agreed upon by the parties
(dolo incidente) 2. In the absence of stipulation, that required
causante) (Art. 1344) by law in the particular case
(Art. 1338) 3. If both the contract and law are silent,
Present Present Present diligence of a good father of a family
during the during the during the
performance perfection perfection *Deligence of a Good Father of a Family:
of a pre- of a of a That reasonable diligence which an
existing contract contract ordinary prudent person would have had
obligation under the same circumstances.
Purpose is Purpose is Purpose is
to evade the to secure to secure Test of Negligence
normal the the consent
fulfillment consent of of the other Did the defendant in doing the alleged
of the another to party but negligent act use the reasonable care and
obligation enter into the fraud caution which an ordinary and prudent person
the was not the would have used in the same situation? If
contract principal not, then he is guilty of negligence.
inducement (Mandarin Villa, Inc. v. CA, 257 SCRA
in making 538, 1996)
the contract
Results in Results in Does not The rule for measuring degree of care and
the breach vitiation of result in the vigilance is dependent upon the circumstances
of an consent; vitiation of in which a person finds himself situated.
obligation voidable consent (Cusi v. Phil. National Railways, 90 SCRA
contract 357, 1979)
Gives rise to Gives rise Gives rise
a right in to a right to a right of Kinds of Culpa
favor of the of an an innocent
creditor to innocent party to 1. Culpa Aquiliana (quasi-delict) – wrong or
recover party to claim for negligence committed independent of
damages annul the damages contract and without criminal intent

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2. Culpa Contractual – wrong or negligence 2. Mora Accipiendi

in the performance of an obligation
There is a delay on the part of the creditor to
3. Culpa Criminal – wrong or negligence in accept the performance of the obligation
the commission of a crime
DELAY (mora) 1. Offer of performance by the debtor who
has the required capacity.
It is the non-fulfillment of an obligation with 2. Offer must be to comply with the
respect to time. prestation as it should be performed.
3. Creditor refuses the performance without
1st GENERAL RULE: Delay occurs from the just cause.
time of creditor’s judicial or extrajudicial
demand Effects when these elements are present:
1. The responsibility of debtor is reduced to
Exception: Demand is not necessary to fraud and gross negligence.
incur in delay when: 2. The debtor is exempted from risk of loss
 obligation or law expressly declares of thing or the creditor bears risk of loss.
 time is a controlling motive 3. The expenses incurred by the debtor for
 demand would be useless the preservation of the thing after the
mora shall be chargeable to the creditor.
2nd GENERAL RULE: In reciprocal obligations, 4. If the obligation bears interest, the debtor
delay happens from the moment one party does not have to pay from time of delay.
fulfills his undertaking. (1169) If neither party 5. The creditor is liable for damages.
performs his undertaking, neither incurs delay 6. The debtor may relieve himself of
obligation by consigning the thing.
Kinds of delay
3. Compensatio Morae
1. Mora solvendi
2. Mora accipiendi It is the delay of the parties or the obligors in
3. Compensatio morae – the delay of the reciprocal obligations. The effect is that it is as
obligors in reciprocal obligations if there is no default.

1. Mora Solvendi Rules on Mora, Delay or Default

There is a delay on the part of the debtor to Unilateral Reciprocal

fulfill his obligation (to give or to do) Obligations Obligations
General Rule:
a) Mora Solvendi Ex re – default in real “No demand – no One party incurs in
obligations delay.” The mere delay from the
b) Mora Solvendi Ex persona – default in expiration of the moment the other
personal obligations period fixed by the party fulfills his
parties is not obligation, while
Requisites: enough in order he himself does
– The obligation must be liquidated, due and that the debtor not comply or is
demandable. may incur in delay. not ready to
– The debtor is guilty of non-performance. comply in a proper
– There was demand made judicially or manner with what
extra-judicially. is incumbent upon
him. The general
Effects when these elements are present: rule is that
The creditor may ask for damages/ the debtor fulfillment by both
is liable for damages parties should be
The debtor is liable even if the loss is due to simultaneous.
fortuitous events. Exception:
The debtor shall bear the risk of loss. when the When different
obligation or law dates for the
Instance when there is no default or mora expressly performance of
solvendi: declares obligation is fixed
a) In negative obligations, because one can when time is of the by the parties.
never be late in not doing or not giving essence in the
something contract
b) In natural obligations, because the when the demand
performance is optional or voluntary on would be useless
the part of the debtor. when the debtor

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that he is in not possible. He made the first monthly

default installment but refused to make further
It is not enough The demand is still payments until and unless GSIS completed
that there is a necessary only the housing unit. GSIS cancelled the award
specific date of when the and required Agcaoili to vacate the premises.
performance, the respective
words “without obligations are to Held: GSIS had no right to rescind sale. In
the need of be performed on reciprocal obligations, neither party incurs in
demand” should separate dates. delay if the other does not comply or is not
appear in the face ready to comply in a proper manner with what
of the instrument. If neither party is incumbent upon him. (1169, par. 6)
complies with the
prestation, the
compensates the OBLIGATION
default of another.
This is the violation of the terms and
*Delay in payment of money is indemnified conditions stipulated in the obligation. And
through interest unless a gratuitous mutuum such contravention must not be due to a
or simple loan. If no stipulated interest, fortuitous event or force majeure.
default interest is (6%) six percent. (2209)
In general, every debtor who fails in the
*If obligation consists in payment of a sum of performance of his obligation is bound to
money, and debtor incurs in delay, the indemnify for the losses and damages caused
indemnity for damages, there being no thereby.
stipulation to the contrary, shall be the
payment of the interest agreed upon, and in The phrase “in any manner contravenes the
the absence of stipulation, the legal interest, tenor” means any illicit act, which impairs the
which is six percent per annum. (2209) strict and faithful fulfillment of the obligation,
or every kind of defective performance.
*When there is delay, the injured party may
ask for damages. But this benefit arising from It is therefore immaterial whether or not the
Mora, default or delay may cease upon: actor is in bad faith or negligent, what is
- Renunciation of the creditor required is that it is his fault or the act done
- Prescription of action contravenes their agreement.
- Extension of time for the fulfillment of
the obligation B. FORTUITOUS EVENTS

A contract was entered into for delivery of
materials on Dec. 22, 1990 in time for the Events which could not be foreseen, or which
aggrieved party’s wife who expressly wished though foreseen are inevitable. (Article 1174)
that she be buried before Christmas day, and
where, despite knowing this timetable and Act of God
having been paid for the materials, the
supplier failed to make the delivery despite An act of God is defined as an accident, due
pleas and earnest follow-ups by the widower. directly and exclusively to natural causes
Supreme Court ruled that time was of the without human intervention, which by no
essence of such contract and the supplier amount of foresight, pains or care, reasonably
should be liable for the delay and breach. to have been expected, could have been
prevented. (Nakpil v. CA)
N.B. Example of incurring delay without
judicial or extrajudicial demand. (#2)Time is Act of Man
of the essence. Contract was entered into in
view of burial before Christmas. In contrast, force majeure is a superior or
irresistible force, which is essentially an act of
Agcaoili v. GSIS man, such as wars, strikes, riots, acts of
The parties entered into a contract of sale of a robbers, pirates, and brigands.
government housing unit on the condition that
Agcaoili should occupy the same within three *In our law, acts of man and acts of God are
days from the receipt of notice. Failure to identical in so far as they exempt an obligor
immediately occupy contractually allowed from liability because the events happened
GSIS to terminate the contract. Agcaoli upon independent of the will of the obligor.
receipt of notice, immediately went to the (Republic v. Stevedoring Corp., 21 SCRA
place and found a house in a state of 279, 1967 and UST v. Descals, 38 Phil.
incompleteness that civilized occupation was 287, 1918)

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Kinds of Fortuitous Events failure to act, the whole occurrence is then

humanized and removed from the rules
1. Ordinary – those which are common and applicable to the acts of God. (NAPOCOR v.
which the contracting parties could easily CA, 211 SCRA 162, 1992)
Herbosa v. CA
2. Extraordinary – those which are 374 SCRA 578 (2002)
uncommon and which the contracting PVE, a subsidiary of SD, Inc., was not able to
parties could not have reasonably cover the wedding celebration of EH and RH
foreseen. (see 1680) allegedly due to the gross negligence of the
crew and the lack of supervision from PVE’s
General Rule general manager. Held: PVE or SD, Inc.
cannot take refuge under Article 1280 of the
Except in cases expressly specified by law, or New Civil Code. The defense that they
when it is otherwise declared by stipulation, or exercised due care in the selection and
when the nature of the obligations requires supervision of their employees can only be
assumption of risk, no person shall be availed of when the liability arises from culpa
responsible for those events which, could not aquiliana and not from culpa contractual.
be foreseen, or which though foreseeable, are

*When a debtor is unable to fulfill his GENERAL RULE

obligation because of fortuitous events or
force majeure, his obligation to comply is Rights acquired by virtue of an obligation are
extinguished subject to the following transmissible in character.
– cases expressly specified by law (i.e.,
552(2), 1165, 1268, 1942, 2147, a) when they are not transmissible by their
2148, 2159) very nature (Personal obligation)
– declared by stipulation b) when there is Stipulation of the parties
– nature of the obligation requires the that they are not transmissible
assumption of risk (1174) c) when they are not transmissible by
– when the obligor is in default or has operation of Law
promised to deliver the same thing to
two or more persons who do not have Rights of Creditor against Debtor (E-PAA,
the same interests. (1165(3)) electronic paa/foot or e-foot)

Requisites for exemption 1. Exact fulfillment – to demand fulfillment of

the obligation or specific performance –
1. cause of event or debtor’s failure either specific, substitute or equivalent
independent of human will performance
2. impossible to foresee or avoid 2. Pursue the leviable – to attach the
3. impossible for debtor to fulfill his properties of the debtor, except those
obligation in a normal manner exempt by law, from execution.
4. debtor free from participation in the 3. Accion subrogatoria
aggravation of the injury to the creditor 4. Accion Pauliana
(Nakpil v. CA and Lasam v. Smith)
Accion Subrogatoria
*It must be the ONLY and SOLE cause, not
merely a proximate cause. Definition

Effect of Concurrent Fault Novation via change of creditor (1291, par.

One who negligently creates a dangerous
situation cannot escape liability for the natural This involves the right of the creditor to
and probable consequences thereof although exercise all of the rights and bring all of the
an act of God intervened to precipitate the actions which the debtor may have against
loss. There must be no fraud, negligence, third persons.
delay or violation or contravention in any
manner of the tenor of the obligation. (Nakpil Requisites
v. CA)
1. Creditor must have the right of return
When the effect is found to be in part the against debtor
result of the participation of man, whether 2. The debt is due and demandable
due to his active intervention or neglect or

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3. There is a failure of the debtor to collect Juridical quality and efficaciousness

his own debt from 3rd persons either a. Civil obligations
through malice or negligence b. Natural obligations
4. The debtor's assets are insufficient c. Mixed – according to natural and civil
5. The right of account is not purely personal law

Accion Pauliana By the parties or subject

a. Unilateral or Bilateral
Definition b. Individual or Collective
c. Joint or Solidary
Rescission, which involves the right of the
creditor to attack or impugn by means of a By the object of the obligation or prestation
rescissory action any act of the debtor which a. Specific or Generic
is in fraud and to the prejudice of his rights as b. Positive or Negative
creditor. c. Real or Personal
d. Possible or Impossible
Requisites e. Divisible or Indivisible
f. Principal or Accessory
1. There is a credit in favor of plaintiff g. Simple or Compound
2. The debtor has performed an act If compound:
subsequent to the contract, giving Conjunctive (demandable at the same
advantage to other persons time)
3. The creditor has no other legal remedy Distributive (alternative or facultative)
4. The debtor's acts are fraudulent
5. The creditor is prejudiced by the debtor's By their juridical perfection or fulfillment
act which are in favor of 3rd parties and a. Pure or Conditional
rescission will benefit the creditor b. With a Period


