UST GN 2011 Civil Law Proper

EFFECT AND APPLICATION OF LAWS
I.EFFECTANDAPPLICATIONOFLAWS Inasmuch as the law has no specific date for its

effectivity and neither can it become effective
A.WHENLAWTAKESEFFECT upon its approval notwithstanding its express
statement, following Article 2 of the Civil Code
Q:WhendidtheCivilCodetakeeffect? and the doctrine enunciated in Tanada, supra, it
took effect fifteen days after its publication.
A:August30,1950 (Umali v Estanislao, G.R. No. 104037, May 29,
1992,[citingTanadav.Tuvera,G.R.No.L63915,
Q:Whendolawstakeeffect? Dec.29,1986])

A:Lawstakeeffect: RULESONPUBLICATION

GR:After15daysfollowingthecompletionof Q:Arealllawsrequiredtobepublished?
its publication in the official gazette or
newspaperofgeneralcirculation. A:
GR:Yes.Publicationisindispensable.
Note: after 15 days Law shall take effect on
the16thdayfromdateofpublication XPN:
1. MunicipalOrdinances(governedbythe
XPN:unlessotherwiseprovidedbythelaw. Local Government Code not the Civil
Code)
Q: What is meant by the phrase unless it is 2. Rules and regulations that are internal
otherwise provided in the provision on innature.
effectivityoflaws? 3. Letters of Instruction issued by
administrative supervisors on internal
A:15dayperiodmaybelengthenedorshortened rulesandguidelines.
by Congress. The exception refers to the 15day 4. Interpretative regulations regulating
period, not the requirement of publication, only the personnel of administrative
publicationbeingmandatedbydueprocess. agency.

Note: No one shall be charged with notice of the XPN to the XPN: Administrative rules and
statutesprovisionuntilthepublicationiscompleted regulationsthatrequirepublication:
andthe15dayperiodhasexpired.Thelawproduces 1. The purpose of which is to implement
no effect until and unless it completes the
or enforce existing laws pursuant to a
requirementofpublication.
validdelegation;
2. PenalinNature;
Q:Whenwillthelawtakeeffectifitismadeto
3. It diminishes existing rights of certain
takeeffectimmediately?
individuals

A: It shall take effect immediately after
Q: Honasan questions the authority and
publication.The15dayperiodafterpublicationis
jurisdiction of the DOJ panel of prosecutors to
dispensedwithbutpublicationisnot.
conduct a preliminary investigation and to
eventuallyfilechargesagainsthim,claimingthat
Q:Whenwillthelawtakeeffectifitstatesthat
sinceheisasenatorwithasalarygradeof31,it
itshallbeeffectiveuponapproval?
is the Office of the Ombudsman, not the DOJ,
which has authority and jurisdiction to conduct

A: The clause "unless it is otherwise provided"
the preliminary investigation. DOJ claims that it
refers to the date of effectivity and not to the
has concurrent jurisdiction, invoking an OMB
requirementofpublicationitself,whichcannotin
DOJ Joint Circular which outlines the authority
anyeventbeomitted.Thisclausedoesnotmean
and responsibilities among prosecutors of the
that the legislator may make the law effective
DOJ and the Office of the Ombudsman in the
immediatelyuponapproval,oronanyotherdate
conduct of preliminary investigations. Honasan
withoutitspreviouspublication.
countersthatsaidcircularisineffectiveasitwas
neverpublished.
Publicationisindispensableineverycase,butthe

legislature may in its discretion provide that the
Is OMBDOJ Circular No. 95001 ineffective
usual fifteenday period shall be shortened or
becauseitwasnotpublished?
extended.

1
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII UNIVERSITYOFSANTOTOMAS
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICE C HAIRFORA DMINISTRATIONANDF INANCE : JEANELLE C. LEE Facultad de Derecho Civil
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
UST GOLDEN NOTES 2011

A:No.OMBDOJCircularNo.95001ismerelyan 3. It has a bona fide subscription list of
internal circular between the two offices which payingsubscribers
outlinestheauthorityandresponsibilitiesamong 4. Not merely caters to a specific class of
prosecutors of the DOJ and of the Office of the persons.
Ombudsman in the conduct of preliminary 5. Itispublishedatregularintervals.
investigations. It does not contain any penal
provision nor prescribe a mandatory act or B.IGNORANCEOFTHELAW
prohibit any under pain of penalty. Further, it
does not regulate the conduct of persons or the Q: Differentiate mistake of law from mistake of
public, in general. As such therefore, it need not fact.
be published. (Honasan, II v. The Panel of
Investigating Prosecutors of the Department of A:
Justice,G.R.No.159747,Jun.15,2004) MISTAKEOFFACT MISTAKEOFLAW
Wantofknowledgeor
Wantofknowledgeof
Q: What is the effect of nonpublication of the acquaintancewiththe
somefactorfacts
law? lawsofthelandinsofar
constitutingorrelating
astheyapplytotheact,
tothesubjectmatterin
A: The law shall not be effective. It is a violation relation,duty,ormatter
hand.
ofdueprocess. underconsideration.
Whensomefactswhich Occurswhenaperson
Q: What must be published in order to comply reallyexistareunknown havingfullknowledgeof
orsomefactis thefactscometoan
withthepublicationrequirement?
supposedtoexistwhich erroneousconclusionas

reallydoesnotexist. toitslegaleffects
A: Publication must be in full or it is no
Notexcusable,evenifin
publicationatallsinceitspurposeistoinformthe Goodfaithisanexcuse
goodfaith
public of the contents of the lawsthe mere

mention of the number of the presidential Note:Ignoranceofaforeignlawisamistakeoffact
decree,thetitleofsuchdecree,itswhereabouts,
the supposed date of effectivity, and in a mere Q: Tina charged Eduardo with bigamy. He
supplementoftheOfficialGazettecannotsatisfy invokes as defense good faith and that he did
the publication requirement. This is not even not know that there was still a need for a prior
substantial compliance. (Taada v. Tuvera, G.R. declaration of nullity of marriage before he can
No.L63915,Dec.29,1986) contract a subsequent marriage. Is his defense
tenable?
Q:Judicialdecisionsformpartofthelaworthe
legalsystemoftheland.Iscompliancewiththe A: No. Eduardo is presumed to have acted with
publication requirement for effectivity of laws maliceorevilintentwhenhemarriedTina.Asa
necessaryforjudicialdecisionstobeeffective? general rule, mistake of fact or good faith of the
accused is a valid defense in a prosecution for a
A: No. The term laws do not include decisions felony by dolo; such defense negates malice or
of the Supreme Court because lawyers in the criminalintent.However,ignoranceofthelawis
active law practice must keep abreast of not an excuse because everyone is presumed to
decisions, particularly where issues have been knowthelaw.Ignorantialegisneminemexcusat.
clarified, consistently reiterated and published in (Manuel v. People, G.R. No. 165842, Nov. 29,
advancereportsandtheSCRA(Royv.CA,G.R.No. 2005)
80718,Jan.29,1988)
Q: Eduardo was married to Ruby. He then
Q:Publicationmustbemadeinanewspaperof
metTinaandproposedmarriage,assuringher
general circulation or in the Official
thathewassingle.Theygotmarriedandlived
Gazette.When is a newspaper of general
together.Tina, upon learning that Eduardo
circulation?
had been previously married, charged
A: Eduardo for bigamy for which he was
1. It is published within the courts convicted.
jurisdiction
2. Published for disseminating local news Eduardo testified that he declared he was
andgeneralinformation. single because he believed in good faith
that his first wife was already dead, having
2 CIVILLAWTEAM:
ADVISER:ATTY.ELMERT.RABUYA;SUBJECTHEAD:ALFREDOB.DIMAFELIXII;
ASST.SUBJECTHEADS:KARENFELIZG.SUPNAD,LAMBERTOL.SANTOSIII;MEMBERS:PAULELBERTE.AMON,ALSTONANARNA,OZANJ.
FULLEROS,CECILIOM.JIMENO,JR.,ISMAELSARANGAYA,JR.;CONTRIBUTORS:LOISERAEG.NAVAL,MONICAJUCOM

not heard from her for 20 years, and thathe 8. Penal laws favorable to the accused
did not know that he had to go to court to provided, accused is not a habitual
seek for the nullification of his first marriage criminal
beforemarryingTina.
XPN to the XPN: constitutional limits, where
IsEduardoliableforthecrimeofbigamy? retroactivitywouldresultto:IE
1. Impairmentofobligationofcontracts
2. ExPostFactoLaws
A: Yes. Eduardo is presumed to have acted

with malice or evil intent when he married
Note:Incaseofdoubt:lawsapplyprospectively,not
Tina.Asageneralrule,mistakeoffactorgood retroactively.
faith of the accused is a valid defense in a
prosecutionforafelonybydolo;suchdefense Q: May judicial decisions be given retroactive
negates malice or criminal intent. However, effect?
ignoranceofthelawisnotanexcusebecause
everyoneispresumedtoknowthelaw.Itwas A: No. When a doctrine of the Supreme Court is
theburdenoftheEduardotoprovehisdefense overruled and a different view is adopted, the
that when he married the Tina, he was of the newdoctrineshouldbeappliedprospectivelyand
wellgrounded belief that his first wife was shouldnotapplytopartieswhohadreliedonthe
already dead. He should have adduced in old doctrine and acted on the faith thereon.
evidence a decision of a competent court (Rabuya,p.10)
declaring the presumptive death of his first
wife as required by Article 349 of the Revised D.MANDATORYORPROHIBITORYLAWS
Penal Code, in relation to Article 41 of the
Q:Whatisthestatusofactswhicharecontrary
Family Code. Such judicial declaration also
tolaw?
constitutes proof thatEduardo acted in good

faith, and would negate criminalintent on his
A:
partwhenhemarriedtheprivatecomplainant GR:Actsthatarecontrarytotheprovisionsof
and, as a consequence, he could not be held mandatory and proibitory law are void. (Art.
guilty of bigamy in such case. Eduardo, 5,NCC)
however, failed to discharge his burden.
(Manuel v. People, G.R. No. 165842, Nov. 29, XPN:Wherethelaw:
2005) 1. Makes the act valid but punishes the
violator,
Q:Whatistheruleasregardsdifficultquestions e.g. Marriage solemnized by a person
oflaw? notauthorizedtodoso;
2. Itselfauthorizesitsvalidity;
A: In specific instances provided by law, mistake 3. Makestheactmerelyvoidablei.e.valid
astodifficultquestionsoflawhasbeengiventhe untilannulled;
same effect as a mistake of fact. E.g. Mistake 4. Declares the nullity of an act but
upon a doubtful or difficult question of law may recognizesitseffectsaslegallyexisting,
bethebasisofgoodfaith.[Art.526(3)] e.g. Child born after the annulment of
marriageisconsideredlegitimate.
C.RETROACTIVITYOFLAWS
E.WAIVEROFRIGHTS
Q:Dolawshaveretroactiveeffect?
Q:Whatisaright?
A:
GR:Lawsshallhavenoretroactiveeffect. A: It is a legally enforceable claim of one person
against another, that the other shall do a given
XPN:TINCREEP act,orshallnotdoagivenact(Pineda,Persons,p.
1. Taxlaws 23)
2. Interpretativestatutes
3. LawscreatingNewRights
4. CurativeStatutes
5. Remedial/procedural
6. EmergencyLaws
7. WhenExpresslyprovided
3

Q:Whatarethekindsofrights?Distinguish. 2. The one waiving such right must have
Knowledgeofevidencethereof
A: 3. Intention to relinquish said right.
1. Natural Rights Those which grow out (Valderamma v. Macalde, G.R.
ofthenatureofmananddependupon No.165005,Sept.16,2005)
personality.
Q:Whataretherequisitesofavalidwaiver?
E.g. right to life, liberty, privacy, and
goodreputation. A:AFCUNF
1. Waiving party must Actually have the
2. PoliticalRightsConsistinthepowerto rightheisrenouncing.
participate, directly or indirectly, in the 2. HemusthaveFullcapacitytomakethe
establishment or administration of waiver
government. 3. WaivermustbeClearandUnequivocal
4. Waiver must Not be contrary to law,
E.g. right of suffrage, right to hold publicorder,publicmorals,etc.
publicoffice,rightofpetition. 5. When Formalities are required, they
mustbecompliedwith.
3. Civil Rights Those that pertain to a
person by virtue of his citizenship in a F.REPEALOFLAWS
stateorcommunity.
Q:Whatarethekindsofrepeal?Distinguish.
E.g. property rights, marriage, equal
protectionoflaws,freedomofcontract, A:Repealmaybeexpressorimplied.Itisexpress
trialbyjury.(Pineda,Persons,p.24) if the law expressly provides for such. On the
a. Rights of personalty or human other hand, it is implied when the provisions of
rights; the subsequent law are incompatible or
b. Familyrights;and inconsistentwiththoseofthepreviouslaw.
c. Patrimonialrights:
i. Realrights Q:Whataretherequisitesofimpliedrepeal?
ii. Personal rights. (Rabuya
Persons,p.19) A:
1. Lawscoverthesamesubjectmatter
Q:Mayrightsbewaived? 2. Latterisrepugnanttotheearlier

A: Q:Whatistheruleonrepealofrepealinglaws?
GR:Yes.
A:Itdependsuponhowtheoldlawisrepealedby
XPN: therepealinglaw:
1. Ifwaiveris:
a. Contrarytolaw,publicorder, 1. If the old law is expressly repealed and
publicpolicy,moralsorgood repealinglawisrepealed:theOldlawis
customs. notrevived
b. Prejudicialtoathirdperson 2. If the old law is impliedly repealed and
witharightrecognizedby repealinglawisrepealed:theOldlawis
law. revived.

Note: Unless the law otherwise provides, in both
2. Iftherightis: cases.
a. Anaturalright,suchasright
tolife. G.JUDICIALDECISIONS
b. Inchoate,suchasfuture
inheritance. Q: Are judicial decisions considered laws in this
jurisdiction?
Q:Whataretheelementsofwaiverofrights?
A: No. Decisions of the Supreme Court, although
A:EKI inthemselvesnotlaws,areneverthelessevidence
1. MustbeanExistingright ofwhatthelawsmean.

4 CIVILLAWTEAM:

Q: When do judicial decisions form part of the A:Thesearerulesofconduct,legallybindingand

lawoftheland? obligatory,formedbyrepetitionofactsuniformly
observedasasocialrule.
A:
GR: As of the date of the enactment of said Q:Howarecustomsproved?
law. This is so because the Supreme Courts
interpretation merely establishes the A:
contemporaneous legislative intent that the GR:Mustbeprovedasafact,accordingtothe
construedlawpurportstocarryintoeffect. rulesonevidence.

XPN: When a doctrine is overruled and a XPN: Courts may take judicial notice of a
different view is adopted, the new doctrine customifthereisalreadyadecisionrendered
should be applied prospectively and should bythesamecourtrecognizingthecustom.
not prejudice parties who relied on the old
doctrine. Q:Whataretherequisitestomakeacustoman
obligatoryrule?
Q:Explaintheconceptofstaredecisis.
A:PTOP
A: It is adherence to judicial precedents. Once a 1. PluralityorRepetitionofacts
questionoflawhasbeenexaminedanddecided, 2. PracticedforalongperiodofTime
itshouldbedeemedsettledandclosedtofurther 3. The community accepts it as a proper
argument. wayofacting,suchthatitisconsidered
Obligatoryuponall.
Note:Thisdoctrinehoweverisnotinflexible,sothat 4. Practicedbythegreatmassofthesocial
wheninthe light of changing conditions, a rulehas group.
ceased to be beneficial to the society, courts may
departfromit. Q:Maycourtsapplycustomsindecidingcases?

Courtsarerequiredtofollowtheruleestablishedin A:
earlierdecisionsoftheSupremeCourt. 1. In civil cases, customs may be applied
by the courts in cases where the
H.DUTYTORENDERJUDGMENT applicablelawis:SOI
a. Silent
Q:CantheCourtdeclinetorenderjudgmentby b. Obscure
reasonofsilenceofthelaw? c. Insufficient

A: No.No judge or court shall decline to render Providedsaidcustomsarenotcontrary
judgment by reason of the silence, obscurity or tolaw,publicmorals,etc.
insufficiencyofthelaw.
2. In criminal cases, customs cannot be
Note: However, this duty is not a license for courts
applied because nullum crimen nulla
to engage in judicial legislation. The duty of the
poena sine lege (There is neither crime
courts is to apply or interpret the law, not to make
oramendit.
norpunishment,withoutalaw).

I.PRESUMPTIONANDAPPLICABILITYOF J.LEGALPERIODSS
CUSTOM
Q:Howdoyoucomputetheperiods?
Q: What is the presumption in case there is
doubt in the interpretation or application of A:Year365days
laws? Month30days
Day24hours
A: That the lawmaking body intended right and Nighttimefromsunsettosunrise
justicetoprevail(Art.10).
Note:Month:ifdesignatedbyitsname:computeby

thenumberofdayswhichitrespectivelyhas.
Q:Whatarecustoms?

Week: 7 successive days regardless of which day it
wouldstart

5

Calendarweek:SundaytoSaturday consideringthatthe730thdayfellonSeptember
2,1965theyear1964beingaleapyear.
Note: In Commissioner of Internal Revenue v.
PrimetownPropertyGroup,Inc.,theSCruledthatas With the approval of the Civil Code of the
betweentheCivilCode,whichprovidesthatayearis Philippines (R.A. 386) we have reverted to the
equivalentto365days,andtheAdministrativeCode provisionsoftheSpanishCivilCodeinaccordance
of1987,whichstatesthatayeariscomposedof12 with which a month is to be considered as the
calendar months, it is the latter that must prevail
regular30monthandnotthesolarorcivilmonth
following the legal maxim, Lex posteriori derogat
with the particularity that, whereas the Spanish
priori.
Civil Code merely mentioned 'months, days or

nights,' ours has added thereto the term 'years'
Q:Whatisthemannerofcountingperiods?
andexplicitlyordainsinArticle13thatitshallbe

understoodthatyearsareofthreehundredsixty
A:Excludethefirst,includethelast;
five days.(People v. Ramos GR L25265, May 9,

1978,Ramosv.RamosGRL25644,May9,1978)
Step 1. From the reckoning date, add the period
However, when the year in questioned is a leap
ornumberofdayswhichwillexpire.
year, the 365 day rule is not followed because

February 28 and 29 of a leap year should be
e.g.Calendardays,notleapyear:
countedasseparatedaysincomputingperiodsof

prescription (NAMARCO vs Tuazon, GR No L
Dateofcommission=September3,2005
29131,Aug.27,1969).
Prescriptiveperiod=90daysfromcommission

Q: What is the rule if the last day falls on a
3+90=93
Sundayoralegalholiday?

Step 2. From the total, subtract the number of
A: It depends. If the act to be performed within
days, calendar or not, until the difference is less
theperiodis:
that the number of days in a month. This

difference shall be the date in the month
1. Prescribedorallowedby:ROO
immediately succeeding the last month whose
a. theRulesofCourt
numberofdayswassubtracted.
b. anOrderofthecourt;or

c. anyOtherapplicablestatute
93

Less: September 30 =63
The last day will automatically be the
Less: October 31 =32
nextworkingday.
Less: November 30 =2

(December)
2. Arisesfromacontractualrelationship

theactwillstillbecomeduedespitethe
November is the last month whose number of
fact that the last day falls on a Sunday
days was subtracted; hence, the remaining
oralegalholiday.
differenceof2shallbethedateinDecember,the

monthimmediatelysucceedingNovember.
K.APPLICABILITYOFPENALLAWS

Hence, the last day for filing the action is
Q: When, where and upon whom do the
December2,2005.
followinglawsapply?

Q: In a case for violation of the Copyright law
1. Penal laws Penal laws and laws of
filed against her, Soccoro countered by saying
public security and safety shall be
that since the crime was found out on
obligatory upon all those who live or
September 3, 1963, while the information was
sojourn in the Philippine territory (Art.
filed on September 3, 1965, the crime had
14,NCC)
already prescribed, since 1964 was a leap year.

Hasthecrimeprescribed?
GR:TerritorialityruleObligatorytoall

who live or sojourn in Philippine
A:Yes.Namarcov.TuazonheldthatFebruary28
territory.(Art.2,RPC)
and 29 of a leap year should be counted as

separate days in computing periods of
XPN: Treaty stipulations, Public
prescription. Since this case was filed on
InternationalLawprinciples.
September3,1965,itwasfiledonedaytoolate;
6 CIVILLAWTEAM:

E.g. governed by the laws of the country in

a. Ambassadors whichtheyareexecuted
b. Ministers
c. International agencies enjoying XPN: Philippine law shall apply in the
diplomaticimmunity followingcaseseventhoughperformed
abroad:
2. Status laws Laws relating to family a. Acts are executed before the
rights and duties, status, condition and diplomatic or consular officials of
legal capacity of persons are binding thePhilippines.
upon citizens of the Philippines b. Prohibitory laws concerning
eventhoughlivingabroad(Art.15,NCC) persons,theiractsorproperty,and
those which have for their object
GR:Nationality rule Binding upon public order, public policy and
citizens of the Philippines, eventhough goodcustoms.(Art.17,NCC)
livingabroad.
Q:Whatisalaw?
XPN:
a. In case of divorce obtained validly A: In its jural and concrete sense, law means a
by an alien pursuant to the rules rule of conduct formulated and made obligatory
that governs his country, the bylegitimatepowerofthestate.(Diaz,Statutory
Filipinospouseshallbeconsidered Construction,p.1)
alsoasdivorced.
b. Domiciliaryruleappliestostateless Q: What is the effect of laws, judgments
persons promulgated or conventions agreed upon in a
foreigncountryonPhilippinelaws?
Note: the basis for determining the
personallawofanindividualiseitherthe A:Asregardsprohibitivelaws:
Domiciliary Rule (Domicile) or Nationality
Rule(Citizenship) GR:Prohibitivelawsconcerningpersons,their
acts, or property and laws which have for
3. RealStatutesLawsonProperty theirobjectpublicorder,publicpolicyorgood
customsarenotrenderedineffectivebylaws,
GR:LexReiSitaeRealpropertyaswell judgments promulgated or conventions
as personal property is subject to the agreeduponinforeigncountry.
law of the country where it is situated.
(Art.16) XPN:Art26,par.2oftheFamilyCode(FC),on
mixed marriages where the foreigner
XPN:LexNationaliiNationallawofthe obtained a divorce decree abroad and was
person whose succession is under therebycapacitatedtoremarry.
consideration, applies to:
Testate/Intestate Succession as to 3 Note: in this case, even though divorce is not
thingsonly:OAI recognized in the Philippines as a mode of
a. Orderofsuccession terminating marriage, still the marriage is
b. Amountofsuccessionalrights terminated by virtue of a judgment of divorce and
c. Intrinsic validity of the issuanceofadivorcedecreebyaforeigncourt.
testamentaryprovisions.
L.CONFLICTOFLAWS,RELATIVETODIVORCE
Note:Theenumerationaboveisgoverned
by the national law of the decedent, Q: The second clause of the will of Joseph, a
regardlessofplaceofdeath. TurkishcitizenandaresidentofthePhilippines,
statesthat:

4. Law governing extrinsic validity of xxx, it is my wish that the distribution of
contracts,willsandpublicinstruments. my property and everything in connection
withthis,mywill,bemadeanddisposedof
GR:Lexlocicelebrationis(Art.17)forms inaccordancewiththelawsinforceinthe
and solemnities of contracts, wills and Philippine Islands, requesting all of my
other public instruments shall be relatives to respect this wish, otherwise, I
annul and cancel beforehand whatever
7

disposition found in this will favorable to
the person or persons who fail to comply Q: Edward is a citizen of California domiciled in
withthisrequest. the Philippines. After he executed his will, he
went back to America and stayed there. During
Istheclauseabovequotedvalid? the post mortem probate of the will, Helen, his
illegitimate natural child, opposed it on the
A: No, it is void. The second clause of the will groundofpreterition.SheclaimsthatunderArt.
regarding the law which shall govern it and the 16par.2oftheCivilCode,incaseofsuccession,
condition imposed, is null and void, being thenationallawofthedeceasedthecivilcode
contrary to law. Article 792 of the Civil Code of California should govern., which provides
provides that Impossible conditions and those that if a Californian not domiciled in California
contrary to law or good morals shall be dies, the law of his domicile must govern. Lucy,
considered as not imposed and shall not ontheotherhand,countersthatunderthesame
prejudice the heir or legatee in any manner provision, the national law of the deceased
whatsoever, even should the testator otherwise should apply. Which law should be applied
provide. PhilippinelaworCalifornianLaw?

