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2016 University of the Philippines

College of Law
Bar Reviewer

2ND WEEK

CIVIL
LAW

UP Law Bar Operations Commission 2016


UP Law Bar Operations Commission 2016
UP LAW
BAR OPS 2016
TABLE OF CONTENTS
V. RIGHTS AND OBLIGATIONS OF
PERSONS AND FAMILY RELATIONS 1 SPOUSES 37

I. EFFECT AND APPLICATION OF A. LIVE TOGETHER 37


LAW S 2 B. FAMILY DOMICILE 37
C. SUPPORT 37
A. WHEN LAWS TAKE EFFECT 2 D. MANAGEMENT OF FAMILY LIFE 37
B. IGNORANCE OF THE LAW 2 E. EFFECT OF NEGLECT OF DUTY 37
C. RETROACTIVITY OF LAWS 2 F. EXERCISE OF PROFESSION 37
D. MANDATORY OR PROHIBITORY LAWS 2 G. USE OF SURNAME 38
E. WAIVER OF RIGHTS 3
F. REPEAL OF LAWS 3 VI. PROPERTY RELATIONS OF
G. JUDICIAL DECISIONS 3 SPOUSES 39
H. DUTY TO RENDER JUDGMENT 3
I. PRESUMPTION AND APPLICABILITY OF A. MARRIAGE SETTLEMENTS 39
CUSTOM 3 B. DONATIONS BY REASON OF
J. LEGAL PERIODS 4 MARRIAGE 40
K. APPLICABILITY OF PENAL LAWS 4
L. BINDING EFFECT 4 VII. FAMILY RELATIONS 54

II. PERSONS AND PERSONALITY 5 THE FAMILY AS AN INSTITUTION 54


EFFECTS OF FAMILY RELATIONSHIP ON
A. CONCEPT OF PERSON AND LEGAL DISPUTES 54
PERSONALITY 5 THE FAMILY HOME 54
B. COMMENCEMENT AND TERMINATION A. WHAT CONSTITUTES THE FAMILY
OF PERSONALITY 6 HOME? 54
C. DEATH 6 B. WHO MAY CONSTITUTE THE FAMILY
D. JURIDICAL PERSONS 7 HOME? 55
E. RESTRICTIONS ON CIVIL CAPACITY 7 C. WHEN IS IT DEEMED CONSTITUTED? 55
F. DOMICILE AND RESIDENCE OF PERSON 11 D. BENEFICIARIES 55
E. WHEN TERMINATED 56
III. FAMILY CODE 11 F. WHEN IT MAY BE SOLD 56
G. RIGHTS OF CREDITORS 56
A. EFFECT AND RETROACTIVITY 11
B. REPEAL AND AMENDMENT 11 VIII. PATERNITY AND FILIATION 57

IV. MARRIAGE AND PERSONAL A. LEGITIMATE CHILDREN 57


RELATIONSHIP BETW EEN SPOUSES 12 B. PROOF OF FILIATION 59
C. ILLEGITIMATE CHILDREN 60
A. CONCEPT OF MARRIAGE 12 D. LEGITIMATED CHILDREN 62
B. AGREEMENTS PRIOR TO MARRIAGE 12
C. REQUISITES 12 IX. ADOPTION 63
C.1. KINDS OF REQUISITES AND
EFFECTS OF NON-COMPLIANCE 12 A. WHO CAN ADOPT 63
D. LAW GOVERNING VALIDITY OF B. WHO CAN BE ADOPTED (SEC. 8) 64
MARRIAGES ABROAD 16 C. PRE-ADOPTION PROCEDURES 65
E. COMMON-LAW MARRIAGES 17 D. ADOPTION PROCEDURES 66
F. VOID AND VOIDABLE MARRIAGES 18 E. WHO MAY NOT ADOPT/ BE ADOPTED 67
G. THE LAW ON SEPARATION OF THE F. RIGHTS OF AN ADOPTED CHILD 67
SPOUSES 30 G. RESCISSION OF ADOPTION 68
H. LEGAL SEPARATION 30 H. RECTIFICATION OF SIMULATED BIRTH 68
I. RA 8043 THE LAW ON INTER-
UP LAW BOC TABLE OF CONTENTS CIVIL LAW

COUNTRY ADOPTION 69 XVII. ENTRIES IN THE CIVIL


REGISTER 84
X. SUPPORT 70
A. CIVIL CODE 84
A. WHAT IT COMPRISES 70 ART. 413. ALL OTHER MATTERS
B. WHO ARE OBLIGED 70 PERTAINING TO THE REGISTRATION OF
C. SUPPORT PENDING LITIGATION ON CIVIL STATUS SHALL BE GOVERNED BY
THE STATUS OF MARRIAGE 71 SPECIAL LAWS. 84
D. AMOUNT 72 B. RA 9048 AS AMENDED BY RA 10172 84
E. WHEN DEMANDABLE [ART. 203] 72 C. RULE 108, RULES OF COURT 86
F. OPTIONS 72
G. ATTACHMENT 72 PROPERTY 88
XI. PARENTAL AUTHORITY AND I. CHARACTERISTICS 89
CUSTODY OF CHILDREN 72

PARENTAL AUTHORITY INCLUDES [ART.


II. CLASSIFICATION 89
209]: 72
TENDER YEARS PRESUMPTION: 73 A. HIDDEN TREASURE 89
WHO ARE DISADVANTAGED CHILDREN: 74 B. BASED ON MOBILITY
C. BASED ON OWNERSHIP/ RIGHTS-
XII. EMANCIPATION 75 HOLDER 93
XII. SUMMARY JUDICIAL D. BASED ON CONSUMABILITY 95
PROCEEDINGS UNDER FC 75 E. BASED ON SUSCEPTIBILITY TO
SUBSTITUTION 95
A. PROCEDURAL RULES PROVIDED FOR F. BASED ON THE CONSTITUTION 95
IN THIS TITLE SHALL APPLY TO [ART. 238]: 75
B. SEPARATION IN FACT 75
C. INCIDENTS INVOLVING PARENTAL
III. OWNERSHIP 96
AUTHORITY 76
A. DEFINITION AND CONCEPT 96
XIII. CARE AND EDUCATION OF B. TYPES OF OWNERSHIP 96
CHILDREN 77 C. RIGHT IN GENERAL 96
C.1. RIGHTS INCLUDED IN
XIV. SURNAMES 78 OWNERSHIP 96
C.2. BUNDLE OF RIGHTS 96
A. SURNAMES OF CHILDREN 78 C.3. PROTECTING PROPERTY 96
B. WIFE AFTER AND DURING MARRIAGE 78 D. LIMITATIONS ON OWNERSHIP 98
C. CONFUSION AND CHANGE OF NAMES 79
D.1. GENERAL LIMITATIONS 98
XV. RULES GOVERNING PERSONS
D.2. SPECIFIC LIMITATIONS 99
W HO ARE ABSENT 79
IV. ACCESSION 101
A. PROVISIONAL MEASURES IN CASE OF
ABSENCE [ARTS. 381-383] 79 A. CLASSIFICATION OF ACCESSION 101
B. DECLARATION OF ABSENCE [ARTS. A.1. WITH RESPECT TO
384-389] 81 IMMOVABLES 101
C. ADMINISTRATION OF THE PROPERTY A.2. WITH RESPECT TO MOVABLE
OF THE ABSENTEE [ARTS. 387-389] 81 PROPERTY 107
D. PRESUMPTION OF DEATH [ARTS. 390-
392] 82
V. QUIETING OF TITLE 109
XVI. FUNERALS 83
A. IN GENERAL 109
B. PURPOSE 109
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C. NATURE: QUASI IN REM 109 ACTS OF MAJORITY WHICH ARE


D. JUSTIFICATIONS TO BRING AN PREJUDICIAL TO MINORITY [NCC
ACTION TO QUIET TITLE 109 492(3)] 114
E. THE ACTION TO QUIET TITLE DOES F. IMPLICATIONS OF CO-OWNERS
NOT APPLY 109 RIGHT OVER HIS IDEAL SHARE 114
F. REQUIREMENTS 109 G. RULES 115
G. QUIETING OF TITLE V. REMOVAL OF G.1. ON RENUNCIATION OF SHARE
CLOUD 110 (DIFFERENT FROM
H. PRESCRIPTION 110 RENUNCIATION OF CO-
OWNERSHIP) 115
VI. CO-OWNERSHIP 111 G.2. REPAIRS FOR PRESERVATION 115
G.3. EMBELLISHMENTS OR
A. REQUISITES 111 IMPROVEMENTS 115
B. WHAT GOVERNS CO-OWNERSHIP 111 H. TERMINATION OR 115
C. CHARACTERISTICS OF CO- EXTINGUISHMENT 115
OWNERSHIP 111 H.1. TOTAL DESTRUCTION OF
D. SOURCES OF CO-OWNERSHIP 112 THING OR LOSS OF THE
D.1. LAW 112 PROPERTY CO-OWNED 115
D.2. CONTRACT 112 H.2. MERGER OF ALL INTERESTS
D.3. INTESTATE SUCCESSION 113 IN ONE PERSON 116
D.4. TESTAMENTARY DISPOSITION H.3. ACQUISITIVE PRESCRIPTION 116
OR DONATION INTER VIVOS 113 H.4. PARTITION OR DIVISION 116
D.5. BY FORTUITOUS EVENT OR BY
CHANCE 113 VII. POSSESSION 117
D.6. BY OCCUPANCY 113
E. RIGHTS OF CO-OWNERS 113 A. CONCEPT OF POSSESSION 117
E.1. RIGHT TO SHARE IN THE B. ESSENTIAL REQUISITES OF
BENEFITS AS WELL AS THE POSSESSION 117
CHARGES [NCC 485] 113 C. DEGREES OF POSSESSION 118
E.2. RIGHT TO USE THE THING D. CASES OF POSSESSION 118
OWNED IN COMMON [NCC 486] 113 D.1. POSSESSION FOR ONESELF,
E.3. RIGHT TO BRING AN ORDER IN OR POSSESSION EXERCISED IN
EJECTMENT [NCC 487] 113 ONES OWN NAME AND
E.4. RIGHT TO COMPEL OTHER CO- POSSESSION IN THE NAME OF
OWNERS TO CONTRIBUTE TO THE ANOTHER [NCC 524] 118
EXPENSES OF PRESERVATION D.2. POSSESSION IN THE
AND TO THE TAXES [NCC 488] 113 CONCEPT OF AN OWNER, AND
E.5. RIGHT TO REPAIR [NCC 489] 114 POSSESSION IN THE CONCEPT OF
E.6. RIGHT TO OPPOSE A HOLDER WITH THE OWNERSHIP
ALTERATIONS 114 BELONGING TO ANOTHER [NCC
E.7. RIGHT TO FULL OWNERSHIP 525] 118
OF HIS PART AND OF THE FRUITS D.3. POSSESSION IN GOOD FAITH
AND BENEFITS PERTAINING AND POSSESSION IN BAD FAITH
THERETO 114 [NCC 526] 119
[NCC 493] 114 POSSESSOR IN GOOD FAITH 119
E.8. RIGHT TO PARTITION [NCC E. ACQUISITION OF POSSESSION 120
494] 114 E.1. WAYS OF ACQUIRING
E.9. RIGHT TO REDEMPTION [NCC POSSESSION [NCC 531] 120
1619] 114 E.2. BY WHOM MAY POSSESSION BE
E. 10. RIGHT TO PROTEST AGAINST ACQUIRED [NCC 532] 120
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UP LAW BOC TABLE OF CONTENTS CIVIL LAW

F. WHAT DO NOT AFFECT C.3. BY OBJECT OF USUFRUCT 129


POSSESSION [NCC 537] 120 C.4. BY THE EXTENT OF THE
G. EFFECTS OF POSSESSION 121 USUFRUCT 130
G.1. RIGHTS OF A POSSESSOR IN D. RIGHTS AND OBLIGATIONS OF
GOOD FAITH 121 USUFRUCTUARY 130
G.2. OBLIGATIONS OF A D.1. RIGHTS AS TO THE THING AND
POSSESSOR IN GOOD FAITH 122 ITS FRUITS 130
G.3. RIGHTS OF A POSSESSOR IN D.2. RIGHTS AS TO THE LEGAL
BAD FAITH 122 RIGHT OF USUFRUCT ITSELF 133
G.4. OBLIGATIONS OF A D.3. OBLIGATIONS AT THE
POSSESSOR IN BAD FAITH 122 BEGINNING OF THE USUFRUCT OR
G.5. RIGHT TO BE PROTECTED IN BEFORE EXERCISING THE
HIS 122 USUFRUCT 133
POSSESSION [NCC 539] 122 D.4. DURING THE USUFRUCT 135
H. REIMBURSEMENT FOR EXPENSES D.5. AT THE TIME OF THE
POSSESSOR IN GOOD/BAD FAITH TERMINATION OF THE USUFRUCT 136
[NCC 546-552] 123 E. SPECIAL CASES OF USUFRUCT 136
H.1. NECESSARY EXPENSES 123 E.1. USUFRUCT OVER A PENSION
H.2. USEFUL EXPENSES 123 OR A PERIODICAL INCOME [NCC
H.3. EXPENSES FOR LUXURY 123 570] 136
I. LOSS OR UNLAWFUL DEPRIVATION E.2. USUFRUCT OF PROPERTY
OF A MOVABLE PROPERTY 124 OWNED IN COMMON [NCC 582] 136
I.1. POSSESSION OF MOVABLE E.3. USUFRUCT CONSTITUTED ON
ACQUIRED IN GOOD FAITH (IN A FLOCK OR HERD OF LIVESTOCK
CONCEPT OF OWNER) IS [NCC 591] 137
EQUIVALENT TO TITLE [NCC 559] 124 E.4. USUFRUCT OVER FRUIT
REQUISITES OF TITLE 124 BEARING TREES AND SHRUBS
I.2. PERIOD TO RECOVER [NCC AND WOODLANDS [NCC 575-577] 137
1140, 1132, 1133] 125 E.5. USUFRUCT ON A RIGHT OF
I.3. FINDER OF LOST MOVABLE ACTION TO RECOVER PROPERTY
[NCC 719-720] 125 [NCC 578] 137
J. EFFECTS OF POSSESSION IN THE E.6. USUFRUCT ON MORTGAGED
CONCEPT OF AN OWNER 125 PROPERTY [NCC 600] 137
K. LOSS/TERMINATION OF E.7. USUFRUCT OVER AN ENTIRE
POSSESSION [NCC 555] 127 PATRIMONY [NCC 598] 137
K.1. ABANDONMENT 127 E.8. USUFRUCT OVER
K.2. ASSIGNMENT, EITHER DETERIORABLE PROPERTY 138
GRATUITOUS OR ONEROUS 127 E.9. USUFRUCT OVER
K.3. POSSESSION BY ANOTHER 127 CONSUMABLE PROPERTY [NCC
L. RULES FOR LOSS OF MOVABLES 127 574] 138
M. KINDS OF ANIMALS 127 F. RIGHTS OF THE OWNER 138
F.1. AT THE BEGINNING OF THE
VIII. USUFRUCT 128 USUFRUCT 138
F.2. DURING THE USUFRUCT 138
A. OBJECTS OF USUFRUCT 128 G. EXTINGUISHMENT/ TERMINATION
B. CHARACTERISTICS 128 [NCC 603] 139
C. CLASSIFICATION 128 G.1. DEATH OF USUFRUCTUARY 139
C.1. BY ORIGIN 128 G.2. EXPIRATION OF PERIOD OR
C.2. BY PERSON ENJOYING THE FULFILLMENT OF RESOLUTORY
RIGHT OF USUFRUCT 129 CONDITION IMPOSED
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ONUSUFRUCT BY PERSON (VOLUNTARY EASEMENTS) 146


CONSTITUTING USUFRUCT 139 E.4. BY PRESCRIPTION 146
G.3. MERGER OF RIGHTS OF F. LEGAL EASEMENTS 146
USUFRUCT AND NAKED G. VOLUNTARY EASEMENTS 146
OWNERSHIP IN ONE PERSON 139 H. RIGHTS AND OBLIGATIONS OF
G.4. RENUNCIATION OF OWNERS OF DOMINANT AND
USUFRUCT 140 SERVIENT ESTATES 147
G.5. EXTINCTION OR LOSS OF H.1. RIGHTS OF DOMINANT ESTATE
PROPERTY [NCC 608] 140 OWNER 147
G.6. TERMINATION OF THE RIGHT H.2. OBLIGATIONS OF DOMINANT
OF PERSON CONSTITUTING THE ESTATE OWNER 147
USUFRUCT 140 H.3. RIGHTS OF THE SERVIENT
G.7. PRESCRIPTION 141 ESTATE OWNER 148
H. CONDITIONS NOT AFFECTING H.4. OBLIGATIONS OF SERVIENT
USUFRUCT 141 ESTATE OWNER 148
H.1. EXPRORPIATION OF THING IN I. EXTINGUISHMENT OF EASEMENTS 148
USUFRUCT [NCC 609] 141 I.1. MERGER 148
H.2. BAD USE OF THING IN I.2. BY A NON-USER FOR 10 YEARS 149
USUFRUCT [NCC 610] 141 I.3. BY IMPOSSIBILITY OF USE 149
I.4. EXPIRATION OF THE TERM OR
IX. EASEMENT 142 FULFILLMENT OF RESOLUTORY
CONDITION 149
A. CHARACTERISTICS 142 I.5. RENUNCIATION OF THE OWNER
B. CLASSIFICATION 143 OF THE DOMINANT ESTATE 149
B.1. AS TO RECIPIENT OF BENEFITS 143 I.6. OTHER CAUSES NOT MENTION
B.2. AS TO CAUSE OR ORIGIN 143 IN NCC 631 149
B.3. AS TO ITS EXERCISE [NCC 615] 144 J. KINDS OF PRIVATE LEGAL
B.4. AS INDICATION OF ITS EASEMENTS 150
EXISTENCE [NCC 615] 144 J.1. THOSE ESTABLISHED FOR THE
B.5. BY THE OBJECT OR USE OF WATERS OR RELATING TO
OBLIGATION IMPOSED [NCC 616] 144 WATERS 150
C. GENERAL RULES 144 J.2. RIGHT OF WAY 151
D. RELEVANCE OF CLASSIFICATIONS 144 J.3. PARTY WALL 153
D.1. DETERMINES WHAT J.4. EASEMENT OF LIGHT AND VIEW 155
EASEMENTS CAN BE ACQUIRED J.5. DRAINAGE OF BUILDINGS 157
BY PRESCRIPTION 144 J.6. INTERMEDIATE DISTANCES 157
D.2. DETERMINES WHAT J.7. LATERAL AND SUBJACENT
EASEMENTS CAN BE ACQUIRED SUPPORT 158
BY TITLE 144
D.3. DETERMINES HOW TO X. NUISANCE 158
COMPUTE THE PRESCRIPTIVE
PERIOD [NCC 621] 145 A. NUISANCE V. TRESPASS 158
D.4. DETERMINES HOW B. NUISANCE V. NEGLIGENCE 159
EASEMENT IS LOST BY C. CLASSES 159
PRESCRIPTION [NCC 631 (2)] 145 C.1. ACCORDING TO NATURE 159
E. CREATION 145 C.2. ACCORDING TO SCOPE OF
E.1. BY TITLE OR BY SOMETHING INJURIOUS EFFECTS 159
EQUIVALENT TO A TITLE 145 D. DOCTRINE OF ATTRACTIVE
E.2. BY LAW (LEGAL EASEMENTS) 146 NUISANCE 160
E.3. BY WILL OF THE OWNERS E. LIABILITY IN CASE OF NUISANCE 160
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UP LAW BOC TABLE OF CONTENTS CIVIL LAW

E.1 WHO ARE LIABLE 160 DESCENDANTS AND


E.2. LIABILITY OF CREATOR OF ASCENDANTS, BY REASON OF HIS
NUISANCE 160 OFFICE 172
E.3. LIABILITY OF TRANSFEREES 160 F.4. THOSE MADE TO PERSONS
E.4. NATURE OF LIABILITY 160 INCAPACITATED TO SUCCEED BY
E.5. RIGHT TO RECOVER DAMAGES 161 WILL. [NCC 1027] 172
F. REGULATION OF NUISANCES 161 G. REVOCATION V. REDUCTION 172
F.1. PUBLIC NUISANCE 161 G.1. GROUNDS FOR REDUCTION 172
F.2. PRIVATE NUISANCE 162 G.2. REVOCATION 173
H. TRADITION 177
XI. MODES OF ACQUIRING H.1. REQUISITES 177
OWNERSHIP AND OTHER REAL H.2. PURPOSE 177
RIGHTS 163 H.3. KINDS 177

A. OCCUPATION 163 XII. PRESCRIPTION 178


A.1. REQUISITES 163
A.2. KINDS 164 A. RATIONALE 178
A.3. SPECIAL RULES [NCC 716] 164 B. KINDS OF PRESCRIPTION 178
B. DONATION 165 B.1. ACQUISITIVE PRESCRIPTION 178
B.1. OTHER INSTANCES B.2. EXTINCTIVE PRESCRIPTION 179
CONSIDERED AS DONATION 165 C. NO PRESCRIPTION
B.2. NATURE 165 APPLICABLE 179
B.3. REQUISITES 165 C.1. BY OFFENDER 179
B.4. WHAT MAY BE DONATED 165 C.2. REGISTERED LANDS 179
B.5. WHAT MAY NOT BE DONATED 165 C.3. RIGHTS NOT EXTINGUISHED
C. KINDS OF DONATIONS 166 BY PRESCRIPTION [NCC 1143] 180
C.1. AS TO ITS TAKING EFFECT 166 C.4. ACTION TO QUIET TITLE IF
C.2. AS TO CAUSE OR PLAINTIFF IS IN POSSESSION 180
CONSIDERATION 167 C.5. VOID CONTRACTS 180
D. FORMALITIES REQUIRED 168 C.6. ACTION TO DEMAND
D.1. HOW MADE AND ACCEPTED 168 PARTITION 180
D.2. PERFECTION 168 C.7. PROPERTY OF PUBLIC
D.3. QUALIFICATIONS OF DONORS DOMINION 180
AND DONEES 168 C.8. PRESCRIPTION
E. EFFECTS OF DONATION / DISTINGUISHED FROM LACHES 180
LIMITATIONS 170 D. PRESCRIPTION OR
E.1. IN GENERAL 170 LIMITATION OF ACTIONS 180
E.2. SPECIAL PROVISIONS 170 D.1. TO RECOVER MOVABLE
F. VOID DONATIONS [NCC 739- PROPERTIES 180
740, 1027] 172 D.2. TO RECOVER IMMOVABLES 181
F.1. THOSE MADE BETWEEN D.3. OTHER ACTIONS 181
PERSONS WHO WERE GUILTY OF
ADULTERY OR CONCUBINAGE AT OBLIGATIONS 183
THE TIME OF THE DONATION 172
F.2. THOSE MADE BETWEEN I. OBLIGATIONS 184
PERSONS FOUND GUILTY OF THE
SAME CRIMINAL OFFENSE, IN A. DEFINITION 184
CONSIDERATION THEREOF 172 A.1. ELEMENTS OF AN OBLIGATION 184
F.3. THOSE MADE TO A PUBLIC A.2. DIFFERENT KINDS OF
OFFICER OR HIS WIFE, PRESTATIONS 184
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B. CLASSIFICATION OF OBLIGATIONS 184 OBLIGATIONS 205


E. DIVISIBLE AND INDIVISIBLE
II. NATURE AND EFFECT OF OBLIGATIONS 207
OBLIGATIONS 187 F. OBLIGATIONS WITH A PENAL
CLAUSE 208
A. OBLIGATION TO GIVE 187
B. OBLIGATION TO DO OR NOT TO IV. JOINT AND SOLIDARY
DO 188 OBLIGATIONS 209
C. BREACH 188
C.1. COMPLETE FAILURE TO A. JOINT OBLIGATIONS 209
PERFORM 189 B. SOLIDARY OBLIGATIONS 211
C.2. DEFAULT, DELAY, OR MORA 189
C.3. FRAUD (DOLO) IN THE V. EXTINGUISHMENT OF
PERFORMANCE OF THE OBLIGATIONS 215
OBLIGATION 191 A. PAYMENT OR PERFORMANCE 215
C.4. NEGLIGENCE (CULPA) IN THE A.1 APPLICATION OF PAYMENTS 217
PERFORMANCE OF THE A.2. DATION IN PAYMENT 218
OBLIGATION 192 A.3. PAYMENT BY CESSION 218
C.5. CONTRAVENTION OF THE A.4. TENDER OF PAYMENT AND
TENOR OF THE OBLIGATION 193 CONSIGNATION 219
D. LEGAL EXCUSE FOR BREACH 193 B. LOSS OF THE THING DUE OR
E. REMEDIES AVAILABLE IN CASE OF IMPOSSIBILITY OR DIFFICULTY OF
BREACH 194 PERFORMANCE 220
E.1. ACTION FOR SPECIFIC C. CONDONATION 222
PERFORMANCE (IN OBLIGATION D. CONFUSION OR MERGER OF
TO GIVE SPECIFIC THING) 194 RIGHTS 223
E.2. ACTION FOR SUBSTITUTED E. COMPENSATION 223
PERFORMANCE (IN OBLIGATION F. NOVATION 225
TO GIVE GENERIC THING) 195
E.3. RESCISSION (RESOLUTION IN CONTRACTS 229
RECIPROCAL OBLIGATIONS) 195
E.4. DAMAGES, IN ANY EVENT 196 I. GENERAL PROVISIONS 230
E.5. SUBSIDIARY REMEDIES OF
CREDITORS 196 A. PRINCIPAL CHARACTERISTICS OF
CONTRACTS (MARCO) 230
III. KINDS OF CIVIL OBLIGATIONS 199 A. 1. MUTUALITY 230
A.2. AUTONOMY (ALSO FREEDOM
A. PURE OBLIGATIONS 199 TO CONTRACT) 230
B. CONDITIONAL OBLIGATIONS 199 A.3. RELATIVITY 231
B.1. KINDS OF CONDITIONS 199 A.4. CONSENSUAL 233
B.2. DOCTRINE OF CONSTRUCTIVE A.5. OBLIGATORY FORCE 233
FULFILLMENT OF SUSPENSIVE B. ELEMENTS OF CONTRACTS 233
CONDITIONS 199 C. CLASSIFICATION OF CONTRACTS 233
B.3. PRINCIPLE OF RETROACTIVITY D. STAGES OF A CONTRACT 234
IN SUSPENSIVE CONDITIONS 200 E. ESSENTIAL REQUISITES 234
B.4. EFFECTS OF THE HAPPENING A. CONSENT 234
OF SUSPENSIVE CONDITIONS 200 B. OBJECT OF CONTRACTS 241
C. OBLIGATIONS WITH A PERIOD OR C. CAUSE OF CONTRACTS 241
TERM 202
D. ALTERNATIVE OR FACULTATIVE III. FORM OF CONTRACTS 243
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B. VOIDABLE CONTRACTS 254


A. KINDS OF FORMALITIES REQUIRED CHARACTERISTICS OF VOIDABLE
BY LAW 243 CONTRACTS: 255
A.1. FOR THE VALIDITY OF RATIFICATION 256
CONTRACTS (AD ESENTIA / AD C. UNENFORCEABLE CONTRACT 256
SOLIMNITATEM/ SOLEMN D. VOID OR INEXISTENT CONTRACTS 258
CONTRACTS) 243
A.2. FOR THE PURPOSE OF VII. NATURAL OBLIGATIONS 261
PROVING THE EXISTENCE OF THE
CONTRACT 244 VIII. ESTOPPEL 263
(AD PROBATIONEM/ STATUTE OF
FRAUDS) 244 IX. TRUSTS 264
A.3. FOR THE EFFECTIVITY OF THE
CONTRACT AGAINST THIRD A. GOVERNING RULES 264
PERSONS 245 B. PARTIES [ART. 1440] 264
C. KINDS OF TRUST 264
IV. REFORMATION OF C.1. EXPRESS TRUST 264
INSTRUMENTS 246 C.2. IMPLIED TRUST 265
C.3. CONSTRUCTIVE TRUST 266
A. CASES WHERE REFORMATION IS
PROPER 247 SALES 267
A.1. MISTAKE 247
A.2. FRAUD 247 I. DEFINITION AND ESSENTIAL
A.3. INEQUITABLE CONDUCT 247 REQUISITES 268
A.4. ACCIDENT 247
A.5. SEVERE PACTO DE RETRO / A. DEFINITION OF SALES 268
RELATIVE SIMULATION 247 B. ESSENTIAL REQUISITES OF A
B. WHO MAY ASK FOR REFORMATION CONTRACT OF SALE 268
[ART. 1368] 247 B.1. ESSENTIAL ELEMENTS OF A
C. CASES WHERE REFORMATION IS VALID CONTRACT OF SALE 268
NOT PROPER 247 B.2. NON-ESSENTIAL ELEMENTS
OF A CONTRACT OF SALE 268
V. INTERPRETATION OF C. STAGES OF CONTRACT OF
CONTRACT 248 SALE 269
D. OBLIGATIONS CREATED 269
A. RULES ON DOUBTS [ART. 1378] 249 NATURE OF OBLIGATIONS CREATED
B. FROM RULE 123, RULES OF COURT 249 PER DEFINITION IN ART.1458 269
E. CHARACTERISTICS OF A
VI. DEFECTIVE CONTRACTS 250 CONTRACT OF SALE 269
F. SALE DISTINGUISHED FROM
A. RESCISSIBLE CONTRACTS 250 OTHER CONTRACTS 270
A.1. RESCISSION 250 F.1. DONATION 270
A.2. CHARACTERISTICS OF F.2. BARTER 270
RESCISSIBLE CONTRACTS: 251 F.3. CONTRACT FOR A PIECE OF
A.3. DISTINGUISHED FROM WORK 270
RESCISSION/RESOLUTION UNDER F.4. DACION EN PAGO 270
ART. 1191 251 F.5. CONTRACT TO SELL 271
A.4. REQUISITES OF A VALID F.6. AGENCY TO SELL 271
RESCISSION [ART. 1381-1383, 1385, F.7. LEASE 271
1389] 251 G. KINDS OF CONTRACT OF SALE 271
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II. PARTIES TO A CONTRACT OF A. PREPARATORY 280


SALE 272 B. PERFECTION 282
C. CONSUMMATION 282
A. KINDS OF INCAPACITY 272
A.1. ABSOLUTE INCAPACITY 272 VII. TRANSFER OF OWNERSHIP 284
A.2. RELATIVE INCAPACITY:
MARRIED PERSONS 272 A. MANNER OF TRANSFER 284
A.3. SPECIAL DISQUALIFICATIONS 272 GENERAL CONCEPTS 284
B. EFFECTS OF INCAPACITY 273 B. CONCEPT OF DELIVERY 284
B.1. ABSOLUTE INCAPACITY 273 B.1. REQUISITES 284
B.2. RELATIVE INCAPACITY 273 B.2. WHAT TO DELIVER 284
B.3. SPECIFIC INCAPACITY/ B.3. WHERE TO DELIVER 285
SPECIAL DISQUALIFICATIONS 274 B.4. WHEN TO DELIVER 285
C. WHEN DELIVERY DOES NOT
III. SUBJECT MATTER 274 TRANSFER TITLE 285
D. KINDS OF DELIVERY 286
A. REQUISITES OF A VALID D.1. ACTUAL DELIVERY 286
SUBJECT MATTER 274 D.2. CONSTRUCTIVE DELIVERY 286
A.1. MUST BE LICIT 274 E. DOUBLE SALES 287
A.2. EXISTING, FUTURE, F. PROPERTY REGISTRATION
CONTINGENT 275 DECREE 288
A.3.DETERMINATE OR
DETERMINABLE 276 VIII. RISK OF LOSS &
DETERIORATION 290
IV. OBLIGATIONS OF THE
SELLER 276 A. RES PERIT DOMINO 290
B. PRIOR TO PERFECTION OF
A. OBLIGATIONS OF THE CONTRACT 290
VENDOR IN GENERAL 276 C. AT TIME OF PERFECTION 290
B. WHEN SELLER IS NOT THE D. AFTER PERFECTION BUT
OWNER 276 BEFORE DELIVERY 290
C. SALE BY PERSON HAVING A D.1.LOSS 290
VOIDABLE TITLE 277 D.2. DETERIORATION 290
E. AFTER DELIVERY 290
V. PRICE 277
IX. DOCUMENTS OF TITLE 291
A. MEANING OF PRICE 277
B. REQUISITES FOR A VALID A. DEFINITION 291
PRICE 277 B. PURPOSE OF DOCUMENTS OF
C. HOW PRICE IS TITLE 291
DETERMINED/WHEN CERTAIN 278 C. NEGOTIABLE DOCUMENTS OF
D. INADEQUACY OF PRICE 278 TITLE 291
E. WHEN NO PRICE AGREED 279 WHO MAY NEGOTIATE IT? 291
F. FALSE PRICE VS SIMULATED D. NON-NEGOTIABLE
PRICE 279 DOCUMENTS OF TITLE 291
G. EARNEST MONEY VS OPTION E. WARRANTIES OF SELLER OF
MONEY 279 DOCUMENTS OF TITLE 292
F. RULES ON
VI. FORMATION OF CONTRACT LEVY/GARNISHMENT OF GOODS 292
OF SALE 280
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X. REMEDIES OF AN UNPAID C.2. ALTERNATIVE AND EXCLUSIVE


SELLER REMEDIES 307
293 D. SALE OF IMMOVABLES 307
A. DEFINITION OF UNPAID D.1. RESCISSION FOR
SELLER 293 ANTICIPATORY BREACH 307
B. JUDICIAL REMEDIES OF D.2. SPECIFIC PERFORMANCE +
UNPAID SELLER 293 DAMAGES OR RESCISSION +
C. ALTERNATIVE REMEDIES OF DAMAGES 308
THE UNPAID SELLER UNDER E. PD 957, SECTIONS 23 AND 24 308
RECTO LAW 294 F. MACEDA LAW (RA 6552): SALE
OF IMMOVABLES ON
XI. PERFORMANCE OF INSTALLMENT 308
CONTRACT G. REMEDIES OF THE BUYER 309
295 G.1. SALE OF MOVABLES 309
A. DELIVERY OF THING SOLD 295 G.2. SALE OF IMMOVABLES 310
B. PAYMENT OF PRICE 297
XIV. EXTINGUISHMENT OF SALE 310
XII. WARRANTIES 298
A. CAUSES 310
A. EXPRESS WARRANTIES 298 B. CONVENTIONAL REDEMPTION 310
B. IMPLIED WARRANTIES 299 B.1. DEFINITION 310
B.1. IMPLIED WARRANTY OF TITLE 300 B.2. PERIOD 310
B.2. IMPLIED WARRANTY AGAINST B.3. BY WHOM EXERCISED 311
ENCUMBRANCE/NON-APPARENT B.4. FROM WHOM TO REDEEM 311
SERVITUDES 300 B.5. HOW EXERCISED 311
B.3. IMPLIED WARRANTY AGAINST B.6. EFFECT OF REDEMPTION 311
HIDDEN DEFECTS 300 B.7. EFFECT OF NON-REDEMPTION 312
B.4. IMPLIED WARRANTY AS TO B.8. RIGHT TO REDEEM VS OPTION
MERCHANTABLE QUALITY AND TO PURCHASE 312
FITNESS OF GOODS 301 C. EQUITABLE MORTGAGE 312
B.5. IMPLIED WARRANTY AGAINST C.1. PRESUMPTION THAT A
REDHIBITORY DEFECT IN THE CONTRACT IS AN EQUITABLE
SALE OF ANIMALS 301 MORTGAGE (5P-R) 312
C. EFFECTS OF WARRANTIES 301 C.2. REQUISITES FOR
D. EFFECTS OF WAIVERS 301 PRESUMPTION OF AN EQUITABLE
E. BUYERS OPTIONS IN CASE OF MORTGAGE 313
BREACH OF WARRANTY 302 C.3. RATIONALE BEHIND
F. WARRANTY IN SALE OF PROVISION ON EQUITABLE
CONSUMER GOODS 303 MORTGAGE 313
C.4. REMEDIES OF APPARENT
XIII. BREACH OF CONTRACT 304 VENDOR 313
C.5. PERIOD OF REDEMPTION 313
A. GENERAL REMEDIES [ART C.6. EXERCISE OF THE RIGHT TO
1191] 304 REDEEM 314
B. REMEDIES OF THE SELLER 304 C.7. HOW REDEMPTION IS
SALE OF MOVABLES 304 EXERCISED 314
C. RECTO LAW: SALE OF D. LEGAL REDEMPTION 314
MOVABLES ON INSTALLMENT D.1. DEFINITION 314
ARTS. 1484-1486 307 D.2. MANNER 314
C.1. WHEN APPLICABLE 307 D.3. PERIOD TO REDEEM 314
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UP LAW BOC TABLE OF CONTENTS CIVIL LAW

D.4. INSTANCES OF LEGAL THEREIN [SECTION 5, RA 4726] 322


REDEMPTION 315 C. RIGHTS OF A CONDOMINIUM UNIT
OWNER (ASIDE FROM RIGHTS
XV. THE LAW ON SALE OF ARISING FROM OWNERSHIP)
SUBDIVISION AND [SECTION 6] 322
CONDOMINIUM (PD 957) 318 D. PARTITION BY SALE [SECTION 8] 322
E. DECLARATION OF RESTRICTIONS
A. DEFINITIONS 318 BY OWNER OF PROJECT -
B. REQUIREMENTS FOR OWNERS PRECONDITION TO CONVEYANCE
AND DEVELOPERS 318 [SECTION 9] 323
B.1. REGISTRATION OF PROJECTS F. ASSESSMENT IN ACCORDANCE
[SECTION 4, PD 957] 318 WITH DECLARATION OF
B.2. REGISTRATION OF OWNER RESTRICTIONS [SECTION 20] 323
[SECTION 4, PD 957] 318 G. HOW LIEN ENFORCED AFTER NON-
B.3. LICENSE TO SELL [SECTION 5, PAYMENT OF ASSESSED FEES
PD 957] 318 [SECTION 20] 323
C. REQUIREMENT FOR DEALERS, H. INVOLUNTARY DISSOLUTION OF
BROKERS, AND SALESMEN (DBS) 319 THE CONDOMINIUM CORPORATION
D. CHARACTERISTICS OF SALE [SECTION 12] 323
OF A CONDOMINIUM OR I. POWER OF ATTORNEY HELD BY
SUBDIVISION UNIT AND SIMILAR CORPORATION IN CASE OF
CONTRACTS 320 VOLUNTARY DISSOLUTION OF
D.1. REGISTRATION OF SALE, ETC CONDOMINIUM CORPORATION
[SECTION 17, PD 957] 320 [SECTION 15] 323
D.2. MORTGAGES ON UNIT OR LOT J. SALE, EXCHANGE, LEASE, OR
BY OWNER OR DEVELOPER DISPOSITION BY CORPORATION OF
[SECTION 18, PD 957] 320 THE COMMON AREAS [SECTION 16] 323
D.3. ADVERTISEMENTS BY THE K. STOCKHOLDER/ MEMBER
OWNER OR DEVELOPER [SECTION DEMANDING PAYMENT FOR SHARES
19, PD 957] 320 OR INTEREST AKA APPRAISAL RIGHT
D.4. NON-FORFEITURE OF [SECTION 17] 323
PAYMENTS (SECTION 23, PD 957) 320 L. REQUIREMENT FOR REGISTRATION
D.5. FAILURE TO PAY OF CONVEYANCE WITH THE REGISTER
INSTALLMENTS [SECTION 24, PD OF DEEDS [SECTION 18] 323
957] 320 M. REALTY TAX ON CONDOMINIUMS
D.6. ISSUANCE OF TITLE [SECTION [SECTION 25] 323
25, PD 957] 321
D.7. REALTY TAX [SECTION 26, PD SUCCESSION 324
957] 321
D.7. NO OTHER CHARGES I. GENERAL PROVISIONS 325
[SECTION 27, PD 957] 321
A. DEFINITION 325
XVI. THE CONDOMINIUM ACT KINDS OF SUCCESSION 325
(RA 4726) 321 B. OBJECT OF SUCCESSION AND
TRANSMISSION 325
A. DEFINITION OF A CONDOMINIUM SCOPE OF INHERITANCE 325
[SECTION 2] 321 RULE ON TRANSMISSION 325
B. TRANSFERS OR CONVEYANCES OF RULES ON OPENING OF SUCCESSION 325
A UNIT OR AN APARTMENT, OFFICE C. SUBJECTS OF SUCCESSION 326
OR STORE, OR OTHER SPACE
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UP LAW BOC TABLE OF CONTENTS CIVIL LAW

II. TESTAMENTARY SUCCESSION 327 CHILDREN AND DESCENDANTS 346


F.2. DISINHERITANCE OF PARENTS
A. WILLS 327 AND ASCENDANTS 346
A.1. IN GENERAL 327 F.3. DISINHERITANCE OF A
A.2. TESTAMENTARY CAPACITY SPOUSE 346
AND INTENT 329 MODES OF REVOCATION OF
TIME OF DETERMINING CAPACITY 329 DISINHERITANCE 347
REQUISITES FOR CAPACITY TO G. LEGACIES AND DEVISES 348
MAKE A WILL 329
A.3. FORM 329 III. LEGAL OR INTESTATE
A.4. CODICILS 334 SUCCESSION 351
A.5. INCORPORATION BY
REFERENCE 334 A. GENERAL PROVISIONS 351
A.6. REVOCATION 334 B. ORDER OF INTESTATE SUCCESSION 354
A.7. REPUBLICATION AND REVIVAL 335 RULES OF EXCLUSION AND
A.8. ALLOWANCE AND CONCURRENCE IN INTESTATE
DISALLOWANCE OF WILLS 335 SHARES 355
I. PROBATE REQUIREMENT 335 OUTLINE OF INTESTATE SHARES 355
II. GROUNDS FOR DENYING
PROBATE 336 IV. PROVISIONS COMMON TO
B. INSTITUTION OF HEIR 336 TESTATE AND INTESTATE
MANNER OF INSTITUTION 337 SUCCESSION 357
MANNER OF DISTRIBUTION 337
INTENT OF THE TESTATOR 337 A. RIGHT OF ACCRETION 357
C. SUBSTITUTION OF HEIRS 339 BASIS 357
EFFECTS OF PREDECEASE OF THE B. CAPACITY TO SUCCEED BY WILL OR
FIRST HEIR/FIDUCIARY OR THE INTESTACY 358
SECOND HEIR/FIDEICOMMISSARY 340 C. ACCEPTANCE AND REPUDIATION
D. TESTAMENTARY DISPOSITIONS OF THE INHERITANCE 359
WITH A CONDITION, A TERM, AND A D. COLLATION 361
MODE 340 E. PARTITION AND DISTRIBUTION OF
3 KINDS OF TESTAMENTARY ESTATE 362
DISPOSITIONS 340 E.1. IN GENERAL 362
CONDITIONAL DISPOSITIONS 340 JUDICIAL VS. EXTRAJUDICIAL
DISPOSITIONS WITH A TERM 341 PARTITION 362
MODAL DISPOSITIONS 341 E.2. EFFECTS OF PARTITION 363
E. LEGITIME 341 E.3. RESCISSION AND
COMPULSORY HEIRS AND NULLIFICATION OF PARTITION 364
VARIOUS COMBINATIONS 341
SPECIFIC RULES ON LEGITIMES 342 AGENCY 366
STEPS IN DETERMINING THE
LEGITIME OF COMPULSORY HEIRS 344 I. DEFINITION OF AGENCY 367
REMEDY OF A COMPULSORY HEIR
IN CASE OF IMPAIRMENT OF A. AS A TYPE OF CONTRACT 367
LEGITIME 344 A.1. ELEMENTS (STATUTORY): 367
RESERVA TRONCAL 344 A.2. ELEMENTS
CONCEPT OF RESERVA TRONCAL 344 (JURISPRUDENTIAL) 367
JURIDICAL NATURE OF RIGHTS 345 A.3. BEING A CONTRACT, IT MUST
F. DISINHERITANCE 345 ALSO COMPLY WITH ART. 1318 367
F.1. DISINHERITANCE OF B. AS A LEGAL RELATIONSHIP 367
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C. EFFECTS OF AGENCY 367 A.2. ADVANCE OR REIMBURSE


SUMS NECESSARY 380
II. KINDS OF AGENCY 368 A.3. INDEMNIFY THE AGENT FOR
INJURY 380
A. GENERAL AGENCY 368 A.4. COMPENSATE THE AGENT 381
B. SPECIAL AGENCY 368 B. LIABILITY OF THE PRINCIPAL 381
C. AGENCY COUCHED IN GENERAL B.1. IN GENERAL 381
TERMS 368 B.2. BE SOLIDARILY LIABLE 381
D. AGENCY REQUIRING SPECIAL B.3. IF THE CONTRACT INVOLVES
POWER OF ATTORNEY 368 THINGS BELONGING TO THE
E. AGENCY BY OPERATION OF LAW 370 PRINCIPAL 381

III. EXPRESS VS IMPLIED VII. MODES OF


AGENCY 370 EXTINGUISHMENT 383

A. EXPRESS 370 A. IN GENERAL 383


B. IMPLIED 370 B. REVOCATION 383
B.1. IN GENERAL 383
IV. AGENCY BY ESTOPPEL 372 B.2. WHEN REVOCATION IS NOT
BINDING ON THIRD PERSONS 383
A. BASED ON STATUTE 372 B.3. APPOINTMENT OF NEW
B. REQUISITES 372 AGENT 384
B.4. DIRECT MANAGEMENT BY THE
V. POWERS 373 PRINCIPAL 384
B.5. SPECIAL AUTHORITY
A. RIGHTS OF AGENTS 373 REVOKES THE GENERAL
B. OBLIGATIONS OF AGENTS 375 AUTHORITY WHERE A SPECIAL
B.1. ACT WITHIN SCOPE OF MATTER IS INVOLVED 384
AUTHORITY 375 B.6. WHEN AGENCY CANNOT BE
B.2. ACT IN ACCORDANCE WITH REVOKED 384
INSTRUCTIONS 376 C. WITHDRAWAL BY THE AGENT 384
B.3. CARRY OUT THE AGENCY 376 D. DEATH, CIVIL INTERDICTION,
B.4. ADVANCE FUNDS 376 INSANITY OR INSOLVENCY 385
B.5. PREFER THE PRINCIPALS D.1. IN GENERAL 385
INTEREST OVER HIS OWN 377 D.2. EXCEPTIONS 385
B.6. RENDER ACCOUNT/DELIVER 378 D.3. DEATH OF AGENT 385
B.7. PAY INTEREST 378 E. DISSOLUTION / ACCOMPLISHMENT
B.8. LIABILITY FOR / EXPIRATION 385
FRAUD/NEGLIGENCE 378
C. LIABILITY OF AGENTS 378 PARTNERSHIP 386
C.1. WHEN SOLIDARY 378
C.2. WHEN PERSONAL 378 I. CONTRACT OF PARTNERSHIP 387

VI. RIGHTS AND OBLIGATIONS A. ELEMENTS 387


OF PRINCIPAL 379 B. ESSENTIAL FEATURES 387
B.1. LAWFUL PURPOSE 387
A. OBLIGATIONS 379 B.2. COMMON BENEFIT 387
A.1. COMPLY WITH THE B.3. JURIDICAL PERSONALITY 388
OBLIGATIONS CONTRACTED BY C. PARTIES 388
THE AGENT 379 D. OBJECT 388
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D.1. OBJECT OF UNIVERSAL B.4. RESPONSIBLE FOR DAMAGE


PARTNERSHIP 388 SUFFERED BY THE PARTNERSHIP 400
D.2. OBJECT OF PARTICULAR B.5. BEAR RISK OF LOSS OF
PARTNERSHIP 388 SPECIFIC AND DETERMINATE
D.3. EFFECT OF UNLAWFUL THINGS 400
OBJECT 388 B.6. SHARE IN LOSSES 400
E. FORM 389 RULES FOR DISTRIBUTION OF
F. DURATION 389 PROFITS AND LOSSES 400
F.1. COMMENCEMENT 389 B.7. ACCOUNT FOR BENEFITS 401
F.2. TERM 389 B.8. LIABLE FOR PARTNERSHIP
F.3. EXTENSION 389 CONTRACTS 401
G.RULES TO DETERMINE EXISTENCE 389 B.9. SOLIDARILY LIABLE WITH THE
H. KINDS OF PARTNERSHIPS 389 PARTNERSHIP FOR WRONGFUL
H.1. AS TO THE LEGALITY OF ITS ACTS OR OMISSIONS 402
EXISTENCE 389 B.10. APPLICATION OF SUMS
H.2. AS TO ITS OBJECT 390 RECEIVED 402
H.3. AS TO ITS DURATION 390 402
H.4. AS TO THE LIABILITY OF THE III. OBLIGATIONS OF THE
PARTNERS 390 PARTNERSHIP 403
H.5. AS TO ITS PUBLICITY 390
H.6. AS TO ITS PURPOSE 390 A. OBLIGATION TO OPERATE UNDER A
I. KINDS OF PARTNERS 390 FIRM NAME 403
J. PARTNERSHIP, DISTINGUISHED B. LIABILITY OF PARTNERS FOR
FROM OTHER CONTRACTS 391 PARTNERSHIP CONTRACTS 403
B.1. ACTS APPARENTLY FOR THE
II. RIGHTS AND OBLIGATIONS OF CARRYING ON OF USUAL
THE PARTNER 393 BUSINESS 403
B.2. ACTS NOT APPARENTLY FOR
A. RIGHTS OF PARTNERS 393 CARRYING ON OF THE USUAL
A.1. MUTUAL AGENCY 393 BUSINESS 403
A.2 SHARE IN PROFITS 393 B.3. ACTS OF STRICT DOMINION 403
A.3. RIGHT TO ASSOCIATE B.4. ACTS IN CONTRAVENTION OF
ANOTHER/AUTHORIZE A RESTRICTION 403
ADMISSION 394 C. CONVEYANCE OF PARTNERSHIP
A.4. ACCESS TO BOOKS AND REAL PROPERTY 403
INFORMATION 394 C.1. TITLE IN PARTNERSHIP NAME 403
A.5. FORMAL ACCOUNT 394 C.2. TITLE IN THE NAME OF OTHER
A.6. PROPERTY RIGHTS 394 PERSONS 404
A.7. CONVEYANCE OF PROPERTY D. LIABILITY OF THE PARTNERSHIP
IN PARTNERSHIP NAME 398 FOR ADMISSION BY A PARTNER 404
B. OBLIGATIONS OF PARTNERS 399 E. LIABILITY IN CASE OF
B.1. CONTRIBUTION 399 PARTNERSHIP BY ESTOPPEL 404
AMOUNT OF CONTRIBUTION 399 E.1. PARTNER BY ESTOPPEL 404
ADDITIONAL CAPITAL E.2. LIABILITY OF A PARTNER BY
CONTRIBUTION 399 ESTOPPEL 404
CONTRIBUTION OF INDUSTRY 399 E.3. EFFECT ON EXISTING
B.2. ALTERATION IN IMMOVABLE PARTNERSHIP OR OTHER
PROPERTY 400 PERSONS NOT ACTUAL
B.3. BRING TO PARTNERSHIP PARTNERS 404
CAPITAL CREDIT RECEIVED 400 E.4. NATURE OF LIABILITY 405
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UP LAW BOC TABLE OF CONTENTS CIVIL LAW

H.7. RIGHT TO ASK FOR DEPOSIT 426


DISSOLUTION 417 B.2. DEPOSIT BY TRAVELERS IN
I. DISSOLUTION 417 HOTELS AND INNS 426
J. SETTLEMENT OF ACCOUNTS 417 B.3. EXTENT OF LIABILITY UNDER
J.1. ORDER OF PAYMENT 417 ART.1998 426
J.2. SHARE IN THE PARTNERSHIP B.4. WHEN HOTEL-KEEPER LIABLE 426
ASSETS 417 B.5. WHEN HOTEL-KEEPER NOT
K. AMENDMENT OR CANCELLATION LIABLE 426
OF CERTIFICATE 417 B.6. HOTEL-KEEPERS RIGHT TO
K.1. CANCELLATION OF RETENTION 426
CERTIFICATE 417 C. JUDICIAL DEPOSIT 427
K.2. AMENDMENT OF CERTIFICATE 418 C.1. NATURE AND PURPOSE 427
K.3. REQUIREMENTS FOR C.2. DEPOSITARY OF
AMENDMENT OR CANCELLATION 418 SEQUESTERED PROPERTY 427
C.3. APPLICABLE LAW 427
CREDIT TRANSACTIONS 419
III. GUARANTY AND SURETYSHIP 427
I. LOAN 420
A. NATURE AND EXTENT OF
A. COMMODATUM 420 GUARANTY 428
A.1. KINDS OF COMMODATUM 420 B. NATURE AND EXTENT OF
A.2. PARTIES 420 SURETYSHIP 430
A.3. OBLIGATIONS OF THE BAILEE 421 C. EFFECT OF GUARANTY 431
A.4. OBLIGATIONS OF THE BAILOR 421 C.1. EFFECTS OF GUARANTY
A.5. LIABILITY FOR BETWEEN THE GUARANTOR AND
DETERIORATION 422 THE CREDITOR 431
A.6. LIABILITY FOR LOSS 422 C.2. EFFECTS OF GUARANTY
A.7. RIGHT OF RETENTION 422 BETWEEN THE DEBTOR AND THE
A.8. EXTINGUISHMENT 422 GUARANTOR 432
B. MUTUUM 422 C.3. EFFECTS OF GUARANTY AS
B.1. OBLIGATIONS OF THE BETWEEN CO-GUARANTORS 434
BORROWER 422 D. EXTINGUISHMENT OF
B.2. INTEREST AND SUSPENSION GUARANTY 434
OF USURY LAW 422 E. LEGAL AND JUDICIAL BONDS 434
B.3. REQUISITES FOR INTEREST TO
BE CHARGEABLE 423 IV. PLEDGE 435
B.4. ELEMENTS OF USURY 423
A. CHARACTERISTICS 435
II. DEPOSIT 424 B. KINDS 435
C. ESSENTIAL REQUISITES 436
A. VOLUNTARY DEPOSIT 424 D. REQUISITES FOR PERFECTION 436
A.1. EXTINGUISHMENT 425 E. OBLIGATIONS OF PLEDGEE 437
A.2. OBLIGATIONS OF A F. RIGHTS OF PLEDGOR 437
DEPOSITARY 425 G. FORECLOSURE 437
A.3. AUTHORITY OF DEPOSITARY 425 G.1. REQUIREMENTS IN SALE OF
A.4. OBLIGATIONS OF A THE THING PLEDGED BY A
DEPOSITOR 425 CREDITOR, IF CREDIT IS NOT PAID
A.5. AUTHORITY OF DEPOSITOR 425 ON TIME 437
B. NECESSARY DEPOSIT 426 G.2. EFFECTS OF THE SALE OF THE
B.1. KINDS OF NECESSARY THING PLEDGED 437
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H.7. RIGHT TO ASK FOR DEPOSIT 426


DISSOLUTION 417 B.2. DEPOSIT BY TRAVELERS IN
I. DISSOLUTION 417 HOTELS AND INNS 426
J. SETTLEMENT OF ACCOUNTS 417 B.3. EXTENT OF LIABILITY UNDER
J.1. ORDER OF PAYMENT 417 ART.1998 426
J.2. SHARE IN THE PARTNERSHIP B.4. WHEN HOTEL-KEEPER LIABLE 426
ASSETS 417 B.5. WHEN HOTEL-KEEPER NOT
K. AMENDMENT OR CANCELLATION LIABLE 426
OF CERTIFICATE 417 B.6. HOTEL-KEEPERS RIGHT TO
K.1. CANCELLATION OF RETENTION 426
CERTIFICATE 417 C. JUDICIAL DEPOSIT 427
K.2. AMENDMENT OF CERTIFICATE 418 C.1. NATURE AND PURPOSE 427
K.3. REQUIREMENTS FOR C.2. DEPOSITARY OF
AMENDMENT OR CANCELLATION 418 SEQUESTERED PROPERTY 427
C.3. APPLICABLE LAW 427
CREDIT TRANSACTIONS 419
III. GUARANTY AND SURETYSHIP 427
I. LOAN 420
A. NATURE AND EXTENT OF
A. COMMODATUM 420 GUARANTY 428
A.1. KINDS OF COMMODATUM 420 B. NATURE AND EXTENT OF
A.2. PARTIES 420 SURETYSHIP 430
A.3. OBLIGATIONS OF THE BAILEE 421 C. EFFECT OF GUARANTY 431
A.4. OBLIGATIONS OF THE BAILOR 421 C.1. EFFECTS OF GUARANTY
A.5. LIABILITY FOR BETWEEN THE GUARANTOR AND
DETERIORATION 422 THE CREDITOR 431
A.6. LIABILITY FOR LOSS 422 C.2. EFFECTS OF GUARANTY
A.7. RIGHT OF RETENTION 422 BETWEEN THE DEBTOR AND THE
A.8. EXTINGUISHMENT 422 GUARANTOR 432
B. MUTUUM 422 C.3. EFFECTS OF GUARANTY AS
B.1. OBLIGATIONS OF THE BETWEEN CO-GUARANTORS 434
BORROWER 422 D. EXTINGUISHMENT OF
B.2. INTEREST AND SUSPENSION GUARANTY 434
OF USURY LAW 422 E. LEGAL AND JUDICIAL BONDS 434
B.3. REQUISITES FOR INTEREST TO
BE CHARGEABLE 423 IV. PLEDGE 435
B.4. ELEMENTS OF USURY 423
A. CHARACTERISTICS 435
II. DEPOSIT 424 B. KINDS 435
C. ESSENTIAL REQUISITES 436
A. VOLUNTARY DEPOSIT 424 D. REQUISITES FOR PERFECTION 436
A.1. EXTINGUISHMENT 425 E. OBLIGATIONS OF PLEDGEE 437
A.2. OBLIGATIONS OF A F. RIGHTS OF PLEDGOR 437
DEPOSITARY 425 G. FORECLOSURE 437
A.3. AUTHORITY OF DEPOSITARY 425 G.1. REQUIREMENTS IN SALE OF
A.4. OBLIGATIONS OF A THE THING PLEDGED BY A
DEPOSITOR 425 CREDITOR, IF CREDIT IS NOT PAID
A.5. AUTHORITY OF DEPOSITOR 425 ON TIME 437
B. NECESSARY DEPOSIT 426 G.2. EFFECTS OF THE SALE OF THE
B.1. KINDS OF NECESSARY THING PLEDGED 437
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H. PLEDGE AS DISTINGUISHED VIII. QUASI-CONTRACTS 446