Chapter III: Different Kinds
of Obligations
The effectivity or extinguishment is not
subject to any condition and no specific date
PRIMARY CLASSIFICATION is mentioned for its fulfillment and is,
(PaPA, Just Don’t Preach) therefore, immediately demandable. (1179,
par. 1)
1. Pure and conditional obligations (1179-
2. Obligations with a Period (1193-1198)
3. Alternative obligations (1199-1206) The consequences are subject in one way or
4. Joint and solidary obligations (1207-1222) another to the fulfillment of a condition.
5. Divisible and indivisible obligations (1223-
1225) Condition
6. Obligations with a Penal clause (1226-
1230) It is a future and uncertain event, upon the
happening of which, the effectivity or
SECONDARY CLASSIFICATION extinguishment of an obligation (or rights)
(U R D PoLiCe) subject to it depends.
1. Unilateral and bilateral Term
2. Real and personal
3. Determinate and indeterminate A day certain is understood to be that which
4. Positive and negative must necessarily come, although it may not
5. Legal and conventional be known when.
6. Civil and natural
*Difference between conditional and those
Classification according to Sanchez with a term: There is uncertainty or certainty
Roman: of day or time.
1. Juridical quality and efficaciousness If the uncertainty consists in whether the day
2. By parties or subject will come or not, the obligation is conditional,
3. By the object of the obligation or and it shall be regulated by the rules of the
prestation preceding section. (1193)
4. By their juridical perfection and

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Pay v. Viuda de Palanca happening of the uncertain event which

The debtor issued a promissory note to the constitutes the condition.
creditor to pay a sum of money payable upon
receipt of a particular sum of money from the RESOLUTORY CONDITION
estate of a certain deceased person upon (Condition subsequent)
demand. The case for collection on the note
was filed 15 years after its execution. The It causes the extinguishment or loss of rights
Supreme Court ruled that, since the already acquired upon the fulfillment of the
prescriptive period for filing the action was 10 condition, that is, the happening of the event
years and considering that the promissory which constitutes the condition. In other
note’s payment constituted a pure obligation words, the fulfillment of which will extinguish
and therefore demandable at once, the action an obligation (or right) already existing.
to collect could no longer prosper. It was
deemed pure since satisfaction of credit could Suspensive Resolutory
be realized either through the debtor sued When it is fulfilled, The obligation is
receiving the cash payment from the estate of the obligation extinguished.
the deceased or “upon demand”. arises.
When it takes
place, The tie of law is
Classification of Conditions the tie of law consolidated
(juridical or legal
1. As to effect tie) does not
a. Suspensive appear
b. Resolutory Until it takes place, Its effects flow,
the existence of but over it, hovers
2. As to form the obligation is a the possibility of
a. Express – the condition is clearly mere hope termination
stated Effect: The loss
b. Implied – the condition is merely The acquisition of (termination) of
inferred rights rights already
3. As to possibility (Manresa)
a. Possible
b. Impossible Potestative, Casual and Mixed (1182)

4. As to cause or origin POTESTATIVE CONDITION

a. Potestative (facultative condition)
b. Casual
c. Mixed It is a condition which is suspensive in nature
and which depends upon the sole will of one
5. As to mode of the contracting parties.
a. Positive – the condition consists in the
performance of an act (1184) Suspensive Resolutory
b. Negative – the condition consists in the condition condition
omission of an act Depends upon the
will of the debtor
6. As to numbers The condition and The condition and
a. Conjunctive – there are several obligation are void obligation are still
conditions and all must be fulfilled because the valid because the
b. Disjunctive – there are several validity and debtor is interested
conditions and only one or some of compliance are in the fulfillment of
them must be fulfilled left to the will of a condition which
the debtor and it causes the
7. As to divisibility cannot, therefore, extinguishment or
a. Divisible – the condition is susceptible be legally loss of rights
of partial performance demanded as it already acquired
b. Indivisible – the condition is not will cause the by the creditor.
susceptible of partial performance debtor not to
fulfill the
Suspensive and Resolutory (1179) condition to
escape liability.
(Condition precedent or condition antecedent) Except when the
obligation is a pre-
It suspends the acquisition of rights until the existing one;
conditions are fulfilled; that is, until the hence, only the

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condition is void. 5. in case of conditions not to do an

Depends upon the impossible thing
will of the creditor
The condition and Effect
obligation are
valid because the It renders the conditional obligation void since
creditor is the obligor knows that his obligation cannot
interested in the be fulfilled; thus, showing that he has no
fulfillment of the intention to comply with his obligation.
obligation as it
will benefit him. Effects of Impossible and Illegal Conditions

If the condition is:

CASUAL CONDITION 1. To do an impossible or illegal thing, the
condition and the obligation are void.
The condition depends upon chance or the will 2. Negative (not to do an illegal thing), the
of a third person. condition and the obligation are valid.
3. Negative (not to do the impossible thing),
MIXED CONDITION disregard the condition, however, the
obligation remains.
The condition depends partly on the will of a
party and partly on chance or the will of a 3rd Positive and Negative Conditions
The obligation is valid if the suspensive (suspensive)
condition depends partly upon chance and
partly upon the will of a third person. (Naga The obligation is extinguished:
Telephone, Co., Inc. v. CA, 230 SCRA 351,
1994) a) as soon as the time expires without the
event taking place
b) as soon as it has become indubitable that
Possible and Impossible Conditions the event will not take place although the
(1183) time specified has not yet expired (1184)

*Applies to suspensive conditions. NEGATIVE CONDITION

The obligation becomes effective:
The condition is capable of fulfillment, legally
and physically. a) from the moment the time indicated has
elapsed without the event taking place; or
IMPOSSIBLE CONDITIONS b) from the moment it has become evident
that the event cannot occur, although the
The condition is not capable of fulfillment, time indicated has not yet elapsed (1185)
legally or physically.
Constructive Fulfillment (1186)
Two Kinds
For Suspensive Conditions
1. Physically impossible conditions – those, in
the nature of things, cannot exist or Requisites
cannot be undone.
2. Legally impossible conditions – those 1. The condition is suspensive;
which are contrary to law, morals, good 2. The obligor actually prevents the
customs, public order and public policy. fulfillment of the condition; and
3. He acts voluntarily.
General Rule
For Resolutory Condition
They shall annul the obligation which depends
upon them This also applies to a resolutory condition
when the debtor is bound to return what he
Exceptions has received upon fulfillment of the condition.

1. pre-existing obligation Effects of Suspensive Conditions

2. divisible obligations
3. simple or remuneratory donations 1. Before the condition is fulfilled, the
4. testamentary dispositions demandability and acquisition or effectivity

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of the rights arising from the obligation is 1. Physical loss (the thing perishes)
suspended. 2. Legal loss (the thing goes out of
2. After the condition has been fulfilled, the commerce)
obligation arises or becomes effective. 3. Civil loss (the thing disappears and the
3. The effects of a conditional obligation to existence is unknown or unrecoverable as
give, once the condition has been fulfilled a matter of fact or of law)
shall retroact to the day the obligation was
constituted. Rules

*The law allows retroactivity because the 1. When the thing is lost without the debtor’s
condition is not an essential requisite of an fault, the obligation is extinguished.
obligation. 2. When the thing is lost with the debtor’s
fault, the debtor pays for damages.
1. When the obligation imposes reciprocal
prestations upon the parties, the fruits and DETERIORATION
interests shall be deemed to have been
mutually compensated (this assumes a Rules
simultaneous performance of prestations).
1. When the thing deteriorates without the
*The fruits are mutually compensated for debtor’s fault, the creditor will suffer the
convenience. deterioration of impairment.
2. When the thing deteriorates with the
2. In a unilateral obligation, the debtor shall debtor’s fault, the creditor may choose
appropriate the fruits and interests between:
received unless the intention constituting a. Rescission (cancellation) of the
such was different. obligation with indemnity for damages,
3. In obligations to do or not to do, the court or
shall determine the retroactive effect of b. Fulfillment of the obligation also with
the condition that has been complied with. damages

Rights Pending Fulfillment of a Suspensive IMPROVEMENT

Of the creditor Of the debtor
He may take or He is entitled to 1. When the thing is improved by nature or
bring appropriate recover what he by time, the improvement shall inure to
actions for the has paid by the benefit of the creditor.
preservation of his mistake prior to 2. When the thing is improved at the expense
right, as the debtor the happening og of the debtor, the debtor shall have no
may render the suspensive other right than that granted to a
nugatory the condition. usufructuary.
obligation upon the
happening of the
condition. Effect of the Fulfillment of Resolutory
Conditions (1190)

Loss, Deterioration or Improvement 1. Extinguishment of the obligation

Pending the Happening of the Condition 2. Mutual restitution (the parties restore to
(1189) each other what they have received
including the fruits and interest)
Requisites for 1189 to apply 3. Art. 1189 applies to whoever has the duty
to return in case of loss, deterioration or
6. The obligation is a real obligation; improvement of the thing
7. The object is a specific or determinate 4. If the obligation is to do or not to do, the
thing; courts determine the retroactivity of the
8. The condition is subject to a suspensive fulfillment of the condition as stated in
condition; 1187
9. The condition is fulfilled; and
10. There is loss, deterioration, or Kinds of Obligation according to the
improvement of the thing during the Person Obliged
pendency of the the condition.
It is when only one party is obliged to comply
Kinds of loss with a prestation.

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BILATERAL OBLIGATION b. When, even if there has been delivery, the

contract states that either party can
It is when both parties are mutually bound to rescind the same or take possession of the
each other making them both the debtors and property upon non-fulfillment of the
creditors of each other. obligation by the other party.

It may be: By one party: (1191)

– reciprocal, or
– non-reciprocal 1. Implied in reciprocal obligations, when the
other does not comply
Reciprocal Obligations 2. Power to rescind plus damages
3. Compel fulfillment and then rescind if such
Those which arise from the same cause and in becomes impossible
which each party is debtor and creditor of the 4. The Court decrees rescission unless just
other. cause for authorizing a period
5. Must be without prejudice to third persons
Implied Condition who have acquired the thing, in
accordance with articles 1385 and 1388
There must be compliance by the other with and the Mortgage Law.
the duties incumbent upon him as party to the
debt. By both parties: (1192)

In reciprocal obligations, a party cannot In case both parties have committed a breach
demand unless he complies or is ready to of the obligation, the liability of the first
comply with obligations (inferred from 1169). infractor shall be equitably tempered by the
courts. If it cannot be determined which of
*This is subject to same rules on interim the parties first violated the contract, the
obligations and interim remedies. same shall be deemed extinguished, and each
shall bear his own damages.
Non-Reciprocal Obligations
1. Rule against the first infractor, as
Those which do not impose simultaneous and tempered by courts
correlative performance on both parties. The 2. If first infractor cannot be determined,
performance of one party does not depend obligation extinguished
upon the simultaneous performance of
another. *Rescission should be done judicially unless
stipulated in the contract. Rescission will only
Remedies in Reciprocal Obligations be granted if breach of the obligation is
substantial and not mere occasional
RESCISSION IN ARTICLE 1191 malfunction of the machine without even an
allegation of loss of income. (Philippine
The power to rescind means the right to Amusement Enterprises, Inc. v.
cancel or to resolve the contract in case of Natividad)
non-fulfillment of the obligation on the part of
one of the parties. *Injured party has the power to rescind
but only through the courts in proper
It is the breach of faith committed by the proceedings. (Ocejo v. International Banking
person who is supposed to comply with Corp.)
obligation. It is not the rescission in 1380
which involves damage or lesion, or injury to UP v. de los Angeles
the economic interest of a person. The parties stipulated rescission of logging
agreements without the need for any judicial
Characteristics pronouncement.

1. It only exists in reciprocal obligations. N.B. Judicial pronouncement of rescission was

2. It can be demanded only if the plaintiff is unnecessary as it was clearly expressed in
ready, willing and able to comply with his their contract. No law prohibits parties from
own obligation and the other is not. entering agreements wherein violation of the
(Seva v. Berwia, 48 Phil. 581) terms of contract would cause cancellation
even without court intervention. Rescission on
General Rule account of infractions by the other party by
one of the parties must be made known to
Judicial approval is necessary for rescission, that other party who in turn can seek for
except: judicial remedy should he feel that rescission
a. When the object is not yet delivered is unjustified.