Saidclauseiscontrarytolawbecauseitexpressly A: Philippine Law should be applied. Where the
ignores the testator's national law when, testator (Edward) was a citizenof California, and
according to article 10 of the Civil Code, such domiciled in the Philippines, the amount of
national law of the testator is the one to govern successional rights should be governed by his
histestamentarydispositions.Saidconditionthen national law, that is, Californian law. However,
is considered unwritten, hence the institution of theconflictoflawrulesofCaliforniaprovidesthat
legatees is unconditional and consequently valid in cases of citizens who are residents of another
andeffective. country,thelawofthecountryofdomicileshould
apply, hence, Philippine law on legitimes should
Q:Explainthefollowingdoctrines: beapplied.ThisissobecauseCalifornialawitself
refers the case back to the Philippines. The
A: Philippine court has no other alternative but to
1. Renvoi Doctrine(referring back) accept the referring back, for to do otherwise,
Renvoi takes place when the conflicts might result again in its referring back to the
ruleoftheforummakesareferenceto Philippines,whichwouldgiverisetoasortofan
a foreign law, but the foreign law is internationalfootball.(Aznarv.Garcia,G.R.No.
found to contain a conflict rule that L16749.Jan.31,1963)
returnsorrefersthematterbacktothe
lawoftheforum(Remission).

2. Transmission theory Provides that
when the conflicts rule of the forum
makesareferencetoaforeignlaw,but
the foreign law is found to contain a
conflict rule that refers it to a third
country, the law of the third country
shallapply.

3. Doctrine of Processual Presumption
The foreign law, whenever applicable,
should be proved by the proponent
thereof, otherwise, such law shall be
presumedtobeexactlythesameasthe
lawoftheforum.

4. DoctrineofOperativeFactsActsdone
pursuant to a law which was
subsequently declared unconstitutional
remainvalid,butnotwhentheactsare
done after the declaration of
unconstitutionality.
8 CIVILLAWTEAM:

HUMAN RELATIONS
HUMANRELATIONS fulfill that promise thereafter becomes the

proximatecauseofthegivingofherselfuntohim
A.BREACHOFPROMISETOMARRY in a sexual congress, proof that the promise was
onlyadeceptivedevicetoinveiglehertoobtain
Q: Is breach of promise to marry an actionable her consent to the sexual act, could justify the
wrong? award of damages pursuant to Article 21 not
becauseofsuchpromisetomarrybutbecauseof
A: the fraud and deceit behind it and the willful
GR:No,abreachofpromisetomarryperseinnot injury to her honor and reputation which
anactionablewrong.Thereisnoprovisionofthe followedthereafter.Itisessential,however,that
Civil Code authorizing an action for breach of such injury should have been committed in a
promisetomarry. manner contrary to morals, good customs or
public policy. In the instant case, Ayatollah's
XPN: When the act is not a mere breach of fraudulentanddeceptiveprotestationsoflovefor
promise to marry but constitutes one where and promise to marry Maria that made her
damagespursuanttoArt.21oftheCivilCodemay surrenderhervirtueandwomanhoodtohimand
berecovered,suchas: tolivewithhimonthehonestandsincerebelief
thathewouldkeepsaidpromise,Inshort,Maria
1. Where the woman is a victim of moral surrendered her virginity, the cherished
seduction. (Gashem Shookat Baksh v. possessionofeverysingleFilipina,notbecauseof
CA,G.R.No.97336,February19,1993) lust but because of moral seduction.(Gashem
ShookatBakshv.CA,G.R.No.97336,February19,
2. Whereoneformallysetsaweddingand 1993)
go through and spend for all the
preparationsandpublicity,onlytowalk Q: Soledad a highschool teacher used to go
out of it when the matrimony was aroundtogetherwithFrancisco,whowasalmost
about to be solemnized.( Wassmer v. ten (10) years younger than she. Eventually,
Velez,G.R.No.L20089,December26, intimacydevelopedbetweenthemafterSoledad
1964) became an underwriter in Cebu. One evening,
after coming from the movies, they had sexual
Q: Maria met Ayatollah, an Iranian medical intercourse in Francisco's cabin on board M/V
student,attherestaurantwheresheworked.A "Escao," to which he was then attached as
fewdaysafter,Ayatollahcourtedandproposed apprentice pilot. After a few months, Soledad
to marry Maria. The latter accepted his love on advised Francisco that she was pregnant,
theconditionthattheywouldgetmarried;they whereupon he promised to marry her. Later
therefore agreed to get married. When the their child was born. However, subsequently,
couple visited Maria's parents, Ayatollah was Franciscomarriedanotherwoman.Soledadfiled
allowedtosleepwithMariaduringthefewdays a complaint for moral damages for alleged
of their stay. The couple continued to live breachofpromisetomarry.Maymoraldamages
together in an apartment. However, Ayatollah's berecoveredforbreachofpromisetomarry?
attitude towards Maria changed. He maltreated
herandwhenMariabecamepregnant,Ayatollah A: No. It is the clear and manifest intent of our
gave her medicine to abort the fetus. Despite law making body not to sanction actions for
the abuses, Maria continued to live with breachofpromisetomarry.Moreover,Francisco
Ayatollahandkeptremindinghimofhispromise is not morally guilty of seduction, not only
to marry her. However,Ayatollah told her that because he is approximately ten (10) years
he could not do so because he was already younger than the complainant who around
married to a girl in Bacolod City. Maria left and thirtysix (36) years of age, and as highly
filed a complaint for damages against Ayatollah enlightenedasaformerhighschoolteacheranda
for the alleged violation of their agreement to life insurance agent are supposed to be when
get married. May damages be recovered for a she became intimate with him, then a mere
breach of promise to marry on the basis of apprentice pilot, but, also, because, the court of
Article21oftheCivilCode? first instance found that, complainant
"surrendered herself" to Francisco because,
A:Abreachofpromisetomarryperseisnotan "overwhelmedbyherlove"forhim,she"wanted
actionablewrong.Butwhereaman'spromiseto to bind" "by having a fruit of their engagement
marryistheproximatecauseoftheacceptanceof even before they had the benefit of clergy.
his love by a woman and his representation to
9

(Hermosisimav.CA,G.R.No.L14628,September
30,1960)

Note: To constitute seduction there must be some
sufficient promise or inducement and the woman
must yield because of the promise or other
inducement.Ifsheconsentsmerelyfromcarnallust
and the intercourse is from mutual desire, there is
noseduction.

Q: What are the elements of an action under
Article21oftheCivilCode?

A:LCI
1. thereisanactwhichisLegal
2. but which is Contrary to morals, good
customs,publicorderorpolicy
3. theactisdonewithIntenttoinjure.

Note:Art.21dealswithactscontrabonusmoresor
contrary to good morals and presupposes loss or
injury, material or otherwise, which one may suffer
asaresultofsuchviolation

10 CIVILLAWTEAM:

PERSONS AND FAMILY RELATIONS
I.PERSONSANDPERSONALITY
Q:Howdoescivilpersonalitycease?
A.CAPACITYTOACT
A:Itdependsupontheclassificationofpersons:
1.CIVILPERSONALITY 1. Naturalpersonsbydeath
2. Juridical persons by termination of
Q:Distinguishjuridicalcapacityfromcapacityto existence
act.
3.BIRTH
A:
JURIDICALCAPACITY CAPACITYTOACT Q: How is personality acquired by natural
persons?
Definition

Fitnesstobethe
Powertodoactswith A:
subjectoflegal
legaleffect GR: Actual / Permanent Personality
relations
Personalitybeginsatbirth;notatconception
Acquisition

Inherent(coexists XPN: Presumptive / Temporary The law
Throughthefulfillment
withthenatural considers the conceived child as born
ofspecificlegalactivities
person) (Conceptuspronatohabetur)
Loss
Throughdeathandother Note: For there to be presumptive personality,
Onlythroughdeath
causes the foetus must be born later in accordance
Inrelationtotheother with law and the purpose for which such
Canexistwithout Cannotexistw/ojuridical personality is given must be beneficial to the
capacitytoact capacity child.
Limitation
Art.38(restriction) Q: May a fetus be considered born for all
Art.39(modification/ purposes?
None
limitation),
amongothers A:No.Onlyforpurposesbeneficialandfavorable
toit.
2.RESTRICTIONSONCAPACITYTOACT
Q:Explainthemeaningoftheclause:Bornlater
Q:Whataretherestrictionsoncapacitytoact? inaccordancewithlaw.

A:MIDIPC A:Afetuswithanintrauterinelifeof:
1. Minority,
2. Insanity, 1. Less than 7 months Must survive for
3. Deafmute, at least 24 hours after its complete
4. Imbecility, deliveryfromthematernalwomb
5. Prodigality, 2. At least 7 months If born alive:
6. CivilInterdiction considered born, even it dies within 24
hoursaftercompletedelivery.
Q: What are the circumstances that modify or
limitcapacitytoact? Q:Doestheconceivedchildhavetherighttobe
acknowledgedevenifitisstillconceived?
A:IPAIDFATPIA
1. Insanity A:Yes.Itisauniversalruleofjurisprudencethata
2. Prodigality child,uponbeingconceived,becomesabearerof
3. Age legalrightsandiscapableofbeingdealtwithasa
4. Imbecility living person. The fact that it is yet unborn is no
5. DeafMute impediment to the acquisition of rights provided
6. FamilyRelations itbebornlaterinaccordancewithLaw(DeJesus
7. Alienage v.Syquia,G.R.No.L39110,Nov.28,1933).
8. Trusteeship
9. Penalty
10. Insolvency
11. Absence
11

4.DEATH A: Yes, Wilma can invoke the presumption of
survivorship and claim that onehalf of the
Q:Howdoescivilpersonalitycease? proceeds should belong to Willys estate, under
Sec.3(jj) par.5 Rule 131, Rules of Court, as the
A:Itdependsupontheclassificationofpersons: disputedoesnotinvolvesuccession.
1. Naturalpersonsbydeath
2. Juridicalpersonsbyterminationof Underthispresumption,thepersonbetweenthe
existence agesof15and60isdeemedtohavesurvivedone
whoseagewasover60atthetimeoftheir
Q:What rule would apply in case there is doubt deaths.TheestateofWillyendowedwithjuridical
astowhodiedfirst? personalitystandsinplaceandsteadofWilly,as
beneficiary.(1998BarQuestion)
A:Itdependsonwhetherthepartiesarecalledto
succeedeachother. A.COMPARISONOFART.43ANDRULE131

1. IfsuccessionalrightsareinvolvedArt. SURVIVORSHIPRULEUNDERCIVILCODE
43 of the NCC: Survivorship Rule; and
Rule 131, Sec. 3(kk): Presumption of Q: Explain the survivorship rule under the new
simultaneityofdeathsbetweenpersons CivilCode.
calledtosucceedeachother,applies.
A: If in doubt as to who died first between 2 or
2. If no successional rights are involved morepersonscalledtosucceedeachother:
Rule131,Sec.3(jj)oftheRulesofCourt
applies.(Presumptionofsurvivorship) Burden of Proof: Whoever alleges the death of
onepriortotheothershallprovethesame;
Note:Botharetobeappliedonlyintheabsenceof
facts. Absentsuchproof:Presumptionistheyalldiedat
thesametime.Thereshallbenotransmissionof
Q: Jaime, who is 65, and his son, Willy, who is successionalrights.
25,diedinaplanecrash.Thereisnoproofasto
who died first. Jaimes only surviving heir is his Q:Whataretheconditionsthatmaywarrantthe
wife, Julia, who is also Willys mother. Willys applicationofthesurvivorshiprule?
survivingheirsarehismother,Julia,andhiswife,
Wilma. A: It applies when the following conditions are
present:
In the settlement of Jaimes estate, can Wilma 1. Thepartiesareheirstooneanother
successfully claim that her late husband, Willy, 2. Thereisnoproofastowhodiedfirst
had a hereditary share since he was much 3. Thereisdoubtastowhodiedfirst
youngerthanhisfatherandtherefore,shouldbe
presumedtohavesurvivedlonger? Q: What is the presumption under the
survivorshiprule?
A:No,WilmacannotsuccessfullyclaimthatWilly
hadahereditaryshareinhisfathersestate. A: Presumption of simultaneity of deaths. When
two or more persons who are called to succeed
Under Art 43, Civil Code, two persons who are each other, die, they shall be presumed to have
called to succeed each other are presumed to diedatthesametime.
have died at the same time, in the absence of
proof as to which of them died first. This PRESUMPTIONSONSURVIVORSHIPUNDERTHE
presumption of simultaneous death applies in RULESOFCOURT
cases involving the question of succession as
betweenthetwowhodied,whointhiscase,are Q: Explain the presumptions on survivorship
mutualheirs,beingfatherandson. undertheRulesofCourt.

Q: Suppose, Jaime had a life insurance policy A:TheRulesofCourtprovidethat:
with his wife Julia, and his son, Willy, as the 1. whentwoormorepersons
beneficiaries. Can Wilma successfully claim that 2. perishinthesamecalamityand
onehalfoftheproceedsshouldbelongtoWillys 3. itisnotshownwhodiedfirst,and
estate?

12 CIVILLAWTEAM:

4. there are no particular circumstances found dead, with the babys umbilical cord
from which it can be inferred that one alreadycut.Pietrosurvived.
diedaheadoftheother,
Can Marians baby be the beneficiary of the
Thesurvivorshipshallbedeterminedfromthe insurancetakenonthelifeofthemother?
probabilitiesresultingfromthestrengthandage
ofthesexesaccordingtothefollowingrules: A: An unborn child may be designated as the
beneficiary in the insurance policy of the

Age/Sexofdecedentsatthe Whopresumed
mother.Anunbornchildshallbeconsidereda
timeofdeath tohave
personforpurposesfavorabletoitprovidedit
DecedentA DecedentB survived
isbornlaterinaccordancewiththeCivilCode.
Under15 Under15 Older
There is no doubt that the designation of the
Above60 Above60 Younger
unbornchildasabeneficiaryisfavorabletothe
Under15
Under15 Above60 child.
(younger)

Differentsexes
Above15 Between Marian and the baby, who is
Above15BUT presumedtohavediedahead?
BUTunder male
under60
60 Samesex
Older A: If the baby was not alive when completely
Under15 Between15 Between15and deliveredfromthemotherswomb,itwasnot
ORover60 and60 60 born as a person, then the question of who
between two persons survived will not be an
Q:Dothestatutoryrulesinthedeterminationof issue. Since the baby had an intrauterine life
sequence of death absolutely apply in a case ofmorethan7months,itwouldbeconsidered
where indirect and/or inferential evidence bornifitwasalive,atthetimeofitscomplete
surrounding the circumstances of the deaths delivery from the mothers womb. We can
exists? gather from the facts that the baby was
completely delivered. But whether or not it
A:No.Itismanifestfromthelanguageofsection wasalivehastobeprovenbyevidence.
69 (ii) of Rule 123 and that of the foregoing
decision that the evidence of the survivorship If the baby was alive when completely
need not be direct; it may be indirect,
deliveredfromthemotherswomb,thenitwas
circumstantial, or inferential. Where there are
born as a person and the question of who
facts, known or knowable, from which a rational
survivedasbetweenthebabyandthemother
conclusion can be made, the presumption does
not step in, and the rule of preponderance of
shallberesolvedbytheprovisionsoftheRules
evidence controls. It is the "particular of Court on survivorship. This is because the
circumstancesfromwhichit(survivorship)canbe question has nothing to do with succession.
inferred"thatarerequiredtobecertainastested Obviously, the resolution of the question is
by the rules of evidence. It is enough that "the needed just for the implementation of an
circumstances by which it is sought to prove the insurance contract. Under Rule 13, Sec. 3, (jj),
survivorship must be such as are competent and (5) as between the baby who was under 15
sufficient when tested by the general rules of years old and Marian who was 18 years old,
evidenceincivilcases."(Joaquinv.Navarro,G.R. Marianispresumedtohavesurvived.
No.L5426,May29,1953)
In both cases, therefore, the baby never
Q: At the age 18, Marian found out that she acquired any right under the insurance policy.
was pregnant. She insured her own life and The proceeds of the insurance will then go to
named her unborn child as her sole theestateofMarian.
beneficiary.Whenshewasalreadyduetogive
birth,sheandherboyfriendPietro,thefather Will Prieto, as surviving biological father of
of her unborn child, were kidnapped in a thebaby,beentitledtoclaimtheproceedsof
resortinBataanwheretheywerevacationing. thelifeinsuranceonthelifeofMarian?
The military gave chase and after one week,
they were found in abandoned hut in Cavite.
Marian and Pietro were hacked with bolos.
Marianandthebabyshedeliveredwereboth
13

A: Since the baby did not acquire any right it.Itisintheinterestanddutyofeachmemberof
under the insurance contract, there is nothing thecommunitytopreventthebringingaboutofa
forPrietotoinherit.(2008BarQuestion) condition that would shake its foundation and
leadtoitsdestruction.Theincidentsofthestatus
B.DOMICILEANDRESIDENCEOFPERSON aregovernedbylaw,notbywilloftheparties.
(Beso v. Daguman, A.M. No. MTJ991211,
Q: Distinguish between residence and January28,2000[citingJimenezv.Republic,G.R.
No.L12790,August31,1960])
domicile.

Q:Distinguishmarriagefromordinarycontract.
A: Residence is a place of abode, whether

permanent or temporary. Domicile denotes a A:
fixed permanent to which, when absent, one
hastheintentionofreturning. MARRIAGE ORDINARYCONTRACT
Asacontract
Q: Where is the domicile of a natural person Specialcontract
for the exercise of civil rights and fullfilment Merelyacontract
Socialinstitution
ofcivilobligations?
Applicablelaw

Governedbythelaw Governedbythelaw
A:Hisplaceofhabitualresidence.
onmarriage oncontracts

Righttostipulate
Q:Whereisthedomicileofjuridicalpersons?
GR: Not subject to

stipulation
A:
Generallysubjectto
1. Theplacefixedbythelawcreatingor
XPN: Property stipulations
recognizingthejuridicalperson relations in marriage
2. In the absence thereof, the place settlements
where their legal representation is Capacitytocontract
established or where they exercise Minorsmaycontract
theirprincipalfunctions. thrutheirparentsor
Legalcapacityrequired guiardiansorinsome
II.MARRIAGE instances,by
themselves
Q:Whatismarriage?
Genderrequirement

Contractingparties Contractingparties
A: Marriage is a special contract of permanent
mustonlybetwo maybetwoormore
unionbetweenamanandawomanenteredinto
personsofopposite personsregardlessof
in accordance with law for the establishment of
sexes sex
conjugalandfamilylife.Itisthefoundationofthe
Dissolutionbyagreement
family and an inviolable social institution whose
nature, consequences, and incidents are Dissolvedonlyby
Canbedissolvedby
governed by law and not subject to stipulation, deathorannulment,
mutualagreement
except that marriage settlements may fix the neverbymutual
amongothers.
propertyrelationsduringthemarriagewithinthe agreement
limitsprovidedbytheFamilyCode.(Art.1,FC)
2.KINDOFREQUISITES
A.REQUISITES
ESSENTIALREQUISITES
1.NATUREOFMARRIAGE
Q:Whataretheessentialrequisitesofmarriage?
Q: What is meant by the law when it declares
marriageasaninviolablesocialinstitution? A:
1. Legalcapacityofthecontractingparties
A: Marriage is an institution in which the whomustbeamaleandafemale
community is deeply interested. The State has 2. Consent freelygiven in the presence of
surrounded it with safeguards to maintain its thesolemnizingofficer
purity, continuity and permanence. The security
andstabilityoftheStatearelargelydependenton
14 CIVILLAWTEAM:

Q: What constitute legal capacity of the parties A:Voidable

tomarry?
4. Irregularityinformalrequisites?
A:ASI A: Valid, but the party responsible for
1. Ageatleast18yrs such irregularity shall be civilly,
2. Sexbetweenmaleandfemale criminallyoradministrativelyliable.
3. Lackoflegalimpedimenttomarry
4.MARRIAGECEREMONY
Q: Are there other requirements, taking into
consideration the age of the parties to the Q:Whatconstitutesavalidmarriageceremony?
marriage,forthevalidityofsuchmarriage?
A:Thatwhichtakesplacewiththe:
A:Yes,dependingupontheageofthecontracting 1. appearance of the contracting parties
party. beforethesolemnizingofficerand
2. their personal declaration that they
ADDITIONAL shall take each other as husband and
AGE
REQUIREMENTS wife
3. in the presence of not less that 2
Parentalconsentand
18to21yearsold witnessesoflegalage.
Marriagecounselling

Parentaladviceand Note: No particular form of ceremony or religious
22to25yearsold riteisrequiredbylaw.
Marriagecounselling

Note: Absence of the additional requirement of

Q:Ismarriagebyproxyallowed?
parental consent does not make the marriage void
butonlyvoidable. A:Itdepends.
1. IfperformedinthePhilippinesNo,itis
FFORMALREQUISITES notallowed,hencethemarriageisvoid.