FROM CHATTEL MORTGAGE
[ARTS. 2140, 1484] 438 A. NEGOTIORUM GESTIO
I. PACTUM COMMISSORIUM 438 (UNAUTHORIZED MANAGEMENT) 446
J. EQUITABLE MORTGAGE 438 A.1. OBLIGATIONS OF A GESTOR 446
A.2. OBLIGATIONS OF THE OWNER
V. REAL MORTGAGE 439 OF THE PROPERTY OR BUSINESS 447
A.3. EFFECT OF RATIFICATION 447
A. OBJECTS OF REAL MORTGAGE 439 A.4. EXTINGUISHMENT OF
B. OBLIGATIONS SECURED 439 MANAGEMENT 447
C. CHARACTERISTICS 439 B. SOLUTIO INDEBITI (UNDUE
C.1. CHARACTERISTICS OF THE PAYMENT) 447
COLLATERAL 439 C. OTHER QUASI-CONTRACTS 448
C.2. CHARACTERISTICS OF THE
MORTGAGE 439 IX. CONCURRENCE AND
D. KINDS 440 PREFERENCE OF CREDITS 450
E. PRINCIPLE OF INDIVISIBILITY
OF PLEDGE/MORTGAGE 440 A. WHEN RULES ON
F. ESSENTIAL REQUISITES PREFERENCE APPLICABLE 450
COMMON TO PLEDGE AND B. CLASSIFICATION OF CREDITS 450
MORTGAGE 441 B.1. SPECIAL PREFERRED CREDITS
G. FORECLOSURE OF ON SPECIFIC MOVABLE PROPERTY 451
MORTGAGE 441 B.2. SPECIAL PREFERRED CREDITS
G.1. JUDICIAL FORECLOSURE 441 ON SPECIFIC IMMOVABLE
G.2. EXTRAJUDICIAL PROPERTY AND REAL RIGHTS 452
FORECLOSURE 442 B.3. ORDINARY PREFERRED
G.3. NATURE OF POWER OF CREDITS 452
FORECLOSURE BY EXTRAJUDICIAL B.4. COMMON CREDITS 453
SALE 443 C. ORDER OF PREFERENCE OF
G.4. RIGHT TO SURPLUS OR CREDITS 453
DEFICIENCY 443 D. EXEMPT PROPERTY 453
G.5. EFFECT OF INADEQUACY OF
PRICE IN FORECLOSURE SALE 443 LAND TITLES AND DEEDS 454
H. WAIVER OF SECURITY BY
CREDITOR 443 I. TORRENS SYSTEM 455
I. REDEMPTION 444
CLASSIFICATION OF LANDS: 456
VI. ANTICHRESIS 445 ADVANTAGES 457
ADMINISTRATION OF THE TORRENS
A. CHARACTERISTICS 445 SYSTEM 457
B. FORMAL REQUISITES 445 CERTIFICATE OF TITLE 458
C. OBJECT OF THE CONTRACT 445 EFFECT OF REGISTRATION UNDER
D. AS DISTINGUISHED FROM THE TORRENS SYSTEM 458
OTHER CONTRACTS 445 EFFECT OF NON-REGISTRATION 459
D. OBLIGATIONS OF
ANTICHRETIC CREDITOR 445 II. THE REGALIAN DOCTRINE 460
E. REMEDIES OF CREDITOR IN
CASE OF NON-PAYMENT OF A. EFFECTS 461
DEBT 446 B. CONCEPT OF NATIVE TITLE,
TIME IMMEMORIAL POSSESSION 461
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III. CITIZENSHIP REQUIREMENT 462 CONTRACTUAL; PRESENCE OF


CONTRACTUAL RELATIONS 491
A. INDIVIDUALS 462 D.1. AS TO SOURCE 491
B. CORPORATIONS 463 D.2. AS TO BURDEN OF PROOF 491
D.3. AS TO APPLICABILITY OF THE
IV. ORIGINAL REGISTRATION 464 DOCTRINE OF PROXIMATE CAUSE 491
D.4. AS TO THE DEFENSE OF AN
A. KINDS OF ORIGINAL EMPLOYER FOR THE NEGLIGENCE
REGISTRATION 464 OF AN EMPLOYEE 491
B. WHO MAY APPLY 464
C. PROCEDURE IN ORDINARY II. QUASI-DELICT 492
LAND REGISTRATION 465
D. EVIDENCE NECESSARY 470 A. NEGLIGENCE 492
A.1. DEFAULT STANDARD OF
V. SUBSEQUENT REGISTRATION 471 CARE: GOOD FATHER OF A FAMILY 493
A.2. STANDARD OF CARE NEEDED
VI. CADASTRAL REGISTRATION 478 IN SPECIFIC CIRCUMSTANCES 493
A.3. PRESUMPTIONS OF
VII. JUDICIAL CONFIRMATION OF NEGLIGENCE 494
IMPERFECT TITLE 480 I. IN MOTOR VEHICLE MISHAPS 494
II. POSSESSION OF
A. FILING OF THE APPLICATION: 481 DANGEROUS WEAPONS OR
B. PROCEDURE IN JUDICIAL SUBSTANCES 496
CONFIRMATION: 481 III. COMMON CARRIERS 496
IV. RES IPSA LOQUITUR 496
VIII. REMEDIES 482 A.4. PERSONS LIABLE 496
B. CAUSE 502
IX. PETITIONS AND MOTIONS C. DEFENSES 504
AFTER ORIGINAL REGISTRATION 484 C.1. DUE DILIGENCE TO PREVENT
THE DAMAGE UNDER ARTICLE
X. DEALINGS WITH 2180 504
UNREGISTERED LANDS 486 C.2. ACTS OF PUBLIC OFFICERS 505
C.3. AUTHORITY OF LAW 505
XI. NON-REGISTERABLE C.4. DAMNUM ABSQUE INJURIA 505
PROPERTIES 487 C.5. PLAINTIFFS NEGLIGENCE IS
THE PROXIMATE CAUSE 505
TORTS 489 C.6. CONTRIBUTORY NEGLIGENCE
OF THE PLAINTIFF 505
I. PRELIMINARY C.7. FORTUITOUS EVENT 506
CONSIDERATIONS 490 C.8. PLAINTIFFS ASSUMPTION OF
RISK / VOLENTI NON FIT INJURIA 506
A. DEFINITION OF TORT 490 C.9. PRESCRIPTION 507
A.1. ACCORDING TO MANNER OF C.10. WAIVER 507
COMMISSION 490 C.11. EMERGENCY RULE OR
A.2. ACCORDING TO SCOPE 490 SUDDEN PERIL DOCTRINE 507
B. DEFINITION OF QUASI-DELICT 490
C. CULPA AQUILIANA III. INTENTIONAL TORTS 508
DISTINGUISHED FROM CRIME 491
D. CULPA AQUILIANA A. HUMAN RELATIONS TORTS 508
DISTINGUISHED FROM CULPA A.1. ABUSE OF RIGHT 508
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A.2. ACTS CONTRARY TO LAW 509 C. TYPES OF DAMAGES 531


A.3. ACTS CONTRARY TO MORALS 509
A.4. UNJUST ENRICHMENT 511 II. ACTUAL & COMPENSATORY
A.5. VIOLATION OF HUMAN DAMAGES 532
DIGNITY 511
FAMILY RELATIONS 513 III. MORAL DAMAGES 539
SOCIAL RELATIONS 514
ECONOMIC RELATIONS 514 IV. NOMINAL DAMAGES 546
A.6 DERELICTION OF DUTY 515
A.7. UNFAIR COMPETITION 515 V. TEMPERATE DAMAGES 547
B. INDEPENDENT CIVIL ACTIONS 515
B.1. VIOLATION OF CIVIL AND VI.LIQUIDATED DAMAGES 548
POLITICAL RIGHTS 515
B.2. DEFAMATION, FRAUD, VII. EXEMPLARY OR CORRECTIVE
PHYSICAL INJURIES 516 DAMAGES 549
B.3. NEGLECT OF DUTY 518
B.4. CATCH-ALL INDEPENDENT VIII. GRADUATION OF DAMAGES 552
CIVIL ACTION 518
IX. MISCELLANEOUS RULES 554
IV. LIABILITY ATTACHED TO DAMAGES THAT CANNOT CO-EXIST 554
SPECIFIC PERSONS 519 DAMAGES THAT MUST CO-EXIST 554

A. STRICT LIABILITY 519 PRIVATE INTERNATIONAL LAW 555


A.1. POSSESSOR OR USER OF
ANIMALS 519 I. INTRODUCTION 556
A.2. PROVINCES, CITIES, AND
MUNICIPALITIES 519 II. JURISDICTION AND CHOICE
A.3. PROPRIETOR OF BUILDING OR OF LAW 557
STRUCTURE 519
A.4. ENGINEER OR ARCHITECT OF A. JURISDICTION 557
COLLAPSED BUILDING 520 A.1. BASIS OF EXERCISE OF
A.5. OWNERS OF ENTERPRISES JUDICIAL JURISDICTION 557
OR OTHER EMPLOYERS 521 A.2. WAYS OF DEALING WITH A
A.6. HEAD OF A FAMILY FOR CONFLICTS PROBLEM 557
THINGS THROWN OR FALLING 521 B. CHOICE OF LAW 558
A.7. PRODUCTS LIABILITY 522 C. THE PROBLEM OF
I. MANUFACTURERS / CHARACTERIZATION 559
PROCESSORS OF C.1 CHARACTERIZATION AND THE
FOODSTUFFS 522 SINGLE-ASPECT METHOD 559
II. CONSUMER ACT RA 7394, C.2 DEPECAGE 560
SECS. 92-107 (CH. 1) 522 D. THE PROBLEM OF RENVOI 560
A.8. NUISANCE 525 D.1. DEFINITION 560
EASEMENT AGAINST NUISANCE 525 D.2. VARIOUS WAYS OF DEALING
WITH THE PROBLEM OF RENVOI 560
DAMAGES 530 E. NOTICE AND PROOF OF
FOREIGN LAW 560
I. DAMAGES 531 E.1. EXTENT OF JUDICIAL NOTICE 560
E.2. PROOF OF FOREIGN LAW 561
A. DEFINITION 531 E.3. EXCEPTIONS TO THE
B. WHEN ALLOWED 531 APPLICATION OF FOREIGN LAW 561
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III. PERSONAL LAW 561 CONTRACTS 566


C.3. CAPACITY TO ENTER INTO
A. NATIONALITY 561 CONTRACTS 567
A.1. IMPORTANCE OF A PERSONAL C.4. CHOICE OF LAW ISSUES IN
LAW 561 CONFLICTS CONTRACTS CASES 567
A.2. DETERMINATION OF C.5. ADHESION CONTRACTS 567
NATIONALITY 561 D. CHOICE OF LAW IN WILLS,
B. DOMICILE 562 SUCCESSION AND
B.1. DEFINITION 562 ADMINISTRATION OF ESTATES 567
B.2. GENERAL RULES ON D.1. EXTRINSIC VALIDITY OF WILLS 567
DOMICILE 562 D.2. INTRINSIC VALIDITY OF WILLS 567
B.3. KINDS OF DOMICILE 562 D.3. INTERPRETATION OF WILLS 567
C. PRINCIPLES ON PERSONAL D.4. REVOCATION 567
STATUS AND CAPACITY 562 D.5. PROBATE 567
C.1. DEFINITION 562 D.6. ADMINISTRATION OF
C.2. LEGISLATIVE JURISDICTION ESTATES 567
DISTINGUISHED FROM JUDICIAL E. CHOICE OF LAW IN TORTS
JURISDICTION 563 AND CRIMES 568
C.3. BEGINNING AND END OF E.1. LEX LOCI DELICTI COMMISSI 568
PERSONALITY 563 E.2. MODERN THEORIES ON
C.4. ABSENCE 563 FOREIGN TORT LIABILITY 568
C.5. NAME 563 E.3. FOREIGN TORT CLAIMS 568
C.6. AGE OF MAJORITY 563 E.4. DISTINGUISHING BETWEEN
C.7. CAPACITY 563 TORTS AND CRIMES 568
E.5. LEX LOCI DELICTI 568
IV. CHOICE OF LAW PROBLEMS 564 F. CHOICE OF LAW AFFECTING
CORPORATIONS AND OTHER
A. CHOICE-OF-LAW IN FAMILY JURIDICAL ENTITIES 569
RELATIONS 564 F.1. CORPORATIONS 569
A.1. MARRIAGE 564 F.2. PARTNERSHIPS 570
A.2. DIVORCE AND SEPARATION 565
A.3. ANNULMENT AND V. FOREIGN JUDGMENTS 571
DECLARATION OF NULLITY 565
A.4. PARENTAL RELATIONS 565 A. RECOGNITION AND
A.5. ADOPTION 566 ENFORCEMENT OF FOREIGN
B. CHOICE OF LAW IN PROPERTY 566 JUDGMENTS 571
B.1. THE CONTROLLING LAW 566
B.2. CAPACITY TO TRANSFER OR SUMMARY OF CONFLICTS OF LAW
ACQUIRE PROPERTY 566 RULES 573
B.3. EXTRINSIC AND INTRINSIC
VALIDITY OF CONVEYANCES 566
B.4. EXCEPTION TO LEX SITUS
RULE 566
B.5. SITUS OF CERTAIN
PROPERTIES 566
C. CHOICE OF LAW IN
CONTRACTS 566
C.1. EXTRINSIC VALIDITY OF
CONTRACTS 566
C.2. INTRINSIC VALIDITY OF
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CIVIL LAW
PERSONS AND
FAMILY RELATIONS

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I. Effect and Conclusive Presumption: That everyone


knows the law, even if they have no actual
Application of Laws knowledge of the law.
Mistake of Fact & Difficult Questions
of Law:
A. WHEN LAWS TAKE EFFECT These may excuse a party from the legal
consequences of his conduct; but not
Art. 2. Laws shall take effect after fifteen ignorance of law:
days following the completion of their In specific instances provided by law,
publication either in the Official Gazette, or in mistake as to difficult legal questions has
a newspaper of general circulation in the been given the same effect as a mistake
Philippines, unless it is otherwise of fact. (Tolentino)
provided. (As amended by E.O. 200)
The laws referred to by this article are
those of the Philippines. There is no
General Rules: conclusive presumption of knowledge of
foreign laws. (Tolentino)
The clause "unless it is otherwise provided"
refers to the date of effectivity and not to the
requirement of publication itself, which
cannot, in any event, be omitted. [Tanada vs
C. RETROACTIVITY OF LAWS
Tuvera (1986)]
Publication is indispensable in every case, but Art. 4. Laws shall have no retroactive effect,
the legislature may in its discretion provide unless the contrary is provided.
that the usual fifteen-day period shall be
shortened or extended. [Tanada vs Tuvera
General Rule: All statutes are to be
(1986)]
construed as having only prospective
When, on the other hand, the administrative operation.
rule goes beyond merely providing for the
Exceptions
means that can facilitate or render least
cumbersome the implementation of the law (1) When the law itself expressly provides
but substantially increases the burden of Exceptions to Exception:
those governed, it behooves the agency to a. Ex post facto law
accord at least to those directly affected a b. Impairment of contract
chance to be heard, and thereafter to be duly (2) In case of remedial statutes
informed, before that new issuance is given (3) In case of curative statutes
the force and effect of law. [Commissioner vs. (4) In case of laws interpreting others
Hypermix (2012)] (5) In case of laws creating new rights [Bona
v. Briones (1918)]
(6) Penal Laws favorable to the accused
Exception:
Interpretative regulations and those internal D. MANDATORY OR PROHIBITORY
in nature. [Tanada vs Tuvera (1986)] LAWS

Art. 5. Acts executed against the provisions


B. IGNORANCE OF THE LAW of mandatory or prohibitory laws shall be
void, except when the law itself authorizes
Art. 3. Ignorance of the law excuses no one their validity.
from compliance therewith. Art. 17, par. 3 Prohibitive laws concerning
persons, their acts or property, and those
which have for their object public order,
public policy and good customs shall not be
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rendered ineffective by laws or judgments The fundament is that the legislature should
promulgated, or by determinations or be presumed to have known the existing laws
conventions agreed upon in a foreign country. on the subject and not have enacted
conflicting statutes. Hence, all doubts must
be resolved against any implied repeal, and
E. WAIVER OF RIGHTS all efforts should be exerted in order to
harmonize and give effect to all laws on the
Art. 6. Rights may be waived, unless the subject. [Republic vs. Marcopper Mining
waiver is contrary to law, public order, public (2000)]
policy, morals, or good customs, or
prejudicial to a third person with a right G. JUDICIAL DECISIONS
recognized by law.
W aiver voluntary and intentional Art. 8. Judicial decisions applying or
relinquishment or abandonment of a known interpreting the laws or the Constitution shall
legal right or privilege. It has been ruled that form a part of the legal system of the
a waiver to be valid and effective must be Philippines.
couched in clear and unequivocal terms
Jurisprudence cannot be considered as an
which leave no doubt as to the intention of a
independent source of law; it cannot create
party to give up a right or benefit which
law. (1 Camus 38 as cited in Tolentino)
legally pertains to him [RB Michael Press v
Galit (2008)] The interpretation or construction placed by
the courts establishes the contemporaneous
legislative intent of the law. The latter as so
Exceptions:
interpreted and construed would thus
(1) If the waiver is contrary to law, public
constitute a part of that law as of the date the
order, public policy, morals or good
statute is enacted. It is only when a prior
customs
ruling of this Court finds itself later overruled,
(2) If the waiver prejudices a third person
and a different view is adopted, that the new
(3) If the alleged rights do not yet exist
doctrine may have to be applied prospectively
(4) If the right is a natural right
in favor of parties who have relied on the old
doctrine and have acted in good faith in
F. REPEAL OF LAWS accordance therewith. [Pesca v Pesca (2001)]

Art. 7. Laws are repealed only by subsequent


ones, and their violation or non-observance H. DUTY TO RENDER JUDGMENT
shall not be excused by disuse, or custom or
practice to the contrary. Art. 9. No judge or court shall decline to
render judgment by reason of the silence,
When the courts declared a law to be
obscurity or insufficiency of the laws.
inconsistent with the Constitution, the former
shall be void and the latter shall govern. Exception:
Administrative or executive acts, orders and This article does not apply to criminal
regulations shall be valid only when they are prosecutions because where there is no law
not contrary to the laws or the Constitution. punishing an act, the case must be dismissed.
(Tolentino)

Two Kinds of Repeal (Tolentino) I. PRESUMPTION AND APPLICABILITY


(1) Express or Declared contained in a OF CUSTOM
special provision of a subsequent law
(2) Implied or Tacit takes place when Art. 10. In case of doubt in the
the provisions of the subsequent law are interpretation or application of laws, it is
incompatible or inconsistent with those of presumed that the lawmaking body intended
an earlier law. right and justice to prevail.

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Art. 11. Customs which are contrary to law, K. APPLICABILITY OF PENAL LAWS
public order or public policy shall not be
countenanced.
Art. 14. Penal laws and those of public
Art. 12. A custom must be proved as a fact, security and safety shall be obligatory upon
according to the rules of evidence. all who live or sojourn in the Philippine
territory, subject to the principles of public
international law and to treaty stipulations.
J. LEGAL PERIODS
Exemptions under International Law
(Theory of Extraterritoriality):
Art. 13. When the laws speak of years,
months, days or nights, it shall be understood (1) When the offense is committed by a
that years are of three hundred sixty-five days foreign sovereign while in Philippine
each; months, of thirty days; days, of twenty- territory
four hours; and nights from sunset to sunrise. (2) When the offense is committed by
diplomatic representatives
If months are designated by their name, they
shall be computed by the number of days (3) When the offense is committed in a
public or armed vessel of a foreign
which they respectively have.
country.
In computing a period, the first day shall be
excluded, and the last day included.
L. BINDING EFFECT
Revised Adm inistrative Code Section
31. Legal Periods. - "Year" shall be Art. 15. Laws relating to family rights and
understood to be twelve calendar months; duties, or to the status, condition and legal
"month" of thirty days, unless it refers to a capacity of persons are binding upon citizens
specific calendar month in which case it shall of the Philippines, even though living abroad.
be computed according to the number of Art. 16. Real property as well as personal
days the specific month contains; "day," to a property is subject to the law of the country
day of twenty-four hours; and "night," from where it is stipulated.
sunset to sunrise.
However, intestate and testamentary
successions, both with respect to the order of
Policy on Last Day being a Legal succession and to the amount of successional
Holiday/Sunday rights and to the intrinsic validity of
If the period arises by statute or orders by the testamentary provisions, shall be regulated
government, the last day will automatically by the national law of the person whose
be considered the next working day succession is under consideration, whatever
If the period arises from a contractual may be the nature of the property and
relationship, the act will still be due on that regardless of the country wherein said
Legal Holiday/Sunday property may be found.
There obviously exists a manifest Art. 17.The forms and solemnities of
incompatibility in the manner of computing
contracts, wills, and other public instruments
legal periods between the Civil Code and the
Revised Administrative Code of 1987. Since shall be governed by the laws of the country
the Administrative Code is the more recent in which they are executed.
law, it governs the computation of legal When the acts referred to are executed before
period [CIR vs Primetown (2007)]
the diplomatic or consular officials of the
Republic of the Philippines in a foreign
country, the solemnities established by
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Philippine laws shall be observed in their


execution.
II. Persons and
Prohibitive laws concerning persons, their Personality
acts or property, and those which have, for
their object, public order, public policy and A. CONCEPT OF PERSON AND
good customs shall not be rendered PERSONALITY
ineffective by laws or judgments
promulgated, or by determinations or Juridical Capacity Capacity to Act
conventions agreed upon in a foreign country.
Fitness of man to be the Power to do acts
subject of legal with legal effect
relations
Passive Active

Aptitude for the Holding Aptitude for the


and Enjoyment of rights Exercise of rights

Inherent in natural Must be acquired


persons
Lost upon death Lost through
death and other
causes
Can exist without Must exist with
capacity to act juridical capacity

Cannot be limited or May be restricted


restricted or limited

Art. 37. Juridical capacity, which is the


fitness to be the subject of legal relations, is
inherent in every natural person and is lost
only through death. Capacity to act, which is
the power to do acts with legal effect, is
acquired and may be lost.
N.B.: Juridical capacity can exist even
without capacity to act; the existence of the
latter implies that of the former. Full civil
capacity is the existence of both capacity to
act and juridical capacity.
Capacity and incapacity depends on the law,
therefore it cannot be modified by
agreements. It is a matter of public interest.
(Tolentino)

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B. COMMENCEMENT AND An aborted fetus had conditional personality


TERMINATION OF PERSONALITY but never acquired legal rights/civil
personality because it was not alive at the
Art. 40. Birth determines personality; but
time of delivery from the mothers womb. No
the conceived child shall be considered born
damages can be claimed in behalfof the
for all purposes favorable to it, provided that
unborn child. [Geluz vs CA (1961)]
it be born later with the conditions specified
in the following article.
C. DEATH
Art. 41. For civil purposes, the fetus is
considered born if it is alive at the time it is Art. 42. Civil personality is extinguished by
completely delivered from the mothers death. The effect of death upon the rights
womb. However, if the fetus had an intra- and obligations of the deceased is
uterine life of less than seven months, it is determined by law, by contract and by will.
not deemed born if it dies within twenty-four
Art. 43. If there is a doubt, as between two
hours after its complete delivery from the
or more persons who are called to succeed
maternal womb.
each other, as to which of them died first,
whoever alleges the death of one prior to the
other, shall prove the same; in the absence of
Birth complete removal of the fetus from proof, it is presumed that they died at the
the mothers womb; before birth, a fetus is same time and there shall be no transmission
merely part of the mothers internal organs. It of rights from one to the other.
is enough that the child lives even for an
instant. Criminal liability ends with death BUT civil
liability may be charged against the estate
Proof that the fetus was alive upon [People v. Tirol, (1981)].
separation is complete respiration as atest or Note: Article 43 provides a statutory
sign of independent life presumption when there is doubt on the
It is presumed that the child was alive and it order of death between persons who are
is the contradicting party who has the burden called to succeed each other (only).
of proof.
The statutory presumption of Article 43 was
not applied due to the presence of a credible
Intra-Uterine Life When Considered Born eyewitness as to who died first [Joaquin v.
Navarro, (1948)].
7 m onths or Alive upon delivery
more
Compare Art. 43 with Rule 131, Sec. 3
Less than 7 Alive only after (jj), presum ption of Survivorship.
months completion of 24 hours
from delivery Art. 43 Rule 131, Sec. 3 (jj)

Only use the presumptions when there are


Personality of Conceived Child no facts to get inferences from
(1) Limited - only for purposes favorable to it.
(2) Conditional - it depends upon the child Only use for Cannot be used for
being born alive later succession succession purposes
purposes
A conceived child can acquire rights while
still in the mothers womb. It can inherit by In any Only during death in
will or by intestacy. circumstance calamities, wreck,
Period of Conception -the first 120 days battle or conflagration
of the 300 days preceding the birth of the
child.

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Presumption of Survivorship in the actions, in conformity with the laws and


Rules of Court (Rule 131, sec. 3, (jj.) regulations of their organization.

Age Presumed Survivor Article 47. Upon the dissolution of


corporations, institutions and other entities
for public interest or purpose mentioned in
Both under 15 Older No. 2 of article 44, their property and other
Both above 60 Younger assets shall be disposed of in pursuance of
law or the charter creating them. If nothing
One under 15, the One under 15 has been specified on this point, the property
other above 60 and other assets shall be applied to similar
purposes for the benefit of the region,
Both over 15 and Male province, city or municipality which during
under 60; different the existence of the institution derived the
sexes principal benefits from the same.
Both over 15 and Older
under 60; same sex
Concept of Juridical Persons is that an
One under 15 or over One between 15 abstract being is formed for the realization of
60, the other between and 60 a collective purpose that the law granted with
those ages capacity for rights and obligations. It requires
recognition of the State and is independent of
the members (Tolentino).
D. JURIDICAL PERSONS
E. RESTRICTIONS ON CIVIL CAPACITY
Article 44. The following are juridical
persons:
E. 1. PRESUMPTION OF CAPACITY
(1) The State and its political subdivisions;
Article 37. Juridical capacity, which is the
(2) Other corporations, institutions and fitness to be the subject of legal relations, is
entities for public interest or purpose, created inherent in every natural person and is lost
by law; their personality begins as soon as only through death. Capacity to act, which is
they have been constituted according to law; the power to do acts with legal effect, is
(3) Corporations, partnerships and acquired and may be lost.
associations for private interest or purpose to
which the law grants a juridical personality,
separate and distinct from that of each E. 2. RESTRICTIONS ON CAPACITY TO ACT
shareholder, partner or member. Art. 38.Minority, insanity or imbecility, the
Article 45.Juridical persons mentioned in state of being a deaf-mute, prodigality and
Nos. 1 and 2 of the preceding article are civil interdiction are mere restrictions on
governed by the laws creating or recognizing capacity to act, and do not exempt the
them. incapacitated person from certain
obligations, as when the latter arise from his
Private corporations are regulated by laws of acts or from property relations, such as
general application on the subject. easements.
Partnerships and associations for private Art. 39. The following circumstances,
interest or purpose are governed by the among others, modify or limit capacity to act:
provisions of this Code concerning age, insanity, imbecility, the state of being a
partnerships. deaf-mute, penalty, prodigality, family
Article 46. Juridical persons may acquire relations, alienage, absence, insolvency and
and possess property of all kinds, as well as trusteeship. The consequences of these
incur obligations and bring civil or criminal circumstances are governed in this Code,

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other codes, the Rules of Court, and in special Minors are obliged to make restitution insofar
laws. as they have been benefited (Art. 1399).
[Braganza vs Villa Abrille (1959]
Capacity to act is not limited on account of
religious belief or political opinion. Effects on Marriage
A married woman, twenty-one years of age or (1) May not yet contract marriage (Art. 5, FC).
over, is qualified for all acts of civil life, except
(2) Marriages, where one of the parties is
in cases specified by law.
below 18, even with the consent of
General rule: Incapacitated persons are parents/guardians, are void (Art. 35, FC).
not exempt from certain obligations arising
Effect on Crimes
from his acts or property relations.
(1) General rule: EXEMPTED from criminal
liability
I. Minority (2) Exception: Acted with discernment, and
RA 6809 (1989): An act lowering the age the minor is between 15 and 18 years of
of majority from twenty-one to eighteen years. age.
Effects on Contracts
(1) They cannot give consent to a contract II. Insanity
(Art. 1327 (1)) Insanity includes many forms of mental
(2) A contract where one of the parties is a disease, either inherited or acquired. A
minor is voidable(Art. 1390(1)) person may not be insane but only mentally
deficient (idiocy, imbecility, feeble-
(3) A contract is unenforceable when both of mindedness).
the parties are minors (incapable of
giving consent) (Art. 1403(3)) Effect on Contracts
(4) Minority cannot be asserted by the other (1) Incapacity to give consent to a contract
party in an action for annulment (Art. (Art. 1327(2))
1397) (2) Contracts entered into during lucid
(5) Not obliged to make restitution intervals are valid (Art. 1328)
exceptinsofar as he has been benefited (3) Restitution of benefits (Art. 1399)
(Art. 1399)
(4) Voidable if one of the parties is insane
(6) Minor has no right to demand the (Art. 1390)
thing/price voluntarily returned by him
(Art. 1426) (5) Unenforceable if both of the parties are
insane (Art. 1403 (3))
(7) Minor has no right to recover voluntarily
paid sum or delivered thing, if consumed Effect on Crimes
in good faith (Art. 1427) (1) General rule: EXEMPTED from criminal
(8) Must pay reasonable amount for liability
necessaries delivered to him (Art. 1489) (2) Exception: Acted during lucid interval
Effect on Marriage
Estoppel works against minors who May be annulled if either party was of
misrepresent their ages in a contract and are unsound mind unless the such party after
compelled to comply with its terms. [Mercado coming to reason, freely cohabited with the
vs Espiritu (1918)] other (Art. 45(2), FC)
When a minor made no active Action for annulment of marriage must be
misrepresentation as to his minority and such filed by the sane spouse who had no
minority is known to the other party, the knowledge of the others insanity, or by any
contract is voidable as to the minor. relative/guardian of the insane before the
[Bambalan vs Miranda (1928)]
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death of either party; or by the insane spouse (1) It is an accessory penalty imposed upon
during a lucid interval or after regaining persons who are sentenced to a principal
sanity (Art. 47(2), FC) penalty not lower than reclusion
temporal (Art. 41, RPC).
In the absence of proof that the defendant
had lost his reason or became demented a (2) Offender is deprived of rights of parental
few moments prior to or during the authority, or guardianship, of marital
perpetration of the crime, it is presumed that authority, of the right to manage his
he was in a normal condition of mind. It is property and of the right to dispose of
improper to conclude that he acted such by any act inter vivos (Art. 34, RPC)
unconsciously, in order to relieve him from
(3) For the validity of marriage settlements,
responsibility on the ground of exceptional
the participation of the guardian shall be
mental condition, unless his insanity and
indispensable(Art. 123)
absence of will are proven. [USA vs Vaguilar
(1914)]
Capacity to act must be supposed to attach to VI. Fam ily relations
a person who has not previously been
(1) Justifying circumstance if acted in
declared incapable, and such capacity is
defense of person/rights of spouse,
presumed to continue so long as the contrary
ascendants, descendants,
be not proved, that is, that at the moment of
brothers/sisters, and other relatives up to
his acting he was incapable, crazy, insane, or
the 4th civil degree (Art. 11(2), RPC)
out his mind [Standard Oil vs Arenas (1911)]
(2) Mitigating circumstance if acted in the
immediate vindication of a grave
III. Deaf-Mutism offense/felony committed against his
spouse, ascendants or relatives of the
(1) Cannot give consent to a contract if
same civil degree (Art. 13(5), RPC)
he/she also does not know how to write
(Art. 1327(2), CC) (3) Incestuous and void marriages:
(2) Can make a valid WILL, provided: he must Between ascendants and
personally read the will. The contents of descendants of any degree;
the same have either been read
personally by him or otherwise Between brothers and sisters,
communicated to him by 2 persons (Art. whether full or half-blood. (Art. 37,
807, CC) FC)

(3) Cannot be a witness to the execution of a (4) Donations/grants of gratuitous


will (Art. 820, CC) advantage between spouses during the
marriage shall be VOID, except moderate
(4) Voidable if one of the parties is deaf-mute gifts during family occasions (Art. 87, FC)
and does not know how to write
(5) Prescription does not run between
(5) Unenforceable if both of the parties are spouses, parent and child, guardian and
deaf-mutes and does not know how to ward (Art. 1109)
write
(6) Descendants cannot be compelled to
testifyin a criminal case, against his
IV. Prodigality parents and grandparents

Incompetent includes prodigals (Rules of UNLESS: crime was against the


Court Rule 92, Sec 2) descendant OR by one parent against
the other (Art. 215, FC)
Note: It is not the circumstance of
prodigality, but the fact of being under (7) Spouses cannot sell property to each
guardianship that restricts capacity to act. other, EXCEPT:

V. Civil interdiction Absolute separation is agreed upon in


the marriage settlements
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Judicial separation of property (Art. Art. 391.The following shall be presumed


1490) dead for all purposes, including the
division of the estate among the heirs:
(8) A suit between family members cannot
prosper without any showing that 1. A person on board a vessel lost during a
earnest effort towards a compromise sea voyage, or an aeroplane which is missing,
have been made but have failed (Art. 151, who has not been heard of for four years
FC) since the loss of the vessel or aeroplane;
EXCEPT: questions on civil status of
2. A person in the armed forces who has
persons, validity of a marriage or a
legal separation, any ground for taken part in war, and has been missing for
legal separation, future support, four years;
jurisdiction of courts, future legitime 3. A person who has been in danger of death
(Art. 2035).
under other circumstances and his existence
has not been known for four years.
VII. Alienage
Dual citizenship is different from dual Art. 41.A marriage contracted by any person
allegiance. The former arises when, as a
during subsistence of a previous marriage
result of the concurrent application of the shall be null and void, unless before the
different laws of two or more states, a person
celebration of the subsequent marriage, the
is simultaneously considered a national by prior spouse had been absent for four
the said states. Dual allegiance, on the other
consecutive years and the spouse present has
hand, refers to the situation in which a person a well-founded belief that the absent spouse
simultaneously owes, by some positive act, was already dead. In case of disappearance
loyalty to two or more states. While dual
where there is danger of death under the
citizenship is involuntary, dual allegiance is circumstances set forth in the provisions of
the result of an individuals volition. For
Article 391 of the Civil Code, an absence of
candidates with dual citizenship, it should only two years shall be sufficient.
suffice if, upon the filing of their certificates of
candidacy, they elect Philippine citizenship to For the purpose of contracting the
terminate their status as persons with dual subsequent marriage under the preceding
citizenship considering that their condition is paragraph the spouse present must institute
the unavoidable consequence of conflicting a summary proceeding as provided in this
laws of different states. [Cordora vs COMELEC Code for the declaration of presumptive
(2009)] death of the absentee, without prejudice to
the effect of reappearance of the absent
spouse.
VIII. Absence Art. 42.The subsequent marriage referred to
Art. 390. After an absence of seven years, it in the preceding Article shall beautomatically
being unknown whether or not the absentee terminated by the recording of the affidavit of
still lives, he shall be presumed dead for all reappearance of the absent spouse, unless
purposes, except for those of there is a judgment annulling the previous
succession. marriage or declaring it void ab initio.
The absentee shall not be presumed dead for A sworn statement of the fact and
the purpose of opening his succession till circumstances of reappearance shall be
after an absence of ten years. If he recorded in the civil registry of the residence
disappeared after the age of seventy-five of the parties to the subsequent marriage at
years, an absence of five years shall be the instance of any interested person, with
sufficient in order that his succession may be due notice to the spouses of the subsequent
opened. marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed.
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Art. 255. This Code shall have retroactive


F. DOMICILE AND RESIDENCE OF effect insofar as it does not prejudice or
PERSON impair vested or acquired rights in
accordance with the Civil Code or other laws.

For Natural Persons:


The place of their habitual residence (Art. 50) The Family Code took effect on August 3,
For Juridical Persons: 1988.

The place where their legal representation is


established, or where they exercise their B. REPEAL AND AMENDMENT
primary functions, unless there is a law or
other provision that fixes the domicile (Art. Art. 254. If any provision of this Code is held
51) invalid, all the other provisions not affected
Dom icile vs. Residence thereby shall remain valid.

While domicile is permanent (there is intent


to remain), residence is temporary and may
be changed anytime (there is no necessary
intent to remain).
Requisites of Dom icile [Gallego v. Vera
(1941)]
1. Physical Presence in a fixed place
2. Intent to remain permanently (animus
manendi)
Kinds of Dom icile
(1) Domicile of Origin
Domicile of parents of a person at the
time he was born.
(2) Domicile of Choice
Domicile chosen by a person,
changing his domicile of origin.
A 3rd requisite is necessary
intention not to return to ones
domicile as his permanent place.
(3) Domicile by Operation of Law (i.e., Article
69, domicile of minor)
A married woman does not lose her
domicile to her husband.
[Romualdez-Marcos vs. Comelec
(1995)]

III. Family Code


A. EFFECT AND RETROACTIVITY

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IV. Marriage And answerable in damages in accordance with


Article 21 aforesaid. [Wassmer vs Velez (1964)]
Personal Relationship Article 21 may be applied in a breach of
promise to marry where the woman is a
Between Spouses victim of moral seduction. [Baksh vs CA
(1993)]
A. CONCEPT OF MARRIAGE
C. REQUISITES
Art. 1, FC. Marriage is a special contract of
permanent union between a man and a C.1. KINDS OF REQUISITES AND EFFECTS
woman entered into in accordance with law OF NON-COMPLIANCE
for the establishment of conjugal and family
life. It is the foundation of the family and an Essential Requisites Formal Requisites (Art.
inviolable social institution whose nature, (Art. 2) 3)
consequences, and incidents are governed by
law and not subject to stipulation, except Legal Capacity of Authority of
that marriage settlements may fix the the contracting solemnizing officer
property relations during the marriage within parties, who must
the limits provided by this Code. be a male and a
1987 Constitution Article XV, Section female
2. Marriage, as an inviolable social
institution, is the foundation of the family Consent (of the A valid marriage
and shall be protected by the State. parties) freely given license
in the presence of a
(subject to exceptions)
solemnizing officer.

Marriage is an institution, in the maintenance Marriage Ceremony


of which in its purity the public is deeply
interested. It is a relation for life and the
parties cannot terminate it at any shorter
period by virtue of any contract they may Exceptions for a valid marriage
make .The reciprocal rights arising from this license:
relation, so long as it continues, are such as (1) Marriages in articulo mortis or when one
the law determines from time to time, and or both parties are at the point of death,
none other. [Goitia vs Campos Rueda (1916)]
(2) Marriage in isolated places with no
available means of transportation,
B. AGREEMENTS PRIOR TO MARRIAGE (3) Marriage among Muslims or other
ethnic cultural communities,
Extrajudicial dissolution of the conjugal Marriages of those who have lived together
partnership without judicial approval is void. as husband and wife without any legal
[Espinosa vs Omana (2011)] impediment for at least 5 years
Mere breach of promise to marry is not an
actionable wrong. But to formally set a
wedding and go through all the above- Effect of absence of requisites
described preparation and publicity, only to
walk out of it when the matrimony is about to Absence Defect or Irregularity
be solemnized, is quite different. This is
palpably and unjustifiably contrary to good Effect VOID VOIDABLE
customs for which defendant must be held

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Essential Requisites Fraud here refers to matters which relate to


the marital relation:
1. Gender Non-disclosure of previous conviction by
final judgment of a crime involving moral
N.B.: The best source for citing the
turpitude;
requirement of male/female is still statutory,
as provided explicitly in the Family Code. Concealment of pregnancy by another
Changing of sex in ones birth certificate on man;
the basis of sex reassignment shall be Concealment of a sexually transmitted
denied; otherwise, it would result in disease;
confusion and would allow marriage between
persons of the same sex which is in defiance Concealment of drug addiction,
of the law, as marriage is a union between a alcoholism, lesbianism, or homosexuality
man and a woman.[Silverio v. Republic
(2007)]
Formal Requisites

2. Age
1. Cerem ony
Legal Capacity (Art. 5)
Marriage Ceremony
Male or female 18 years old and above, not
under any of the impediments mentioned in No prescribed form or religious rite for the
Art. 37 (incestuous marriages) & Art. 38 solemnization of marriage is required. (Art. 6)
(marriages against public policy) may The couple's written agreement where they
contract marriage. declare themselves as husband and wife,
signed by them before a judge and two
capable witnesses, even though it was
3. Consent freely given independently made by them, still counts as
Consent here refers to the consent of the a valid ceremony. [Martinez v. Tan, (1909)]
contracting parties; not of the Minimum requirements prescribed by
parent/guardian in those cases where such law:
consent is required (when either party is
between 18 to 21 years of age). 1. Appearance of contracting parties
personally before the solemnizing officer
Absence: (Art. 3)
A marriage entered into by a person whose 2. Personal declaration that they take each
real intent is to avoid prosecution for rape is other as husband and wife. (Art. 3)
void for total lack of consent. The accused did
not intend to be married. He merely used 3. Presence of at least two witnesses of
such marriage to escape criminal liability. legal age. (Art. 3)
[People v. Santiago, (1927)] 4. The declaration shall be contained in the
Defect: Marriage Certificate. (Art. 6)
5. Marriage certificate shall be signed by the
Art. 45, FC. A marriage may be annulled for contracting parties and their witnesses
any of the following causes existing at the and attested by the solemnizing officer.
time of the marriage: xxx (3) that the consent (Art. 6)
of either party was obtained by fraud, unless
such party afterwards, with full knowledge of N.B.: In a marriage in articulo mortis, when
the facts constituting the fraud, freely one or both parties are unable to sign the
cohabited with the other as husband and marriage certificate, it shall be sufficient for
wife. one of the witnesses to write the name of said
party, which shall be attested by the
solemnizing officer. (Art. 6, par. 2)

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Places where marriage shall be publicly Articulo Mortis


solemnized:
1. Chambers of the judge or in open court (1) Ship Captain or Airplane Chief may
2. Church, chapel, or temple solemnize a marriage in articulo mortis
between passengers or crew members
3. Office of the consul-general, consul, or (Art. 7, 31)
vice-consul (Art. 8)
Exceptions: (2) A Military commander of a unit may
solemnize marriages in articulo mortis
Marriages performed in articulo mortis or between persons w/in the zone of
in remote places. (Art. 29) military operation. (Art. 7, 32)
Where both parties request in writing that
marriage be solemnized at a place Marriages Abroad
designated by them.
N.B.: Non-compliance with this requirement (1) Consul-general, consul or vice-consul
does not invalidate the marriage (premise: may solemnize marriages between
Filipino citizens abroad. (Art. 7, 10)
more witnesses = more people can notify
officer of impediments to marriage).

Where a judge solemnizes a marriage outside


2. Authority of the Solemnizing his jurisdiction, there is a resultant
Officer irregularity in the formal requisite laid down
in Article 3, which while it may not affect the
W ho may solemnize marriage:
validity of the marriage, may subject the
Normal Circumstances officiating official to administrative liability.
[Navarro v. Domagtoy (1996); Aranes v.
Occiano (2002)]
(1) Incumbent member of the Judiciary
within his jurisdiction. (Art. 7) A marriage which preceded the issuance of
the marriage license is void and the
(2) Priest, Rabbi, Imam or Minister of any subsequent issuance of such license cannot
Church or Religious Sect. Must be: render valid the marriage. Except in cases
(a) Duly authorized by his church or provided by law, it is the marriage license
religious sect that gives the solemnizing officer the
authority to solemnize a marriage. [Aranes v
(b) Registered with the civil registrar Occiano (2002)].
general
(c) Acting within the limits of the written 3. License required
authority granted to him by his
church or religious sect. GENERAL RULE: License required, which is
issued by local registrar of city or municipality
(d) At least one of the contracting where either contracting party habitually
parties belongs to the solemnizing resides (Art. 9).Each contracting party should
officers church or religious sect. (Art. file separately. (Art. 11)
7)
RA 10354, Sec 15 Certificate of
(3) Municipal and City Mayors (LGC sec. 444- Compliance No marriage license shall be
455) issued by the Local Civil Registrar unless the
applicants present a Certificate of
(4) Compliance issued for free by the local
Family Planning Office certifying that they
had duly received adequate instructions and
information on responsible parenthood,

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family planning, breastfeeding, and infant (4) Marriages by Muslims and Ethnic cultural
nutrition. minorities provided they are solemnized
in accordance with their customs, rites or
W here Valid: License valid in any part of
practices. (Art. 33)
the Philippines
(5) Marriage by parties who have cohabited
Period of Validity: It will be valid for 120
for at least 5 years without any legal
days from date of issue, automatically
impediment to marry each other. (Art. 34,
cancelled at the expiration of such period.
Ninal vs. Badayog (2000))

I. Special Situations
Requisites for the 5-year cohabitation
a. Anyone between 18-21 years old who has
to be valid for the exemption from
not yet been emancipated must present
acquiring a marriage license
the written consent that was given by his
or her parent or guardian. (Art. 14) (1) The man and woman must have been
living together as husband and wife for at
b. Anyone between 21-25 must ask for
least five years before the marriage;
advice from his or her parents or
guardians. If the advice wasnt obtained, (2) The parties must have no legal
the marriage license will only be impediment to marry each other;
released 3 months after the publication (3) The fact of absence of legal impediment
of the application. (Art. 15) between the parties must be present at
the time of marriage;
II. Foreign National (1) The parties must execute an affidavit
stating that they have lived together for
When either or both parties are foreign
at least five years [and are without legal
nationals: Certificate of legal capacity
impediment to marry each other]; and
to contract marriage, issued by a
diplomatic or consular official, shall be (2) The solemnizing officer must execute a
submitted before a marriage license can be sworn statement that he had ascertained
obtained (Art. 21) the qualifications of the parties and that
he had found no legal impediment to
Stateless persons or refugees from other
their marriage.
countries: Affidavit stating
circum stances showing capacity to [Borja-Manzano vs. Judge Sanchez (2001)]
contract marriage, instead of certificate of
legal capacity (Art. 21)
4. M arriage certificate
Absence and irregularity of marriage license
III. Exceptions
and contract
(1) Marriage in articulo mortis (Art. 27)
There is a presumption of regularity of official
The marriage may be solemnized acts, and the issuance of the Civil Registrar of
without the necessity of a marriage a Certificate of Due Search and Inability to
license. Findthe application for a marriage license
certifies its inexistence, rendering the
It remains valid even if ailing party marriage void. [Republic v. CA and Castro
survives. (1994)]
(1) Between passengers or crew members in Before a marriage can be solemnized, a valid
a ship or airplane (Art. 31) marriage license must be presented first,
(2) Persons within a military zone (Art. 32) otherwise, it is void. [Moreno v. Bernabe
(1995)]
(3) Marriage in remote and inaccessible
places (Art. 28)

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Marriage Certificate Exceptions:


Where parties declare that they take each (1) Marriage between persons below 18 years
other as husband and wife; contains the ff: old (Art. 35(1))
(1) Full name, sex, age of party (2) Bigamous or polygamous marriage (Art.
35(4))
(2) Citizenship, religion, habitual residence
(3) Mistake in identity (Art. 35 (5))
(3) Date and precise time of celebration of
marriage (4) Marriages void under Article 53 (Art. 35
(6))
(4) That marriage license was properly
issued (except in marriages of exceptional (5) Psychological incapacity (Art. 36)
character)
(6) Incestuous marriages (Art. 37)
(5) That parental consent was secured, when
(7) Marriage void for reasons of public policy
required
(Art. 38)
(6) That requirement as to parental advice
was complied with, when required
(7) That parties have entered into marriage Essential requisites Formal requisites
settlements, if any (Art. 22)
Inherent in the parties, Requirements
N.B.: Not an essential or formal requisite
carried everywhere independent of the
without which the marriage will be
parties
void[Madridejo v. de Leon (1930)]
Best evidence that a marriage does exist. Lex Nationalii Laws Lex loci celebrationis-
relating to family rights if valid where
[Tenebro v. CA (2004)]
and duties, or to the celebrated, then valid
status, condition, and everywhere; forms of
legal capacity of contracting marriage
D. LAW GOVERNING VALIDITY OF persons are binding are to be regulated
MARRIAGES ABROAD upon Phil citizens even by the law where it is
though living abroad celebrated. (Art. 26)
General rule in contracts (Art. 15)

As to form: Governed by the laws of the Foreign marriages void Foreign marriages
country in which they were executed (NCC Art. under Phil law due to may be void under
17) lack of an essential Phil law due to
requisite, even if valid absence of a formal
As to substantive requirements: Laws
under foreign laws, will requisite under
relating to family rights and duties, or to the not be recognized. foreign laws.
status, condition and legal capacity of
persons, prohibitive laws regarding the
person, his or her property, those which have Proof of Foreign Marriage in order that it
for their object public order, public policy and may be upheld:
good customs bind all Filipinos regardless of
location. (NCC Art. 15, 17) (1) Provisions of the foreign law
Marriages Celebrated Abroad (2) Celebration of the marriage in
accordance with said provisions
GENERAL RULE: Marriages solemnized
abroad in accordance with the laws in force in Foreign Divorces
that country shall be valid in the Philippines.
Those obtained by Filipino citizens are
(Art 26, par.1)
void under Philippine law.
If the foreign spouse obtains a valid
divorce decree abroad capacitating
him/her to remarry, the Filipino spouse
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shall have capacity to remarry under through their work or industry shall be
Philippine law. (Art. 26, par.2) governed by the rules on co-ownership.
Marriages dissolved by foreign In the absence of proof to the contrary,
judgm ent properties acquired while they lived together
shall be presumed to have been obtained by
Aliens may obtain divorces abroad, which
their joint efforts, work or industry, and shall
may be recognized in the Philippines,
be owned by them in equal shares. For
provided they are valid according to their
purposes of this Article, a party who did not
national law. The marriage tie when thus
participate in the acquisition by the other
severed as to one party, ceases to bind
party of any property shall be deemed to have
either. [Van Dorn vs Romillo (1985)]
contributed jointly in the acquisition thereof if
A marriage between two Filipinos cannot be the former's efforts consisted in the care and
dissolved even by a divorce obtained abroad, maintenance of the family and of the
because of Articles 15 and 17 of the Civil Code. household.
In mixed marriages involving a Filipino and a
Neither party can encumber or dispose by
foreigner, Article 26 of the Family Code
allows the former to contract a subsequent acts inter vivos of his or her share in the
property acquired during cohabitation and
marriage in case the divorce is validly
owned in common, without the consent of the
obtained abroad by the alien spouse
other, until after the termination of their
capacitating him or her to remarry. A divorce
cohabitation.
obtained abroad by a couple, who are both
aliens, may be recognized in the Philippines, When only one of the parties to a void
provided it is consistent with their respective marriage is in good faith, the share of the
national laws. [Garcia vs Recio (2001)] party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
The citizenship of the spouses at the time of
case of default of or waiver by any or all of the
the divorce determines their capacity to
common children or their descendants, each
obtain a valid divorce. [Quita v. Dandan
vacant share shall belong to the respective
(1998)]
surviving descendants. In the absence of
Courts will only determine (1) whether the descendants, such share shall belong to the
foreign judgment is inconsistent with an innocent party. In all cases, the forfeiture
overriding public policy in the Philippines; shall take place upon termination of the
and (2) whether any alleging party is able to cohabitation.
prove an extrinsic ground to repel the foreign
Art. 148. In cases of cohabitation not falling
judgment, i.e. want of jurisdiction, want of
under the preceding Article, only the
notice to the party, collusion, fraud, or clear
properties acquired by both of the parties
mistake of law or fact. If there is neither
through their actual joint contribution of
inconsistency with public policy nor adequate
money, property, or industry shall be owned
proof to repel the judgment, Philippine courts
by them in common in proportion to their
should, by default, recognize the foreign
respective contributions. In the absence of
judgment as part of the comity of nations.
proof to the contrary, their contributions and
[Fujiki vs Marinay (2013)]
corresponding shares are presumed to be
equal. The same rule and presumption shall
apply to joint deposits of money and
E. COMMON-LAW MARRIAGES evidences of credit.
If one of the parties is validly married to
Art. 147. When a man and a woman who are another, his or her share in the co-ownership
capacitated to marry each other, live shall accrue to the absolute community or
exclusively with each other as husband and conjugal partnership existing in such valid
wife without the benefit of marriage or under marriage. If the party who acted in bad faith
a void marriage, their wages and salaries is not validly married to another, his or her
shall be owned by them in equal shares and shall be forfeited in the manner provided in
the property acquired by both of them

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the last paragraph of the preceding Article. F. 1. VOID MARRIAGES


The foregoing rules on forfeiture shall Type of Void Marriages
likewise apply even if both parties are in both
(1) Absence of any formal/essential
faith.
requisites
(2) Bigamous and polygamous marriages
Though there is no technical marital (3) Subsequent marriage, upon
partnership between person living maritally reappearance of spouse
without being lawfully married, nevertheless
there is between them an informal civil (4) Bad faith of both spouses
partnership which would entitle the parties to (5) Psychologically Incapacitated spouse
an equal interest in property acquired by their
joint efforts [Lesaca vs Lesaca (1952)] (6) Void subsequent marriages
(7) Incestuous Marriages
F. VOID AND VOIDABLE MARRIAGES (8) Non-compliance with recording
requirement after declaration of nullity

Presumption of Marriage Art. 39. The action or defense for the


declaration of absolute nullity shall not
(1) Presumption in favor of a valid marriage prescribe. However, in case of marriage
(Art 220, CC) celebrated before the effectivity of this Code
(2) The presumption that a man and a and falling under Article 36, such action or
woman deporting themselves as husband defense shall prescribe in ten years after this
and wife have entered into a lawful Code shall taken effect. (As amended by
contract of marriage is satisfactory if Executive Order 227)
uncontradicted. (Sec. 3 (aa), Rule 131,
ROC)
a. Absence of Requisites
(3) In marriages of exceptional character, the
existence of the marriage is presumed, Art. 4(1):The absence of any essential or
even in the total absence of a marriage formal requisites shall render the marriage
license. (Vda. De Jacob v CA (1999)) void ab initio, except as stated in Article 35
(a).
(4) If a marriage certificate is missing, and all
means have not yet been exhausted to Art. 5: Any male or female of the age of
find it, then the marriage is presumed to eighteen years or upwards not under any of
exist (Sevilla v. Cardenas (2006)) the impediments mentioned in Articles 37
and 38, may contract marriage.
Absence of a marriage certificate is not proof
of absence of marriage. To prove the fact of Void from the Beginning (Art. 35)
marriage, the following would constitute
(1) Marriage where any party is below
competent evidence: (1) the testimony of
eighteen years of age even with the
witnesses to matrimony; (2) documentary
consent of parents or guardians
photos or videos of the wedding; (3) the
couples public cohabitation; and (4) birth (2) Marriage solemnized by any person not
and baptismal certificates of children born legally authorized to perform marriages
during the union. [Trinidad v CA (1998)] unless such marriages were contracted
with either or both parties believing in
good faith that the solemnizing officer
had legal authority to do so.
Note: Ones belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of
law.
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(3) Marriage solemnized without a valid The accused may still be charged with the
marriage license, except in marriages crime of bigamy, even if there is a subsequent
under exceptional circumstances declaration of the nullity of the second
marriage, so long as the first marriage was
(4) Bigamous or polygamous marriages not
still subsisting when the second marriage
falling under Article 41 (Art. 41:
was celebrated. [Capili vs People (2013)]
subsequent marriage by present spouse
who obtained a declaration of
presumptive death for absent spouse
c. Subsequent Marriage W hen One
prior to the subsequent marriage)
Spouse Is Absent
(5) There is a mistake as to the identity of the
Requirements for Subsequent
other contracting party
Marriage to be Valid W hen Prior
(6) Subsequent marriages that are void Spouse is Absent (Art. 41):
under Article 53 (Non-compliance with
(1) Subsequent marriage due to ordinary
Art. 52)
absence where:
To be considered void on the ground of
(a) Absent spouse had been absent for 4
absence of a marriage license, the law
consecutive years;
requires that the absence of such marriage
license must be apparent on the marriage (b) The spouse present had a well-
contract, or at the very least, supported by a founded belief that absent spouse is
certification from the local civil registrar that dead; and
no such marriage license was issued to the
(c) Judicial declaration of presumptive
parties. [Alcantara v. Alcantara (2007)]
death was secured (no prejudice to
An action for nullity of marriage is the effect of the reappearance of the
imprescriptible. [Republic v. Dayot (2008)] absent spouse).

b. Bigam ous and Polygam ous (2) Subsequent marriage due to


Marriages extraordinary absence where:

Article 40 (No Judicial Declaration Of (a) Absent spouse had been missing for
Nullity) 2 consecutive years;

A person entered into a subsequent marriage (b) There is danger of death under the
without first getting a judicial declaration of circumstances set forth in Art. 391 CC
nullity of the first void marriage attendant to the disappearance;

Article 41 (Presumptive Death) a. Onboard vessel lost at sea


voyage, airplane,
Failure of the spouse present to obtain a
judicial declaration of presumptive death b. Armed forces in war, or
before entering a subsequent marriage c. Danger of death under other
Article 44 (Bad Faith of both spouses) circumstances, existence not
known
Both spouses entering a subsequent
marriage after presumptive death, who acted (c) The spouse present had a well-
in bad faith founded belief that the missing
person is dead; and
It is now settled that the fact that the first
marriage is void from the beginning is not a (d) Judicial declaration of presumptive
defense in a bigamy charge. As with a death was secured (no prejudice to
voidable marriage, there must be a judicial the effect of the reappearance of the
declaration of the nullity of a marriage before absent spouse).
contracting the second marriage. [Mercado vs Institution of a summary proceeding is not
Tan (2000)] sufficient. There must also be a summary
judgment. (Balane)

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Only the spouse present can file or institute a Difference between Absence in the
summary proceeding for the declaration of Civil Code and Family Code
presumptive death of the absentee.
[Bienvenido v. CA (1994)] Family Civil Code
Code
While an action for declaration of death or
absence under Rule 72, Section 1(m),
expressly falls under the category of special As to 4 years under Absent for at
period normal least 7 years;
proceedings, a petition for declaration of
circumstances;
presumptive death under Article 41 of the 2 years under 4 years under
Family Code is a summary proceeding, as extraordinary extraordinary
provided for by Article 238 of the same Code. circumstances circumstances
[Republic vs Granada (2012)]
As to In order to Declaration of
The belief of the present spouse must be the
remarriage remarry, presumptive
result of proper and honest to goodness
summary death is not
inquiries and efforts to ascertain the proceeding is necessary
whereabouts of the absent spouse and necessary
whether the absent spouse is still alive or is
already dead. This is drawn from As to who Can be The spouses
circumstances before and after the can instituted by the themselves
disappearance and the nature and extent of institute spouse present,
inquiries made. [Republic vs Granada (2012)] the action any interested
party, and the
subsequent
Effect of Reappearance of Absent spouse
Spouse As to effect Subsequent Upon
General Rule: The subsequent marriage on marriage is reappearance,
remains valid. subsequent automatically judicial
marriage terminated by proceeding is
Exception: It is automatically terminated by the recording of necessary to
the recording of the affidavit of reappearance an affidavit of declare
of the absent spouse at the instance of any reappearance of marriage null
interested person, with due notice to the the absent and void
spouses of the subsequent marriage. (Art. 42) spouse
Note: It is the recording of the affidavit of As to Well founded Generally
reappearance that automatically terminates ground belief that the believed to be
the subsequent marriage. Hence, if absentee absent spouse is dead
spouse reappears without recording affidavit dead
of reappearance, then there is no legal effect.
Meanwhile, absentee spouse cannot remarry.
(Tolentino) Related Provisions
Exception to Exception: If there is a Art. 390, Civil Code.After an absence of 7
judgment annulling the previous marriage or years, it being unknown whether or not the
declaring it void ab initio. (Art. 42) absentee still lives, he shall be presumed
dead for all purposes, except for those of
Good Faith: period of absence for
succession.
presumptive death is MANDATORY thus
cannot be shortened by good faith and if be The absentee shall not be presumed dead for
done so will be void. the purpose of opening his succession till
after an absence of 10 years. If he
disappeared after the age of 75 years, an
absence of 5 years shall be sufficient in order
that his succession may be opened.