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Obligations Rendered Void By Certain future unknown to parties

As to influence on
Annulling conditions: the obligation
– Merely fixes It causes an
a. Potestative – only if suspensive condition the time for the obligation to arise
is solely upon the will of the debtor (1182) efficaciousness or be terminated.
b. Impossible Conditions (1183) of the
c. those contrary to law, good customs, obligation.
morals, public order or public policy – If suspensive,
(1183) it cannot
d. Not to do an impossible thing – not agreed prevent the
upon (1183, par. 2) birth of the
obligation in
Lao Lim v. CA due time.
The stipulation that the lessee has the right to – If resolutory, it
renew contract of lease as long as he needs does not annul,
the premises and he can pay for the same is even in fiction,
invalid. It would leave the lessee, Dy, the sole the fact of its
power to determine whether the lease should existence.
continue or not. The lease contract is deemed As to effect, when
extinguished at the end of a year, subject to left to the debtor’s Depends upon the
renewal by means of a new agreement but will sole will of the
since the lessor did not want to renew, there – Depends upon debtor, thus,
is no more lease. the will of the invalidates the
debtor obligation
Romero v. CA empowers the
This case shows that one cannot rescind a court to fix its
contract on account of one’s own failure to duration
fulfill an obligation. As to retroactivity
of effects
Ducusin v. CA – Unless The happening of
Only that which is dependent on the sole will stipulated, the the condition has
of the debtor is invalid. No one is supposed to arrival of a retroactive effect.
have sole power. In this case, since the period has no
condition is dependent on the will of third retroactive
persons, the condition was held to be valid. effect.

II. OBLIGATIONS WITH A TERM Classifications of Term/ Period

Those whose consequences are subjected in 1. According to effect

one way or another to the expiration of a a. suspensive period (ex die) – obligation
period or term. (Manresa, Lirag Textiles, becomes demandable only upon the
Inc. v. CA, 63 SCRA 374, 1975) arrival of a certain day
b. resolutory period (in diem) – obligation
PERIOD or TERM is valid up to a day certain and
terminated upon the arrival of period.
It is a future and certain event upon the
arrival of which the obligation (or right) 2. According to source
subject to it either arises or is terminated. a. legal period – provided for by law
b. conventional/ voluntary period –
*The demandability is suspended by the term, agreed to by the parties
not the acquisition of the right or the c. judicial period – fixed by the court
effectivity of the obligation.
3. According to definiteness
*Fortuitous events do interrupt the running of a. definite period – fixed or the coming of
the period. which is known
b. indefinite period – not fixed or the
Distinguishing a period from a condition coming of which is not known (usually,
the law empowers the courts to fix the
Period/ Term Condition period)
As to fulfillment
Certain event Uncertain event

As to time May also refer to a

Refers only to the past event

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It must refer to the future. TYPHOON IN A CONTRACT FOR DELIVERY OF LOGS,
It must be possible. FOR A PERIOD.
Effect of payment before the arrival of 1951 THE APPELLANT FAILED TO SEND A VESSEL
The debtor may recover what he has paid SINCE THE SAID DATE WAS WITHIN THE PERIOD
including the fruits and interest if he is PRESCRIBED, NONE OF THE PARTIES COULD INCUR
unaware of the period or believed that the DELAY NOR DEMAND PERFORMANCE. THE LOSS
obligation has become due and demandable SHOULD BE SHOULDERED BY THE APPELLEE OR THE
(1195). If he paid voluntarily knowing that the LOGGER.
obligation is not yet due, he cannot recover
what he has paid. FIXING OF A PERIOD

General Rule The Court May Fix a Period When:

The period attached to the obligation is for the 1. There is no express stipulation, but a
benefit of both parties. period is intended by the parties as can be
inferred from the nature and
Exception circumstances of the obligation.
2. If the duration of the period depends upon
When it appears from the tenor of the the will of the debtor.
obligation or other circumstances that the 3. If the debtor promises to pay when his
period has been established in favor of one or means permit him to do so. (1197)
the other subject to an express stipulation of
the parties, the period may be benefit the The Court May NOT Fix a Period When:
debtor or the creditor alone.
1. When no term has been specified by the
Period for the benefit of the debtor alone: parties because no term was ever
intended, in which case it is considered a
The debtor cannot be compelled to pay pure obligation.
prematurely, however, he may renounce the 2. When the obligation is payable on
benefit of the period by performing his demand.
obligation in advance. (Manresa) 3. When specified period is provided by law.

Period for the benefit of the creditor alone: Araneta, Inc. v. Philippine Sugar Estates
Development Co., Ltd.
The creditor may demand fulfillment even The parties in the case intended to defer
before the arrival of the term but the debtor performance of obligations until after the
cannot compel him to accept before the squatters were duly evicted. Although it was
expiration of the period (i.e., “on demand”). indefinite, such was the intention of the
parties and courts could not just assign a
Interim obligations period out of thin air. The requisite and
guideline for setting a period is when there is
In case of loss, deterioration or improvement no period specified but such was intended,
of the thing before the arrival of the day courts should just fix a period, which the
certain, the rules in article 1189 shall be parties could have intended.
i. Exercise due diligence; otherwise, Reasons for Fixing a Period
responsibility for loss, deterioration
(1189) 1. There can be no possibility of any breach
ii. Improvement inures to creditor, if at of contract or failure to perform the
expense of debtor only usufructuary obligation unless the period is fixed by the
right (1189) courts.
iii. Recover payment or delivery before 2. When the court has not yet fixed the
due and demandable period, it is premature to collect.

ABESAMIS V. WOODCRAFT WORKS, INC. A Debtor Loses the Right to Make Use of
THE CONTRACT PROVIDED THAT THE APPELLANT a Period (when the creditor can demand even
SHALL MAKE SHIPMENT BEFORE THE END OF JULY, when the obligation is not yet due) (1198)

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1. When after contracting the obligation, the ALTERNATIVE OBLIGATION

debtor suffers from insolvency, unless he
gives guaranties or securities for the debt It is one wherein various prestations are due
2. When the debtor does not furnish but the performance of one of them is
promised guaranties or securities he sufficiently determined by the choice which,
promised as a general rule, belongs to the debtor.
3. When by his own act, the debtor has (Manresa)
impaired established guaranties or FACULTATIVE OBLIGATION
securities and when through a fortuitous
event they disappear, unless he gives new It one where only one prestation has been
ones equally satisfactory when the debtor agreed upon but the obligor may render
violates any undertaking in consideration another in substitution.
of which the creditor agreed to the period
4. When the debtor attempts to abscond. Distinguising Alternative and Facultative
PAYABLE OR DEMANDABLE. prestations Only one
Several prestation is due
*THE WORD “INSOLVENT” DOES NOT REQUIRE A prestations are although the
UNDERSTOOD IN ITS ORDINARY MEANING WHICH compliance with to substitute
OCCURRED AFTER THE OBLIGATION WAS May be given to The right to make
CONSTITUTED. the creditor or to the substitution is
a third person given only to the
Gaite v. Fonacier debtor
Payment of obligation was secured by two Loss through a
surety bonds: one from a mining company fortuitous event
and its stockholders and the other from a The loss of one or The loss of the
bonding company. The obligor was obliged to more of the thing due
pay the indebtedness from the time it alternatives does extinguishes the
received the proceeds of the sale of iron ore, not extinguish obligation.
the Supreme Court ruled that the obligor in the obligation
this case lost its right to the period. Failure to Loss through
renew an expired surety with the bonding fault of debtor
company constituted an impairment of the a) Does not a) The debtor is
securities or guaranties. Thus, Fonacier lost render the debtor liable
his right to the period, i.e. time to sell the iron liable
ore, unless he immediately gives new ones b) Where the b) The loss of the
equally satisfactory. choice belongs to substitute before
the creditor, the the substitution
III. ALTERNATIVE OBLIGATIONS loss of one does not render
alternative gives the debtor liable
Kinds of Obligation according to Object rise to liability
Nullity of
1. Simple obligation – one where there is prestation a) The nullity of
only one prestation a) The nullity of the prestation
2. Compound obligation – one where there one prestation agreed upon
are two or more prestations does not invalidates the
a. Conjunctive obligation – one where invalidate the obligation
there are several prestations and all of others b) the debtor is not
them are due bound to choose
b. Distributive obligation – one where one b) the debtor or the substitute
of two or more of the prestations is creditor should
due choose from
among the
*A distributive obligation may be remainder
– alternative (1199), or
– facultative (1206)

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Right of Choice Rules in Facultative Obligations

General Rule Before After Substitution

The right of choice belongs to the debtor. Loss of the Principal
Fortuitous Event The debtor is not
Except: The obligation is liable whatever may
extinguished be the cause
When expressly granted to the creditor, or Fault of Debtor
When expressly granted to a third person The debtor is
liable for
*A right of choice becomes a simple obligation damages
when a person who has a right of choice has Loss of the Substitute
communicated his choice and that one choice The debtor is not Fortuitous Event
is the only practicable one (i.e., the others liable whether The obligation is
may have become illegal or impossible). the loss is due to extinguished
(1202) the fault of the Fault of Debtor
debtor or to a The debtor is liable
Limitations on the Debtor’s Right of Choice fortuitous event. for damages

1. The debtor cannot choose those IV. JOINT AND SOLIDARY OBLIGATIONS
prestations which are impossible, unlawful
or which could not have been the object of
the obligation. (1200)
Obligacion Mancomunada
2. The debtor has no more right of choice
when among the prestations whereby he is
It is an obligation where the whole liability is
alternatively bound, only one is
to be paid or fulfilled proportionately by the
different debtors; and/or is to be demanded
3. The debtor cannot choose the part of one
proportionately by the different creditors.
prestation and part of another.
The Right of Choice belongs to the Debtor
Obligacion Solidaria
As a general rule, in alternative obligations,
It is an obligation where each one of the
the right of choice belongs to the debtor.
debtors is bound to render, and/ or each one
However, the debtor may expressly give the
of the creditors has a right to demand
right of choice to the creditor.
compliance with the prestation. (1207)
Rules in Alternative Obligations
*In a joint obligation, each debtor shall
be liable only for his part of the debt
Debtor’s Creditor’s
presumed to be equal with the other debtors.
choice choice
The above provision is consistent with the rule
Due to a Fortuitous Event
that a joint obligation is presumed in case of
All Extinguish Extinguish
plurality of debtors or creditors for solidary
Some Deliver any of Deliver any of obligation exists only when the law so
the remaining the remaining provides, when expressly stipulated by the
One Deliver Deliver parties or when called for by the nature of the
Debtor’s Fault obligation. (Jurado) (see 1208)
All Value of the Value of any of
last thing lost the things and General Rule
and damages damages
Some Deliver any of Value of the By default, collective obligations are presumed
the remaining, thing lost, to be joint if there is concurrence of two or
no damages damages or more debtors and/ or creditors.
any of the
remaining Solidarity exists only
One Deliver, no
damages 1. When Stipulated by the parties using such
Loss of Last Thing words like “jointly and severally,” “in
Extinguish Value of any of solidum,” “I promise to pay” in a note
the things lost signed by two or more debtors, or similar
due to the words. (conventional solidarity)
creditor’s fault
and damages 2. When solidary liability is provided by Law,
hence, civil liability arising from crimes,

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negotiorum gestio, commodatum or quasi- between the parties is joint, that is, liable only
delict shall be solidary. (legal solidarity) to a proportionate share. (1209)