Q:Whataretheformalrequisitesofmarriage? Note: Philippine laws prohibit marriages
byproxy.Sincethemarriageisperformed
in the Philippines, Philippine laws shall

A:CAL
apply following the principle of lex loci
1. MarriageCeremony celebrationis.
2. Authorityofthesolemnizingofficer
3. ValidmarriageLicense 2. If performed abroad Whether it is
allowedornotdependsuponthelawof
the place where the marriage was
3.EFFECTOFABSENCEOFREQUISITES celebrated(lexlocicelebrationis)

Q:Whatisthestatusofmarriageincaseof: Note:AstomarriagesbetweenFilipinos
all marriages solemnized outside the
1. Absence of any of the essential Philippines, in accordance with the laws
requisites? enforced in said country where they are
A:Voidabinitio solemnized, andvalid there as such, shall
also be valid here in the country, except
2. Absence of any of the formal thoseprohibitedunderArt.35(1),(2),(4),
requisites? (5),(6),36,37and38.(Art.26,FC)
A:GR:Voidabinitio.
5.SOLEMNIZINGAUTHORITY
XPN: Valid even in the absence of
formalrequisite: Q:Whoareauthorizedtosolemnizemarriage?
a. Marriages exempt from license
requirement A:Itdepends:
b. Either or both parties believed in 1. Underordinarycircumstances:
good faith that the solemnizing a. Incumbent judiciary member
officerhadtheproperauthority. provided, within the courts (his)
jurisdiction
3. Defectinessentialrequisites?
15

b. Priest, rabbi, imam or minister of contractandtheaffidavitisonlyrequiredforthe
any church/religious sect duly purpose of evidencing the act, not a requisite of
authorized provided at least one marriage. It is the obligation of the solemnizing
of the parties belongs to such officer.Itdoesnotaffectthevalidityofmarriage
churchorreligioussect. (DeLoriav.Felix,G.R.No.L9005,Jun.20,1958).

c. Consul general, consul or vice Q:Whataretheauthorizedvenuesofmarriage?
consul provided both parties are
Filipinos and marriage takes place A:
abroad. GR: Must be solemnized publicly within the
jurisdictionoftheauthorityofthesolemnizing
d. Mayors(Arts444and445ofLGC) officer:
1. Chambersofthejudgeorinopencourt
Note:IncludesActingMayor 2. Church,chapelortemple
3. Office of the consulgeneral, consul or
2. Marriagesinarticulomortis: viceconsul
a. Ship captain or airplane chief
provided the marriage is XPN:
performed: 1. Marriageatthepointofdeath
i. During voyage, even during 2. Marriageinremoteplaces
stopovers 3. Marriageatahouseorplacedesignated
ii. Between passengers or crew by the parties with the written request
members tothesolemnizingofficertothateffect.
b. Military commander of a unitwho
is a commissioned officer Note: This provision is only directory, not
provided the marriage is mandatory. The requirement that the marriage be
performed: solemnizedinaparticularvenueorapublicplaceis
i. Inabsenceofchaplain; not an essential requisite for the validity of the
ii. Within zone of military marriage.
operation;
iii. Between members of the A.EXCEPTIONS
armedforcesorcivilians
Q: What is the exception to the rule requiring
Q: What must the solemnizing officer in a authorityofthesolemnizingofficer?
marriage in articulo mortis do after solemnizing
suchmarriage? A: Marriages contracted with either or both
parties believing in good faith that the
A: He shall state in an affidavit executed before solemnizingofficerhadtheauthoritytodoso.
thelocalcivilregistraroranyotherpersonlegally
authorizedtoadministeroaths,thatthemarriage MARRIAGELICENSE
waperformedinarticulomortisandthathetook
the necessary steps to ascertain the ages and Q: What is the period of the validity of a
relationship of the contracting parties and the marriagelicense?
absence of a legal impediment to the marriage.
(Art.29,FC) A: A marriage license is valid in any part of the
Philippinesonlyfor120daysfromthedateofits
Q: Will the solemnizing officers failure to issuance and shall be deemed automatically
execute an affidavit that he solemnized the cancelledattheexpirationofsaidperiod.
marriage in articulo mortis affect the validity of
marriage? Note: If the parties contracted marriage after 120
days lapsed from the issuance of the marriage
license, such marriage shall be considered void for
A: No, it will not.The marriage will be still valid.
lackofmarriagelicense.
The Law permits marriages in articulo mortis

without marriage license but it requires the
Q: What is the effect in the issuance of a
solemnizingofficertomakeanaffidavitandfileit.
marriage license if a party who is required by

law to obtain parental advice or undergo
However, such affidavit is not an essential or
marriagecounselingfailedtodoso?
formal requisite of marriage, the same with a

Marriage Contract. The signing of the marriage
16 CIVILLAWTEAM:

A: The issuance of marriage license is suspended B.EXCEPTIONS

for 3 months from the completion of publication
oftheapplication. Q:Whatarethemarriagesexemptfromthe
licenserequirement?
Note:Themarriageisvalidinthiscase.
A:MARCOSZ
Q: What is the status of the marriage if the
partiesgetmarriedwithinsaid3monthperiod? 1. MarriagesamongMuslimsormembers
ofethnicculturalcommunities.
A:Itdepends.
1. Ifthepartiesdidnotobtaina marriage 2. MarriagesinArticulomortis.
license the marriage shall be void for NOTE:ArticuloMortismeansatthepoint
lackofmarriagelicense. ofdeath,notmerelyindangerofdying.
2. If the parties were able to obtain a
marriagelicensethemarriageshallbe 3. MarriagesinRemoteplaces.
valid without prejudice to the actions NOTE:RemotePlacenomeansof
that may be taken against the guilty transportationtoenablethepartyto
party. personallyappearbeforethesolemnizing
localcivilregistrar.
Q:Whoissuesthemarriagelicense?
4. MarriagesbetweenpartiesCohabiting
A: The local civil registrar of the city or foratleast5years
municipality where either contracting party
habituallyresides. 5. MarriagessolemnizedOutsidethe
Philippineswherenomarriagelicenseis
Note: Obtaining a marriage license in a place other requiredbythecountrywhereitwas
thanwhereeitherpartyhabituallyresidesisamere solemnized.
irregularity. 6. MarriagesinarticulomortisSolemnized
byashipcaptainorairplanepilot
A.FOREIGNNATIONAL
7. MarriageswithinZonesofmilitary
Q:Whatisrequiredfromthecontractingparties operation.
beforeamarriagelicensecanbeobtained?
Q: What are the requisites for the 5year
A: Each of the contracting parties shall file a cohabitation exception to the marriage license
separateorindividualswornapplicationwiththe requirement?
properlocalcivilregistrar.
A:Therequisitesare:5DPAS
Note: Foreigners are further required to submit a 1. Living together as husband and wife at
Certificate of Legal Capacity issued by their least5yearsbeforethemarriage.
respective diplomatic or consular officials before
theycanobtainamarriagelicense. The5yearperiodmustbecharacterized
by:
For stateless persons or refugees, in lieu of a a. Exclusivitythepartnersmustlive
certificate of legal capacity, an affidavit stating the togetherexclusively,withnoother
circumstances showing such capacity to contract partners, during the whole 5year
marriagemustbesubmitted. period.
b. Continuitysuchcohabitationwas
Q: What is the status of a marriage celebrated
unbroken.
on the basis of a license issued without the

requiredCertificateofLegalCapacity? Note:Theperiodiscountedfromthedate
of celebration of marriage. It should be
A: The marriage is valid as this is merely an the years immediately before the day of
irregularity in complying with a formal themarriage.
requirement of the law in procuring a marriage
license, which will not affect the validity of the 2. No legal impediment to marry each
marriage. (Garcia v. Recio, G.R. 138322, October otherDuringtheperiodofcohabitation.
2,2001)

17

Note:Thefiveyearperiodofcohabitation immaterialthatwhentheylivedwitheachother,
must have been a period of legal union Pepitohadalreadybeenseparatedinfactfrom
had it not been for the absence of hislawfulspouse.Thesubsistenceofthe
marriage. marriageevenwheretherewasactualseverance
ofthefilialcompanionshipbetweenthespouses
3. Fact of absence of legal impediment cannotmakeanycohabitationbyeitherspouse
must be Present at the time of the withanythirdpartyasbeingoneas"husbandand
marriage wife".(Nialv.Bayadog,GRNo.133778,March
4. Parties must execute an Affidavit that 14,2000)
theyarelivingtogetherashusbandand
wife for 5 years and that they do not MARRIAGECERTIFICATE
haveanyimpedimenttomarry
5. Solemnizing officer must execute a Q:Whatarethedistinctionsbetweenamarriage
Sworn statement that he had licenseandamarriagecertificate?
ascertained the qualifications of the
parties and found no legal impediment MARRIAGELICENSE MARRIAGECERTIFICATE
totheirmarriage(Manzanov.Sanches, Authorizationbythe Bestevidenceofthe
Mar.1,2001) statetocelebrate existenceofthe
marriage. marriage.
Q:PepitowasmarriedtoTeodulfa.Teodulfawas Notanessentialor
shot by him resulting in her death. After 1 year Formalrequisiteof
formalrequisiteof
and 8 months, he married Norma without any marriage.
marriage.
marriage license. In lieu thereof, they executed

an affidavit stating that theyhad lived together
Q: Guillermo and Josefa lived together as
as husband and wife for at least five years and
husband and wife, but there is doubt as to
were thus exempt from securing a marriage
whethertheygotmarried,sincenorecordofthe
license.Whatisthestatusoftheirmarriage?
marriage existed in the civil registry but their

relativesandfriendsmaintainedthatthetwoin
A:Voidforlackofmarriagelicense.Tobeexempt
fact married each other and lived as husband
from the license requirement under the 5year
and wife for more than half a century. Is
cohabitation rule, the cohabitation should be in
GuillermomarriedtoJosefa?
the nature of a perfect union that is valid under

the law but rendered imperfect only by the
A: They are presumed to be married. In this
absence of the marriage contract and is
jurisdiction, every intendment of the law leans
characterizedbycontinuity,thatis,unbroken,and
toward legitimizing matrimony. Persons dwelling
exclusivity, meaning no third party was involved
togetherapparentlyinmarriagearepresumedto
at anytime within the 5 years. It should be a
beinfactmarried.Thisistheusualorderofthings
period of legal union had it not been for the
in society and, if the parties are not what they
absenceofthemarriage.
holdthemselvesouttobe,theywouldbelivingin

constant violation of the common rules of law
In this case, Pepito and Norma are not exempt
and propriety. Semper praesumitur pro
from the marriage license requirement because
matrimonioalwayspresumemarriage.(Vda.De
at the time of Pepito and Norma's marriage, it
la Rosa v. Heirs of Vda. De Damian, G.R. No.
cannot be said that they have lived with each
103028,Oct.10,1997)
other as husband and wife for at least five years

priortotheirweddingdaybecausefromthetime
Note:Althoughamarriagecontractisconsidereda
Pepito's first marriage was dissolved to the time primaryevidenceofmarriage,itsabsenceisnot
of his marriage with Norma, only about twenty alwaysproofthatnomarriagetookplace.(Delgado
monthshadelapsed. Vda.DelaRosa,etal.v.HeirsofMarcianaRustia
Vda.DeDamian,etal.,G.R.No.103028,Oct.10,
Q:WouldyouranswerbethesameifPepitowas 1997)
separatedinfactfromTeodulfa?
B.EFFECTOFMARRIAGECELEBRATEDABROAD
A:Yes,themarriageisstillvoid.Eveniftheywere ANDFOREIGNDIVORCE
separatedinfact,andthereafterbothPepitoand
Normahadstartedlivingwitheachotherthathas Q:Whatrulesgovernthevalidityofmarriage?
alreadylastedforfiveyears,thefactremainsthat
Pepitohadasubsistingmarriageatthetime A:Itdepends:
whenhestartedcohabitingwithNorma.Itis
18 CIVILLAWTEAM:

1. As to its extrinsic validity Lex loci 1. May the Filipino spouse remarry
celebrationis despite the fact that divorce is not
validinthePhilippines?
Note: Locus regit actum the act is 2. Willyouranswerbethesameifitwas
governedbythelawoftheplacewhereit avalidmarriagebetweenFilipinos?
is done is adhered to here in the A:
Philippinesasregardstheextrinsicvalidity
ofmarriage. 1. Yes,theFilipinospouseiscapacitatedto
remarry just as the alien spouse is
2. AstoitsintrinsicvalidityPersonallaw capacitated. Divorce validly obtained
abroadbythealienspousecapacitating
Note: Personal law may either be the him/her to remarry will likewise allow
nationallaworthelawoftheplacewhere the Filipino spouse to remarry. This is
thepersonisdomiciled.
the rule laid down in Article 26 (2) of

theFamilyCode.
If the person involved is a stateless

person, domiciliary rule applies,
otherwise,lexnationaliiapplies.
It should be noted however that the
foreign spouse must be capacitated to
Q: What is the status of marriages between remarrybeforetheFilipinospousemay
Filipinos solemnized abroad in accordance with alsobecapacitatedtoremarry.
thelawinforceinsaidcountry?
Note: It is true that owing to the
nationality principle embodied in Art. 16

A:
of the NCC, only Philippine nationals are
GR: Marriages between Filipinos solemnized covered by the policy against absolute
outsidethePhilippinesinaccordancewiththe divorces the same being considered
law of the foreign country where it is contrary to our concept of public policy
celebrated,ifvalidthere,shallbevalidhereas andmorality.However,aliensmayobtain
such. divorcesabroad,whichmayberecognized
inthePhilippines,providedtheyarevalid
XPN: It shall be void, even if it is valid in the according to their national law. The
foreign country where the marriage was marriagetie,whenthusseveredastoone
celebrated, if any of the following party, ceases to bind either. A husband
circumstancesarepresent:LIM2B2P without a wife, or a wife without a
1. Lack of legal capacity even with husband, is unknown to the law. (Van
parental consent (e.g. party is Dornv.Romillo,Jr.,GRNo.L68470,Oct.8,
below18); 1985)
2. Incestuous;
3. ContractedthroughMistakeofone 2. Itdepends.Whatismaterialinthiscase
party as to the identity of the is the citizenship of the spouse who
other; obtainedadivorcedecreeabroadatthe
4. Contracted following the time the decree was obtained and not
annulmentordeclarationofnullity their citizenship at the time the
of a previous marriage but Before marriagewascelebrated.
partition,etc.;
5. Bigamousorpolygamousexceptas IftheFilipinospousewasnaturalizedas
provided in Art. 41 FC on a citizen of a foreign country before
terminablebigamousmarriages; he/sheobtainsadivorcedecreeandwas
6. Void due to Psychological thereafter capacitated to remarry, the
incapacity; Filipino spouse will be capacitated to
7. VoidforreasonsofPublicpolicy remarry.

Q:Suppose in a valid mixed marriage (marriage Note: Although said provision only
between a citizen of a foreign country and a provides for divorce obtained abroad by
the foreign spouse in a valid mixed
citizen of the Philippines,) the foreign spouse
marriage, the legislative intent would be
obtained a divorce decree abroad and was
renderednugatoryifthisprovisionwould
capacitatedtoremarry. notbeappliedtoasituationwherethere
is a valid marriage between two Filipino
citizens, one of whom thereafter is
19

naturalizedasaforeigncitizenandobtains Q: What are the distinctions between void and
avaliddivorcedecreecapacitatinghimor voidablemarriages?
her to remarry, as in this case. To rule
otherwisewould betosanction absurdity A:
andinjustice.(Republicv.OrbecidoIII,GR. VOIDABLE
No.154380,Oct.5,2005) VOIDMARRIAGE
MARRIAGE

Statusofmarriage
Thenaturalizationofoneoftheparties,as
well as the divorce decree obtained by Voidable:Validuntil
Voidabinitio
himorher,mustbeprovenasafactunder annulled
our rules on evidence. The foreign law Petitionfiled
under which the divorce was obtained DeclarationofNullityof Annulmentof
must likewise be proven as our courts Marriage Marriage
cannottakejudicialnoticeofforeignlaws. Whomayfile
GR:Solelybythe
However, if the Filipino spouse husbandorwife.
remained to be a citizen of the XPN:Anyrealparty
Philippines when he/she obtained a ininterest,onlyin
divorcedecreeabroad,suchdecreewill thefollowingcases:
not be recognized in the Philippines 1. Nullityof
even if that spouse is subsequently marriagecases GR:Offended
naturalized as a citizen of a foreign commenced Spouse
country. This is so because at the time beforethe XPN:
thespouseobtainedthedivorcedecree, effectivityof 1.Parentsor
he/she was still a citizen of the A.M.No.02 guardiansincases
Philippines and being naturalized 1110.March ofinsanity
afterwards does not cure this defect. 15,2003. 2.Parentsor
(See: Republic v. Iyoy, G.R. No. 152577, 2. Marriages guardiansbefore
Sept.21,2005) celebrated thepartyreaches
duringthe 21yearsoldon
Note: Burden of Proof lies with "the effectivityof thegroundofLack
party who alleges the existence of a fact theCivilCode. ofParental
or thing necessary in the prosecution or (DeDios Authority
defense of an action." Since the divorce
Carlosv.
was a defense raised by respondent, the
Sandoval,G.R.
burden of proving the pertinent foreign
law validating it falls squarely upon him.
No.179922,
Courts cannot take judicial notice of December16,
foreign laws. The power of judicial notice 2008).
mustbeexercisedwithcaution,andevery
reasonabledoubtuponthesubjectshould PrescriptivePeriod
be resolved in the negative. (Garcia v. GR:Within5years
Recio,G.R.No.138322,Oct.2,2001) fromdiscoveryof
theground
C.VOIDANDVOIDABLEMARRIAGES XPN:
1.Lifetimeof
spouseincasesof
Q:Whatmaybethestatusofmarriages?
Noprescriptiveperiod insanity

2.Beforethe
A:
partyreaches21
1. Valid
incaseswhere
2. Void
parentsor
3. Voidable
guardiansmayfile

annulment

20 CIVILLAWTEAM:

Children A.ABSENCEOFREQUISITES
GR:Illegitimate;
GENDERREQUIREMENT
XPN:Those
conceivedorborn Q: What is the status of a marriage between
ofmarriages Filipinos if the parties thereto are of the same
declaredvoid sex?
Legitimate
under:
A: Void. For a marriage to be valid, it must be
1. Art.36
(Psychological betweenpersonsofoppositesexes.
incapacity),or
2. Art.52in Q:Incaseofachangeinsex,canthepersonwho
relationtoArt. hasundergonesaidchangebeallowedtomarry
53 another of the same sex as he/she originally
JudicialDeclaration had?
GR:Not
necessarythatthere A: It depends upon the cause for the change in
isjudicial sex.
Necessary
declaration
XPN:incaseof 1. If the change is artificial No, he/she
remarriage cannot.

1.VOIDMARRIAGE Note: The sex or gender at the time of
birth shall be taken into account. He is
still, in the eyes of the law, a man
Q: What are the marriages that are void ab
although because of
initio?
theartificialintervention, he now has the
physiological characteristics of a woman

A:LAaMBPIPS18 (Silverio v. Republic, G.R. No. 174689,
1. Absence of any of the essential or Oct.22,2007)
formalrequisitesofmarriage;
2. Contractedbyanypartybelow18years 2. IfthechangeisnaturalHe/shecan.
ofageevenwiththeconsentofparents
orguardians; Note: When one suffers from Congenital Adrenal
3. Solemnized without License, except Hyperplasia, a disorder that changes the
those marriages that are exempt from physiological characteristic of a person, the court
thelicenserequirement; may grant the change of gender. In this case, the
4. Solemnized by any person not person must not take unnatural steps to interfere
Authorizedtoperformmarriagesunless what he/she is born with. Nature has taken its due
such marriages were contracted with course in revealing more fully the male/female
eitherorbothpartiesbelievingingood characteristics (Republic v. Cagandahan, G.R. No.
faith that the solemnizing officer had 166676,Sept.12,2008).
thelegalauthoritytodoso;
5. Contracted through Mistake of one of Q: Jennifer was registered as a female in her
the contracting party as to the identity Certificate of Live Birth. In her early years, she
oftheother; suffered from clitoral hypertrophy and was
6. Bigamousorpolygamousmarriages; found out that her ovarian structures had
7. Subsequent marriages that are void minimized. She also alleged that she has no
underArt.53FC; breasts or menstration. She was diagnosed to
8. Marriagescontractedbyanyparty,who have Congenital Adrenal Hyperplasia (CAH) a
at the time of the celebration of the condition where persons thus afflicted possess
marriage, was Psychologically secondary male characteristics because of too
incapacitated; much secretion of androgen. She then alleged
9. IncentuousMarriages(Art.37,FC) thatforallinterestsandappearancesaswellas
10. Marriages declared void because they in mind and emotion, she has become a male
are contrary to Public policy (Art. 38, person.WhatisJennifersgenderorsex?
FC).

21

A: Male. Where the person is biologically or
naturally intersex the determining factor in his Q: Would your answer be the same if their
gender classification would be what the parentsconsentedtothemarriage?
individual, having reached the age of majority,
with good reason thinks of his/her sex. Jennifer A:Yes.Parentalconsentdoesnothavetheeffect
here thinks of himself as a male and considering ofcuringthisdefect.
that his body produces high levels of androgen,
there is preponderant biological support for Q: What if the marriage was a mixed marriage
considering him as being male. Sexual where the Filipino is 18 years old but the
development in cases of intersex persons makes foreigner is below 17 years of age. What is the
thegenderclassificationatbirthinconclusive.Itis statusofthemarriage?
at maturity that the gender of such persons is
fixed. A:Itdepends.Ifthenationallawoftheforeigner
recognizes17yearoldpersonstobecapacitated
Jenniferhassimplyletnaturetakeitscourseand tomarry,thentheirmarriageisvalid,otherwiseit
has not taken unnatural steps to arrest or isvoid.
interfere with what he was born with. And
accordingly,hehasalreadyorderedhislifetothat Note:Lexnationaliiapplies
of a male. He could have undergone treatment
andtakensteps,liketakinglifelongmedication,to LACKOFAUTHORITYOFSOLEMNIZINGOFFICER
force his body into the categorical mold of a
female but he did not. He chose not to do so. Q: What is the effect of lack of authority of
Nature has instead taken its due course in his solemnizingofficer?
development to reveal more fully his male
characteristics. A:
GR:Themarriageisvoidabinitio.
To him belongs the primordial choice of what
courses of action to take along the path of his XPN:
sexual development and maturation. In the 1. Express If either or both parties
absenceofevidencethatheisanincompetent believed in good faith that the
and in the absence of evidence to show that solemnizerhadthelegalauthoritytodo
classifying him as a male will harm other so.(Art. 35,FC)
members of society who are equally entitled to 2. ImpliedArticle10inrelationtoArticle
protection under the law, the Court affirms as 26 of the Family Code. If the marriage
valid and justified his position and his personal between a foreigner and a Filipino
judgment of being a male. (Republic v. Jennifer citizen abroad solemnized by a
Cagandahan,G.R.No.166676,Sep.12,2008) Philippine consul assigned in that
country is recognized as valid in the
CONSENTFREELYGIVEN host country, such marriage shall be
considered as valid in the Philippines. (
Q: What is the effect of lack of free and Sta. Maria Jr., Persons and Family
voluntaryconsent? RelationsLaw)

A: When consent is obtained through mistake, SOLEMNIZEDWITHOUTLICENSE
fraud, force, intimidation or undue influence, or
when either of the contracting party is of Q:JudgePalaypayonsolemnizedmarriageseven
unsound mind at the time of the celebration of without the requisite marriage license. Thus,
themarriage,themarriageisannullable.(Art.45, some couples were able to get married by the
FC) simpleexpedientofpayingthemarriagefees.As
aconsequence,theirmarriagecontractsdidnot
CONTRACTEDBYPARTYBELOW18 reflectanymarriagelicensenumber.Inaddition,
the judge did not sign their marriage contracts
Q:Whatisthestatusofmarriageswhereoneor and did not indicate the date of the
bothofthepartiesarebelow18yearsofage? solemnization, the reason being that he
allegedlyhadtowaitforthemarriagelicenseto
A:itisvoidforlackoflegalcapacity. be submitted by the parties. Such marriage
contracts were not filed with the Local Civil
Registry.Aresuchmarriagesvalid?
22 CIVILLAWTEAM:

declarationofnullityofmarriage.(Inre:Salvador
A:No.TheFamilyCodepertinentlyprovidesthat v.Serafico,A.M.200820SC,Mar.15,2010)
theformalrequisitesofmarriageare,interalia,a
valid marriage license, except in the cases Note: Under Art. 40 of the FC, before one can
providedfortherein.Complementarily,itdeclares contractasecondmarriageonthegroundofnullity
thattheabsenceofanyoftheessentialorformal of the first marriage, there must first be a final
requisitesshallgenerallyrenderthemarriagevoid judgmentdeclaringthefirstmarriagevoid.Ifaparty
ab initio and that, while an irregularity in the failstosecureajudicialdeclarationofnullityofthe
formal requisites shall not affect the validity of first marriage, he or she runs the risk of being
themarriage,thepartyorpartiesresponsiblefor charged with bigamy as the marital bond or
vinculuminthefirstnuptialsubsists(Mercadov.Tan
the irregularity shall be civilly, criminally and
GR:137110,Aug.,2000;Tev.CAGRNo:126746,Nov.
administrativelyliable.(Coscav.Palaypayon,A.M.
29,2009).
No.MTJ92721,Sept.30,1994)

Q:Whatarethespecialcaseswhensubsequent
CONTRACTEDTHROUGHMISTAKE marriageisallowed?