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Art. 391, Civil Code. The following shall be (2) The root cause of the psychological
presumed dead for all purposes, including incapacity must be: (a) medically or
the division of the estate among the heirs: clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by the
1. A person on board a vessel lost during a sea
experts, (d) clearly explained in the
voyage, or an aeroplane which is missing,
decision.
who has not been heard of for four years
since the loss of the vessel or aeroplane; (3) The incapacity must be proven to be
existing at the time of the celebration
2. A person in the armed forces who has taken
of the marriage.
part in war, and has been missing for four
years; (4) Such incapacity must also be shown to be
medically or clinically permanent or
3. A person who has been in danger of
incurable.
death under other circumstances and his
existence has not been known for four (5) Such illness must be grave enough to
years. bring about the disability of the party to
assume the essential obligations of
marriage.
N.B.: Although 7 years is required for the (6) The essential marital obligations must be
presumption of death of an absentee in the those embraced by Articles 68 up to 71 of
CC, the FC makes an exception for the the Family Code as regards the husband
purpose of remarriage by limiting such and wife as well as Articles 220, 221, and
requirement to 4 years. 225 of the same Code in regard to
parents and their children.
d. Bad Faith of Both Spouses (7) Interpretations given by the National
Appellate Matrimonial Tribunal of the
Art. 44. If both spouses of the subsequent Catholic Church in the Philippines, while
marriage acted in bad faith, said marriage not controlling/decisive, should be given
shall be void ab initio and all donations by great respect by our courts.
reason of marriage and testamentary
dispositions made by one in favor of the other (8) The trial court must order the prosecuting
are revoked by operation of law. attorney or fiscal and the Solicitor
General to appear as counsel for the
state. No decision shall be handed down
E. Psychological Incapacity unless the Solicitor General issues a
certification. [Republic v Molina (1997)]
Contracted by any party who, at the time of
the celebration, was psychologically Refusal of husband to have sex was
incapacitated to comply with the essential interpreted as psychological incapacity. A
marital obligations of marriage, even if such man who can but wont is psychologically
incapacity becomes manifest only after its incapacitated [Tsoi v. CA (1997)]
solemnization(Art. 36) Psychological incapacity maybe established
There are 3 characteristics for determining by the totality of the evidence presented.
psychological incapacity: gravity, antecedent, Personal medical examination could be
and incurability. [Santos v. Bedia-Santos dispensed with. [Marcos v. Marcos (2000)]
(1995)] There is no requirement that the respondent
be medically examined first. [Republic v. San
Jose (2007)]
Molina Doctrine in Psychological Incapacity
Pathological liar considered as
(1) The burden of proof to show the nullity of psychological incapacity, Molina guidelines
the marriage belongs to the plaintiff. This met. [Antonio v. Reyes (2006)]
is to be investigated by the OSG for
collusion. In the task of ascertaining the presence of
psychological incapacity as a ground for the
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nullity of marriage, the courts, which are Relationships outside of Art. 37 and 38 which
concededly not endowed with expertise in the are not impediments to marriage: brother-in-
field of psychology, must of necessity rely on law with sister-in-law, stepbrother with
the opinions of experts in order to inform stepsister, guardian with ward, adopted with
themselves on the matter, and thus enable illegitimate child of the adopter, adopted son
themselves to arrive at an intelligent and of the husband with adopted daughter of the
judicious judgment. [Kalaw v. Fernandez wife, parties who have been convicted of
(2015)] adultery

f. Incestuous Marriages h. Non-compliance with Recording


Requirem ent after Declaration of
Article 37 (Incestuous):
Nullity
(1) Between ascendants and
Article 53 (Non-Recording):
descendants of any degree, legitimate
or illegitimate Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have
(2) Between brothers and sisters,
not have been complied with, shall be null
whether full or half blood, legitimate or
and void.
illegitimate
Art. 52.The judgment of annulment or of
absolute nullity of the marriage, the partition
g. Against Public Policy and distribution of the properties of the
Article 38 (Against Public Policy): spouses and the delivery of the children's
presumptive legitimes shall be recorded in
(1) Between collateral blood relatives, the appropriate civil registry and registries of
legitimate or illegitimate, up to the fourth property; otherwise, the same shall not affect
civil degree. third persons.
(2) Between step-parents and step-children. Previous marriage declared void ab
initio or annulled
N.B.: Stepbrothers and stepsisters
can marry because marriages The word solely in Art. 40 referred to
between them are not among those validating subsequent marriages but NOT to
enumerated in Article 38. limiting the purposes for which a judicial
declaration of nullity can be invoked.
(3) Between parents-in-law and children-in-
[Domingo v. CA (1993)]N.B.: Separation of
law.
property is also a valid purpose for filing for a
(4) Between adopting parent and adopted judicial declaration of nullity.
child.
Even if the judges first marriage contracted
(5) Between the surviving spouse of the in 1965 was void for not having a marriage
adopting parent and the adopted child. license, the requirement for a judicial
declaration of nullity in Art. 40 still applies
(6) Between the surviving spouse of the
for his subsequent marriage contracted in
adopted child and the adopter.
1991. [Atienza v. Brillantes, (1995)]
(7) Between an adopted child and a
Where both marriages were contracted prior
legitimate child of the adopter.
to the effectivity of the FC, the requirement of
(8) Between adopted children of the same Art. 40 does not apply to the second
adopter. marriage where a right is already vested and
(9) Between parties where one, with the on which the FC cannot have retroactive
effect. [Apiag v. Cantero, (1997)]
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.

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Article 43 and 44 (Effects of Exceptions:


Termination of Bigam ous Marriage
(1) Nullity of marriage cases commenced
under Art. 42)
before effectivity of A.M. No. 02-11-10-SC
Art. 43:
(2) Marriages celebrated during the
(1) Children of subsequent marriage effectivity of the Civil Code. [Carlos v.
conceived prior to its Sandoval (2008)]
terminationconsidered legitimate;
However, the absence of a provision in the
custody and support decided by court in a
Civil Code cannot be construed as a license
proper proceeding.
for any person to institute a nullity of
(2) Property Regime dissolved and marriage case. Such person must appear to
liquidated (party in bad faith shall forfeit be the party who stands to be benefited or
his/her share in favor of the common injured by the judgment in the suit, or the
children or if there are none, children of party entitled to the avails of the suit. [Carlos
the guilty spouse by a previous marriage, vs Sandoval (2008)]
and in case there are none, to the
innocent spouse).
(3) Donation propter nuptias remains Procedure in attacking a void
valid, (but if the donee contracted marriage
marriage in bad faith, donations are
General Rule: Void Marriages may be
revoked by operation of law)
attacked collaterally or directly.
(4) Insurance benefits innocent spouse
Exception: A person in a void marriage
may revoke designation of guilty party as
must first file for a declaration of nullity in
beneficiary, even if such designation is
order to subsequently marry
stipulated as irrevocable.
(5) Succession Rights Party in bad faith
shall be disqualified to inherit from the Requisites for valid rem arriage:
innocent spouse, whether testate or
intestate. Art. 52. The judgment of annulment or of
absolute nullity of the marriage the partition
Article44 (Donations): and distribution of the properties of the
If both spouses of the subsequent marriage spouses and the delivery of the children's
acted in bad faith, all donations by reason of presumptive legitimes shall be recorded in
marriage and testamentary dispositions the appropriate civil registry and registries of
made by one party in favor of the other are property; otherwise the same shall not affect
revoked by operation of law. third persons.

W ho may file the petition for nullity of (1) The previous marriage should be
void marriages? judicially declared void or annulled (final
General Rule: Only the husband or wife judgment) [Terre v. Terre (1992), Atienza v.
may file the petition. (AM No. 02-11-10 SC, Brillantes (1995)];
Sec. 2a) (2) Must comply with the requirements of
Specifically, A.M. No. 02-11-10-SC extends Art. 52.
only to marriages covered by the Family Code,
which took effect on August 3, 1988, but,
being a procedural rule that is prospective in
application, is confined only to proceedings
commenced after March 15, 2003. [Ablaza v.
Republic (2010)]

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Safeguard against collusion and No Effect of res judicata


confession of judgm ent
Suffice it to state that parties are bound not
Art. 48 (2):In the cases referred to in the only as regards every matter offered and
preceding paragraph, no judgment shall be received to sustain or defeat their claims or
based upon a stipulation of facts or demand but as to any other admissible
confession of judgment. matter which might have been offered for
that purpose and of all other matters that
Stipulation of Facts: An admission by could have been adjudged in that case.
both parties after agreeing to the existence of
[Mallion vs Alcantara (2006)]
any of the grounds or facts that would
constitute a void/voidable marriage
Confession of judgment: The admission Effect of final judgment declaring
by one party admitting his/her fault to cause nullity
the invalidity of the marriage. The effects provided for by paragraphs (2), (3),
Although the admission of guilt of the wife (4) and (5) of Article 43 and by Article 44
constitutes a confession of judgment, the shall also apply in the proper cases to
husband was also able to present other marriages which are declared void ab initio or
evidence to support the allegation. Hence, annulled by final judgment under Articles 40
there was no collusion. [Ocampo v. and 45 (Art. 50(1)).
Florenciano (1960)] Final judgment in such cases shall provide
Participation of the OSG for:
The obvious intent of the AM 02-11-10-SC was (1) Liquidation, partition, and distribution of
to require the OSG to appear as counsel for the properties of the spouses
the State in the capacity of a defensor vinculi (2) Custody and support of the common
(i.e., defender of the marital bond) to oppose children
petitions for, and to appeal judgments in
favor of declarations of nullity of marriage (3) Delivery of their presumptive legitimes
under Article 36 of the Family Code, thereby UNLESS: such matters had been adjudicated
ensuring that only the meritorious cases for in previous judicial proceedings (Art. 50(2))
the declaration of nullity of marriages based All creditors of the spouses/property regime
on psychological incapacity-those sufficiently shall be notified of the proceedings for
evidenced by gravity, incurability and juridical liquidation (Art. 50(2 and 3))
antecedence-would succeed. [Mendoza vs
Republic (2012)] In the partition, the conjugal dwelling and lot
shall be adjudicated to the spouse with whom
No Motion to Dismiss majority of the common children remain (Art.
AM 02-11-10-SC Sec.7 prohibits the filing of a 102 and 129, Art. 50(4))
motion to dismiss in actions for annulment of Tender years presumption: Children
marriage. [Aurelio vs Aurelio (2011)] below 7 years age will be in the custody of the
Effect of pendency of action for mother.
declaration of nullity: Presumptive legitimes, computed as of
(1) The court shall provide for the support of the date of the final judgment, shall be
the spouses, delivered in cash, property or sound
securities:
(2) The custody and support of the common
children, giving paramount consideration (1) Unless the parties, by mutual agreement
to their moral and material welfare, their judicially approved, had already provided
choice of parent with whom they wish to for such (Art. 51(1))
remain. (2) The children/guardian/trustee of
(3) The court shall also provide for visitation property may ask for the enforcement of
rights of other parent. (Art. 49) the judgment (Art. 51(2))

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(3) The delivery of the presumptive legitimes Article 45. A marriage may be annulled for
shall not prejudice the ultimate any of the following causes, existing at the
successional rights, but the value of the time of the marriage:
properties already received shall be
considered as advances on their legitime (1) That the party in whose behalf it is sought
(Art. 51(3)) to have the marriage annulled was eighteen
years of age or over but below twenty-one,
Generally, children born or conceived within and the marriage was solemnized without
void marriages are illegitimate. the consent of the parents, guardian or
Exceptions: person having substitute parental authority
over the party, in that order, unless after
Children conceived or born before the attaining the age of twenty-one, such party
judgment under Article 36 has freely cohabited with the other and both
become final and executory (Art. 54) lived together as husband and wife;
Children conceived or born of (2) That either party was of unsound mind,
subsequent marriages under Article unless such party after coming to reason,
53 (Art. 54) freely cohabited with the other as husband
and wife;
F.2. VOIDABLE OR ANNULLABLE (3) That the consent of either party was
MARRIAGE obtained by fraud, unless such party
afterwards, with full knowledge of the facts
Article 14: In case either or both of the constituting the fraud, freely cohabited with
contracting parties, not having been the other as husband and wife;
emancipated by a previous marriage, are
between the ages of eighteen and twenty- (4) That the consent of either party was
one, Inaddition to the requirements of the obtained by force, intimidation or undue
preceding articles: influence, unless the same having
disappeared or ceased, such party thereafter
Exhibit to the local civil registrar the freely cohabited with the other as husband
consent to their marriage of their and wife;
father, mother, surviving parent or
guardian, or persons having legal (5) That either party was physically incapable
charge of them, in the order mentioned of consummating the marriage with the
other, and such incapacity continues and
Manifested in writing by the interested appears to be incurable; or
party, who personally appears before
(6) That either party was afflicted with a
the proper local civil registrar, or
sexually-transmissible disease found to be
In the form of an affidavit made in the serious and appears to be incurable.
presence of two witnesses and attested
before any official authorized by law to
administer oaths Action to Annul: Action in rem, concerns
status of parties; res is relation between
The personal manifestation shall be
parties or marriage tie; jurisdiction depends
recorded in both applications for
on nationality or domicile not the place of
marriage license, and the affidavit, if
celebration.
one is executed instead, shall be
attached to said applications.

Grounds for Annulment Grounds for Annulment explained:

Article 4 states that xxx A defect in any of a. Lack of parental consent


the essential requisites shall render the 18 x < 21 without parental consent
marriage voidable as provided in Article 45.

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Ratified by party 18 or above but Concealment of STD regardless of


below 21 upon free cohabitation upon nature existing at time of marriage
reaching 21.
Concealment of drug addiction,
habitual alcoholism,
In defending the requirement of parental homosexuality, lesbianism existing
consent, the Court held that the State has at time of marriage
power to make adjustments in the (a) No other misrepresentation or deceit
constitutional rights of minors based on the of character, health, rank, fortune or
following grounds: 1) the peculiar chastity shall constitute fraud.
vulnerability of children, 2) to protect minors
from immature decision making and prevent (b) Conviction of Crime: requisites are
unstable marriages, 3) on the presumption Moral turpitude
that parents act in the best interests of their
children in child rearing. (Moe v. Dinkins, (US Conviction
Case, 1981))
(a) Concealment of Pregnancy
Fraud against very essence of
b. Insanity marriage; importance of
procreation of children; an assault
Mental incapacity or insanity is a vice
to the integrity of the union by
of consent;
introducing ALIEN BLOOD
Can be ratified by cohabitation after
insanity is cured or during a lucid If husband knew of pregnancy, the
interval marriage cannot be annulled on
the ground of concealment
Mere mental weakness is not a
(e) May be ratified upon free
ground for annulment, but if found
cohabitation after knowledge of
grave enough, it may amount to
fraud.
psychological incapacity.
Intoxication, somnambulism where
one had no mental capacity to give Art. 45 STD Art. 46 STD
consent is equivalent to insanity
Must exist at the time of the Ground for The STD is a type of
celebration of the marriage. Insanity annulment fraud which is a ground
that occurs after the celebration of for annulment
marriage does not constitute a cause
for nullity [Katipunan v. Tenorio Does not have to Must be concealed
(1937)] be concealed
Law presumes SANITY, burden of Must be serious Need not be serious
proof on party alleging insanity and incurable nor incurable

The STD itself is It is the concealment


c. Fraud the ground for that gives rise to the
annulment annulment
(a) Only those enumerated in Art. 46:
Non-disclosure of previous
conviction by final judgment of a
crime involving moral turpitude
Concealment by wife at the time of
marriage, that she was pregnant
by another man
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Effect of Cure to Fraud in Art. 46: e. Impotency


Recovery or rehabilitation from STD, drug (a) Must exist at time of marriage, and
addiction, and habitual alcoholism will NOT be continuous and incurable. If
bar action for annulment; the defect is not incapacity can be remedied or is
the disease, but the fraud which vitiated removable by operation, not
consent. annullable [Sarao v Guevarra(1940)]
Wife gave birth 3 months after marriage, and (b) Physical condition - sexual
husband then filed for annulment on the intercourse with a person of the
ground of concealment of non-virginity. opposite sex is impossible, not mere
Denied. Court held that it was unbelievable sterility
that husband could not have noticed when
(c) Only the potent spouse can file the
wife had been at least 6 months pregnant
action for annulment and he/she
prior to marriage. [Buccat v. Mangonon de
must not have been aware of the
Buccat, (1941)]
others impotency at the time of
The Supreme Court granted annulment marriage (Sempio-Diy)
because the wife concealed the fact that she
was 4 months pregnant during the time of If he/she was aware, it is implied
the marriage. Since Delizo was naturally that he/she renounced
plump, Aquino could hardly be expected to copulation by consenting to the
know, by mere looking, whether or not she marriage. (Tolentino)
was pregnant at the time of the marriage. (d) When both spouses are impotent,
[Aquino v. Delizo, (1960)] marriage cannot be annulled because
It is the concealment of homosexuality, and neither spouse is aggrieved. (Sempio-
not homosexuality per se, that vitiates the Diy)
consent of the innocent party. Such An impotent plaintiff could not
concealment presupposes bad faith and have expected copulation with
intent to defraud the other party in giving the other spouse. (Tolentino)
consent to the marriage. [Almelor v. RTC,
(2008)] (e) Potency is presumed; party who
alleges impotency has burden of
proof [Jimenez v Canizares (1960)]
d. Force, intim idation, undue (f) REFUSAL of wife to be examined
influence DOES NOT PRESUME
(a) Force must be one as to prevent party impotency[Jimenez v Canizares
from acting as a free agent; will (1960)] N.B.: If she continues to
destroyed by fear/compulsion refuse the physical exam, she can be
held in contempt & ordered confined
(b) Intimidation must be one as to in jail until she does so
compel the party by a
reasonable/well-grounded fear of an
imminent and grave evil upon his f. Sexually-transm issible disease
person/properties serious and incurable
(c) Degree of intimidation: age, sex, (a) Should exist at the time of the
condition of person borne in mind marriage
(d) Threat or intimidation as not to act as (b) Should be found serious
free agent;
(c) Should appear to be incurable
(e) May be ratified upon cohabitation
after force, intimidation, or undue (d) Reason: danger to the health of
influence has ceased or disappeared. spouse & offspring/s
(e) Same as incurable impotency

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(f) Not subject to ratification: cannot be


ratified or convalidated by
cohabitation:
Affliction of STD is unknown to the
other spouse (Balane)
The other spouse must also be free
from a similar STD. (Balane)

W ho may file, Prescription, Ratification

Ground Who can file Prescription Ratification


(Art. 45) (Art. 47) (Art. 47) (Art. 45)

Lack of Party 18 or above but Within 5 years after Free cohabitation after
parental below 21 attaining 21. attaining age of 21.
consent
Parent or guardian who Before party below 21
did not give consent reaches 21.

Insanity Sane spouse with no Any time before the death Free cohabitation of insane
knowledge of the others of either party party after insane party
insanity comes to reason

Legal guardian of insane


party

Insane party During lucid interval or


after regaining sanity, and
before death

Fraud Injured party (defrauded Within 5 years after Free cohabitation after
party) discovery of fraud having full knowledge of
fraud
Force, Injured party Within 5 years after Free cohabitation after the
intimidation, disappearance of force, force or intimidation or
undue undue influence, or undue influence has
influence intimidation ceased or disappeared

Impotence Potent spouse Within 5 years after Cannot be ratified but


marriage action prescribes

STD Healthy party Within 5 years after Cannot be ratified but


marriage action prescribes

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Marriages Not Subject to Ratification: suffice to comply with the mandatory


requirement. [Corpuz v. Ochoterena, (2004)]
(1) One spouse is incurably impotent
(2) One spouse has an incurable STD
Effects of Pending Decree of Annulm ent
Reason: Public policy and health. Although the
action of to annul these marriages can prescribe The Court shall provide for the support of
(5 years). spouses and support and custody of children. In
determining which parent should have custody
Presence of Prosecutor of them, their moral and material welfare shall
Art. 48:To prevent collusion between the be given paramount consideration.
parties, fabrication or suppression of evidence,
the prosecuting attorney or fiscal shall appear
on behalf of the State. Effects of Decree of Annulment

In a legal separation or annulment case, the (Same as Decree of Nullity)


prosecuting attorney must first rule out The effects provided for by paragraphs (2), (3),
collusion as a condition sine qua non for further (4) and (5) of Article 43 and by Article 44 shall
proceedings. A certification by the prosecutor also apply in the proper cases to marriages
that he was present during the hearing and which are declared void ab initio or annulled by
even cross-examined the plaintiff does not final judgment under Articles 40 and 45 (Art.
50(1)).

Comparative Table on Void and Voidable Marriages

Void Voidable

Nature No validity from the time of performance Valid until annulled


Susceptibility of Cannot be ratified Can be ratified
Ratification
Property Relation Only co-ownership; No ACP or CPG despite ACP or any other propery
having entered into a marriage settlement regime in accordance with the
marriage settlement`
Status of Illegitimate under Art. 165 (with Art 36 and Children are legitimate if
Children Art 53 as exceptions) conceived or born prior to the
decree
How Impugned (a) May be attached directly or collaterally, (a) Cannot be attacked
but for the purpose of remarriage, a judicial collaterally
declaration of nullity is required
(b) Can be impugned even after death of the (b) Cannot be impugned after
parties the death of one of the parties
W ho may A proper interested person (depending on A party to the marriage
challenge validity the dates of marriage and of filing of
proceeding)
Susceptible to Does not prescribe Prescribes
Prescription

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G. THE LAW ON SEPARATION OF THE Muslims, this Muslim Code will apply.
SPOUSES [Zamoranos vs People (2011)]

SEPARATION IN FACT One of the effects of irrevocable talaq, as


Art. 239. When a husband and wife are well as other kinds of divorce, refers to
separated in fact, or one has abandoned the severance of matrimonial bond, entitling
other and one of them seeks judicial one to remarry. [Zamoranos vs People (2011)]
authorization for a transaction where the
consent of the other spouse is required by
law but such consent is withheld or cannot H. LEGAL SEPARATION
be obtained, a verified petition may be filed
in court alleging the foregoing facts. Note: The grounds for legal separation are
The petition shall attach the proposed deed, exclusive. (Article 55)
if any, embodying the transaction, and, if These must be filed within 5 years after
none, shall describe in detail the said occurrence of cause (Article 57)
transaction and state the reason why the
required consent thereto cannot be secured. (1) Repeated physical violence or grossly
In any case, the final deed duly executed by abusive conduct directed against the
the parties shall be submitted to and petitioner, a common child, or a child of
approved by the court. the petitioner;
Agreement to Separate (2) Physical violence or moral pressure to
compel the petitioner to change
A notary public should not facilitate the religious or political affiliation;
disintegration of a marriage and the family
by encouraging the separation of the (3) Attempt of respondent to corrupt or
spouses and extrajudicially dissolving the induce the petitioner, a common child,
conjugal partnership. [Espinosa vs Omana or a child of the petitioner, to engage in
(2011)] prostitution, or connivance in such
corruption or inducement;
(4) Final judgment sentencing the
ABSOLUTE DIVORCE respondent to imprisonment of more
Article 26, par. 2 Where a marriage than six years, even if pardoned;
between a Filipino citizen and a foreigner is (5) Drug addiction or
validly celebrated and a divorce is thereafter habitual alcoholism of the respondent;
validly obtained abroad by the alien spouse
capacitating him or her to remarry, the (6) Lesbianism or homosexuality of the
Filipino spouse shall have capacity to respondent;
remarry under Philippine law. (As amended It is the concealment of
by Executive Order 227) homosexuality, and not
If both parties are Muslims, there is a homosexuality per se, that vitiates
presumption that the Muslim Code or the consent of the innocent party.
Muslim law is complied with. If together Such concealment presupposes bad
with it or in addition to it, the marriage is faith and intent to defraud the other
likewise solemnized in accordance with the party in giving consent to the
Civil Code of the Philippines, whichever marriage. (Almelor vs RTC (2008))
comes first is the validating rite and the (7) Contracting by the respondent of a
second rite is the merely ceremonial one. subsequent bigamous marriage,
But, in this case, as long as both parties are whether in the Philippines or abroad;

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(8) Sexual infidelity or perversion; of force, physical or other harm or threat


of physical or other harm, or
Adultery is not a continuing crime; intimidation directed against the
it is consummated at every woman or child. This shall include, but
moment of carnal knowledge. not limited to, the following acts
Thus, every sexual act is a ground committed with the purpose or effect of
for legal separation. [People v. controlling or restricting the woman's or
Zapata and Bondoc (1951)] her child's movement or conduct:
(9) Attempt by the respondent against the (a) Threatening to deprive or
life of the petitioner; or actually depriving the woman or
(10) Abandonment of petitioner by her child of custody to her/his
respondent without justifiable cause for family;
more than one year. (b) Depriving or threatening to
Abandonment is not mere physical deprive the woman or her
estrangement but also financial children of financialsupport
and moral desertion. There must legally due her or her family, or
be an absolute cessation of deliberately providing the
marital relations, duties, and woman's children insufficient
rights with the intention of financial support;
perpetual separation. [Dela Cruz. (c) Depriving or threatening to
v. Dela Cruz (1968)] deprive the woman or her child
The death of one party in a legal separation of a legalright;
case abates the action. This is because the (d) Preventing the woman in
death of either spouse automatically engaging in any legitimate
dissolves the marriage. An action for legal profession, occupation, business
separation is also purely personal between or activity or controlling the
the spouses. [Lapuz Sy v. Eufemio (1972)] victim's own money or
Acts of Violence according to RA properties, or solely controlling
9262(as grounds for legal separation the conjugal or common money,
under Art 55(1)) or properties;
(1) Causing physical harm to the woman or (6) Inflicting or threatening to inflict
her child; physical harm on oneself for the
purpose of controlling her actions or
(2) Threatening to cause the woman or her decisions;
child physical harm;
(7) Causing or attempting to cause the
(3) Attempting to cause the woman or her woman or her child to engage in any
child physical harm; sexual activity which does not constitute
(4) Placing the woman or her child in fear rape, by force or threat of force, physical
of imminent physical harm; harm, or through intimidation directed
against the woman or her child or
(5) Attempting to compel or compelling the her/his immediate family;
woman or her child to engage in
conduct which the woman or her child (8) Engaging in purposeful, knowing, or
has the right to desist from or desist reckless conduct, personally or through
from conduct which the woman or her another, that alarms or causes
child has the right to engage in, or substantial emotional or psychological
attempting to restrict or restricting the distress to the woman or her child. This
woman's or her child's freedom of shall include, but not be limited to, the
movement or conduct by force or threat following acts:

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(a) Stalking or following the W hen to file/try actions


woman or her child in public or
An action for legal separation shall be filed
private places;
within five years from the time of the
(b) Peering in the window or occurrence of the cause. (Art. 57)
lingering outside the residence
of the woman or her child;
Cooling-off and Reconcilation
(c) Entering or remaining in the
Effects
dwelling or on the property of
the woman or her child against Action cannot be tried before six
her/his will; monthshave elapsed from the filing of the
petition (Art. 58).
(d) Destroying the property and
personal belongings or inflicting Actions cannot be tried unless the court has
harm to animals or pets of the attempted to reconcile the spouses, and
woman or her child; and determined that despite such efforts,
reconciliation is highly improbable (Art. 59)
(e) Engaging in any form of
harassment or violence; N.B.: This is without prejudice to judicial
determination of custody of children,
(9) Causing mental or emotional anguish,
alimony, and support pendente lite.
public ridicule or humiliation to the
woman or her child, including, but not Courts can stillresolve other issues, pending
limited to, repeated verbal and the waiting period or cooling off period. In
emotional abuse, and denial of financial resolving other issues, courts should try not
support or custody of minor children of to touch, as much as possible, on the main
access to the woman's child/children. issue (i.e. adultery if that is the ground
used). However, Court must still receive
evidence if just to settle incidental issues of
Defenses support and custody. [Araneta vs.
Concepcion, (1956)]
Grounds for denying legal
separation (Article 56): N.B.: This provision of the Family Code
dictating a mandatory 6-month cooling-off
(1) Condonation by aggrieved party
period does not apply in cases where
(2) Consent by aggrieved party to the violence, as used in RA 9262 (Anti-Violence
commission of the offense Against Women and their Children), is
alleged. The case should be heard as soon
(3) Connivance between parties in the
as possible by the court.
commission of the offense
(4) Mutual guilt or Recrimination between
spouses in the commission of any Confession of Judgment
ground for legal separation
No decree of legal separation shall be
(5) Collusion between parties to obtain based upon a stipulation of facts or a
decree of legal separation confession of judgment (Art. 60, par. 1. FC).
(6) Prescription of action for legal N.B.: Art. 60 par. 1 applies only if the
separation (Art. 57: 5 years from judgment was based solely on the
occurrence of the cause of action) stipulation of facts or solely on the
confession of judgment. Thus, if other
(7) Reconciliation of parties during
grounds were used, Art. 60 par. 1 is not
pendency of action (Art. 66 par.1)
applicable. (Balane)
(8) Death of either party during pendency
The prohibition on confession of judgment
of action (Lapuz-Sy vs. Eufemio)
does not mean that the Court will not grant

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petition if one party admits to being guilty (4) Guilty spouse shall be disqualified from
of the charges of adultery. The point of this Inheriting from innocent spouse by
provision is that the Court should still admit intestate succession. The provisions in
evidence, not decide just based on an favor of the guilty party in the will of the
admission of guilt. Because what is innocent spouse shall also be revoked
prohibited is handing down a decree of by operation of law. (Art. 63)
legal separation based solely on a
(5) Donationsin favor of the guilty spouse
confession of judgment. [Ocampo v
may be revoked (Art. 64) but this action
Florenciano (1960)]
prescribes after 5 years from the decree
of legal separation.
Effects of Filing Petition (6) Innocent spouse may also revoke
designation of guilty spouse as
(1) The spouses are entitled to live
beneficiary in an Insurance policy, even
separately, but the marital bond is not
if such stipulations are irrevocable. (Art.
severed. (Art. 61 (1))
64. FC, cf. PD 612, sec. 11)
(2) Administration of community or
(7) Obligation for mutual support ceases,
conjugal property If there is no written
but the court may order the guilty
agreement between the parties, the
spouse to support the innocent spouse.
court shall designate one of them or a
(Art. 198)
third person to administer the ACP or
CPG. (Art. 61, par. 2) (8) The wife shall continue to use the
surnameof the husband even after the
decree for legal separation. [Laperal v.
Effects of Pendency Republic (1992)]
The Court shall provide for: (Art. 62, cf. Art.
49. FC)
Reconciliation
Support of spouses Should the spouses reconcile, they should
Custody of children: The court shall file a corresponding joint manifestation
give custody of children to one of them, under oath of such reconciliation, duly
if there is no written agreement signed by them and filed with the court in
between the spouses. the same proceeding for legal separation.
(Art. 65)
Visitation rights of the other spouse
Effects of Reconciliation
(1) Proceedings for legal separation shall
Effects of Decree of Legal be terminated at whatever stage. (Art.
Separation 66)
(1) The spouses can live separately (Art. 63) (2) If there is a final decree of legal
but the marriage bonds are not severed. separation, it shall be set aside. (Art.
66)
(2) The ACP or CPG shall be dissolved and
liquidated, and the share of the guilty (3) The separation of property and
spouse shall be forfeited in favor the forfeiture of share of guilty spouse shall
common children, previous children, or subsist, unless the spouses agree to
innocent spouse, in that order (Art. 63. revive their former property regime or to
cf. Art. 43, par. 2). institute another property regime.(Art.
66 cf. Art. 67)
(3) Custody of the minor children shall be
awarded to the innocent spouse (Art. (4) Joint custody of children is restored.
63, cf. Art 213)

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(5) The right to intestate succession by (6) The right to testamentary succession
guilty spouse from innocent spouse is depends on the will of the innocent
restored. spouse

Annex to Void and Voidable Marriages and Legal Separation

Void Marriages Voidable Marriages Legal Separation

Grounds (1) One is a minor (1) Lack of parental (1) Repeated Physical
consent Violence
(2) No authority to
marry (2) Insanity (2) Pressure to compel
to change
(3) No valid marriage (3) Fraud
religious/political
license
(4) Force, Intimidation affiliations
(4) Bigamous and
(5) Undue Influence (3) Corruption /
polygamous
Inducement to
marriages (6) Impotence
engage in
(5) Mistake of identity (7) Serious and prostitution
Incurable STD
(6) Void subsequent (4) Final judgment with
marriage sentence of more
than 6 yrs.
(7) Psychological
incapacity (5) Drug Addiction /
Habitual Alcoholism
(8) Incestuous
Marriages (6) Homosexuality /
Lesbianism
(9) Marriages against
public policy (7) Bigamous marriage
(8) Sexual Infidelity
(9) Attempts against the
life of petitioner
(10) Abandonment
without just cause
for more than 1 year

Defenses (1) Condonation


(2) Consent
NONE (3) Connivance
(4) Collusion
(5) Mutual Guilty
(6) Prescription

Prescription No prescription (1) Lack of Parental Within 5 years from the


Consent: occurrence of the cause

PAGE 34 OF X
Void Marriages Voidable Marriages Legal Separation

Who can file According to A.M. No. Spouses 5 years after Only the spouses (cannot
02-11-10-SC): turning 21 survive the death of the
plaintiff)
(a) Before March 18, Parents before the
2003 (petition for spouse turns 21
nullity or celebration of
(2) Insanity
marriage) any party
Insane spouse during
(b) On and after March
lucid intervals
18, 2003 (petition for
nullity or celebration of Sane spouse/guardian
marriage) only the lifetime
spouses
(3) Fraud 5 years after
the discovery of the
fraud
(4) Force, Intimidation,
Undue Influence 5
years after cessation
(5) Impotence or STD 5
years from marriage

Effects of Pendency In the absence of adequate provisions in a written (1) Live separately
agreement:
(2) Designate either of
(1) Support of spouses them or a third person as
administrator of property
(2) Support and custody of children
(3) Support of spouses
(3) Visitation Rights
(4) Support and custody
of Children
(5) Visitation rights
Void Marriages Voidable Marriages Legal Separation

Effects of Decree (1) Children (1) Children considered (1) May live separately but
considered illegitimate legitimate conceived marriage bonds not
except for those and/or born prior to the severed
annulled under Art 36 termination of the
(2) ACP/CPG will be
and Art 53 marriage
dissolved and liquidated
(2) No ACP/CPG, or (2) ACP/CPG will be offending spouse will
marriage settlement dissolved and liquidated have no right to the net
void because there was the spouse in bad faith profits
no marriage property will forfeit his share to
(3) Custody of minor
relations governed by his children or spouse
children Innocent
co-ownership (same as (as the case may be) by
Spouse
common-law spouses) operation of law
(4) Disqualified to inherit
(3) Donations valid (3) Donations valid
from each other will
unless in bad faith, unless in bad faith,
revoked by operation of
revoked by law revoked by law
law
(4) Revocation of (4) Revocation of
(5) Revocation of
designation as designation as
designation as
beneficiary beneficiary
beneficiary
(5) Disqualified to (5) Disqualified to
(6) Donations inter vivos
inherit by inherit by
are revoked
testate/intestate testate/intestate
UP LAW BOC PERSONS AND FAMILY RELATIONS CIVIL LAW

V. Rights and
The husband and wife shall fix the family
Obligations of Spouses domicile. (Art. 69)
In case of disagreement, the court shall
N.B.:These rights and duties are not subject decide. (Art. 69 (1))
to stipulation between the spouses and
though they may voluntarily agree to any
change in their personal relations, this C. SUPPORT
agreement will be void and have no legal
effect.
The spouses are jointly responsible for the
support of the family. The expenses for such
support and other conjugal properties shall
A. LIVE TOGETHER be paid:
From the conjugal property;
The right to live together refers to the right of
consortium which is not susceptible of If none, income or the fruits of their
precise or complete definition but, broadly separate properties;
speaking, companionship, love, affection,
comfort, mutual services, sexual If none, from their separate
intercourseall belonging to the marriage properties, wherein they shall be
statetaken together make up what we refer liable in proportion to their properties
to as consortium. (Art. 70)

GENERAL RULE: It is their obligation to do In the case of a separation de facto, if it is


so (cohabitation). It is also their obligation to proved that the husband and wife were still
observe mutual love, respect and fidelity and living together at the time of his death, it
render mutual help and support. (Art. 68) would be safe to presume that she was
dependent on the husband for support,
EXEMPTION: One spouse living unless it is shown that she is capable of
abroad or there are valid and providing for herself. [SSS v. Aguas (2006)]
compelling reasons (Art. 69 (2)) at the
discretion of the court.
EXEMPTION TO EXEMPTION: D. MANAGEMENT OF FAMILY LIFE
Incompatibility with the solidarity of the This is the right and duty of both spouses.
family (Art. 69 (2)) The expenses for such management shall be
Goitia v. Cam pos Rueda (1916): If the paid in accordance with the provisions of
wife abandons the family domicile (vs Article 70 (Art. 71).
obligation of cohabitation) with justifiable
causei.e. being forced to perform lewd sexual
E. EFFECT OF NEGLECT OF DUTY
acts, the husbands obligation to support her
In case the other spouse neglects his or her
is not terminated. The law will not permit the
duties or commits acts which tend to bring
husband to terminate the obligation to
danger, dishonor or injury to the family, the
support his wife by his own wrongful acts in
aggrieved party may apply to the court for
driving the wife to seek protection in her
relief. (Art. 72)
parents home.
Arroyo v. Vasquez de Arroyo (1921): A Injury contemplated is physical,
court cannot compel a married woman to go moral, emotional or psychological,
back to her husband, but the court may not financial.
decree that support be terminated.
F. EXERCISE OF PROFESSION
B. FAMILY DOMICILE
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Either spouse may exercise any legitimate Although marriage is one of the events
profession, without need for consent of the required to be recorded in the civil register, a
other. woman does not register her married name.
Neither does a married woman file a petition
o The other spouse may only object on
for change of name in order to use her
valid, serious, and moral grounds.
husbands surname.
o In case of disagreement, the Court
shall decide whether:
The objection is proper, and
Benefit has accrued to the family
before OR after the objection.If
BEFORE, enforce resulting
obligation against the separate
property of the spouse who has
not obtained consent. (Art. 73)

G. USE OF SURNAME

Art 370, CC. A married woman may use:


1) Her maiden first name and surname
and add her husbands surname, or
2) Her maiden first name and her
husbands surname or
3) Her husbands full name, but
prefixing a word indicating that she
is his wife, such as Mrs.
Art 373, CC. A widow may use the
deceased husbands surname as though he
were still living, in accordance with Article
370.
Art 376, CC. No person can change his
name or surname without judicial authority
Art 377, CC. Usurpation of a name and
surname may be the subject of an action for
damages and other relief.
Art 378, CC. The unauthorized or unlawful
use of another persons surname gives a
right of action to the latter.

N.B.: From the foregoing provisions, it can


be gleaned that a woman is not mandated by
law to adopt her husbands name after
marriage. Article 370 is merely directory,
since it provides that a woman may choose
any of the options provided.

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VI. Property Relations Marriage Settlem ent Rules

of Spouses When modifications can be made


General rule: Before marriage is
celebrated [Art. 76]
A. MARRIAGE SETTLEMENTS
Art. 63(2): Property regime is dissolved
According to Art. 74, Property relations and liquidated
between husband and wife are governed: Arts. 66 and 67: Reconciliation in case of
legal separation
(1) By marriage settlements executed before
the marriage Art. 128: When abandoned spouse
(2) By the provisions of this Code petitions the court for judicial separation of
property
(3) By the local custom
Art. 135: Sufficient cause for judicial
separation of property
Requisites for Validity
Art. 136: Voluntary dissolution of ACP or
Art. 75. The future spouses may, in the CPG by the spouses
marriage settlements, agree upon the regime
of absolute community, conjugal partnership
of gains, complete separation of property, or Requirements of marriage settlements and
any other regime. In the absence of marriage any modification thereof [Art. 77]
settlement, or when the regime agreed upon
is void, the system of absolute community of Made in writing
property as established in this Code shall
govern. Signed by the parties

Executed before the marriage celebration


N.B.: Marriage settlements are considered
accessory to the marriage, therefore as per
Art. 81, stipulations in consideration of future Not to prejudice third persons unless
marriage and donations will be void if the registered in the local civil registry where the
marriage does not take place. marriage is recorded and in registries of
property

Art. 103(3) & 130(3). Should the surviving If executed by a person below 21 years, valid
spouse contract a subsequent marriage only when persons required to give consent
without compliance with the foregoing to the marriage (father, mother, or guardian,
requirements, a mandatory regime of respectively) are made parties to the
complete separation of property shall govern agreement [Art. 78]
the property relations of the subsequent
marriage. If executed by a person upon whom civil
interdiction has been pronounced or who is
subject to any other disability, valid only
when his guardian appointed by a
competent court is made party to the
agreement [Art. 79]

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B. DONATIONS BY REASON OF RULES FOR DONATIONS BEFORE


MARRIAGE MARRIAGE
General rule: Future spouses who agree
Solis v. Barroso (1928): In donations upon a regime other than ACP cannot donate
propter nuptias, the marriage is really a to each other more than 1/5 of their present
consideration, but not in the sense of giving property (excess shall be considered void).
birth to the obligation. There can be a valid [Art. 84]
donation even if the marriage never took
place, but the absence of marriage is a
ground for the revocation of the donation. Donations of property subject to
encumbrances
Mateo v. Lagua (1969): Donations propter
nuptias are without onerous consideration, 1. Are considered valid.
marriage being merely the occasion or motive 2. In case of foreclosure:
for the donation, not its cause. Being
liberalities, they remain subject to reduction a. if property value < obligation, donee
for inofficiousness upon the donors death, if shall not be liable for the deficiency
they should infringe the legitime of a forced b. if property value > obligation, donee
heir. shall be entitled to the excess (Art.
85)

Requisites of donations propter


nuptias GROUNDS FOR REVOCATION OF
1. Made before the celebration of marriage DONATION PROPTER NUPTIAS [Art.
86]
2. Made in consideration of marriage
1. If the marriage is not celebrated or
3. In favor of one or both of the future judicially declared void ab initio, EXCEPT
spouses donations made in marriage settlements.
4. Donor must be one of the betrothed or any 2. When the marriage takes place without the
third person consent of the parents or guardians, as
required by law.
Donations excluded 3. When the marriage is annulled, and the
donee acted in bad faith.
Ordinary wedding gifts given after the
celebration of the marriage 4. Upon legal separation, if the donee is the
guilty spouse.
Donations in favor of future spouses made
5. If there is a resolutory condition, and it is
before marriage but not in consideration
not complied with.
thereof
6. When donee has committed an act of
Donations made in favor of persons other ingratitude: [Art. 765, CC]
than the spouses even if founded on the
intended marriage a. An offense against person or property
of donor, or his wife or children under
parental authority.
W ho may donate b. An imputation to the donor of any
Spouses to each other criminal offense, or any act involving
moral turpitude, even if proven, unless
Parents of one or both spouses the crime is committed against the
donee, his wife or children under his
Third persons to either or both spouses authority.
c. Refusing to support the donor, if
he/she is legally required to do so.
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the provision prohibiting donations between


spouses during marriage.
Effects of judicial declaration of
nullity
Donations by reason of marriage shall remain Distinguished from Ordinary
valid EXCEPT that if the donee contracted Donations
marriage in bad faith, such donations made
to said donee are revoked by operation of law. Donations propter Ordinary donations
[Art. 43 (3)]Thus, even if spouse in good faith nuptias
condones the donee, the donation propter
Does not require Express acceptance
nuptias is still forfeited.
express acceptance necessary
Effects provided for by Art. 43(2), (3), (4), and
(5) and by Art. 44 shall also apply to May be made by Cannot be made by
marriages that are declared void ab initio or minors (Art. 78) minors
annulled by final judgment under Article 40
(Judicial declaration of nullity) and 45 May include future Cannot include future
(Voidable marriages). [Art. 50] property property

If present property is No limit to donation of


donated and property present property
RULES FOR DONATIONS DURING is not absolute provided legitimes are
MARRIAGE community, limited not impaired
General rule: Spouses cannot donate to to 1/5 (Art. 84)
each other, directly or indirectly; donations
made by spouses to each other during the Grounds for Grounds for revocation
marriage are void. [Art. 87] revocation - in Art. 86 - in donation laws
These donations refer to donations inter vivos
(Tolentino)
Exception: Moderate gifts on the occasion
of any family rejoicing. ABSOLUTE COMMUNITY OF
Harding v. Commercial Union (1918): The PROPERTY AND CONJUGAL
prohibition on donations can only be assailed PARTNERSHIP OF GAINS
by persons who bear such relation to the Art. 80. In absence of a contrary stipulation
parties or the property itself, that their rights in a marriage settlement, the property
are being interfered with. Here, the insurance relations of the spouses shall be governed by
company of the donated car cannot assail the Philippine laws, regardless of the place of the
validity of the donation. In addition, the codal celebration of the marriage and their
exception of moderate gifts depends on the residence.
income class of the spouses and a car could
be considered a moderate gift that does not N.B.:By the Nationality Rule [Art. 15], the
infringe the prohibition of donation between rule that Absolute Community Property (ACP)
spouses. is the default mode of property relations
absent any marriage settlement applies to all
Nazareno v. Birog (1947): A spouse cannot Filipinos, regardless of the place of the
donate to persons which the other spouse marriage and their residence.
may inherit from as it constitutes an indirect
donation. EXCEPTIONS (Art. 80)
Where both spouses are aliens
RULES FOR DONATIONS BETW EEN With respect to the extrinsic validity of
COMMON-LAW SPOUSES contracts affecting property not situated in
the Philippines and executed in the
Matabuena v Cervantes (1971): The donation
country where the property is located
between common-law spouses falls within
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With respect to the extrinsic validity of ABSOLUTE COMMUNITY OF


contracts entered into in the Philippines but PROPERTY
affecting property situated in a foreign The community property consists of all the
country whose laws require different property owned by the spouses at the time of
formalities for its extrinsic validity the celebration of the marriage and those
Art. 81. Everything stipulated in the either one or both of them acquired during
settlements or contracts referred to in the the marriage. There is a presumption in law
preceding articles in consideration of a future that properties acquired during the marriage
marriage, including donations between the belong to the community, unless it is proved
prospective spouses maded therein, shall be that it is one of those excluded therefrom.
rendered void if the marriage does not take CONJUGAL PARTNERSHIP OF GAINS
place. However, stipulations that do not
depend upon the celebration of marriage This property regime was formerly the default
shall be valid. regime under the Civil Code. In this regime,
the spouses retain ownership of their
e.g. recognition of paternity of illegitimate separate property. However, the spouses also
child place in common fund the proceeds, products,
fruits and income of their separate property
and those acquired by either or both spouses
Art. 89. No waiver of rights, shares and through their efforts or by chance.
effects of the absolute community of property
during the marriage can be made except in The presumption applies that all properties
case of judicial separation of property. acquired during the marriage belong to the
CPG. There are 3 distinct patrimonies in this
When the waiver takes place upon a judicial system, the husbands capital property, the
separation of property, or after the marriage wifes paraphernal property and the conjugal
has been dissolved or annulled, the same property.
shall appear in a public instrument and shall
be recorded as provided in Article 77. The
creditors of the spouse who made such SEPARATION OF PROPERTY
waiver may petition the court to rescind the
waiver to the extent of the amount sufficient Each spouse has complete control and
to cover the amount of their credits. ownership of his or her own properties which
will include all earnings from his or her
Art. 90. The provisions on co-ownership profession, business or industry and all fruits,
shall apply to the absolute community of natural, industrial or civil, due or received
property between the spouses in all matters during the marriage form his or her separate
not provided for in this Chapter. property. Expenses of the family shall be
shouldered by the spouses in proportion to
their income, or, in case of insufficiency or
N.B.: The creditors of the spouse who made default thereof, to the current market value of
such waiver may petition the court to rescind their separate properties.
the waiver to the extent of the amount
sufficient to cover the amount of their credits.

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COMPARISON OF ACP and CPG

ABSOLUTE COMMUNITY OF CONJUGAL PARTNERSHIP OF GAINS


PROPERTY
When it At the precise moment of the Default property regime for marriages
commences celebration of the marriage [Art. celebrated before the Family Code took effect
88] (August 3, 1988)
For marriages after the Family Code, if agreed
to by the parties through a marriage
settlement.
What it consists of All the property owned by the Proceeds, products, fruits, and income of their
spouses at the time of the separate properties
celebration of the marriage or
acquired thereafter [Art. 91] Everything acquired by them during marriage
through their own efforts
Under the ACP, spouses cannot Everything acquired by them by chance.
exclude specific properties from
the regime.
Winnings from gambling shall Specific properties (Art. 117)
accrue to the community property 1. Acquired by onerous title during the
[Art. 95] marriage at the expense of the common fund;
2. Acquired through the labor, industry, work,
or profession of either or both spouses
3. Fruits from common property and net fruits
of the exclusive property of each spouse
4. Share of either spouse in hidden treasure,
whether as finder or owner of property where
treasure was found
5. Acquired through occupation such as
fishing or hunting
6. Livestock existing at dissolution of
partnership in excess of what is brought by
either spouse to the marriage
7. Acquired by chance, such as winnings from
gambling or betting
Moral damages arising from a contract paid
from the CPG [Zulueta v. Pan Am (1973)]
Loans contracted during the marriage are
conjugal, and so is any property acquired
therefrom [Mendoza v. Reyes (1983)]
Property purchased by installment, paid
partly with conjugal funds and partly with
exclusive funds, if full ownership was vested
during the marriage; the CPG shall reimburse
the owner-spouse [Art. 118]
If a winning ticket is bought by conjugal
funds, the prize is conjugal (otherwise, the
prize is exclusive property of the spouse who

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ABSOLUTE COMMUNITY OF CONJUGAL PARTNERSHIP OF GAINS


PROPERTY
owns the ticket)

Improvement on exclusive property: if original


value < new value (where new value = value of
land + value of improvements + net change in
value), then land becomes conjugal property,
subject to the reimbursement of the value of
the property of the owner-spouse at the
dissolution of the CPG
Property belonging to one spouse converted
into another kind totally different in nature
from its original form during marriage
becomes conjugal in the absence of proof that
the expenses of the conversion were
exclusively for the account of the original
owner-spouse, subject to reimbursement of
the value of the original property from the
conjugal partnership
What remains Properties acquired before the Property brought into the marriage by each
exclusive property marriage, for those with spouse as his/her own
legitimate descendants with a
former marriage (to protect rights
of children by a former marriage)
Properties acquired during the Property acquired by either spouse during the
marriage by a gratuitous title, i.e. marriage by gratuitous title
donation, inheritance by testate
and intestate succession,
including the fruits of such
properties
Except: When expressly provided
by the donor or testator that the
property shall form part of the
ACP
Properties for personal use Property acquired by right of redemption, by
Except: Jewelry (partakes of the barter, or by exchange with property
nature of an investment) belonging to either spouse
Plata v. Yatco: Plata purchased property
when she was single. When married, she and
her husband Bergosa co-signed a mortgage
on the property. Upon foreclosure, Bergosa
was sued for illegal detainer. A writ of
execution on the property was carried out but
Plata refused to leave the premises. SC ruled
that Plata cannot be held in contempt.
Property is not conjugal. Her husband signing
as co-mortgagor does not convert it to CPG.
She could ignore execution because the

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decision was for her husband alone.

Property purchased with exclusive money


of either spouse
Property purchased by installment, paid
partly with conjugal funds and partly with
exclusive funds, if full ownership was vested
before the marriage [Art. 118]

Even if the installment is completed after the


marriage, the property is exclusive if
ownership was vested in one spouse before
the marriage [Lorenzo v. Nicolas (1952)]
Presumption All properties acquired during the All property acquired during the marriage,
marriage form part of the ACP, whether made, contracted, or registered in
unless it be proven that they are the name of one spouse, are presumed
excluded. [Art. 93] conjugal unless the contrary is prove. [Art
116]
Charges and Arts. 94 Arts. 121-123
Obligations 1. Support of the following: 1. Support of the following:
a. Spouses; a. Spouses;
b. Common children; b. Common children;
c. Legitimate children of previous c. Legitimate children of previous marriage;
marriage; d. Illegitimate children follow the provisions
d. Illegitimate children follow on Support; Partnership assets liable in case
the provisions on Support; ACP responsibilities under Art. 121 have been
liable in case of absence or covered and there is absence or insufficiency
insufficiency of the exclusive of the exclusive property of the debtor-spouse
property of the debtor-spouse but but the payment shall be considered as
the payment shall be considered advance to the share of the debtor-spouse.
as advance to the share of the
debtor-spouse. 2. Expenses to enable either spouse to
commence/complete a
2. Expenses to enable either professional/vocational course or activity for
spouse to commence/ complete a self-improvement;
professional/vocational course or
activity for self-improvement; 3. Value donated or promised by both spouses
in favor of common legitimate children for the
3. Value donated or promised by exclusive purpose of commencing/
both spouses in favor of common completing a professional/ vocational course
legitimate children for the or activity for self-improvement
exclusive purpose of
commencing/ completing a
professional/ vocational course or
activity for self-improvement
If community property is If conjugal partnership property is insufficient,
insufficient, the spouses are the spouses are solidarily liable for the unpaid
solidarily liable for the unpaid balance from their separate properties except
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balance from their separate for:
properties except for: 1. Debts contracted by either spouse before
1. Debts contracted by either marriage which have not redounded to the
spouse before marriage which benefit of the family;
have not redounded to the benefit 2. Support of illegitimate children; and
of the family; 3. Liabilities incurred by either spouse arising
2. Support of illegitimate from crime or quasi-delict.
children; and Gambling losses of any kind (i.e. legal or
3. Liabilities incurred by either illegal) shall be borne by the losing spouses
spouse arising from crime or separate property [Art. 123]
quasi-delict.
Gambling losses of any kind (i.e. DBP v. Adil (1988):
legal or illegal) shall be borne by Loan contracts signed by both spouses are
the losing spouses separate conjugal, and they are jointly liable for
property [Art. 95] payment, even if only one spouse signs a
subsequent promissory note.