3. When the Nature of the obligation requires *In a joint indivisible obligation, the
solidarity. liabilities of the debtors or the rights of the
creditors are joint, but they are indivisible as
4. When a charge or condition is imposed to compliance. (1224) The concurrence of all
upon heirs or legatees, and the Testament the creditors is necessary for demanding
expressly makes the charge or condition compliance due to the indivisibility of the
“in solidum”. obligation. The same is inversely true as
regards the debtors. The concurrence of all
5. When a solidary responsibility is imputed the creditors is also necessary for acts which
by a Final judgment upon several are prejudicial. But an act beneficial to all like
defendants. interruption of prescription may be performed
by one of the creditors.
Some Features of Joint Liability
Indivisible obligations are not necessarily
1. Insolvency of one debtor does not make solidary (1210)
the others liable.
2. Vitiated consent on the part of one debtor Indivisibility Solidarity
does not affect the others.
3. Demand made to one of the debtors is not Refers to the Refers to the legal
a demand to all because the debt of one is prestation or juridical tie
distinct from the others. binding the parties
Only the debtor All of the debtors
*In a given contract, wherein a party who is guilty of are liable for the
signs as a surety but the agreement states breach of breach of
joint and several liabilities, there is a solidary obligation is obligation
obligation. (Jaucian v. Querol) liable for committed by any
damages, thereby one of the debtrs.
Kinds of Solidarity (PAMela Anderson) terminating the
1. Passive Solidarity Can exist even if Can only exist
2. Active Solidarity there is only one when there is at
3. Mixed Solidarity – solidarity among debtor or one least two debtors
creditors and debtors creditor or creditors
The others are The others are
Passive Active not liable in case proportionately
Solidarity Solidarity of insolvency of liable in case of
Solidarity Solidarity of one debtor insolvency of one
of debtors creditors debtor
Any one of Any one of
the debtors can the creditors may Characteristics
be made liable for demand fulfillment
the fulfillment of of the entire 1. Demand must be made to all the joint
the entire obligation. debtors.
obligation, with 2. The creditor must proceed against all the
the consequent joint debtors, because the compliance of
right to demand the obligation is possible only if all of the
from the others joint debtors would act together.
their 3. If one of the debtors is insolvent, the
corresponding other(s) shall not be liable for his share.
shares in the 4. If one of the debtors cannot comply, the
liability. obligation is converted into monetary
It is in the Its essential consideration. One who is ready and
nature of a feature is that of willing to comply will pay his proportionate
mutual guaranty. mutual share, and the other not willing shall pay
representation. his share plus damages when his financial
condition improves.
5. If there is more than one creditor, delivery
Joint Indivisibility must be made to all, unless one is
authorized to receive for the others.
A joint indivisible obligation is one in
which the object or prestation is indivisible,
not susceptible of division; while the tie

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RULES observed. In such case the contract is called

1. GIVES RISE TO INDEMNITY FOR DAMAGES: a suretyship. (2047)
(1224) Distinguishing Suretyship from
LIABLE (1224)
1. A surety does not have an actual loan of
*AS ALREADY STATED, IN A JOINT INDIVISIBLE his own, solidary debtor is also liable for
OBLIGATION, A SUIT FOR SPECIFIC PERFORMANCE his own debt in addition to that of others.
MUST BE DIRECTED AGAINST ALL THE DEBTORS 2. After paying the debt, a surety has right to
AND IF ANY ONE OF THEM IS NOT WILLING TO collect from principal debtor, while a
FULFILL, THE ACTION SHALL BE CONVERTED INTO solidary debtor has right to collect from
LIABLE FOR THEIR RESPECTIVE SHARES WHILE THE 3. Most importantly, an extension of time
UNWILLING DEBTOR SHALL PAY HIS SHARE PLUS would benefit the surety and such would
DAMAGES FOR HE ALONE SHALL BE LIABLE FOR not benefit solidary co-debtors who did not
DAMAGES, THE OTHER DEBTORS BEING WILLING know or consent to an extension of time.
TO DELIVER. (Villa v. Garcia Bosque) (Jurado)

3. Prejudiced only by collective acts of ALL

creditors / enforced against ALL debtors Rights of solidary creditor/s
1. Do only what is useful to others, nothing
*Article 1209 contemplates an prejudicial to co-creditors. (1212)
obligation which is joint as to the parties but 2. There is no assignment without the
indivisible as to compliance. The concurrence consent of others (1213)
of all the creditors is necessary for demanding
compliance due to the indivisibility of the *The consent of the other co-solidary
obligation. The same is inversely true as creditors is necessary because they may not
regards the debtors. The concurrence of all trust the new creditor who would thereby be
the creditors is also necessary for acts which entitled to collect the entire debt. (Jurado)
are prejudicial. But an act beneficial to all like
interruption of prescription may be performed 3. Anyone has right to receive the payment;
by one of the creditor. but the first one to demand receives the
payment. (1214)
Inchausti & Co. v. Yulo
Six brothers and sisters admitted solidary *Payment made by the debtor to any
liability. Gregorio Yulo was sued for one of the solidary creditors extinguishes the
payment of entire indebtedness. obligation. If one of the solidary creditors
However, solidary debtors Francisco, demands payment of the debt, he has the
Manuel and Carmen entered into a right to do so and payment must be made to
compromise agreement with plaintiff. him. (Jurado)
Gregorio was ordered to pay the part of
the reduced indebtedness, only insofar as
such is demandable. Greg Yulo was Quiombing v. CA
solidarily liable, he benefited from the Only one of the solidary creditors filed
remission, but not the extension of the a suit for collection against the solidary
period for payment, thus there was debtors. The debtors moved for the dismissal
partial demandability. of the suit on the ground that the other
solidary creditors should have been included
in the case. The Supreme Court rejected the
Debtor/ Passive Solidarity Distinguished dismissal of the suit invoking Art. 1212 and
From Suretyship stated that recovery of the contract price was
surely a useful act and can be done even by
By guaranty a person, called the guarantor, one solidary creditor. Furthermore, the
binds himself to the creditor to fulfill the question as to who should sue was a personal
obligation of the principal debtor in case the issue among the solidary creditors.
latter should fail to do so. A solidary guaranty
is suretyship. N.B. As to who sues for recovery of
the obligation should not matter to the
Suretyship debtors as they are wholly obligated to either
one of the solidary creditors.
If a person binds himself solidarily with the
principal debtor, the provisions of Section 4,
Chapter 3, Title I of this Book shall be 4. Action against and payment by solidary

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a. Proceed against anyone, some, or all of Imperial Insurance, Inc. v. David

them simultaneously (1216) Husband and wife bound themselves
b. Demand against one: not obstacle for solidarily in favor of obligee for a sum of
demand against another, unless paid money and when the husband died, the
(1216) obligee demanded payment from the wife who
resisted payment, claiming that the obligee’s
claim is barred by it’s failure to file a claim in
Effect of Loss or Impossibility the intestate proceeding of the deceased
husband. The Supreme Court ruled that the
1. Without any fault of any of the debtors: obligee can properly claim from the wife as
Extinguishment (1221) the nature of the obligation is solidary.
2. With fault of any of the debtors: all are N.B. If obligation were solidary, the
responsible but co-debtors have a right entire obligation is demandable from anyone
against negligent debtor of the solidary obligors.
3. Due to a fortuitous event, but with delay:
all are responsible with right of action
against the negligent debtor Right of action against solidary co-debtors

Rules of Payment in Solidary Obligations The payor of the obligation may claim
from each co-debtor his share of the debt with
1. The creditor may proceed against any one interest, unless paid before debt is due or
of the solidary debtors or some or all of demandable (with no interest). (1217)
them as long as the debt has not been
fully collected. (1316) V. DIVISIBLE & INDIVISIBLE
2. Payment made by one of the solidary OBLIGATIONS
debtors extinguishes the obligation.
(1217) The indivisibility of an obligation does not
3. If two or more debtors offer to pay, the necessarily give rise to solidarity. Nor does
creditor may choose which offer to accept. solidarity of itself imply indivisibility. (1210)
4. The paying debtor may ask for DIVISIBLE OBLIGATIONS
reimbursement with interest from his co-
debtors. (1217) Those obligations whose objects are capable
5. The share of the insolvent debtor shall be of partial performance in their delivery or
borne by all his co-debtors, pro-rata. performance.
6. There shall be no reimbursement if the INDIVISIBLE OBLIGATIONS
solidary debtor paid AFTER the obligation
has prescribed or has become illegal. Those obligations whose objects are not
(1218) capable of partial fulfillment in delivery or
Rights of Solidary Debtor

1. Set-up all defenses Test for Distinction

2. Right of action against solidary co-debtors
The determining factor is the purpose of the
Set-up Defenses (1222) obligation or the intention of the parties and
NOT the possibility or impossibility of partial
a. Defenses derived from the nature of prestation. (1225)
the obligation available to all debtors
as a defense to compliance with the Presumptions
entire obligation;
b. Defenses personal to the debtor like 1. INDIVISIBLE: DEFINITE THINGS, NOT PARTIAL
minority, insanity, civil interdiction, PERFORMANCE
etc. not available to the other debtors 2. DIVISIBLE: PARTIAL PERFORMANCE; BY DAYS
so as to free the latter from their OF WORK, METRICAL UNITS, OR ANALOGOUS
liability for their own shares in the THINGS
c. Defenses that pertain to his co- WHAT IS INTENDED BY THE PARTIES
debtor(s), like the existence of a period 4. NOT TO DO: DETERMINED BY CHARACTER OF
or condition available only as regards PRESTATION
the share of such co-debtor(s) for
solidarity may exist even if the debtors
are bound under different periods or

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a. LEGAL INDIVISIBILITY - BY LAW, AS WHEN 1. Funcion coercitiva or de garantia - to

TAXES ARE TO BE PAID IN FULL BECAUSE THE ensure performance of the obligation
LAW DOES NOT PERMIT PAYING THE SAME BY 2. Funcion liquidatoria - to substitute a
INSTALLMENTS penalty for the indemnity of damages and
b. CONVENTIONAL INDIVISIBILITY - BY the payment of interest in case of non-
BY THEM TO TREAT THE THINGS AS 3. Funcion estrictamente penal - to punish
INDIVISIBLE EVEN IF THEY ARE ACTUALLY the debtor for the non-fulfillment of his
DIVISIBLE obligation.
OF THE OBLIGATION Penalty as a Substitute for Damages
Quantum Meruit Principle
General Rule
Divisible Obligation
The penalty fixed by the parties is a
If only partially performed, the obligor compensation or substitute for damages in
can enforce his right in proportion to the case of breach.
services performed.
Indivisible Obligation 1. When there is a stipulation to the contrary
2. When the debtor is sued for refusal to pay
If obligor fails to perform the work the agreed penalty
completely, he cannot recover on this 3. When the debtor is guilty of fraud
principle because in indivisible obligations,
partial performance is equivalent to non- Distinguishing a Penal Clause from a
performance. Condition

This principle allows recovery of the Penal Clause Condition

reasonable value of the work done regardless There is No obligation
of any agreement as to the value. It entitles obligation through through an
the party to “as much as he reasonably an accessory accessory
deserves” as distinguished from quantum May become Is never
valebant or “to as much as what is reasonably demandable in demandable
worth”. The sellement of claim under this default of an
principle requires application of judgment and unperformed
discretion and cannot be adjusted by simple obligation and
arithmetical process. (F.F. Manocop v. CA, sometimes jointly
GR 122196, Jan. 15, 1997) with it
Kinds of Penal Clause
In an obligation with a penal clause, the
penalty shall substitute the indemnity for  As to origin
damages and the payment of interest in case Legal penal clause – provided by law
of non-compliance, if there is no stipulation to Conventional penal clause – provided for
the contrary. A penal clause is an accessory by stipulation of the parties
undertaking to assume greater liability in case
of breach.  As to its purpose
Compensatory penal clause – the penalty
Principal and Accessory Obligations takes the place of damages
Punitive penal clause – the penalty is
PRINCIPAL OBLIGATION imposed merely as a punishment for
That which can stand by itself and does not
depend upon other obligations for its validity  As to its dependability or effect
and existence. Subsidiary or alternative penal clause –
only the penalty can be enforced
ACCESSORY OBLIGATION Joint or cumulative penal clause – both the
principal obligation and the penal
That which contains an accessory undertaking clause can be enforced (Manresa)
to pay a previously stipulated indemnity in
case of breach of the principal prestation
intended primarily to induce its fulfillment.