Q: For the marriage to be void, on what A:
circumstancemustthemistakereferto? 1. Marriage between a Filipino and a
foreignerandprocurementbythealien
A:Formarriagetoberenderedvoid,themistake spouseofavaliddivorcedecreeabroad,
in identity must be with reference to the actual capacitatinghim/hertoremarry.
physical identity of other party, not merely a 2. Terminable bigamous marriages (Art.
mistake in the name, personal qualifications, 41)
character,socialstanding,etc.(Rabuya,p.213) 3.

BIGAMOUSMARRIAGES PSYCHOLOGICALINCAPACITY

Q: If a person contracts a subsequent marriage Q:Whatispsychologicalincapacity?
duringthesubsistenceofapriormarriage,what
isthestatusofthesubsequentmarriage? A: There is no exact definition for psychological
incapacity, but it was defined by the Supreme
A: Court as no less than a mental (not physical)
GR:Voidforbeingbigamousorpolygamous. incapacity that causes a party to be truly
incognitive of the basic marital covenants that
XPN: Valid if it is a terminable bigamous concomitantly must be assumed and discharged
marriage. bythepartiestothemarriage.

Q:Whenisamarriageconsideredbigamous? The intendment of the law has been to confine
the meaning of "psychological incapacity" to the
A: It is when a person contracts a second or mostseriouscasesofpersonalitydisordersclearly
subsequentmarriagebeforetheformermarriage demonstrativeofanutterinsensitivityorinability
has been legally dissolved, or before the absent togivemeaningandsignificancetothemarriage.
spousehasbeendeclaredpresumptivelydeadby (Santosv.CA,G.R.No.112019,Jan.4,1995)
means of judgment rendered in the proper
proceedings.(Art.349,RPC) Q: What are the requisites of psychological
incapacity?
Note:Thesameappliestopolygamy.
A:
Q: May a person contract a valid subsequent 1. Juridical antecedence must be rooted
marriagebeforeafirstmarriageisdeclaredvoid in the history of the party antedating
abinitiobyacompetentcourt? the marriage, although overt
manifestations may arise only after
A: No. The Supreme Court has consistently held suchmarriage.
that a judicial declaration of nullity is required 2. Gravity grave enough to bring about
before a valid subsequent marriage can be thedisabilityofthepartytoassumethe
contracted;orelse,whattranspiresisabigamous essentalmaritalobligations.
marriage, reprehensible and immoral. Article 40 3. Permanence or incurability must be
of the Family Code expressly requires a judicial incurable.Ifcurable,thecureshouldbe
23

beyond the means of the parties ground of annulment of marriage. (2002 Bar
involved. Question)

Q:Whataresomeinstanceswhereallegationsof INCESTUOUSMARRIAGES
psychologicalincapicitywerenotsustained?
Q:Whatmarriagesareconsideredincestuous?
1. Mere showing of irreconcilable
differences and conflicting A:Thosemarriages:
personalities. (CaratingSiayngco v. 1. Between ascendants and descendants
Siayngco, G.R. No. 158896, Oct, 27. ofanydegree;
2004) 2. Between brothers and sisters whether
ofthefullorhalfblood.
2. Meresexualinfidelityorperversion,do
not by themselves constitute Note: Regardless of whether the relationship
psychological incapacity, as well as betweenthepartiesislegitimateorillegitimate.
immaturityandirresponsibility.
VOIDBYREASONOFPUBLICPOLICY
Note:Itmustbeshownthattheseactsare
manifestationsofadisorderedpersonality Q: What are the marriages that are void by
whichwouldmakerespondentcompletely reasonofpublicpolicy?
unable to discharge the essential
obligations of a marital state, not merely A:
youth, immaturity or sexual promiscuity. 1. Collateral blood relatives (legitimate or
(Dedel vs CA, G.R. no. 151867, Jan.29, th
Illegitimate)uptothe4 civildegree;
2004) 2. Stepparents&stepchildren;
3. Parentsinlaw&childreninlaw;
3. Disagreements regarding money 4. Adoptingparent&theadoptedchild;
matters. (Tongol v. Tongol, G.R. No. 5. Survivingspouseoftheadoptingparent
157610,Oct.19,2007) &theadoptedchild;
6. Survivingspouseoftheadoptedchild&
4. Mereabandonement. theadopter;
7. Adopted child & legitimate child of the
Note: There must be proof of natal or adopter;
supervening disabling element in the 8. Adoptedchildrenofthesameadopter;
personality factor that effectively
9. Partieswhereone,withtheintentionto
incapacitatesapersonfromacceptingand
marry the other, kills the latters
complying with the Essential Marital
obligations of Marriage. (Republic v.
spouse,orhis/herspouse.
QuinteroHamano, G.R. No. 149498, May
20,2004) Note: List is exclusive. If not falling within this
enumeration, the marriage shall be valid. Such as
marriagesbetween:
5. Sexualinfidelity(Republicv.Dagdag,GR
1. AdoptedandIllegitimatechildoftheadopter
No.109975,February9,2001).
2. Stepbrotherandstepsister
3. Brotherinlawandsisterinlaw
Q:Wouldthestateofbeingofunsoundmindor 4. Parties who have been guilty of adultery or
the concealment of drug addiction, habitual concubinage
alcoholism, homosexuality or lesbianism be
considered indicia of psychological incapacity, if 2.PRESCRIPTION
existingattheinceptionofmarriage?Explain.
Q: What is the prescriptive period of the action
A: In the case of Santos v. CA (240 SCRA 20, ordefenseforthedeclarationofabsolutenullity
1995), the Supreme Court held that being of ofmarriage?
unsound mind, drug addiction, habitual
alcoholism, lesbianism or homosexuality may be A:None.Thetimeforfilinganactionordefense
indicia of psychological incapacity, depending on forthedeclarationofabsolutenullityofmarriage,
the degree of severity of the disorder. However, whetherinadirectorcollateralmanner,doesnot
the concealment of drug addiction, habitual prescribe.
alcoholism, lesbianism or homosexuality is a
24 CIVILLAWTEAM:

Note: Any of the parties in a void marriage can file denied a petition to declare the marriage void
an action for the declaration of nullity of marriage due to psychological incapacity, is barred by res
eventhoughsuchpartyisthewrongdoer. judicata.Thereisonlyonecauseofactionwhich
is the nullity of the marriage. Hence, when the
Q: What is the effect of death of a party in a second case was filed based on another ground,
petitionfordeclarationofnullityofmarriages? therewasasplittingofacauseofactionwhichis
prohibited. The petitioner is estopped from
A: assertingthatthefirstmarriagehadnomarriage
1. Before the entry of judgment The license because in the first case, he impliedly
court shall order the case closed and admittedthesamewhenhedidnotquestionthe
terminated without prejudice to the absence of a marriage license. Litigants are
settlement of estate in proper providedwiththeoptionsonthecourseofaction
proceedings. to take in order to obtain judicial relief. Once an
2. After the entry of judgment The optionhasbeentakenandacaseisfiledincourt,
decision shall be binding upon the thepartiesmustventilateallmattersandrelevant
parties and their successorsininterest issuestherein.Thelosingpartywhofilesanother
inthesettlementoftheestate. action regarding the same controversy will be
needlessly squandering time, effort and financial
Q: May the heirs of a deceased person file a resources because he is barred by law from
petition for the declaration of nullity of his litigating the same controversy all over again.
marriageafterhisdeath? (Mallion v. Alcantara, G.R. No. 141528, Oct. 31,
2006)
A: No. The advent of the Rule on Declaration of
Absolute Nullity of Void Marriages marks the Q: Is the declaration of nullity of marriage
beginning of the end of the right of the heirs of appliedprospectively?
thedeceasedspousetobringanullityofmarriage
caseagainstthesurvivingspouse.WhileA.M.No. A: No, it retroacts to the date of the
021110SC declares that a petition for celebrationofthemarriage.However,although
declarationofabsolutenullityofmarriagemaybe thejudicialdeclarationofnullityofamarriage
filedsolelybythehusbandorthewife,itdoesnot
on the ground of psychological incapacity
mean that the compulsory or intestate heirs are
retroactstothedateofthecelebration ofthe
withoutanyrecourseunderthelaw.Theycanstill
marriage insofar as the vinculum between the
protect their successional right, for, compulsory
orintestateheirscanstillquestionthevalidityof partiesisconcerned,itmustbenotedthatthe
themarriageofthespouses,notinaproceeding marriage isnotwithoutlegal consequences or
fordeclarationofnullitybutuponthedeathofa effects.Onesuchconsequenceoreffectisthe
spouseinaproceedingforthesettlementofthe incurring of criminal liability for bigamy. To
estateofthedeceasedspousefiledintheregular hold otherwise would be to render nugatory
courts. the State's penal laws on bigamy as it would
allow individuals to deliberately ensure that
However,withrespecttonullityofmarriagecases each marital contract be flawed in some
commencedbeforetheeffectivityofA.M.No.02 manner,andtothusescapetheconsequences
1110 and marriages celebrated during the of contracting multiple marriages. (Tenebro v.
effectivity of the Civil Code, the doctrine laid CA,G.R.No.150758,Feb.18,2004)
down in the Nial v. Bayadog case still applies;
that the children have the personality to file the Q: While his marriage is subsisting, Veronico
petitiontodeclarethenullityofmarriageoftheir married Leticia, which marriage was later
deceased father to their stepmother as it affects declared void on the ground of psychological
their successional rights. (De Dios Carlos v. incapacity. When Veronico got married for the
Sandoval,G.R.No.179922,December16,2008). thirdtime,Leticiafiledacaseforbigamyagainst
him.
Q: If the court denies a petition for declaration
of nullity of marriage based on psychological For his defense, Veronico claims that effects of
incapacity, may a party to the said case file the nullity of his marriage with Leticia retroacts
another petition for declaration of its nullity tothedatewhenitwascontracted,hence,heis
basedontheabsenceofmarriagelicense? not guilty of bigamy for want of an essential
element the existence of a valid previous
A:Apetitiontodeclarethemarriagevoiddueto marriage.RuleonVeronicosargument.
absence of marriage license, filed after the court
25

Note:Ifbothspousesofsubsequentmarriageacted
A:No.Article349oftheRPCpenalizesthemere inbadfaith,suchmarriageisvoidabinitio.
act of contracting a second or subsequent
marriage during the subsistence of a previous Q: Gregorio married Janet. When he was
valid marriage. Here, as soon as the second employedoverseas,hewasinformedthatJanet
marriage to Leticia was celebrated, the crime of left.Fiveyearslater,hefiledanactionforherto
bigamy had already been consummated as the bedeclaredpresumptivelydeadwithoutalleging
second marriage was contracted during the that he wishes to remarry. Will his action
subsistenceofthevalidfirstmarriage.(Tenebrov. prosper?
CA,G.R.No.150758,Feb.18,2004)
A: No. A petition to declare an absent spouse
Q: Is the judicial declaration of absolute nullity presumptively dead may not be granted in the
ofavoidmarriagenecessary? absenceofanyallegationthatthespousepresent
will remarry. Also, there is no showing that
A: Gregorioconductedasearchforhismissingwife
1. For purposes of remarriage judicial w/ such diligence as to give rise to a "well
declaration of absolute nullity is founded belief" that she is dead. The four
necessary. requisitesnothavingconcurred,hisactionforthe
declaration of presumptive death of his wife
Note: In the instance where a party who should be denied. (Republic v. Nolasco, G.R. No.
has previously contracted a marriage 94053,Mar.17,1993)
whichislegallyunassailable,heisrequired
bylawtoprovethatthepreviousonewas Q: What is the effect if the parties to the
anabsolutenullity.Butthishemaydoon subsequent marriage obtains knowledge that
the basis solely of a final judgment thespouseabsenthasreappeared?
declaringsuchpreviousmarriagevoid.
A:None.Iftheabsenteereappears,butnostepis
2. For purposes other than remarriage taken to terminate the subsequent marriage,
nojudicialactionisnecessary. either by affidavit or by court action, such
absentee's mere reappearance, even if made
Note: Here, evidence may be adduced, known to the spouses in the subsequent
testimonial or documentary, to provethe marriage,willnotterminatesuchmarriage.(SSSv.
existenceofthegroundsrenderingsucha JarqueVda.DeBailon,G.R.No.165545,Mar.24,
previousmarriageanabsolutenullity.But
2006)
these need not be limited solely to an

earlierfinaljudgmentofacourtdeclaring
Q:Mayamarriagebeterminatedextrajudicially?
such marriage void. (Rabuya, Civil Law
Reviewer,2009ed)

A: Yes. The recording of the affidavit of
SUBSEQUENTMARRIAGE reappearance of the absent spouse in the civil
registry of the residence of the parties to the
Q:Inwhatcasesmayapersonenterintoavalid subsequent marriage shall automatically
subsequentmarriageduringthesubsistenceofa terminate the terminable bigamous marriage
priormarriage? unlessthereisajudgmentannullingtheprevious
marriageordeclaringitvoidabinitio.(Art.42)
A: In case of terminable bigamous marriages. If
before the celebration of the subsequent In Art 42, FC, no judicial proceeding to annul a
marriage:ABD subsequent marriage contracted under Art. 41 is
1. TheAbsentspousehadbeenabsentfor necessary. Also, the termination of the
4 consecutive years (ordinary absence) subsequent marriage by affidavit provided for in
or 2 consecutive years (extraordinary Art.42doesnotprecludethefilingofanactionin
absence); courttoprovethereappearanceoftheabsentee
2. The present spouse has a wellfounded and obtain a declaration of dissolution or
Beliefthattheabsentspouseisalready termination of the subsequent marriage. (SSS v.
dead; JarqueVda.DeBailon,G.R.No.165545,Mar.24,
3. There is judicial Declaration of 2006)
presumptive death in a summary
proceeding.

26 CIVILLAWTEAM:

Q: When are nonbigamous subsequent marriagewouldhavebeenvoidable.

marriagesvoid?
In both cases, the fact that the German
A: The subsequent marriage of a person whose misrepresented his citizenship to avoid having to
prior marriage has been annulled but contracted present his Certificate of Legal Capacity, or the
said subsequent marriage without compliance holding of the ceremony outside the church or
withArt.52,FC,shallbevoid. beyond the territorial jurisdiction of the
solemnizingofficer,areallirregularitieswhich do
Before he contracts a subsequent marriage, he not affect the validity of the marriage. (2008 Bar
must first comply with the requirement provided Question).
forinArt.52,viz:
VOIDABLEMARRIAGES
The recording in the civil registries and registries
ofpropertiesofthefollowing:JPDD Q:Whatistheeffectifamarriageisvoidable?

1. Judgmentofannulment; A: A voidable marriage is considered valid and
2. Partition; producesallitscivileffectsuntilitissetasideby
3. Distributionofproperties,and finaljudgmentofacompetentcourtinanaction
4. Deliveryofpresumptivelegitimes forannulmet.(Rabuya,Persons,p.295)

Q: Ana Rivera had a husband, a Filipino citizen Q:Whatarevoidablemarriagesandhowmay
like her, who was among the passengers on theyberatified?
board a commercial jet plane which crashed in
theAtlanticOceanten(10)yearsearlierandhad A:
never been heard of ever since. Believing that GROUND RATIFICATION
her husband had died, Ana married Adolf Cruz
Contracting party who
Staedler, a divorced German national born of a Marriageofaparty18 failedtoobtainparental
German fatherand a Filipinomother residing in yearsofageorover consent: Through free
Stuttgart.Toavoidbeingrequiredtosubmitthe butbelow21 cohabitation after
requiredcertificateofcapacitytomarryfromthe solemnizedwithout attainingtheageof21.
German Embassy in Manila, Adolf stated in the theconsentofthe Note:Theparentscannot
application for marriage license stating that parents,guardianor ratify the marriage. The
AdolfwasaFilipino,thecouplegotmarriedina personhaving effect of prescription on
ceremony officiated by the Parish Priest of substituteparental theirpartisthattheyare
Calamba, Laguna in a beach in Nasugbu, authorityoverthe barred from contesting it
Batangas, as the local parish priest refused to party,inthatorder but the marriage is not
solemnize marriage except in his church. Is the yetcleansedofitsdefect.
marriagevalid?Explainfully. Insane spouse: Through
Eitherpartywasof
free cohabitation after
A:Theissuehingesonwhetherornotthemissing unsoundmind
comingtoreason.
husbandwasdeadoraliveatthetimeofthe
secondmarriage. Injured party: Through
free cohabitation with
Consentofeitherparty
If the missing husband was in fact dead at the full knowledge of the
wasobtainedbyfraud
time the second marriage was celebrated, the facts constituting the
second marriage was valid. Actual death of a fraud.
spousedissolvesthemarriageipsofactowhether Injured party: Through
Vicesofconsentsuch
or not the surviving spouse had knowledge of free cohabitation after
asforce,intimidation
such fact. A declaration of presumptive death theviceshaveceasedor
orundueinfluence
even if obtained will not make the marriage disappeared.
voidable because presumptive death will not May not be ratified but
prevailoverthefactofdeath. actionmaybebarredby
ImpotenceandSTD
prescription only, which
Ifthemissinghusbandwasinfactalivewhenthe
is 5 years after the
second marriage was celebrated, the second marriage
marriage was void ab initio because of a prior

subsisting marriage. Had Ana obtained a

declaration of presumptive death, the second

27

UNSOUNDMIND marriage. Supreme Court refused to annul the
marriage for the reason that the woman was at an
Q:Whatisthetestindeterminingunsoundness advance stage of pregnancy at the time of the
ofmindasagroundforannulment? marriageandsuchconditionmusthavebeenpatent
to the husband. (Buccat v. Buccat, G.R. No. 47101,
A: It is essential that the mental incapacity must Apr.25,1941)
relatespecificallytothecontractofmarriageand
the test is whether the party at the time of the Q: Aurora prayed for the annulment of her
marriage was capable of understanding the marriage with Fernando on the ground of fraud
nature and consequences of the marriage. in obtaining her consent after having learned
(Rabuyapersons,p.300) that several months prior to their marriage,
Fernando had premarital relationship with a
Q: Who may file annulment based on unsound close relative of his. According to her the "non
mind? divulgement to her of such premarital secret"
constituted fraud in obtaining her consent w/in
A: thecontemplationofno.4ofArt.85,NCC.Isthe
GR:Thesanespousehasthelegalstandingto concealment by the husband of a premarital
file the action for annulment only in cases relationship with another woman a ground for
where he or she contracted the marriage annulmentofmarriage?
withoutknowledgeoftheothersinsanity.
A: No. The nondisclosure to a wife by her
XPN: When the sane spouse had knowledge husband of his premarital relationship with
of the others insanity, action for annulment anotherwomanisnotagroundforannulmentof
maybefiledonlybythefollowing; marriage. For fraud as a vice of consent in
1. Any relative or guardian or person marriage, which may be a cause for its
havinglegalchargeoftheinsane annulment, comes under Art. 85, No. 4 of the
2. The insane spouse during a lucid NCC. (now, Article 46 of the Family Code). This
interval or after regaining sanity fraud,asviceofconsent,islimitedexclusivelyby
(Rabuya,p.301) lawtothosekindsorspeciesoffraudenumerated
inArt.86.
FRAUD
Note: The intention of Congress to confine the
circumstances that can constitute fraud as ground
Q: What are the circumstances constituting
for annulment of marriage to the 3 cases therein
fraudunderArt.45(3)?
maybededucedfromthefactthat,ofallthecauses

ofnullityenumeratedinArt.85 (now,Article46of
A:NPSD
theFamilyCode),fraudistheonlyonegivenspecial
1. Nondisclosure of conviction by final treatmentinasubsequentarticlewithinthechapter
judgment of crime involving moral onvoidandvoidablemarriages.Ifitsintentionwere
turpitude; otherwise,CongresswouldhavestoppedatArt.85,
2. Concealment by the wife of the fact for anyway, fraud in general is already mentioned
that at the time of marriage, she was therein as a cause for annulment. (Anaya v.
Pregnant by a man other than her Palaroan,GRL27930,Nov.261970)
husband;
3. Concealment of Sexually transmitted DRUGADDICTION
disease,regardlessofnature,existingat
thetimeofmarriage; Q: Under what conditions, respectively, may
4. Concealment of Drug addiction, drug addiction be a ground, if at all, for the
habitual alcoholism, homosexuality and declarationof nullityof marriage, annulmentof
lesbianism.(Art.46) marriage,andlegalseparation?

A:
Note:Any other misrepresentation as to character, 1. Declarationofnullityofmarriage:
health, rank, fortune or chastity is not a ground for
annulment. a. The drug addiction must amount
Note: Where there has been no misrepresentation to psychological incapacity to
or fraud, that is, when the husband at the time of comply with the essential
the marriage knew that the wife was pregnant, the
obligationsofmarriage;
marriage cannot be annulled. Here, the child was
bornlessthan3monthsafterthecelebrationofthe
28 CIVILLAWTEAM:

b. It must be antecedent (existing at IMPOTENCE

the time of marriage), grave and
incurable: Q:When may impotence be a ground for
annulmentofmarriage?
2. Annulmentofmarriage:
A:CPUII
a. The drug addiction must be 1. Exists at the time of the Celebration of
concealed; marriage
b. It must exist at the time of 2. Permanent (does not have to be
marriage; absolute)
c. There should be no cohabitation 3. Incurable
with full knowledge of the drug 4. Unknowntotheotherspouse
addiction; 5. OtherspousemustnotalsobeImpotent
d. The case is filed within five (5)
yearsfromdiscovery. Q:Incasethereisnoproofastothepotencyof
onespouse,shallhebeconsideredasimpotent?
3. Legalseparation:
A:
a. Thereshouldbenocondonationor GR:No.Presumptionisinfavorofpotency.
consenttothedrugaddiction;
b. Theactionmustbefiledwithinfive XPN:Doctrineoftriennialcohabitation.
(5) years from the occurrence of
thecause. Q:Whatisthedoctrineoftriennialcohabitation?
c. Drug addiction arises during the
marriage and not at the time of A: If after 3 years of living together with her
marriage.(BarQuestion1997) husband,thewiferemainedavirgin,thehusband
ispresumedtobeimpotent.(Rabuya,Persons,p.
Q: If drug addiction, habitual alcoholism, 310)
lesbianism or homosexuality should occur only
during the marriage, would these constitute SEXUALLYTRANSMITTEDDISEASE
grounds for a declaration of nullity or for legal
separation, or would they render the marriage Q:Whenmayafflictionofasexuallytransmitted
voidable? disease(STD)beagroundforannulment?

A: In accordance with law, if drug addiction, A:Requisites:AESIAF
habitual alcoholism, lesbianism or homosexuality a. OneofthepartiesisAfflictedwithSTD
shouldoccuronlyduringthemarriage,theywill: b. STDmustbe:
1. Not constitute as grounds for a. Existingatthetimethemarriageis
declarationofnullity.(Art.36,FC) celebrated
2. Constitute as grounds for legal b. Serious
separation.(Art.55,FC);and c. apparentlyIncurable
3. Notconstituteasgroundstorenderthe c. TheotherspousemustnotbeAwareof
marriage voidable. (Arts. 45 and 46 of theothersaffliction
theFC)(2002BarQuestion) d. InjuredpartymustbeFreefromSTD.