Ayala Investment v. Ching (1998):


The Supreme Court ruled that the indirect
benefits that might accrue to a husband in
signing as a surety or guarantee in an
agreement not in favor of the family but in
favor of his employer corporation are not
benefits that can be considered as giving a
direct advantage accruing to the family.
Hence, the creditors cannot go against the
conjugal partnership property in satisfying the
obligation subject of the surety agreement. A
contrary view would put in peril the conjugal
partnership by allowing it to be given
gratuitously as in cases of donation of
conjugal partnership property, which is
prohibited.
Ownership, The administration and The administration and enjoyment of the CPG
administration, enjoyment of the community shall belong to both spouses jointly. In case of
enjoyment, and property shall belong to both disagreement, the husbands decision shall
disposition spouses jointly. In case of prevail, subject to recourse to the court by the
disagreement, the husbands wife for proper remedy, within 5 years from
decision shall prevail, subject to the date of contract (Art. 124)
recourse to the court by the wife
for a proper remedy, within 5 De Ansaldo v. Sheriff of Manila (1937):
years from the date of contract Spouses are not co-owners of CPG during the
(Art. 96) marriage and cannot alienate the supposed
interest of each in the said properties. The
interest of the spouses in the CPG is only
inchoate or a mere expectancy and does not
ripen into title until it appears after the
dissolution and liquidation of the partnership
that there are net assets.

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Either spouse may, through a will, Art. 124, par. 2: Disposition or
dispose of his or her interest in encumbrance of conjugal property requires
the community property. [Art. 97] the following: Authority of the court or written
However, the will should refer consent of the other spouse. The absence of
only to his or her share in the such will render such encumbrance void.
community property.
Donation of one spouse without Consent or approval by both spouses, or
the consent of the other is not authority given by the court in lieu of the
allowed. [Art. 98] consent of the other spouse.
Exceptions:
Moderate donations to charity
due to family rejoicing or distress

Moderate gifts by each spouse to


the other due to family rejoicing
Moderation depends on the
familys socio-economic status.

ACP allows donations in excess of


one-fifth of present property of
future spouses because the
donation would form part of the
community property once the
marriage is celebrated. [Art. 84]
Jader-Manalo v. Camaisa (2002): Mere awareness of a transaction is NOT
consent.

Hom eowners Savings & Loan Bank v. Dallo (2005):


In the absence of (court) authority or written consent of the other spouse, any
disposition or encumbrance of the conjugal property shall be void.

Cheeseman v. IAC (1991):


If however, one of the spouses is an alien, the Filipino spouse may encumber or
dispose of the property w/o the consent of the former. The property is presumed
to be owned exclusively by the Filipino spouse.
Dissolution of the Terminates upon [Art. 99]: Terminates upon [Art. 126; cf. Art.
regime 1. Death of either spouse 99]:
follow rules in Art. 103 1. Death
2. Legal separation follow 2. Legal separation
rules in Arts. 63 and 64 3. Annulment or judicial declaration of
3. Annulment or judicial nullity
declaration of nullity follow Judicial separation of property
rules in Arts. 50 and 52
Judicial separation of property
during marriage follow rules in
Arts. 134 to 138
Rules on de facto Rules on de facto separation Rules on de facto separation [Art. 127]
separation [Art. 100] De facto separation does not affect the CPG,
De facto separation does not except that:
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affect the ACP, except that: Spouse who leaves the conjugal home
Spouse who leaves the conjugal without just cause shall not be entitled to
home without just cause shall not support; however, he/she is still required to
be entitled to support; however, support the other spouse and the family
he/she is still required to support 2. If consent is necessary for transaction but is
the other spouse and the family withheld or otherwise unobtainable,
If consent is necessary for authorization may be obtained from the court
transaction but is withheld or 3. Support for family will be taken from the
otherwise unobtainable, partnership property.
authorization may be obtained 4. If partnership property is insufficient,
from the court spouses shall be solidarily liable
Support for family will be taken
from the ACP
If ACP is insufficient, spouses
shall be solidarily liable
Effect of de facto If it is necessary to administer or 5. If it is necessary to administer or encumber
separation encumber separate property of separate property of spouse who left, spouse
spouse who left, spouse present present may ask for judicial authority to do
may ask for judicial authority to this
do this 6. If partnership property is not enough and
If ACP is not enough and one one spouse has no separate property, spouse
spouse has no separate property, who has property is liable for support,
spouse who has property is liable according to provisions on support.
for support, according to
provisions on support.
Charges and Abandonment [Art. 101] Abandonment [Art. 128]
Obligations Present/aggrieved spouse may Present/aggrieved spouse may petition the
petition the court for: court for:
1. Receivership 1. Receivership
2. Judicial separation of 2. Judicial separation of property
property 3. Authority to be the sole administrator of the
3. Authority to be the sole partnership property, subject to precautionary
administrator of the absolute conditions that the court may impose
community, subject to
precautionary conditions that A spouse is deemed to have abandoned the
the court may impose other when he or she has left the conjugal
dwelling without any intention of returning.
A spouse is deemed to have
abandoned the other when he or Spouse is prima facie considered to have
she has left the conjugal dwelling abandoned the other spouse and the family if
without any intention of he or she has:
returning. 1. Left for a period of 3 months
2. Failed to inform the other spouse of his or
Spouse is prima facie considered her whereabouts for a period of 3 months
to have abandoned the other
Rules on spouse and the family if he or she Partosa-Jo v. CA (1992):
Abandonment has: Physical separation of the spouses, coupled
1. Left for a period of 3 months with the husbands refusal to give support to
2. Failed to inform the other the wife, sufficed to constitute abandonment
spouse of his or her as a ground for an action for the judicial

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whereabouts for a period of 3 separation of their conjugal property.
months
Liquidation of Procedure [Art. 102] Procedure [Art. 129]
assets and Inventory of assets of ACP 1. Prepare an inventory of all properties
liabilities and of spouses, with market 2. Amounts advanced by CPG in payment of
values personal debts and obligations shall be
Obligations are paid with credited to the CPG
community property, and 3. Reimburse each spouse for the use of
separate obligations not his/her exclusive funds in the acquisition
charged to ACP paid by of property or for the value of his or her
respective assets of spouses exclusive property, the ownership of which
If obligations exceed the assets of has been vested by law in the conjugal
the ACP, nothing is divided. partnership
Creditors can go after the 4. Debts and obligations of CPG shall be
separate properties of the paid out of the conjugal assets, otherwise
spouses, which are solidarily both spouses are solidarily liable with
liable for the deficiency their exclusive property
Delivery of whatever remains 5. Remains of the exclusive properties shall
in their exclusive property be delivered to respective owner-spouses.
Balance, or net remainder is 6. Indemnify loss/deterioration of movables
divided equally between the belonging to either spouse, even due to
spouses, irrespective of how fortuitous event, used for the benefit of
much each brought into the the family
community 7. Net remainder of CPG shall constitute the
profits which shall be divided equally
If personal obligations of a
between husband and wife except when:
spouse exceed his/her
separate property, creditor A different proportion or division was
can go after the share of the agreed upon in the marriage
spouse on the net remainder settlements
of the ACP, without prejudice There has been a voluntary waiver or
to the provisions of law on forfeiture of such share as provided in
forfeitures and delivery of the FC
presumptive legitimes 8. Presumptive legitimes are delivered to
After covering all community common children
obligations and obligations 9. Conjugal dwelling goes to:
of spouses, balance of Spouse with whom majority of
separate properties shall be common children choose to remain
delivered to respective (below 7 y.o. = deemed to have
spouses or their heirs, and chosen the mother based on the
they will also divide into two tender years presumption)
equal shares whatever is left Whoever the court chooses in case of
of the community assets, lack of majority
without prejudice to the
provisions of law on
forfeitures and delivery of
presumptive legitimes
Rules in case of termination of marriage by death of one of the spouses [Art.
104]:
1. The community property shall be liquidated in the same proceeding for the
settlement of the estate of the deceased spouse.
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2. If no such judicial settlement proceeding is instituted, surviving spouse shall
liquidate the community property either judicially or extra-judicially within
one year from the death of the deceased spouse.
a. If no liquidation is made within the period, any disposition or encumbrance
involving community property of the terminated marriage shall be void.
b. Non-compliance with liquidation procedures would mean that a
subsequently contracted marriage will follow a regime of complete
separation of property.
Procedure for liquidation of properties of two marriages [Art. 104]:
Determine the capital, fruits, and income of each community upon such proof as
may be considered according to the rules of evidence.
In case of doubt as to which community the existing properties belong, they shall
be divided between two communities in proportion to the capital and duration of
each.

Separation of Property of the Spouses and Administration of Common Property by One


Spouse During the Marriage

Art. 134. In the absence of an express declaration in the marriage settlements. The separation of
property between spouses during the marriage shall not take place except by judicial order. Such
judicial separation of property may either be voluntary or for sufficient cause.

Sufficient Causes and Grounds for Return to Previous Regime


Sufficient Causes for Judicial Separation of Grounds for Return to Previous Regime
Property (Art. 135) (Art. 141)

(1) Spouse of petitioner has been sentenced to a (1) Termination of the civil interdiction
penalty which carries with it the penalty of civil
interdiction

(2) Spouse of petitioner is judicially declared an (2) Reappearance of absentee spouse


absentee

(3) Loss of parental authority of the spouse of (3) Restoration of parental authority to the spouse
petitioner has been decreed by the court previously deprived of it

(4) Spouse of petitioner has abandoned the latter (4) When the spouse who left the conjugal home
or failed to comply with his or her obligations to without legal separation resumes common life with
the family the other

(5) The spouse granted the power of (5) When the court, being satisfied that the spouse
administration in the marriage settlements has granted the power of administration in will not again
abused that power abuse that power, authorizes the resumption of said
administration

(6) At the time of the petition, the spouses have (6) Reconciliation and resumption of common life of
been separated in fact for at least 1 year and the spouses who had been separated in fact for at
reconciliation is highly improbable. least 1 year

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(7) When after voluntary dissolution of the ACP or


CPG has been judicially decreed upon the joint
petition of the spouses, they agree to the revival of
the former property regime. No voluntary separation
of property may thereafter be granted.

SEPARATION OF PROPERTY
Agreed upon in the marriage settlements by the spouses
Mandatory under Arts. 103 & 130 (subsequent marriages contracted by a
surviving spouse without judicial settlement of previous property regime)
When it applies
Judicial separation of property (Voluntary or just cause)
Default property regime when there is reconciliation between spouses after
judicial separation of property

Present or future property or both


Each spouses earnings from his or her own profession, business, or industry
What it consists of Natural, industrial or civil fruits of spouses separate properties
May be total or partial
If partial, property not considered separate is presumed to pertain to the ACP

Family expenses: Both spouses are liable in proportion to their income; if


Liabilities insufficient, based on the current value of their separate properties

Creditors for family expenses: Spouses solidarily liable


Spouses may own, dispose, possess, and administer separate estates without the
consent of the other

Ownership, Administration of exclusive properties may be transferred between spouses when:


administration, One spouse becomes the other spouses guardian
enjoyment, and 1. One spouse is judicially declared an absentee
disposition 2. One spouse is given the penalty of civil interdiction
3. One spouse becomes a fugitive

Conveyance between the spouses is allowed under Art. 1490, NCC.

In Re: voluntary dissolution of CPG of and 2nd marriages were not informed; the
Sps. Bernas (1965): separation of property may prejudice the
rights and shares of the children.
A voluntary separation of properties is not
perfected by mere consent but upon the Maquilan v. Maquilan (2007):
decree of the court approving the same. The A compromise agreement with judicial
petition for voluntary separation of property recognition is valid, pending petition for
was denied because the children of the 1st declaration of nullity of marriage.

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PROPERTY REGIME OF UNIONS W ITHOUT MARRIAGE, Arts. 147-148

Art. 147 Art. 148


Man and woman living together as Man and woman living together as
husband and wife, with capacity to husband and wife, NOT capacitated to
marry (Art.5, without any legal marry
impediment) a. Under 18 years old
-at least 18 years old b. Adulterous relationship
-not violative of Art. 37 (incestuous c. Bigamous/polygamous marriage
Applicability void marriage) d. Incestuous marriages under Art. 37
-not violative of Art. 38 (void marriage e. Void marriages by reason of public policy
by reason of public policy) under Art. 38
-not bigamous

Other void marriages due to absence


of formal requisite

Salaries and Owned in equal shares Separately owned by parties


wages

Properties Remains exclusive, provided there is Remains exclusive


acquired through proof
exclusive funds

Properties Governed by rules on co-ownership Owned in common in proportion to


acquired by both respective contribution
through work
and industry

Owned in equal shares since it is


presumed to have been acquired
through joint efforts

If one party did not participate in


acquisition, presumed to have No presumption of joint acquisition. When
Properties contributed jointly, if the formers there is evidence of joint acquisition but
acquired while effort consisted in the care and none as to the extent of actual
living together maintenance of family and household contribution, there is a presumption of
equal sharing.
N.B. Neither party can encumber or
dispose by acts inter vivos his share in
co-owned property without the
consent of the other party until
cohabitation is terminated.

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Art. 147 Art. 148


Where only one party to a void
marriage is in good faith, share of If one party is validly married to another
party in bad faith is forfeited: his/her share in the co-owned properties
-In favor of their common children will accrue to the ACP/CPG of his/her
-In case of default of or waiver by any existing valid marriage.
or all of the common children or their
descendants, each vacant share shall If the party who acted in bad faith is not
Forfeiture
belong to the respective surviving validly married to another, his/her share
descendants shall be forfeited in the same manner as
-In the absence of such descendants, that provided in Art 147.
such share belongs to the innocent
party The same rules on forfeiture shall apply if
both parties are in bad faith.

Difference between Articles 147 and


148
Art. 147 applies to unions of parties who are
legally capacitated and not barred by any
impediment to contract marriage, but whose
marriage is nonetheless void for other
reasons, like the absence of a marriage
license.

Article 148 refers to the property regime of


bigamous marriages, adulterous
relationships, relationships in a state of
concubinage, relationships where both man
and woman are married to other persons,
multiple alliances of the same married man.
[Nicdao Cario v. Yee Cario (2001)].

Yaptinchay v. Torres (1969):


Application of Article 148; there was no proof
of actual contribution, while there was a
subsisting marriage apart from the union
without marriage, therefore, the N. Forbes
house goes to the CPG of subsisting marriage

Villanueva v. CA (2004):
Transfer of certificate and tax declarations
are not sufficient proof of joint contribution.

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VII. Family Relations o Such efforts have failed; and


o Such earnest efforts and the
fact of failure must be
THE FAMILY AS AN INSTITUTION alleged.
The case will be dismissed if it is
Art. 149. The family being the foundation of shown that no such efforts were
the nation is a basic social institution which made.
public policy cherishes and protects.
Consequently, family relations are governed
by law and no custom practice or agreement Exceptions
destructive of the family shall be recognized
or given effect. o The general rule shall not apply to
cases which may not be the subject of
compromise.
Art. 150. Family relations include those: o The following cannot be subject of
(1) Between husband and wife compromise: (Art 2035)
(2) Between parents and children 1. Civil status of persons,
(3) Among other ascendants and 2. Validity of marriage or a legal
descendants separation,
(4) Among brothers and sisters, full or half 3. Any ground for legal separation,
blood. 4. Future support (as it is presumed
to be needed for the survival of
the one receiving support),
General Rules
5. Jurisdiction of courts,
The family is an institution that is 6. Future legitime
governed by law
The internal aspect of the family is sacred
and inaccessible to law because law must THE FAMILY HOME
respect the freedom of action of man.

A. WHAT CONSTITUTES THE FAMILY


EFFECTS OF FAMILY RELATIONSHIP HOME?
ON LEGAL DISPUTES
Art. 151. No suit between members of the General Rules
same family shall prosper unless it should
o The family home is the dwelling
appear form the verified complaint or petition
house where family resides and the
that earnest efforts toward a compromise
land on which it is sustained (Art. 152)
have been made but that the same have
failed. If it is shown that no such efforts were o The family home must be part of the
in fact made the case must be dismissed. properties of the absolute community
or the conjugal partnership, or of the
General Rules exclusive properties of either spouse
Suit between members of the same with the others consent. It may also
family shall prosper only if it shall be constituted by an unmarried head
appear in a verified complaint or of a family in his or her own property.
petition that: (Art. 156)

o Earnest efforts towards a o The actual value of the family home


compromise have been made; shall not exceed, at the time of its
constitution, the amount of
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P300,000 in urban areas, and (3) Debts secured by mortgages on the


P200,000 in rural areas, or such premises before or after such
amounts as may hereafter be fixed by constitution.
law (Art. 157)
(4) Debts due to laborers, mechanics,
o For the purposes of availing of the architects, builders, materialmen and
benefits of a family home as provided others who have rendered service or
for in this Chapter, a person may furnished material for the construction of
constitute, or be the beneficiary of, the building.
only one home. (Art. 161)
D. BENEFICIARIES

B. WHO MAY CONSTITUTE THE FAMILY


HOME? Art. 154. The beneficiaries of a family
home are:
1. The husband and wife, or an unmarried
General Rules person who is the head of a family; and
o The family home may be constituted 2. Their parents, ascendants,
jointly by the husband and wife or an descendants brothers, and sisters
unmarried head of the family (Art. (legitimate/illegitimate), who are living
152) in the family home and who depend on
o A person may constitute and be the the head of the family for support
beneficiary of only one family home
(Art. 161) General Rule
o Requisites to be a beneficiary:
o The relationship is within those
C. WHEN IS IT DEEMED CONSTITUTED?
enumerated in Art. 150
o They live in the family home
General Rules
o They are dependent for legal
o The family home is deemed support on the head of the family
constituted on a house and lot form
o Requirements for the sale, alienation,
the time it is occupied as a family
donation, assignment, or
residence.
encumbrance of the family home (Art.
o The family home is exempt from the 158)
following from the time of its
o The written consent of the
constitution and so long as any of its
person constituting it,
beneficiaries actually resides therein
(Art. 153): o That of the spouse of the
person constituting it, and
(1) Execution
o That of majority of the
(2) Forced sale
beneficiaries of legal age
(3) Attachment
Exceptions in the exemption of the
Patricio vs. Dario (2006): The law
fam ily hom e from execution (Art. 155)
explicitly provides that occupancy of the
(1) Nonpayment of taxes. family home either by the owner thereof or by
(2) Debts incurred prior to the constitution of any of its beneficiaries must be
the family home. actual. That which is actual is something
real, or actually existing, as opposed to
something merely possible, or to something
which is presumptive or constructive. Actual

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occupancy, however, need not be by the written consent of the person constituting
owner of the house specifically. Rather, the the same the latters spouse and a majority
property may be occupied by the of the beneficiaries of legal age. In case of
beneficiaries enumerated in Article 154 of conflict the court shall decide.
the Family Code, which may include the in-
laws where the family home is constituted Art. 159. The family home shall continue
jointly by the husband and wife. But the law despite the death of one or both spouses or
definitely excludes maids and overseers. They of the unmarried head of the family for a
are not the beneficiaries contemplated by the period of 10 years or as long as there is a
Code. minor beneficiary, and the heirs cannot
partition the same unless the court finds
compelling reasons therefor. This rule shall
E. WHEN TERMINATED apply regardless of whoever owns the
property or constituted the family home.

Art. 159. The family home shall continue


despite the death of one or both of the General Rule: As a rule, the family home is
spouses or of the unmarried head of the family exempt from execution, forced sale or
for a period of ten years or for as long as there attachment.
is a minor beneficiary and the heirs cannot
partition the same unless the court finds
compelling reasons therefor. The rule shall G. RIGHTS OF CREDITORS
apply regardless of whoever owns the property
or constituted the family home.
Art. 157. The actual value of the family
home shall not exceed at the time of its
General Rule constitution the amount of three hundred
thousand pesos in urban areas and two
o Article 159 imposes the proscription hundred thousand pesos in rural areas or
against the immediate partition of such amounts as may hereafter be fixed by
the family home regardless of its law.
ownership. This signifies that even if
the family home has passed by
succession to the co-ownership of the
heirs, or has been willed to any one of General Rules
them, this fact alone cannot o In any event, if the value of the
transform the family home into an currency changes after the adoption
ordinary property, much less dispel of this Code, the value most favorable
the protection cast upon it by the law. for the constitution of a family home
The rights of the individual co-owner shall be the basis of evaluation.
or owner of the family home cannot
subjugate the rights granted under o Urban areas include chartered cities
Article 159 to the beneficiaries of the and municipalities
family home. [Arriola v. Arriola o All others are deemed to be rural
(2008)] areas

F. WHEN IT MAY BE SOLD Procedure to avail of right under Art.


160
1. The creditor must file a motion in the
Art. 158. The family home may be sold court proceeding where he obtained a
alienated donated assigned or encumbered favorable decision for a writ of execution
by the owner or owners thereof with the against the family home.

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2. There will be a hearing on the motion


where the creditor must prove that the VIII. Paternity and
actual value of the family home exceeds
the maximum amount fixed by the FC
Filiation
either at the time of its constitution or as
a result of improvements introduced
thereafter. Art. 163. The filiation of children may be by
nature or by adoption. Natural filiation may
3. If the creditor proves that the actual value be legitimate or illegitimate.
exceeds the maximum amount the court
will order its sale in execution. Kinds of Filiation [Arts. 163, 164, 165]:

4. If the family home is sold for more than (1) Natural


the value allowed, the proceeds shall be Legitimate
applied as follows:
Illegitimate
a. First, the obligation enumerated in
Article 157 must be paid (2) Legal Fiction (Adoption)
b. Then the judgment in favor of the
creditor will be paid, plus all the costs A. LEGITIMATE CHILDREN
of execution
c. The excess, if any, shall be delivered
Art. 164. Children conceived or born during
to the judgment debtor
the marriage of the parents are legitimate.
Children conceived as a result of artificial
General Rules insemination of the wife with the sperm of the
husband or that of a donor or both are
o The proof that the house is the family
likewise legitimate children of the husband
home must be alleged against
and his wife, provided, that both of them
creditors; Applied the rule in Art. 160,
authorized or ratified such insemination in a
FC. [Versola v. Mandolaria (2006)]
written instrument executed and signed by
them before the birth of the child. The
instrument shall be recorded in the civil
registry together with the birth certificate of
the child.

1. Natural/Biological
Liyao v. Liyao (2002): A child conceived
or born during a valid marriage is presumed
to belong to that marriage, regardless of the
existence of extramarital relationships.

2. Artificial Insemination
Requisites to be considered
legitim ate:
(a) Artificial insemination made on wife
(b) Sperm comes from any of the
following:
Husband
Third Person Donor
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Husband and third person


donor Andal v. Macaraig (1951): Serious illness
(c) In case of donor sperm, husband and of the husband which absolutely prevented
wife must authorize/ratify him from having sexual intercourse with his
insemination in a written instrument wife, like if the husband was already in
comatose or in a vegetative state, or sick with
Executed & signed by syphilis in the tertiary stage so that
husband and wife before the copulation was not possible. But
birth of the child. tuberculosis, even in its most crucial stage,
Recorded in the civil registry does not preclude copulation between the
together with the birth sick husband and his wife.
certificate of the child. Jao v. CA (1987): Blood-type matching is
Dual consent is required whether the semen an acceptable means of impugning
used comes from the husband or a third legitimacy, covered by Art. 166(2), under
person donor (Tolentino) "biological or other scientific reasons." But
this is only conclusive of the fact of non-
De Castro v. Assidao-De Castro, paternity.
(2008): Common children born before the
annulment are legitimate, and therefore Benitez-Badua v. CA (1994): Only the
entitled to support from each of the spouses. man (and his heirs in certain situations) can
impugn the legitimacy of the child

Impugning Legitim acy


Legitim acy with regard to the mother:
Grounds for im pugning legitim acy of a
child are [Art. 166]: (1) Child considered legitimate although
[Art. 167]:
(1) Physical impossibility for the husband to
have sexual intercourse with his wife (a) Mother may have declared against its
within the first 120 days of the 300 days legitimacy
which immediately preceded the child's (b) Mother may have been sentenced as
birth due to: an adulteress (also applies to wife
a. Physical incapacity of the husband to who was raped)
have sexual intercourse with his wife (2) If the marriage is terminated and the
b. Husband and wife were living mother contracted another marriage
separately as to make sexual within 300 days after the termination of
intercourse impossible the former marriage, the following rules
shall govern in the absence of proof to
c. Serious illness of the husband the contrary [Art 168]:
absolutely preventing sexual
intercourse (a) If born before 180 days after the
solemnization of the subsequent
(2) Other biological or scientific reasons, marriage child is considered
except Artificial Insemination conceived during the former
(3) And in case of Artificial Insemination, the marriage, provided it be born within
written consent of either parent was 300 days after termination of the
vitiated through fraud, violence, mistake, former marriage
intimidation, or undue influence (b) If born after 180 days following the
Macadangdang v. CA (1980): Mere celebration of the subsequent
proximate separation between the spouses is marriage child is considered
not sufficient physical separation to conceived during such marriage, even
constitute as ground for impugning if it be born within 300 days after the
legitimacy. termination of the former marriage

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Note: The legitimacy or illegitimacy of a within the periods prescribed in Art. 170 [Art.
child born after 300 days following the 171]:
termination of the marriage burden of proof
(a) If the husband died before the expiration
upon whoever alleges the status. [Art. 169]
of the period fixed for bringing his action
If nobody asserts the legitimacy or
(b) If he should die after the filing of the
illegitimacy of the child described in Art. 169,
complaint without having desisted
the child should be considered illegitimate
therefrom
unless legitimacy is proved. Legitimacy
cannot be presumed here since the birth was (c) If the child was born after the death of the
beyond the 300-day period of gestation. husband.
While it goes against the policy of law to lean
Sayson v. CA (1992): Legitimacy can only
in favor of legitimacy, this interpretation is
be attacked directly.
better than the anomalous situation created
by Art. 169, which is a child without a status.
(Tolentino)
B. PROOF OF FILIATION

Action for Impugning Legitim acy Art. 172. The filiation of legitimate children
[Arts. 170 and 171] is established by any of the following:
(1) The record of birth appearing in the civil
May be brought within 1, 2, or 3 years from register or a final judgment; or
the knowledge of the birth, or the knowledge (2) An admission of legitimate filiation in a
of registration of birth. public document or a private handwritten
instrument and signed by the parent
(1) Within 1 year - if husband or any heirs
concerned.
reside in the same city or municipality
where the child was born or his birth was In the absence of the foregoing evidence, the
recorded. legitimate filiation shall be proved by:
(1) The open and continuous possession of the
(2) Within 2 years - if the husband or all heirs
status of a legitimate child; or
live in the Philippines but do not reside in
(2) Any other means allowed by the Rules of
the same city or municipality where the
Court and special laws.
child's birth took place or was recorded
(3) Within 3 years - if the husband or all heirs
live outside the Philippines when the Legitim ate children may establish
child's birth took place or was recorded in their filiation by any of the following
the Philippines [Art. 172]:
If the birth of the child has been concealed or (1) Primary Evidence
was unknown to the husband, the above
Their record of birth appearing in the
periods shall be counted:
civil registry.
(1) From the discovery or knowledge of the
birth of the child, or An admission of his filiation by his
parent in a public document or a
(2) From the discovery or knowledge of its private handwritten instrument and
registration, whichever is earlier. signed by said parent
(2) Secondary Evidence
GENERAL RULE: Only the husband can Proof of open and continuous
impugn the legitimacy of a child. If he does possession of status as legitimate
not bring an action within the prescribed child
periods, he cannot file such action anymore
thereafter, and this is also true with his heirs. Any other means stated by the rules
of court or special laws
EXCEPTION: That the heirs of the husband
may file the action or continue the same Note: Only in the absence of primary evidence
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can secondary evidence be admitted Art. 175. Illegitimate children may establish
their illegitimate filiation in the same way and
on the same evidence as legitimate children.
Action for Claiming Filiation
The action must be brought within the same
(Legitim ate Children) [Art. 173]:
period specified in Article 173, except when
(a) The child can bring the action during his the action is based on the second paragraph
or her lifetime of Article 172, in which case the action may be
(b) If the child dies during minority or in a brought during the lifetime of the alleged
state of insanity, such action shall be parent.
transmitted to his heirs, who shall have a
period of five years within which to
institute the action. GENERAL RULE: Illegitimate children may
establish their illegitimate filiation in the
(c) The action commenced by the child shall same way and on the same evidence (primary
survive notwithstanding the death of or secondary) as legitimate children.
either or both of the parties
Action for Claiming Filiation [Art.
175]:
Rights of Legitim ate Children [Art. (a) For actions based on primary evidence,
174]: the same periods stated in Art. 173 apply.
(a) To bear the Surnames of the father and (b) For actions based on secondary evidence,
the mother, in conformity with the the action may only be brought during
provisions of the Civil Code on surnames the lifetime of the alleged parent.
(b) To receive support from their parents,
their ascendants, and in proper cases,
their brothers and sisters, in conformity PRIMARY EVIDENCE
with the provisions of the Code on Mendoza v. Melia (1966): Baptismal
Support certificates are given probative value only for
(c) To be entitled to the legitimate and other births before 1930. Birth certificates must be
Successional rights granted to them by signed by the parents and sworn for it to be
the Civil Code admitted as evidence.
Eceta v. Eceta (2004): Signature of the
father on the birth certificate is considered as
C. ILLEGITIMATE CHILDREN an acknowledgement of paternity and mere
presentation of a duly authenticated copy of
such certificate will successfully establish
Art. 165. Children conceived and born
filiation.
outside a valid marriage are illegitimate,
unless otherwise provided in this Code. Baluyut v. Baluyut (1990): Unsigned birth
certificates are not evidence of recognized
W ho are illegitim ate children
filiation.
GENERAL RULE: Those conceived and
De Jesus v. Estate of Decedent Juan
born outside of a valid marriage. [Art. 165]
Gam boa Dizon (2001): The due
EXCEPTIONS: recognition of an illegitimate child in a record
of birth, a will, a statement before a court of
(1) Children of marriages void under Art. 36
record, or in any authentic writing, is in itself
(psychological incapacity); and
a consummated act of acknowledgement of
(2) Under Art. 53 (subsequent marriages the child, and no further court action is
which did not comply with Art. 52). required.
(Sempio-Dy)

SECONDARY EVIDENCE

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Jison v. CA (1998): Rule 130, Sec. 40 is Estate of Rogelio Ong v. Diaz (2007):
limited to objects commonly known as family DNA evidence can still be used even after the
possessions reflective of a family's reputation death of the parent.
or tradition regarding pedigree like
Lim v. CA (1975): Marriage certificates
inscriptions on tombstones, monuments, or
cannot be used as proof of filiation.
coffin plates.
Heirs of Rodolfo Baas v. Heirs of
Bibiano Baas (1985): "Su padre [Your Gotardo v. Buling (2012): There are four
father]" ending in a letter is only proof of significant procedural aspects of a traditional
paternal solicitude and not of actual paternity action that parties have to face:
paternity. Signature on a report card under a prima facie case, affirmative defenses,
the entry of "Parent/Guardian" is likewise presumption of legitimacy, and physical
inconclusive of open admission. resemblance between the putative father and
the child. A prima facie case exists if a woman
Gono-Javier vs. Court of Appeals
declares supported by corroborative proof
(1994): Mere possession of status as an
that she had sexual relations with the
illegitimate child does not make an
putative father; at this point, the burden of
illegitimate child recognized but is only a
evidence shifts to the putative father. Further,
ground for bringing an action to compel
the two affirmative defenses available to the
judicial recognition by the assumed parent.
putative father are: (1) incapability of sexual
Perla v. Baring and Perla (2012): To relations with the mother due to either
prove open and continuous possession of the physical absence or impotency, or (2) that the
status of an illegitimate child, there must be mother had sexual relations with other men
evidence of the manifestation of the at the time of conception.
permanent intention of the supposed father
Art. 176. Illegitimate children shall use the
to consider the child as his, by continuous
surname and shall be under the parental
and clear manifestations of parental affection
authority of their mother, and shall be
and care, which cannot be attributed to pure
entitled to support in conformity with this
charity.
Code. The legitime of each illegitimate child
Meanwhile, the lack of participation of the shall consist of one-half of the legitime of a
supposed father in the preparation of a legitimate child. Except for this modification,
baptismal certificate renders this document all other provisions in the Civil
incompetent to prove paternity. Baptismal Code governing successional rights shall
certificates are per se inadmissible in remain in force.
evidence as proof of filiation and they cannot
be admitted indirectly as circumstantial
evidence to prove the same Rights of Illegitimate Children:
De Jesus v. Syquia (1933): By "open and (a) Use the Surname and be under the
continuous possession of the status of a parental authority of the mother
legitimate child" is meant the enjoyment by
(b) However, may use the surname of father
the child of the position and privileges usually
if
attached to the status of a legitimate child,
like bearing the paternal surname, treatment Their filiation has been expressly
by the parents and family of the child as recognized by the father through the
legitimate, constant attendance to the child's record of birth appearing in the civil
support and education, and giving the child register; or
the reputation of being a child of his parents.
There is an admission in a public
document or private handwritten
OTHER EVIDENCE instrument made by the father.

Agustin v. CA (2005): DNA evidence can Provided, the father has the right to
be used as proof of paternity. institute an action before the regular

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courts to prove non-filiation during marriage shall benefit their


his lifetime [RA 9255] descendants [Art. 181]
Grande v. Antonio (2014): The use of the
word may in Art. 176 readily shows that
Grounds for im pugning legitim ation:
an acknowledged illegitimate child is under
no compulsion to use the surname of his (1) The subsequent marriage of the child's
illegitimate father. The word may is parents is void.
permissive and operates to confer
(2) The child allegedly legitimated is not
discretion upon the illegitimate children.
natural.
(c) Shall be entitled to Support in conformity
(3) The child is not really the child of the
with the Family Code
alleged parents. (Sempio-Dy)
(d) Legitime shall consist of one-half of the
legitime of a legitimate child.
Rights:
The same as those of legitimate children [Art.
D. LEGITIMATED CHILDREN 179]

Art. 177. Only children conceived and born


outside of wedlock of parents who, at the Impugning legitim ation [Art. 182]
time of the conception of the former, were not (1) May be made only by those who are
disqualified by any impediment to marry each prejudiced in their rights
other may be legitimated.
(2) Within five years from the time their
cause of action accrues
GENERAL RULE: "Legitimated" children
are illegitimate children who because of the
subsequent marriage of their parents are, by
legal fiction, considered legitimate.
To be capable of legitim ation:
(1) The child must have been conceived and
born outside of wedlock; and
(2) The parents, at the time of the child's
conception, were not disqualified by any
impediment to marry each other, or
disqualified only because either or both of
them were below 18 years old. (Art. 177 as
amended by RA 9858)
Procedure and Effects:
(a) Legitimation shall take place by a
subsequent valid marriage between
the parents. The annulment of a
voidable marriage shall not affect the
legitimation. [Art. 178]
(b) Effects of legitimation shall retroact
to the time of the childs birth [Art.
180]
(c) Legitimation of children who died
before the celebration of the

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IX. Adoption
Adoption is a juridical act, which creates It requires a proceeding in rem, and may
between two persons a relationship similar to only be proven by a judicial decree issued by a
that which results from legitimate paternity court of competent jurisdiction, not by open
and filiation. and continuous cohabitation.

LEGITIMATION ADOPTION

The law merely makes legal what exists The law creates by fiction a relation
Legal effect
by nature which did not in fact exist
Persons affected Natural children Strangers (generally)
Procedure Extrajudicial acts of parents Always by judicial decree
Both parents
Except when:
One spouse seeks to adopt the
legitimate child of the other
W ho should One spouse seeks to adopt his own
Both parents
apply illegitimate child, provided that the
other spouse has signified their
consent thereto
Spouses are legally separated from
each other
Same status and rights with that of a Creates a relationship only between
Effect on parent- legitimate child not only in relation to the child and the adopting parents
child relationship the legitimizing parents but also to
other relatives
RA 8552 Dom estic Adoption Law (f) In a position to support and care for
(February 25, 1998) his/her children in keeping with the
means of the family
A. WHO CAN ADOPT (g) Has undergone pre-adoption services
B. Aliens (Sec. 7b)
A. Filipino Citizens (Sec. 7a) - Same for Filipinos provided further that:
(a) Of legal age (1) His/her country has diplomatic
(b) With full civil capacity and legal rights relations with the Philippines
(c) Of good moral character and has not (2) Has been living in the Philippines for
been convicted of any crime involving 3 continuous years prior to the filing
moral turpitude of application and maintains such
residence until the decree is entered
(d) Emotionally and psychologically (provided that absences not
capable of caring for children exceeding 60 days per 1 year for
(e) At least sixteen (16) years older than professional, business, or emergency
adoptee, except when adopter is reasons are allowed)
biological parent of the adoptee or is (3) Has been certified by his/her
the spouse of the adoptees parent diplomatic or consular office or any
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appropriate government agency that (f) A child whose biological or adoptive


he/she has the legal capacity to parent(s) has died, provided that no
adopt in his/her country proceedings shall be initiated within 6
months from the time of death of said
(4) His/her government allows the
parent(s)
adoptee to enter his/her country as
his/her adoptee and reside there
permanently as an adopted child
Exceptions to the Requirement of a
(5) Has submitted all the necessary Certification that the Child is
clearances and such certifications as Available for Adoption (Sec. 4):
may be required
Adoption of an illegitimate child by
**Requirem ents in 3, 4 and 5 may his/her biological parent;
be waived under the following
circum stances: Adoption of a child by his/her
stepparent;
(a) Adopter is a former Filipino Citizen
who seeks to adopt a relative within Adoption by a relative within the 4th
the 4th degree of consanguinity or civil degree by consanguinity or
affinity affinity
(b) Adopter seeks to adopt the legitimate
or illegitimate child of his/her Filipino Persons whose written consent is
spouse necessary for adoption (Sec. 9)
(c) Adopter is married to a Filipino (1) The prospective adoptee if 10 years or
Citizen and seeks to adopt jointly with older
his/her spouse a relative within the
4th degree of consanguinity or affinity (2) The prospective adoptees biological
of the Filipino spouse parents, legal guardian or the
government instrumentality or
C. Guardians institution that has custody of the
With respect to their wards, after the child
termination of the guardianship and (3) The prospective adopters legitimate
clearance of his/her accountabilities. and adopted children who are 10
years or older

B. WHO CAN BE ADOPTED (SEC. 8) (4) The prospective adopters illegitimate


children, if any, who are 10 years or
(a) Minor who has been administratively older and living with them
or judicially declared available for (5) The spouse, if any, of the person
adoption adopting or to be adopted.
(b) Legitimate child of one spouse by
another
Note: A decree of adoption shall be effective
(c) Illegitimate child by a qualified as of the date the original petition was filed. It
adopter to improve the childs status also applies in case the petitioner dies before
to that of legitimacy the issuance of the decree of adoption to
(d) A person of legal age if, prior to the protect the interest of the adoptee.
adoption, said person has been
consistently considered and treated
by the adopter(s) as his/her child
since minority
(e) A child whose previous adoption has
been rescinded

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C. PRE-ADOPTION PROCEDURES 3. Required supporting documents for


a petition for the declaration of
1. Voluntary Commitment of involuntary com m itm ent:
biological parent(s) wanting to put (a) Social Case Study Report by DSWD /
their child up for adoption LGU / institution charged with childs
Counseling on their options other than adoption custody
(b) Proof of efforts to locate the childs
parents/known relatives
Explaining to them the implications of losing their - Written certification that a
parental authority over the child local/national radio/TV case was
aired on 3 different occasions
- Publication in 1 newspaper of
general circulation
Continuing services shall be provided after
relinquishment to cope with feelings of loss, etc. and - Police report / barangay
other services for the reintegration to the community certification of due diligence
of the biological parent(s) - Returned registered mail to last
known address of parents
(c) Birth certificate, if available
Biological parent(s) who decide to keep the child
shall be provided with adequate services and (d) Recent photo and photo upon
assistance to fulfill their parental responsibilities abandonment of child

Biological parent(s) who decide to put the child for


adoption shall sign the Deed of Voluntary
Commitment (DVC), which shall be rescissible
within 3 months from signing of the same

2. Involuntary Commitment of
abandoned or neglected child

Filing of a petition at Regional DSWD in the form of


an affidavit and with the required supporting
documents

Posting of the petition, then recommendation by the


Regional Director of the DSWD (5 days each)

Issuance of certification by DSWD Secretary


declaring the child legally available for adoption
within 3 months following involuntary commitment

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D. ADOPTION PROCEDURES

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Note: distinction from legitimate filiation.


However, if the adoptee and his/her
DSWD must certify the child as biological parents had left a will, the law
legally available for adoption as a on testamentary succession shall govern.
prerequisite for adoption
proceedings. Art. 190 (as amended). Legal or
intestate succession to the estate of the
After the decree of adoption, the adopted shall be governed by the
court may also issue a travel following rules:
authority, if needed.
(1) Legitimate and illegitimate
children, descendants and the
The case study report by the DSWD/LGU is surviving spouse of the adoptee shall
indispensable. Without it, the adoption inherit in accordance with the
decree shall be void. [DSWD v. Judge Belen ordinary rules of legal/intestate
(1997)] succession
(2) When the surviving spouse OR
illegitimate children AND adopters
E. WHO MAY NOT ADOPT/ BE concur, they shall inherit on a 50-50
ADOPTED basis
(3) When the surviving spouse AND
Art. 184 (as am ended by RA 8552) illegitimate children AND adopters
The following may not adopt: concur, they shall inherit on a 1/3-
/1/3-1/3 basis
(1) The guardian, with respect to the
ward, prior to the approval of the final (4) When only adopters survive, they
accounts rendered upon the shall inherit 100% of the estate
termination of the guardianship (5) When only collateral blood
(2) Any person convicted of a crime of relatives survive, ordinary rules of
moral turpitude legal or intestate succession shall
apply
(d) Nam e [CC, Art. 365.]
F. RIGHTS OF AN ADOPTED CHILD
An adopted child shall bear the surname
(a) Parental Authority [Sec. 16] of the adopter

Except in cases where the biological RA 8552 allows the change of first name
parent is the adopters spouse, all legal to be instituted in the same proceeding as
ties between biological parent and the adoption: the decree of adoption
adoptee shall be severed, and the same shall state the name by which the child is
shall then be vested on the adopters. to be known.

(b) Legitim acy [Sec. 17] The law is silent as to what middle name
the adoptee may use but the SC has held
The adoptee shall be considered the that an adoptee is entitled to all the rights
legitimate son/daughter of the adopters provided by law to a legitimate child,
for all intents and purposes, and as such including the right to bear the surname of
is entitled to all rights and obligations her father and mother. [In re: Adoption of
provided by law to legitimate children Stephanie Nathy Astorga Garcia (2005)]
born to them without discrimination of
any kind. (e) Nationality

(c) Succession [Sec. 18] Adoption does not confer citizenship: Sec.
3, Art. 4 of the Constitution: Philippine
In legal and intestate succession, the citizenship may be lost/acquired [only] in
adopter and the adoptee shall have the manner provided by law.
reciprocal rights of succession without
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The right to confer citizenship belongs to Effects of Rescission [Sec. 20]:


the State (political) and cannot be granted
(1) Parental authority of the adoptee's
by a citizen through adoption. Adoption
biological parents, if known, OR the legal
creates a relationship between the
custody of the DSWD shall be restored IF
adopter and adoptee, not between the
the adoptee is still a minor or
State and the adoptee.
incapacitated
(2) Reciprocal rights and obligations of the
G. RESCISSION OF ADOPTION adopters and the adoptee shall be
extinguished
Adoptee may file action for rescission, with (3) Court shall order the Civil Registrar to
the assistance of DSWD if he/she is a minor cancel the amended certificate of birth of
or over 18 but incapacitated, based on the ff the adoptee and restore his/her original
grounds (Sec. 19): birth certificate
(1) Repeated physical and verbal (4) Succession rights shall revert to its status
maltreatment by adopters despite having prior to adoption, but only as of the date
undergone counseling of judgment of judicial rescission
(2) Attempt on life of adoptee (5) Vested rights prior to judicial rescission
shall be respected
(3) Sexual assault or violence
Note: Rescission contemplates a situation
(4) Abandonment or failure to comply with where the adoption decree remains valid until
parental obligations its termination

Note: Adoption, being in the best interest of


H. RECTIFICATION OF SIMULATED
the child, shall not be subject to rescission by
the adopter. However, the adopter may BIRTH
disinherit the child based on causes
enumerated in CC, Art. 919: Simulation of birth is the tampering of LCR
(1) Conviction of an attempt on the life of the records to make it appear that a certain child
adopter was born to a person who is not his/her
biological parent, causing said child to lose
(2) Having accused, without grounds, the his/her true identity/status.
adopter of a crime punishable by
imprisonment for more than 6 years Sec. 21-b (RA 8552) Any person who shall
cause the fictitious registration of the birth of
(3) Conviction of adultery/concubinage with a child under the name(s) of a person(s) who
the adopters spouse is not his/her biological parent(s) shall be
(4) Having caused the adopter to make or guilty of simulation of birth, and shall be
change a will by force, intimidation or punished by prision mayor in its medium
undue influence period and a fine not exceeding P50,000.00.

(5) Refusal without just cause to support the Sec. 22 (RA 8552) A person who has, prior
adopter to the effectivity of RA 8552, simulated the
birth of a child shall not be punished for such
(6) Maltreatment of the adopter by act, PROVIDED:
word/deed
- The simulation was for the childs best
(7) Living a dishonorable/disgraceful life interest
(8) Conviction of a crime which carries with it - Child has been treated consistently as
the penalty of civil interdiction his own
- Petition filed within 5 years of RA
8552s effectivity (2003)

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Three-in-one Procedure (g) Agrees to uphold the basic rights of the


child as embodied under Philippine laws,
- Correction of entries in birth certificate
the U.N. Convention on the Rights of the
- Deed of Voluntary Commitment or Child, and to abide by the rules and
Declaration of abandonment regulations issued to implement the
provisions of this Act
- Adoption decree
(h) Comes from a country with whom the
Philippines has diplomatic relations and
I. RA 8043 THE LAW ON INTER- whose government maintains a similarly
COUNTRY ADOPTION (JUNE 7, 1995) authorized and accredited agency and
that adoption is allowed under his/her
national laws
INTER-COUNTRY ADOPTION refers to
the socio-legal process of adopting a Filipino (i) Possesses all the qualifications and none
child by a foreigner or a Filipino citizen of the disqualifications provided in
permanently residing abroad where the applicable Philippine laws.
petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is
issued outside the Philippines I. 2. WHO CAN BE ADOPTED
(a) Only a legally-free child may be the
subject of inter-country adoption.
I. 1. WHO CAN ADOPT
(b) A legally-free child is one who has been
Any foreign national or a Filipino citizen voluntarily or involuntarily committed to
permanently residing abroad who has the the DSWD of the Philippines, in
qualifications and none of the accordance with the Child and Youth
disqualifications under the Act may file an Welfare Code.
application if he/she:
(c) No child shall be matched to a foreign
(a) Is at least 27 years of age and at least 16 adoptive family unless it is satisfactorily
years older than the child to be adopted, shown that the child cannot be adopted
at the time of application unless the locally (last resort).
adopter is the parent by nature of the
child to be adopted or the spouse of such (d) In order that such child may be
parent considered for placement, the following
documents must be submitted to the
(b) If married, his/her spouse must jointly file Board:
for the adoption
Child study
(c) Has the capacity to act and assume all
rights and responsibilities of parental Birth Certificate / Foundling
authority under his national laws, and has Certificate
undergone the appropriate counseling
Deed of Voluntary Commitment/
from an accredited counselor in his/her
Decree of Abandonment/ Death
country
Certificate of parents
(d) Has not been convicted of a crime
involving moral turpitude Medical Evaluation / History

(e) Is eligible to adopt under his/her national Psychological Evaluation, as


law necessary

(f) Is in a position to provide the proper care Recent photo of the child
and support and to give the necessary Where the petition for adoption was granted
moral values and example to all his after the child had shot and killed a girl, the
children, including the child to be Supreme Court did not consider the
adopted retroactive effect given to the decree of
adoption so as to impose a liability upon
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adopting parents at a time when adopting


parents had no actual or physically custody X. Support
over the child. Retroactive effect may perhaps
be given to the granting of the petition for A. WHAT IT COMPRISES
adoption where such is essential to permit
the accrual of some benefit or advantage in
favor of the adopted child. In the instant case, Consists of everything indispensable for
however, to hold that parental authority had sustenance, dwelling, clothing, medical
been retroactively lodged in the adopting attendance, education and transportation, in
parents so as to burden them with liability for keeping with the financial capacity of the
a tortuous act that they could not have family. [Art. 194]
foreseen and which they could not have
Education includes a persons schooling
prevented would be unfair and
or training for some profession, trade or
unconscionable. [Tamargo v. CA (1992)]
vocation, the right to which shall
Adoption is a juridical act, proceeding in rem. subsist beyond the age of majority.
Because it is artificial, the statutory
Transportation includes expenses in
requirements in order to prove it must be
going to and from school, or to and
strictly carried out. Petition must be
from place of work.
announced in publications and only those
proclaimed by the court are valid. Adoption is
never presumed. [Lazatin v. Campos (1979)]
B. WHO ARE OBLIGED
Validity of facts behind a final adoption
decree cannot be collaterally attacked To support each other:
without impinging on that courts jurisdiction.
[Santos v. Aranzanso (1966)] o Spouses;

Participation of the appropriate government o Legitimate ascendants and


instrumentality in performing the necessary descendants;
studies and precautions is important and is o Parents and their children (legitimate
indispensable to assure the childs welfare. and illegitimate) and the children of
[DSWD v. Belen (1997)] the latter (legitimate and
Consent for adoption must be written and illegitimate);
notarized. [Landingin v. Republic (2006)] o Legitimate brothers and sisters,
Adopted children do not have a right to whether of full or half-blood; [Art.
represent their adopters in successional 195]
interests. Although an adopted child is o Illegitimate brothers and sisters,
deemed to be a legitimate child and have the whether of full or half-blood, except
same rights as the latter, these rights do not when the need for support of one (of
include the right of representation (because age) is due to a cause imputable to
the adopted child has no right to inherit from his/her fault or negligence. [Art. 196]
the grandparent). The relationship created by
the adoption is between only the adopting Note: Both legitimate and illegitimate
parents and the adopted child. It does not children are entitled to support.
extend to the blood relatives of either party. Order of support:
[Sayson v. CA (1992)]
o If there are multiple obligors
Spouse
Descendants, nearest in degree
Ascendants, nearest in degree
Brothers and Sisters [Art. 199]

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The order of liability among ascendants and giver and the necessities of the recipient.
descendants would be: (1) legitimate children (Gotardo v. Buling (2012))
and descendants, (2) legitimate parents and
ascendants, (3) illegitimate children and their Stranger gives support
descendants. (Tolentino} When, without the knowledge of the
When two or more are obliged to give person obliged to give support, it is given by a
support, the payment shall be divided stranger, the stranger has the right to claim
between them in proportion to their the same from the person obliged, unless it
resources. appears that he gave it without intention of
being reimbursed. [Art. 206]
Also, in case of urgent need and by special
circumstances, judge may order only one Person obliged refuses or fails to
obligor to furnish support without prejudice give support
to reimbursement from other obligors of the When the person obliged to give support
share due from them. [Art. 200] unjustly refuses or fails to give support
If there are multiple recipients and only when urgently needed, any third person may
one obligor, and the latter has no furnish support to the needy individual, with
sufficient means to satisfy all claims: right of reimbursement from the person
obliged to give support. This particularly
o Observe order in Article 199 as to applies when the father or mother of a minor
whose claim shall be satisfied first; child unjustly refuses to support or fails to
o But if the concurrent obligees are the give support to the child when urgently
spouse and a child subject to parental needed. [Art. 207]
authority, the child shall be preferred. Contractual support or that given
The above preference given to a child under by will
parental authority over the spouse should The excess in amount beyond that
prevail only if the person obliged to support required for legal support shall be subject
pays it out of his separate property. So if the to levy on attachment or execution. [Art.
support comes from ACP or CPG, the above 208]
rule of preference for the child does not
apply. (Tolentino) Reason: The amount of support agreed
upon in the contract or given in the will
can be more than what the recipient
Properties answerable for support needs (Sempio-Diy).

From the separate property of the obligor. If Furthermore, contractual support shall
no separate property, the ACP/CPG (if be subject to adjustment whenever
financially capable) shall advance the modification is necessary due to changes
support, to be deducted from the obligors in circumstances manifestly beyond the
share upon liquidation of such regime. [Art. contemplation of the parties. [Art. 208]
197]
Even if the parents-in-law were the ones who C. SUPPORT PENDING LITIGATION ON
called for the physicians services for the THE STATUS OF MARRIAGE
childbirth of their daughter-in-law, it is the
womans husband who is bound to pay the
fees due to the physician. (Pelayo v. Lauron Pending legal separation or annulment, and
(1909)) for declaration of nullity, support pendente
lite for spouses and children will come from
the ACP/CPG. After final judgment granting
The amount of support is variable and, for the petition, mutual support obligation
this reason, no final judgment on the amount between spouses ceases. (But in legal
of support is made as the amount shall be in separation, court may order guilty spouse to
proportion to the resources or means of the give support to innocent spouse.) [Art. 198]

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Note: In Art. 100, de facto separation does


not affect the ACP and the CPG, except that XI. Parental Authority
the spouse who leaves the conjugal home
without just cause shall not be entitled to
and Custody of
support. Children
D. AMOUNT Parental authority is the mass of rights and
obligations which parents have in relation to
The amount of support is in proportion to the the person and property of their children until
means of the provider and the needs of the their emancipation, and even after this under
receiver, and can be reduced or increased if certain circumstances (Manresa).
such circumstances change. [Arts. 201,
202]
PARENTAL AUTHORITY INCLUDES [ART.
209]:
E. WHEN DEMANDABLE [ART. 203] (1) The caring for and rearing of children
The obligation to give support shall be for civic consciousness and efficiency;
dem andable from the time the person (2) The development of the moral,
who has a right to receive the same needs mental and physical character and
it for maintenance, but it shall not be well-being of said children
paid except from the date of judicial or
extra-judicial demand. Parental authority and responsibility may not
be renounced or transferred except in the
Support pendente lite may be claimed in cases authorized by law. [Art. 210]
accordance with the Rules of Court.
Payment shall be made within the first 5
CASES WHEN PARENTAL AUTHORITY AND
days of each corresponding month. When
RESPONSIBILITY MAY BE TRANSFERRED
the recipient dies, his heirs shall not be
OR RENOUNCED:
obliged to return what he has received in
advance. Adoption;
Guardianship; or
F. OPTIONS Commitment of the child in an entity or
Payment of the amount; or institution engaged in child care or in a
childrens home
Receiving and maintaining the recipient
in the home of the provider, unless there
is a legal or moral obstacle for doing so. RULES AS TO THE EXERCISE OF PARENTAL
AUTHORITY:

G. ATTACHMENT Jointly exercised by the father and mother


over their common children, but in case of
disagreement, the father's decision shall
The right to receive support as well as any prevail, unless there is a judicial order to the
money or property obtained as such support contrary [Art. 211]
shall not be levied upon on attachment or
execution. [Art. 205] Exercised by the mother if the child is
illegitimate [Art.176]
This is to protect that which the law gives to
the recipient against want and misery. Children under parental authority shall
(Tolentino) always observe respect and reverence
towards their parents and are obliged to
obey them [Art. 211]

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CHARACTERISTICS OF PARENTAL (a) In case of death, absence or


AUTHORITY: unsuitability of the parents,
substitute parental authority
(1) Natural right and duty of parents [Art.
shall be exercised by the
209, FC]
surviving grandparent
(2) Cannot be renounced, transferred or
(b) When several grandparents
waived, except in cases authorized by
survive, the one designated
law [Art 210, FC]
by the court shall exercise
(3) Jointly exercised by the father and the parental authority, taking into
mother [Art. 211, FC] account all relevant
considerations, especially the
(4) Purely personal and cannot be
choice of the child over seven
exercised through agents
years of age, unless the
(5) Temporary grandparent chosen is unfit

PARENTAL PREFERENCE RULE: Descendants Privilege of Refusal to


The natural parents, who are of good Testify [Art. 215]: No descendant shall be
character and who can reasonably provide for compelled, in a criminal case, to testify
the child, are ordinarily entitled to custody as against his parents and grandparents.
against all persons. [Santos v CA (1995)] Exception: When such testimony is
indispensable in (1) a crime against the
descendant, or (2) a crime by one parent
WHO EXERCISES AUTHORITY IN CASES OF against the other.
DEATH, ABSENCE, UNSUITABILITY,
REMARRIAGE, OR SEPARATION OF
PARENTS: TENDER YEARS PRESUMPTION:
(1) In case one parent is absent or already NO child under 7 years of age shall be
dead, the present or surviving parent separated from the mother, unless the court
[Art. 212] finds compelling reasons to order otherwise.
Remarriage of the surviving parent shall not [Art. 213 par 2; Art. 363, NCC; Gamboa v. CA
affect his/her parental authority over the (2007)]
children, unless the court appoints another
person to be the guardian of the children or
Examples of com pelling reasons for
their property [Art. 212]
custody to be granted to the father:
(2) In case of a void/annulled marriage,
(1) When the mother is insane;
and there is no agreement between
spouses, the parent designated by (2) With a communicable disease that might
the court [Art. 43 par. 1; Art. 49] endanger the life or health of the child;
(3) Innocent spouse gets custody of minor (3) Is maltreating the child; or
children in legal separation [Art. 63
(4) Has another child by another man who
par. 3]
lives with her. [Cervantes v. Fajardo
(4) The court shall take into account all (1989)]
relevant considerations, especially
Note: Alleged lesbianism [Gualberto v.
the choice of the child over seven
Gualberto (2005)], prostitution or infidelity to
years of age, unless the parent
husband does not necessarily make a mother
chosen is unfit [Art. 213 par. 1]
unfit as parent. It must be shown that such
(5) Substitute parental authority [Art. lesbianism, prostitution or infidelity adversely
214] affect the child.