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Effect of Nullity of the Penal Clause With respect to parties

If only the penal clause is void, the principal This must be made by the proper party to the
obligation remains valid and demandable. proper party
(1) Payor
Nullity of the Principal Obligation
(a) Payor - the one performing, he can be
If the principal is void, the penal clause is also the debtor himself or his heirs or
void because the penal clause cannot stand assigns or his agent, or anyone
along without the principal obligation to which interested in the fulfillment of the
it is subordinated. obligation; can be anyone as long as it
is with the creditor's consent
However, if the nullity of the principal
obligation is due to the debtor’s fault who (b) 3RD person pays/performs - only the
acted in bad faith, and by reason of which the creditor's consent;
creditor suffered damages on equitable
grounds, the penalty may be enforced. If performance is done also with
debtor's consent - he takes the place
Chapter IV: Extinguishment of of the debtor. There is subrogation
except if the 3rd person intended it to
Obligations be a donation

Classification of the Modes of (c) 3rd person pays/performs with consent

Extinguishment of Obligations of creditor but not with debtor's
consent, the repayment is only to the
1. Novation extent that the payment has been
2. Compensation beneficial to debtor
3. Merger or confusion
4. Remission or condonation (2) Payee
5. Payment or performance
6. Loss of the thing due (a) payee - creditor or obligee or successor
7. Prescription in interest of transferee, or agent
8. Rescission
9. Fulfillment of the Resolutory condition (b) 3rd person - if any of the ff. concur:
10. Annulment
i. it must have redounded to the
I. PAYMENT OR PERFORMANCE obligee's benefit and only to the
extent of such benefit
The delivery of money, the delivery of the
thing (other than money), the doing of an act, ii. it falls under art 1241, par 1,2,3 -
or not doing of an act. the benefit is total so, performance
is total
(c) anyone in possession of the credit - but
The elements of payment are analyzed into: will apply only if debt has not been
1. persons- who may pay to whom payment previously garnished
may be made
2. thing or object in which the payment must Payment made to an Incapacitated Person
3. the cause thereof It is valid when:
4. the mode or form thereof 1. The incapacitated person kept the thing
5. the place and time in which it must be delivered, or
6. the imputation of expenses occasioned by 2. Insofar as the payment has been beneficial
it to him
7. the special parts which may modify the
same and the effects they generally Payment to a 3rd party not authorized, valid if
produce proved & only to the extent of benefit

Requisites for Valid Payment Presumed if:

1. After payment, 3rd person acquires the
With respect to prestation itself: creditor’s rights
(1) identity 2. Creditor ratifies payment to 3rd person
(2) integrity or completeness 3. By creditor’s conduct, debtor has been led
(3) indivisibility to make the payment (estoppel)

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Payment made in good faith to a person in Mercantile documents, payable to order:

possession of credit shall release debtor only when cashed or impaired by
Requisites: The delivery of promissory notes payable to
1. Payment by debtor must be made in good order, or bills of exchange or other mercantile
faith documents shall produce the effect of
2. Creditor must be in possession of the payment only when they have been cashed,
credit & not merely the evidence of or when through the fault of the creditor they
indebtedness have been impaired. (1249)

With respect to time and place of *Impairment contemplates an issuance by a

payment third party, otherwise, creditor can just ask
from creditor again but without interest as
Where payment should be made there was no delay. (Jurado, Balane)

1. In the place designated in the obligation During encashment: action in abeyance.

In the meantime, the action derived from the
2. If there is no express stipulation and the original obligation shall be held in the
undertaking is to deliver a specific thing – abeyance. (1170)
at the place where the thing might be at
the moment the obligation was constituted
Extraordinary inflation/ deflation
3. In other cases – in the place of the
domicile of the debtor Stipulation (1250)

Time of payment Currency value at time of agreement.

This is the time stipulated by the parties. In case an extraordinary inflation or deflation
of the currency stipulated should supervene,
Effect of payment the value of the currency at the time of the
The obligation is extinguished. establishment of the obligation shall be the
basis of payment, unless there is an
Except in an order to retain the debt. agreement to the contrary. (1250)

Substantial Performance Unless it is otherwise stipulated, the
extrajudicial expenses required by the
1. Attempt in Good Faith to perform without payment shall be for the account of the
willful or intentional departure debtor. With regard to judicial costs, the
2. Deviation is slight Rules of Court shall govern. (1247)
3. Omission/Defect is technical or
4. Must not be so material that intention of Special Rules/Forms Of Payment –
parties is not attained
Application of Payments – the designation
Effect of Substantial performance in good faith of the debt which payment shall be made, out
of 2 or more debts owing the same creditor:
1. Obligor may recover as though there has
been strict and complete fulfillment, less 1. May be made according to the stipulation
damages suffered by the obligee of the parties or application of party given
2. Right to rescind cannot be used for slight benefit of period;
breach 2. For the application to be valid, it must be
debtor’s choice or w/ consent of debtor

Currency Requisites for the Application of payment

1. Various debts of the same kind
Stipulated (1249) 2. Same debtor
3. Same creditor
Philippine legal tender 4. All debts must be due
The payment of debts in money shall be made
in the currency stipulated, and if it is not Exception: there may be application of
possible to deliver such currency, then in the payment even if all debts are not yet due
currency which is legal tender in the if:
Philippines. (1249) a) parties so stipulate
b) when application of payment is made
by the party for whose benefit the term
has been constituted

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5. Payment is not enough to extinguish all Cession/Assignment in Favor of creditors

debts The process by which debtor transfer all the
properties not subject to execution in favor of
How the application is made: creditors is that the latter may sell them and
1. Debtor makes the designation thus, apply the proceeds to their credits;
2. If not, creditor makes it by so stating extinguish up to amount of net proceeds (
in the receipt that he issues, unless unless w/ contrary stipulation )
there is cause for invalidating the
contract Kinds
3. If neither the debtor nor creditor has
made the application or if the 1. Legal – governed by the insolvency law
application is not valid, then 2. Voluntary – agreement of creditors
application, is made by operation of
law Requisites for voluntary assignment

Who makes the application: a) More than 1 debt

General Rule: Debtor b) More than 1 creditor
Exception: Creditor – c) Complete or partial insolvency of debtor
d) Abandonment of all debtor’s property not
a) Debtor without protest accepts receipt exempt from execution
in which creditor specified expressly e) Acceptance or consent on the part of the
and unmistakably the obligation to creditors
which such payment was to be applied
*The debtor in this case renounced the
right of choice a) Creditors do not become the owner; they
are merely assignees with authority to sell
b) When monthly statements were made
by the bank specifying the application b) Debtor is released up to the amount of the
and the debtor signed said statements net proceeds of the sale, unless there is a
approving the status of her account as stipulation to the contrary
thus sent to her monthly by the bank
c) Creditors will collect credits in the order of
In case no application has been made preference agreed upon, or in default of
agreement, in the order ordinarily
1. Apply payment to the most onerous established by law
2. If debts are of the same nature and
burden, application shall be made to all Consignation
Tender -the act of offering the creditor what
Dacion en Pago is due him together with a demand that the
creditor accept the same (When creditor
The mode of extinguishing an obligation refuses w/o just cause to accept payment, he
whereby the debtor alienates in favor of the becomes in mora accepiendi & debtor is
creditor property for the satisfaction of released from responsibility if he consigns the
monetary debt; extinguish up to amount of thing or sum due)
property unless w/ contrary stipulation;
Consignation – the act of depositing the
A special form of payment because 1 element thing due with the court or judicial authorities
of payment is missing: IDENTITY. whenever the creditor cannot accept or
refuses to accept payment; generally requires
*Governed by the law on sales prior tender of payment

Conditions for a valid dacion: Requisites of valid consignation:

1) If creditor consents, for a sale 1. Existence of valid debt

presupposes the consent of both 2. Consignation was made because of some
parties legal cause - previous valid tender was
unjustly refused or under circumstances
2) If dacion will not prejudice the other making previous tender exempt.
creditors 3. Prior Notice of Consignation had been
given to the person interested in
3) If debtor is not judicially declared performance of obligation (1st notice)
insolvent 4. Actual deposit/Consignation with proper
judicial authorities

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5. Subsequent notice of Consignation (2nd In obligations to deliver a generic thing

General Rule: Not extinguished
Effects: Extinguishment of obligation Exceptions:
a) if the generic thing is delimited
(1) Debtor may ask judge to order b) if the generic thing has already been
cancellation of obligation segregated
(2) Running of interest is suspended c) monetary obligation
(3) Before creditor accepts or before judge
declares consignation has been properly In obligations to do
made, obligation remains (debtor bears
risk of loss at the meantime, after General Rule: Debtor is released when
acceptance by creditor or after judge prestation becomes legally or physically
declares that consignation has been impossible without fault on part of debtor
properly made – risk of loss is shifted to
Consignation w/o prior tender
Judicial determination of extent is necessary.
This is allowed when:
a) when loss is significant – may be enough
a. creditor absent or unknown/ does not to extinguish obligation
appear at the place of payment b) when loss insignificant – not enough to
b. incapacitated to receive payment at the extinguish obligation
time it is due
c. refuses to issue receipt w/o just cause
d. 2 or more creditor claiming the same right WHEN THING IS LOST IN THE
e. title of obligation has been lost
Presumption: Loss due to debtor’s fault
II. LOSS OF THE THING DUE Exception: natural calamity, earthquake,
flood, storm
This is partial or total which includes the
impossibility of performance. REBUS SIC STANTIBUS

CONCEPT A doctrine which holds that an agreement is

valid only if the same conditions prevailing at
Meaning of loss of the thing time of contracting continue to exist at the
time of performance.
1) When the object perishes (physically)
2) When it goes out of commerce Effect of Difficulty Beyond Parties’
3) When it disappears in such a way that its Contemplation
existence is unknown or it cannot be
recovered Rule: The obligor may be released in whole or
in part.
When is there impossibility of Requisites:
performance (a) The event or change could not have been
foreseen at the time of the execution of
1) Physical impossibility the contract
2) Legal impossibility : (b) The performance is extremely difficult, but
not impossible (because if it is impossible,
it is extinguished by impossibility)
EFFECT OF TOTAL LOSS (c) The event was not due to the act of any of
the parties
In obligations to deliver a specific thing (d) The contract is for a future prestation

General Rule: Extinguished

a) Debtor is at fault OF THE DEBT
b) Debtor is made liable for fortuitous event
because of a provision of law, contractual An act of pure liability by virtue of which the
stipulation or the nature of the obligation obligee, without receiving any price or
requires assumption of risk on part of equivalent, renounces the enforcement of the
debtor obligation, as a result of which it is

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extinguished in its entirety or in part or aspect IV. CONFUSION OR MERGER OF RIGHTS

of the same to which the remission refers.
It is the merger of the characteristics of the
*It is the gratuitous abandonment of the creditor and the debtor in one and the same
creditor of his rights. person by virtue of which the obligation is
a. There must be an agreement
b. There must be a subject matter (object of a. It must take place between the principal
the remission, otherwise there would be debtor & the principal creditor only
nothing to condone) b. The merger must be clear & definite
c. Cause of consideration must be liberality c. The obligation involved must be the same
Essentially gratuitous, an act of liberality & identical – one obligation only
d. Parties must be capacitated and must d. Revocable, if for any reason the confusion
consent; requires acceptance by obligor- ceases, the obligation is revived
implied in mortis causa & express inter
e. Formalities of a donation are required in V. COMPENSATION
the case of an express remission
f. Revocable – subject to rule on inofficious Extinguishment in the concurrent amount of
donation (excessive, legitime is impaired) the obligation of those persons who are
& ingratitude & condition not followed reciprocally debtors and creditors of each
g. Obligation remitted must have been other.
demandable at the time of remission
h. Waivers or remission are not to be Requisites
presumed generally
1. Both parties must be mutually creditors
Forms Extent Kinds and debtors - in their own right and as
Express – total Principal – accessory principals
formalities also condoned 2. Both debts must consist in sum of money
of donation or if consumable, of the same kind or
Implied – partial accessory – principal quality
conduct is still outstanding 3. Both debts are due
sufficient 4. Both debts are liquidated & demandable
accessory obligation 5. Neither debt must be retained in a
of pledge – controversy commenced by 3rd person &
condoned; communicated w/ debtor (neither debt is
presumption only, garnished)
Implied Condonation
1. Legal – by operation of law; as long as 5
1. voluntary delivery – presumption; when requisites concur- even if unknown to
evidence of indebtedness is w/ debtor – parties & if payable in diff places;
presumed that it is a voluntary delivery by indemnity for expense of exchanges; even
creditor; rebuttable if not equal debts – only up to concurring
2. effect of delivery of evidence of 2. Conventional – agreement of parties is
indebtedness: conclusion that debt is enough, forget other requirement as long
condoned as both consented
3. Facultative – one party has choice of
Voluntary Delivery of Private Document claiming/opposing – one who has benefit
of period may choose to compensate
1. if in the hands of joint debtor – only his - not all requisites are present
share is condoned - depositum; commodatum; criminal
2. if in the hands of solidary debtor - whole offense; claim for future support; taxes
debt is condoned 4. Judicial – set off; upon order of the court;
Tacit: Voluntary destruction of instrument by needs pleading & proof; all requirements
creditor; made to prescribe w/o demanding must concur except liquidation
5. Total – when 2 debts are of the same
6. Partial – when 2 debts are not of the same

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Effect of assignment of credit to 3rd b. Implied – When the old and new
person; can there still be compensation obligation are incompatible with each
other on every point
1. if made after compensation took place –
no effect; compensation already perfected Forms of Substitution by Debtors
2. if made before compensation took place –
depends 1. Expromision
a) with consent of debtor – debtor is 2. Delegacion
estopped unless he reserves his right &
gave notice to assignee
b) with knowledge but w/o consent of EXPROMISION
debtor – compensation may be set up
as to debts maturing prior to It is effected with the consent of the creditor
assignment at the instance of the new debtor even
c) w/o knowledge – compensation may without the consent or even against the will of
be set-up on all debts prior to his the old debtor.