VITIATEDCONSENT Q:YvettewasfoundtobepositiveforHIVvirus,
considered sexually transmissible, serious and
Q: When is vitiated consent a ground for incurable. Her boyfriend Joseph was aware of
annulmentofmarriage? herconditionandyetmarriedher.Aftertwo(2)
yearsofcohabitingwithYvette,andinhisbelief
A: that she would probably never be able to bear
GR: Consent of either party was obtained by him a healthy child, Joseph now wants to have
force,intimidationorundueinfluence hismarriagewithYvetteannulledontheground
that Yvette has STD. Yvette opposes the suit
XPN: If the same having disappeared or contendingthatJosephisestoppedfromseeking
ceased,suchpartythereafterfreelycohabited annulmentoftheirmarriagesincehekneweven
withtheotherashusbandandwife beforetheirmarriagethatshewasafflictedwith
HIVvirus.
29

force,intimidation,orundueinfluence
Can the action of Joseph for annulment of his
Within5yearsfromthe
marriagewithYvetteprosper?Discussfully.
timetheforce,

Injuredparty intimidation,orundue
A: No. Concealment of a sexually transmitted
influencedisappeared
diseasemayannulthemarriageiftherewasfraud
orceased
existinginthepartyconcerned.Inthiscase,there
was no fraud because Joseph knew that Yvette Eitherpartywasphysicallyincapableof
wassufferingfromHIVwhenhemarriedher.(par consummatingthemarriagewiththeother,and
3,Art.46,FamilyCode) suchincapacitycontinuesandappearstobe
incurable
Q:DifferentiateArticles45and46oftheFamily Within5yearsafterthe
CodeonSTDasgroundforannulment Injuredparty
celebrationofmarriage

Eitherpartywasafflictedwithasexually
A:
transmissiblediseasefoundtobeseriousand
ARTICLE45 ARTICLE46 appearstobeincurable
Affliction Concealment
Within5yearsafterthe
The act of concealing Injuredparty
Thefactofbeing celebrationofmarriage
is the ground for
afflictedistheground
annulment as it
forannulment 5.PRESENCEOFPROSECUTOR
constitutesFraud

Whetherconcealedor Theremustbe
Q:WhatistheroleoftheprosecutororSolicitor
not concealment
Generalinallcasesofannulmentordeclaration
MustbeSeriousand Doesnothavetobe ofabsolutenullityofmarriage?
Incurable seriousandincurable
A: They shall take steps to prevent collusion
Q: Who may file and when should the petition between the parties and to take care that
forannulmentofvoidablemarriagesbefiled? evidence is not suppressed. Concomitantly, even
ifthereisnosuppressionofevidence,thepublic
A: prosecutorhastomakesurethattheevidenceto
WHOMAYFILE WHENTOFILE bepresentedorlaiddownbeforethecourtisnot
Marriagewassolemnizedwithouttheconsentof fabricated. Truly, only the active participation of
theparents,guardianorpersonhaving thepublicprosecutorortheSolicitorGeneralwill
substituteparentalauthorityovertheparty ensure that the interest of the State is
represented and protected in proceedings for
Within5yearsafter
Contractingparty declaration of nullity of marriages by preventing
attainingtheageof21
thefabricationorsuppressionofevidence.
Parent,guardian,or
Atanytimebeforesuch
personhavinglegal Q: When is the nonintervention of the
partyhasreachedthe
chargeofthe prosecutor not fatal to the validity of the
ageof21
contractingparty proceedingsinthetrialcourt?
Eitherpartywasofunsoundmind
Sanespousewhohad A:Incaseswheretherespondentinapetitionfor
Atanytimebeforethe annulment vehemently opposed the same and
noknowledgeofthe
deathofeitherparty where he does not allege that evidence was
othersinsanity
suppressed or fabricated by any of the parties.
Anyrelative,guardian (Tuasonv.CA,G.R.No.116607,April10,1996)
Atanytimebeforethe
orpersonhavinglegal
deathofeitherparty
chargeoftheinsane Q:Whataretheactionsprohibitedinannulment
Duringalucidintervalor and declaration of absolute nullity of marriage
Insanespouse
afterregainingsanity cases?
Theconsentofeitherpartywasobtainedby
fraud A:CCSSJ
1. Compromise
Within5yearsafterthe 2. Confessionofjudgment
Injuredparty
discoveryoffraud 3. Stipulationoffacts
Theconsentofeitherpartywasobtainedby 4. Summaryjudgment
5. Judgmentonthepleadings
30 CIVILLAWTEAM:

A:Thefinaljudgmentshallprovidefortheff:
Note: What the law prohibits is a judgment based 1. Liquidation,partitionanddistributionof
exclusively or mainly on defendant's confession thepropertiesofthespouses;
(Ocampo v. Florenciano, 107 Phil. 35). Thus, 2. Custody and support of the common
stipulation of facts or confession of judgment if children;and
sufficiently supported by other independent 3. Deliveryoftheirpresumptivelegitimes,
substantial evidence to support the main ground
relied upon, may warrant an annulment or Unless such matters had already been
declarationofabsolutenullity.
adjudicated in previous judicial proceedings, in
which case, the final judgment of nullity or

6.PENDENCYOFACTION
annulmentneednotprovideforthosewhichhave
alreadybeenadjudicated.
Q: What is the duty of the Court during the

pendency of the action for annulment, Note:Wheretherewasafailuretorecordinthecivil
declaration of absolute nullity of marriage or registry and registry of property the judgment of
legalseparation? annulment or absolute nullity of the marriage, the
partition and distribution of the property of the
A: The Court shall, in the absence of adequate spouses, and the delivery of the childrens
writtenagreementbetweenthespouses,provide presumptive legitimes, it shall not affect third
forthe: persons.(Arts.52&53)
1. Supportofthespouses
2. Support and custody of the common Q:Whataretheformsofpresumptivelegitime?
children.
3. Visitationrightsoftheotherparent. A:
1. cash
7.EFFECTSOFNULLITY 2. property
3. soundsecurity
Q: What rule governs the liquidation of
properties in marriages declared void or
annulledbyfinaljudgment? Q:Whatmustbedonebyapersonwhoseprior
marriage was annulled or declared void if he
A: wishestoremarry?
1. Voidmarriages:
GR: The rules on coownership under A: He must comply with the requirement
theCivilCode.(Valdesv.RTC) provided for in Art. 52, before he contracts a
subsequentmarriage,viz:
XPN: Art. 43(2) of the Family Code in
marriagesdeclaredvoidunderArt.40. The recording in the civil registries and registries
(Art.50) ofpropertiesofthefollowing:JPDD

2. Voidable marriages under Art. 45: shall 1. Judgmentofannulment;
be liquidated in accordance with Art. 2. Partition;
43(2)oftheFamilyCode.(Art.50) 3. Distributionofproperties;and
4. Deliveryofpresumptivelegitimes.

Note:InbothinstancesunderArticles40and45,the III.LEGALSEPARATION
marriages are governed either by absolute
community of property or conjugal partnership of A.GROUNDS
gains unless the parties agree to a complete
separation of property in a marriage settlement Q:Whatarethegroundsforlegalseparation?
enteredintobeforethemarriage.Sincetheproperty
relations of the parties is governed by absolute
A:PALFACSILA
community of property or conjugal partnership of
1. Repeated Physicalviolence or grossly
gains, there is a need to liquidate, partition and
distribute the properties. (Dino v. Dino, G.R. No.
abusive conduct against petitioner,
178044,January19,2011) commonchild,childofpetitioner;
2. Attempttocorruptorinducepetitioner,
Q: What must the final judgment of nullity or common child, child of petitioner to
annulmentprovide? engageinprostitution,orconnivancein
suchcorruptionorinducement;
31

3. Attempt by respondent against Lifeof 2. Placing the woman or her child in fear
petitioner; ofimminentphysicalharm;
4. Final judgment sentencing respondent 3. Attemptingtocompelorcompellingthe
toimprisonmentofmorethan6years; womanorherchild:
5. DrugAddictionorhabitualalcoholismof a. to engage in conduct which the
respondent; womanorherchildhastherightto
desistfrom;or
Note:It must exist after celebration of b. desist from conduct which the
marriage womanorherchildhastherightto
engagein,
6. Physical violence or moral pressure to
Compelpetitionertochangereligiousor 4. Attempting to restrict or restricting the
politicalaffiliation; womans or her childs freedom of
7. Bigamous marriage Subsequently movementorconductby:
contracted by respondent in the a. Force,or
Philippinesorabroad b. threatofforce;
8. SexualInfidelityorperversion; c. physical,or
9. Lesbianism/homosexuality of d. otherharm,or
respondent; e. threatofphysicalorotherharm;
f. intimidation directed against the
Note: It must exist after celebration of womanorchild.
marriage This shall include, but not limited

to, the following acts committed
10. Abandonment of petitioner by
with the purpose or effect of
respondentwithoutjustifiablecausefor
controlling or restricting the
morethan1year.
womans or her childs movement

orconduct:
Q: Lucita left the conjugal dwelling and filed a
i. Threatening to deprive or
petition for legal separationdue to the physical
actually depriving the woman
violence, threats, intimidation and grossly
or her child of custody to
abusiveconductshehadsufferedatthehandsof
her/hisfamily;
Wiliam, her husband. William denied such and
ii. Depriving or threatening to
claimedthatsinceitwasLucitawhohadleftthe
deprive the woman or her
conjugal abode, then the decree of legal
children of financial support
separation should not be granted, following
legally due her or her family,
Art.56 (4) of the FC which provides that legal
or deliberately providing the
separation shall be denied when both parties
womans children insufficient
have given ground for legal separation. Should
financialsupport;
legal separation be denied on the basis of
iii. Depriving or threatening to
Williamsclaimofmutualguilt?
deprive the woman or her

childofalegalright;
A: No. Art. 56 (4) of the FC does not apply since
iv. Preventing the woman in
the abandonment that is a ground for legal
engaging in any legitimate
separation is abandonment without justifiable
profession, occupation,
causeformorethanoneyear.Inthiscase,Lucita
business or activity or
leftWilliamduetohisabusiveconduct.Suchact
controlling the victims own
does not constitute the abandonment
moneyorproperties,orsolely
contemplated in the said provision. Since this is
controlling the conjugal or
so, there is no mutual guilt between them as
common money, or
thereisonlyoneerringspouse.(OngEngKiamv.
properties;
CA,GRNo.153206,Oct.23,2006)

5. Inflicting or threatening to inflict
Q:What acts are considered acts of violence
physical harm on oneself for the
underR.A.9262?
purpose of controlling her actions or

decisions;
A:
6. Causing or attempting to cause the
1. Causing, threatening to cause, or
woman or her child to engage in any
attempting to cause physical harm to
thewomanorherchild;
32 CIVILLAWTEAM:

sexual activity which does not

constituterape,by: A: Protection order is an order issued under this
a. Force,or act for the purpose of preventing further acts of
b. threatofforce; violence against a woman or her child and
c. physicalharm,or grantingothernecessaryrelief.(Rabuya,Persons,
d. through intimidation directed p.376)
against the woman or her child or
her/hisimmediatefamily; Thereliefgrantedunderaprotectionorderserves
the purpose of safeguarding the victim from
7. Engaging in purposeful, knowing, or further harm, minimizing any disruption in the
reckless conduct, personally orthrough victimsdailylife,andfacilitatingtheopportunity
another, that alarms or causes and ability of the victim to independently regain
substantial emotional or psychological control over her life. The provisions of the
distresstothewomanorherchild. protection order shall be enforced by law
enforcementagencies.Theprotectionordersthat
Thisshallinclude,butnotbelimitedto, may be issued under this Act are the barangay
thefollowingacts: protection order (BPO), temporary protection
a. Stalkingorfollowingthewomanor order (TPO) and permanent protection order
her child in public or private (PPO).
places;
b. Peeringinthewindoworlingering Q:Whomayfileforprotectionorder?
outside the residence of the
womanorherchild; A:
c. Entering or remaining in the 1. Theoffendedparty;
dwelling or on the propertyofthe 2. Parents or guardians of the offended
womanorherchildagainsther/his party;
will; 3. Ascendants, descendants or collateral
d. Destroying the property and relatives within the fourth civil degree
personalbelongingnessorinflicting ofconsanguinityoraffinity;
harm to animals or pets of the 4. Officers or social workers of the DSWD
womanorherchild;and or social workers of local government
e. Engaging in any form of units(LGUs);
harassmentorviolence; 5. Police officers, preferably those in
chargeofwomenandchildrensdesks;
8. Causing mental or emotional anguish, 6. Punongbarangayorbarangaykagawad;
public ridicule or humiliation to the 7. Lawyer, counselor, therapist or
woman or her child, including, but not healthcareproviderofthepetitioner;
limited to, repeated verbal and 8. At least two (2) concerned responsible
emotionalabuse,anddenialoffinancial citizens of the city or municipality
supportorcustodyofminorchildrenof wheretheviolenceagainstwomenand
accesstothewomanschild/children. their children occurred and who has
personal knowledge of the offense
Note: The Supreme Court decided to withhold the committed.
names and identities of women and child victims,
from the court records in order to respect their B.DEFENSES
dignity and protect their privacy. These rulings give
effect to the provisions of R.A. 9262. The Q: What are the grounds for denial of petition
confidentiality or nondisclosure rule covers the forlegalseparation?
withholding of information relating to the personal

circumstances of the victim which tend to establish
A:C4MPDR
or compromise their identities, as well as those of
their immediate family or household members. In
1. Condonationofactcomplainedof;
the aforesaid cases, the names of the victims were 2. Consent to the commission of the
substituted with initials. (People v. Melchor offense/act;
Cabalquinto,G.R.No.167693,Sept.19,2006;People 3. Connivance in the commission of the
v. Alexander Mangitngit, G.R. No. 171270, Sept. 20, act;
2006) 4. Collusion intheprocurementofdecree
ofLS;
Q:WhatisaProtectionOrderunderR.A.9262? 5. Mutualguilt;
33

6. Prescription: 5 yrs from occurrence of
cause; 1. Does Rosa have legal grounds to ask for
7. Death of either party during the legalseparation?
pendency of the case (LapuzSy v. 2. Hastheactionprescribed?
Eufemio, G.R. No. L31429, Jan. 31,
1972); A:
8. Reconciliationofthespousesduringthe 1. Yes, the abandonment of Rosa by Ariel
pendencyofthecase(Art.56,FC). for more than one (1) year is a ground
for legal separation unless upon
Q: What is the prescriptive period for filing a returning to the Philippines, Rosa
petitionforlegalseparation? agrees to cohabit with Ariel which is
allowedundertheMuslimCode.Inthis
A: An action for legal separation shall be filed case,thereiscondonation.
withinfiveyearsfromthetimeoftheoccurrence
ofthecause(Art.57,FC).Anactionfiledbeyond The contracting of a subsequent
thatperiodisdeemedprescribed. bigamous marriage whether in the
Philippines or abroad is a ground for
Q:Williamfiledapetitionforlegalseparationin legal separation under Article 55(7) of
1955groundedonJuanitasadulterousrelations the Family Code. Whether the second
allegedly discovered by William in 1945. Was marriage is valid or not, Ariel having
Williamsactionalreadybarredbyprescription? convertedintoIslam,isimmaterial.

A:Yes.UnderArticle102,NCC,anactionforlegal 2. No.UnderArticle57oftheFamilyCode,
separationcannotbefiledexceptwithinone(1) the aggrieved spouse must file the
year from and after the plaintiff became action within five (5) years from the
cognizantofthecauseandwithinfiveyearsfrom occurrence of the cause. The
andafterthedatewhensuchcauseoccurred. subsequent marriage of Ariel could not
have occurred earlier than 1990, the
In this case, Williams action is already barred time he went to Saudi Arabia. Hence,
because of his failure to petition for legal Rosa has until 1995 to bring the action
separation proceedings until ten years after he under the Family Code. (1994 Bar
learnedofhiswife'sadultery,whichwasuponhis Question)
release from internment in 1945. (Brown
v.Yambao,G.R.No.L10699,Oct.18,1957) C.COOLINGOFFPERIOD

Note:Thiscasewasdecidedunderthecivilcodenot Q:Whatisthemandatorycoolingoffperiod?
underthefamilycode.
A: The requirement set forth by law that an
What is the effect of failure to interpose actionforlegalseparationshallinnocaseshallbe
prescriptionasadefense? triedbefore6monthshaselapsedsincethefiling
ofthepetition,toenablethecontendingspouses
A:None.Whileitistruethatprescriptionwasnot to settle differences. In other words, it is for
interposedasadefense,nevertheless,thecourts possiblereconciliation.
can take cognizance thereof, because actions
seeking a decree of legal separation, or Note: There is no coolingoff period if the ground
annulment of marriage, involve public interest alleged are those under R.A. 9262 (Antiviolence
anditisthepolicyofourlawthatnosuchdecree againstWomenandChildren).
be issued if any legal obstacles thereto appear
upon the record. (Brown v.Yambao, G.R. No. L D.RECONCILIATIONEFFORTS
10699,Oct.18,1957)
Q: What is required of the Court before legal
Q: Rosa and Ariel were married in the Catholic separationmaybedecreed?
Church of Tarlac, Tarlac on January 5. 1988. In
1990,ArielwenttoSaudiArabiatowork.There, A: The Court shall take steps toward the
after being converted into Islam, Ariel married reconciliation of the spouses and must be fully
Mystica,Rosalearnedofthesecondmarriageof satisfied, despite such efforts, that reconciliation
ArielonJanuary1,1992whenArielreturnedto ishighlyimprobable
thePhilippineswithMystica.Rosafiledanaction
forlegalseparationonFebruary5,1994.
34 CIVILLAWTEAM:

E.CONFESSIONOFJUDGMENT stateisvitallyinterested,sothatitscontinuation
orinterruptioncannotbemadedependuponthe
Q:Whatistheruleinrenderingajudgmentof partiesthemselves.Itisconsonantwiththispolicy
legalseparationbaseduponastipulationoffacts thattheinquirybytheFiscalshouldbeallowedto
orconfessionofjudgment? focusuponanyrelevantmatterthatmayindicate
whether the proceedings for separation or
A:Adecreeoflegalseparationcannotbeissued annulment are fully justified or not. (Brown
solelyonthebasisofastipulationoffactsora v.Yambao,G.R.No.L10699,Oct.18,1957)
confessionofjudgment.Thegroundsforlegal
separationmustbeproved.Neitherconfessionof Q: Who may file, when and where should the
judgmentnorsummaryjudgmentisallowed. petitionforlegalseparationbefiled?

Note:Whatthelawprohibitsisajudgmentbased A:
exclusivelyormainlyondefendant'sconfession.( Whomay
Husbandorwife
Ocampov.Florenciano,G.R.No.L13553,February file
23,1960) Within5yearsfromthetimeof
Whentofile
theoccurrenceofthecause
EXTENTOFINQUIRYOFPROSECUTOR FamilyCourtoftheprovinceor
citywherethepetitionerorthe
Q: After learning of Juanitas misconduct, respondenthasbeenresidingfor
William filed a petition for legal separation. Whereto atleast6monthspriortothe
During his crossexamination by the Assistant file dateoffilingorincaseofanon
Fiscal,itwasdiscoveredthatWilliamlivedwitha resident,wherehemaybefound
woman named Lilia and had children with her inthePhilippines,attheelection
after the liberation. The court denied the ofthepetitioner
petition on the ground both of them had
incurred in a misconduct of similar nature that F.EFFECTSOFFILINGPETITION
barredtherightofactionunderArt.100,NCC.
Q:Whataretheeffectsoffilingofapetitionfor
Williamarguesthatincrossexamininghimwith legalseparation?
regardtohismaritalrelationwithLilia,whowas
nothiswife,theAssistantFiscalactedascounsel A:
for Juanita when the power of the prosecuting 1. The spouses shall be entitled to live
officer is limited to finding out whether or not separatelyfromeachother.
thereiscollusion,andifthereisnocollusion,to 2. In the absence of an agreement
interveneforthestate.Ishisargumentcorrect? between the parties, the court shall
designate either the husband or the
A: The argument is untenable. It was legitimate rd
wife or a 3 person to administer the
for the Fiscal to bring to light any circumstances absolute community or conjugal
thatcouldgiverisetotheinferencethatJuanita's partnershipproperty.
defaultwascalculated,oragreedupon,toenable
himtoobtainthedecreeoflegalseparationthat G.EFFECTSOFPENDENCY
he sought without regard to the legal merits of
his case. One such circumstance is the fact of Q: What is the effect of the death of plaintiff
William'scohabitationwithLilia,sinceitbarshim spousebeforeadecreeoflegalseparation?
from claiming legal separation by express
provision of Article 100 of the new Civil Code. A: The death of plaintiff before a decree of legal
Such evidence of misconduct is a proper subject separation abates such action. Being personal in
of inquiry as they may justifiably be considered character, it follows that the death of one party
circumstantialevidenceofcollusionbetweenthe totheactioncausesthedeathoftheactionitself
spouses. actio personalis moritur cum persona. Even if
propertyrightsareinvolved,becausetheserights
Article101NCC,callingfortheinterventionofthe aremereeffectsofthedecreeoflegalseparation,
state attorneys in case of uncontested being rights in expectation, these rights do not
proceedings for legal separation (and of comeintoexistenceasaresultofthedeathofa
annulment of marriages, under Article 88) party.AlsoundertheRulesofCourt,anactionfor
emphasizes that marriage is more than a mere legal separation or annulment of marriage is not
contract;thatitisasocialinstitutioninwhichthe
35

onewhichsurvivesthedeathofspouse.(Lapuzv. spousesispurelypersonal.TheCivilCoderecognizes
Eufemio,G.R.No.L31429,Jan.31,1972) this(1)byallowingonlytheinnocentspouseandno
one else to claim legal separation; (2) by providing
Q: May the heirs of the deceased spouse thatthespousescan,bytheirreconciliation,stopor
continue the suit (petition for decree of legal abatetheproceedingsandevenrescindadecreeof
separation) if the death of the spouse takes legal separation already granted.(Lapuz v. Eufemio,
placeduringthependencyofthesuit? G.R.No.L31429,Jan.31,1972)

A: No. An action for legal separation is purely Q: May the wife who has been granted legal
personal,therefore,thedeathofonepartytothe separation petition be allowed to revert to her
action causes the death of the action itself maidenname?
actionpersonalismoriturcumpersona.
A:No.Themarriagebondnothavingsevered,the
Note: Incases where one of the spouses is dead as womanremainstobethelawfulwifeoftheman.
well as in case the deceaseds heirs continue the
suit,Separation of property and any forfeiture of Note: Even under the Civil Code, the use of the
sharealreadyeffectedsubsists,unlessspousesagree husband's surname during the marriage (Art. 370,
toreviveformerpropertyregime Civil Code), after annulment of the marriage (Art.
371,CivilCode)andafterthedeathofthehusband
H.EFFECTSOFLEGALSEPARATION (Art.373,CivilCode)ispermissiveandnotobligatory
except in case of legal separation (Art. 372, Civil

Code). Under the present article of our Code,
Q: What are the effects of decree of legal however,theword"may"isused,indicatingthatthe
separation? use of the husband's surname by the wife is
permissive rather than obligatory. We have no law
A: whichprovidesthatthewifeshallchangehername
1. Spousesentitledtoliveseparately; to that of the husband upon marriage. This is in
consonance with the principle that surnames
Note:Marriagebondnotsevered indicatedescent.Itseems,therefore,thatamarried
woman may use only her maiden name and
2. ACP/CPG shall be dissolved or surname. She has an option, but not a duty, to use
liquidated; the surname of the husband in any of the ways
providedbythisArticle.(Yasinv.Hon.JudgeShariah
Note:But offending spouse shall have no Districtcourt,G.R.No.94986,Feb.23,1995)
righttoanyshareofthenetprofitsearned
by the AC/CP which shall be forfeited in Q:Whichofthefollowingremedies,
accordingw/Art.43(2). a. declarationofnullityofmarriage,
b. annulmentofmarriage,
3. Custodyofminorchildrenisawardedto c. legalseparation,and/or
the innocent spouse (subject to Art. d. separationofproperty,
213,FC); can an aggrieved spouse avail
4. Offending spouse is disqualified to himself/herselfof:
inherit from innocent spouse by
intestatesuccession; a. If the wife discovers after the marriage that
5. Provisions in will of innocent spouse herhusbandhasAIDS?
which favors offending spouse shall be
revokedbyoperationoflaw; A: Since AIDS is a serious and incurable sexually
6. Innocent spouse may revoke donations transmissibledisease,thewifemayfileanaction
he/she made in favor of offending for annulmentof the marriage on this ground
spouse; whethersuchfactwasconcealedornotfromthe
wife,providedthatthediseasewaspresentatthe
Note: Prescriptive period: 5 years from time of the marriage. The marriage is voidable
finalityofdecreeoflegalseparation eventhoughthehusbandwasnotawarethathe
hadthediseaseatthetimeofmarriage.
7. Innocent spouse may revoke
designation of offending spouse as b.Ifthewifegoes(to)abroadtoworkasanurse
beneficiary in any insurance policy and refuses to come home after the expiration
(evenwhenstipulatedasirrevocable). ofherthreeyearcontractthere?
Note: An action for legal separation which involves

nothingmorethanbedandboardseparationofthe
36 CIVILLAWTEAM:

A:Ifthewiferefusestocomehomeforthree(3) I.RECONCILIATION
monthsfromtheexpirationofhercontract,sheis
presumed to have abandoned the husband and Q:Whataretheeffectsofreconciliation?
he may file an action for judicial separation of
property. If the refusal continues for more than A:
oneyearfromtheexpirationofhercontract,the 1. AstotheDecree:
husband may file the action for legal a. Duringthependencyofthecase:LS
separationunder Art. 55 (10) of the Family Code proceedings terminated in
on the ground of abandonment of petitioner by whateverstage
respondent without justifiable cause for more b. After the issuance of the decree:
than one year. The wife is deemed to have FinaldecreeofLStobesetaside
abandoned the husband when she leaves the
conjugal dwelling without any intention of 2. AstothePropertyRegime:
returning (Article 101, FC). The intention not to
return cannot be presumed during the 30year GR: With respect to separation of
periodofhercontract. properties,thesameshallsubsist.

c. If the husband discovers after the marriage XPN: The parties, however, can come
that his wife has been a prostitute before they into an agreement to revive their
gotmarried? previousregime.Theiragreementmust
beunderoathandmustcontainalistof
A: If the husband discovers after the marriage thepropertiesdesiredtobereturnedto
that his wife was a prostitute before they got the community or conjugal property
married,hehasnoremedy.Nomisrepresentation andthosewhichwillremainseparate,a
ordeceitastocharacter,health,rank,fortuneor listofcreditorsandtheiraddresses.
chastityshallconstitutefraudaslegalgroundfor
an action for the annulment of marriage (Article 3. As to capacity to succeed: The Family
46FC). Codedoesnotprovidefortherevivalof
revoked provisions in a will originally
d. If the husband has a serious affair with his madeinfavoroftheoffendingpartyas
secretary and refuses to stop notwithstanding aresultoftheLS.Thisabsencegivesthe
advicefromrelativesandfriends? innocent spouse the right to choose
whether the offending spouse will be
A: The wife may file an action for legal reinstituted.
separation. The husbands sexual infidelity is a
ground for legal separation (Article 55, FC). She 4. As to the forfeited shares: Those given
may also file an action for judicial separation of tothechildrencannotbereturnedsince
propertyforfailureofherhusbandtocomplywith thespousesarenolongertheownersof
his marital duty of fidelity (Article 135 (4), 101, such. But those given to the innocent
FC). spousemaybereturned.

e.Ifthehusbandbeatsuphiswifeeverytimehe Note:Inanactionforlegalseparationontheground
comeshomedrunk? of adultery filed by the husband, even though the
defendant wife did not interpose the defense of
A: The wife may file an action for legal prescription, nevertheless, the courts can take
separationon the ground of repeated physical cognizance thereof, because actions seeking a
violence on her person (Article 55 (1), FC). She decreeoflegalseparationorannulmentofmarriage,
may also file an action for judicial separation of involvepublicinterest,anditisthepolicyofourlaw
thatnosuchdecreebeissuedifanylegalobstacles
propertyforfailureofthehusbandtocomplywith
thereto appear upon the record. Also, the husband
hismaritaldutyofmutualrespect(Article135(4),
was guilty of commission of the same offense by
Article 101, FC). She may also file an action for livingwithanotherwoman.
declaration of nullityof the marriage if the
husbands behavior constitute psychological This is an exception to the Rules of Court provision
incapacity existing at the time of the celebration thatdefensesnotraisedinthepleadingswillnotbe
ofmarriage.(2003BarQuestion) considered since provisions on marriage are
substantiveinnature.(Brownv.Yambao,G.R.No. L
10699,Oct.18,1957)

37

Q: Does reconciliation automatically revive the liquidated propertyorconjugal
formerpropertyregimeofthespouses? pursuanttothe partnership,shallbeforfeited
ordinaryruleson infavorofthecommon
A:No.Ifthespouseswanttorevivetheprevious coownership. children,or
property regime, they must execute an
agreementtorevivetheformerpropertyregime, XPN:Marriages iftherearenone,the
which agreement shall be submitted in court, declaredvoid childrenoftheguiltyspouse
together with a verified motion for its approval. underArt.40 byapreviousmarriage,or
(Art.67,FamilyCode) whichshallbe
liquidatedin indefaultofchildren,the
Theagreementtorevivemustbeunderoathand accordancewith innocentspouse
specify: Art.43
1. The properties to be contributed anew (2).(Valdesv.
totherestoredregime; RTC)
2. Those to be retained as separated
propertiesofeachspouse;and
Donationspropternuptias
3. Thenamesofalltheirknowncreditors,
theiraddressesandtheamountsowing
toeach. GR:Shallremainvalid.[Art.
43(3)]
Q:HowdoesDeclarationofNullityofMarriage,
Annulment of Marriage and Legal Separation XPN:
differfromeachother? 1. ifdoneecontractedthe
marriageinbadfaith,
A: suchdonationsmadeto
saiddoneeshallbe
DECLARATION revokedbyoperationof
LEGAL law.
OFNULLITYOF ANNULMENT
SEPARATION 2. ifbothspousestothe
MARRIAGE
marriageactedinbad
Marriagebond faith,alldonations
Noeffect, propternuptiasshallbe
marriage revokedbyoperationof
Dissolved Dissolved bond law.
remains Insurance
valid
Ifonespouseactedinbad
Statusofchildren faith,innocentspousemay
GR:Illegitimate revokehisdesignationas
beneficiaryintheinsurance
XPN:Children policyevenifsuch
conceivedor designationbestipulatedas
bornof irrevocable.[Art.43(4)]

marriages Succession

before
Legitimate Ifonespousecontractedthe
declarationof
marriageinbadfaith,heshall
nullityunder
bedisqualifiedtoinheritfrom
Arts.36and53
innocentspousebytestate
considered
andintestatesuccession.[Art.
legitimate
43(5)]
Propertyrelations

GR:Governed ACP/CPGshallbedissolved&
eitherbyArticle liquidated.[Art.43(2)]
147orArticle

148ofthe Shareofspouse,who
FamilyCode. contractedthesubsequent

Thus,property marriageinbadfaith,inthe
regimeshallbe netprofitsofthecommunity
38 CIVILLAWTEAM:

IV.RIGHTSANDOBLIGATIONSBETWEEN 3. Exercise parental authority over

HUSBANDANDWIFE childrens property (Republic v. CA,
Molina,G.R.No.108763,Feb.13,1997).
A.ESSENTIALOBLIGATIONS
Q: May the performance of essential marital
Q: What are the rights and obligations of the obligationsbecompelledbycourt?
spouses?
A:
A: GR: Performance of EMO under Art. 68
1. Essentialmaritalobligations(EMO):LOR cannot be compelled by court because it will
a. Livetogether beaviolationofpersonalliberty.

Note: Includes consortium and XPN: Giving support (Arroyo v. Arroyo, G.R.
copulation No.L17014,Aug.11,1921)

b. Observe mutual love, respect, Q:Whofixesthefamilydomicile?
fidelity
c. Rendermutualhelpandsupport A:Thehusbandandwife.

2. Fixthefamilydomicile(Art.69,FC) Note:IncaseofdisagreementtheCourtshalldecide.
3. Jointlysupportthefamily(Art.70,FC)
a. Expenses shall be paid from the Q:WhenmaytheCourtexemptonespouse
communityproperty fromlivingwiththeother?
b. In the absence thereof from the
income or fruits of their separate A:
properties 1. Ifonespouseshouldliveaboad.
c. In the absence or insufficiency 2. Othervalidandcompellingreasons.
thereof from their separate
properties Note:TheCourtshallnotgranttheexemptionifit
isnotcompatiblewiththesolidarityofthefamily.
4. Managethehousehold(Art.71,FC)
5. Not to neglect duties, or commit acts Q:Fromwhereshalltheexpensesforthe
which tend to bring danger, dishonor, supportofthefamilycomefrom?
orinjurytofamily(Art.72,FC)
6. Either spouse may practice any A:
legitimate profession/business, even 1. Communityproperty
without the consent of the other. (Art. 2. In the absence thereof, from the
73,FC) incomeofseparateproperties.
3. Intheabsenceofsuchincome,fromthe
Note: Other spouse may object on valid, separateproperties.
seriousandmoralgrounds.
Q:Canaspouseobjectintheexercisebythe
Incaseofdisagreement,thecourtshall otherofhis/herprofession,occupationor
decidewhether: business?
a. Objectionisproper;and
b. Benefit has accrued to the family A:Yes,butonlyonvalid,seriousandmoral
beforeandaftertheobjection. grounds.

Note: The foregoing shall not prejudice Note:Otherspousemayobjectonvalid,seriousand
rightofcreditorswhoactedingoodfaith. moralgrounds.

Q:Whataretheotherobligationsofspouses? Incaseofdisagreement,thecourtshalldecide
whether:
A: a. Objectionisproper;and
1. Exercisethedutiesandenjoytherights b. Benefithasaccruedtothefamilybefore
ofparents; andaftertheobjection.
2. Answer for civil liability arising from
injuriescausedbychildrenbelow18; Note:Theforegoingshallnotprejudicerightof
creditorswhoactedingoodfaith.
39

Q:Whatlawshallgovernthepropertyrelations
ofspouses? Note:Thewaivermustbeinapublicinstrumentand
recorded in the office of the local civil registrar
A: wherethemarriagecontractwasrecordedaswellas
GR:Philippinelawsshallgovern,regardlessof intheproperregistryofproperty.
placeofcelebrationandresidenceofspouses,
in the absence of contrary stipulation in a A.MARRIAGESETTLEMENTS
marriagesettlement.(Art.80,FamilyCode)
Q:Whatisamarriagesettlement(MS)?
XPN:Lexreisitaeapplies:
1. Wherebothspousesarealiens; A: It is a contract entered into by spouses about
2. With respect to the extrinsic validity of tobemarriedforthepurposeoffixingtheterms
contracts: and conditions of their property relations with
a. affecting property not situated in regardtotheirpresentandfutureproperty.
thePhilippines;and
b. executedinthecountrywherethe ItisalsoreferedtoasAnteNuptialAgreementor
propertyislocated; MatrimonialContract.(Pineda,2008edition)
3. With respect to extrinsic validity of
contracts: Q:WhataretherequisitesofavalidMS?
a. enteredintointhePhilippines;but
b. affecting property situated in a A:ISER
foreigncountrywhoselawsrequire 1. Inwriting;
differentformalitiesforitsextrinsic 2. Signedbytheparties;
validity 3. Executed before the celebration of
marriage;
rd
Q: What governs the property relations of 4. Registration(tobind3 persons).
spouses?
Note: The provisions in the marriage settlement
A:Thepropertyrelationsshallbegovernedbythe must be in accordance with law, morals or public
ff.inthestatedorder: policy,otherwisesuchagreementisvoid(Paras,Civil
Code,bookI,pp.516)
1. Marriagesettlement
2. ProvisionsoftheFamilyCode Q:Whataretheadditionalrequirementsforthe
3. Localcustom validityoftheMS?

Q: Marriage being a contract, may the parties A:
enter into stipulations which will govern their ADDITIONAL
FACTUALSITUATION
marriage? REQUIREMENT
Theff.mustbemadea
A: Yes, only as to their property relations during Ifoneofbothofthe partytotheMS,
the marriage subject only to the condition that partiesare: otherwisetheMSis
whatever settlement they may have must be void:
within the limits provided by the Family Code. Parents;or
However, the nature, consequences, and effects 1821yearsold thoserequiredtogive
of marriage cannot be subject to stipulation. consent
(Rabuya,Persons,p.398) Sentencedwithcivil Guardianappointed
interdiction bythecourt
Note:Futurespousesmayagreeupontheregimeof
absolute community of property, conjugal Guardianappointed
Disabled
partnershipofgains,absoluteseparationofpropetry bythecourt
oranyotherregime.
Q:Mayamarriagesettlementbemodified?
Q: Are rights over share in the community or
conjugalpropertywaivableduringthemarriage? A:Yes.ForanymodificationintheMStobevalid:
1. The requisites for a valid MS must be
A: present;
GR:No. 2. Theremustbejudicialapproval;
3. SubjecttotheprovisionsofArts.66,67,
XPN:Incaseofjudicialseparationofproperty. 128,135,and136.
40 CIVILLAWTEAM:

marriage settlements present property

Q: What is the effect on the ante nuptial without limit, provided there is sufficient
agreement in case the marriage is not property left for their support and the
celebrated? legitimesarenotimpaired.

A: 2. Duringthemarriage:
GR: Everything stipulated in the settlements
or contracts in consideration of the marriage GR: Every donation or grant of gratuitous
shallberenderedvoid. advantage, direct or indirect, between
spousesareconsideredvoid.
XPN: Those not dependent upon or is not
made in consideration of the marriage XPN: Moderate gifts on the occasion of any
subsists. familyrejoicing.

B.DONATIONSBYREASONOFMARRIAGE Note: The aforementioned rules also apply to
commonlawspouses.
Q:Whenaredonationsconsideredasdonations
byreasonofmarriage? Q: Why are donations between spouses during
marriageconsideredvoid?
A: Those donations which are made before the
celebration of the marriage, in consideration of A:
thesame,andinfavorofoneorbothparties. 1. To protect unsecured creditors from
beingdefrauded;
Q:Whataretherequisitesfordonationspropter 2. To prevent the stronger spouse from
nuptias(DPN)? inposing upon the weaker spouse
transfer of the latters property to the
A: former;
1. Madebeforecelebrationofmarriage; 3. To prevent indirect modification of the
2. Madeinconsiderationofthemarriage; marriagesettlement.
3. Made in favor of one or both of the
futurespouses.

Q: What are the requisites if donation be made
byonespouseinfavoroftheother?

A:
1. There must be marriage settlement
(MS) stipulating a property regime
otherthanACP;
2. Donation in the MS be not more that
1/5ofthepresentproperty;
3. Theremustbeacceptancebytheother
spouse.

C.VOIDDONATIONSBYTHESPOUSES

Q: What is the rule regarding donations made
betweenspouses?

A:
1. Beforethemarriage:

GR: Future spouses cannot donate to each
other more than 1/5 of their present
property(Excessshallbeconsideredvoid)

XPN:IftheyaregovernedbyACP,theneach
spouse can donate to each other in their
41

Q:WhatarethegroundsforfilinganactionforrevocationofaDPNandwhattheirrespectiveprescriptive
periods?

A:
PRESCRIPTIVEPERIOD
GROUNDS(Art.86)
Periodd ReckoningPoint
Timethemarriagewasnot
1. Marriageisnotcelebrated
5yrs solemnizedonthefixeddate.(art.
XPN:Thoseautomaticallyrenderedvoidbylaw
1149)
Groundfornullity:
a.Contractedsubsequentmarriage
Revokedbyoperationoflaw
beforepriormarriagehasbeen
2. Marriageisjudicially
judiciallydeclaredvoid
declaredvoid
Finalityofjudicialdeclarationof
b.anyothergrounds 5yrs nullity(ifactionistorecover
property)
Timethedonorcametoknowthat
3. Marriagetookplacewithoutconsentofparents,whenrequiredby
5yrs therequiredparentalconsentwas
law
notobtained.
4. Marriageisannulledanddoneeactedinbadfaith 5yrs Finalityofdecree
5. Uponlegalseparation(LS),doneebeingtheguilty spouse 5yrs TimedecreeofLShasbecomefinal
Happeningoftheresolutory
6. Donationsubjecttoresolutoryconditionandittookplace 5yrs
condition.
Fromdonorsknowledgeofthe
7. Doneecommittedanactofingratitude 1yr
commissionofanactofingratitude.

Note:Actsofingratitude:
1. Commissionofanoffenseagainsttheperson,honororpropertyofthedonor,hiswifeorhischildren
underhisparentalauthority
2. GR:Imputationtothedonoranycriminaloffenseoranyactinvolvingmoralturpitude
XPN:ifthecrimewascommittedagainstthedoneehimself,hiswifeorhischildrenunderhisauthority
3. Unduerefusaltosupportthedonorwhenheislegallyormorallyboundtogivesuchsupport.

PROPERTYREGIMESS

Q:Whatarethedifferentpropertyregimeswhichmaybeadoptedbyfuturespouses?

A:
1. AbsoluteCommunityofProperty(ACP)
2. ConjugalPartnershipofGains(CPG)
3. AbsoluteSeparationofProperty(ASOP)
4. AnyotherregimewithinlimitsprovidedbytheFamilyCode

42 CIVILLAWTEAM:

Q:DistinguishACP,CPGandASOP.
A:
ACP CPG ASOP
Whenitapplies
1. Whenfuturespousesadoptit
inamarriagesettlement
2. ACPorCPGisdissolved
Whenspouses: 3. Priormarriageisdissolved
1. Adoptitinamarriage duetodeathofonespouse
settlement; andsurvivingspousefailedto
Whenthefuturespousesadoptitin
2. Donotchooseanyeconomic complywiththerequirements
amarriagesettlement.
system;or underArt103(judicial

3. Adoptedadifferentproperty settlementproceedingofthe
regimeandthesameisvoid. estateofdeceasedspouse)
4. Byjudicialorder.Judicial
separationofpropertymay
eitherbevoluntaryorfor
sufficientcause.
Consistof
Eachspouseretainshis/her
propertybeforethemarriageand
Allthepropertiesownedbythe
onlythefruitsandincomeofsuch
spousesatthetimeofmarriage
propertiesbecomepartofthe
becomecommunityproperty
conjugalpropertiesduringthe
marriage
Effectofseparationinfact
TheseparationinfactshallnotaffecttheregimeofACP.But:
1. The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
2. When consent of one spouse to any transaction of the other is
required by law, judicial authorization shall be obtained in a
summaryproceeding.
3. In case of insufficiency of community or conjugal partnership
property, separate property of both spouses shall be solidarily
liable for the support of the family. Spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereoftosatisfythelattersshare.
(Arts.100&127,FC)
Effectofdissolution
Upondissolutionandliquidation Upondissolutionofthe
ofthecommunityproperty,what partnership,theseparateproperty
isdividedequallybetweenthe ofthespousesarereturnedand
spousesortheirheirsisthenet onlythenetprofitsofthe
remainderofthepropertiesof partnershiparedividedequally
theACP. betweenthespousesoftheirheirs.
43

Q:Whendothepropertyregimescommence? 7. Spouses agree to revive their former
propertyregime.
A: Property regime commences at the precise
momentofthecelebrationofthemarriage. TRANSFEROFADMINISTRATIONOFEXCLUSIVE
PROPERTY
Q:Intheabsenceofamarriagesettlement,what
property regime governs the property relations Q: What are the grounds for transfer of
ofspouses? administrationoftheexclusivepropertyofeach
spouse?
A:
GR:Absolutecommunityofproperty.(Art.75, A:Whenonespouse:CFAG
FC) 1. is sentenced to penalty with Civil
interdiction;
XPN: 2. becomes a Fugitive from justice or is
1. For marriages contracted prior to the hidingasanaccusedinacriminalcase;
effectivityoftheFamilyCodeonAugust 3. isjudiciallydeclaredAbsent;
3, 1988, conjugal partnership of gains 4. becomesaGuardianoftheother.
shallgovernthepropertyrelations.This
is so because Article 119 of the New Note: Transfer of administration of the exclusive
Civil Code will apply. The provisions of property of either spouses does not confer
the Family Code shall have no ownership over the same. (Rodriguez v. De la Cruz,
retroactiveeffectbecauseitshallimpair GRNo.3629,Sept.28,1907)
vestedrights.
Spouses contribute to the family expenses
proportionately to their income and the value of
2. Subsequentmarriagecontractedwithin
theirproperties.
one year from the death of the

deceased spouse without liquidation of
On the other hand, their liability to creditors for
the community property or conjugal familyexpensesissolidary.
partnership ofgains, either judicially or
extrajudicially, as required under Arts. D.ABSOLUTECOMMUNITYY
103and130oftheFamilyCode.Insuch
case, a mandatory regime of complete 1.GENERALPROVISIONS
separation of property shall govern the
subsequent marriage. (Rabuya, Civil Q:Whenshalltheabsolutecommunityof
LawReviewer,p.100). propertycommence?

REVIVALOFFORMERPROPERTYREGIME A: At the precise moment of the celebration of
the marriage. i.e. actual time the marriage is
Q: What are the grounds for the revival of a celebratedonacertaindate.
formerpropertyregime?
Note: Any stipulation, express or implied, for the
A:1CARAPS commencement of the community regime at any
1. Civilinterdictionoftheprisonerspouse othertimeshallbevoid.
terminates;
2. Absenteespousereappears Q:Whatlawgovernstheabsolutecommunityof
3. Court authorizes Resumption of property?
administration by the spouse formerly
exercisingsuchpower; A:
4. Spouse who has Abandoned the 1. Familycode
conjugal home returns and resumes 2. Provisionsoncoownership
commonlifewiththeother;
5. Parental authority is judicially restored
to the spouse previously deprived
thereof;
6. Reconciliation and resumption of
common life of spouse who had been
separatedinfactforatleast1year;

44 CIVILLAWTEAM:

2.WHATCONSTITUTESCOMMUNITYPROPERTY encumbranceofaconjugalpropertyrequiresthe
consent of both the husband and the wife
Q:Whatconstitutesthecommunityproperty? (Guiangv.CA,353Phil.578).Theabsenceofthe
consent of one renders the entire sale or
A: encumbrancenullandvoid,includingtheportion
Includes: of the conjugal property pertaining to the
1. Allthepropertyownedbythespouses: husbandwhocontractedthesale.Neitherwould
a. at the time of the celebration of theconjugalpartnershipbeliablefortheloanon
themarriage;or thegroundthatitredoundedtothebenefitofthe
b. acquiredthereafter; family.Thesweepingconclusionthattheloanwas
2. Property acquired during the marriage obtained by the husband in order to finance the
bygratuitoustitle,ifexpresslymadeto construction of housing units, without however
formpartofthecommunitypropertyby adducing adequate proof, does not persuade.
thedonor,testatororgrantor; (Homeowners Savings &Loan Bank v. Dailo,G.R.
3. Jewelries,etc.; No.153802,Mar.11,2005)
4. Winningsingambling.
Q: In a sale of a piece of land that she and her
Excludes: husband,David,owned,Lorenza,whowitnessed
1. Property acquired during the marriage the sale, signed on the page reserved for
bygratuitoustitleanditsfruits; witnesses to the deed. When the buyer sought
toregisterthesale,itwasdeniedbytheRegister
XPN:Ifexpresslyprovidedbythedonor, of Deeds for lack of the wife's consent to the
testatororgrantorthattheyshallform sale.Decide.
partofthecommunityproperty
A: The register of deeds is incorrect. A wife, by
2. Property for personal and exclusive affixing her signature to a deed of sale on the
useofeitherspouse; space providedfor witnesses, is deemed tohave
givenherimpliedconsenttothecontractofsale.
XPN: Jewelries shall form part of the The consent need not always be explicit or set
ACPbecauseoftheirmonitaryvalue. forth in any particular document so long as it is
3. Property acquired before the marriage shown by acts of the wife that such consent or
by one with legitimate descendants by approval was in fact given.(Pelayo v. Perez, G.R.
former marriage and its fruits and No.141323,Jun.8,2005)
income;
Note:Inthiscase,itwillbenotedthatthesalewas
4. Those excluded by the marriage entered into prior to the effectivity of the FC.
settlement. Because of such, Art. 173, in relation to Art. 166 of
the Civil Code, would have applied if there was a
Q: In absence of evidence, does property finding of lack of the wife's consent. Under said
acquired during the marriage belong to the provisions, the sale would have been merely
communityproperty? voidable,andnotvoid.