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PERSONS EXERCISING SUBSTITUTE PERSONS EXERCISING SPECIAL PARENTAL


PARENTAL AUTHORITY IN DEFAULT OF AUTHORITY [Art. 218]
PARENTS OR JUDICIALLY APPOINTED
(1) School, its administrators and teachers;
GUARDIAN (IN THIS ORDER):
or
The surviving grandparent [Art. 214, FC]
(2) The individual, entity or institution
Oldest brother or sister, over 21 years old, engaged in child care
unless unfit or unqualified.
Note: Exercised over minor child while under
Childs actual custodian, over 21 years old, their supervision, instruction or custody.
unless unfit or unqualified.
Note: The same order applies to the
appointment of judicial guardian over the
property of the child

SUBSTITUTE PARENTAL AUTHORITY OVER


DISADVANTAGED CHILDREN [Art. 217]
Entrusted in summary judicial proceedings to:
(1) Heads of childrens homes
(2) Orphanages
(3) Similar institutions duly accredited by the
proper government agency (such as the
DSWD)

WHO ARE DISADVANTAGED CHILDREN:


(1) Foundlings one who is deserted or
abandoned as an infant or a child, with
parents, guardian, or relatives being
unknown or one who is committed in an
orphanage or charitable or similar
institution with unknown facts of birth
and parentage
(2) Abandoned one who has no proper
parental care or guardianship, or whose
parents or guardians have deserted him
for a period of at least six continuous
months
(3) Neglected one whose basic needs have
been deliberately unattended or
inadequately attended
(4) Abused one who is taken advantage of,
exploited and maltreated
(5) Others similarly situated

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XII. Emancipation XII. Summary Judicial


Proceedings Under FC
Art. 234. Emancipation takes place by the
attainment of majority. Unless otherwise
provided, majority commences at the age of A. PROCEDURAL RULES PROVIDED
eighteen years. FOR IN THIS TITLE SHALL APPLY TO
[ART. 238]:
Art. 236. Emancipation shall terminate
parental authority over the person and (1) Separation in fact between husband and
property of the child who shall then be wife
qualified and responsible for all acts of civil
(2) Abandonment by one of the other
life, save the exceptions established by
existing laws in special cases. (3) Incidents involving parental authority
Contracting marriage shall require parental
consent until the age of twenty-one.
B. SEPARATION IN FACT
Nothing in this Code shall be construed to
derogate from the duty or responsibility of
A verified petition alleging the following facts
parents and guardians for children and wards
is required when [Art. 239]:
below twenty-one years of age mentioned in
the second and third paragraphs of Article A husband and wife are separated in fact;
2180 of the Civil Code. or,
One has abandoned the other
Persons between ages twenty-one and Situation: Where one of them seeks judicial
twenty-four, shall be obliged to ask their authorization for a transaction where the
parents or guardian for advice upon the consent of the other spouse is required by law
intended marriage. but such consent is withheld or cannot be
obtained
No advice or unfavorable advice: marriage
license shall not be issued till after three The petition shall:
months following the completion of the
(1) Attach the proposed deed, if any,
publication of the application therefor
embodying the transaction, if none, shall
Sworn statement by the contracting describe in detail the said transaction and
parties that advice has been sought, state the reason why the required consent
together with written advice if any or thereto cannot be secured.
refusal to give advice: attached to the (2) The final deed duly executed by the
application for the marriage license [Art. parties shall be submitted to and
15, FC]
approved by the court.
Separate Claim for Dam ages: Claims for
RA 6809: damages by either spouse, except costs of the
proceedings, may be litigated only in a
By virtue of this law, emancipation can no
separate action. [Art. 240]
longer take place by virtue of the minors
marriage or by the concession of the parents Jurisdiction: Jurisdiction over the petition
to a minor in a recorded public instrument. shall, upon proof of notice to the other
spouse, be exercised by the proper court
authorized to hear family cases, if one exists,
or in the regional trial court or its equivalent
sitting in the place where either of the
spouses resides. [Art. 241]

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Notification to other spouse: endeavor to protect the interests of the


non-appearing spouse. [Art. 245]
(1) Upon the filing of the petition, the court
shall notify the other spouse, whose
consent to the transaction is required, of
Nature of judgm ent: The judgment of the
said petition, ordering said spouse to
court shall be immediately final and
show cause why the petition should not
executory. [Art 247]
be granted, on or before the date set in
said notice for the initial conference.
(2) The notice shall be accompanied by a Rules applicable for adm inistering or
copy of the petition and shall be served at encumbering separate property of
the last known address of the spouse spouse: The petition for judicial authority to
concerned. [Art. 242] administer or encumber specific separate
property of the abandoning spouse and to
Procedure:
use the fruits or proceeds thereof for the
(1) A preliminary conference shall be support of the family shall also be governed
conducted by the judge personally by these rules. [Art. 248]
without the parties being assisted by
counsel.
(2) After the initial conference, if the court
C. INCIDENTS INVOLVING PARENTAL
deems it useful, the parties may be AUTHORITY
assisted by counsel at the succeeding
conferences and hearings. [Art. 243] Procedure
(3) If the petition is not resolved at the initial (1) Such petitions shall be verified and filed
conference, said petition shall be in the proper court of the place where
decided in a summary hearing. Basis of the child resides. [Art. 250]
summary hearing (at the sound
discretion of the court): (2) Upon the filing of the petition, the court
shall notify the parents or, in their
Affidavits absence or incapacity, the individuals,
Documentary evidence entities or institutions exercising
parental authority over the child. [Art.
Oral testimonies at the courts sound 251]
discretion. If testimony is needed, the
court shall specify the witnesses to be Note:
heard and the subject-matter of their Petitions filed under Articles 223, 225 and
testimonies, directing the parties to 235 of this Code involving parental
present said witnesses. [Art. 246(a)] authority shall be verified. [Art. 249]
The rules in Chapter 2 hereof shall also
W hen appearance of spouses govern summary proceedings under this
required: Chapter insofar as they are applicable
[Art. 253]
1. In case of non-appearance of the spouse
whose consent is sought, the court shall The foregoing rules in Chapter 2
inquire into the reasons for his failure to (Separation in Fact) and (Incidents
appear, and shall require such Involving Parental Authority) hereof shall
appearance, if possible. [Art. 244] likewise govern summary proceedings
filed
2. If, despite all efforts, the attendance of the
non-consenting spouse is not secured, the Declaration of presumptive death [Art.
court may proceed ex parte and render 41]
judgment as the facts and circumstances Delivery of presumptive legitime [Art.
may warrant. In any case, the judge shall 51]

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Fixing of family domicile [Art. 69]


XIII. Care and
Disagreements regarding one spouses
profession, occupation, business, or Education of Children
activity [Art. 73]
Disposition or encumbrance of Every child:
common property in ACP where one (1) Is entitled to parental care;
spouse is incapacitated or unable to
participate in the administration; (2) Shall receive at least elementary
administration of absolute community education;
in a disagreement and the wife takes (3) Shall be given moral and civic training by
recourse within five years [Art. 96] the parents or guardian;
Disposition or encumbrance of (4) Has a right to live in an atmosphere
common property in CPG where one conducive to his physical, moral and
spouse is incapacitated or unable to intellectual development. [Art. 356, NCC]
participate in the administration;
administration of partnership property
in a disagreement and the wife takes Duties of the child:
recourse within five years, [Art. 124]
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives,
When wife and husband are de facto and persons holding substitute parental
separated and the CPG is insufficient, the authority;
spouse present shall, upon a petition, be
given judicial authority to administer or (3) Exert his utmost for his education and
encumber any specific property of the other training;
spouse and use the fruits and proceeds (4) Cooperate with the family in all matters
thereof to satisfy the latters share. [Art. 127] that make for the good of the same. [Art.
357, NCC]

Every parent and every person holding


substitute parental authority shall see to it
that the rights of the child are respected and
his duties complied with, and shall
particularly, by precept and example, imbue
the child with highmindedness, love of
country, veneration for the national heroes,
fidelity to democracy as a way of life, and
attachment to the ideal of permanent world
peace. [Art. 358, NCC]

The government promotes the full


growth of the faculties of every child.
The government will establish, whenever
possible:
(1) Schools in every barrio, municipality and
city where optional religious instruction
shall be taught as part of the curriculum
at the option of the parent or guardian;
(2) Puericulture and similar centers;
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(3) Councils for the Protection of Children;


XIV. Surnames
(4) Juvenile courts. [Art. 359, NCC]

A. SURNAMES OF CHILDREN
The Council for the Protection of (1) Legitimate and legitimated children shall
Children shall look after the welfare principally use the surname of the father.
of children in the m unicipality. [Art. 364]
Functions: (2) An adopted child shall bear the surname
of the adopter. [Art. 365]
(1) Foster the education of every child in the
municipality (3) A natural child acknowledged by both
parents shall principally use the surname
(2) Encourage the cultivation of the duties of
of the father. If recognized by only one of
parents
the parents, a natural child shall employ
(3) Protect and assist abandoned or the surname of the recognizing parent.
mistreated children, and orphans [Art 366]
(4) Take steps to prevent juvenile (4) Natural children by legal fiction shall
delinquency principally employ the surname of the
father [Art. 367]
(5) Adopt measures for the health of
children (5) Illegitimate children referred to in Article
287 shall bear the surname of the
(6) Promote the opening and maintenance
mother. [Art 368]
of playgrounds
(6) Children conceived before the decree
(7) Coordinate the activities of organizations
annulling a voidable marriage shall
devoted to the welfare of children, and
principally use the surname of the father.
secure their cooperation. [Art. 360, NCC]
[Art. 369]
(8) Juvenile courts will be established, as far
as practicable, in every chartered city or
large municipality.[Art. 361, NCC] B. WIFE AFTER AND DURING
Whenever a child is found delinquent by any MARRIAGE
court, the father, mother, or guardian may in (1) A married woman may use [Art. 370]:
a proper case be judicially admonished. [Art. (a) Her maiden first name and surname
362, NCC] and add her husband's surname, or
(b) Her maiden first name and her
husband's surname or
(c) Her husband's full name, but
prefixing a word indicating that she is
his wife, such as "Mrs."
(2) In case of annulment of marriage, and the
wife is the guilty party, she shall resume
her maiden name and surname. If she is
the innocent spouse, she may resume her
maiden name and surname. However, she
may choose to continue employing her
former husband's surname, unless [Art.
371]:
(a) The court decrees otherwise, or
(b) She or the former husband is
married again to another person.

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(3) When legal separation has been granted,


the wife shall continue using her name and XV. Rules Governing
surname employed before the legal
separation. [Art. 372]
Persons who are
(4) A widow may use the deceased husband's Absent
surname as though he were still living, in
accordance with Article 370. [Art 373]
A. PROVISIONAL MEASURES IN CASE
OF ABSENCE [ARTS. 381-383]
C. CONFUSION AND CHANGE OF
NAMES
In case of identity of names and surnames, Art. 43. If there is a doubt as between two
the younger person shall be obliged to use or more persons who are called to succeed
such additional name or surname as will each other as to which of them died first
avoid confusion. [Art. 374] whoever alleges the death of one prior to
the other shall prove the same; in the
In case of identity of names and surnames absence of proof it is presumed that they
between ascendants and descendants, the died at the same time and there shall be no
word "Junior" can be used only by a son. transmission of rights from one to the other.
Grandsons and other direct male
descendants shall either [Art. 375]: Note: Article 43 provides a statutory
(1) Add a middle name or the mother's presumption when there is doubt on the
surname, or order of death between persons who are
called to succeed each other (only).
(2) Add the Roman Numerals II, III, and so
on.
Usurpation of a name and surname may be Presumption in the Rules of Court
the subject of an action for damages and (Rule 131, sec. 3, (jj.) (Presumption of
other relief. [Art. 377] survivorship)

The unauthorized or unlawful use of another Age Presumed


person's surname gives a right of action to Survivor
the latter [Art. 378]
Both under 15 Older
The employment of pen names or stage
names is permitted, provided it is done in Both above 60 Younger
good faith and there is no injury to third
persons. Pen names and stage names cannot One under 15, the One under 15
be usurped. [Art. 379] other above 60

Except as provided in the preceding article, Both over 15 and Male


no person shall use different names and under 60; different
surnames. [Art 380] sexes
Illegitmate Children shall use the surname Both over 15 and Older
and shall be under the parental authority of under 60; same sex
their mother. However, they may use the
surname of their father if their filiation has One under 15 or over One between 15 and
been expressly recognized by their father 60, the other 60
through: between those ages
(a) record of birth in civil register Note: Applicable only to two or more
(b) admission in public document persons who perish in the same calamity, and
it is not shown who died first, and there are
(c) admission in private handwritten no particular circumstances from which it can
document be inferred.

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Article 41. A marriage contracted by any Exception to the Exception:


person during subsistence of a previous
Art. 381. When a person disappears from
marriage shall be null and void, unless
his domicile, his whereabouts being
before the celebration of the subsequent
unknown, and without leaving an agent to
marriage, the prior spouse had been absent
administer his property, the judge, at the
for four consecutive years and the spouse
instance of an interested party, a relative, or
present has a well founded belief that the
a friend, may appoint a person to represent
absent spouse was already dead. In case of
him in all that may be necessary.
disappearance where there is danger of
death under the circumstances set forth in This same rule shall be observed when
the provisions of Article 391 of the Civil under similar circumstances the power
Code, an absence of only two years shall be conferred by the absentee has expired.
sufficient.

Art. 382. The appointment referred to in


General rule: Marriage contracted by any the preceding article having been made, the
person during the subsistence of a previous judge shall take the necessary measures to
marriage is void. safeguard the rights and interests of the
absentee and shall specify the powers,
Exceptions: The following subsequent obligations and remuneration of his
marriage of the present spouse is valid: representative, regulating them, according
(1) Subsequent marriage due to ordinary to the circumstances, by the rules
absence where: concerning guardians.

(a) The prior spouse had been absent for


4 consecutive years; Art. 383. In the appointment of a
(b) The spouse present had a well- representative, the spouse present shall be
founded belief that absent spouse is preferred when there is no legal separation.
dead; and If the absentee left no spouse, or if the
(c) Judicial declaration of presumptive spouse present is a minor, any competent
death was secured (no prejudice to person may be appointed by the court.
the effect of the reappearance of the
absent spouse).
Requisites: The judge may appoint a
(2) Subsequent marriage due to
person to represent absentee when:
extraordinary absence where:
(1) Person disappears from his domicile
(a) The prior spouse had been missing
for 2 consecutive years; (2) His whereabouts are unknown
(b) There is danger of death attendant to (3) No agent to administer his property
the disappearance [Art. 391, Civil
(4) An interested party, a relative, or a
Code];
friend files the action
(c) The spouse present had a well-
W ho may be appointed as
founded belief that the missing
representative?
person is dead; and
(1) Spouse present shall be preferred
(d) Judicial declaration of presumptive
when there is no legal separation
death was secured (no prejudice to
the effect of the reappearance of the (2) If no spouse or spouse is
absent spouse). incapacitated, any competent person

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B. DECLARATION OF ABSENCE [ARTS. subordinated to the condition of his


384-389] death.

Art. 384. Two years having elapsed C. ADMINISTRATION OF THE


without any news about the absentee or PROPERTY OF THE ABSENTEE [ARTS.
since the receipt of the last news, and five 387-389]
years in case the absentee has left a person
in charge of the administration of his
property, his absence may be declared. Art. 387. An administrator of the
absentee's property shall be appointed in
accordance with Article 383.
Art. 385. The following may ask for the
declaration of absence:
1. The spouse present; Art. 388. The wife who is appointed as an
administratrix of the husband's property
2. The heirs instituted in a will, who may cannot alienate or encumber the husband's
present an authentic copy of the same; property, or that of the conjugal
3. The relatives who may succeed by the partnership, without judicial authority.
law of intestacy;
4. Those who may have over the property of Art. 389. The administration shall cease in
the absentee some right subordinated to any of the following cases:
the condition of his death.
1. When the absentee appears personally
or by means of an agent;
Art. 386. The judicial declaration of 2. When the death of the absentee is
absence shall not take effect until six proved and his testate or intestate heirs
months after its publication in a newspaper appear;
of general circulation.
3. When a third person appears, showing
by a proper document that he has
acquired the absentee's property by
W hen may absence be declared? purchase or other title.
Two years without any news about the In these cases the administrator shall cease
absentee in the performance of his office, and the
Five years if the absentee left a person in property shall be at the disposal of those
charge of administration of his property who may have a right thereto.
Declaration takes effect only after six
months after publication in a newspaper
of general circulation W ho may adm inister the property?

W ho may ask for a declaration of Spouse present shall be preferred when


absence? there is no legal separation

(1) Spouse present If no spouse or spouse is incapacitated,


any competent person
(2) Heirs instituted in a will, who may
present an authentic copy of the W hen will the adm inistration of
same; property cease?

(3) Relatives who may succeed by the Administrator shall cease in performance of
law of intestacy; his office, and property shall be disposed in
favor of those who have a right thereto when
(4) Those who may have some right over
the property of the absentee,
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(1) Absentee appears personally or by If absentee disappeared after age of 75, 5


means of an agent years shall be sufficient.
(2) Testate or intestate heirs appear, upon
proof of death of absentee
Extraordinary Absence
(3) Third person appears, with a proper
Only 4 years is required for presumption to
document showing he has acquired
arise if:
absentees property by purchase or
other title (1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
D. PRESUMPTION OF DEATH [ARTS. four years since the loss of the vessel or
390-392] aeroplane;
(2) A person in the armed forces who has
taken part in war, and has been missing
Art. 390. After an absence of 7 years, it for four years;
being unknown whether or not the absentee
(3) A person who has been in danger of
still lives, he shall be presumed dead for all
death under other circumstances and
purposes, except for those of succession.
his existence has not been known for
The absentee shall not be presumed dead four years.
for the purpose of opening his succession till
Note:
after an absence of 10 years. If he
disappeared after the age of 75 years, an Although 7 years is required for the
absence of 5 years shall be sufficient in presumption of death of an absentee in
order that his succession may be opened. the Civil Code, Art. 41 of the Family Code
makes an exception for the purpose of
remarriage by limiting such requirement
Art. 391. The following shall be presumed to 4 years.
dead for all purposes, including the division
Art. 41 also limits the required 4 years in
of the estate among the heirs:
Art. 391 for absence under exceptional
1. A person on board a vessel lost during a circumstances to only 2 years.
sea voyage, or an aeroplane which is
missing, who has not been heard of for four
years since the loss of the vessel or Art. 392. If the absentee appears or without
aeroplane; appearing his existence is proved he shall
2. A person in the armed forces who has recover his property in the condition in which it
taken part in war, and has been missing for may be found and the price of any property that
four years; may have been alienated or the property
acquired therewith; but he cannot claim either
3. A person who has been in danger of fruits or rents.
death under other circumstances and his
existence has not been known for four years.

General rule: A person shall be presumed


dead for all purposes after absence for a
period of 7 years.
Exception: Succession
In succession, 10 years is required for
presumption of death.

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XVI. Funerals Funeral Expenses: The construction of a


tombstone or mausoleum shall be deemed a
part of the funeral expenses, and shall be
The duty and the right to make arrangements chargeable to the conjugal partnership
for the funeral of a relative shall be in property, if the deceased is one of the
accordance with the order established for spouses [Art. 310].
support, under Article 294 [Art. 305]:
(1) Spouse Guidelines in making funeral
(2) Descendants in the nearest degree. In arrangem ents
case of descendants of the same (1) The persons who are preferred in the
degree, the oldest shall be preferred. right to make funeral arrangements may
(3) The ascendants in the nearest degree. waive the right expressly or impliedly in
In case of ascendants, the paternal which case the right and duty
shall have a better right immediately descend to the person next
in the order.
(4) The brothers and sisters, the oldest
shall be preferred. (2) It must be in keeping with the social
position of the deceased.
(5) Municipal authorities if there are no
persons who are bound to support or if (3) Law shall prevail over the will of the
such persons are without means persons who have the right to control
the burial of deceased exhumation,
Nature of funeral: Every funeral shall be in evidential purpose, disposition of corpse
keeping with the social position of the by deceased, mutilation of corpses and
deceased. [Art. 306] autopsies.
(4) Corpses which are to be buried at public
The funeral shall be: expenses may also be used for scientific
purposes under certain conditions.
(1) In accordance with the expressed
wishes of the deceased. (5) Expressed wishes of the deceased is
given priority provided that it is not
(2) In the absence of such expression, his contrary to law and must not violate the
religious beliefs or affiliation shall legal and reglementary provisions
determine the funeral rites. concerning funerals and disposition of
(3) In case of doubt, the form of the funeral the remains (time, manner, place or
shall be decided upon by the person ceremony)
obliged to make arrangements for the (6) In the absence of expressed wishes, his
same, after consulting the other religious beliefs or affiliation shall
members of the family [Art. 307] determine the funeral rights.
Note: No human remains shall be retained, (7) In case of doubt, the persons in Art. 199
interred, disposed of or exhumed without the shall decide.
consent of the persons mentioned in articles
294 and 305. (8) Any person who disrespects the dead or
interferes with the funeral shall be liable
for material and moral damages.
Dam ages: Any person who shows disrespect
to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the
deceased for damages, material and moral
[Art. 309]

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XVII. Entries in the Civil Art. 413. All other matters pertaining to the
registration of civil status shall be governed
Register by special laws.

A. CIVIL CODE B. RA 9048 AS AMENDED BY RA 10172

Art. 407. Acts, events and judicial decrees - An act authorizing the city or municipal civil
concerning the civil status of persons shall be registrar or the consul general to correct a
recorded in the civil register. clerical or typographical error in an entry
and/or change of first name or nickname in
Art. 408. The following shall be entered in the civil register without need of a judicial
the civil register: order, amending for this purpose articles 376
1. Births; and 412 of the civil code of the philippines
2. marriages;
3. deaths;
4. legal separations; General rule: No entry in a civil register
5. annulments of marriage; shall be changed or corrected without a
6. judgments declaring marriages void judicial order
from the beginning;
7. legitimations; Exceptions: (1) Clerical or typographical
8. adoptions; errors or (2) Intersex persons
9. acknowledgments of natural children;
10. naturalization;
11. loss, or Clerical or typographical errors
12. recovery of citizenship; Change of: first name or nickname, day
13. civil interdiction; and month in the date of birth, or sex of
14. judicial determination of filiation; a person
15. voluntary emancipation of a minor; and
16. changes of name. This exception applies where it is
patently clear that there was a clerical or
Art. 409. In cases of legal separation, typographical error or mistake in the
adoption, naturalization and other judicial entry, which can be corrected or
orders mentioned in the preceding article, it changed by the concerned city or
shall be the duty of the clerk of the court municipal civil registrar or consul
which issued the decree to ascertain whether general in accordance with the
the same has been registered, and if this has provisions of this Act and its
not been done, to send a copy of said decree implementing rules and regulations
to the civil registry of the city or municipality Intersex persons
where the court is functioning.
Sexual development of intersex
Art. 410. The books making up the civil personsthose whose sex
register and all documents relating thereto chromosomes, genitalia, and/or
shall be considered public documents and secondary sex characteristics are
shall be prima facie evidence of the facts determined to be neither exclusively
therein contained. male nor female, makes gender
classification at birth inconclusive. It is
Art. 411. Every civil registrar shall be civilly only at maturity that the gender of such
responsible for any unauthorized alteration persons become fixed.
made in any civil register, to any person
In the case of Jennifer Cagandahan, who
suffering damage thereby. However, the civil
suffered from Congenital Adrenal
registrar may exempt himself from such
Hyperplasia and had two sex organs and
liability if he proves that he has taken every
whose female sex organs did not
reasonable precaution to prevent the
develop normally, the Court granted her
unlawful alteration.
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petition to change her registered sex communicate to facilitate the processing of


from female. [Republic v Cagandahan the petition.
(2008)].
Citizens of the Philippines who are presently
Note: residing or domiciled in foreign countries may
file their petition, in person, with the nearest
Clerical or typographical error refers to a
Philippine Consulates.
mistake committed in the performance of
clerical work in writing, copying, The petitions filed with the city or municipal
transcribing or typing an entry in the civil civil registrar or the consul general shall be
register that is harmless and innocuous processed in accordance with this Act and its
(i.e. misspelled name, misspelled place of implementing rules and regulations.
birth, mistake in the entry of day and
All petitions for the clerical or typographical
month in the date of birth or the sex of the
errors and/or change of first names or
person or the like, which is visible to the
nicknames may be availed of only once.
eyes or obvious to the understanding, and
can be corrected or changed only by
reference to other existing record or
Grounds
records)
W ho may file the petition and where?
Before the amendment by RA 10172, no
correction must involve the change of sex, (1) Any person having direct personal interest
nationality, age or status of the petitioner. in the correction of a clerical or
After the amendment, change of sex can typographical error in an entry and/or
now be subjected to correction without change of first name or nickname in the
judicial order under the rules of this Act. civil register
Civil Register refers to the various registry (2) Verified petition with the local civil registry
books and related certificates and office of the city or municipality
documents kept in the archives of the local (a) where the record being sought to be
civil registry offices, Philippine Consulates corrected or changed is kept
and of the Office of the Civil Registrar
General. (b) where the interested party is
presently residing or domiciled, if it will be
impractical to submit in the place where
Sec. 3. W ho May File the Petition and record is kept (i.e. when party has
W here. Any person having direct and migrated to another place in the country)
personal interest in the correction of a clerical (c) nearest Philippine Consulates, if the
or typographical error in an entry and/or petitioner is presently residing or
change of first name or nickname in the civil domiciled in foreign countries
register may file, in person, a verified petition
with the local civil registry office of the city or Note: All petitions for the clerical or
municipality where the record being sought typographical errors and/or change of first
to be corrected or changed is kept. names or nicknames may be availed of only
once.
In case the petitioner has already migrated to
another place in the country and it would not
be practical for such party, in terms of Sec. 4. Grounds for Change of First
transportation expenses, time and effort to Name or Nickname. The petition for
appear in person before the local civil change of first name or nickname may be
registrar keeping the documents to be allowed in any of the following cases:
corrected or changed, the petition may be
filed, in person, with the local civil registrar of (1) The petitioner finds the first name or
the place where the interested party is nickname to be ridiculous, tainted with
presently residing or domiciled. The two (2) dishonor or extremely difficult to write or
local civil registrars concerned will then pronounce.

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(2) The new first name or nickname has been change or sex transplant. The petition for
habitually and continuously used by the change of first name or nickname, or for
petitioner and he has been publicly known correction of erroneous entry concerning the
by that first name or nickname in the day and month in the date of birth or the sex
community: or of a person, as the case may be, shall be
published at least once a week for two (2)
(3) The change will avoid confusion.
consecutive weeks in a newspaper of general
circulation.
Sec. 5. Form and Contents of the Furthermore, the petitioner shall submit a
Petition. The petition for correction of a certification from the appropriate law
clerical or typographical error, or for change enforcement agencies that he has no pending
of first name or nickname, as the case may case or no criminal record.
be, shall be in the form of an affidavit,
The petition and its supporting papers shall
subscribed and sworn to before any person
be filed in three (3) copies to be distributed as
authorized by the law to administer oaths.
follows: first copy to the concerned city or
The affidavit shall set forth facts necessary to
municipal civil registrar, or the consul
establish the merits of the petition and shall
general; second copy to the Office of the Civil
show affirmatively that the petitioner is
Registrar General; and third copy to the
competent to testify to the matters stated.
petitioner
The petitioner shall state the particular
erroneous entry or entries, which are sought
to be corrected and/or the change sought to
be made.
C. RULE 108, RULES OF COURT

- Cancellation or correction of entries in the


The petition shall be supported with civil registry
the following docum ents:
(1) A certified true machine copy of the
certificate or of the page of the registry Sec. 1. W ho may file petition. - Any
book containing the entry or entries person interested in any act, event, order or
sought to be corrected or changed. decree concerning the civil status of persons
which has been recorded in the civil register,
(2) At least two (2) public or private may file a verified petition for the cancellation
documents showing the correct entry or or correction of any entry relating thereto,
entries upon which the correction or with the Court of First Instance of the
change shall be based; and province where the corresponding civil
(3) Other documents which the petitioner or registry is located.
the city or municipal civil registrar or the
consul general may consider relevant and
necessary for the approval of the petition. Sec. 2. Entries subject to cancellation
or correction. - Upon good and valid
No petition for correction of erroneous entry grounds, the following entries in the civil
concerning the date of birth or the sex of a register may be cancelled or corrected: (a)
person shall be entertained except if the births; (b) marriages; (c) deaths; (d) legal
petition is accompanied by earliest school separations; (e) judgments of annulments of
record or earliest school documents such as, marriage; (f) judgments declaring marriages
but not limited to, medical records, baptismal void from the beginning; (g) legitimations; (h)
certificate and other documents issued by adoptions; (i) acknowledgments of natural
religious authorities; nor shall any entry children; (j) naturalization (k) election, loss or
involving change of gender corrected except recovery of citizenship (l) civil interdiction; (m)
if the petition is accompanied by a judicial determination of filiation; (n)
certification issued by an accredited voluntary emancipation of a minor; and (o)
government physician attesting to the fact changes of name.
that the petitioner has not undergone sex
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Sec. 3. Parties. - When cancellation or W ho may file petition? - Any person


correction of an entry in the civil register is interested in any act, event, order or decree
sought, the civil registrar and all persons who concerning the civil status of persons which
have or claim any interest which would be has been recorded in the civil register
affected thereby shall be made parties to the
proceeding.
W here filed? - Verified petition for
cancellation or correction of entry in the civil
Sec. 4. Notice and publication. - Upon registry may be filed with the Regional Trial
the filing of the petition, the court shall, by an Court of the province where the
order, fix the time and place for the hearing of corresponding civil registry is located
the same, and cause reasonable notice
thereof to be given to the persons named in
the petition. The court shall also cause the Entries subject to Cancellation/
order to be published once a week for three Correction
(3) consecutive weeks in a newspaper of
Births
general circulation in the province.
Marriages
Deaths
Sec. 5. Opposition. - The civil registrar
and any person having or claiming any Legal separations
interest under the entry whose cancellation or Judgments of annulments of marriage
correction is sought may, within fifteen (15)
days from notice of the petition, or from the Judgments declaring marriages void from
last date of publication of such notice, file his the beginning
opposition thereto. Legitimations
Adoptions
Sec. 6. Expediting proceedings. - The Acknowledgments of natural children
court in which the proceeding is brought may
make orders expediting the proceedings, and Naturalization
may also grant preliminary injunction for the Election, loss or recovery of citizenship
preservation of the rights of the parties
pending such proceedings. Civil interdiction
Judicial determination of filiation
Sec. 7. Order. - After hearing, the court Voluntary emancipation of a minor
may either dismiss the petition or issue an Changes of names
order granting the cancellation or correction
prayed for. In either case, a certified copy of
the judgment shall be served upon the civil
registrar concerned who shall annotate the
same in his record.

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CIVIL LAW
PROPERTY

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Property All things which are, or may be, the


object of appropriation. [NCC 414] II. Classification

A. HIDDEN TREASURE
I. Characteristics Any hidden and unknown deposit of money,
(1) Utility capacity to satisfy human wants jewelry or other precious objects, the lawful
(2) Substantivity and Individuality the thing ownership of which does not appear. [NCC 439]
must have a separate and autonomous General Rule: Hidden treasure belongs to the
existence owner of the land, building, or other property on
(3) Susceptibility of being appropriated which it is found [NCC 438]
capable of being obtained even if not yet Exception: if discovery is made on the property
actually appropriated; what cannot be of another, or of the State or any of its
appropriated (subject to human control) subdivisions, AND by chance
because of physical impossibility (distance,
depth, or immensity) cannot be considered (a) Right of a finder by chance who is NOT a
things (e.g. stars, moon, ocean) trespasser/ intruder: of treasure
(b) Right of a usufructuary who finds treasure:
of treasure
(c) Right of State to acquire things of interest
to science or the arts State may acquire at
just price which shall be divided in
conformity with the rule stated
Note: For purposes of hidden treasure, a
usufructuary is considered a stranger to
property; naked owner gets owners share
(NCC 566).

B. BASED ON MOBILITY [IMMOVABLE OR


MOVABLE]
B. 1. REAL OR IMMOVABLE PROPERTY

NCC 415.
(1) Land, buildings, roads and constructions of
all kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while they
are attached to the land or form an integral
part of an immovable;
(3) Everything attached to an immovable in a
fixed manner, in such a way that it cannot be
separated therefrom without breaking the
material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for
use or ornamentation, placed in buildings or
on lands by the owner of the immovable in
such a manner that it reveals the intention to
attach them permanently to the tenements;

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(5) Machinery, receptacles, instruments or (ii) Separate Ownership i.e. a building


implements intended by the owner of the on rented land is still considered an
tenement for an industry or works which may immovable. [Tolentino]
be carried on in a building or on a piece of (iii) No matter who built it
land, and which tend directly to meet the
needs of the said industry or works; Where Building Is Treated As Personal Property:
Doctrine of Estoppel
(6) Animal houses, pigeon-houses, beehives, fish
ponds or breeding places of similar nature, in although there is no specific statement
case their owner has placed them or referring to the subject house as personal
preserves them with the intention to have property, yet by ceding, selling or transferring a
them permanently attached to the land, and property by way of chattel mortgage could only
forming a permanent part of it; the animals have meant to convey the house as chattel, or at
in these places are included; least, intended to treat the same as such, so
that they should not now be allowed to make an
(7) Fertilizer actually used on a piece of land;
inconsistent stand by claiming otherwise.
(8) Mines, quarries, and slag dumps, while the [Tumalad v. Vicencio, (1971)]
matter thereof forms part of the bed, and
waters either running or stagnant; (2) Par. 8
(9) Docks and structures which, though floating, (c) Mineral Deposits
are intended by their nature and object to (i) Minerals still deposited in the soil;
remain at a fixed place on a river, lake, or
coast; (ii) When minerals have been extracted,
they become chattel.
(10) Contracts for public works, and
servitudes and other real rights over (d) Slag Dump: dirt and soil taken from a
immovable property. mine and piled upon the surface of the
ground. Minerals can be found inside
the dump.
CATEGORIES OF IMMOVABLES
(e) Waters: those still attached to or
(a) By nature (nos. 1 & 8) running thru the soil or the ground.
(b) By incorporation (nos. 2, 3 & 7)
(c) By destination (nos. 4, 5, 6 & 9) Immovables by Incorporation: essentially
(d) By analogy (no. 10) movables but are attached to an immovable in
such a way as to be an integral part [Par. 2, 3, &
7]
Immovables by Nature: cannot be moved from
place to place; their intrinsic qualities have no (3) Par. 2
utility except in a fixed place. (pars. 1 & 8) (f) Trees and plants: only immovables
when they are attached to the land or
(1) Par. 5
form an integral part of an immovable
(a) Building - their adherence to the land
must be permanent and substantial, not (i) When they have been cut or
merely superimposed uprooted, they become movables.

(b) Buildings have been considered as (g) By special treatment of Act 1508
immovables by nature, despite: (Chattel Mortgage Law), growing crops
may be subject of a Chattel Mortgage.
(i) Agreement by the parties e.g. they
constitute a separate mortgage on (h) For the purpose of attachment: growing
the building and the land [Punzalan crops are to be attached in the same
v. Lacsamana (1983)] manner as realty. (Rule 59, Sec. 7)

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GENERAL RULE: Growing crops are considered (a) Must be machinery, receptacles,
real property instruments, or implements
EXCEPTION: the moment they are detached or (b) Placed by the owner or the tenant (as
uprooted from the land, they become personal agent);
property
Machinery which is movable in its nature only
(4) Par. 3 becomes immobilized when placed in a plant by
(i) Res vinta in Roman Law the owner of the property or plant, but not when
so placed by a tenant, a usufructuary, or any
(j) Attachment in a fixed manner: person having only a temporary right, unless
breakage or injury in case of separation such person acted as the agent of the owner.
will be substantial e.g. wells, sewers, [Davao Sawmill v. Castillo, (1935)]
aqueducts and railways
(c) The machine, receptacle,
(i) Whether attached by the owner instrument, implement must also be essential to
himself or some other person the business (tend directly to meet the needs of
(5) Par. 7 industry or work) in order to be considered
realty. [Mindanao Bus Co. v City Assessor (1962)]
Actually used (it has been spread over the land)
Except: Estoppel
Parties may, by agreement, treat as
Immovables by Destination: essentially personal property that which by nature
movables but by the purpose for which they would be real, as long as no third parties
have been placed in an immovable, partake of would be prejudiced. That
the nature of an immovable [Par. 4, 5, 6 & 9] characterization is effective between the
(6) Par. 4 parties. [Makati Leasing v. Wearever
(k) Placed by the owner or by the tenant (as (1983)]
agent); (2) Par. 6
(i) With intention of attaching them Requisites:
permanently even if adherence will
not involve breakage or injury. (i) Placed by the owner or the tenant
(as agent);
(l) Where the improvement or ornaments
placed by the lessee are not to pass to (ii) With the intention of permanent
the owner at the expiration of the lease, attachment;
they remain movables for chattel (iii) Forming a permanent part of the
mortgage purposes. [Davao Sawmill v. immovable.
Castillo (1935)]
(3) Par. 9
(7) Par. 5
Need not be placed by owner of land
Immovability depends upon ownership of
both movable and tenement, being A floating house tied to a shore and used as a
destined for use in the industry or works residence is considered real property,
which can be carried on in the tenement, considering that the waters on which it floats
e.g. sewing machines owned by the owner are considered immovables.
of a garment factory; But if the floating house makes it a point to
The moment they are separated, (from journey from place to place, it assumes the
the immovable or from the industry or category of a vessel, and is considered a
work in which they are utilized) they movable.
recover their condition as movables.
Requisites for Immovability in Par. 5:

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Immovables by Analogy: Contracts for public (a) Ability to change location whether it
works, servitudes, other real rights over can be carried from place to place;
immovable property e.g. usufruct and lease of
(b) Without substantial injury to the
real property for a period of 1 year and
immovable to which it is attached.
registered [Par. 10]
(c) Unless expressly included in Art. 415
Note: Parties may by agreement treat buildings
(Test by Exclusion is Superior)
as movables, effective only as to them, but void
if rights of third persons are involved. It is based, (6) By special provision of law
partly, upon the principle of estoppel.
(a) Growing crops under the Chattel
[Evangelista vs. Alto Surety(1958)]
Mortgage Law
For purposes of taxation, improvements on land
(b) Intellectual property considered
are commonly taxed as realty, even though for
personal property; it consists in the
some purposes, they might be considered as
pecuniary benefit which the owner can
personalty. [Manila Electric v. Central Bank
get by the reproduction or manufacture
(1962)]
of his work.
(7) By forces of nature
B.2. PERSONAL OR MOVABLE
e.g. electricity, gas, heat, oxygen
NCC 416 Corporeal or tangible movables Gas is a valuable article of merchandise,
(1) Those movables susceptible of appropriation bought and sold like other personal
which are not included in the preceding property, susceptible of being severed from
article (Art. 415); a mass of larger quantity and of being
transported from place to place [US v
(2) Real property which by any special provision Tambunting (1921)]
of law is considered as personalty;
(3) Forces of nature which are brought under
control by science; and B. 3. IMPORTANCE AND SIGNIFICANCE OF
(4) In general, all things which can be CLASSIFICATION UNDER THE NCC
transported from place to place without (1) In criminal law
impairment of the real property to which they
are fixed. (a) Usurpation of property can take place
only with respect to real property. [RPC
(5) NCC 417 Incorporeal or intangible movables 312]
(6) Obligations and actions which have for their
(b) Robbery and theft can be committed
object movables or demandable sums; and
only against personal property. [RPC
(7) Shares of stock of agricultural, commercial 293, 308]
and industrial entities, although they may
have real estate. (2) In the forms of contracts
(a) Subject matter of specific contracts:
TESTS TO DETERMINE MOVABLE (i) Only real property can be the
CHARACTER subject of real estate mortgage
[NCC 2124] and antichresis. [NCC
(4) By exclusion 2132]
Everything NOT included in Article 415 (ii) Only personal property can be the
Parties cannot by agreementtreat as immovable subject of voluntary deposit [NCC
that which is legally movable 1966], pledge [NCC 2094] and
chattel mortgage. [Act 1508]
(5) By description
(b) Donations of real property to be valid
are required to be in a public instrument

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[NCC 749] but a donation of a movable except for chattel mortgages. [Chattel
may be made orally or in writing. [NCC Mortgage Register, NCC 2140]
748]
(8) Preference of credits
(3) For acquisitive prescription
(a) Movables governed by NCC 2241
(a) Real property can be acquired by
(b) Immovables governed by NCC 2242
prescription in 30 years (bad faith) and
10 years (good faith). (NCC 1137, 1134) (9) Double sales (NCC 1544)
(b) Movables can be acquired by (a) For movables ownership shall be
prescription in 8 years (bad faith) and 4 transferred to the person who first took
years (good faith). (NCC 1132) possession thereof in good faith
(4) Actions forrecovery of possession (b) For immovables ownership shall
belong to the person acquiring it who in
(a) Possession of real property - recovered
good faith first recorded it in the
through accion reivindicatoria, accion
Registry of Property; or if there be no
publiciana, forcible entry and unlawful
inscription, to the person who in good
detainer (accion interdictal).
faith first took possession, or in the
(b) Possession of movable property - absence of possession, to the person
recovered through replevin. who presents the oldest title, provided
there is good faith.
(5) Venue of actions
(a) Real actions - Actions concerning real
property are commenced in the court C. BASED ON OWNERSHIP/ RIGHTS-
that has jurisdiction over the area where HOLDER
the real property is situated. [Rules of
Court Rule 4 Sec. 1] NCC 419. Property is either of public dominion
(b) Personal actions - Commenced where or of private ownership.
the plaintiff or any of the principal Churches and other consecrated objects are
plaintiffs, or where the defendant or any considered outside the commerce of man; they
of the principal defendants resides, or if are considered neither public nor private
a non-resident defendant, where he may property.
be found, at the election of the plaintiff.
[Rule 4 Sec. 2]
(6) The governing law (Private International C.1. PUBLIC DOMINION
Law): Property of public dominion is outside the
(a) Immovables - governed by the law of the commerce of man. They cannot be the subject
country where they are located (rei matter of private contracts, cannot be acquired
situs). by prescription and they are not subject to
attachment and execution nor burdened with a
(b) Movables - governed by the personal voluntary easement.
laws of the owner. (which in some cases
is the law of his nationality and in other Public
As enumerated by NCC 420
cases, the law of his domicile) Dominion
Public Used in Art XII, Section 2,
(7) Affecting third persons Domain 1987 Constitution
(a) In transactions involving real property Public Lands Public Land Act
must be recorded in the Registry of
Property to affect third persons.
(b) In transactions involving personal
property registration is not required,

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CHARACTERISTICS for public service, shall form part of


the patrimonial property of the State
Not owned by the State but pertains to it as
[NCC 422]
territorial sovereign; to hold in trust for the
interest of the community. (ii) An express declaration by the State
(either by the Congress or by the
Purpose: For public use, and not for use by the
President, if the power was provided
State as a juridical person.
by law) that the property of public
Cannot be the subject of appropriation either by dominion has been converted into
the State or by private persons. patrimonial property, even though it
was classified as alienable or
disposable. [Heirs of Malabanan v.
CLASSIFICATIONS Republic (2009)]
Administered by the State [NCC 420]
(1) Those intended for public use. (roads, canals, Administered by Municipal Corporations [NCC
rivers, torrents, ports and bridges 424 (1)]
constructed by the State, banks, shores,
(1) Property for public use, in the provinces,
roadsteads, and others of similar character)
cities, and municipalities, consist of the
(2) Those (w/o being for public use) and are provincial roads, city streets, municipal
intended for some public service: streets, the squares, fountains, public waters,
may be used only by authorized persons but promenades, and public works for public
exists for the benefit of all, e.g. fortresses, service paid for by said provinces, cities, or
unleased mines and civil buildings. municipalities.
(3) Those for the development of the national (2) Patrimonial property of Municipal
wealth. Includes natural resources such as Corporations:
minerals, coal, oil and forest. All other property possessed by any of them
(4) Patrimonial property: (provinces, cities, and municipalities) [NCC 424
(2)
(a) Owned by the State over which it has the
same rights as private individuals in The province or municipality, as a juridical
relation to their own property. entity, also possesses private property to answer
for its economic necessities.
(b) Subject to the administrative laws and
regulations on the procedure of Presumption: that land comes from the State
exercising such rights, e.g. friar lands, upon the creation of the municipality. All lands
escheated properties and commercial in the possession of the municipality are
buildings. roperties of public dominion held in trust for the
States inhabitants are subject to the control
(c) Purpose: and supervision of the State.
(i) Enables the State to attain its Exception: Properties acquired with their own
economic ends funds in their private or corporate capacity over
(ii) Serves as a means for the States which the political subdivision has ownership
subsistence and preservation and control. A municipal corporation must prove
that they acquired the land with their own
(iii) Enables the State to fulfill its
corporate funds. [Salas v. Jarencio, (1972)]
primary mission
Note: The Local Government Code classifies
(d) Conversion of property of public
property pf LGUs into:
dominion for public use to patrimonial
property: (1) property of LGU in its governmental
character, which is broader than NCC 424,
(i) Property of public dominion, when
no longer intended for public use or (2) property of LGU in its proprietary character.

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C.2. PRIVATE OWNERSHIP D. BASED ON CONSUMABILITY


Can be exercised by the state in its private [NCC 418]
capacity or by private persons.
Only applies to movable property, determined by
KINDS nature.
(1) Patrimonial property - Property owned by the
State and its political subdivisions in their
private capacity; all property of the State not D.1. CONSUMABLE
included in NCC 420 (on public dominion) (1) Movables which cannot be used in a manner
[NCC 421-424] appropriate to their nature without their
(2) Property belonging to private persons, either being consumed. (e.g. food)
individually or collectively [NCC 425] (2) Consumable goods cannot be the subject
Property of private ownership, besides the matter of a commodatum unless the purpose
patrimonial property of the State, provinces, of the contract is not the consumption of the
cities, and municipalities, consists of all property object, as when it is merely for exhibition.
belonging to private persons, either individually
or collectively.
D.2. NON-CONSUMABLE
Refers to all property belonging to private
All others not falling under consumable e.g.
persons, natural or juridical, either individually
money in coin.
or collectively

CONVERSION E. BASED ON SUSCEPTIBILITY TO


SUBSTITUTION
Alienable Public Land converted to Private
Property through Prescription Only applies to movables, determined by the
intention of the parties.
Alienable public land held by a possessor
personally/through predecessors-in-interest,
openly, continuously and exclusively for 30 E.1. FUNGIBLES
years is converted to private property by the
mere lapse or completion of the period. The Things that, because of their nature or the will
application for confirmation is a mere formality, of the parties, are capable of being substituted
because land had already been converted, by others of the same kind, not having a distinct
giving rise to a registrable title. [Director of individuality.
Lands v. IAC (1986)]
Private Land converted to Property of Public E.2. NON-FUNGIBLES
Dominion through abandonment and
reclamation (1) Things that cannot be substituted for
another;
Through the gradual encroachment or erosion
(2) If the parties agreed that the same thing be
by the ebb and flow of the tide, private property
returned, it is not fungible.
may become public if the owner appears to have
abandoned the land, and permitted it to be
totally easten up by the sea so as to become F. BASED ON THE CONSTITUTION
part of the shore. The land having disappeared
[ARTICLE XII, SEC 3]
on account of the gradual erosion in case of
natural expropriation, and having remained (1) Public Agricultural Land;
submerged until they were reclaimed by the (2) Mineral Land;
government, they are public land. [Government
v. Cabangis (1929)] (3) Timber Land;
(4) National Parks.

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III. Ownership (6) Jus Possidendi: right to possess the property


(Implied from all the other rights)
(7) Jus Accessionis: right to whatever is attached
to the thing in such a way that they cannot be
A. DEFINITION AND CONCEPT separated without injury
Independent right of exclusive enjoyment and (8) Jus Tresauris: right to hidden treasure
control of a thing.
Has the purpose of deriving all advantages
required by the reasonable needs of the Other Specific Rights found in the NCC:
owner/holder of right and promotion of general (1) Right to Exclude; Doctrine of Self-Help (Art.
welfare. 429, NCC)
A complete subjection to an owners will. (2) Right to enclose or fence (Art. 430)
May be exercised in everything not prohibited by (3) Right to receive just compensation in case of
public law or the rights of another. (Art. 427) expropriation (Art. 435)
(4) Right to hidden treasure (Art. 438- 439)

B. TYPES OF OWNERSHIP
C.3. PROTECTING PROPERTY
Full Ownership - With complete rights over the
property. C.3.1 BASIC DISTINCTIONS
Naked Ownership - Absence of jus fruendi and REAL RIGHTS V. PERSONAL RIGHTS
jus utendi.
Real Rights
Sole Ownership - Ownership vested only in one
person. Rights that confer upon its holder an
autonomous power to derive directly from a
Co-Ownership - Ownership vested in 2 or more thing certain economic advantages
persons in ideal shares or undivided interest. independently of whoever the possessor of the
thing.
C. RIGHT IN GENERAL The number of real rights is an open
classification:
C.1. RIGHTS INCLUDED IN OWNERSHIP [NCC
428] 1. Ownership 8. Pledge
2. Real right of 9. Antichresis
(1) Right to enjoy and dispose of a thing, without
possession
other limitations than those established by
3. Usufruct 10. Retention
law.
4. Real right of 11. Preemption
(2) Right of action against the holder and praedial servitudes
possessor of the thing in order to recover it. (easement)
5. Recorded lease 12. Redemption
6. Real estate 13. Stewardship
C.2. BUNDLE OF RIGHTS
mortgage
(1) Jus Utendi: right to use and enjoy 7. Chattel mortgage 14. Certificate of
(2) Jus Fruendi: right to receive the fruits Ancestral Domain
Title; Certificate of
(3) Jus Abutendi: right to consume a thing by use Ancestral Domain
(4) Jus Disponendi: right to alienate, encumber, Claims in the IPRA
transform or even destroy the thing owned Law
(5) Jus Vindicandi: right to recover possession of
property based on a claim of ownership

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An action to redeem, or to recover title to or


possession of, real property is not an action in
Personal Rights
rem or an action against the whole world, like a
Rights of a person to demand from another as a land registration proceeding or the probate of a
definite passive subject, the fulfillment of a will; it is an action in personam, so much so that
prestation to give, to do or not to do. a judgment therein is binding only upon the
parties properly impleaded and duly heard or
given an opportunity to be heard. [Ching v. CA
Real Rights Personal Rights (1990)]
Definite active subject Definite active subject
who has a right against (creditor) and a
ALL persons generally definite passive C.3.2. REMEDIES
as an indefinite passive subject (debtor). DOCTRINE OF SELF-HELP [NCC 429-430]
subject.
Object is generally a Subject matter is The owner may use such force as may be
corporeal thing. always an incorporeal reasonably necessary to repel or prevent an
thing. actual or threatened unlawful physical invasion
Generally extinguished Personal right or usurpation of his property.
by the loss or survives the subject Every owner may enclose or fence his land or
destruction of the thing matter. tenements by any other means without
over which it is detriment to servitudes constituted thereon.
exercised.
It is directed against It is binding or
the whole world, giving enforceable only ACTIONS TO RECOVER OWNERSHIP AND
rise to real actions against a particular POSSESSION OF PROPERTY
against 3rd persons. person giving rise to
personal actions IMMOVABLE PROPERTY
against such debtor Accion Reivindicatoria
and his privies.
Recovery of ownership of real property.
Including but not limited to possession.

REAL ACTION V. PERSONAL ACTION (ROC, Prescription of Action: 30 years.


RULE 4 SEC 1-2)
Real action - Actions affecting title to or Accion Publiciana
possession of real property or any interest
therein. Recovery of real right of possession (posession
de jure).
Personal action - All other actions.
Judgment as to who has the better right of
possession.
ACTION IN REM V. ACTION IN PERSONAM V. Also, actions for ejectment not filed within 1 year
ACTION QUASI IN REM must be filed as accion publiciana.
Action in rem - Action against a property, Prescription: 10 years.
judgment binding against the whole world.
Action in personam - Action against a specific
person, judgment binding against that Accion Interdictal - Action for Ejectment
particular person. A summary action for recovery of actual,
Action quasi in rem - Action against a specific material or de facto physical possession through
property with respect to a person. either an action for Forcible Entry or Unlawful
Detainer.

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Distinction between forcible entry and unlawful D. LIMITATIONS ON OWNERSHIP


detainer
D.1. GENERAL LIMITATIONS:
(1) Forcible Entry: Lawful possessor deprived
through FISTS: Taxation, eminent domain, police power
FISTS (Force, Intimidation, Strategy, Threats, POLICE POWER
Stealth) PROPERTY TAKEN WITH NO
Prior physical possession must be alleged. COMPENSATION FOR GENERAL WELFARE

Prescription: 1 year from dispossession (force, When any property is condemned or seized by
intimidation, threats) or from knowledge of competent authority in the interest of health,
dispossession (strategy, stealth). safety or security, the owner thereof shall not be
entitled to compensation, unless he can show
that such condemnation or seizure is unjustified.
(2) Unlawful Detainer: Possessor refused to [Art. 436, Civil Code]
vacate upon demand by owner. Requisites
Legal possession (by permission/ tolerance) To justify the exercise of police power, the
becomes unlawful upon failure to vacate. following must appear [US v Toribio (1910)]:
Prior physical possession must be alleged. (1) The interests of the public generally, require
Prescription of action: 1 year from last notice to such interference (as distinguished from
vacate. those of a particular class); and
(2) The means are reasonably necessary for the
accomplishment of a purpose, and not
MOVABLE PROPERTY unduly oppressive.
Replevin
For manual delivery of movable property, for TAXATION
either ownership or possession
Forced contribution to the operation of
Acquisitive Prescription of Right: 4 years (good government.
faith) or 8 years (bad faith)

EMINENT DOMAIN
Requisites for recovery of property [NCC 434]
Property taken for public use/purpose, but
(1) Property must be identified; subject to due process and payment of just
If titled land, through a relocation survey and a compensation.
title properly identifying boundaries and Requisites
location and technical description.
To justify the exercise of the right of eminent
(2) Plaintiff must rely on the strength of his title domain, the following requisites must all be
and not on weakness of defendants claim. present:
Right must be founded on positive title and not
(1) Private property or its use as the object of the
on lack or insufficiency of defendants.
expropriation;
Ei incumbit probatio qui dicit, non qui negat: He (2) The property or its use is taken by the State
who asserts, not he who denied must prove. or by competent authority;
(3) The purpose of the taking is for public use;
(4) The taking must be attended with due
process of law; and
(5) There is payment of just compensation.