VI. NOVATION 1. Initiative for substitution must emanate

from the new debtor
The substitution or change of an obligation by 2. Consent of the creditor to the substitution
another, resulting in its extinguishment or
modification, either by changing its object or Kinds
principal conditions, or by substituting another
in place of the debtor, or by subrogating a 3rd 1. Substitution with the knowledge and
person in the rights of the creditor. consent of the old debtor
2. Substitution without the knowledge or
It is the total or partial extinction of an against the will of the old debtor (Jurado)
obligation through the creation of a new one
which substitutes it. Effect of Payment by the New Debtor

Requisites 1. Substitution with the knowledge and

consent of the old debtor
1. The existence of a previous valid
obligation The new debtor is entitled to
2. The intention or agreement and capacity reimbursement of the entire amount paid
of the parties to extinguish or modify the and subrogation.
3. The extinguishment or modification of the 2. Substitution without the knowledge or
obligation against the will of the old debtor
4. The creation of a valid new obligation (Tiu
Siuco v. Habana, 45 Phil. 707, 1924) The new debtor is entitled to
reimbursement in so far as beneficial to
Purpose of Novation the old debtor with no right if subrogation

1. The original obligation is extinguished Effect of Insolvency of the New Debtor

2. A new obligation is created
There are two prevailing views:
Kinds of Novation
1. The new debtor’s insolvency or non-
1. As to essence fulfillment of the obligation shall not revive
a. Objective/ Real – This refers to the the original debtor’s liability to the creditor
change in either the cause, object or whether the substitution is effected with or
principal without the knowledge or against the will
of the original debtor. (Tolentino)
b. Subjective/ Personal – This refers to
the substitution of the person of the 2. If the substitution was effected with the
debtor or to the subrogation of the 3rd knowledge and consent of the original
person in the rights of the creditor debtor, the new debtor’s insolvency or
c. Mixed non-fulfillment of the obligation shall
2. As to its form/ constitution revive the original debtor’s liability to the
a. Express – When it is declared in creditor.
unequivocal terms that the old
obligation is extinguished by a new one
which substitutes the same

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It is effected with the consent of the creditor Legal subrogation cannot be presumed.
at the instance of the old debtor, with the
concurrence of the new debtor. Exception

Requisites 1. The creditor pays another creditor who is

preferred, without the debtors knowledge
1. Initiative for substitution must emanate 2. A third person is not interested in the
from the old debtor obligation pays with the express or tacit
2. Consent of the new debtor approval of the debtor
3. Acceptance by the creditor 3. Even without the debtor’s knowledge, a
person interested in the fulfillment of the
Effect of Payment by the New Debtor obligation pays without prejudice to the
effects of confusion as to the latter’s share
The new debtor is entitled to reimbursement
of the entire amount paid and subrogation.
Magdalena Estates, Inc. v.
Effect of Insolvency of the New Debtor Spouses Rodriguez
The mere fact that the creditor accepts
The creditor can sue the old debtor when the payments from a third person who agreed to
insolvency was prior to the delegation and assume the obligation, when there is no
publicly known or when the old debtor knew agreement that the first debtor shall be
of such insolvency at the time he delegated released from the responsibility does not
the obligation. constitute obligation.

Effects of Novation to Accessory

Kabankalan Sugar Co., Inc v.
When the principal obligation is extinguished Josefa Pacheco
in consequence of a novation, accessory When an easement of right of way is one of
obligation must subsist only insofar as they the principal conditions of a contract, and the
may benefit 3rd persons who did not give duration of said easement is specified, the
consent. reduction of said period in a subsequent
contract, wherein the same obligation is one
Effects of Condition in Novation of the principal conditions, constitutes a
novation and to that extent extinguishes the
1. If the original obligation was subject to former contract.
condition, the new obligation shall be
under the same condition, unless it is
otherwise stipulated. Aquintey v. Spouses Tibong
2. If the new obligation and the old obligation (511 SCRA 414, G.R. No. 166704, 2006)
are subject to different conditions: The transfer of rights takes place upon
a. If the conditions are compatible, both perfection of the contract, and ownership of
must be fulfilled otherwise there is the right, including all appurtenant accessory
nothing to novate. rights, is acquired by the assignee who steps
b. If the conditions are incompatible, the into the shoes of the original creditor as
latter should be fulfilled. subrogee of the latter from that amount, the
ownership of the right is acquired by the
Kinds of Subrogation assignee. The law does not require any
formal notice to bind the debtor to the
1. Conventional assignee, all that the law requires is
2. Legal knowledge of the assignment. Even if the
debtor had not been notified, but came to
CONVENTIONAL know of the assignment by whatever means,
the debtor is bound by it. If the document of
That which takes place by agreement of the assignment is public, it is evidence even
parties. This kind of subrogation requires the against a third person of the facts which gave
intervention and consent of 3 persons: the rise to its execution and of the date of the
original creditor, the new creditor and the latter. The transfer of the credit must
debtor. therefore be held valid and effective from the
moment it is made to appear in such
LEGAL instrument, and third persons must recognize
it as such, in view of the authenticity of the
That which takes place without the agreement document, which precludes all suspicion of
but by operation of law because of certain fraud with respect to the date of the transfer
acts. or assignment of the credit.

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TITLE II: CONTRACTS 2. Stipulation Pour Autrui – a stipulation in

favor of a third person
Chapter I: General Provisions
Definition a. The stipulation must only be a part of
the contract; it must not be the whole
A contract is a meeting of the minds between of the contract.
two persons whereby one binds himself, with b. The contracting parties clearly and
respect to the other, to give something or to deliberately conferred the favor to the
render some service. (1305) third person.
c. The 3rd person must have
A contract is a juridical convention manifested communicated his acceptance to the
in legal form, by virtue of which, one or more obligor before its revocation by the
persons bind themselves in favor of another original parties.
or others, or reciprocally, to the fulfillment of d. Neither of the contracting parties bears
a prestation to give, to do, or not to do. the legal representation or
authorization of a 3rd party.
e. The favorable stipulation should not be
Principal Characteristics (AMOR = love) conditioned or compensated by any
kind of obligation.
1. Autonomy
2. Mutuality 3. When a third person induces another to
3. Obligatory Force and Consensuality violate his contract. (1314)
4. Relativity
AUTONOMY  Existence of a valid contract
This is the freedom or liberty to stipulate.  Knowledge of the contract by a 3rd
General Rule  Interference by the 3rd person without
legal justification or excuse
The parties are free to stipulate anything they
may deem convenient. 4. Accion Directa - the right of a creditor to
sue on a contract entered into by his
Except debtor. (1313)

As long as the stipulation are not contrary to: 5. Third persons who come into possession of
1. Law the object of the contact creating real
2. Morals rights (1312)
3. Good Customs
4. Public Order 6. Accion Pauliana (see Obligations > Breach
5. Public Policy (1306) of Obligation > Remedies of Creditors)

Performance or validity of the contract binds Kinds of Contracts
both parts and it cannot be left to the will of
one of them. (1308) 1. According to perfection
Consensual – a contract that is perfected
OBLIGATORY FORCE & CONSENSUALITY by agreement of the parties
Contracts are perfected by mere consent and Real – a contract that is perfected by
from that moment, the parties are bound, not delivery
only to the fulfillment of what has been Formal/ Solemn – a contract perfected by
expressly stipulated but also to all the conformity to essential formalities,
consequences which, according to their e.g., donation
nature, may be in keeping with good faith,
usage and law. 2. According to degree of importance
a. Principal – a contract that can stand
General Rule b. Accessory – a contract that is
Contracts take effect only between parties, dependent upon another contract for
their assigns and their heirs. its existence and validity
c. Preparatory – means through which
Exceptions other (future) contracts may be made;
1. Obligations arising from contract which are not an end in itself, e.g. Agency
not transmissible by their nature,
stipulation, or provision of law.

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3. According to subject matter Chapter II: Essential Requisites

a. Involving things, such as sale or barter
b. Involving rights or credits, such as Essential Requisites of a Contract
usufruct or assignment of credits (Always COCa-Cola)
c. Involving services such as agency,
carriage, etc. 1. Consent of the contracting parties;
2. Object certain which is the subject matter
4. According to name of the contract;
a. Nominate – a contract that has its own 3. Cause of the obligation which is
individuality and id regulated by a established. (1318)
special provision of law, i.e., pledge,
mortgage, etc.
b. Innominate – a contract that lacks
individuality and is not regulated by a
special provision of law
Consent is manifested by the meeting of the
- Do ut des – I give that you may give
offer and the acceptance upon the thing and
- Do ut facias – I give that you may do
the cause which are to constitute the contract.
- Facio ut des – I do that you may give
The offer must be certain and the acceptance
- Facio ut facias – I do that you may
absolute. A qualified acceptance constitutes a
counter-offer. (1319)
*facio/ facias – do
*do - give
5. According to cause
1. Plurality of subject
a. Onerous – a contract with an exchange
2. Capacity
of valuable considerations
3. Intelligence and free will
b. Gratuitous – a contract with no
4. Manifestation of intent of parties
consideration received in exchange for
5. Cognition by the other party
what has been given
6. Conformity of manifestation and cognition
c. Remuneratory – a contract in which
something (a prestation) is given for a
*We follow the theory of cognition and not
benefit or service performed without
the theory of manifestation. Under our civil
any legal obligation to do so
law, the offer and acceptance concur only
when the offeror comes to know, and not
6. According to nature of obligation
when the offeree merely manifests his
produced or number of parties
a. Unilateral – a contract with only one
Auto Contract
party with an obligation, e.g.
Commodatum and Mutuum
A contract made by a person acting in
b. Bilateral – a contract in which both
another’s name in one capacity and his own
parties are required to render
name or that of another in another capacity.
reciprocal prestations
Collective Contract
7. According to risk
a. Commutative – a contract where
A contract where the law authorizes that the
equivalent values are given by both
will of the majority binds a minority to an
parties, i.e., sale, barter and lease
agreement, notwithstanding the opposition of
b. Aleatory – a contract where fulfillment
the latter.
is dependent upon chance, such as
Contract of Adhesion
Stages of a Contract (PPC)
A contract in which one party has already
prepared a form of a contract, containing
1. Preparation or conception – bargaining
stipulations desired by him and he simply asks
point, negotiation
the other party to agree to them if he wants
2. Perfection or birth – the meeting of
to enter into the contract.
minds regarding the subject matter and
the cause of the contract.
Offer and Acceptance
3. Consummation or death – parties have
performed their respective obligations and
the contract is put to an end
A proposal made by one party to another to
enter into a contract.

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Elements of Valid Offer Advertisements as Offers

1. Definite Business advertisements of things for sale are

2. Complete not definite offers, but mere invitations to
3. Intentional make an offer, unless it appears otherwise.
Mode of acceptance as stipulation
Advertisements for bidders are simply
The person making the offer may fix the time, invitations to make proposals, and the
place, and manner of acceptance, all of which advertiser is not bound to accept the highest
must be complied with. (1321) or lowest bidder, unless the contrary appears.
Agent as offerer

An offer made through an agent is accepted ACCEPTANCE

from the time acceptance is communicated to The manifestation by the offeree of his assent
him. (1322) to the terms of the offer.