A: Property acquired during the marriage is Q:Andressoldaparceloflandbelongingtothe
presumed to belong to the community, unless conjugal partnership to Pepito. Days before the
proven otherwise by strong and convincing sale, Kumander, his wife, assented to such by
evidence.(Art.93) signing a document entitled "Marital Consent"
contained in a jurat, which was then sworn to
Q: Mister, without Misis consent, executed a beforethesamenotarypublicwhonotarizedthe
special power of attorney in favor of Drepa in deedofsale,andthenappendedtothedeedof
order to secure a loan to be secured by a saleitself.Istheconveyancevalid?
conjugal property, which loan was later
obtained. When the loan was not paid, the A:Itdepends.Theuseofthejurat,insteadofan
mortgage was foreclosed and sold on auction. acknowledgment, does not elevate the marital
Misisseeksthedeclarationofthemortgageand consent into the level of a public document but
saleasvoidinvokingArt.124oftheFC.Willthe instead consigns it to the status of a private
wifesactionprosper? writing. Hence, the presumption of regularity
does not apply and the wife still needs to prove
A: Yes. The settled rule is that the sale or its genuiness and authenticity as required under
the rules of evidence. (Pan Pacific Industrial Sales
45

Co.,Inc.v.CA,G.R.No.125283,Feb.10,2006 course or other activity for self
improvement;
Note: The fact that the document contains a jurat, 9. Payment, in case of absence or
and not an acknowledgment, should not affect its insufficiencyoftheexclusivepropertyof
genuineness or that of the related document of thedebtorspouse,of:
conveyanceitself,theDeedofAbsoluteSale.Inthis a. Antenuptialdebtsofeitherspouse
instance, a jurat suffices as the document only which did not redound to the
embodiesthemanifestationofthespouse'sconsent, benefitofthefamily;
a mere appendage to the main document. (Pan
b. the support of illegitimatechildren
Pacific Industrial Sales Co., Inc. v. CA, G.R. No.
ofeitherspouse;
125283,Feb.10,2006)
c. liabilitiesincurredbyeitherspouse

by reason of a crime or quasi
Q: Will losses in gambling be charged upon the
delict;
communityproperty?

Note:Thepaymentofwhichshallbe
A:No(Art.95).However,anywinningstherefrom
considered as advances to be
shallformpartofthecommunityproperty. deducted from the share of the
debtorspouse upon liquidation of
3.CHARGESUPONANDOBLIGATIONSOFTHE thecommunity
COMMUNITYPROPERTY
10. Expenses of litigation between the
Q:WhatarethechargesupontheACP? spouses.

A: XPN: Suit is found to be groundless, it
1. The support of the spouses, their cannotbechargedagainsttheACP.
common children, and legitimate
childrenofeitherspouse; 4.OWNERSHIP,ADMINISTRATION,ENJOYMENT
2. All debts and obligations contracted ANDDISPOSITIONOFTHECOMMUNITY
duringthemarriageby: PROPERTY
a. the designated administrator
spouse for the benefit of the Q: To whom does the right to administer the
community communitypropertybelongto?
b. bybothspouses
c. byonespousewiththeconsentof A:
theother; GR:Itbelongstobothspousesjointly.
3. Debts and obligations contracted by
either spouse without the consent of XPN: If one spouse is incapacitated or
the other to the extent that the family otherwise unable to participate in the
mayhavebeenbenefited; administration of the common properties
4. All taxes, liens, charges and expenses, capacitated or able spouse may assume sole
including major or minor repairs, upon powersofadministration
thecommunityproperty;
5. All taxes and expenses for mere Butsuchpowersdonotinclude:DAE
preservationmade during marriage 1. Disposition;
upon the separate property of either 2. Alienation;or
spouseusedbythefamily; 3. Encumbrance
6. Expenses to enable either spouse to oftheconjugalorcommunityproperty.
commence or complete a professional
or vocational course, or other activity Q:Incaseofdisagreement,whosedecisionshall
forselfimprovement; prevail?
7. Ante nuptial debts of either spouse
insofar as they have redounded to the A:Thatofthehusbandbutsubjecttorecourseto
benefitofthefamily; thecourtbythewifeforproperremedy.
8. The value of what is donated or
promised by both spouses in favor of Note:Prescriptiveperiodforrecourseis5yearsfrom
their common legitimate children for thedateofthecontractimplementingsuchdecision.
theexclusivepurposeofcommencingor
completing a professional or vocational
46 CIVILLAWTEAM:

Q: In cases of alienation, disposition or

encumbrance of the community property, and Q: What is the rule on donating a community
one spouse is incapacitated or unable to propertybyaspouse?
participate in the administration of the
community property, is the approval of one A:
spouseenoughforsaidalienation,dispositionor GR: A spouse cannot donate any community
encumbrancetobevalid? propertywithouttheconsentoftheother.

A: No. Both spouses must approve any XPN: Moderate donations for charity or on
dispositionsorencumbrances,andconsentofthe occasion of family rejoicing or distress. (Art.
otherspouseregardingthedispositionmustbein 98)
writing,otherwise,themattershouldbebrought
to court and the court will give the authority, if Q: If a spouse abandons without just cause his
proper. familyorfailstocomplywithobligationstothe
family, what are the remedies of the spouse
Suchconsentorcourtapprovalmustbeobtained present?
beforethealienation,etc.,otherwise,suchwillbe
voidandobtainingsuchconsentorcourtapproval A:Petitionthecourtfor:
afterwards will not validate the act. A void act 1. Receivership;
cannotberatified. 2. Judicialseparationofproperty;
3. Authority to be the sole administrator
Q:Whatifonespouseactswithouttheconsent oftheabsolutecommunity.
oftheotherorwithoutcourtapproval?
Q:Whenisthereabandonment?
A: If one spouse acts without the consent of the
otherorwithoutcourtapproval,suchdisposition A: When a spouse leaves the conjugal dwelling
orencumbranceisvoid. withoutintentionofreturning.

However, the transaction shall be construed as a Note:3 months disappearance without any
continuing offer on the part of the consenting informationastothespouseswhereaboutsshallbe
rd prima facie presumption of abandonment of the
spouse and the 3 person which may be
perfected asa binding contract upon acceptance otherspouse.(Art.101,FC)
bythespouseorcourtapproval.
Q:Mayspousessellpropertytoeachother?
Q: When may one spouse resort to obtaining
court approval for any alienation, encumbrance A:
ordispositionofcommunityproperty? GR:No,suchsaleisconsideredvoid

A:Inabsenceofthewrittenconsentoftheother XPNs:
spouse. 1. When a separation of property was
Q: What if the community property is agreed upon in the marriage
insufficienttocovertheforegoingliabilities? settlement;
2. When there has been a judicial
A: separation of property under Articles
GR: The spouses shall be solidarily liable for 135and136ofFC(Art.1490,NCC).
the unpaid balance with their separate
properties. Q:Duringhislifetimeandwhilehewasmarried
to Epifania, Joseph acquired a piece of land
XPN: Those falling under paragraph 9 of Art. whichhethensubsequentlyconveyed,bywayof
94.(Antenuptialdebts,supportofillegitimate a purported sale, to his other woman, Maria. Is
children, liabilities incurred by spouse by the sale of the piece of land by Joseph to his
reason of a crime or quasidelict) in which mistressproper?
casetheexclusivepropertyofthespousewho
incurredsuchdebtswillbeliable.However,if A: No. The proscription against the sale of
theexclusivepropertyisinsufficient,payment property between spouses under Art. 1490
willbeconsideredasadvancestobededucted applies even to common law relationships. In an
from share of debtorspouse. (Art. 94 (9) of earlier ruling, the SC nullified a sale made by a
theFamilyCode) husband in favor of a concubine, after he had
abandonedhisfamilyandlefttheconjugalhome
47

where his wife and children lived, and from If no judicial proceeding is instituted, the
whence they derived their support, for being survivingspouseshall,judiciallyorextrajudicially,
contrarytomoralsandpublicpolicy.Thesalewas liquidate the community property within 6
regarded by the court as subversive of the months from the death of the deceased spouse.
stability of the family, a basic social institution (Art.103)
whichpublicpolicycherishesandprotects(Ching
v.CA,GRNo.165879,Nov.10,2006). Q: What if the surviving spouse failed to
liquidate the community property within 1 year
5.DISSOLUTIONOFCOMMUNITYREGIME fromthedeathofthedeceasedspousecontrary
toArt.103,FC?
Q:HowistheACPterminated?
A: Failure to do so would render any disposition
A: orencumbranceinvolvingcommunitypropertyof
1. Deathofeitherspouse; theterminatedmarriagevoid.
2. Legalseparation;
3. Annulment; E.CONJUGALPARTNERSHIPOFGAINS.
4. Judicial separation of property during
marriage. 1.GENERALPROVISIONS

6.LIQUIDATIONOFTHEABSOLUTECOMMUNITY Q:WhatistheregimeofCPG?
ASSETSANDLIABILITIES
A: It is the property relation formed by the
Q: What is the applicable procedure in case of husband and the wife by placing in a common
dissolutionofACP? fund:
1. the proceeds, product, fruits and
A: incomeoftheirseparateproperties;
1. Inventoryofallproperties; 2. thoseacquiredbythemthrough:
a. effort
2. Paymentofcommunitydebts; b. chance

Note: First, pay out of the community Q: When shall the conjugal partnership
assets. If not enough, husband and the commence?
wife are solidarily liable for the unpaid
balancewiththeirseparateproperties A: At the precise moment when the marriage
ceremonyiscelebrated.
3. Delivery to each spouse of his/her
remainingexclusiveproperties; Q:Whatlawgovernstheconjugalpartnership?

4. Equaldivisionofnetcommunityassets A: The rules on the contract of partnership in all
Unlessthereis: that is not in conflict with what is expressly
a. An agreement for a different determined in the Family Code and by the
proportion;or spousesintheirmarriagesettlements.
b. Avoluntarywaiverofsuchshare;
2.EXCLUSIVEPROPERTYOFEACHSPOUSE
5. Deliveryofthepresumptivelegitimesof
thechildren; Q: What are the exclusive properties of the
spouses?
6. Adjudication of conjugal dwelling and
custodyofcommonchildren. A:
1. Those brought into the marriage as
Q: What is the applicable procedure in the his/herown;
dissolution of the ACP in case the marriage is
terminatedbydeath? Note: A property purchased before the
marriage and fully paid during the
A:Communitypropertyshallbeliquidatedinthe marriage remains to be a separate
property of either spouse. (Lorenzo v.
sameproceedingforthesettlementoftheestate
Nicolas,L4085,July30,1952)
ofthedeceased.

48 CIVILLAWTEAM:

2. Those acquired during the marriage by 1. Iffullownershipwasvestedbeforethe

gratuitoustitle; marriage it shall belong to the buyer
3. Those acquired by right of redemption, spouse.
barter or exchange with exclusive 2. If full ownership was vested during the
property; marriage it shall belong to the
4. Thatpurchasedwithexclusivemoneyof conjugalpartnership.
eitherspouse.
Q:Yamaneassertsthattheparcelofland,which
Note: The controlling factor is the source was purchased at auction, belonged to the
of the money used, or the money conjugalpartnershipofhimandhislatewife.In
promisedtobepaid.(Riverav.Bartolome, the title, his name appeared to be merely
C.A.,40O.G.2090) descriptive of the civil status of the registered
owner, his late wife. The purchase took place
Q: What are the rules in cases of improvement prior to the advent of the Family Code. Is the
ofexclusiveproperty? propertyconjugalorparaphernalpropertyofhis
latewife?
A:
1. Reverse accession If the cost of the A:Conjugal.InthiscasetheprovisionsoftheCivil
improvement and the additional value Code would apply since the purchase took place
is more than the value of the principal before the FC took effect. Under Art. 160 of the
property at the time of the NCC,allpropertyofthemarriageispresumedto
improvement, the property becomes belong to the conjugal partnership, unless it be
conjugal. provedthatitpertainsexclusivelytothehusband
orthewife.Inthiscase,therewasnoproofthat
2. Accession If the cost of the the property had been acquired exclusively by
improvement and the additional value Yamane's late wife. The mere registration of a
isequaltoorlessthanthevalueofthe property in the name of one spouse does not
principal property, the entire property destroy its conjugal nature in the absence of
becomes the exclusive property of the strong,clearandconvincingevidencethatitwas
spouses acquiredusingtheexclusivefundsofsaidspouse.
(SpousesGov.Yamane,G.R.No.160762,May3,
3.CONJUGALPARTNERSHIPPROPERT 2006)

Q:WhatconstitutesCPG? Q: Dolores seeks to recover a parcel of land,
allegingthatsheandherhusbandacquiredsuch
A: during their marriage, that it formed part of
1. Those acquired during the marriage their conjugal properties and that he sold it
withconjugalfunds; without her consent. She presents as evidence
2. Those obtained from labor, industry, their marriage contract and the initial tax
work or profession of either or both declarationovertheproperty.Decide.
spouse;
3. Fruits of conjugal property due or A: Recovery is not warranted. The rule is all
received during the marriage and net property of the marriage is presumed to be
fruitsofseparateproperty; conjugalinnature.However,forthispresumption
4. Share of either spouse in hidden toapply,thepartywhoinvokesitmustfirstprove
treasure; that it was acquired during the marriage. Here,
5. Those acquired through occupation Dolores's evidence consisted of her marriage
suchashuntingorfishing; contract and the initial tax declaration over the
6. Livestockinexcessofwhatwasbrought property. She did not identify when she and her
tothemarriage; husband first occupied and possessed the land.
7. Those acquired by chance such as Neitherdidshepresentanywitnesstoprovethat
winningsingamblingsandbettings. they first occupied the property during their
marriageandthattheyboth,workedontheland.
Q:Whataretherulesifapropertyisboughton (PintianoAnno v. Anno,G.R. No. 163743, Jan. 27,
installmentspaidpartlyfromtheexclusivefunds 2006)
ofthespousesandpartlyfromconjugalfunds?
Q: Josefina, purchased a parcel of land using,
A: according to her, her own funds. Although the
49

titlestothelotswereissuedinthenamesofthe 9. Expensesoflitigation.
spouses, the dorsal portions thereof contained
an entry showing that Eduardo had waived any 5.ADMINISTRATIONOFTHECPG
right over the properties as they were bought
outofthesavingsofJosefina.Whenacomplaint Q: To whom does the right to administer the
forsumofmoneyagainstherhusband,Eduardo, conjugalpartnershipbelong?
prospered, the lot was levied upon. Does the
parcel of land belong to the conjugal A:
partnership? GR:Itbelongstobothspousesjointly.

A: Yes. Since Josefina failed to prove that she XPN:If one spouse is incapacitated or
acquired the properties with her personal funds otherwise unable to participate in the
before her cohabitation with Eduardo, it should administration of the common
bepresumedandconsideredasbelongingtothe propertiescapacitatedorablespouse
conjugal partnership. Art. 105 of the FC, which may assume sole powers of
provides that the Code shall apply to conjugal administration
partnerships established before it took effect,
without prejudice to vested rights already Butsuchpowersdonotinclude:DAE
acquiredundertheNewCivilCodeorotherlaws, a.Disposition;
applies in this case. There was no evidence b.Alienation;or
adduced by Josefina showing that she had c. Encumbrance of the conjugal or
acquired a vested right in this regard. Thus, as it communityproperty.
appearsthatthepropertieswereacquiredduring
the subsistence of the marriage of Josefina and Q:Incaseofdisagreement,whosedecisionshall
Eduardo, under normal circumstances, the same prevail?
should be presumed to be conjugal property.
(Francisco v. Master Iron Works Construction A:Thatofthehusbandbutsubjecttorecourseto
Corp.,G.R.No.151967.Feb.16,2005) thecourtbythewifeforproperremedy.

4.CHARGESUPONANDOBLIGATIONSOFTHE Note:Prescriptiveperiodforrecourseis5yearsfrom
CPG thedateofthecontractimplementingsuchdecision.

Q:WhatarethechargesupontheCPG? 6.DISSOLUTIONOFCPGREGIME

A:D2T2E2VAS Q:Howistheconjugalpartnershipterminated?
1. Support of the spouses, their common A:
children and the legitimate children of 1. Deathofeitherspouse;
eitherspouse; 2. Legalseparation;
2. Debts and obligations contracted by 3. Annulment;
onewithouttheconsentoftheotherto 4. Judicial separation of property during
theextentthatthefamilybenefited; marriage.
3. Debtsandobligationscontractedduring
the marriage by an administrator 7.LIQUIDATIONOFTHECONJUGAL
spouse, both spouses or one with the PARTNERSHIPASSETSANDLIABILITIES
consentoftheother;
Q: What are the steps in the liquidation of the
4. Taxes, liens, charges, expenses upon
CPG?
conjugalproperty;

5. Taxes and expenses for mere
A:R2D4IPA
preservationofseparateproperty;
1. Inventoryofalltheproperties;
6. Expensesforprofessional,vocationalor
2. Restitutionofadvancesmadetoeachof
selfimprovement courses of either
thespouses;
spouse;
3. Reimbursement for use of exclusive
7. Antenuptial debts to the extent the
funds;
familyhasbeenbenefited;
4. Debts and obligations of the CP are
8. Value of what is donated or promised
paid;
to common legitimate children for
5. Deliveryofexclusiveproperties;
professional, vocation or self
improvementcourses;
50 CIVILLAWTEAM:

6. Payment of losses and deterioration of 2. Judicialdeclarationofabsence;

movables belonging to each of the 3. Lossofparentalauthorityasdecreedby
spouses; thecourt;
7. Divisionofthenetconjugalpartnership; 4. Abandonmentorfailuretocomplywith
8. Delivery of the childrens presumptive familyobligation;
legitimes; 5. Administrator spouse has abused
9. Adjudication of conjugal dwelling and authority;
custodyofchildren. 6. Separation in fact for one year and
reconciliationishighlyimprobable.
Q: Upon termination of the marriage by death,
how shall the community property be Q:Whataretheeffectsofjudicialseparationof
liquidated? propertybetweenspouses?

A:Thecommunitypropertyshallbeliquidatedin A:
the same proceeding for the settlement of the 1. The absolute community or conjugal
estateofthedeceasedspouse. partnershipisdissolved;
2. The liability of the spouses to creditors
Q: In the absence of a judicial settlement shall be solidary with their separate
proceeding, how shall the community property properties;
beliquidated? 3. Mutualobligationtosupporteachother
continues;
A: The surviving spouse shall liquidate the
community property either, judicially or XPN:Whenthereislegalseparation
extrajudicially within one year from the death of
thedeceasedspouse. 4. Rights previously acquired by creditors
arenotprejudiced.
Q: What are the effects if the community
propertyisnotliquidated? G.REGIMEOFSEPARATIONOFPROPERTY

A: Q: What governs the regime of separation of
1. Any disposition or encumbrance made property?
by the surviving spouse involving
community property of the terminated A:
marriageshallbevoid. 1. Marriagesettlement
2. Should the surviving spouse contract a 2. FamilyCodeinsuppletorycharacter.
subsequent marriage a mandatory
regime of complete separation of Q:Whatarethekindsofseparationofproperty?
property shall govern the property
relationsofthesubsequentmarriage A:
1. Astoextent:
a.Total
b.PartialInthiscase,thepropertynot
F.SEPARATIONOFPROPERTYOFTHESPOUSES agreeduponasseparateshallpertainto
ANDADMINISTRATIONOFCOMMONPROPERTY theabsolutecommunity.
BYONESPOUSEDURINGTHEMARRIAGE
2. Astokindsofproperty:
Q:Inwhatwayscantherebejudicialseparation a.Presentproperty
ofproperty? b.Futureproperty
c.Bothpresentandfutureproperty
A: Judicial separation of property may either be
voluntaryorforsufficientcause. Q:Whataretherightsofthespousesunderthe
regimeofseparationofproperty?
Q: What are the sufficient causes for judicial
separationofproperty? A:
1. Each spouse shall administer, dispose
A:CJLASA of, own, possess, and enjoy his or her
1. Civil interdiction of the spouse of ownseparateproperty,withoutneedof
petitioner; theconsentoftheother.
51

2. Eachspouseshallownallearningsfrom Propertyacquiredbyboththroughtheirworkor
his or her profession, business and industry
industryandallfruits,natural,industrial Governedby Ownedincommonin
or civil, due or received during the rulesofco proportiontotheirrespective
marriage from his or her separate ownership contributions
property.
Presumption
Q:Whataretheliabilitiesforfamilyexpensesof Property
the spouses under the regime of separation of acquiredwhile
property? livingtogether
presumed
A: obtainedbytheir
GR: Both spouses shall bear the family jointefforts,
expensesinproportiontotheirincome. workorindustry
andownedby Nopresumptionofjoint
XPN: In case of insufficiency or default theminequal acquisition.
thereof,tothecurrentmarketvalueoftheir shares.
separateproperties. Actualjointcontributionof
Spousesshallbesolidarilyliabletocreditors Ifonepartydid money,propertyorindustry
forfamilyexpenses. notparticipatein shallbeownedbythemin
acquisition: commonproportion.
H.PROPERTYREGIMEOFUNIONSWITHOUT presumedto
MARRIAGE havecontributed However,theircontributions
throughcareand arepresumedequal,inthe
Q: What is the property regime of unions maintenanceof absenceifprooftothecontrary
withoutmarriage? familyand
household
A: (Buenaventura
ART.147 ART.148 v.
Applicability Buenaventura,
1. No G.R.No.127358,
legal Mar.31,2005)
impedi Forfeiture
ment Presenceoflegalimpediment: Whenonlyoneis
to 1. Adulterous inGF,shareof
marry; relationships partyinBFinthe
2. Void 2. Bigamous/polygamous coownershipbe Ifoneofthepartiesisvalidly
marriag marriages forfeitedinfavor marriedtoanother,his/her
eon 3. Incestuousvoid of: shareinthecoownershipshall
the marriagesunderArt37 1. their accruetotheACPorCPG
ground 4. Voidmarriagesby common existinginthemarriage.
of reasonofpublicpolicy children
psychol (Art.38) 2. innocent IfthepartywhoactedinBFis
ogical party notvalidlymarriedtoanother
incapac indefaultof/ orifbothpartiesareinBF,such
ity. waiverbyany/all sharebeforfeitedinmanner
Salaries&wages common providedinlastparofArt.147
Separatelyownedbythe children,orby
Ownedinequal parties.Ifanyismarried, their
shares his/hersalarypertainstothe descendants
CPGofthelegitimatemarriage. Proofofactualcontribution
Propertyexclusivelyacquired Notnecessary Necessary
Belongstoparty
uponproofof Note: For as long as it is proven that property was
acquisition Belongstosuchparty acquired during marriage, the presumption of
conjugalitywillattachregardlessinwhosenamethe
throughexclusive
propertyisregistered.
funds

52 CIVILLAWTEAM:

The presumption is not rebutted by the mere fact undernormalcircumstances,thesameshouldbe

thatthecertificateoftitleofthepropertyorthetax presumedtobeconjugalpropertyofEduardoand
declaration is in the name of one of the spouses. Josefina. (Francisco v. Master Iron Works
(Villanuevav.CA,G.R.No.143286,Apr.14,2004) Construction Corp.,G.R. No. 151967. Feb. 16,
2005)
UnderArt.148,onlythepropertiesacquiredbyboth
parties through their actual joint contribution of Q: Francisco and Ermindas marriage was
moneypropertyorindustryshallbeownedbythem
nullified by the trial court due to psychological
in proportion to their respective contributions.
incapacity. He did not contest the decree of
(Agapayv.Palang,G.R.No.116726,July28,1997)
nullity but he assailed the division in the
properties which was contained in the decree.