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Note: Nuisance
Expropriation may be exercised on both real and A nuisance is any act, omission, establishment,
personal property. [Rule 67, Rules of Court] business, condition of property, or anything else
which:
Expropriation may be exercised not only on
property but also its use such as the use of (1) Injures or endangers the health or safety of
telephone lines [Republic v PLDT (1969)] others;
Eminent domain may be availed of to impose (2) Annoys or offends the senses;
only a burden upon the owner of the (3) Shocks, defies or disregards decency or
condemned property, without loss of title and morality;
possession.
(4) Obstructs or interferes with the free passage
of any public highway or street, or any body
of water; or
D.2. SPECIFIC LIMITATIONS:
(5) Hinders or impairs the use of property. [NCC
Legal Servitudes 694]
Once requisites are satisfied, the servient owner
may ask the Court to declare the existence of an
easement. CLASSES OF NUISANCE [Iloilo Cold Storage
v. Municipal Council (1913) ]
(1) Art. 644 & 678: Aqueduct
Nuisances per se
(2) Art. 679: Planting of trees
(3) Art. 670: Light and View Those which are unquestionably and under all
circumstances nuisances (i.e. gambling houses,
(4) Art. 649 & 652: Right of Way houses of ill fame, etc.) May be summarily
(5) Art. 637: Passage of water from upper to abated.
lower tenements Nuisance per accidens
(6) Art. 676: Drainage of buildings
Nuisances because of particular facts and
(7) Art. 684-687: Lateral and subjacent support circumstances surrounding the otherwise
harmless cause of nuisance
Must not injure the rights of a third person Requires a hearing before a tribunal to be
abated
Sic Utere Tuo Ut Alienum Non Laedas
The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third
person. [NCC 431]
Actions in a State of Necessity
The owner of a thing has no right to prohibit the
interference of another with the same, if the
interference is necessary to avert an imminent
danger and the threatened damage, compared
to the damage arising to the owner from the
interference, is much greater. The owner may
demand from the person benefited, indemnity
for the damage to him. [NCC 432]

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SUMMARY OF ACTIONS
Action Venue Summon Prayer Basis Prescription
Prior physical
possession for
Forcible Entry /
Real In forcible entry;
Unlawful Possession 1 year
Action personam Notice to vacate
Detainer
for unlawful
detainer
Accion Real In Real right of 10 years
Possession
Publiciana Action personam Possession [NCC 555(4)]
GF: 10 years
BF: 30 years
[NCC 1137]

Accion Real In Exception (i.e. no


Possession Ownership
Reividicatoria Action personam acquisitive prescription):
Torrens Title and property
of public dominion;
Exception to exception:
laches
Real In Constructive 10 years
Reconveyance Title
Action personam trust (NCC 1456)
Real Quasi-in Quieting of
Quieting of Title Ownership Imprescriptible
Action rem Title
Personal In Possession or GF: 4 years
Replevin Possession
Action personam Ownership BF: 8 years

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IV. Accession General Rule: To the owner of the principal


belongs the natural, industrial and civil fruits.
Exceptions:
Accession the right by virtue of which the (1) Possession in good faith (fruits belong to
owner of a thing becomes the owner of possessor by good faith for as long as he
everything that is produced thereby, or which remains in good faith)
is incorporated or attached thereto, either
(2) Usufruct (to usufructuary)
naturally or artificially. [NCC 440]
(3) Lease (to lessee in civil law lease of
Accession is one of the bundle of rights of agricultural land; lessor gets rentals as
ownership and is not a mode of acquiring civil fruits)
property; it does not depend upon a new title.
(4) Antichresis
Accessories things joined to or included
with the principal thing for the latters
embellishment, better use, or completion, KINDS OF FRUITS
but which cannot be separated without
(1) Natural spontaneous products of soil
damage or injury.
and the young and other products of
animals [NCC 442 (1)]
A. CLASSIFICATION OF ACCESSION Under the rule partus sequitur ventrem, to the
owner of female animals would also belong
(1) Accession Discreta the right pertaining the young of such animals although this
to the owner of a thing over everything cannot apply when the owner mixes his cattle
produced thereby (by internal forces). with those of another and they interbreed,
(2) Accession Continua the right pertaining thus co-ownership is applied [Siari Valley
to the owner of a thing over everything Estates v. Lucasan (1960)].
that is incorporated or attached thereto
either naturally or artificially (by external
forces). (2) Industrial produced by lands of any kind
through cultivation or labor [NCC 442 (2)].
(a) Over Immovables
Standing trees are not fruits since they are
(i) Industrial or artificial (building, considered immovables although they
planting, sowing) produce fruits themselves. However, they
(ii) Natural may be considered as industrial fruits when
(1) Alluvion they are cultivated or exploited to carry on an
industry, as in tree plantation.
(2) Avulsion
(3) Change of Course of River
(4) Formation of Islands (3) Civil easily prorated for under NCC 544
they are deemed to accrue daily and
(b) Over Movables belong to the possessor in good faith in
(i) Conjunction and Adjunction that proportion (e.g. rents of buildings,
(ii) Commixtion and Confusion price of leases or lands and the amount of
perpetual or life annuities or other similar
(iii) Specification income).
Notes:
A.1. WITH RESPECT TO IMMOVABLES Natural and industrial fruits are real property
ACCESSION DISCRETA while still ungathered.
Right of ownership to the fruits. [NCC 441] Only those that are manifest or born are
considered as natural or industrial fruits.

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PRINCIPLES APPLICABLE TO ACCESSION (i) Possessor in Good Faith


DISCRETA
(ii) Usufructuary
(1) Time of Accrual depending on kind:
(iii) Lessee
Annuals: from the time seedlings appear on
the ground. (iv) Antichretic creditor

Perennials: from the time fruits actually


appear on the plants. MEANING OF BAD FAITH
Young of animals: from the time they are in On the part of the landowner
the womb, although unborn beginning of
maximum ordinary period of gestation. Whenever the building, planting or sowing
was done with his knowledge and without
Fowls: from the time of incubation. opposition on his part (NCC 453, par. 2).
On the part of the owner of materials
(2) He who receives the fruits has the Allows the use of his materials without
obligation to pay the expenses incurred by protest.
a third person in the production, gathering
and preservation of the fruits. [NCC 443] On the part of the builder, planter and
sower, he is a possessor in bad faith at the
Exception: Owner does not have to pay if time of BPS if he:
land is recovered before gathering from a
possessor in bad faith. Knows that he does own the land, nor the
right to build thereon or no permission of the
But if owner recovers land from possessor in owner of the materials to pay their value.
bad faith, he may choose to acquire the land
and he can make the possessor, builder, Note: Bad faith leads to liability for damages
planter, sower account for the fruits that have and the loss of the works or the improvement
been gathered, with the obligation to deduct without reimbursement.
the expenses for producing, harvesting and Bad faith of one party neutralizes the bad
preservation of the fruits. faith of the other.

PRINCIPLES APPLICABLE TO ACCESSION (2) Accession Continua Natural


CONTINUA
Land deposits, etc.
(1) Accession Continua Artificial or Industrial
Building, planting or sowing on land owned
by another (over immovables). ALLUVIUM
General Rule: Whatever is built, planted or Soil is gradually deposited on banks
sown on the land of another + improvements adjoining the river. There can be no
or repairs made thereon, belong to the owner acquisition of soil deposited on the shores of
of the land subject to the rules on BPS (NCC the sea [De Buyser v. Director of Lands (1983)]
445). Requisites
Presumptions (1) Deposit of soil or sediment is gradual and
(a) All works, sowing and planting are imperceptible;
presumed made by the owner and at his (2) As a result of the action of the currents of
expense, unless the contrary is proved. the waters of the river and should have no
(b) The owner of the principal thing owns human intervention;
the natural, industrial and civil fruits, (3) Land where the accretion takes place is
except when the following persons exist: adjacent to the banks of the rivers; and

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(4) Deemed to Exist: When the deposit of the and does not include trees which remain
sediment has reached a level higher than planted on a known portion of land carried by
the highest level of the water during the the force of the waters. In this latter case, the
year, i.e. higher than the river bank. trees are regarded as accessions of the land
through gradual changes in the course of
adjoining stream. [Payatas v. Tuazon (1929)]
Effect: The riparian owner automatically
owns the Alluvion but it does not
automatically become registered property in CHANGE OF COURSE OF RIVER
his name. [Grande v CA (1962)]
Requisites:
(1) Change in the natural course of the waters
Rationale of the river; and
To offset the owners loss from possible (2) Such change causes the abandonment of
erosion due to the current of the river; the river beds. Natural Bed: ground
covered by its waters during the highest
To compensate for the subjection of the land
floods. [Binalay v. Manalo (1991)]
to encumbrances and legal easements.
(3) Such change is sudden or abrupt
When is Alluvion formed? When the deposit of
sediment has reached a level higher than the
highest level of water during the year Results
Where the deposit is by sea water, it belongs Owners whose lands are occupied by the new
to the state. A gradual change of bed is also course automatically become owners of the
governed by the rules of alluvium [Canas vs. old bed, in proportion to the area they lost
Tuason (1906)]
Owners of the lands adjoining the old bed are
given the right to acquire the same by paying
AVULSION the value of the land.

A known portion of land is segregated from *Not exceeding the value of the land invaded
one estate by the forceful current of a river, by the new bed (the old property of the
creek or torrent and transferred to another. owner)

Requisites The new bed opened by the river on a private


estate shall become of public dominion.
(1) Segregation and transfer of land is sudden
and abrupt; It does not apply to cases where the river
simply dries up because there are no persons
(2) Caused by the current of the water; and whose lands are occupied by the waters of
(3) The portion of land transported must be the river.
known and identifiable; or
(4) Can also apply to sudden transfer by other
forces of nature such as land transferred FORMATION OF ISLANDS
from a mountain slope because of an They belong to the State if [NCC 464]:
earthquake.
(1) Formed on the seas within the jurisdiction
of the Philippines.
Effect: The ownership of the detached (2) Formed on lakes, or
property is retained by the owner subject to
(3) Formed on navigable or floatable rivers:
removal within 2 years from the detachment.
(a) Capable of affording a channel or
In case of uprooted trees, the owner retains passage for ships and vessels;
ownership if he makes a claim within 6
months. This refers only to uprooted trees

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(b) Must be sufficient not only to float (1) Formed through successive accumulation
bancas and light boats, but also of alluvial deposits
bigger watercraft; (2) On non-navigable and non-floatable rivers
(c) Deep enough to allow unobstructed (3) If island is in the middle: divided
movements of ships and vessels. longitudinally in half.
TEST: can be used as a highway of (4) if nearer to one margin or bank, to the
commerce, trade and travel. nearer reparian owner
Note: There is no accession when islands are Note: If a landowner allows the sea or a lake
formed bythe branching of a river; the owner to eat up his land completely, it is a case of
retains ownership of the isolated piece of natural
land. expropriation and if the land later reappears,
he does not regail ownership thereof.
[Republic v. Cabangis (1929)]
They belong to the owners of the nearest
margins or banks if [NCC 465]:

Landowner [LO]in Bad


Landowner [LO] in Good Faith
Faith
Rights of Landowner [NCC 448] Absolute Duties of
Options: Landowner [NCC 447]:
Buy from BPS but only after payment of indemnity for Pay damages; and
necessary, useful and ornamental expenses [NCC 546 and Allow removal even if it
Builder, 548]; BPS in good faith has right of retention; causes damage or
Planter, Sell to BP (unless the value of the land is considerably more destruction; or
Sower [BPS] than that of the building or trees); or Buy or pay for value of
in Good Faith Remedy: Rent to BP if LO does not want to buy improvement.
Note: If BP refuses or cannot purchase the land, he loses his
right of retention and must turnover possession to
landowner.
Rent to S.
Rights of Landowner [NCC 449-452] Same as though both
Options: landowner and BPS are in
Appropriate the improvements without paying indemnity; good faith
Builder,
Demolish/Remove the work of BPS at the expense of BPS;
Planter,
Sell to BP without any right to refuse even if value of land is
Sower [BPS]
considerably whole; or
in Bad Faith
Rent to the S

Absolute right to Damages from BPS.

Note: Good faith does not necessarily exclude negligence, which gives rise to damages under Article 2176
(NCC 456).

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Landowner [LO] in Good Faith Landowner [LO]in Bad Faith


Right of Landowner [NCC 447] Absolute Duties of Landowner [NCC 447]:
Owner of
To buy the improvements unless OM can Pay damages; and
Material [OM]
remove without damage. Allow removal in any event; or
in Good Faith
Pay for value of material.
Absolute Rights of Landowner [NCC 447] Same as though both landowner and
Owner of
To appropriate the materials without material manare in good faith
Material [OM]
payment.
in Bad Faith
Right to damages from OM.

Landowner BPS Owner of Material [OM]


Good faith Good faith Good faith
Options: (1) Right of retention until (1) Collect value of material
(1) Right to acquire improvements necessary and useful primarily from BPS and
and pay indemnity to BPS; expenses are paid; subsidiarily to landowner if
subsidiarily liable to OM; (2) To pay value of BPS is insolvent; and
(2) Sell the land to BP except if the materials to OM. (2) Limited right of removal (if
value of the land is considerably the removal will not cause
more; or any injury)
(3) Rent to S.
Good faith Good faith Bad faith
Options: (1) Right of retention until (1) Lose the material without
(1) Right to acquire improvements necessary and useful right to indemnity.
and pay indemnity to BPS; expenses are paid. (2) Must pay for damages to
(2) Sell land to BP except if the value (2) Keep BPS without BPS.
of the land is considerably more; or indemnity to OM and
(3) Rent to S. collect damages from
him.
Good faith Bad faith Bad faith
(1) Landowner has right to collect Recover necessary expenses (1) Recover value from BPS (as
damages from BPS in any case and for preservation of land from if both are in good faith)
the option to either landowner unless landowner (2) If BPS acquires
(a) Acquire improvements w/o sells land. improvement, remove
paying for indemnity; materials if feasible w/o
(b) Demolition or restoration; or injury
(c) Sell to BP, or to rent to sower (3) No action against
(2) Pay necessary expenses to BPS. landowner but may be liable
to landowner for
consequential damages
Bad faith Bad faith Bad faith
Same as when all acted in good faith Same as when all acted in Same as when all acted in good
under Article 453 good faith under Article 453 faith under Article 453

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Bad faith Good faith Good faith


(1) Acquire improvement after paying (1) May remove (1) Remove materials at any
indemnity and damages to BPS improvements. event
unless the latter decides to (2) Be indemnified for (2) Collect value of materials
remove. damages in any event from BPS; subsidiarily from
(2) Subsidiarily liable to OM for value (3) Pay OM the value of the landowner, if landowner is
of materials if he acquires BPS and materials made to pay for BPS and
damages; no subsidiary liability if damages
BPS chooses removal in any event.
Good faith Bad faith Good faith
Options: (1) No right of retention. (1) Collect value of materials
(1) Right to acquire improvements (2) Pay value of materials to primarily from BPS and
and pay indemnity to BPS; OM and pay him subsidiarily from landowner,
subsidiarily liable to OM; damages. if landowner acquires the
(2) Sell the land to BP except if the BPS.
value of the land is considerably (2) Collect damages from BPS.
more; or (3) Absolute right to remove
(3) Rent to S. materials in any event.
Good faith Bad faith Good faith
(1) Landowner has right to collect (1) Right to necessary (1) Collect value of materials
damages from BPS in any case and expenses. primarily from BPS and
the option to either (2) Pay value of materials to subsidiarily from landowner
(a) Acquire improvements w/o OM. (2) Collect damages from BPS
paying for indemnity; (3) Pay damages to OM/LO. (3) If BPS acquires
(b) Demolition or restoration; or improvements, absolute
(c) Sell to BP, or to rent to sower right of removal in any
(2) Pay necessary expenses to BPS. event.
Bad faith Good faith Bad faith
Acquire improvements and pay (1) Receive indemnity for (1) No right to indemnity.
indemnity and damages to BPS unless damages. (2) Loses right to the materials.
the latter decides to remove materials. (2) Absolute right of
removal of
improvements in any
event.

Note: If there are 3 parties in BPS, solve the problem by considering the options open to the landowner
vis--vis BPS depending on their good faith or bad faith; apply NCC 455 re: one who acted in good faith.

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A.2. WITH RESPECT TO MOVABLE If owner of principal is in bad faith, owner of


PROPERTY the accessory has a right to choose between
the owner of the principal paying him its
TYPES
value or that the thing belonging to him be
Conjunction or Adjunction separated, even though for this purpose it be
necessary to destroy the principal thing; and
Process where 2 movables belonging to
in both cases, there shall be indemnity for
different owners are attached to each other to
damages.
form a single object.
Mixture
Test to determine the principal thing
The union of materials belonging to different
owners where the components lose their In the order of application, the principal is
identity. that:
Specification (1) To which the other has been united as an
ornament or for its use or perfection
Transforming or giving of a new form to
(Rule of importance and purpose).
anothers material through labor.
(2) Of greater value.
(3) Of greater volume.
CONJUNCTION / ADJUNCTION
(4) That of greater merits, taking into
Requisites consideration all the pertinent legal
(1) There are 2 movables belonging to 2 provisions, as well as the comparative
different owners; merits, utility and volume of their
respective things. [Manresa]
(2) They are united in such a way that they
form a single object; and
(3) They are so inseparable that their When separation allowed
separation would impair their nature or (1) When separation will not cause any injury;
result in substantial injury to either or
component.
(2) When the accessory is much more
precious:
Ownership of new object formed by (a) Owner of accessory may demand
adjunction separation even though the principal
(1) If union was made in good faith thing may suffer (NCC 469).

GENERAL RULE: The owner of the principal (b) Owner who caused the union shall
thing acquires the accessory, with the bear the expenses for separation even
obligation to indemnify the owner of the if he acted in good faith.
accessory for its value in its original state. (3) When the owner of the principal is in bad
EXCEPTION: if the accessory is much more faith.
precious than the principal, the owner of the Note: In painting and sculptures, writings,
accessory may demand separation even if the printed matter, engravings and lithography,
principal suffers some injury the board, metal, stone, canvas, paper or
parchment are deemed as the accessory
things (NCC 468, par. 2).
(2) If union was in bad faith, NCC 470 applies:
Owner of accessory in bad faith loses the
thing incorporated and has the obligation to
indemnify the owner of the principal thing for
damages.

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MIXTURE material, in consequence of the work itself,


undergoes a transformation.
Kinds
It is the transformation of anothers material
(1) Commixtion: mixture of solid things
by the application of labor.
(2) Confusion: mixture of liquid things, and
includes mixture of gases Examples: Turning grapes into wine, flour
into bread, marbles into a piece of sculpture
Rules
Rules
(1) Person in good faith
(1) Mixture by will of the owners:
General rule: Worker becomes the owner but
Primarily governed by their stipulations. In must indemnify the owner (who was also in
the absence of stipulation, each owner good faith) for the value of the material.
acquires a right or interest in the mixture in
proportion to the value of his material, i.e. co- Exception
ownership is created. If the material is more valuable than the new
thing, the owner of the material may choose:
(2) Mixture caused by an owner in good faith or To take the new thing but must pay for
by chance the value of the work or labor; or
Share of each owner shall be proportional to To demand indemnity for the value of the
the value of the part that belonged to him. If material.
things mixed are exactly the same kind, If the owner was in bad faith, maker may
quality and quantity, divide the mixture appropriate the new thing without paying the
equally. If things mixed are of different kind owner, or require the owner to pay him the
or quality, a co-ownership arises. If they can value of the thing or his work, with right to
be separated without injury, the owners may indemnity.
demand separation. Expenses are borne by
the owners pro rata.
NOTE: Good faith in accession does not (2) Person in bad faith
necessarily exclude negligence, which gives General rule: Owner may either appropriate
rise to damages. the new thing to himself without paying the
maker, or owner may demand value of
material plus damages
(3) Mixture caused by an owner in bad faith
Exception: The first option is not available in
Actor forfeits the thing belonging to him.
case the value of the work, for artistic or
Actor also becomes liable for damages.
scientific reasons, is considerably more than
that of the material, in which case the owner
of the material can ask for payment of
(4) Mixture made with knowledge and
material and damages.
without objection of the other owner
Rights to be determined as though both
acted in good faith. (3) Person made use of material with consent
and without objection of owner
Rights shall be determined as though both
SPECIFICATION
acted in good faith
Takes place when the work of a person is
done on the material of another, such

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V. Quieting of Title E. THE ACTION TO QUIET TITLE DOES


NOT APPLY:
(1) To questions involving interpretation of
A. IN GENERAL documents;
A remedy or form of proceeding originating (2) To mere written or oral assertions of
in equity jurisprudence. Equity comes to the claim, EXCEPT
aid of the plaintiff who would suffer if the (a) made in a legal proceeding or
instrument (which appear to be valid but is (b) asserting that an instrument or entry
in reality void, ineffective, voidable or in plaintiffs favor is not what it
unenforceable) was to be enforced. purports to be;
(3) To boundary disputes;
B. PURPOSE (4) To deeds by strangers to the title
UNLESS purporting to convey the
To declare: property of the plaintiff;
(a) The invalidity of a claim on a title; or (5) To instruments invalid on their face; or
(b) The invalidity of an interest in (6) Where the validity of the instrument
property. involves a pure question of law.
To free the plaintiff and all those claiming
under him from any hostile claim on the
property. F. REQUIREMENTS
F.1. REQUISITES OF AN ACTION TO QUIET
TITLE
C. NATURE: QUASI IN REM
(1) There is a cloud on title to real property
A suit against a particular person or persons or any interest to real property;
in respect to the res and the judgment will
(2) The plaintiff must have legal or
apply only to the property in dispute.
equitable title to, or interest in the real
The action to quiet title is characterized as a property; and
proceeding quasi in rem. Technically, it is (3) Plaintiff must return the benefits
neither in rem nor in personam. In an received from the defendant.
action quasi in rem, an individual is named
as a defendant. However, unlike suits in
rem, a quasi in rem judgment is conclusive Cloud on title means a semblance of title,
only between the parties. [Spouses Portic v. either legal or equitable, or a claim or a
Cristobal] right in real property, appearing in some
legal form but which is, in fact, invalid or
which would be inequitable to enforce.
D. JUSTIFICATIONS TO BRING AN
ACTION TO QUIET TITLE
A cloud exists if:
(1) To prevent future or further litigation on
the ownership of the property. (1) There is a claim emerging by reason of:
(2) To protect the true title and possession. (a) Any instrument e.g. a contract, or any
(3) To protect the real interest of both deed of conveyance, mortgage,
parties. assignment, waiver, etc. covering the
property concerned;
(4) To determine and make known the
precise state of the title for the guidance (b) Any record, claim, encumbrance e.g.
of all. an attachment, lien, inscription,

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adverse claim, lis pendens, on a title; Equitable title: the person has the
or beneficial ownership of the property.
(c) Any proceeding e.g. an extrajudicial
partition of property.
The plaintiff must return the benefits
received from the defendant [NCC 479]
(2) The claim should appear valid or
effective and extraneous evidence is
needed to prove their validity or G. QUIETING OF TITLE V. REMOVAL
invalidity; OF CLOUD
Test: Would the owner of the property in an
action for ejectment brought by the adverse Quieting of Title Removal of Cloud
party be required to offer evidence to defeat There isnt There is always an
a recovery? always an adverse claim by virtue
adverse claim of an instrument,
As a general rule, a cloud is not created by (e.g. land record, claim,
mere verbal or parole assertion of registration encumbrance or
ownership or an interest in property. cases) proceeding.
Remedial action
Preventive action to
involving a
(3) Such instrument, etc. is, in truth and in prevent a future cloud
present adverse
fact, invalid, ineffective, voidable, or on the title
claim
unenforceable, or has been extinguished
or terminated, or has been barred by
extinctive prescription; and H. PRESCRIPTION
PRESCRIPTION OF ACTION
(4) Such instrument, etc. may be prejudicial When the plaintiff is in possession of the
to the true owner or possessor. property, the action to quiet title does not
prescribe.
F.2. REQUISITES OF AN ACTION TO When the plaintiff is not in possession of the
PREVENT A CLOUD: real property, the action to quiet title may
prescribe depending upon the right of
(1) Plaintiff has a title to a real property or
action filed by the plaintiff:
interest therein;
(2) Defendant is bent on creating a cloud on (a) 10 yrs. if plaintiff is a possessor with
the title or interest therein. The danger a real right, i.e. accion publiciana, or if
must not be merely speculative or action is for reconveyance on the
imaginary but imminent; and basis of a constructive trust under
NCC 1456
(3) Unless the defendant is restrained or
stopped, the title or interest of the (b) 30 yrs. if plaintiff is the owner of
plaintiff will be prejudiced or adversely real property
affected. Note: An action to quiet title may be
defeated by a claim of ordinary or
extraordinary acquisitive prescription by the
The plaintiff must have legal or equitable defendant.
title to, or interest in the real property [NCC
477]
Legal title: the party is the registered owner
of the property.

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VI. Co-ownership Any stipulation in a contract to the contrary


shall be void.
The form of ownership when the ownership The portions belonging to the co-owners in
of an undivided thing or right belongs to the co-ownership shall be presumed equal,
different persons. [NCC 484] unless the contrary is proved.

A. REQUISITES Each co-owner has absolute control over


(1) Plurality of owners; his ideal share
(2) Object must be an undivided thing or Every co-owner has absolute ownership of
right; and his undivided interest in the co-owned
property and is free to alienate, assign or
(3) Each co-owners right must be limited
mortgage his interest, except as to purely
only to his ideal or abstract share of the
personal rights. While a co-owner has the
physical whole.
right to freely sell and dispose of his
undivided interest, nevertheless, as a co-
owner, he cannot alienate the shares of his
B. WHAT GOVERNS CO-OWNERSHIP
other co-owners nemo dat quod non
(1) Contracts; habet. [Acabal v. Acabal (2005)]
(2) Special laws; and
(3) The Civil Code Mutual respect among co-owners with
regard to use, enjoyment, and preservation
of the things as a whole
C. CHARACTERISTICS OF CO-
OWNERSHIP (1) The property or thing held pro indiviso is
impressed with a fiduciary character:
(1) There are 2 or more co-owners. each co-owner becomes a trustee for the
(2) There is a single object which is not benefit of his co-owners and he may not
materially or physically divided and his do any act prejudicial to the interest of
ideal share of the whole. his co-owners.
(3) There is no mutual representation by the (2) Until a judicial division is made, the
co-owners. respective part of each holder cannot be
(4) It exists for the common enjoyment of determined. The effects of this would be:
the co-owners. (a) Each co-owner exercises, together
(5) It has no distinct legal personality. with the others, joint ownership over
the pro indiviso property, in addition
(6) It is governed first of all by the contract to his use and enjoyment of the same
of the parties; otherwise, by special legal
provisions, and in default of such (b) Each co-owner may enjoy the whole
provisions, by the provisions of Title III on property and use it.
Co-Ownership. (3) Redemption exercised by a co-owner
inures to the benefit of his other co-
owners [Mariano v. CA (1993)]
There are ideal shares defined but not
physically identified [NCC 485]
The share of the co-owners, in the benefits Only limitation
as well as in the charges, shall be Each co-owner of realty held pro indiviso
proportional to their respective interests. exercises his rights over the whole property
and may use and enjoy the same with no
other limitation than that he shall not injure

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the interests of his co-owners. [Pardell v. Article 494, Civil Code. No co-owner shall be
Bartolome (1912)] obliged to remain in the co-ownership. Each co-
owner may demand at any time the partition of
the thing owned in common, insofar as his
D. SOURCES OF CO-OWNERSHIP share is concerned.
D.1. LAW Nevertheless, an agreement to keep the thing
Cohabitation: co-ownership between undivided for a certain period of time, not
common law spouses exceeding ten years, shall be valid. This term
may be extended by a new agreement.
The Family Code, in the following
provisions, apply rules on co-ownership: A donor or testator may prohibit partition for a
period which shall not exceed twenty years.
Art. 147: between a man and a woman living
together as husband and wife without the Neither shall there be any partition when it is
benefit of marriage but are capacitated to prohibited by law.
marry each other, or under a void marriage No prescription shall run in favor of a co-owner
Art. 148: between a man and a woman not or co-heir against his co-owners or co-heirs so
capacitated to marry each other long as he expressly or impliedly recognizes the
co-ownership.
Art. 90: if matter is not provided in the FC
Chapter on ACP, then rules on co-
ownership will apply By the creation of a Universal Partnership
of all present property
Purchase creating implied trust NCC 1778. A partnership of all present
property is that in which the partners
If two or more persons agree to purchase contribute all the property which actually
property and by common consent, the legal belongs to them to a common fund, with
title is taken in the name of one of them for the intention of dividing the same among
the benefit of all, a trust is created by force themselves, as well as all the profits which
of law in favor of the others in proportion to they may acquire therewith.
the interest of each. [NCC 1452]
NCC 1779. In a universal partnership of all
Easement of party wall: co-ownership of present property, the property which
part-owners of a party wall [NCC 658] belonged to each of the partners at the time
Condominium Law: co-ownership of the of the constitution of the partnership,
common areas by holders of units becomes the common property of all the
partners, as well as all the profits which
Sec. 6, RA 4726. The Condominium Act. they may acquire therewith.
Unless otherwise expressly provided in the
A stipulation for the common enjoyment of
enabling or master deed or the declaration
any other profits may also be made; but the
of restrictions, the incidents of a
property which the partners may acquire
condominium grant are as follows:
subsequently by inheritance, legacy, or
(c) Unless otherwise, provided, the donation cannot be included in such
common areas are held in common by stipulation, except the fruits thereof
the holders of units, in equal shares,
one for each unit.
By Association and Societies with Secret
Articles
D.2. CONTRACT
NCC 1775. Associations and societies, whose
By Agreement of Two or More Persons articles are kept secret among the
members, and wherein any one of the

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members may contract in his own name Hidden Treasure [NCC 438]
with third persons, shall have no juridical
When the discovery is made on the property
personality, and shall be governed by the
of another, or of the State or any of its
provisions relating to co-ownership.
subdivisions, and by chance, one-half shall
be allowed to the finder.
D.3. INTESTATE SUCCESSION
Co-ownership between the heirs before D.6. BY OCCUPANCY
partition of the estate
Harvesting and Fishing: Co-ownership by
NCC 1078. Where there are two or more two or more persons who have seized a res
heirs, the whole estate of the decedent is, nullius thing
before its partition, owned in common by
such heirs, subject to the payment of debts
of the deceased. E. RIGHTS OF CO-OWNERS
For as long as the estate is left undivided E.1. RIGHT TO SHARE IN THE BENEFITS
the heirs will be considered co-owners of AS WELL AS THE CHARGES [NCC 485]
the inheritance.
Proportional to their interests;
If one of the heirs dies, his heirs will in turn
Stipulation to the contrary is void;
be co-owners of the surviving original heirs.
Portion belonging to the co-owners is
presumed equal.
D.4. TESTAMENTARY DISPOSITION OR
DONATION INTER VIVOS
E.2. RIGHT TO USE THE THING OWNED
When a donation is made to several persons
IN COMMON [NCC 486]
jointly, it is understood to be in equal
shares, and there shall be no right of Limitations: That he use the thing in
accretion among them, unless the donor accordance with the purpose for which it is
has otherwise provided. [NCC 753] intended.
Exception: Donations to spouses jointly, That he uses it in such a way as to not injure
right of accretion is presumed unless donor the interest of the co-ownership or prevent
provides otherwise the other co-owners from using it.
A donor or testator may prohibit partition If co-owner exclusively uses property owned
for a period which shall not exceed 20 in common, he is liable to pay rentals for
years. other co-owners share [Pardell v. Bartolome
(1912)].

D.5. BY FORTUITOUS EVENT OR BY


CHANCE E.3. RIGHT TO BRING AN ORDER IN
EJECTMENT [NCC 487]
Co-ownership between owners of 2 things
that are mixed by chance or by will of the
owners:
E.4. RIGHT TO COMPEL OTHER CO-
[NCC 472] Each owner shall acquire a right OWNERS TO CONTRIBUTE TO THE
proportional to the part belonging to him, EXPENSES OF PRESERVATION AND TO
bearing in mind the value of the things mixed or THE TAXES [NCC 488]
confused. Any one of the other co-owners may exempt
himself by renouncing so much of his

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undivided interest as may be equivalent to An agreement to keep the thing undivided


his share of the expenses and taxes. for a certain period not exceeding 10 years is
valid.
No waiver if it is prejudicial to the co-
ownership Term may be extended by a new
agreement.
Note: Renunciation needs the consent of
other co-owners as this is akin to a dacion Donor or testator may prohibit partition,
en pago [J.B.L. Reyes] period not to exceed 20 years.
No partition may be made if prohibited by
law.
E.5. RIGHT TO REPAIR [NCC 489]
Right does not prescribe for as long as co-
Repairs for preservation may be made at
ownership lasts or is recognized.
the will of one of the co-owners but he must
first notify his co-owners if practicable.
Expenses to improve or embellish, decided E.9. RIGHT TO REDEMPTION [NCC 1619]
upon by a majority.
May exercise this in case the shares of other
co-owners are sold to a third person
E.6. RIGHT TO OPPOSE ALTERATIONS If 2 or more co-owners wish to exercise this
[NCC 491] Consent of all the others is right, redemption will be made in
needed to make alterations, even if the proportion to their share in the thing
alteration benefits all.
If the withholding of the consent is clearly E. 10. RIGHT TO PROTEST AGAINST ACTS
prejudicial to the common interest, the OF MAJORITY WHICH ARE PREJUDICIAL
courts may afford relief TO MINORITY [NCC 492(3)]
Reason for the rule: alteration is an act of Should the resolution of the majority be
ownership, not of mere administration. seriously prejudicial to those interested in
the property owned in common:
E.7. RIGHT TO FULL OWNERSHIP OF HIS The court, at the instance of an interested
PART AND OF THE FRUITS AND party, shall order such measures as it may
BENEFITS PERTAINING THERETO deem proper, including the appointment of
an administrator.
[NCC 493]
Therefore he may alienate, assign or
mortgage it, and even substitute another Note: Rules on Co-Ownership do not apply
person in its enjoyment except when to CPG or ACP. These are governed by
personal rights are involved. the Family Code. Even void marriages
and cohabitation of incapacitated
The effect of the alienation or the mortgage,
persons are governed by FC 50, 147,
with respect to the co-owners, shall be
and 148.
limited to the portion which may be allotted
to him in the division upon the termination
of the co-ownership.
F. IMPLICATIONS OF CO-OWNERS
RIGHT OVER HIS IDEAL SHARE
E.8. RIGHT TO PARTITION [NCC 494] Co-Owner has the right:
Each may demand at any time the partition (1) To share in fruits and benefits
of the thing, insofar as his share is
concerned.

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(2) To alienate, mortgage or encumber and G.3. EMBELLISHMENTS OR


dispose of his ideal sharebut other IMPROVEMENTS
owners can exercise right of redemption
(1) Notify co-owners of improvements and
(3) To substitute another person in the embellishments to be made.
enjoyment of the thing
If no notification is made, the co-owner who
(4) To renounce part of his interest to advanced the expenses will only have the
reimburse necessary expenses incurred right to be reimbursed if he proves the
by another co-owner (NCC 488) necessity of such repairs and the
EFFECT OF TRANSACTION BY EACH CO- reasonableness of the expenses.
OWNER Exception: If proven that had there been a
(1) Limited to his share in the partition notification, they could have hired another
who would charge lessor that they know of
(2) Transferee does not acquire any specific
a store that sells the needed material at a
portion of whole property until partition
cheaper price. The reimbursement will be
(3) Creditors of co-owners may intervene in limited to the amount that should have
partition or attack the same if prejudicial been spent had he notified the others, and
[NCC 499], except that creditors cannot the difference shall be borne by him alone.
ask for rescission even if not notified in
the absence of fraud. [NCC 497]
(2) Decisions by the majority must be
followed.
G. RULES
Act of Co-Owner Consent Needed
G.1. ON RENUNCIATION OF SHARE Preservation May be made at
(DIFFERENT FROM RENUNCIATION OF will by any co-
CO-OWNERSHIP) owner but must
Other co-owners may choose not to first notify other
contribute to the expenses by renouncing so co-owners if
much of his undivided interest as may be practicable
equivalent to his share of the necessary Alterations Consensus of
expenses and taxes. Majority
Lease for more Consensus of
Renunciation must be express; thus, failure than 1 year Majority
to pay is nota renunciation of the right. Acts of Majority of co-
Requires the consent of other co-owners administration owners
because it is a case of dacion en pago Improvement/ Majority of co-
(cessation of rights) involving expenses and Embellishing the owners
taxes already paid. [J.B.L. Reyes] Thing/ Useful
expenses
Cannot renounce his share if it will be
prejudicial to another co-owner.
H. TERMINATION OR

G.2. REPAIRS FOR PRESERVATION EXTINGUISHMENT


First, notify other co-owners, as far as H.1. TOTAL DESTRUCTION OF THING OR
practicable. LOSS OF THE PROPERTY CO-OWNED

Co-owner may advance expenses for Is there still co-ownership if a building is


preservation even without prior consent; he destroyed? Yes, over the land and the
is entitled to reimbursement. debris.

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H.2. MERGER OF ALL INTERESTS IN ONE Action for partition will determine:
PERSON
(1) Whether or not the plaintiff is indeed a
co-owner of the property
H.3. ACQUISITIVE PRESCRIPTION (2) How the property will be divided
between the plaintiff and defendant.
By whom
(1) A third person. [NCC 1106]
Effects of Partition
(2) A co-owner against the other co-owners.
(1) Confers exclusive ownership of the
Requisites for acquisitive prescription
property adjudicated to a co-heir.
against co-owners [Adille v CA (1988)]:
(2) Co-heirs shall be reciprocally bound to
(1) A co-owner repudiates the co-ownership warrant the title to and the quality of
by executing unequivocal acts of each property adjudicated.
repudiation leading to ouster of other co-
owners; (3) Reciprocal obligation of warranty shall
be proportionate to the respective
(2) The act of repudiation is clearly made hereditary shares of co-heirs.
known to other co-owners;
(4) An action to enforce warranty must be
(3) The evidence thereon is clear and brought within 10 years from the date
conclusive; and the right accrues.
(4) The co-owner has been in possession (5) The co-heirs shall not be liable for the
thru open, continuous, exclusive and subsequent insolvency of the debtor of
notorious possession of the property for the estate.
the period required by law.
N.B.: there is a presumption that
possession of a co-owner is not adverse Rights against individual co-owners in
case of partition [NCC 497]
Registration under the Torrens system is
constructive notice of title but is not The creditors are allowed to take part in the
sufficient notice of the act of repudiation. partition.
[Adille v CA (1988)] Reason for the rule: They own part of the
interest of the co-owners who made the
assignment or alienation.
H.4. PARTITION OR DIVISION
Procedure for Partition
Intervention of creditors and assignees
Governing rule: Rule 69 of the Rules of
Court. General Rule: Creditors may take part in
the division. They need to establish the
How: By agreement of parties or by judicial existence of the credit during co-ownership.
decree.
Form: Oral or Written (Statute of Frauds
does not operate here because it is not a Exception: If the partition was already
conveyance of property but a mere executed, they cannot impugn partitiion
segregation or designation of which parts Exception to the exception: If there was
belong to whom) fraud, or a previous formal opposition to
The Rules of Court do not preclude prevent the partition, without prejudice to
agreements or settlements. right of debtor/assignor to maintain its
validity.

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Rules on
assignees:
notice to creditors and
VII. Possession
(1) The law does not expressly require The holding of a thing or the enjoyment of a
previous notice to the creditors and right. [NCC 523]
assignees before a partition, but the
latter have the right of creditors and
assignees to take part in the division. A. CONCEPT OF POSSESSION
(2) If notice is not given, the partition may To possess, in a grammatical sense, means
be impugned by creditor/assignee if to have, to physically and actually occupy a
made in fraud of creditors. thing, with or without right. [Sanchez
(3) Once notice has been given, it is the duty Roman]
of creditors and assignees to intervene It is the holding of a thing or a right,
and make known their stand. whether by material occupation or by the
(a) If they fail, they cannot question the fact that the thing or the right is subjected
division made, except in cases of to the action of our will. [Manresa]
fraud. Possession includes the idea of occupation.
(b) If they formulate a formal question, It cannot exist without it. (Exceptions: NCC
they can contest such partition 537)
Right of possession Right to possess
Partition of an indivisible thing (NCC 498) (jus possessionis) (jus possidendi)
Independent right Incident to
1st option: The co-owners can agree that one ownership
of them shall be the sole owner by paying
the value of other co-owners shares
B. ESSENTIAL REQUISITES OF
2nd option: If they cannot agree who among
POSSESSION
them shall be sole owner, the property will
be sold to a 3rd person and the proceeds Corpus possessionis: Holding (actual or
distributed among them. constructive) of a thing or exercise of a right,
if right is involved.
Possession and cultivation of a portion of a
tract under claim of ownership of all is a
constructive possession of all, if the
remainder is not in adverse possession of
another [Ramos v. Director of Lands (1918)];
or the land area is so big that it is
impossible that there are no adverse
possessors.
Doctrine of constructive possession applies
when the possession is under title calling
for the whole. It does not apply where
possession is without title.
N.B. To apply the doctrine, intention to
possess must be proved.

Animus possidendi: Intention to possess

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There is no possession if the holder does not This is possession that springs from
want to exercise the rights of a possessor. ownership.
Implied from the acts of the possessor. Actually, jus possidendi not just jus
possessionis.
May be contradicted and rebutted by
evidence to prove that the person who is
in possession does not in fact exercise
power or control and does not intend to do D. CASES OF POSSESSION
so.
D.1. POSSESSION FOR ONESELF, OR
POSSESSION EXERCISED IN ONES OWN
C. DEGREES OF POSSESSION NAME AND POSSESSION IN THE NAME
Mere holding or possession without title OF ANOTHER [NCC 524]
and in violation of the right of the owner
In ones own name the fact of possession
Possession of a thief or usurper of land and the right to such possession is found in
the same person.
Here, both the possessor and the public
know that the possession is wrongful. In the name of another the one in actual
possession is without any right of his own,
but is merely an instrument of another in
Possession with juridical title but not that the exercise of the latters possession.
of ownership
e.g. possession of a tenant, depository
D.2. POSSESSION IN THE CONCEPT OF
agent, bailee trustee, lessee, antichretic
AN OWNER, AND POSSESSION IN THE
creditor.
CONCEPT OF A HOLDER WITH THE
This possession is peaceably acquired. OWNERSHIP BELONGING TO ANOTHER
[NCC 525]
This degree of possession will never ripen
into full ownership as long as there is no Possession in Concept of Holder
repudiation of concept under which
One who possesses as a mere holder, not in
property is held.
the concept of owner, acknowledges in
another a superior right which he believes
to be ownership, whether his belief be right
Possession with just title or title sufficient
or wrong. He is also a possessor under the
to transfer ownership, but not from the
second degree of possession.
true owner
e.g. tenant, usufructuary, borrower in
e.g. possession of a vendee from a vendor
commodatum.
who pretends to be the owner.
This degree of possession ripens into full
ownership by lapse of time. Possession in Concept of Owner
Period of acquisitive prescription will May be exercised by the owner himself or
depend upon good/bad faith of possessor. one who claims to be so.
Possessor is a possession in the concept of When a person claims to be the owner of a
owner. thing, whether he believes so or not, acting
as an owner, and performing acts of
ownership, and he is or may be considered
Possession with a just title from the true as the owner by those who witness his
owner exercise of proprietary rights, then he is a
possessor in the concept of owner. This is

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the kind of possession that ripens into Error in the application of the law, in the
ownership under Article 540, when such legal solutions that arise from such
possession is public, peaceful and application, in the appreciation of legal
uninterrupted. [see Art. 1118]. consequence of certain acts, and in the
interpretation of doubtful or difficult
provisions or doctrines, may properly serve
Effects of Possession in Concept of an as basis for good faith.
Owner
(1) Converted into ownership by the lapse of
Possessor in bad faith one who knows
time necessary for prescription.
his title is defective.
(2) Possessor can bring all actions necessary
to protect his possession, availing Only personal knowledge of the flaw in the
himself of any action which an owner can title or mode of acquisition can make him a
bring, except accion reivindicatoria which possessor in bad faith for bad faith is not
is substituted by accion publiciana. transmissible from one person to another.
(3) He can ask for the inscription of Mistake or ignorance of the law, by itself,
possession in the registry of property. cannot become the basis of good faith.
What makes the error or ignorance a basis
(4) Upon recovering possession from one
of good faith is the presence of an apparent
who has unlawfully deprived him of it, he
doubt or difficulty in the law. In other
can demand fruits and damages.
words, the law is complex, ambiguous, or
(5) He can do on the thing possessed vague such that it is open to two or more
everything that the law authorizes an interpretations.
owner to do; he can exercise the right of
pre-emption and is entitled to the When the ignorance of the law is gross and
indemnity in case of expropriation. inexcusable, as when a person of average
intelligence would know the law, such
ignorance cannot be the basis of good faith.
D.3. POSSESSION IN GOOD FAITH AND Otherwise, the intendment of Article 3
POSSESSION IN BAD FAITH [NCC 526] which states that, Ignorance of the law
excuses no one from compliance
POSSESSOR IN GOOD FAITH therewith, will be defeated.
one who is not aware that there exists in his
title or mode of acquisition any flaw or
defectwhich invalidates his title or mode of What Things May be Possessed [NCC 530]
acquisition. Only things and rights which are
Good faith consists in the possessors susceptible of being appropriated may be
belief that the person from whom he the object of possession.
received a thing was the owner of the same
and could convey his title.
What May Not Be Possessed by Private
It implies freedom from knowledge and Persons
circumstances which ought to put a person
on inquiry. (1) Res Communes
The belief of a possessor that he is the (2) Property of Public Dominion
owner of the thing must be based upon the (3) Right under discontinuous and/or
title or mode of acquisition, such as a sale, a non-apparent easement
donation, inheritance or other means of
transmitting ownership; for without this,
there can be no real, well-grounded belief
of ones ownership.

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E. ACQUISITION OF POSSESSION Examples: Donations; Succession;


Contracts (like a sale with right to
E.1. WAYS OF ACQUIRING POSSESSION repurchase); Judicial possession; Execution
[NCC 531] of judgments; Execution and registration of
By material occupation public instruments; Inscription of
possessory information titles.
Material occupation used in its ordinary
meaning and not in its technical meaning The execution of the required formalities is
under NCC 712, which defines occupation as equivalent to delivery of the property.
a mode of acquiring ownership. E.2. BY WHOM MAY POSSESSION BE
Possession acquired by material occupation ACQUIRED [NCC 532]
is only possession as a fact, not the legal (1) By the same person
right of possession.
(2) By his legal representative
Constructive delivery is considered as an
equivalent of material occupation in two (3) By his agent
situations where such occupation is (4) By any person without any power
essential to the acquisition of possession: whatsoever but subject to ratification,
without prejudice to proper case of
(1) Tradicion brevi manu takes place when negotiorum gestio [Arts. 2144, 2149, 2150]
one who possesses a thing by title other
than ownership, continues to possess (5) By his legal representative
the same under a new title, that of (6) Qualifiedly, minors and incapacitated
ownership. persons [NCC 535]
(2) Tradicion constitutum possessorium (a) Incapacitated all those who do not
takes place when the owner alienates have the capacity to act (insane,
the thing, but continues to possess the lunatic, deaf-mutes who cannot read
same under a different title. and write, spendthrifts and those
under civil interdiction).
By subjection to the action of ones will (b) Object of possession things only,
not rights.
This mode refers more to the right of (c) Method of acquisition material
possession than to possession as a fact. The occupation; acquisition by means for
action of our will must be juridical, in the which the incapacitated person has
sense that it must be according to law. the capacity, such as acquisition by
It includes: succession, testate or intestate, or by
donations propter nuptias, pure and
(1) Tradicion symbolica by delivering some
simple donations.
object or symbol placing the thing under
the control of the transferee, e.g. keys to
a warehouse includes contents thereof. F. WHAT DO NOT AFFECT
(2) Tradicion longa manu by the transferor POSSESSION [NCC 537]
pointing out to the transferee the things
that are being transferred.
F.1. ACTS MERELY TOLERATED
By execution of proper acts under legal Those which because of neighborliness or
formalities familiarity, the owner of property allows
another person to do on the property;
This mode refers to juridical acts or the
acquisition of possession by sufficient title Those services or benefits which ones
evidenced by the performance of required property can give to another without
formalities. material injury or prejudice to the owner,

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who permits them out of friendship or intimidation for more than one year, he
courtesy; becomes a de jure possession.
Permissive use merely tolerated by the
possessor cannot affect possession and
cannot be the basis of acquisitive RULES TO SOLVE CONFLICTS OF
prescription. Possession to constitute the POSSESSION [NCC 538]
foundation of prescriptive right must be General Rule: Possession cannot be
possession under claim of title; it must be recognized in two different personalities,
adverse. [Cuaycong v. Benedicto (1918)] except in cases of co-possession by co-
F.2. ACTS EXECUTED possessors without conflict of claims or
interest.
CLANDESTINELY AND WITHOUT THE
KNOWLEDGE OF THE POSSESSOR In case of conflicting possession
[NCC 1108] preference is given to:
Possession nby oissessor is not affected as (1) Present possessor or actual possessor;
long as it remains clandestine and (2) If there are two or more possessors, the
unknown. Possession has to be in the one longer in possession;
concept of an owner, public, peaceful and (3) If the dates of possession are the same,
uninterrupted.
the one who presents a title; or
(4) If all conditions are equal, the thing shall
F.3. ACTS OF VIOLENCE AS LONG be placed in judicial deposit pending
AS THE POSSESSOR OBJECTS determination of possession or
ownership through proper proceedings.
THERETO [NCC 536]
Possession cannot be acquired through
force or intimidation as long as there is a G. EFFECTS OF POSSESSION
possessor who objects thereto. This
includes forcibly taking away the property
from another, and also when one occupied G.1. RIGHTS OF A POSSESSOR IN GOOD
the property in the absence of another, and FAITH
repels the latter upon his return. (1) Right to be protected and respected in
Possessor must file a case of forcible entry if possession; (NCC 539)
property is an immovable, and replevin if (2) Right to bring action to restore
property is a movable. possession;
He who believes that he has an action or a (3) Right to the fruits already received;
right to deprive another of the holding of a (4) (NCC. 544)
thing must invoke the aid of a competent
court, if holder refuses to deliver the thing (5) At the time good faith possession
(NCC 536). ceases, he has the right to a part of
cultivation expenses and to a part of net
fruits in proportion to time of possession
Effect on Possession (NCC. 545)

Acts mentioned do not constitute true (6) Right to necessary expenses; (NCC. 546)
possession. They do not interrupt the period (7) Right to retain the thing until
of prescription nor affect the rights to the reimbursed; (NCC. 546)
fruits. (8) Right to remove useful improvements
N.B.: If a deforciant succeeds in remaining removable without damage to the
in possession through force and principal thing or to refund its value;
(upon election by the owner) (NCC. 547)

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(9) Right to recover removable ornaments Reimburse the value of fruits received and
unless owner opts to buy them (NCC. which the legitimate possessor could
548) receive; (NCC 549)
Pay in proportion to the charges, expenses
G.2. OBLIGATIONS OF A POSSESSOR IN of cultivation and the net proceeds upon
GOOD FAITH cessation of good faith; (NCC 545)

(1) Pay in proportion to the charges, Costs of litigation; (NCC 550)


expenses of cultivation and the net Liability to the deterioration/loss of a thing
proceeds upon cessation of good faith; possessed in every case, including
(NCC 545) fortuitous events. (NCC 552)
The owner of the thing may give the
possessor in good faith the right to finish
the cultivation and gathering of the G.5. RIGHT TO BE PROTECTED IN HIS
growing fruits, as an indemnity for his POSSESSION [NCC 539]
part of the expenses of cultivation and
the net proceeds. The possessor in good Every possessor has a right to be respected
faith who refuses to accept this in his possession; if disturbed, possessor
concession shall lose the right to be has a right to be protected in or restored to
indemnified in any other manner. said possession.
(2) Costs of litigation; (NCC 550) Every possessor includes all kinds of
possession, from that of an owner to that of
(3) Liability to the deterioration/loss of a
a mere holder, except that which
thing possessed if acted through
constitutes a crime
fraudulent intent/negligence after the
judicial summons. (NCC 552) Reason for the rule: To prevent anyone
from taking the administration of justice
into his own hands. Even the owner cannot
G.3. RIGHTS OF A POSSESSOR IN BAD forcibly eject the possessor, but must resort
FAITH to the courts.
(1) Right to be respected in possession;
(NCC 539)
RULES
(2) Right to necessary expenses and the
expenses for production, gathering, and (1) Lawful possessor can employ self-help
preservation of fruits; (NCC. 545 and (NCC 429)
546) (2) To consolidate title by prescription, the
Does not have right to reimbursement of possession must be under claim of
expenses for luxury but may remove ownership, and it must be peaceful,
them as long as the principal thing public and uninterrupted.
suffers no injury, or may sell them to the (3) Acts of possessory character done by
owner who opts to buy the removable virtue of a license or mere tolerance by
ornaments. the real owner are not sufficient and will
No right to reimbursement for useful not confer title by prescription or adverse
improvements and no limited right of possession.
removal. (a) Possession of real property presumes
possession of the movables therein
(NCC 542);
G.4. OBLIGATIONS OF A POSSESSOR IN (b) Each co-owner is deemed to have
BAD FAITH exclusive possession of the part which
may be allotted to him upon the

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division, for the entire period during increase in value which the thing may have
which the co-possession lasted. acquired by reason thereof.
(4) Interruption in the possession of the Bad faith possessor has no limited right of
whole or a part of a thing possessed in removal.
common shall be to the prejudice of all
the possessors. (NCC 543)
H.3. EXPENSES FOR LUXURY
H. REIMBURSEMENT FOR EXPENSES They do not affect the existence or the
POSSESSOR IN GOOD/BAD FAITH substance of the thing itself, but only the
[NCC 546-552] comfort, convenience or enjoyment of the
possessor.
They are not the subject of reimbursement,
H.1. NECESSARY EXPENSES because the law does not compensate
(1) Imposed by the thing itself for its personal whims or caprices, e.g. Opening of
preservation and has no relation to the a garden, placing fountains and statues in
desire or purpose of the possessor. it, adorning the ceilings with paintings, and
the walls with reliefs.
(2) They are the cost of living for the thing
and must be reimbursed to the one who Bad faith possessor has no right of
paid them, irrespective of GF or BF. reimbursement but has limited right of
removal, where owner has the option to buy
Only the possessor in GF may retain the removable ornament.
thing until he has been reimbursed
therefor.
(3) The expenses are not considered Notes
improvements; they do not increase the (1) Costs of litigation over the property shall
value of the thing, but merely prevent be borne by every possessor. [NCC 550]
them from becoming useless.
(2) Improvements caused by nature or time
(4) A possessor in bad faith is entitled to shall always inure to the benefit of the
reimbursement for necessary expenses person who has succeeded in recovering
but without right of retention. possession [NCC 551]
Includes all the natural accessions referred
H.2. USEFUL EXPENSES to by articles 457-465, and all those that do
not depend upon the will of the possessor.
Incurred to give greater utility or (e.g. widening of the streets, rising of
productivity to the thing, e.g. Wall fountains of fresh or mineral water, increase
surrounding an estate, an irrigation system, of foliage of trees)
planting in an uncultivated land, a
fishpond, an elevator in the building,
electric lighting system
Possessor in GF Possessor in BF
They are reimbursed only to the possessor
in GF as a compensation or reward for him. Fruits Received
A possessor in BF cannot recover such Must reimburse the
expenses. legitimate possessor
Entitled to the fruits
If the useful improvements can be removed for fruits received or
while possession is in
without damage to the principal thing, the could have been
GF and before legal
possessor in good faith may remove them, received, less
interruption (544)
unless the person who recovers the expenses under Art.
possession refunds the expenses or pays the 443 (549)

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Possessor in GF Possessor in BF Possessor in GF Possessor in BF


Pending Fruits Ornamental Expenses
Entitled to part of the Limited right of Limited right of
expenses of removal (548) removal (549)
cultivation, and to a Deterioration or Loss
part of the net
harvest, in proportion No liability unless
to the time of the due to fraud or
Goes to the negligence after Liable in every case
possession.
legitimate possessor becoming in BF after (552)
who recovers service of summons
Indemnity may be, at
possession (549) (552)
the owners option,
1. In money, OR Costs of Litigation
2. By allowing full
cultivation and Bears cost (550) Bears cost (550)
gathering of the fruits
(545) I. LOSS OR UNLAWFUL DEPRIVATION
Charges OF A MOVABLE PROPERTY
Must share with the
legitimate possessor,
Same as with GF I.1. POSSESSION OF MOVABLE
in proportion to the
(545) ACQUIRED IN GOOD FAITH (IN CONCEPT
time of the
possession (545) OF OWNER) IS EQUIVALENT TO TITLE
[NCC 559]
Necessary Expenses
Possessor has actual title which is
Right to defeasible only by true owner.
reimbursement and Reimbursement only
retention in the (546) REQUISITES OF TITLE
meantime (546) (1) Possession in GF;
Useful Expenses (2) The owner has voluntarily parted with
Right of retention the possession of the thing; and
until reimbursed; (3) The possession is in the concept of an
Owners option to owner.
reimburse him either Nevertheless, one who has lost any movable
for expenses or for
or has been unlawfully deprived thereof
increase in value may recover it from the person in
which the thing may
No right to possession.
have acquired (546)
reimbursement and When the owner can recover
no right of removal
Limited right of (1) Has lost the thing; or
(547)
removal should not
damage principal and (2) Has been unlawfully deprived thereof.
owner does not (3) Includes swindling, not only theft or
exercise option of robbery
paying the expenses If the current possessor has acquired it in
or increase in value good faith at a public sale, owner must
(547) reimburse the price paid in order to recover
the property.