Withdrawal of Offer (1324) Elements of Valid Acceptance

General Rule: An offer or proposal may be 1. Unequivocal

withdrawn as long as the offeror has no 2. Unconditional
knowledge that the offeree has already
accepted the offer. *If qualified, constitutes a counter-offer.

Exception: When the option is founded upon Forms of Acceptance (1320)

a consideration, as something paid or
promised, the offer cannot be withdrawn. 1. Express Acceptance - may be oral or
When does the offer become ineffective? 2. Implied Acceptance - may be inferred
from the act or conduct of the offeree.
1. Death, civil interdiction, insanity or
insolvency of either party before Period for Acceptance
acceptance is conveyed
2. Express or implied revocation of the offer 1. stated fixed period in the offer
by the offeree 2. no stated fixed period
3. Qualified or conditional acceptance of the a) offer is made to a person present –
offer acceptance must be made immediately
4. Subject matter becomes illegal or b) offer is made to a person absent –
impossible before acceptance is acceptance may be made within such
communicated time that, under normal circumstances,
an answer can be received from him
Rule on Complex Offers
*Acceptance may be revoked before the
1. When offers are interrelated - the offeror finds out about it.
contracted can only be perfected if all the
offers are accepted. *Amplified Acceptance - under certain
circumstances, a mere amplification on the
2. When offers are not interrelated – the offer must be understood as an acceptance of
single acceptance of each offer results in a the original offer, plus a new offer which is
perfected contract unless the offeror has contained in the amplification.
made it clear that one is dependent upon
the other and acceptance of both is Withdrawal of Acceptance
1. First View (Manresa): It is to be observed
*An Offer inter praesentes must be accepted that although the offeror is not bound until
immediately. If the parties intended that he learns of the acceptance, the same
there should be an express acceptance, the thing can not be said of the offeree who,
contract will be perfected only upon from the moment he accepts, loses the
knowledge by the offeror of the express power to retract such acceptance since the
acceptance by the offeree of the offer. An right to withdraw between the time of the
acceptance which is not made in the manner acceptance and its communication is a
prescribed by the offeror is not effective, but right which is expressly limited by law to
it takes the form of a counter-offer which the the offeror.
offeror may accept or reject. (Malbarosa vs.
CA, G.R. No. 12576, 2003)

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*To justify the inequality between the *A unilateral promise to buy or sell, if not
contracting parties, Manresa said that supported by a distinct consideration, may be
since the offeree is the first to know about withdrawn but may not be done whimsically
the concurrence of will if the parties, as a or arbitrarily; the right of the grantee here is
consequence, the obligation, as far as he damages and not specific performance. (Ang
is concerned, must also commence earlier. Yu v. CA, 1994)

2. Second View (Tolentino): Acceptance may *An option clause in order to be valid and
be revoked before it comes to the enforceable must indicate the definite price at
knowledge of the offeror because in such a which the person granting the option is willing
case, there is still no meeting of minds, to sell, contract can be enforced and not only
since the revocation has cancelled or damages. (Equatorial v. Mayfair, 24 SCRA
nullified the acceptance which thereby 483)
ceased to have any legal effect.
*The right of first refusal may be enforced by
Acceptance by Letter or Telegram (1319) specific performance. (Paranaque Kings v.
CA, 1997)
When is it binding?
Acceptance is binding only from the time the Persons Who Cannot Give Valid Consent
offerer had knowledge of it. to a Contract

Where is it binding? 1. Unemancipated Minors

2. Insane or demented persons
he contract is presumed to have been entered 3. Deaf-mutes or illiterates who do not know
into in the place where the offer was made. how to write
4. Intoxicated persons and hypnotized
Theories on Acceptance of an Offer by persons
Telegram 5. A person under Mistake since a mistake
1. Manifestation Theory – a contract is may deprive one of intelligence. (1331)
perfected from the moment the 6. A person induced by Fraud (dolo
acceptance is declared or made causante) (1338)
2. Expedition Theory – contract is perfected
from the moment the acceptance is *Dolus bonus (usual exaggerations in
declared or made even if not made known trade) are not in themselves fraudulent
to the offeror
3. Cognition Theory – perfected from the Article 1330
moment the acceptance comes to the A contract where consent is given through
knowledge of the offeror; adopted in mistake, violence, intimidation, undue
Philippines influence, or fraud is voidable.
4. Reception Theory – the contract is
perfected from the moment the offeror Rule on Contracts Entered into By Minors
receives the letter
General Rule
*Revocation of Acceptance: The acceptance These contracts are considered voidable.
by the offeree may be revoked before
reaching the knowledge of the offeror. If it is Exceptions
revoked, the contract is not perfected if the 1. Minor is Estopped for having
notice of revocation reaches the offeror before misrepresented his age and misled the
the letter of acceptance is received. other party (when age is close to age of
majority as in the Mercado v. Espiritu &
*In unilateral promises, when offer is made to Sia Suan v. Alcantara cases)
the public, specific acceptance is not required 2. They were contracts for Necessities such
to bind the obligor. as food, but here the persons who are
bound to give them support should pay
OPTION therefor Upon reaching age of majority –
they ratify the same
It is a preparatory contract in which one party 3. They were entered unto by a Guardian
grants to the other, for a fixed period to and the court having jurisdiction had
decide whether or not to enter into a principal approved the same right of first refusal
contract. may be enforced by specific performance
4. Voluntary fulfillment of a natural
*An option may be withdrawn anytime before obligation provided that the minor is
acceptance is communicated but not when between 18-21 years of age.
supported by a consideration other than 5. Contracts of Life, health or accident
purchase price: option money insurance taken on the life of the minor.

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Rule on Contracts Entered into by Insane or Distinguishing Incapacity from Disqualification

Demented Persons or Those Who Were
Intoxicated or Hypnotized Incapacity Disqualification
Restrains the Restrains the very
Contracts entered into during a lucid interval exercise of the right itself
are valid. Contracts agreed to in a state of right to contract
drunkenness or during a hypnotic spell are May still enter Absolutely
voidable. (1328) into contract disqualified
through parent,
The incapacity declared in article 1327 is guardian or legal
subject to the modifications determined by representative
law, and is understood to be without prejudice Based upon Based upon public
to special disqualifications established in the subjective policy and morality
laws. (1329) circumstance of
certain person
Rule on Contracts Entered into under Mistake Contracts Contracts entered
entered into are into are void
In order that mistake may invalidate consent, merely voidable
it should refer to the substance of the thing
which is the object of the contract, or to those Causes which Vitiate Freedom to Consent
conditions which have principally moved one
or both parties to enter into the contract. 1. Violence
(1331) 2. Intimidation
3. Mistake
As to identity or qualifications: Mistake as 4. Fraud
to the identity or qualifications of one of 5. Undue Influence
the parties will vitiate consent only when
such identity or qualifications have been VIOLENCE
the principal cause of the contract. There is violence when in order to wrest
consent, serious or irresistible force is
Correction only if: A simple mistake of employed.
account shall give rise to its correction.
(1331) Requisites
- Error must be excusable, not caused a. Irresistible physical force
by negligence b. Such force is the determining cause for
- Error must be a mistake of fact, not of giving consent
Exceptions on Mistake: There is intimidation when one of the
1. Illiterate party (1332) contracting parties is compelled by a
2. Knowledge of doubt, contingency, risk reasonable and well-grounded fear of an
affecting the object of the contract (1333) imminent and grave evil upon his person or
3. Mutual error (1334) property, or upon the person or property of
his spouse, descendants or ascendants, to
give his consent. (1335)
Disqualified to Enter into Contracts
Contracts consented into by the following are a. One of the parties is compelled to give his
void: consent by a reasonable and well-
1. those under civil interdiction grounded fear of an evil
2. hospitalized lepers b. The evil must be imminent and grave.
3. prodigals c. The evil must be unjust.
4. deaf and dumb who are unable to read d. The evil must be the determining cause for
and write the party upon whom it is employed in
5. those who by reason of age, disease, entering into the contract.
weak mind and other similar causes,
cannot without outside aid, take care of Reluctant Consent
themselves and manage their property, A contract is valid even though one of the
becoming an easy prey for deceit and parties entered into it against his wishes and
exploitation desires or even against his better judgment.
Contracts are also valid even though they are
entered into by one of the parties without
hope of advantage or profit. (Martinez v.
Hongkong and Shanhai Bank, 15 Phil

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It is not only a wrong conception of the thing *Caveat Emptor – dealer’s talk, buyer
but also the lack of knowledge with respect to beware
it. (Manresa)
ii. Opinions: A mere expression of an
General Rule opinion does not signify fraud, unless
Mistake does not vitiate consent. made by an expert and the other party
has relied on the former's special
Exception: knowledge. (1341)
Mutual error as to the effect of an agreement
when the real purpose of the parties is iii. Misrepresentation by a third person
frustrated. does not vitiate consent, unless such
misrepresentation has created
Requisites: substantial mistake and the same is
a. Mistake must be with respect to the mutual. (1342)
legal effect of an agreement
b. It must be mutual iv. Misrepresentation made in good faith is
c. The real purpose of the parties must not fraudulent but may constitute
have been frustrated error. (1343)

There is fraud when, through insidious words General Rule on Fraud
or machinations of one of the contracting
parties, the other is induced to enter into a In order that fraud may make a contract
contract which, without them, he would not voidable, it should be serious and should not
have agreed to. (1338) (Dolo Causante) have been employed by both contracting
parties. (1344)
Failure to disclose facts
1. There must be a deliberate intent to
When there is a duty to reveal them, as when deceive or to induce
the parties are bound by confidential 2. The other party relied on this untrue
relations, constitutes fraud. (1339) statement.
3. Incidental fraud only obliges the person
Kinds of Fraud employing it to pay damages. (1344)

Fraud in the perfection of the contract Fraud by Third Persons

1. Dolo Causante (1338) – renders the General Rule: Fraud by a 3rd person does not
contract voidable vitiate consent and merely gives tise to action
2. Dolo Incidente (1344) – holds the guilty for damages.
party liable for damages
Except when:
(see Obligations > Effect of Obligations > 1. There is collusion by one of the parties
Breach of Obligation > Fraud) o fthe contract with the 3rd person.
2. There is misrepresentation that has
Fraud in the performance of an obligation created a substantial mistake and the
(1170) same is mutual.

Requisites of Fraud UNDUE INFLUENCE

a. Insidious words or machinations are There is undue influence when a person takes
employed improper advantage of his power over the will
b. It must be serious of another, depriving the latter of a
c. It induced another party to enter into a reasonable freedom of choice. (Coso v.
contract Fernandez Deza, 42 Phil. 595)
d. It is not employed by both parties nor by
3rd parties Simulated Contracts

Exceptional Cases SIMULATION

These are not fraud unless Dolo Causante Simulation is the declaration of a fictitious
or substantial/ principal condition: intent manifested deliberately and by
agreement by the parties in order to produce,
i. Usual exaggerations in trade, when the for the purpose of deceiving others, the
other party had an opportunity to know appearance of a transaction which does not
the facts, are not in themselves exist or which is different from the true
fraudulent. (1340) agreement.

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Kinds of Simulated Contracts III. CAUSA

a. Absolute – There is no intention on the It is the “why” of the contract, the essential
part of the contracting parties to be bound reason which impels the parties to enter into
by the contract at all. The contract is the contract.
merely fictitious making it void from
beginning Requisites

b. Relative – There is an intention by the 1. It must Exist at the time of the celebration
parties to be bound but they conceal their of the contract.
true agreement 2. It must be Real (true).
3. It must be Licit or lawful.
*Relative simulated contracts are binding
when: Distiguishing Cause from Motive
i. It does not prejudice 3rd persons
ii. It is not contrary to law, morals, good Cause Motive
customs, public order or public policy. Direct and most Indirect and remote
proximate reason
reason of a
II. OBJECT contract
Objective and Psychological or
The thing, right or service which is the subject juridical reason purely personal
matter of the obligation arising from the reason
contract. Cause is always Motive differs for
same for each each contracting
Requisites (PLDT-Ctc) contracting party party
The legality or The legality or
a) The prestation must be within the illegality of illegality of motive
Commerce of man, either existing or in cause affects the does not affect the
potency existence or existence or validity
b) It must be Licit or not contrary to law, validity of the of the contract.
morals, good customs, public order, or contract
public policy.
c) It must be Possible or real. Causes according to type of contract
d) It must be Determinate as to its kind or
determinable without the need to enter a. In onerous contracts: the cause is
into a new contract. (1349) understood to be, for both parties, the
e) It must be Transmissible. prestation or promise of a thing or service
by the other.
Those which Cannot be the Object of a
Contract (Fruits In Cream – IOI) b. In remuneratory contracts: the cause is
the service or benefit remunerated
1. Future inheritance (1347)
2. Impossible things or services cannot be c. Of Pure beneficence: liberality of donor or
the object of contracts. (1348) benefactor (1350)
3. Contrary to law morals, good customs,
public order, and public policy. d. In accessory contracts: the cause is
4. Indeterminable as to their kind. identical with the cause of the principal
5. Outside the commerce of men contract, that is the loan from which it
6. Intransmissible rights derives lide and existence.