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I.2. PERIOD TO RECOVER [NCC 1140, 1132, J. EFFECTS OF POSSESSION IN THE


1133] CONCEPT OF AN OWNER
Actions to recover movable properties General Rule: Possession may lapse and
prescribe after 8 years from the time the ripen into full ownership. Possession in the
possession thereof is lost, unless the concept of owner has in his favor the
possessor has acquired the ownership by presumption that he has just title and he
prescription for a lesser period. cannot be obliged to show or prove it; but
Ownership of movable properties prescribes not for purposes of acquisitive prescription.
through uninterrupted possession for 4 [NCC 541] For purposes of prescription, just
years in good faith. title must be proved; it cannot be
presumed. (NCC 1131)
Ownership of personal property also
prescribes through uninterrupted Basis: Possession presumes ownership,
possession for 8 years, without need of any unless the contrary is proved.
other condition. Just title: that which is legally sufficient to
Movable properties possessed through a transfer the ownership or the real right to
crime can never be acquired through which it relates.
prescription by offender (NCC 1133). For the purposes of prescription, there is
I.3. FINDER OF LOST MOVABLE [NCC 719- just title when the adverse claimant came
720] into possession of the property through one
of the modes recognized by law for the
(1) Whoever finds a movable, which is not a acquisition of ownership or other real rights,
treasure, must return it to its previous but the grantor was not the owner or could
possessor. not transmit any right. [NCC 1129]
(2) If the previous possessor is unknown, the Exception: For the purposes of
finder shall immediately deposit it with prescription, just title must be proved; it is
the mayor of the city or municipality never presumed. [NCC 1131]
where the finding has taken place.
(1) Possessor may bring all actions
(3) The finding shall be publicly announced
necessary to protect his possession
by the mayor for two consecutive weeks
except accion reivindicatoria.
in the way he deems best.
(2) May employ self-help under Art. 429.
(4) If the movable cannot be kept without
deterioration, or without expenses which (3) Possessor may ask for inscription of such
considerably diminish its value, it shall real right of possession in the registry of
be sold at public auction 8 days after the property.
publication. (4) Has right to the fruits and
(5) 6 months from the publication having reimbursement of expenses (assuming
elapsed without the owner having he is possessor in good faith)
appeared, the thing found, or its value, (5) Upon recovery of possession which he
shall be awarded to the finder. The was unlawfully deprived of, may demand
finder and the owner shall be obliged, as fruits and damages.
the case may be, to reimburse the
(6) Generally, he can do on the things
expenses.
possessed everything that the law
(6) If the owner should appear in time, he authorizes the owner to do until he is
shall be obliged to pay, as a reward to ousted by one who has a better right.
the finder, 1/10 of the sum or of the price
(7) This is whether possession is in good
of the thing found.
faith or in bad faith [NCC. 528]

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PRESUMPTION IN FAVOR OF THE If the natural interruption is for only one


POSSESSORFOR ACQUISITIVE year or less, the time elapsed shall be
PRESCRIPTION counted in favor of the prescription [NCC
1122]
Of good faith until contrary is proved
Civil interruption is produced by judicial
Presumption is only juris tantum because summons to the possessor. [NCC 1123]
possession is the outward sign of
ownership. Unless such proof of bad faith is Judicial summons shall be deemed not to
presented, the possessor will be held to be have been issued and shall not give rise to
in good faith. [NCC 527] interruption [NCC 1124]:

So long as the possessor is not actually (1) If it should be void for lack of legal
aware of any defect invalidating his title, he solemnities;
is deemed a possessor in good faith. (2) If the plaintiff should desist from the
complaint or should allow the
Of continuity of initial good faith in which
proceedings to lapse;
possession was commenced; possession in
good faith does not lose this character (3) If the possessor should be absolved from
except in case and from the moment the complaint
possessor became aware or is not unaware In all these cases, the period of the
of improper or wrongful possession [NCC interruption shall be counted for the
528] prescription
Non-interruption of possession of property
Good faith ceases from the date of the unjustly lost but legally recovered [NCC.
summons to appear at the trial if 561]
defendant/possessor loses the case.
[Cordero v Cabral (1983)]
Other presumptions with respect to specific
Good faith ceases when there is: properties of property rights
(1) Extraneous evidence; or (1) Of extension of possession of real
(2) A suit for recovery of the property by the property to all movables contained
true owner. therein so long as in is not shown that
they should be excluded (NCC 542)
Of enjoyment of possession in the same
character in which possession was (2) Non-interruption of possession of
acquired until the contrary is proved [NCC hereditary property (NCC 553)
529] (a) Possession of hereditary property is
Of non-interruption of possession in favor deemed transmitted to the heir
of present possessor who proves without interruption and from the
possession at a previous time until the moment of the death of the decedent
contrary is proved [NCC 554] (3) Of just title in favor of possessor in
concept of owner (NCC 541)
Possession is interrupted for the purposes
of prescription, naturally or civilly. [NCC (4) Exclusive Possession of Common
1120] Property (NCC. 543)
Possession is naturally interrupted when (5) Present possessor may tack his
through any cause it should cease for more possession to that of his grantor or
than one year [NCC 1121] predecessor in interest (NCC 1138 (1))

Old possession is not revived if a new


possession should be exercised by the same
adverse claimant [NCC 1121]

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K. LOSS/TERMINATION OF After 1 year, the actions for forcible entry


POSSESSION [NCC 555] and unlawful detainer can no longer be
brought. But accion publiciana may still be
(1) By the abandonment of the thing; instituted to recover possession de jure.
(2) By an assignment made to another
either by onerous or gratuitous title;
(3) By the destruction or total loss of the L. RULES FOR LOSS OF MOVABLES
thing, or because it goes out of The possession of movables is not deemed
commerce; lost so long as they remain under the
(4) By the possession of another, subject to control of the possessor, even though for
the provisions of Art. 537, if the new the time being he may not know their
possession has lasted longer than 1 year. whereabouts. (NCC 556)
But the real right of possession is not Control judicial control or right, or that
lost till after the lapse of 10 years. the thing remains in ones patrimony.
Wild animals are possessed only while they
K.1. ABANDONMENT are under one's control. (NCC 560)
Includes the giving up of possession, and Domesticated or tamed animals if they
not necessarily of ownership by every retain the habit of returning to the premises
possessor. of the possessor.
It is the opposite of occupation. It consists of
the voluntary renunciation of all the rights
which the person may have in a thing, with M. KINDS OF ANIMALS
intent to lose such a thing. To be effective, it WILD OR FERAL
is necessary that it be made by a possessor
in the concept of an owner. those which live naturally independent of
man.
It must clearly appear that the spes
recuperandi is gone and the animus TAMED
revertendi is finally given up. those which, being wild by nature, have
K.2. ASSIGNMENT, EITHER GRATUITOUS become accustomed to recognize the
OR ONEROUS authority of man. When they observe this
habit of returning to the place which the
Complete transmission of ownership rights possessor keeps them, they are placed in
to another person, gratuitously or the same category as domestic and when
onerously. they lose it, they are considered as wild.
DOMESTIC
K.3. POSSESSION BY ANOTHER those which are born and reared ordinarily
Acts merely tolerated, and those executed under the control and care of man; they are
clandestinely and without the knowledge of under the ownership of man, and do not
the possessor of a thing, or by violence, do become res nullius unless they are
not affect possession. abandoned.

Possession that is lost here refers only to


possession as a fact (de facto), not the legal Note: Some abandoned domestic animals
right of possession (de jure). It is the like cats, horses, goats may become wild or
possession that the new possessor acquires. feral.
Real right of possession is lost only after 10
years.

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VIII. Usufruct (3) Preservation is a natural requisite, not


essential because the title constituting
Usufruct is a temporary real right which it or the law may provide otherwise.
gives a right to enjoy the property as well as
its fruits of another with the obligation of (4) Reasons for preserving form and
preserving its form and substance, unless substance
the title constituting it or the law otherwise (a) To prevent extraordinary
provides. [NCC 562] exploitation;
(b) To prevent abuse, which is frequent;
A. OBJECTS OF USUFRUCT (c) To prevent impairment.
INDEPENDENT RIGHTS Exception: In an abnormal
A servitude which is dependent on the usufruct, alteration is allowed.
tenement to which it attaches cannot be the
object of usufruct. (5) Usufruct is extinguished by the death of
the usufructuary.
(6) Natural because a contrary intention
THINGS may prevail.
Non-consum able things.
Consumable things, but only as to their
value if appraised, or on an equal quantity C. CLASSIFICATION
and quality if they were not appraised. C.1. BY ORIGIN
i. Voluntary: created by the will of private
Unproductive things persons

e.g. sterile or absolutely unproductive land, (1) By act inter vivos such as contracts and
or things for mere pleasure, such as donations:
promenades, statues or paintings, even if (2) By donation of the usufruct;
they do not produce any utility.
(3) By retention of the usufruct by donor;
(4) Where a usufruct is constituted inter
B. CHARACTERISTICS vivos and for valuable consideration, the
contract is unenforceable unless in
(1) It is a real right;
writing;
(2) Of temporary duration;
(5) By act mortis causa such as
(3) The purpose is to derive all advantages testament.
from the thing due to normal
exploitation.
ii. Legal: as provided by law.
Usufruct of parents over the property of
B.1. NATURAL CHARACTERISTICS unemancipated children. (now limited to
(1) Includes only the right to use them (jus the collective daily needs of the family) [FC
utendi), the right to own the fruits (jus 26]
fruendi) and the right to possess (jus
possidendi). iii. Mixed: created both by law and the
(2) Usufructuary must preserve the form or acts of persons, i.e. by acquisitive
substance of the thing. prescription.

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The rights and duties of the usufructuary Usufruct over a real right is by itself a real
provided by law may be modified or right.
eliminated by the parties.
Right to receive present or future support
The title constituting the usufruct may cannot be the object of the usufruct.
validly authorize the usufructuary to
alienate the thing itself held in usufruct.
ii. Things
If the usufructuary is authorized to alienate
the thing in case of necessity, it is the Normal: involves non-consummable
usufructuary who determines the question things where the form and substance are
of necessity. preserved.
Abnormal or irregular: when the
usufruct includes things which cannot be
C.2. BY PERSON ENJOYING THE RIGHT
used in a manner appropriate to its nature
OF USUFRUCT
without being consumed.
i. Simple: only one usufructuary enjoys the
The usufructuary has right to make use of
property.
them under the obligation of paying their
ii. Multiple: several usufructuaries enjoy appraised value at the termination of the
the property as co-usufructuaries. usufruct, if they were appraised when
delivered.
iii. Sim ultaneous: at the same time.
If they were not appraised, he has the right
iv. Successive: one after the other.
to return the same quantity and quality, or
pay their current price at the time the
usufruct ceases. [NCC 574]
Lim itations On Successive Usufruct
In reality, the usufruct is not upon the
(1) If usufruct is by donation, ALL donees
consumable things themselves, but upon
must be alive. [NCC 756]
the sum representing their value or upon a
(2) Fiduciary or first heir and the second quantity of things of the same kind and
heir must be alive at the time of the quality.
death of the testator. [NCC 863]
The usufructuary, in effect, becomes the
(3) If by testamentary succession, there owner of the things in usufruct, while the
must be only 2 successive grantor becomes a mere creditor entitled to
usufructuaries, and both must be alive the return of the value or of the things of the
or at least already conceived at the time same quantity and quality (as if converted
of the testators death and later born into a simple loan).
alive. [NCC 869]
Example: Usufruct over sterile animals (NCC
591, par. 4).
C.3. BY OBJECT OF USUFRUCT
Usufruct may be constituted on the whole iv. Quasi-usufruct [NCC 574; Bar
or a part of the fruits of the thing or on a 1998]
right, provided it is not strictly personal or
Includes things which cannot be used
intransmissible. [NCC 564]
without being consumed.
Money may be the object of usufruct
i. Rights [Alunan v. Veloso, 52 Phil 545]
Must not be strictly personal or
intransmissible.

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C.4. BY THE EXTENT OF THE USUFRUCT D. RIGHTS AND OBLIGATIONS OF


i. At to the Fruits USUFRUCTUARY
Total: all consumed by the usufruct.
Partial: only on certain aspects of the D.1. RIGHTS AS TO THE THING AND ITS
usufructs fruits. FRUITS
(1) Right to enjoy the property

ii. As to the Object (2) Right to enjoy the property to the same
extent as the owner, but only with
Singular: only on particular property of respect to its use and the receipt of its
the owner. fruits.
Universal: pertains to the usufruct over (3) Usufructuary cannot extract products
universal property, i.e. over an entire which do not constitute fruits because
patrimony, a while inheritance of a he is bound to preserve the form and
compulsory heir, a dowry; substance of the thing.
A universal usufructuary must pay the debts (4) Usufructuary rights may be transferred,
of the naked owner, if stipulated. Article assigned or otherwise disposed of by
758 and 759 on donations apply. the usufructuary.
(5) Not exempt from execution and can be
sold at public auction.
NCC 758: When the donation imposes upon
the donee the obligation to pay the debts of
the donor, if the clause does not contain any HIDDEN TREASURE
declaration to the contrary, the former is
understood to be liable to pay only the As to hidden treasure, usufructuary is
debts which appear to have been previously considered a stranger without a right to a
contracted. In no case shall the donee be share, unless he is also the finder of the
responsible for the debts exceeding the treasure
value of the property donated, unless a With respect to hidden treasure which may
contrary intention clearly appears. be found on the land or tenement, he shall
be considered a stranger.
Hidden treasure belongs to the owner of the
NCC 759: There being no stipulation
land, building, or other property on which it
regarding the payment of debts, the donee
is found.
shall be responsible therefor only when the
donation has been made in fraud of Nevertheless, when the discovery is made
creditors. on the property of another, or of the State or
any of its subdivisions, and by chance, one-
half thereof shall be allowed to the finder.
The donation is always presumed to be in
fraud of creditors, when at the time thereof
the donor did not reserve sufficient property
to pay his debts prior to the donation.

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i. Right to fruits pending at the interest on bonds or securities payable to


beginning of usufruct bearer, each payment due shall be
considered as the proceeds or fruits of such
Fruits pending at Fruits pending at right.
the beginning of the termination of
the usufruct the usufruct Whenever it consists in the enjoyment of
benefits accruing from a participation in any
Belong to the Belong to the naked industrial or commercial enterprise, the
usufructuary owner date of the distribution of which is not fixed,
such benefits shall have the same
Without need to The owner shall character.
reimburse the reimburse to the
expenses to the usufructuary ordinary If the usufruct is constituted only on the
land and not the building built thereon then
owners cultivation expenses
from the proceeds of the right to the fruits by the usufructuary
would not extend to the building. The
the fruits (not to
exceed the value of building is considered as a separate and
distinct prinicipal which produces its own
the fruits)
fruits. [Gabuya v Cui (1971)]
Without prejudice to Rights of innocent 3rd Right to enjoy any increase through
the right of 3rd parties should not be accessions and servitudes, including
persons e.g. if the prejudiced. products of hunting and fishing.
fruits arose by
building, planting,
sowing by a iii. Right to lease the thing
possessor in good
faith, the pending General rule: The usufructuary may lease
crop expenses of the thing to another but this shall terminate
cultivation and of the upon the expiration of the usufruct, saving
net harvest and leases of rural lands, which shall be
charges shall be considered as subsisting during the
prorated between agricultural year, i.e. the period from
said possessor and planting to harvesting of one crop.
the usufructuary in Exceptions
proportion to the
time of possession (1) Legal usufructs cannot be leased.
(NCC 545) (2) Caucion juratoria (lease would show
N.B. In the case of that the usufructuary does not need the
civil fruits, no need to property badly).
prorate, as civil fruits (3) Usufruct is purely personal, e.g. title
accrue daily [NCC creating usufruct provides that
544] usufructuary shall personally use and
enjoy the property given in usufruct.

ii. Right to civil fruits


Effect of the transfer of right:
Civil fruits deemed to accrue daily, and
belong to the usufructuary in proportion to The transfer or lease of the usufruct does
the time the usufruct may last. not terminate the relation of the
usufructuary with the owner.
Whenever a usufruct is constituted on the
right to receive a rent or periodical pension, Death of the transferee does not terminate
whether in money or in fruits, or in the the usufruct but it terminates upon the

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death of the usufructuary who made the (b) Cannot renounce a servitude;
transfer.
(c) Cannot mortgage or pledge a thing.
(2) Except:
Rules as to Lease:
(a) When the right of usufruct is
(1) The property in usufruct may be leased converted into the right of
even without the consent of the owner. ownership;
(2) The lease should be for the same period (b) When the things are consumable
as the usufruct. (NCC 574);
EXCEPT: leases of rural lands (c) When the things by their nature are
continues for the remainder of the intended for sale, such as the
agricultural year. merchandise in a commercial
establishment; and
(3) A lease executed by the usufructuary
before the termination of the usufruct (d) When the things, whatever their
and subsisting after the termination of nature, are delivered under
the usufruct must be respected, but the appraisal as equivalent to their sale.
rents for the remaining period will
(3) Future crops may be sold but such sale
belong to the owner.
would be void if usufruct terminates
(4) If the usufructuary has leased the lands prior to harvest of future fruits.
or tenements given in usufruct, and the
The buyers remedy is to recover
usufruct should expire before the
termination of the lease, he or his heirs from the usufructuary.
and successors shall receive only the (4) The usufructuary-lessor is liable for the
proportionate share of the rent that act of the substitute.
must be paid by the lessee. [NCC, 568]
(5) A usufructuary who alienates or leases
his right of usufruct shall answer for any
(5) It is the usufructuary and not the naked damage which the things in usufruct
owner who has the right to choose the may suffer through the fault or
tenant. negligence of the person who
(6) As corollary to the right of the substitutes him. [NCC, 590]
usufructuary to all the rent, to choose (6) A usufructuary can sell or alienate his
the tenant, and to fix the amount of the right of usufruct, apart from the thing
rent, she necessarily has the right to held in usufruct, but the right of
choose herself as the tenant thereof; usufruct remains a temporary real right.
and, as long as the obligations she had
assumed towards the owner are
fulfilled. [Fabie v. Gutierrez David (1945)] iv. Improvements by the
(7) A lease executed by the owner before Usufructuary of the Land [NCC 579]
the creation of the usufruct is not He may improve the thing without altering
extinguished by such usufruct. its form and substance;
He may remove improvements made by him
Lim itations on the Right to Lease if it is possible to do so without damage to
the Property property
(1) Usufructuary cannot do the following:
(a) Cannot alienate or dispose of the v. Usufructuary M ay Set Off
objects included in the usufruct; Improvements [NCC 580]

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(1) The usufructuary may set off the (4) If the improvements cannot be removed
improvements he may have made on without injury, the excess in value
the property against any damage to the accrues to the owner.
same.
(5) Registration of improvements to
Right to improve the thing, but protect usufructuary against 3rd persons
improvement inures to the benefit of the
naked owner [NCC 579]
D.2. RIGHTS AS TO THE LEGAL RIGHT OF
Usufructuary is not entitled to USUFRUCT ITSELF
reimbursement.
(2) Whenever the usufructuary can remove i. Right to m ortgage right of
the improvements without injury to the usufruct
property in usufruct, he has the right to
do so, and the owner cannot prevent The usufructuary may alienate his right of
him from doing so even upon payment usufruct, even by a gratuitous title; but all
of their value. the contracts he may enter into as such
usufructuary shall terminate upon the
This right does not involve an obligation expiration of the usufruct. [NCC. 572]
if the usufructuary does not wish to
exercise it, he cannot be compelled by
the owner to remove the improvements. ii. Does not include parental
usufruct because of personal and
This right to remove improvements can fam ily considerations.
be enforced only against the owner, not
Is there still a personal usufruct? Answer:
against a purchaser in good faith to
No. NCC 321 was amended by FC 226,
whom a clean title has been issued. where there is no more mention of a
(3) Usufructuary may set off the parental usufruct. [Prof. Labitag]
improvements against any damage to Right to alienate the usufruct except in
the property. purely personal usufructs or when title
The improvements should have constituting it prohibits the same.
increased the value of the property, and Parental usufruct is inalienable.
that the damages are imputable to the
usufructuary.
D.3. OBLIGATIONS AT THE BEGINNING
Increase in value and the amount of OF THE USUFRUCT OR BEFORE
damages are set off against each other. EXERCISING THE USUFRUCT

If the damages exceed the increase in (1) To make, after notice to the owner or his
value, the difference should be paid by legitimate representative, an inventory
of all the property, which shall contain
the usufructuary as indemnity. an appraisal of the movables and a
If the increase in value exceeds the description of the condition of the
damages, and the improvements are of immovables; and
such nature that they can be removed (2) To give security, binding himself to
without injury to the thing in usufruct, fulfill the obligations imposed upon him
the settlement of the difference must be in accordance with this Chapter.
agreed upon by the parties. Note: These requirements are not
conditions precedent to the commencement
of the right of the usufruct but merely to the

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entry upon the possession and enjoyment of (3) Gratitude on the donees part demands
the property. that the donor be excused from filing
the bond.
(4) Title constituting usufruct excused
i. To Make An Inventory
usufructuary.
Requisites
(5) A usufructuary may take possession
(1) Immovables must be described; and under a caucion juratoria (bond by oath)
[Art. 587]
(2) Movables must be appraised because
they are easily lost or deteriorated. It is only by way of exception that a
caucion juratoria is allowed, and only
under the special circumstances:
Concurrence of the owner in the making of
the inventory. (a) Proper court petition;
Expenses for the making of the inventory (b) Usufruct is over a house, furniture or
are borne by the usufructuary. tools of a trade and the necessity for
delivery of furniture, implements or
The inventory may be in a private document,
house included in the usufruct;
except when immovables are involved. (a
public instrument is prescribed to affect 3rd (c) Approval of the court; and
persons).
(d) Sworn promise.
Failure to make an inventory does not affect
A usufructuary under this can neither
the rights of the usufructuary to enjoy the
alienate his right nor lease the property,
property and its fruits.
for that would mean that he does not
A prima facie presumption arises that the need the dwelling or the implements
property was received by the usufructuary in and furniture.
good condition.
Even if he is already in possession, he may
Effect of filing a bond
still be required to make an inventory.
Retroactivity: upon giving the security,
the usufructuary will be entitled to all the
Exception to the requirem ent of benefits accruing since the time when he
inventory should have begun to receive them.
When no one will be injured, the
usufructuary may be excused from this
Effect of failure to give bond: [NCC
obligation.
586]
(1) The owner may demand that the
ii. To give a bond for the faithful immovable properties be placed under
perform ance of duties as administration;
usufructuary
(2) That the movable properties be sold
Any kind of sufficient security is allowed, and the proceeds of the sale be the
e.g. cash, personal bond, mortgage. property held in usufruct legal interest
of 6% shall be the fruits;
No bond is required in the following:
(3) That the public bonds, instruments of
(1) No prejudice would result; [Art. 585]
credit payable to order or to bearer be
(2) Usufruct is reserved by a donor; [Art. converted into registered certificates or
584] deposited in a bank or public institution;
and

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(4) That the capital or sums in cash and the ii. To undertake ordinary repairs
proceeds of the sale of the movable
The usufructuary is obliged to make the
property be invested in safe securities.
ordinary repairs needed by the thing given
The owner may, until the usufructuary gives in usufruct. [NCC 592]
security, retain in his possession the
Ordinary repairs:
property in usufruct as administrator,
subject to the obligation to deliver to the (8) Such as are required by the wear and
usufructuary the net proceeds, after tear due to the natural use of the thing
deducting the sums, which may be agreed and are indispensable for its
upon or judicially allowed him for such preservation;
administration.
(9) Deteriorations or defects arise from the
natural use of the thing;
D.4. DURING THE USUFRUCT (10) Repairs are necessary for the
preservation of the thing.
(1) To take care of the thing like a good
father of a family; The usufructuary is bound to pay only for
the repairs made during the existence of the
(2) To undertake ordinary repairs;
usufruct.
(3) To notify owner of need to undertake
If the defects existed already at the time the
extraordinary repairs;
usufruct began, the obligation to defray the
(4) To pay for annual charges and taxes on ordinary repairs falls upon the owner.
the fruits;
If the defects are caused by the ordinary use
(5) To notify owner of any act detrimental of the thing, the usufructuary may exempt
to ownership; himself from making the repairs by
returning to the owner the fruits received
(6) To shoulder the costs of litigation
during the time that the defects took place.
regarding the usufruct; and
Except: When the ordinary repairs are due
(7) To answer for fault or negligence of
to defects caused by the fault of the
alienee, lessee or agent of usufructuary.
usufructuary
If the usufructuary fails to make the repairs
i. To take care of the thing like a even after demand, the owner may make
good father of a fam ily them at the expense of the usufructuary
When damages are caused to the property
by the fault or negligence of the
iii. To notify owner of need to
usufructuary, the naked owner need not
undertake extraordinary repairs
wait for the termination of the usufruct
before bringing the action to recover proper Extraordinary repairs
indemnity.
(1) Those caused by exceptional
The bad use of a thing, which causes circumstances, whether or not they are
considerable injury, entitles the naked necessary for the preservation of the
owner to demand the delivery and thing; or
administration of the thing.
(2) Those caused by the natural use of the
The exercise of this remedy does not thing, but are not necessary for its
extinguish the usufruct. preservation.
He may set off the value of useful General Rule: Naked owner must make
improvements against his liability for the extraordinary repairs.
damages (NCC 580).

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The usufructuary is obliged to pay legal vii. To answer for fault or negligence
interest on the amount while usufruct lasts. of the alienee, lessee or agent of the
usufructuary [NCC 590]
If the extraordinary repairs are
indispensable, and the naked owner fails to The usufructuary is made liable for the acts
undertake them, the usufructuary may of the substitute. While the substitute
make such repairs. answers to the usufructuary, the
usufructuary answers to the naked owner.
Requisites:
(1) There must be due notification to the
naked owner of the urgency if it is not D.5. AT THE TIME OF THE TERMINATION
urgent, there is no obligation to give OF THE USUFRUCT
notice;
To deliver the thing in usufruct to the owner
(2) The naked owner failed to make them; in the condition in which he has received it,
and after undertaking ordinary repairs.
(3) The repair is needed for preservation. Except:
The usufructuary who has made the Abnormal usufruct A thing of the same
extraordinary repairs necessary for kind, quantity and quality is returned; if with
preservation is entitled to recover from the appraised value, must return value
owner the increase in value, which the appraised.
tenement acquired by reason of such works.
Usufructuary may retain, i.e. has a right of
retention, until he is paid. E. SPECIAL CASES OF USUFRUCT

iv. To pay for annual charges and E.1. USUFRUCT OVER A PENSION OR A
taxes on the fruits PERIODICAL INCOME [NCC 570]

It is well settled that a real tax, being a Each payment due shall be considered as
burden upon the capital, should be paid by the proceeds or fruits of such right.
the owner of the land and not by a The usufruct shall be distributed as civil
usufructuary. There is no merit in the fruits.
contention of distinguishing public lands
into alienable and indisposable. All
properties owned by the government, E.2. USUFRUCT OF PROPERTY OWNED
without any distinction, are exempt from IN COMMON [NCC 582]
taxation. [Board of Assessment Appeals of
Zamboanga del Sur v. Samar Mining The usufructuary takes the place of the co-
Company, Inc.(1971)] owner as to:
(1) Management;

v. To notify owner of any act (2) Fruits; and


detrimental to ownership [NCC 601] (3) Interest.

vi. To shoulder the costs of litigation Effect of partition:


regarding the usufruct [NCC 602]
(1) The right of the usufructuary is not
affected by the division of the property
in usufruct among the co-owners.

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(2) After partition, the usufruct is (7) Cut the trees that are not useful.
transferred to the part allotted to the
(8) If a result of a calamity, most trees have
co-owner.
disappeared, usufructuary may leave
dead or uprooted trunks to owner and
demand removal thereof and clear the
E.3. USUFRUCT CONSTITUTED ON A
land.
FLOCK OR HERD OF LIVESTOCK [NCC
591] (9) In tree nurseries, to make necessary
thinnings, so the rest may grow
On sterile stock: same rules on fungible
properly.
property govern. (i.e. it is an abnormal
usufruct may dispose of or consume the
animal [NCC 574]
E.5. USUFRUCT ON A RIGHT OF ACTION
TO RECOVER PROPERTY [NCC 578]
On fruitful stock: The action may be instituted in the
usufructuarys name. As the owner of the
(3) Must replace ordinary losses of the
usufruct, he is properly deemed a proper
stock with the young if:
party-in-interest.
(a) Some animals die from natural
If the purpose is the recovery of the real or
causes; or
personal property or a real right, he is still
(b) Some animals are lost due to required under Art. 578 to obtain the naked
rapacity of beasts of prey. owners authority.
(4) No obligation to replace if: If action brought by usufructuary succeeds
and he recovers property, usufruct is limited
(a) There is a total loss of animals
to the fruits, ownership to the naked owner.
because of some unexpected or
unnatural loss (like contagious If the purpose is to object to or prevent
disease or any other uncommon disturbances over the property, no special
event, provided the usufructuary authority from the naked owner is needed. If
has no fault); or it relates to ownership of property, he must
notify the naked owner.
(b) If all perish, the usufructuary should
deliver the remains to the owner.
There is a partial loss if a part of the stock E.6. USUFRUCT ON MORTGAGED
perishes, the usufruct subsists on the PROPERTY [NCC 600]
remainder.
Usufructuary not obligated to pay the
principal obligation foreclosed, owner is
liable for value of right of usufruct.
E.4. USUFRUCT OVER FRUIT BEARING
TREES AND SHRUBS AND WOODLANDS When the usufruct is universal and some
[NCC 575-577] objects are mortgaged, apply Art. 598.
The usufructuary can: If the usufructuary mortgaged the
usufructuary right, he is liable to pay his
(5) Use dead trunks and those cut off or
own debt. He cannot mortgage property
uprooted by accident with obligation to
held in usufruct.
replace them with new plamts;
(6) Make usual cuttings that owner used to
do, and in default thereof, according to E.7. USUFRUCT OVER AN ENTIRE
the custom of the place with regard to PATRIMONY [NCC 598]
the manner, amount and season; and
Applies when:

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(10) The usufruct is a universal usufruct; and E.9. USUFRUCT OVER CONSUMABLE
PROPERTY [NCC 574]
(11) If at its constitution the owner had
debts or is obliged to make periodical The usufructuary shall have the right to
payments (whether or not there be make use of them under the obligation of
known capital) paying their appraised value at the
termination of the usufruct, if they were
General rule: The usufructuary is not
appraised when delivered.
liable for the owners debts. NCC 758 and
759 applies. If not appraised, he shall have the right to
return at the same quantity and quality, or
Exceptions:
pay their current price at the time the
(1) When it is so stipulated; the usufruct ceases.
usufructuary shall be liable for the
An abnormal usufruct, but the usufruct
debts previously contracted if no
shall be a normal usufruct if consumable is
contrary declaration, but only up to the
merely for exhibition.
value of the usufruct, unless the
contrary is indicated in the title;
(2) If there is no specification, he is liable
F. RIGHTS OF THE OWNER
only for debts incurred by the owner
before the usufruct was constituted; or F.1. AT THE BEGINNING OF THE
USUFRUCT
(3) When the usufruct is constituted in
fraud of creditors. See obligations of usufructuary at the
beginning of the usufruct)
In no case shall the usufructuary be
responsible for debts exceeding the benefits
under the usufruct. (except when the
F.2. DURING THE USUFRUCT
contrary intention appears)
(1) Retains title to the thing or property.
(2) He may alienate the property: he may
E.8. USUFRUCT OVER DETERIORABLE
not alter the form or substance of the
PROPERTY
thing; nor do anything prejudicial to the
The usufructuary shall have the right to usufructuary.
make use thereof in accordance with the
(3) He may construct buildings, make
purpose for which they are intended.
improvements and plantings, provided:
It is sufficient if the usufructuary returns the
(4) The value of the usufruct is not
things in the condition in which they may
impaired; and
have been found at the time of the
expiration of the usufruct after having made (5) The rights of the usufructuary are not
ordinary repairs. prejudiced.
Except: when such defects were caused (6) He can constitute a voluntary easement
through the usufructuarys fraud and over land/building held in usufruct, but
negligence. if it affects the usufructuary right, the
usufruct mas give his consent. If
If the usufructuary does not return the
easement is perpetual, consent of both
things upon the expiration of the usufruct,
must be obtained (NCC 689-690)
he should pay an indemnity equivalent to
the value of the things at the time of such
expiration.

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G. EXTINGUISHMENT/ TERMINATION When a contrary intention clearly appears:


[NCC 603] If the usufructuary dies before the
happening of a resolutory condition, the
usufruct is extinguished.
(1) By the death of the usufructuary, unless
a contrary intention clearly appears; Usufruct is personal and it cannot be
extended beyond the lifetime of the
(2) By the expiration of the period for which usufructuary. [Sanchez Roman and SC]
it was constituted, or by the fulfillment
of any resolutory condition provided in If period is fixed with reference to the age of
the title creating the usufruct; a third person usufruct continues until such
person attains that age, even if he dies
(3) By merger of the usufruct and before reaching such age, unless expressly
ownership in the same person; granted in consideration of his existence in
(4) By renunciation of the usufructuary; life [NCC 606]
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the G.2. EXPIRATION OF PERIOD OR
person constituting the usufruct; or FULFILLMENT OF RESOLUTORY
CONDITION IMPOSED ON USUFRUCT BY
(7) By prescription.
PERSON CONSTITUTING USUFRUCT
In favor of juridical persons [NCC.
G.1. DEATH OF USUFRUCTUARY 605]
Exceptions: Usufruct cannot be constituted in favor of a
town, corporation, or association for more
(1) In multiple usufructs: it ends at the
than fifty years.
death of the last survivor [NCC 611]
If before the expiration of such period the
(2) If a simultaneous usufruct: all the
town is abandoned, or the corporation or
usufructuaries must be alive (or at least
association is dissolved, the usufruct shall
conceived and born alive later) at the
be extinguished.
time of constitution.
Usufruct granted for the tim e that
(3) If successive usufruct:
may elapse before a third person
(a) If by virtue of donation all the attains a certain age [NCC 606]
donees-usufructuaries must be
It shall subsist for the number of years
living at the time of the donation;
specified even if the third person should die
(b) If by will there should only be 2 before the period expires unless such
successive usufructuaries and both usufruct has been expressly granted only in
must have been alive at the time of consideration of the existence of such
testators death. person.
Note: Same rule as in fideicommissary
substitution [NCC 863-867, par. 1] G.3. MERGER OF RIGHTS OF USUFRUCT
If the period is fixed by reference to the life AND NAKED OWNERSHIP IN ONE
of another or there is a resolutory condition, PERSON
death does not affect the usufruct and the Illustration: H was the usufructuary of land
right is transmitted to the heirs of the owned by X. X dies, leaving in his will, the
usufructuary until the expiration of the term naked ownership of the land to H. the
or the fulfillment of the condition. usufruct is extinguished because now H is
both the naked owner and the usufructuary.

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G.4. RENUNCIATION OF USUFRUCT Situation Effect


W aiver: A voluntary surrender of the rights
of the usufructuary, made by him with the premium paid by usufruct subsists on
intent to surrender them. owner and new building.
usufructuary (par. 1)
Lim itations: If owner does not
rebuild, interest
(1) Must be express: tacit renunciation is upon insurance
not sufficient; proceeds paid to
(2) Does not need the consent of naked usufructuary.
owner; and
When the insurance Owner entitled to
(3) If made in fraud of creditors, they may taken by the naked insurance money
rescind the waiver through an action owner only because (no interest paid to
under Article 1381 (accion pauliana). usufructuary usufructuary).
refuses to
If he does not
contribute to the
G.5. EXTINCTION OR LOSS OF PROPERTY rebuild, usufruct
premium (par. 2)
[NCC 608] continues over
remaining land
Situation Effect and/or owner may
pay interest on
Art. 607 value of both
If destroyed property is not insured materials and land
[Art. 607].
If the building forms Usufruct continues
If owner rebuilds,
part of an immovable over the land and
usufruct does not
under usufruct materials (plus
continue on new
interests), if owner
does not rebuild. building, but owner
must pay interest
If usufruct is on the Usufruct continues on value of land
building only over the land and and old materials.
materials (plus
interests), if owner When insurance Insurance proceeds
does not rebuild. taken by go to the
usufructuary only usufructuary.
If owner rebuilds, depends on value of
usufructuary must No obligation to
usufructuarys
allow owner to rebuild.
insurable interest
occupy the land and Usufruct continues
to make use of on the land.
materials; but the
owner must pay Owner has no
interest on the value share in insurance
of both the land and proceeds.
the materials.

Art. 608 G.6. TERMINATION OF THE RIGHT OF


If destroyed property is insured before PERSON CONSTITUTING THE USUFRUCT
termination of the usufruct Example: usufructs constituted by a vendee
a retro terminate upon redemption.
When insurance If owner rebuilds,

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G.7. PRESCRIPTION The bad use must cause considerable injury


not to the thing, but to the owner.
Adverse possession against the owner or
the usufructuary. Usufructuary is liable for damages caused
to property.
It is not the non-use which extinguishes the
usufruct by prescription, but the use by a 3rd
person.
There can be no prescription as long as the
usufructuary receives the rents from the
lease of the property, or he enjoys the price
of the sale of his right.

H. CONDITIONS NOT AFFECTING


USUFRUCT

H.1. EXPRORPIATION OF THING IN


USUFRUCT [NCC 609]

If naked owner alone was given the


indemnity, he has the option:
(1) To replace with equivalent thing; or
(2) To pay to the usufructuary legal interest
on the indemnity. This requires a
security to be given by the naked owner
for the payment of the interest.

If both the naked owner and the


usufructuary were separately given
indemnity, each owns the indemnity given
to him, the usufruct being totally
extinguished.
If usufructuary alone was given the
indemnity, he must give it to the naked
owner and compel the latter to return either
the interest or to replace the property. He
may even deduct the interest himself, if the
naked owner fails to object.

H.2. BAD USE OF THING IN USUFRUCT


[NCC 610]
Bad use does not extinguish the usufruct
but entitles the owner to demand delivery
and administration of the thing with the
obligation to pay the net proceeds of fruits.

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IX. Easement even immovable by incorporation,


destination or by analogy. [NCC 613]
by

An encumbrance imposed upon an Immovable: used in its common and not in


immovable by nature for the benefit of the legal sense, meaning only property
another immovable belonging to a different immovable by nature can have easements.
owner. [NCC. 613]
A real right which burdens a thing with a
prestation of determinate servitudes for the iv. It lim its the servient owners right
exclusive enjoyment of one who is not an of ownership for the benefit of the
owner of a tenement. dominant estate.

A real right by virtue of which the owner has Right of limited use but no right to possess
to abstain from doing or allow somebody the servient estate.
else to do something to his property for the There exists a limitation on ownership: the
benefit of another. dominant owner is allowed to enjoy or use
part of the servient estate, or imposes on
the owner a restriction as to his enjoyment
Dom inant Estate the immovable in of his own property.
favor of which the easement is established.
Being an abnormal limitation of ownership,
Servient Estate the immovable which is it cannot be presumed.
subject to the easement .

v. It creates a relation between


A. CHARACTERISTICS tenem ents:
There is no transfer of ownership, but a
A.1. ESSENTIAL FEATURES: relationship is created, depending on the
type of easement.
i. It is a real right it gives an action in
rem or real action against any possessor of
the servient estate General Rule: It may consist in the owner
Owner of the dominant estate can file a real of the dominant estate demanding that the
action for enforcement of right to an owner of the servient estate refrain from
easement doing something (servitus in non faciendo)
or that the latter permit that something be
Action in rem: an action against the thing done over the servient property (servitus in
itself, instead of against the person. patendo), but not in the right to demand
that the owner of the servient do something
(servitus in faciendo) except if such act is an
ii. It is a right enjoyed over anothers accessory obligation to a praedial servitude
property (jus in re aliena). (obligation propter rem)
When the dominant and the servient Servient owner merely allows something to
estates have the same owner, the easement be done to his estate.
is extinguished. Separate ownership is a
prerequisite to an easement.
Exception: Praedial servitudes

iii. It is a right constituted over an Right to place beams in an adjoining wall to


im m ovable by nature (land and support a structure.
buildings), not over movable properties or Right to use anothers wall to support a
building.

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Easement Distinguished from


Usufruct
vi. It is inherent or inseparable from
estate to which they actively or Easem ent Usufruct
passively belong [NCC 617]
Easements are merely accessory to the May be constituted May be constituted
only on an on either movable or
tenements, and a quality thereof. They
cannot exist without tenements. immovable property immovable property

Easements exist even if they are not Not extinguished by Extinguished by the
expressly stated or annotated as an the death of death of usufructuary
encumbrance on the titles. dominant owner

Non-possessory Involves a right of


vii. It is intransm issible it cannot be right over an possession in an
alienated separately from the tenement immovable immovable
affected or benefited
Limited to particular Includes all the uses
Any alienation of the property covered or specific use of the and the fruits of the
carries with it the servitudes affecting said servient estate property
property. But this affects only the portion of
the tenement with the easement, meaning
that the portions unaffected can be
B. CLASSIFICATION
alienated without the servitude.

B.1. AS TO RECIPIENT OF BENEFITS


viii. It is indivisible [NCC 618]
i. Real or Praedial: exists for the benefit
If the servient estate is divided between two
of a particular tenement.
or more persons, the easement is not
modified, and each of them must bear it on
the part that corresponds to him.
ii. Personal: exists for the benefit of
If the dominant estate is divided between persons without a dominant tenement e.g.
two or more persons, each of them may use usus habitatio (right to reside in a house)
the easement in its entirety, without and operae servorum (right to the labor of
changing the place of its use, or making it slaves) in Roman law.
more burdensome in any other way.

B.2. AS TO CAUSE OR ORIGIN


ix. It has perm anence once it
i. Legal: created by law, whether for public
attaches, whether used or not, it continues use or for the interest of private persons.
and may be used anytime
Once requisites are satisfied, the owner of
Perpetual: exists as long as property
the dominant estate may ask the Court to
exists, unless it is extinguished.
declare that an easement is created.
Example: Natural drainage of waters,
Abutment of land, Aqueduct, etc.

ii. Voluntary: Created by the will of the


owners of the estate through contract, last
will or donation.

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Note: Prescription starts to run from


service of notarial prohibition.
Note: There is no such thing as a JUDICIAL
EASEMENT. The Courts cannot create
easements, they can only declare the
existence of one, if it exists by virtue of the C. GENERAL RULES
law or will of the parties. [Castro v. Monsod, i. Nulli res sua servi: No one can have a
February 2, 2011] servitude over ones own property.
ii. Servitus in faciendo consistere
nequit: A servitude cannot consist in doing.
B.3. AS TO ITS EXERCISE [NCC 615]
Although some easements seem to impose
i. Continuous: Use is or may be incessant, a positive prestation upon the owner of the
without the intervention of any act of man servient estate, in reality, the primary
ii. Discontinuous: Used at intervals, and obligation is still negative.
dependent upon the acts of man. Illustration: Under Article 680: the owner of
Note: This classification is important in a tree whose branches extend over to a
determining prescription: only continuous neighboring property is required to cut off
and apparent easements can be created the extended branches, but the real essence
by prescription. of the easement is the obligation NOT TO
ALLOW the branches of the tree to extend
beyond the land.
B.4. AS INDICATION OF ITS EXISTENCE iii. Servitus servitutes esse non
[NCC 615] potest: There can be no servitude over
i. Apparent: Made known and continually another servitude.
kept in view by external signs that reveal iv. A servitude must be exercised
the use and enjoyment of the same. civiliter in a way least burdensome to
ii. Non-apparent: No external indication the owner of the servient estate.
of their existence. v. A servitude must have a perpetual
Note: Also important for purposes of cause
prescription.

D. RELEVANCE OF CLASSIFICATIONS
B.5. BY THE OBJECT OR OBLIGATION D.1. DETERMINES WHAT EASEMENTS
IMPOSED [NCC 616] CAN BE ACQUIRED BY PRESCRIPTION
i. Positive: Imposes upon the owner of the Continuous and apparent easements may
servient estate the obligation of allowing be acquired by prescription of 10 years
something to be done, or extraordinarily or [NCC. 620]
doing it himself.
N.B.: No need for good faith and just title.
ii. Negative: Prohibits the owner of the
servient estate from doing something that
he could lawfully do if the easement did not
D.2. DETERMINES WHAT EASEMENTS
exist.
CAN BE ACQUIRED BY TITLE
e.g. Negative Easement of Light and
Continuous nonapparent easements, and
View: An opening is made on the wall of
discontinuous ones, whether apparent or
the dominant estate, and the easement
not, may be acquired only by virtue of a title.
consists of imposing upon the servient
[NCC. 622]
estate the obligation to not build anything
that would obstruct the light.

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The existence of an apparent sign of (2) Continuous non-apparent easements,


easement between two estates, established and discontinuous ones, whether
or maintained by the owner of both, shall be apparent or not, are acquired only by
considered, as a title in order that the virtue of a title. [NCC 622]
easement may continue actively and
(3) The absence of a document or proof
passively.
showing the origin of an easement
Unless: At the time the ownership of the which cannot be acquired by
two estates is divided, the contrary should prescription may be cured by a deed of
be provided in the title of conveyance of recognition by the owner of the servient
either of them, or the apparent sign should estate or by a final judgment. [NCC 623]
be removed before the execution of the
(4) The existence of an apparent sign of
deed. This provision shall also apply in case
easement between two estates,
of the division of a thing owned in common
established or maintained by the owner
by two or more persons. [NCC. 624]
of both, shall be considered as a title in
order that the easement may continue
actively and passively.
D.3. DETERMINES HOW TO COMPUTE
THE PRESCRIPTIVE PERIOD [NCC 621] Unless: at the time the ownership of
In positive easements, from the day on either of the two estates is transferred,
which the owner of the dominant estate, or the contrary should be provided in the
the person who may have made use of the title of conveyance of either of them, or
easement, commenced to exercise it upon the sign aforesaid should be removed
the servient estate. before the execution of the deed. This
In negative easements, from the day on provision shall also apply in case of the
which the owner of the dominant estate division of a thing owned in common by
forbade, by an instrument acknowledged two or more persons. [NCC 624]
before a notary public, the owner of the
servient estate from executing an act which (5) If the easement has been acquired but
would be lawful without the easement. no proof of existence of easement
available, and the easement is one that
cannot be acquired by prescription, the
D.4. DETERMINES HOW EASEMENT IS defect may be cured by:
LOST BY PRESCRIPTION [NCC 631 (2)] (a) Deed of recognition by owner
By nonuser for 10 years: of servient estate: By an affidavit
or a formal deed acknowledging the
With respect to discontinuous easements, servitude; or
this period shall be computed from the day
on which they ceased to be used. (b) By final judgm ent: Owner of the
dominant estate must file a case in
With respect to continuous easements, from Court to have the easement
the day on which an act contrary to the declared by proving its existence
same took place. through other evidence.
(6) The existence of an apparent sign is
E. CREATION considered as title.
E.1. BY TITLE OR BY SOMETHING Illustration: The presence of 4 windows
EQUIVALENT TO A TITLE was considered an apparent sign that
created a negative easement of light
(1) Continuous and apparent easements and view (altius non tollendi) i.e. not to
may be acquired by virtue of a title. build a structure that will cover the
[NCC 620] windows. [Amor v. Florentino (1943)].

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Note: Mere passage which was permitted


and is under an implied license cannot be
E.2. BY LAW (LEGAL EASEMENTS) the basis of prescription. [Archbishop of
Easements imposed by law have for their Manila v Roxas (1912)]
object either public use or the interest of
private persons. [NCC 634]
F. LEGAL EASEMENTS
These easements may be modified by
agreement of the interested parties,
whenever the law does not prohibit it or no F.1. LAW GOVERNING LEGAL
injury is suffered by a third person. [NCC EASEMENTS
636]
i. For public easem ents
Special laws and regulations relating
E.3. BY WILL OF THE OWNERS thereto. (ex: PD 1067 and PD 705)
(VOLUNTARY EASEMENTS)
By the provisions of Chapter 2, Title VII,
Every owner of a tenement or a piece of Book II, NCC.
land may establish the easements that he
may deem suitable and best provided he ii. For private legal easem ents
does not contravene the laws, public policy, By agreement of the interested parties
or public order. [NCC 688] whenever the law does not prohibit it and
Note: If an owner constitutes an easement no injury is suffered by a 3rd person.
over his own property and makes such By the provisions of Chapter 2, title VII,
easement available to the general public, Book II.
said owner may not arbitrarily discriminate
against certain persons by not letting them
use the easement. [Negros Sugar Company
v Hidalgo (1936)] G. VOLUNTARY EASEMENTS
Every owner of a tenement or piece of land
may establish thereon the easements which
E.4. BY PRESCRIPTION he may deem suitable, and in the manner
Continuous and apparent easements may and form which he may deem best. [NCC
be acquired by prescription of 10 years. 688]
[NCC 620] The owner of a thing, the usufruct of which
Requisites: belongs to another, may impose, without
the consent of the usufructuary, any
(1) The easement must be continuous and servitudes which will not injure the right of
apparent; usufruct. [NCC 689]
(2) The easement must have been used for Whenever the naked ownership belongs to
10 years; and one person and the beneficial ownership to
(3) There is no need for good faith or just another, no perpetual voluntary easement
title. may be established thereon without the
consent of both owners. [NCC 690]
N.B. Example of a continuous and apparent
easement is of light and view, as opposed to Consent of all co-owners is required to
a right of way which is discontinuous but impose an easement on an undivided
apparent, and thus cannot be acquired by tenement. [NCC 691]
prescription.

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H. RIGHTS AND OBLIGATIONS OF the easement can be used for all the
OWNERS OF DOMINANT AND needs of the dominant estate.
SERVIENT ESTATES
(2) To notify the owner of the servient
estate before making repairs and to
make repairs in a manner least
H.1. RIGHTS OF DOMINANT ESTATE
inconvenient to the servient estate [NCC
OWNER
627(2)]
(1) To use the easement and exercise all
(3) Not to alter the easement or render it
rights necessary for it [NCC 625, 626]
more burdensome
(2) The owner of the dominant estate is
The owner of the dominant estate may
granted the right to use the principal
easement, and all accessory servitudes. make repairs at his expense, but he
cannot alter the easement or make it
Example: Easement of drawing water
more burdensome.[NCC 627]
carries with it the easement of right of
way to the place where water is drawn. Making the easement more
burdensome means widening the
Lim itation: Only for the original
easement. [Valderrama v. North Negros
immovable and the original purpose.
Sugar Co. (1925)]
(3) To make, at his own expense, on the
(4) To contribute to expenses of works
servient estate any works necessary for
necessary for use and preservation of
the use and preservation of the
servitude, if there are several dominant
servitude, but without altering it or
estates, unless he renounces his
rendering it more burdensome.
interest [NCC 628]
(4) In a right of way, to ask for change in
The contribution is in proportion to the
width of easement sufficient for needs
[NCC 651] benefits which each may derive from the
work.
(5) To renounce totally the easement, if he
desires to be exempt from contributing Anyone who does not wish to contribute
to the expenses. may exempt himself by renouncing the
The needs of the dominant property easement for the benefit of the others.
ultimately determine the width of the If the owner of the servient estate
passage. And these needs may vary from
should make use of the easement in any
time to time. [Encarnacion v. Court of
Appeals] manner whatsoever, he shall also be
obliged to contribute to the expenses in
the proportion stated, saving an
H.2. OBLIGATIONS OF DOMINANT agreement to the contrary.
ESTATE OWNER
(5) To do at his expense all necessary works
(1) To use the easement for the benefit of for the use and preservation of the
immovable and in the manner originally easement [NCC 627]
established [NCC 626]
The necessity of the works determines
If established for a particular purpose,
extent of such works.
the easement cannot be used for a
different one. However, if established in
a general way, without specific purpose,

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H.3. RIGHTS OF THE SERVIENT ESTATE H.4. OBLIGATIONS OF SERVIENT ESTATE


OWNER OWNER
(1) To retain ownership and use of his (1) Not to impair the use of the easement
property [NCC 629(1)]
The owner of the servient estate retains (2) To contribute proportionately to
the ownership of the portion on which expenses if he uses the easement [NCC
the easement is established, and may 628(2)]
use the same in such a manner as not to Unless there is an agreement to the
affect the exercise of the easement. contrary
[NCC 630]
(3) To pay for the expenses incurred for the
The servient owner must respect the use change of location or form of the
of the servitude, but retains ownership easement
and use of the same, in a manner not
affecting the easement.
I. EXTINGUISHMENT OF EASEMENTS
(2) To change the place and manner of the (1) By merger in the same person of the
use of the easement [NCC 629] ownership of the dominant and servient
General rule: The owner of the estates;
servient estate cannot impair the use of (2) By non-user for ten years;
the servitude.
(3) When either or both of the estates fall
Exceptions: By reason of either: into such condition that the easement
cannot be used;
(a) The place/manner originally
assigned, the use of such easement (4) By the expiration of the term or the
has become VERY INCONVENIENT fulfillment of the condition, if the
to the owner; easement is temporary or conditional;
(b) The easement should prevent him (5) By the renunciation of the owner of the
from making any important works, dominant estate; or
repairs or improvements thereon; (6) By the redemption agreed upon
The change must be done at his between the owners of the dominant
expense; and servient estates.

He offers another place or manner


equally convenient; and I.1. MERGER

The change is done in such a way that Must be absolute, perfect and definite, and
not merely temporary.
no injury is caused to the dominant
owner or to those who may have a right Absolute: Ownership of the property must
to use the easement. be absolute, thus not applicable to lease,
usufruct, etc.
(3) To use the easement
Perfect: Merger must not be subject to a
May use the easement but must also condition.
contribute proportionately to the If the merger is temporary, there is at most
expenses. a suspension of the easement, but no
extinguishment.

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I.2. BY A NON-USER FOR 10 YEARS I.5. RENUNCIATION OF THE OWNER OF


THE DOMINANT ESTATE
Owner of dominant estate does not exercise
right over easement. Must be specific, clear, express
(distinguished from non-user).
This is inaction, and not outright
renunciation.
This is due to the voluntary abstention by I.6. OTHER CAUSES NOT MENTION IN
the dominant owner, and not due to a NCC 631
fortuitous event.
(1) Annulment and rescission of the title
constituting the voluntary easement;
Computation of the period: (2) Termination of the right of grantor of
Discontinuous easem ents: counted the voluntary easement;
from the day they ceased to be used. (3) Abandonment of the servient estate;
Continuous easements: counted from (4) Owner of the servient estate gives up
the day an act adverse to the exercise of the ownership of the easement (e.g. the
easement took place. strip of land where the right of way is
E.g. in an easement of light and view, the constituted) in favor of the dominant
erection of works obstructing the servitude estate.
would commence the period of prescription. The easement is extinguished because
The use by a co-owner of the dominant ownership is transferred to the
estate bars prescription with respect to the dominant owner, who now owns both
others. properties.
Note: Non-user cannot extinguish (5) Eminent domain; or
servitudes not yet exercised.
Extinguishment by non-use only applies to (6) The governments power to expropriate
easements which being in use are later property for public use, subject to the
abandoned. [Francisco v Paez (1930)] payment of just compensation.
(7) Special cause for extinction of legal
rights of way: if right of way no longer
I.3. BY IMPOSSIBILITY OF USE necessary. [NCC 655]
Impossibility referred to must render the If the right of way granted to a
entire easement unusable for all time.
surrounded estate ceases to be
Impossibility of using the easement due to necessary because its owner has joined
the condition of the tenements (e.g. it to another abutting on a public road,
flooding) only suspends the servitude until it the owner of the servient estate may
can be used again.
demand that the easement be
Except: If the suspension exceeds 10 years, extinguished, returning what he may
the easement is deemed extinguished by have received by way of indemnity. The
non-user.
interest on the indemnity shall be
deemed to be in payment of rent for the
I.4. EXPIRATION OF THE TERM OR use of the easement.
FULFILLMENT OF RESOLUTORY
The same rule shall be applied in case a
CONDITION
new road is opened giving access to the
Applicable only to voluntary easements. isolated estate.

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In both cases, the public highway must (13) Lateral and subjacent support [NCC
substantially meet the needs of the 684-687]
dominant estate in order that the
easement may be extinguished.
J.1. THOSE ESTABLISHED FOR THE USE
Right of way ceases to be OF WATERS OR RELATING TO WATERS
necessary:
(a) Owner of the dominant estate has i. Natural Drainage
joined to another abutting on a
Lower estates are obliged to receive the
public road.
waters which naturally and without the
(b) A new road is opened giving access intervention of man descend from the
to the isolated estate. higher estates (as well as the stones or
Requisite: the public highway must earth which they carry with them).
substantially meet the needs of the The owner of the lower estate cannot do any
dominant estate in order that the works that will impede this easement.
easement may be extinguished The owner of the higher estate cannot do
any works that will increase the burden.
Owner of the servient estate may
demand that the easement be
extinguished. ii. Riparian Banks
Owner of the servient estate must The banks of rivers and streams are subject
return indemnity he received (value of throughout their entire length and within a
the land) zone of 3 meters for urban areas, 20 meters
for agricultural areas and 40 meters for
forest areas (PD 1067, Water Code as
amended by PD 1067) along their margins,
J. KINDS OF PRIVATE LEGAL
to the easement of public use in the general
EASEMENTS interest of navigation, floatage, fishing,
recreation and salvage.
(1) Natural drainage of water [NCC 637] Estates adjoining the banks of navigable or
floatable rivers are subject to the easement
(2) Riparian banks [NCC 638] of towpath for the exclusiveservice of river
(3) Dam [NCC 639] navigation and floatage.
(4) Drawing water and watering animals If it be necessary to occupy lands of private
[NCC 640-641] ownership, the proper indemnity shall first
be paid.
(5) Aqueduct [NCC 642-646]
(6) Stop lock or sluice gate [NCC 647]
iii. Dam
(7) Right of way [NCC 649-657]
Whenever for the diversion of water it
(8) Party wall [NCC 658-666]
should be necessary to build a dam, and the
(9) Light and view [NCC 667-681] person who is to construct it is not the
owner of the banks, or lands which must
(10) Drainage of buildings [NCC 674]
support it, he may establish the easement
(11) Intermediate distances [NCC 677-681] of abutment of a dam, after payment of the
proper indemnity.
(12) Nuisance [NCC 682-683]

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iv. Drawing W ater and W atering This easement is considered as continuous


Animals and apparent, even though the flow of the
water may not be continuous, or its use
Compulsory easements for drawing water
depends upon the needs of the dominant
or for watering animals can be imposed
estate, or upon a schedule of alternate days
only for reasons of public use in favor of a
or hours. Therefore, it can be created by
town or village, after payment of the proper
prescription. N.B.: In the appropriation of
indemnity.
water, there is a need to apply for water
Easements for drawing water and for rights.
watering animals carry with them the
obligation of the owners of the servient
estates to allow passage to persons and vi. Stop Lock or Sluice Gate
animals to the place where such easements
The construction of a stop lock or sluice
are to be used, and the indemnity shall
gate in the bed of the stream from which
include this service.
the water is to be taken, for the purpose of
The width of the easement must not exceed improving an estate.
10 meters.
Such person may demand that the owners
of the banks permit its construction, after
payment of damages, including those
v. Aqueduct
caused by the new easement to such
Any person who may wish to use upon his owners and to the other irrigators.
own estate any water of which he can
dispose shall have the right to make it flow
through the intervening estates, with the J.2. RIGHT OF WAY
obligation to indemnify their owners, as well
W ho may demand
as the owners of the lower estates upon
which the waters may filter or descend. (1) The owner of the dominant estate; or
Person desiring to make use of this right is (2) Any person with the real right to
obliged to: cultivate or use the dominant estate e.g.
a usufructuary, a de jure possessor.
(1) To prove that he can dispose of the
water and that it is sufficient for the use Note: a lessee cannot demand such
for which it is intended; easement, because the lessor is the one
bound to maintain him in the enjoyment of
(2) To show that the proposed right of way
the property.
is the most convenient and the least
onerous to third persons; and Requisites:
(3) To indemnify the owner of the servient (1) The dominant estate is surrounded by
estate in the manner determined by the other immovables owned by other
laws and regulations persons;
Easement of aqueduct for private interest (2) There must absolutely be no access i.e.
cannot be imposed on buildings, means of entrance or exit/egress to a
courtyards, annexes, or outhouses, or on public highway;
orchards or gardens already existing.
(3) Even if there is access, it is difficult or
This easement does not prevent the owner dangerous to use, or grossly
of the servient estate from closing or insufficient;
fencing it, or from building over the
(4) Mere inconvenience in the use of an
aqueduct in such manner as not to cause
outlet does not render the easement a
the latter any damage, or render necessary
necessity;
repairs and cleanings impossible.