Future Things Effects of Cause

May be interpreted in two ways (Manresa): When Cause Renders Contract Void:
1. Conditional Contract – the thing must 1. Absence of cause/ unlawful cause (1352)
come into existence otherwise the contract 2. False unless to prove another cause
is void. (1353)
2. Aleatory Contract – One of the parties
bears the risk of loss that the thing might  Want of Cause – There is a total lack or
not come into existence. absence of consideration.
 Illegal Cause – The cause is contrary to
law, morals, good custom, public
order, or public policy.
 False Cause – The cause is stated but
that cause is not true.

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When Cause Renders Contract Voidable: EXCEPTION

Unless specified by law, lesion or inadequacy 1. Law requires contract to be in some form
will not invalidate a contract as long as there for validity - donation and acceptance of
has been no fraud, mistake or undue real property
influence. (1355) 2. Law requires contract to be in some form
to be enforceable - Statute of Frauds;
Cause Effect contract is valid but right to enforce
Absence of VOID - produce no legal cannot be exercised; need ratification to
causa effect be enforceable
VOID - produce no legal 3. Law requires contract to be in some form
Illegality of effect for convenience - contract is valid and
causa enforceable, needed only to bind 3rd
Falsity of causa VOIDABLE – party must parties
prove that cause is
untruthful; presumption Ex: public documents needed for the ff:
of validity but rebuttable a. Contracts w/c object is creation,
transmission or reformation of real
rights over immovables
stated in burden of proof is on the
b. Cession, repudiation, renunciation
contract person assailing its
of hereditary rights/CPG
c. Power to administer property for
d. Cession of action of rights
proceeding from an act appearing
1. when there is fraud,
in a public inst.
mistake or undue
e. All other docs where amount
influence, or
involved is in excess of 500 ( must
2. when the parties
be written even private docs )
intended a donation or
some other contract
When is Form Important

Chapter III: Form of Contracts 1. When form is required for Validity

2. When form is required for Enforceability
Form is a manner in which a contract is 3. When form is required for Convenience
executed or manifested
FOR VALIDITY (formal/solemn contracts)
Forms of Contracts
1. Donation of real property must be in a
a. Informal – may be entered into whatever public instrument, otherwise, void.
form as long as there is consent, object & 2. Donation of personal property exceeding
cause P5,000 must be in writing, otherwise void.
3. Contribution of a partner of immovable
b. Formal – required by law to be in certain property in a partnership, must be in
specified form such as: donation of real writing, otherwise void.
property, stipulation to pay interest, 4. Authority of agent to sell land must be in
transfer of large cattle, sale of land thru writing, otherwise sale is void.
agent, contract of antichresis, contract of
partnership, registration of chattel
mortgage, donation of personal prop in Dievas v. Acuna
excess of 5,000 Articles 1357 and 1358 do not require a
particular form to validate or enforce a
c. Real – creation of real rights over contract, only to ensure its efficacy, so that
immovable property – must be written after its existence have been admitted, the
party bound may be compelled to execute
necessary document.
General Rule


Even where the contract has not been reduced
Contracts are valid and enforceable in to the required form, it is still valid and
whatever form, even if orally entered into, as binding as far as contracting parties are
long as all essential requisites are present. concerned. Consequently both presuppose the
(1356) existence of a valid and enforceable contract.

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FOR ENFORCEABILITY other power which has for its object an act
(Statute of Frauds) appearing or which should appear in a
(1403, par. 2, in relation to 1405) public document, or should prejudice a
third person;
Those that do not comply with the Statute of 4. Cession of actions from public documents
Frauds as set forth in this number. - The cession of actions or rights
proceeding from an act appearing in a
In the following cases an agreement hereafter public document.
made shall be unenforceable by action,
unless the same, or some note or Private Document
memorandum, thereof, be in writing, and
subscribed by the party charged, or by his 1. All other contracts where the amount
agent; evidence, therefore, of the agreement involved exceeds five hundred pesos must
cannot be received without the writing, or a appear in writing, even a private one. But
secondary evidence of its contents: sales of goods, chattels or things in action
are governed by articles, 1403, No. 2 and
1. An agreement that by its terms is not to 1405. (1358)
be performed within a year from the 2. Donations exceeding five thousand pesos
making thereof; (Art. 748)
2. A special promise to answer for the debt, 3. Giving authority to an agent for the Sale
default, or miscarriage of another; of land. (Art. 1874)
3. An agreement made in consideration of 4. Agreements on payment of interests on
marriage, other than a mutual promise to contracts of loan (art. 1956)
marry; 5. Antichresis (Art. 2134)
4. An agreement for the sale of goods,
chattels or things in action, at a price not Electronic Commerce Act (RA 8792)
less than five hundred pesos, unless the
buyer accept and receive part of such 1. Amends Art. 1403 by including computers
goods and chattels, or the evidences, or and their networks as means against
some of them, of such things in action or frauds and proof of contracts
pay at the time some part of the purchase
money; but when a sale is made by 2. Expressly provides for the application of
auction and entry is made by the the same principles as normal contracts
auctioneer in his sales book, at the time of but adds more presumptions wherein such
the sale, of the amount and kind of should be known by both parties.
property sold, terms of sale, price, names
of the purchasers and person on whose Presumptions from rules of court and
account the sale is made, it is a sufficient doctrines as applied to e-mail, internet,
memorandum; and networks
5. An agreement of the leasing for a longer
period than one year, or for the sale of  Receipt of letter – presumed to come to
real property or of an interest therein; knowledge regardless of actual reading
6. A representation as to the credit of a third  Regular functions have been carried out
person. regularly

FOR CONVENIENCE *However, special presumptions for

computers were made into law by the e-
Public Document commerce act.

The following must appear in a public In IBM v. Sec. of Labor, the Supreme Court
document: (1358) ruled that Local Area Network or LAN is not
1. Real rights over immovable property, sales sufficient notice for firing an employee since
of real property - Acts and contracts which there was still no law providing for such
have for their object the creation, presumptions. Remember that presumptions
transmission, modification or facilitate transactions and rules of evidence by
extinguishment of real rights over being pragmatic about it. Otherwise, proving
immovable property; sales of real property the propositions as found in the presumptions
or of an interest therein a governed by would be impossible and uncertain. E.g. no
articles 1403, No. 2, and 1405; one can really prove that person A read his e-
2. Hereditary rights and conjugal property of mail, thus it is more practical to presume that
gains -The cession, repudiation or he had done so given proof of his receiving
renunciation of hereditary rights or of such e-mail.
those of the conjugal partnership of gains
3. Power to administer property, other
powers to act, prejudice 3rd persons - The
power to administer property, or any

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Provisions of the E-commerce Act Chapter IV: Reformation of

1. Present laws apply; electronic documents Contracts
are valid like ordinary ones.
2. In using ATM of network banks, (Arts.1359-1369)
transaction is final at actual debiting;
presumption of authority upon the holder Reformation is that remedy in equity by
of the ATM card. means of which a written instrument is made
3. Electronic devices are valid or construed so as to express or conform to
4. Message from originator presumed to be the real intention of the parties when some
made by the owner thereof regardless of error or mistake has been committed.
who actually typed it. There must be
express statement that he (owner) would Requisites for Reformation
be held liable for that ID. Receiver has
right to assume his actual authorship. 1. Meeting of minds.
5. On agreements of acknowledgement of 2. True intention not expressed within the
receipt, such as actual reply of the instrument by reason of mistake, fraud,
receiver, or notice by the server. If no inequitable conduct, or accident.
reply or acknowledgement, presumption 3. There is clear and convincing proof of
that it was not sent. mistake, accident, fraud, simulation or
6. As to time, presumption is at the time inequitable conduct.
such was received by the designated
information system or server, or that of Causes for Reformation (MUMO – ghost)
the receiver. This also requires a system
of acknowledgement of receipt. 1. Mutual: instrument includes something
7. Web sites – require proof or w/c should not be there or omit what
acknowledgement of visiting the site. This should be there
is usually done by pre-program procedure a. Mutual
like requirement of registration before b. Mistake of fact
being given access. c. clear and convincing proof
8. On security of signature – electronic d. causes failure of instrument to express
imprints, identification systems, and codes true intention

Tip: Always have a hard copy back-up 2. Unilateral

Acts Required for the Perfection of a. one party was mistaken
Certain Contracts b. other either acted fraudulently or
inequitably or knew but concealed
REGISTRATION c. party in good faith may ask for
Chattel Mortgages (art. 2140)
b. Sales or Transfers of Large Cattle 3. Mistake by 3rd persons – due to
(Cattle Registration act) ignorance, lack of skill, negligence , bad
faith of drafter, clerk, typist
(for Real contracts) 4. Others specified by law – to avoid
frustration of true intent
Pledge - In addition to the requisites
prescribed in article 2085, it is necessary, Special Cases
in order to constitute the contract of
pledge, that the thing pledged be placed in 1. Mutual mistake - When a mutual mistake
the possession of the creditor, or of a third of the parties causes the failure of the
person by common agreement. (2093) instrument to disclose their real
agreement, said instrument may be
Deposit- A deposit is constituted from the reformed.
moment a person receives a thing
belonging to another, with the obligation 2. Mistaken party, not fraudulent - If one
of safely keeping it and of returning the party was mistaken and the other acted
same. If the safekeeping of the thing fraudulently or inequitably in such a way
delivered is not the principal purpose of that the instrument does not show their
the contract, there is no deposit but some true intention, the former may ask for the
other contract. (1962) reformation of the instrument.

3. Mistaken party, other knew of mistake and

non-conformity of instrument – When one
party was mistaken and the other knew or
believed that the instrument did not state

100% UP LAW UP BAROPS 2008 Page 157 of 325


their real agreement, but concealed that EVIDENT INTENTION PREVAILS OVER
fact from the former, the instrument may LETTER
be reformed.
If the words appear to be contrary to the
4. Ignorance, lack of skill, negligence, or bad evident intention of the parties, the latter
faith of drafter, clerk, typist of instrument shall prevail over the former.
- When through the ignorance, lack of
skill, negligence or bad faith on the part of CONTEMPORANEOUS AND SUBSEQUENT
the person drafting the instrument or of ACTS CONSIDERED
the clerk or typist, the instrument does
not express the true intention of the In order to judge the intention of the
parties, the courts may order that the contracting parties, their contemporaneous
instrument be reformed. and subsequent acts shall be principally
5. Agreement on pledge or mortgage but
with instrument on sale – If two parties GENERAL TERMS IN ACCORDANCE TO
agree upon the mortgage or pledge of real INTENTION
or personal property, but the instrument
states that the property is sold absolutely However general the terms of a contract may
or with a right of repurchase, reformation be, they shall not be understood to
of the instrument is proper. comprehend things that are distinct and cases
that are different from those upon which the
Prescriptive period: 10 years from the date parties intended to agree.
of the execution of the instrument.
When No Reformation Is Allowed (SWV-
E, Sisters With Voices-E) If some stipulation of any contract should
(Arts. 1366-1367) admit of several meanings, it shall be
understood as bearing that import which is
1. Simple donations inter vivos wherein no most adequate to render it effectual.
condition is imposed;
3. When the real agreement is Void.
4. Estoppel – When one of the parties has The various stipulations of a contract shall be
brought an action to enforce the interpreted together, attributing to the
instrument, he cannot subsequently ask doubtful ones that sense which may result
for its reformation. from all of them taken jointly. (1374)


Reformation may be ordered at the instance
of: Words which may have different significations