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(5) An adequate outlet is one that is extinguish the said easement, being
sufficient for the purpose and needs of voluntary and not compulsory. The free
the dominant owner, and can be ingress and egress along Mangyan Road
established at a reasonable expense; created by the voluntary agreement
between the parties is thus legally
(6) Does not necessarily have to be by land
demandable with the corresponding duty
an outlet through a navigable river or
on the servient estate not to obstruct the
a lake or the sea if suitable to the needs
same. [La Vista Association v. CA]
of the tenement is sufficient;
The width of the easement of right of way
(7) The isolation of the immovable is NOT
shall be that which is sufficient for the
due to the dominant owners own acts
needs of the dominant estate, and may
e.g. if he constructs building to others
accordingly be changed from time to time.
obstructing the old way; and
[NCC651]
(8) There is payment of indemnity;
If right of way is permanent and
Obligations In Permanent And
continuous for the needs of the Temporary Easements Of Right Of
dominant estate = value of the land + W ay
amount of damage caused to the
servient estate; Perm anent right Tem porary right
of way of way
If right of way is limited to necessary
passage for cultivation of the estate and Indemnity
for gathering crops, without permanent Consists of the Consists of the
way = damage caused by encumbrance. damages and the damages only.
value of the land.

Rules for establishing Right of W ay: Necessary repairs


(1) Must be established at the point least Dominant owner to Servient owner to
prejudicial to the servient estate. [NCC spend on such. spend on such.
650]
(2) Insofar as consistent with the first rule, Share in taxes
where the distance from the dominant
estate to a public highway is shortest. The dominant owner Servient owner to
shall reimburse a spend on such.
proportionate share
The criterion of least prejudice to the of taxes to the
servient estate must prevail over the proprietor of the
criterion of shortest distance although this is servient estate.
a matter of judicial appreciation. While
shortest distance may ordinarily imply least
prejudice, it is not always so as when there
are permanent structures obstructing the
shortest distance; while on the other hand,
the longest distance may be free of
obstructions and the easiest or most
convenient to pass through. [Quimen v. CA
(1996)]
The fact that LGV had other means of
egress to the public highway cannot

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Rules on Indemnity for Estates (2) Right of way to raise on anothers land
Enclosed Through a Sale, Exchange, scaffolding or other objects necessary
Partition or D onation. for the work.
Sale, exchange or If it be indispensable for the
Donation construction, repair, improvement,
partition
alteration or beautification of a
Buyer, grantee or donee building, to carry materials through the
as dom inant owners estate of another, or to raise therein
scaffolding or other objects necessary
The buyer or grantee The donee shall pay
for the work, the owner of such estate
shall grant the right the donor indemnity.
of way without shall be obliged to permit the act, after
indemnity. receiving payment of the proper
indemnity for the damage caused him.
Seller, grantor or donor [NCC656]
as dom inant owners (3) Right of way for the passage of livestock
known as animal path, animal trail,
The seller or grantor The donee shall
watering places, resting places, animal
shall pay indemnity. grant the right of way
folds. [NCC 657]
without indemnity.
Easements of the right of way for the
passage of livestock known as animal
Extinguishment as Legal Easem ent path, animal trail or any other, and
of Right of W ay [NCC 655] those for watering places, resting places
(1) The owner has joined the dominant and animal folds, shall be governed by
estate to another abutting the public the ordinances and regulations relating
road. thereto, and, in the absence thereof, by
(2) A new road is opened giving access to the usages and customs of the place.
the isolated estate.
Without prejudice to rights legally
acquired, the animal path shall not
Notes on extinguishment exceed in any case the width of 75
meters, and the animal trail that of 37
(1) Extinguishment is not automatic. The
owner of the servient estate must ask meters and 50 centimeters.
for such extinguishment. Whenever it is necessary to establish a
(2) Indemnity paid to the servient owner compulsory easement of the right of
must be returned without interest. way or for a watering place for animals,
Interest on account of indemnity is the provisions of this Section and those
deemed to be rent for use of easement. of Articles 640 and 641 shall be
observed. In this case the width shall
Special Rights of W ay not exceed 10 meters

(1) Right of way to carry materials for the


construction, repair, improvement, J.3. PARTY WALL
alteration or beautification of a building
through the estate of another. Refers to all those mass of rights and
obligations emanating from the existence
and common enjoyment of wall, fence,

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enclosures or hedges, by the owners of W hen Existence Of Easement Of


adjacent buildings and estates separated by Party W all Is Presumed
such objects.
(1) In dividing walls of adjoining buildings
up to the point of common elevation.
Nature (2) In dividing walls of gardens or yards
situated in cities, or towns, or in rural
A common wall which separates two
communities.
estates, built by common agreement at the
dividing line such that it occupies a portion (3) In fences, walls and live hedges dividing
of both estates on equal parts. rural lands.
A party wall is a special form of co- Note: A title or an exterior sign, or any
ownership (a kind of compulsory co- other proof showing that the entire wall in
ownership). controversy belongs exclusively to one of
the adjoining property owners may rebut
Each owner owns part of the wall but it
these presumptions.
cannot be separated from the other
portions belonging to the others. A party
wall has a special characteristic that makes
W hen Existence Of An Exterior Sign
it more of an easement as it is called by law.
Is Presumed [NCC 660]
An owner may use a party wall to the extent
(1) Whenever in the dividing wall of
of the portion on his property.
buildings there is a window or opening.
(2) Whenever one side is straight and
Co-Ownership Party W all plumb on all its facement, and on the
other, it has similar conditions on the
Before division of Shares of the co- upper part, but the lower part slants or
shares, a co-owner owners cannot be projects outward.
cannot point to any physically (3) Whenever the entire wall is built within
definite portion of segregated but they the boundaries of one of the estates.
the property as can be physically
belonging to him. identified. (4) Whenever the dividing wall bears the
burden of the binding beams, floors and
None of the co- There is no such roof frame of one of the buildings, but
owners may use the limitation not those of the others.
community property
(5) Whenever the dividing wall between
for his exclusive
courtyards, gardens, and tenements is
benefit because he
constructed in such a way that the
would be invading
coping sheds the water upon only one
the rights of the
of the estates.
others.
(6) Whenever the dividing wall, being built
In a co-ownership, Any owner may free of masonry, has stepping stones, which
partial renunciation himself from at certain intervals project from the
is allowed. contributing to the surface on one side only, but not on the
cost of repairs and other.
construction of a
party wall by (7) Whenever lands enclosed by fences or
renouncing all his live hedges adjoin others that are not
rights thereto. enclosed.

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Note: The deposit of earth or debris on one Obligations Of Owners Of A Party


side alone is an exterior sign that the owner W all
of that side is the owner of the ditch or
(1) To contribute proportionately to the
drain. The presumption is an addition to
repair and maintenance of the party
those enumerated in NCC 660.
wall unless he renounces his part-
ownership.
Right Of Owners Of A Party W all This includes the renunciation of the
share in the wall and the land

i. Generally, part-owners m ay use He cannot renounce his part if his


the wall in proportion to their building is being supported by the party
respective interests, provided that: wall
(1) The right to use by the other party is not (2) If he raises the height of the wall, he
interfered with; must:
(2) The consent by the other owner is (a) Bear the cost of maintenance of the
needed if a party wants to open a additions;
window; and
(b) Bear the cost of construction, if the
(3) The condition of the building is wall cannot support the additional
determined by experts. height;
(c) Give additional land, if necessary to
ii. To increase the height of the wall. thicken the wall;
(1) He does this at his expense, including (d) Pay for damages, if necessary, even
the thickening of the wall on his land. if temporary; and
(2) He shall indemnify the other party for (e) Bear the increased expenses for
any damages. preservation

iii. To acquire a half-interest in any J.4. EASEMENT OF LIGHT AND VIEW


increase in height or thickness of the
wall, paying a proportionate share in
the cost of the work and the value of Definition
the land covered. Easement of light (jus luminum ) is the
Note that the value of the land must be right to admit light from the neighboring
appraised at the time of acquisition. estate by virtue of the opening of a window
or the making of certain openings.
Easement of view (jus prospectus) is
iv. To renounce his part ownership of the right to make openings or windows, to
a party wall if he desires to dem olish enjoy the view through the estate of another
his building supported by the wall. and the power to prevent all constructions
He shall bear all the expenses of repairs and or works which would obstruct such view or
work necessary to prevent any damage make the same difficult.
which the demolition may cause to the party Necessarily includes the easement of light.
wall.
It is possible to have light only without a
view.

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Note: If an owner has an easement of view, Rules And Restrictions On Openings


he also has an easement of light, but not And Structures
vice versa.
i. Openings for light
When the opening is 2 meters or more
Nature away from anothers tenement, i.e. the
(1) Positive: Opening a window through a boundary line:
party wall
(a) An owner may build any kind of
When the opening is made through the opening without restriction.
wall of another
When the wall is contiguous (less than 2
When a part owner of a party wall opens meters) to anothers tenement:
a window therein, such act implies the
(b) Openings are made at the height of
exercise of the right of ownership by the the ceiling joists (horizontal beams)
use of the entire thickness of the wall. or immediately under the ceiling;
The easement is created only after the (c) Size: 30 cm square;
lapse of the prescriptive period. (d) With iron grating imbedded in the
(2) Negative: Formal prohibition upon the wall;
owner of the adjoining land or (e) With a wire screen.
tenement. Formal means that the
prohibition has been notarized [Cortes v
Yu-Tibo (1903)] ii. Openings for view
When a person opens a window on his (a) The following structures cannot be
own building, he is exercising his right built without following the
of ownership on his property, which prescribed distances:
does not establish an easement. Window, apertures, balconies and
Coexistent is the right of the owner of other projections with a direct view
the adjacent property to build or plant upon or towards an adjoining land
on his own land, even if such structures must have a distance of 2 meters
or planting cover the window. between the wall and the
contiguous property.
If the adjacent owner does not build
structures to obstruct the window, such (b) For structures with a side or oblique
view (at an angle from the boundary
is considered mere tolerance and NOT a
line), there should be a distance of
waiver of the right to build. 60 centimeters.
An easement is created only when the Measured from:
owner opens up a window and
subsequently prohibits or restrains the (i) The outer line of the wall if the
openings do not project.
adjacent owner from doing anything
that may tend to cut off or interrupt the (ii) The outer line of the openings if
light and the 10-year prescriptive period they project.
has lapsed by a notarial prohibition. (iii) The dividing line between the
two properties in cases of
oblique views.

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Effect If Distances Are Not Com plied J.5. DRAINAGE OF BUILDINGS


W ith
The owner of a building is obliged to
(1) Easement is not acquired by construct its roof or covering in such
prescription manner that the rain water shall fall on his
own land or on a street or public place, and
(2) Windows are considered unlawful
NOT on the land of his neighbor, even
openings and may be ordered by the
though the adjacent land may belong to
Court to be closed.
two or more persons, one of whom is the
(3) Even if the adjoining owner does not owner of the roof.
object to the construction of such
Even if it should fall on his own land, the
structures at first, he cannot be held to
owner shall be obliged to collect the water
be in estoppel, unless the 10-year
in such a way as not to cause damage to the
period of acquisitive prescription has
adjacent land or tenement.
passed.
The true easement is Article 675 where the
Note:
adjacent estate has the obligation of
In buildings separated by a public way or receiving the rain water falling from a
alley, not less than 3 meters wide, the neighboring roof and giving it an outlet on
distances required (2 m, 60 cm) do not his own lot so as not to cause damage to
apply. the dominant estate.
If an easement is acquired to have direct Easement of drainage if buildings [NCC
views, balconies or belvederes, the owner of 676] to give outlet to rain water collected
the servient estate must not build at less
than 3 meters from the boundary line of the
two tenements. J.6. INTERMEDIATE DISTANCES
The distances may be stipulated by the Prohibiting the contraction and plantings
parties, but should not be less than what is near fortified places or fortresses without
prescribed by the law (2 meters and 60 cm). complying with special laws, ordinances
and regulations relative hereto. NCC 677, in
effect, establishes an easement in favor of
Notes on the Acquisition of the the State. The general prohibition is
Easem ent dictated by the demands of national
security.
Period of acquisitive prescription depends
upon whether the easement of light and The following must comply with the
view is positive or negative, and only starts regulations or customs of the place:
to run from the time the owner asserting the
(1) Construction of aqueduct, well, sewer,
servitude has forbidden the owner of the
etc. (NCC 678)
adjoining tenement from doing something
he could lawfully do. (2) Constructions, which by reason of their
nature or products are dangerous or
THUS, although the action to compel the
noxious.
closure might have prescribed because the
easement has been created by prescription,
the owner of the adjoining estate may still
build on his own land a structure that might Planting of trees (NCC 679)
obstruct the view for 10 years, thus No trees shall be planted near a tenement
extinguishing it by non-user. or piece of land belonging to another except
at the distance authorized by the
ordinances or customs of the place.

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In the absence of regulations:


X. Nuisance
(1) At least 2 meters from the dividing line
of the estates if tall trees are planted. NCC 694. A nuisance is any act, omission,
establishment, condition of property, or
(2) At least 50 centimeters if shrubs or small anything else which:
trees are planted.
Injures or endangers the health or safety of
In case of violation, a landowner shall have others; or
the right to demand the uprooting of the
plant even if it has grown spontaneously. Annoys or offends the senses; or
Shocks, defies or disregards decency or
morality; or
Branches, Roots and Fruits
Obstructs or interferes with free passage of
If the branches of any tree should extend any public highway or street, or any body of
over a neighboring estate, tenement, water; or
garden or yard, the owner of the latter shall
have the right to demand that they be cut Hinders or impairs the use of property.
off.
If it be the roots of a neighboring tree, which Note: To constitute a nuisance there must
should penetrate into the land of another, be an arbitrary or abusive use of
the latter may cut them off himself within property or disregard of commonly
his property. accepted standards set by society.

Fruits naturally falling upon adjacent land A municipal body has the power to declare
belong to the owner of said land. and abate nuisances. BUT it has no power
to find as fact that a particular thing is a
nuisance. The determination of whether or
J.7. LATERAL AND SUBJACENT SUPPORT not a nuisance exists is a judicial function,
because to declare something a nuisance is
The proprietor is prohibited from making to deprive its use. [Iloilo Cold Storage v Mun.
dangerous excavations upon his land as to Council of Iloilo (1913)]
deprive any adjacent land or building of
sufficient lateral or subjacent support.
Easement of lateral and subjacent support A. NUISANCE V. TRESPASS
is deemed essential to the stability of
Nuisance Trespass
buildings.
Support is lateral when a vertical plane Use of ones own Direct infringement
divides the supported and supporting lands. property in such a of anothers right of
manner as to cause property.
Support is subjacent when the supported injury to the property
land is above the supporting land. or right or interest of
another, and
generally results
from the commission
of an act beyond the
limits of the property
affected.

Injury is
Injury is immediate.
consequential.

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B. NUISANCE V. NEGLIGENCE
Nuisance Negligence Per se Per accidens

Whether the The wrong is Proof of the act and


Whether it was established by proof its consequences are
defendants use of
unreasonable for the of the mere act. It necessary.
his property was
defendant to act as becomes a nuisance
unreasonable as to
he did in view of the as a matter of law.
plaintiff, without
threatened danger or
regard to
harm to one in Nuisance under any That which depends
foreseeability of
plaintiffs position. and all upon certain
injury.
circumstances, conditions and
Liability for the Liability is based on a because it circumstances, and
resulting injury to want of proper care constitutes a direct its existence being a
others regardless of menace to public question of fact, it
the degree of care or health or safety, and, cannot be abated
skill exercised to for that reason, may without due hearing
avoid such injury. be abated summarily thereon in a tribunal
under the undefined authorized to decide
Principles ordinarily Principles ordinarily law of necessity whether such a thing
apply where the apply where the does in law
cause of action is for cause of action is for constitute a
continuing harm harm resulting from nuisance. [Iloilo Ice
caused by continuing one act which and Cold Storage v.
or recurrent acts created an Municipal Council of
which cause unreasonable risk of Iloilo, 24 Phil 471;
discomfort or injury. Monteverde v.
annoyance to Generoso, 52 Phil,
plaintiff in the use of 123, 127]
his property.

C.2. ACCORDING TO SCOPE OF


C. CLASSES INJURIOUS EFFECTS
C.1. ACCORDING TO NATURE Test: not the number of persons annoyed
but the possibility of annoyance to the
i. Nuisance per se or at law
public by the invasion of its rights the fact
An act, occupation or structure which is a that it is in a public place and annoying to
nuisance at all times and under any all who come within its sphere.
circumstances, regardless of location or
surroundings.
i. Public
The doing of or the failure to do something
ii. Nuisance per accidens or in fact
that injuriously affects the safety, health or
One that becomes a nuisance by reason of morals of the public.
circumstances and surroundings.
It causes hurt, inconvenience or injury to the
It is not a nuisance by its nature but it may public generally, or to such part of the
become so by reason of the locality, public as necessarily comes in contact with
surrounding, or the manner in which it is it.
conducted, managed, etc.

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ii. Private There must be a breach of some duty on the


part of the person sought to be held liable
One which violates only private rights and
for damages resulting from a nuisance
produces damages to but one or a few
before an action will lie against him.
specific persons.
No one is to be held liable for a nuisance
which he cannot himself physically abate
Mixed without legal action against another for
that purpose.
Where several persons, acting
D. DOCTRINE OF ATTRACTIVE independently, cause damage by acts which
NUISANCE constitute a nuisance, each is liable for the
One who maintains on his premises damage which he has caused or for his
dangerous instrumentalities or appliances proportionate share of the entire damage.
of a character likely to attract children in
play, and who fails to exercise ordinary care
to prevent children from playing therewith E.3. LIABILITY OF TRANSFEREES
or resorting thereto, is liable to a child of The grantee of land upon which there exists
tender years who is injured thereby, even if a nuisance created by his predecessors in
the child is technically a trespasser in the title is not responsible therefore merely
premises. [Jarco Marketing Corp. v. CA because he becomes the owner of the
(1999)] premises, or merely because he permits it to
Basis of liability The attractiveness is remain.
an invitation to children. Safeguards to He shall be liable if he knowingly continues
prevent danger must therefore be set up. the nuisance. Generally, he is not liable for
Note: A swimming pool or water tank is continuing it in its original form, unless he
not an attractive nuisance, for while it is has been notified of its existence and
attractive, it cannot be a nuisance, being requested to remove it, or has actual
merely an imitation of the work of nature. knowledge that it is a nuisance and
[Hidalgo Enterprises v. Balandan (1952)] injurious to the rights of others.
If the transferee cannot physically abate the
nuisance without legal action against
E. LIABILITY IN CASE OF NUISANCE another person, then he shall not be liable
for such nuisance.
E.1 WHO ARE LIABLE
Every successive owner or possessor of E.4. NATURE OF LIABILITY
property who fails or refuses to abate a All persons who participate in the creation
nuisance in that property started by a or maintenance of a nuisance are jointly and
former owner or possessor is liable therefor severally liable for the injury done.
in the same manner as the one who created
it. [NCC 696] If 2 or more persons who create or maintain
the nuisance act entirely independent of
one another, and without any community of
E.2. LIABILITY OF CREATOR OF interest, concert of action, or common
NUISANCE design, each is liable only so far as his acts
contribute to the injury.
He who creates a nuisance is liable for the
resulting damages and his liability For solidary liability, there must be some
continues as long as the nuisance joint or concurrent act or community of
continues. action or duty, or the several wrongful acts

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done at several times must have concurred (2) It must be reasonably and efficiently
in their effects as one single act to produce exercised
the injury complained of.
(3) Means employed must not be unduly
oppressive on individuals, and
E.5. RIGHT TO RECOVER DAMAGES (4) No more injury must be done to the
property or rights of individuals than is
The abatement of a nuisance does not
necessary to accomplish the
preclude the right of any person injured to
abatement.
recover damages for its past existence.
[NCC 697] (5) No right to compensation if property
taken or destroyed is a nuisance.
Abatement and damages are cumulative
remedies.
Action for Abatement
No Prescription The district health officer shall take care
that one or all of the remedies against a
The action to abate a public or private
public nuisance are availed of.
nuisance is NOT extinguished by
prescription. [NCC 1143(2)] If a civil action is brought by reason of the
maintenance of a public nuisance, such
action shall be commenced by the city or
F. REGULATION OF NUISANCES municipal mayor.
F.1. PUBLIC NUISANCE The district health officer shall determine
whether or not abatement, without judicial
NCC 695. Nuisance is either public or proceedings, is the best remedy against a
private. A public nuisance affects a public nuisance.
community or neighborhood or any
considerable number of persons, although A private person may file an action on
the extent of the annoyance, danger or account of a public nuisance if it is
damage upon individuals may be unequal. especially injurious to him.
A private nuisance is one that is not General rule: An individual has no right
included in the foregoing definition. of action against a public nuisance. The
abatement proceedings must be instituted
in the name of the State or its
Public Nuisance: That which affects a representatives.
community or neighborhood or any
considerable number of persons, although Exception: An individual who has suffered
the extent of annoyance, danger or damage some special damage different from that
upon individuals may be unequal [NCC 695] sustained by the general public may
maintain a suit in equity for an injunction to
abate it, or an action for damages which he
Remedies has sustained.
(1) The remedies against a public nuisance The action becomes a tort if an individual
are: has suffered particular harm, in which case
the nuisance is treated as a private nuisance
(a) Prosecution under the Penal Code with respect to such person.
or any local ordinance;
(b) A civil action; or
(c) Extrajudicial abatement.

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Requisites of the right of a private Remedies


individual to abate a public nuisance
(1) The remedies against a private nuisance
(1) That demand be first made upon the are:
owner or possessor of the property to
(a) A civil action; or
abate the nuisance;
(b) Extrajudicial abatement.
(2) That such demand has been rejected;
(2) The procedure for extrajudicial
(3) That the abatement be approved by the
abatement of a public nuisance by a
district health officer and executed with
private person will also be followed.
the assistance of the local police; and
(3) The person extrajudicially abating a
(4) That the value of the destruction does
nuisance liable for damages if:
not exceed P3000.
(4) If he causes unnecessary injury; or
(5) If an alleged nuisance is later declared
Rules
by the courts to be not a real nuisance.
(1) The right must be exercised only in
cases of urgent or extreme necessity.
The thing alleged to be a nuisance must Remedies of the property owner
be existing at the time that it was
(1) A person whose property is seized or
alleged to be a nuisance.
destroyed as a nuisance may resort to
(2) A summary abatement must be the courts to determine whether or not
resorted to within a reasonable time it was in fact a nuisance.
after knowledge of the nuisance is
(2) An action for replevin;
acquired or should have been acquired
by the person entitled to abate. (3) To enjoin the sale or destruction of the
property;
(3) The person who has the right to abate
must give reasonable notice of his (4) An action for the proceeds of its sale
intention to do so, and allow thereafter and damages if it has been sold; or
a reasonable time to enable the other to (5) To enjoin private parties from
abate the nuisance himself. proceeding to abate a supposed
(4) The means employed must be nuisance.
reasonable and for any unnecessary
damage or force, the actor will be liable.
The right to abate is not greater than
the necessity of the case and is limited
to the removal of only so much of the
objectionable thing as actually causes
the nuisance.
(5) The property must not be destroyed
unless it is absolutely necessary to do
so.

F.2. PRIVATE NUISANCE


Private Nuisance: That which is not
included in the definition of a public
nuisance [NCC 695]

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XI. Modes of Acquiring Mode Title

Ownership and Other Directly and


immediately
Serves merely to give
the occasion for its
Real Rights produces a real right. acquisition or
existence.

(1) Occupation Cause Means

(2) By operation of Law, e.g. hidden Proximate cause Remote cause


treasure, accession discreta and
continua, NCC 1434, 1456, FC 120, Essence of the right, Means whereby that
registration of land under PD 1529. which is to be essence is
created or transmitted.
(3) Donation
transmitted.
(4) Tradition
(5) Intellectual Property
A. OCCUPATION
(6) Prescription
(7) Succession
Note: Ownership of land cannot be acquired
by occupation.
Mode is a specific cause which produces Possession Occupation
dominion and other real rights as a result of
the co-existence of special status of things, Possession is the Things appropriable
capacity and intention of persons and holding of a thing or by nature which are
fulfillment of the requisites of law. the enjoyment of a without an owner,
right [NCC 523] such as animals that
are the object of
Kinds of modes: hunting and fishing,
(1) Original occupation and intellectual hiddren treasure and
creation abandoned
movables, are
(2) Derivative based on a pre-existing acquired by
right of another (the 5 other modes) occupation. [NCC 713]

Title is every juridical right which gives a


A.1. REQUISITES
means to the acquisition of real rights but in
itself is insufficient to produce them. (1) The property must be a corporeal
personal property susceptible of
appropriation;
It is not by contract but by delivery that the
(2) The property is either res nullius (no
ownership of property is transferred (Non
owner) or res derelict (abandoned
nudis pactis, sed traditione, dominia rerum
property);
transferentur). Contracts only constitute
titles or rights to transfer or acquisition of (3) There is seizure or apprehension with
ownership, while delivery is the mode of the intent to appropriate; and
accomplishing the same.
(4) There is an observance of requisites or
conditions prescribed by law.

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A.2. KINDS ii. Occupation of Dom esticated


Animals
i. Of Anim als
Wild animals are possessed only while they
(1) W ild or feral animals seizure
are under one's control; domesticated or
(hunting/fishing) in open season by
tamed animals are considered domestic or
means not prohibited.
tame if they retain the habit of returning to
(2) Tamed/domesticated animals the premises of the possessor.
General Rule: belong to the tamer for as
long as tamed animal retains the habit
of returning to the place where it is iii. Pigeons and Fish [NCC 717]
kept, but upon recovering freedom, are
Pigeons and fish which from their respective
susceptible to occupation unless
breeding places pass to another pertaining
claimed within 20 days from seizure by
to a different owner shall belong to the
another.
latter, provided they have not been enticed
(3) Tame/domestic animals not by some artifice or fraud.
acquired by occupation except when
abandoned.
iv. Hidden Treasure [NCC 718, 438]
He who by chance discovers hidden treasure
ii. Of Other Personal Property
in anothers property: shall be allowed to
(1) Abandoned may be acquired the finder.
(2) Lost If the finder is a trespasser, he shall not be
entitled to any share of the treasure.
(3) Hidden treasure finder gets by
occupation; landowner gets by If the things found be of interest to science
accession; except in CPG system, share or the arts, the State may acquire them at
goes to the partnership. their just price, which shall be divided in
conformity with the rule stated.

A.3. SPECIAL RULES [NCC 716]


v. Lost Movables; Procedure After
Finding Lost Movables [NCC 719]
i. Occupation of a Swarm of Bees
Whoever finds a movable, which is not
The owner of a swarm of bees shall have a treasure, must return it to its previous
right to pursue them to anothers land, possessor.
indemnifying the possessor of the latter for
If unknown, the finder shall immediately
the damage.
deposit it with the mayor of the city or
If the owner has not pursued the swarm, or municipality where the finding has taken
ceases to do so within 2 consecutive days, place.
the possessor of the land may occupy or
The finding shall be publicly announced by
retain the same, the owner having lost his
the mayor for two consecutive weeks in the
ownership by leaving, abandoned them (no
way he deems best.
more intention to recover)
If the movable cannot be kept without
The 20 days to be counted from their
deterioration, or without expenses which
occupation by another person. This period
considerably diminish its value, it shall be
having expired, they shall pertain to him
sold at a public auction eight days after the
who has caught and kept them.
publication.

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Six months from the publication having (4) Form as prescribed by law; and
elapsed without the owner having
(5) Impoverishment of donors patrimony
appeared, the thing found, or its value, shall
and enrichment on part of donee.
be awarded to the finder. The finder and the
owner shall be obliged, as the case may be,
to reimburse the expenses.
B.4. WHAT MAY BE DONATED
If the owner should appear in time, he shall
(1) All present property or part thereof of
be obliged to pay, as a reward to the finder,
the donor
one-tenth of the sum or of the price of the
thing found. (2) Provided he reserves, in full ownership
or usufruct, sufficient means for support
of himself and all relatives entitled to be
B. DONATION supported by donor at the time of
acceptance.
Donation is an act of liberality whereby a
person disposes gratuitously of a thing or (3) Provided that no person may give or
right in favor of another, who accepts it. receive by way of donation, more than
(Simple donation) he may give or receive by will [NCC 752];
also, reserves property sufficient to pay
donors debts contracted before
B.1. OTHER INSTANCES CONSIDERED AS donation, otherwise, donation is in
DONATION fraud of creditors [NCC 759, 1387].
When a person gives to another a thing or (4) If donation exceeds the disposable or
right on account of the latter's merits or of free portion of his estate, the donation
the services rendered by him to the donor, is inofficious.
provided they do not constitute a
demandable debt. (Remuneratory
donation) Exceptions:
When the gift imposes upon the donee a (1) Donations provided for in marriage
burden that is less than the value of the settlements between future spouses
thing given. (Onerous donation) must be not more than 1/5 of present
property.
(2) Donation propter nuptias by an
B.2. NATURE ascendant consisting of jewelry,
Bilateral contract creating unilateral furniture or clothing not to exceed 1/10
obligations on the donors part. of disposable portion.
Requires consent of both donor and donee
(except for onerous donation) though it B.5. WHAT MAY NOT BE DONATED
produces obligations only on the side of the
donor, unless it is an onerous donation. (1) Future property
(2) Donations cannot comprehend future
property.
B.3. REQUISITES
(3) Future property is understood as
(1) Consent and capacity of the parties; anything which the donor does not
(2) Animus Donandi (intent to donate); currently own although the donor may
or may not own it later. [Osorio v Osorio
(3) Delivery of thing donated in oral
(1921)]
donation of movable valued at P5,000
or less, oncce proper form is complied (4) Inheritance is NOT considered as future
with, donation is perfected; property. [ibid]

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C. KINDS OF DONATIONS Ordinary Propter Nuptias

as wills)
C.1. AS TO ITS TAKING EFFECT
Lim it as to donation of present
property
i. Donation Inter Vivos [NCC 729]
No limit to donation If present property is
Donation which shall take effect during the of present property donated and
lifetime of the donor, though the property provided legitimes property regime is
shall not be delivered till after the donor's are not impaired. ACP, limited to 1/5.
death.
Irrevocable EXCEPT for the ff Grounds for revocation
grounds:
Law on donations See below [FC 86]
(1) Subsequent birth of the donors
children;
(2) Donors failure to comply with imposed Causes for revocation of donation
conditions; propter nuptias:

(3) Donees ingratitude; or (1) If the marriage is not celebrated or


judicially declared void ab initio, except
(4) Reduction of donation by reason of donations made in the marriage
inofficiousness. settlements;
(2) When the marriage takes place without
ii. Donation by Reason of Marriage/ the consent of the parents or guardian,
Donation Propter Nuptias [FC 86] as required by law;

Requisites: (3) When the marriage is annulled, and the


donee acted in bad faith;
(1) Must be made before the celebration of
marriage; (4) Upon legal separation, the one being
the guilty spouse;
(2) Made in consideration of the marriage;
and (5) If it is with a resolutory condition and
the condition is complied with; or
(3) Made in favor of one or both of the
future spouses. (6) When the donee has committed an act
of ingratitude as specified by the
provisions of the Civil Code on
Ordinary Donations v. Donations donations in general.
Propter Nuptias
Ordinary Propter Nuptias Donation between spouses

Express acceptance General Rule: Every donation or grant of


gratuitous advantage, direct or indirect,
Necessary Not required between the spouses during the marriage
shall be VOID. The prohibition applies to
persons living together as husband and wife
without a valid marriage.
As to future property
Exception: Moderate gifts which the
Cannot include May include future spouses may give each other on the
future property property (same rule occasion of any family rejoicing.

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Inter vivos Mortis causa


Donation Mortis Causa [NCC 728]
As to transfer of ownership for right
It only becomes effective upon the death of of disposition
the donor.
Ownership is Upon acceptance by
The donors death ahead of the donee is a
immediately the donee, but the
suspensive condition for the existence of the
transferred. Delivery effect of such
donation.
of possession is retroacts to the time
allowed after death. of death of the
donor.
Characteristics:
(1) The transferor retains ownership and As to revocation
control of the property while alive;
Irrevocable may be Revocable upon the
(2) The transfer is revocable at will before revoked only for the exclusive will of the
his death; and reasons provided in donor.
(3) The transfer will be VOID if the CC 760, 764, 765.
transferor should survive the transferee.
As to reduction or suppression

When it is excessive When it is excessive


Inter Vivos v. Mortis Causa
or inofficious, being or inofficious, it is
Inter vivos Mortis causa preferred, it is reduced first, or even
reduced only after suppressed.
As to formalities the donations mortis
causa had been
Executed and Must be in the form reduced or
accepted with of a will, with all the exhausted.
formalities formalities for the
prescribed by CC. validity of wills.
Notes:
As to effectivity
The nature of the act, whether its one of
Effective during the Effective after the disposition or of execution, is controlling to
lifetime of the donor. death of the donor. determine whether the donation is mortis
causa or inter vivos.
As to acceptance
What is important is the time of transfer of
Acceptance must be ownership even if transfer of property
made after the death donated may be subject to a condition or a
of the donor, the term.
donation being Whether the donation is inter vivos or mortis
effective only after causa depends on whether the donor
Acceptance must be the death of donor. intended to transfer ownership over the
made during the Acceptance during properties upon the execution of the deed.
lifetime of the donor. the donors lifetime is [Gestopa v. CA (2002)]
premature and
ineffective because
there can be no C.2. AS TO CAUSE OR CONSIDERATION
contract regarding
future inheritance. Sim ple - made out of pure liberality or
because of the merits of the donee.

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Remuneratory - made for services already Onerous donations form governed by


rendered to the donor. the rules of contracts.
Onerous - imposes a burden inferior in
value to property donated.
D.2. PERFECTION
Improper - burden equal in value to
property donated
i. Acceptance
Sub-modo or modal - imposes a
prestation upon donee as to how property Donation is perfected upon the donors
donated will be applied. learning of the acceptance.
Mixed donations e.g. sale for price Acceptance may be made during the
lower than value of property. lifetime of both donor and donee.
A document merely correcting the deed of
donation does not constitute a new deed of
D. FORMALITIES REQUIRED donation so there is no need for a new
acceptance [Osorio v Osorio (1921)]
D.1. HOW MADE AND ACCEPTED
ii. W ho May Accept
i. Movable properties [NCC 748] Donee: must accept personally or through
an authorized person with special power for
The donation of a movable may be made the purpose. [NCC 745]
orally or in writing.
Note:
Oral donation: requires the simultaneous
delivery of the thing or of the document A joint donation (donation to two or more
representing the right donated. persons) could not be accepted by a donee,
independently of the other donee/s.
If the value of the movable donated exceeds [Genato v Lorenzo (1968)]
P5,000, the donation and the acceptance
should be in writing, otherwise, the
donation is void. iii. Tim e Of Acceptance
Acceptance must be done during the
ii. Im m ovable properties [NCC 749] lifetime of the donor and the donee.
Must be made in a public instrument
specifying the donated property and the D.3. QUALIFICATIONS OF DONORS AND
burdens assumed by the donee. DONEES
The acceptance must be either:
(1) In the same instrument; or i. W ho May Give Donations
(2) In another public instrument notified to All persons who may contract and dispose
the donor in authentic form and noted of their property may make a donation.
in both deeds. [NCC 735]
Note:
Exceptions: Donors capacity shall be determined as of
Donations propter nuptias need no the time of the making of the donation.
express acceptance. [NCC 737]

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Capacity to donate is required for donations (b) Any person who has been convicted
inter vivos and NOT in donations mortis of an attempt against the life of the
causa. testator, his or her spouse,
descendants, or ascendants;
Donors capacity is determined as of the
time of the donation. Subsequent incapacity (c) Any person who has accused the
is immaterial. testator of a crime for which the law
prescribes imprisonment for six
years or more, if the accusation has
ii. W ho May Receive Donations been found groundless;
All who are not specially disqualified by law. (d) Any heir of full age who, having
[NCC 738] knowledge of the violent death of
the testator, should fail to report it
Minors and others who cannot enter into a
to an officer of the law within a
contract: acceptance may be made through
month, unless the authorities have
their parents or legal representatives. [NCC
already taken action; this
741]
prohibition shall not apply to cases
Donations made to conceived and unborn wherein, according to law, there is
children: those who would legally represent no obligation to make an
them if they were already born may accept accusation;
the donations. [NCC 737]
(e) Any person convicted of adultery or
concubinage with the spouse of the
iii. W ho May Not Give or Receive testator;
Donations (f) Any person who by fraud, violence,
intimidation, or undue influence
should cause the testator to make a
By reason of public policy [NCC 739] will or to change one already made;
(1) Those made between persons guilty of (g) Any person who by the same means
adultery or concubinage at the time of prevents another from making a
the donation; will, or from revoking one already
(2) Those made between persons guilty of made, or who supplants, conceals,
the same criminal offense if the or alters the latters will;
donation is made in consideration (h) Any person who falsifies or forges a
thereof; or supposed will of the decedent.
(3) Those made to a public officer, his (2) NCC 1027:
spouse, descendants, and/or
ascendants by reason of the office. (a) The priest who heard the confession
of the testator during his last
illness, or the minister of the gospel
By reason of the donees who extended spiritual aid to him
unworthiness or incapacity to succeed during the same period;
[NCC 740, 1032 except (6-8), and (b) The relatives of such priest or
1027 except (4)] minister of the gospel within the
(1) NCC 1032: fourth degree, the church, order,
chapter, community, organization,
(a) Parents who have abandoned their or institution to which such priest or
children or induced their daughters minister may belong;
to lead a corrupt or immoral life, or
attempted against their virtue; (c) A guardian with respect to
testamentary dispositions given by

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a ward in his favor before the final mortgages and other encumbrances
accounts of the guardianship have unless the contrary has been stipulated;
been approved, even if the testator
(6) Donations to several donees jointly: NO
should die after the approval
right of accretion EXCEPT:
thereof; nevertheless, any provision
made by the ward in favor of the (7) When the donor provides otherwise; or
guardian when the latter is his
(8) When the donation to husband and wife
ascendant, descendant, brother,
is joint with the right of accretion
sister, or spouse, shall be valid;
UNLESS the donor provides otherwise.
(d) Any physician, surgeon, nurse,
(9) Donations by a person to his non-heirs
health officer or druggist who took
are collationable. [Liguez v CA]
care of the testator during his last
illness; or (10) Donations made to ones heirs must
expressly prohibit collation to be
(e) Individuals, associations and
exempted from collation. [De Roma v
corporations not permitted by law
CA (1987)]
to inherit.

E.2. SPECIAL PROVISIONS


By reason of prejudice to creditors or
heirs
(1) If donation is made in fraud of creditos i. Reservation by donor of power to
by debtor who is insolvent (rescissible dispose (in whole or in part) or to
for accion pauliana) encumber property donated [NCC
755]
(2) If legitimes of compulsory heirs
infringed upon (donation is inofficious The donor may reserve the right to dispose
(revocation or reduction of donation) of some things donated, or of some
amount, which shall be a charge thereon.
But if he should die without having made
E. EFFECTS OF DONATION / use of this right, the property or amount
LIMITATIONS reserved shall belong to the donee.
Donation of naked ownership to one donee
E.1. IN GENERAL and usufruct to another [NCC 756]
(1) The donee may demand actual delivery The naked ownership and the usufruct may
of thing donated; be donated separately, provided that all the
donees are living at the time of the
(2) The donee is subrogated to the rights of donation.
the donor in the property donated;
(3) The donor is not obliged to warrant the
things donated except in onerous ii. Conventional reversion in favor of
donations where the donor is liable for donor or other person [NCC 757]
eviction up to the extent of the burden; (1) If made in favor of the donor: Reversion
[NCC 754] may be for any case and circumstance.
(4) The donor is liable for eviction or hidden (2) If made in favor of other persons: Such
defects in case of bad faith on his part; persons must be living at the time of the
[NCC 754] donation.
(5) In donation propter nuptias, the donor
must release the property donated from

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If the rule is violated, the stipulation on vi. Excessive/Inofficious Donations


reversion is void but the donation is still
A type of donation in which a person gives
valid.
or receives more than what he may give or
receive by will. [NCC 752]
iii. Paym ent of donors debt [NCC Donation inter vivos, made by a person
758] having no children or descendants,
legitimate or legitimated by subsequent
(1) If expressly stipulated: the donee must
marriage, or illegitimate, may be revoked or
pay only the debts contracted before
reduced by the happening of any of these
the donation unless specified otherwise.
events:
But in no case shall the donee be
responsible for debts exceeding the (1) If the donor, after the donation, should
value of the property donated unless have legitimate or legitimated or
clearly intended. illegitimate children, even though they
be posthumous;
(2) If theres no stipulation the donee will
be answerable only for the donors debt (2) If the child of the donor, whom the
only in case the donation is in fraud of latter believed to be dead when he
creditors. made the donation, should turn out to
be living; or
(3) If the donor subsequently adopt a minor
iv. Illegal or im possible conditions
child.
[NCC 1183]
The donation shall be revoked or reduced
Impossible conditions: those contrary to
insofar as it exceeds the portion that may be
good customs or public policy and those
freely disposed of by will, taking into
prohibited by law shall annul the obligation,
account the whole estate of the donor at the
which depends upon them.
time of the birth, appearance or adoption of
If the obligation is divisible, that part a child [NCC 760].
thereof which is not affected by the
impossible or unlawful condition shall be
valid. Inofficious Donations
The condition not to do an impossible thing The donation shall be reduced with regard
shall be considered as not having been to the excess.
agreed upon.
But this reduction shall not prevent the
donations from taking effect during the life
of the donor, nor shall it bar the donee from
v. Double donations [NCC 744]
appropriating the fruits.
Rule: Priority in time, priority in right.
Only those who, at the time of the donor's
(1) If movable: one who first took death, have a right to the legitime and their
possession in good faith. heirs and successors-in-interest may ask for
the reduction or inofficious donations.
(2) If immovable: one who recorded in
registry of property in good faith If, there being two or more donations, the
disposable portion is not sufficient to cover
(3) If there is no inscription, the one who
all of them, those of the more recent date
first took possession in good faith.
shall be suppressed or reduced with regard
(4) If there is no possession, one who can to the excess.
present the oldest title.

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Scope of am ount [NCC 750-752]


The donations may comprehend all the F.3. THOSE MADE TO A PUBLIC OFFICER
present property of the donor, or part OR HIS WIFE, DESCENDANTS AND
thereof. ASCENDANTS, BY REASON OF HIS
OFFICE
Provided he reserves, in full ownership or in
usufruct, sufficient means for the support of
himself, and of all relatives who, at the time
F.4. THOSE MADE TO PERSONS
of the acceptance of the donation, are by
INCAPACITATED TO SUCCEED BY WILL.
law entitled to be supported by the donor
[NCC 1027]

vii. Donations cannot com prehend


future property. G. REVOCATION V. REDUCTION
Future property is understood anything
which the donor cannot dispose of at the Revocation Reduction
time of the donation.
Total withdrawal of
Amount is only
amount, whether the
viii. In fraud of creditors [NCC 759] insofar as the
legitime is impaired
legitime is prejudiced
Donation is always presumed to be in fraud or not
of creditors, when at the time thereof the
Benefits the donors
donor did not reserve sufficient property to
heirs (except when
pay his debts prior to the donation.
Benefits the donor made on the ground
The donee shall be responsible for donots of the appearance of
debts only when the donation has been a child)
made in fraud of creditors, otherwise
creditors may rescind donation by way of
accion pauliana. G.1. GROUNDS FOR REDUCTION
(1) Inofficiousness
F. VOID DONATIONS [NCC 739-740, A donation where a person gives or
1027] receives more than what he may give or
receive by will is inofficious. [NCC 752]
F.1. THOSE MADE BETWEEN PERSONS (2) Subsequent birth, reappearance of child
WHO WERE GUILTY OF ADULTERY OR or adoption of minor by donor [NCC
CONCUBINAGE AT THE TIME OF THE 760]
DONATION
Effects of subsequent birth,
NOTE: The spouse of the donor or donee reappearance or adoption:
may bring the action for declaration of
nullity and the guilt of the donor and donee (a) A donation is valid if it does not
may be proved by preponderance of exceed the free part computed as of
evidence in the same action. the birth, adoption or reappearance
of the child.
(b) The donee must return the property
F.2. THOSE MADE BETWEEN PERSONS or its value at the time of the
FOUND GUILTY OF THE SAME CRIMINAL donation.
OFFENSE, IN CONSIDERATION THEREOF

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(c) The fruits must be returned from (c) If he unduly refuses him support
the filing of the action. when the donee is legally or morally
bound to give support to the donor.
(d) Mortgages by the donee are valid
but may be discharged subject to
reimbursement from the donee.
Applies to all donations EXCEPT:
(e) Extent of revocation: only to the
(1) Mortis causa
extent of the presumptive legitime
of the child. (2) Propter nuptias
(3) Insufficient means of support (3) Onerous donations
(4) In fraud of creditors Notes:
(5) Prescription 4 years from either: Founded on moral duty: one who received a
donation must be grateful to his benefactor.
(a) Birth of first legitimate child;
Conviction is not necessary.
(b) Legitimation, adoption, recognition
of first child; Time to file action for revocation within 1
yr from knowledge of the offense by donor
(c) Judicial declaration of filiation; or
and it was possible for him to file the case
(d) Knowledge of information on the [NCC 769].
existence of a child believed to be
dead.
W ho may file
Action for revocation on the ground of
G.2. REVOCATION
donees ingratitude is personal to the
(1) Failure to comply with any of the donor; it cannot be filed by donors heirs,
conditions imposed by the donor upon although they may substitute the donor in
the donee case he dies during the pendency of the
case.
(2) For additional legitime for subsequent
birth, reappearance or adoption
(3) Ingratitude Effect of revocation on alienations
and encum brances [NCC 766]
The following cases are forms of
ingratitude: Alienations and mortgages effected before
the notation of the complaint for revocation
(a) If the donee should commit some in the Registry of Property shall subsist.
offense against the person, the
honor or the property of the donor, Later ones shall be void.
or of his wife or children under his
parental authority;
Effect as to fruits [NCC 768]
(b) If the donee imputes to the donor
any criminal offense, or any act When the donation is revoked for any of the
involving moral turpitude, even causes stated in NCC 760, or by reason of
though he should prove it, unless ingratitude, or when it is reduced because it
the crime or the act has been is inofficious, donee shall not return the
committed against the donee fruits except from the filing of the
himself, his wife or children under complaint.
his authority; or If the revocation is based upon
noncompliance with any of the conditions
imposed in the donation, the donee shall

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return not only the property but also the


fruits thereof which he may have received
after having failed to fulfill the condition.

W hat m ay be donated

All present property of the donor or part thereof Limitation:


(1) He reserves in full ownership or in usufruct,
sufficient means for his support and for all
relatives who are at the time of the acceptance of
the donation are, by law, entitled to be supported
Effect of non-reservation: donation is inofficious,
reduction of the donation

(2) He reserves sufficient property at the time of


the donation for the full settlement of his debts
Effect of non-reservation: considered to be a
donation in fraud of creditors subject of accion
pauliana, and donee may be liable for damages

W hat m ay not be donated

(1) Future property; those which the donor cannot


dispose of at the time of the donation [NCC 751]
(2) More than what he may give or receive by will
[NCC 752]
If exceeds: inofficious

Donations made to several persons jointly

No accretion one donee does not get the share Exception: those given to husband and wife,
of the other donees who did not accept [NCC 753] except when the donor otherwise provides

Donor

Who are allowed: All persons who may contract (of Who are not allowed:
legal age) and dispose of their property [NCC 735]
(1) Guardians and trustees with respect to the
property entrusted to them [NCC 736]
Donors capacity is determined at the time of the
making of donation [NCC 737]
(2) Made between person who are guilty of
adultery or concubinage [NCC 739]
Made between persons found guilty of the same
criminal offense, in consideration thereof [NCC
739]

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Donee

Who are allowed to accept donations: Those who Who are not allowed:
are not specifically disqualified by law [NCC 738]
(1) Made between person who are guilty of
Those who are allowed, with qualifications: adultery or concubinage [NCC 739]
Minors, insane/imbecile, deaf-mute and others (2) Made between persons found guilty of the
who are incapacitated [see NCC 38], provided that same criminal offense, in consideration thereof
their acceptance is done through their parents or [NCC 739]
legal representatives [NCC 741]
(3) Made to a public officer or his wife, descendant
(2) Conceived and unborn children, provided that and ascendants, by reason of his office [NCC 739]
the donation is accepted by those who would
(4) Those who cannot succeed by will [NCC 740]
legally represent them if they were already born
Those made to incapacitated persons, although
simulated under the guise of another contract
[NCC 743]

Acceptance of the donation

Who may accept [NCC 745] When to accept: during the lifetime of the donor or
donee [NCC 746]
(1) Donee personally
(2) Authorized person with a special power for the
purpose or with a general sufficient power

W hat the donee acquires with the thing

He shall be subrogated to all the rights and


actions that would pertain to the donor in case of
eviction [NCC 754]

Obligation of the donor

No obligation to warrant [NCC 754] Exception: when the donation is onerous

Obligation of the donee

If the donation so states, the donee may be Exception: when contrary intention clearly appears
obliged to pay the debts previously contracted by
the donor and in no case shall he be responsible
for the debts exceeding the value of the thing
donated [NCC 758]

W hat m ay be reserved by the donor

Right to dispose of some of the things donated, or If the donor dies without exercising this right
of some amount which shall be a charge thereon

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Reversion

The property donated may be restored or returned Limitation to (2): the third person would be living
to at the time of the donation
(1) Donor or his estate; or
(2) Another person

Revocation/Reduction
Tim e of Action Transm issibility Effect Liability (Fruits)

Birth, appearance, adoption

Within 4 years from Transmitted to children Property is returned Fruits returned from the
birth, legitimation and and descendants upon filing of the complaint
If the property has been
adoption the death of donor
sold, its value at the
time of donation shall
be returned.
If the property was
mortgaged, the donor
may redeem the
mortgage, with right to
recover the amount from
the donee

Non-com pliance with condition

Within 4 years from non- May be transmitted to Property returned, Fruits received after
compliance donors heirs and may alienations and having failed to fulfill
be exercised against mortgages void subject condition returned
donees heirs to rights of third persons
in good faith

Ingratitude

Within 1 year after Not transmitted to heirs Property returned, but Fruits received from the
knowledge by donor of of donor/ donee, but if alienations and filing of the complaint
the fact and it was donor dies during mortgages effected returned
possible for him to bring pendency of case, heirs before the notation of
the action may be substituted. the complaint for
revocation in the registry
of property subsist

Failure to reserve sufficient means for support

At any time, by the Not transmissible Reduced to the extent Donee entitled
donor or relatives necessary to provide
entitled to support support

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Tim e of Action Transm issibility Effect Liability (Fruits)

Inofficiousness for being in excess of what the donor can give by will

Within 5 years from the Transmitted to donors Donation takes effect on Donee entitled
death of the donor [NCC heirs the lifetime of donor.
1149] Reduction only upon his
death with regard to the
excess

Fraud against creditors

Rescission within 4 Transmitted to creditors Returned for the benefit Fruits returned/ if
years from the heirs or successors-in- of the creditor who impossible, indemnify
perfection of donation/ interest brought the action creditor for damages
knowledge of the
donation

H. TRADITION H.3. KINDS


It is a derivative mode of acquiring ownership Real Tradition: physical delivery
and other real rights by virtue of which, there Constructive Tradition: when the delivery
being intention and capacity on the part of of the thing is not real or material but
the grantor and grantee and the pre- consists merely in certain facts indicative of
existence of said rights in the estate of the the same
grantor, they are transmitted to the grantee
through a just title. Sym bolical Tradition: done through the
delivery of signs or things which represent
that which is being transmitted. (e.g. keys or
H.1. REQUISITES title itself)
Pre-existence in the estate of the grantor of Tradition by public instrument:
the right to be transmitted; consists in the substitution of real delivery of
possession by a public writing with the
Just cause or title for the transmission; delivery of a document which evidences the
Intention on the part of the grantor to grant transaction.
and on the part of the grantees to acquire; Traditio longa manu: made by the grantor
Capacity to transmit and to acquire; and pointing out to the grantee the thing to be
delivered.
An act that gives it outward form, physically,
symbolically, or legally. Traditio brevi manu: takes place when the
grantee is already in possession of the thing.
(e.g. when the lessee buys the thing leased to
H.2. PURPOSE him)
Ownership and other real rights are Traditio constitutum possessorium:
transferred, among other means, by tradition. similar to brevi manu but in the opposite
sense when the owner alienates a thing but
The delivery of a thing constitutes a remains in possession in another concept as
necessary and indispensable requisite for the lesee or depositary.
purpose of acquiring the ownership of the
same by virtue of a contract.

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Quasi-tradition: delivery of incorporeal


things or rights by the grantee exercising his XII. Prescription
rights with the grantors consent. By prescription, one acquires ownership and
Tradition by operation of law: delivery other real rights through the lapse of time in
which is not included in the foregoing modes the manner and under the conditions laid
of delivery and where the delivery is effected down by law. In the same way, rights and
solely by virtue of an express provision of law, conditions are lost by prescription.
e.g. NCC 1434.

It is a means of acquiring ownership and


other real rights or losing rights or actions to
enforce such rights through the lapse of time.

A. RATIONALE
It is purely statutory in origin. It is founded on
grounds of public policy which requires for
the peace of society, that juridical relations
susceptible of doubt and which may give rise
to disputes, be fixed and established after the
lapse of a determinate time so that
ownership and other rights may be certain for
those who have claim in them.

B. KINDS OF PRESCRIPTION
(1) Acquisitive prescription
(2) Extinctive prescription

B.1. ACQUISITIVE PRESCRIPTION


The acquisition of ownership and other real
rights through possession in the concept of
owner of a thing in the manner and condition
provided by law.

May be ordinary or extraordinary:


Ordinary: requires possession of things in
good faith and with just title for the time fixed
by law.
Extraordinary: acquisition of ownership
and other real rights without need of title or
of good faith or any other condition.

Prescription where possession in good


faith converted into possession in bad
faith:

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(1) Ordinary Acquisitive Extinctive


Movable properties - 4 years Prescription Prescription

Immovable properties - 10 years Requires positive Requires inaction of


action of the the owner out of
(2) Extraordinary: possessor (a possession or neglect
Movable properties - 8 years claimant) who is not of one with a right to
the owner bring his action
Immovable properties - 30 years
Applicable to all
Applicable to
kinds of rights,
ownership and other
As a mode of acquisition, prescription whether real or
real rights
requires existence of following: personal
(1) Capacity of the claimant to acquire by Vests the property Vests the property
prescription; and raise a new title and raise a new title
(2) A thing capable of acquisition by in the occupant in the occupant
prescription;
Results in the Merely results in the
(3) Adverse possession of the thing under acquisition of loss of a real or
certain conditions; and ownership or other personal right, or
(4) Lapse of time provided by law. real rights in a bars the cause of
person as well as the action to enforce said
(5) Possession must be in the concept of loss of said right
owner, not holder. ownership or real
rights in another

The following are only required in ordinary Can be proven under Should be
acquisitive prescription: the general issue affirmatively pleaded
without its being and proved to bar the
(1) Good faith of the possessor; and
affirmatively pleaded action or claim of the
(2) Proof of just title adverse party

Note: C. NO PRESCRIPTION APPLICABLE


For extraordinary prescription, only
possession in the concept of owner is
required; no need of good faith and just title. C.1. BY OFFENDER
Possession has to be in the concept of an The offender can never acquire, through
owner, public, peaceful, and uninterrupted. prescription, movable properties possessed
through a crime.

B.2. EXTINCTIVE PRESCRIPTION


C.2. REGISTERED LANDS
The loss or extinguishment of property rights
or actions through the possession by another PD 1529 (Amending and codifying the laws
of a thing for the period provided by law or relative to registration of property and for
through failure to bring the necessary action other purposes)
to enforce ones right within the period fixed No title to registered land in derogation of
by law. the title of the registered owner shall be
acquired by prescription or adverse
possession.

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C.8. PRESCRIPTION DISTINGUISHED


FROM LACHES
C.3. RIGHTS NOT EXTINGUISHED