Q: What property relation governs in case
He asserted that the properties were acquired
marriage is declared null and void on the
through his efforts and that she had no
groundofpsychologicalincapacity?
contributionwhatsoeverintheiracquisitionand
maintenance; hence, she should not be entitled

A: The property relation between the parties is
toajointshareintheirproperties.IsFranciscos
governed by Art. 147 of the FC. Under this
contentioncorrect?
property regime, property acquired by both

spousesthroughtheirworkandindustryshall be
A:No.Thepropertyrelationbetweentheparties
governed by the rules on equal coownership.
is governed by Art. 147 of the FC. Under this
Any property acquired during the union is prima
article,thereisapresumptionthattheproperties
facie presumed to have been obtained through
which they acquired during their cohabitation
theirjointefforts.Apartywhodidnotparticipate
wereacquiredthroughtheirjointefforts,workor
in the acquisition of the property shall still be
industry.Itfurtherprovidesthatapartywhodid
consideredashavingcontributedtheretojointlyif
notparticipateintheacquisitionthereofshallbe
said party's "efforts consisted in the care and
deemed to have contributed jointly in the
maintenanceofthefamilyhousehold."Unlikethe
acquisition thereof if his or her efforts consisted
conjugal partnership of gains, the fruits of the
inthecareandmaintenanceofthefamilyandof
couple'sseparatepropertyarenotincludedinthe
thehousehold.
coownership.

Note:Inthiscase,Franciscohimselftestifiedthathis
Q: Josefinas petition for nullity of her marriage
wifewasnotaplainhousewifebutonewhohelped
to Eduardo was granted on the ground of him in managing the family's business. Hence,
existence of a prior marriage. She now asserts Ermindaisrightfullyentitledtoajointshareintheir
thatsincehermarriagetoEduardoisvoid,their properties. (Gonzales v. Gonzales,G.R. No. 159521,
propertyrelationistobegovernedbytherules Dec.16,2005)
on coownership under Art. 148 of the FC and
notbyArt.144oftheCivilCode.Inthisregime, Q: Romeo and Juliet lived together as husband
Eduardo has no share at all in the properties andwifewithoutthebenefitofmarriage.During
since no proof was adduced by him as regards theircohabitation,theyacquiredahouse.When
hisparticipationintheirpurchase.However,she they broke up, they executed an agreement
did not prove that she acquired the properties where he agreed to leave the house provided
using her personal funds and prior to her Julietwillpayhisentireshareintheirproperties.
cohabitation with Eduardo. Is her contention She failed to do so but she also ignored his
correct? demand for her to vacate. Romeo sued her for
ejectment which the court granted. Was the
A:No.Art.148oftheFCdoesnotapplysince,in courtcorrectingrantingthesame?
saidarticle,acoownershipmayensueincaseof
cohabitationwhere,forinstance,onepartyhasa A: No. Under Art. 147 of the FC, the property is
preexisting valid marriage, provided that the coownedbytheparties.Undersaidprovision,in
parties prove their actual joint contribution of the absence of proof to the contrary, any
money, property or industry and only to the property acquired by commonlaw spouses
extent of their proportionate interest thereon. during their cohabitation is presumed to have
Petitioner failed to adduce preponderance of been obtained thru their joint efforts and is
evidencethatshecontributedmoney,propertyor owned by them in equal shares. Their property
industryintheacquisitionofthesubjectproperty relationshipinsuchacaseisessentiallygoverned
and, hence, is not a coowner of the property. by the rules on coownership. Thus, Romeo
Since the subject property was acquired during cannotseektheejectmentofJuliettherefrom.As
the subsistence of the first marriage of Eduardo, a coowner, she is as much entitled to enjoy its
53

possession and ownership as him. (Abing v. cohabitationfromtheirseparateproperty,acar
CA,G.R.No.146294,Jul.31,2006) worth P100.000.00 being used by the common
law spouses, was donated just months ago to
Q: In 1973, Mauricio, a Filipino pensioner of Rizzabyherparents.
the US Government, contracted a bigamous
marriage with Erlinda, despite the fact that Luis and Rizza now decide to terminate their
his first wife, Carol, was still living. In 1975, cohabitation,andtheyaskyoutogivethemyour
Mauricio and Erlinda jointly bought a parcel legal advice on how, under the law should the
ofricelandwiththetitlebeingplacedjointly bank deposit of P200,000.00 the house and lot
in their names. Shortly thereafter, they valued at P500.000.00 and the car worth
purchasedanotherproperty(ahouseandlot) P100.000.00beallocatedtothem?
which was placed in her name alone as the
buyer. In 1981, Mauricio died and Carol A: Art. 147 of the Family Code provides in part
promptly filed an action against Erlinda to that when a man and a woman who are
recoverboththericelandandthehouseand capacitated to marry each other, live exclusively
lot, claiming them to be conjugal property of witheachotherashusbandandwifewithoutthe
the first marriage. Erlinda contends that she benefit of marriage or under a void marriage,
and the late Mauricio were coowners of the theirwagesandsalariesshallbeownedbythem
rice land, and with respect to the house and inequalsharesandthepropertyacquiredbyboth
lot she claims she is the exclusive owner. of them through their work or industry shall be
Assuming she fails to prove that she had governed by the rules of coownership. In the
actually used her own money in either absence of proof to the contrary, properties
purchase,howdoyoudecidethecase? acquired while they lived together shall be
presumed to have been obtained by their joint
A: Carol's action to recover both the rice efforts, worker industry, and shall be owned by
landandthehouseandlotiswellfounded. them in equal shares. A party who did not
Both are conjugal property, in view of the participateintheacquisitionbytheotherpartyof
failure of Erlinda, the wife in a bigamous any property shall be deemed to have
marriage,toprovethatherownmoneywas contributedjointlyintheacquisitionthereofifthe
used in the purchases made. The Supreme former's efforts consisted in the care and
Court in a case applied Art. 148, Family maintenanceofthefamilyandofthehousehold.
Code, despite the fact that the husband's Thus:
death took place prior to the effectivity of
saidlaw.However,evenunderArt.144,Civil 1. the wages and salaries of Luis in the
Code,thesameconclusionwouldhavebeen amountofP200,000.00shallbedivided
reached in view of the bigamous nature of equallybetweenLuisandRizza.
thesecondmarriage.(1998BarQuestion)
2. the house and lot valued at
Q: Luis and Rizza, both 26 years of age and P500.000.00 having been acquired by
single, live exclusively with each other as both of them through work or industry
husband and wife without the benefit of shall be divided between them in
marriage,Luisisgainfullyemployed,Rizzaisnot proportion to their respective
employed, stays at home, and takes charge of contribution, in consonance with the
thehouseholdchores. rulesoncoownership.Hence,Luisgets
2\5whileRizzagets3\5ofP500.000.00.
After living together for a little over twenty
years, Luis was able to save from his salary 3. the car worth P100,000.00 shall be
earnings during that period the amount of exclusively owned by Rizza, the same
P200,000.00 presently deposited in a bank. A having been donated to her by her
house and lot worth P500,000.00 was recently parents.(1997BarQuestion)
purchased for the same amount by the couple.
Of the P500.000.00 used by the commonlaw Q:In1989,Rico,thenawidowerforty(40)years
spouses to purchase the property, P200.000.00 ofage,cohabitedwithCora,awidowthirty(30)
hadcomefromthesaleofpalayharvestedfrom years of age. While living together, they
the hacienda owned by Luis and P300,000.00 acquired from their combined earnings a parcel
fromtherentalsofabuildingbelongingtoRizza. of riceland. After Rico and Cora separated, Rico
Infine,thesumofP500.000.00hadbeenpartof livedtogetherwithMabel,amaidensixteen(16)
the fruits received during the period of years of age. While living together, Rico was a
54 CIVILLAWTEAM:

salaried employee and Mabel kept house for VI.THEFAMILY

Ricoanddidfulltimehouseholdchoresforhim.
During their cohabitation, a parcel of coconut A.THEFAMILYASANINSTITUTION
landwasacquiredbyRicofromhissavings.
Q:Whatisincludedinfamilyrelations?
After living together for one (1) year, Rico and
Mabel separated. Rico then met and married A:
Letty, a single woman twentysix (26) years of 1. Betweenhusbandandwife
age.DuringthemarriageofRicoandLetty,Letty 2. Betweenparentsandchildren
bought a mango orchard out of her own 3. Among other ascendants and
personalearnings. descendants
4. Amongbrothersandsisters,whetherof
1. Who would own the riceland, and thefullothalfblood.
what property relations governs the
ownership?Explain. Q:Whatgovernsfamilyrelations?
2. Whowouldownthecoconutland,and
what property relations governs the A:Thelaw.
ownership?Explain.
3. Who would own the mango orchard, Q:Whataretherequisitesbeforeasuitbetween
and what property elations governs membersofthesamefamilymayprosper?
theownership?Explain.
A:
A: 1. Earnest efforts toward a compromise
1. RicoandCoraarethecoownersofthe havebeenmade;
riceland. The relations is that of co 2. Sucheffortsfailed;
ownership (Art. 147, Family Code, first 3. The fact that earnest efforts toward a
paragraph). compromise have been made but the
samehavefailedappearsintheverified
Addendum: However, after Rico's complaintorpetition..
marriage to Letty, the half interest of
Rico in the riceland will then become Q: In a complaint filed by Manolo against his
absolute community property of Rico brother, Rodolfo, it was alleged that the case
andLetty. "xxx passed through the Barangay and no
settlement was forged between the plaintiffs
2. Rico is the exclusive owner of the and defendantas a result of which Certification
coconut land. The relation is a toFileActionwasissuedxxx".Rodolfomovedto
sole/single proprietorship (Art. 148. dismiss for failure to comply with a condition
Family Code, first paragraph is precedentthatearnesteffortsforanamicable
applicable, and not Art. 147 Family settlementamongthepartieshadbeenexerted
Code). butthatnonewasreached.Decide.

Addendum: However, after Rico's A: The case will prosper. There was in fact
marriage to Letty, the coconut land of substantialcompliancewithArt.151oftheFamily
Rico will then become absolute Code since the spouses alleged in the complaint
communitypropertyofRicoandLetty.) for ejectment that the case "xxx passed through
the Barangay and no settlement was forged
3. Rico and Letty are the coowners. The between the plaintiffs and defendant as a result
relations is the Absolute Community of ofwhichCertificationtoFileActionwasissuedby
Property (Arts, 75, 90 and 91, Family Barangay 97, Zone 8, District I, Tondo, Manila
Code).(1992BarQuestion) xxx".ItbearsstressingthatunderSec.412(a)of
R.A. 7160, no complaint involving any matter
within the authority of the Lupon shall be
institutedorfileddirectlyincourtforadjudication
unless there has been a confrontation between
thepartiesandnosettlementwasreached.

Moreover, the phrase "members of the same
family"foundinArt.151oftheFamilyCodemust
55

be construed in relation to Art. 150 thereof. home and therefore exempt from execution.
(Martinez, et al. v. Martinez, G.R. No. 162084. Decide.
Jun.28,2005)
A:Itisnotexempt.UnderArt.155oftheFC,the
Note: A sisterinlaw or a brotherinlaw is not family home shall be exempt from execution,
coveredbythesetwoprovisions.Beinganexception forced sale, or attachment except for, among
to the general rule, Art. 151 must be strictly other things, debts incurred prior to the
construed. (Gayon v.Gayon,G.R.No. L28394, Nov. constitution of the family home. In the case at
26,1970) bar, the house and lot was not constituted as a
familyhome,whetherjudiciallyorextrajudicially,
B.THEFAMILYHOME at the time that the debtor incurred her debts.
Under prevailing jurisprudence, it is deemed
Q:Whatismeantbyfamilyhome(FH)andhow constitutedassuchbyoperationoflawonlyupon
isitconstituted? the effectivity of the Family Code on August 3,
1988, thus, the debts were incurred before the
A:Itisthedwellinghousewherethehusbandand constitutionofthefamilyhome.(GomezSalcedo,
wife and their family reside, and the land on etal.v.Sta.Ines,etal.,G.R.No.132537,Oct.14,
whichitissituated;itisconstitutedjointlybythe 2005)
husbandandthewifeorbyanunmarriedheadof
afamily. Q:Whataretheguidelinesintheconstitutionof
thefamilyhome?
Q:CanFHbeconstitutedonahouseconstructed
onalandbelongingtoanother? A:1SAPOC
1. FHisdeemedconstitutedfromthetime
A:No. of Actual occupation as a family
residence;
Reason:Thelandwherethehouseiserectedisan 2. Only1FHmaybeconstituted;
integralpartofthehomeandthehomeshouldbe 3. Must be Owned by the person
permanentincharacter. constitutingit;
4. MustbePermanent;
Note: A house constructed on rented land or by 5. Same rule applies to both valid and
tolerance of the owner is not a permanent
voidable marriages and even to
improvementonthelandandthehomewillthusbe
common law spouses; (Arts. 147 and
temporary.

148)
Q:Whataretheexceptionstotherulethatthe 6. It Continues despite death of one or
FH is exempt from execution, forced sale or both spouses or an unmarried head of
attachment? the family for 10 years or as long as
thereisaminorbeneficiary.
A:LTPM
1. Debts due to Laborers, mechanics, Q:WhoarethebeneficiariesofaFH?
architects, builders, material men and
others who rendered service or A:
furnishedmaterialsfor theconstitution 1. Husband and wife, or unmarried head
ofthebuilding; ofthefamily
2. NonpaymentofTaxes; 2. Parents (may include parentsinlaw),
3. DebtsincurredPriortoconstitution; ascendants, brothers and sisters
4. Debts secured by Mortgages on the (legitimate or illegitimate) living in the
familyhome. FH and dependent on the head of the
familyforsupport
Note: Exemption is limited to the value allowed in
theFC Q:Whataretherequisitesinthesale,alienation,
donation, assignment or encumbrance of the
Q: A complaint for damages was filed against FH?
Hinahonin1986whensheincurredliabilitiesas
early as 1977, which action prospered in 1989. A:Thefollowingmustgivetheirwrittenconsent:
The house and lot that she owned was levied 1. ThepersonwhoconstitutedtheFH;
upon and sold at auction. She assails the levy 2. The spouse of the person who
and sale on the ground that it was her family constitutedtheFH;
56 CIVILLAWTEAM:

3. Majority of the beneficiaries of legal Q:Whataretheclassificationsoffiliation?

age.
A:LILA
Note:Incaseofconflict,courtshalldecide.
GENERALRULE EXCEPTIONS
Q: What are the requisites for the creditor to Legitimate
availoftherighttoexecute? Conceivedorbornwithinavalidmarriage

A: Illegitimate
1. Hemustbeajudgmentcreditor; Conceivedandbornoutsideavalidmarriage
2. His claim must not be among those
exceptedunderArt.155; Legitimated
3. He has reasonable grounds to believe Conceivedorbornoutsideofwedlockofparents
withoutimpedimenttomarryatthetimeof
that the family home is worth more
conceptionandhadsubsequentlymarried.
thanthemaximumamountfixedinArt.

157.
RequisitesofLegitimation:
1. Nolegalimpedimentforparentstomarry
Q:Whatistheprocedureinexercisingtheright attimeofconception;
toexecute? 2. Validmarriagesubsequenttochildsbirth.
Adopted
A: (PleaserefertorelatednotesonAdoptionlaws)
1. Creditormustfileamotioninthecourt
proceeding where he obtained a
A.LEGITIMATECHILDREN
favorable judgment for a writ of
executionagainsttheFH;
2. There will be a hearing on the motion Q: When is a child conceived by artificial
wherethecreditormustprovethatthe inseminationconsideredlegitimate?
actual value of the FH exceeds the
maximum amount fixed by the Family A:Thefollowingconditionsmustbepresent:
Code, either at the time of its 1. The artificial insemination is made on
constitution or as a result of thewife,notonanotherwoman;
improvements introduced after its 2. Theartificialinseminationonthewifeis
constitution; donewiththespermofthehusbandor
3. If the creditor proves that the actual of a donor, or both the husband and a
valueexceedsthemaximumamout,the donor;
courtwillorderitssaleinexecution; 3. The artificial insemination has been
4. Ifthefamilyhomeissoldformorethan authorizedorratifiedbythespouseon
thevalueallowed,theproceedsshallbe a written instrument executed and
appliedasfollows: signed by them before the birth of the
a. TheobligationsenumeratedinArt. child;and
155mustbepaid 4. The written instrument is recorded in
b. The judgment in favor of the thecivilregistrytogetherwiththebirth
creditor will be paid, plus all the certificateofthechild.
costsofexecution
The excess, if any, shall be delivered to the Q:Whatistheruleonstatusofchildwherethe
judgmentdebtor(Art.160,FamilyCode). mothercontractedanothermarriagewithin300
daysafterterminationoftheformer?
VII.PATERNITYANDFILIATION
A:Thechildshallbeconsideredasconceived
Q:Towhatdopaternityandfiliationreferto? duringthe:

A:Paternityandfiliationrefertotherelationship 1. Formermarriageifchildisborn:
existingbetweenparentandchild. a. Before 180 days after the
solemnization of the subsequent
Note: Filiation may be by nature or adoption. marriage,provideditisborn
Filiationmaybelegitimateorillegitimate. b. Within 300 days after termination
offormermarriage

2. Subsequentmarriageifachildborn:
57

a. 180 days after the celebration of
thesubsequentmarriage;
b. even though it be born within 300
days after the termination of the
formermarriage.

Illustrations:

1. 180thdaytakesplacebefore300thday

Subsequent marriage 180th day from 300th day from

Former marriage solemnized solemnization of termination of

terminated subsequent marriage former marriage

Born during this period:

Conceived during Subsequent Marriage

th th
2. 180 daytakesplaceafter300 day

300th day from 180th day from
Subsequent marriage
Former marriage termination of solemnization of
solemnized
former marriage subsequent marriage
terminated

Conceived during Subsequent Marriage
Conceived during Former Marriage

58 CIVILLAWTEAM:

Q:Distinguishactiontoimpugnlegitimacyand
actiontoclaimlegitimacy. 2. Proved that for biological or other
scientific reasons, the child could not
A: have been that of the husband, except
ACTIONTOIMPUGN ACTIONTOCLAIM in the case of children conceived
LEGITIMACY LEGITIMACY throughartificialinsemination;
Remedy
Actiontoclaim 3. In case of children conceived through
Actiontoimpugn legitimacy artificial insemination, the written
legitimacyorillegitimacy (compulsory authorization or ratification of either
recognition) parent was obtained through mistake,
Realpartyininterest fraud, violence, intimidation or undue
GR:Husband influence.
XPN:Heirs,incases
where: GR:Child Q: When does the prescriptive period start to
1. Husbanddied
run?
beforethe XPN:Heirsofthechild,

expirationofthe incaseswhere:
periodforbringing 1. Childdiedinstate
GR: The prescriptive period for filing action
theaction; ofinsanity impugningthelegitimacyofthechildshallbe
2. Husbanddiedafter 2. Childdiedduring counted from the knowledge of birth or its
filingthe minority recordinginthecivilregistry.
complaint,without XPN:Ifthebirthwas:
havingdesisted; Note:Mustbefiled 1. Concealedfromor
3. Childwasborn within5years. 2. Was unknown to the husband or his
afterthedeathof heirs,theperiodsshallbecountedfrom
husband. thediscoveryorknowledgeofthebirth
Prescription ofthechildoroftheactofregistration
GR:Duringthelifetime ofsaidbirth,whicheverisearlier.
ofthechild
1yearhusbandreside
CLAIMINGFILIATION
inthesamemunicipality
XPN:Lifetimeofthe
orcitywherebirthtook
putativefather Q: Is the right to claim filiation transmissible to
place
Incaseswherethe theheirsofthechild?
2yearshusband
actionisforthe
resideNOTinthesame
recognitionof
municipalityorcity A:
illegitimatechildby
3yearshusbandis GR: The right to claim filiation may be used
openandcontinuous
livingabroad onlybythechild.Itisnottransmissibletothe
possessionofthe
status. heirs.

Q:Whatarethegroundstoimpugnlegitimacyof XPN:Incaseswherechilddied:
thechild? 1. Duringminorityor
2. Inastateofinsanity.
A:
1. Physicalimpossibilityforthehusbandto Q:Whenshouldanactiontoclaimlegitimacybe
have sexual intercourse with his wife brought?
withinthefirst120daysofthe300days
which immediately preceded the birth A:Itdependsonwhoisbringingtheaction:
ofthechildbecauseof:
a. Physical incapacity of the husband 1. Bythechildduringhislifetime
tohavesexualintercoursewithhis 2. Byhisheirswithin5yearsshouldthe
wife, childdieduringminorityorinastateof
b. Thefactthatthehusbandandwife insanity
were living separately in such a
Note:Questioninglegitimacymaynotbecollaterally
way that sexual intercourse was
attacked.Itcanbeimpugnedonlyinadirectaction.
notpossible,or

c. Serious illness of the husband
which absolutely prevented
intercourse;
59

B.PROOFOFFILIATION Note: For illegitimate children, if the action is
based on par. 2 of Art. 172 (secondary proof),
Q: What are the different kinds of proof of the action may be brought only during the
filiation? lifetimeoftheallegedparent.

A: Proof of filiation has two kinds: Primary and Q:Rosanna,assurvivingspouse,filedaclaimfor
secondary. death benefits with the SSS upon the death of
her husband, Pablo. She indicated in her claim
1. Primaryproofconsistsoftheff: thatthedecedentisalsosurvivedbytheirminor
a. Record of birth appearing in civil child, Jeylynn, who was born in 1991. The SSS
registrarorfinaljudgment; granted her claim but this was withdrawn after
b. Admission of legitimate filiation in investigation, when a sister of the decedent
public document or private informed the system that Pablo could not have
handwritten instrument signed by sired a child during his lifetime because he was
parentconcerned. infertile. However in Jeylynns birth certificate,
Pablo affixed his signature and he did not
2. Secondaryconsistsoftheff: impugn Jeylynns legitimacy during his lifetime.
a. Open and continuous possession Was the SSS correct in withdrawing the death
oflegitimacy; benefits?
b. AnymeansallowedbytheRulesof
Courtandbyspeciallaws. A: No. Under Art. 164 of the FC, children
conceived or born during the marriage of the
Note:Continuousdoesnotmeanthattheconcession parents are legitimate. This presumption
ofstatusshallcontinueforeverbutonlythatitshall becomes conclusive in the absence of proof that
not be of an intermittent character while it thereisphysicalimpossibilityofaccessunderArt.
continues.Thepossessionofsuchstatusmeansthat 166. Further, upon the expiration of the periods
the fatherhas treated the child as his own,directly for impugning legitimacy under Art. 170, and in
andnotthroughothers,spontaneouslyandwithout the proper cases under Art. 171, of the FC, the
concealmentthoughwithoutpublicity. action to impugn would no longer be legally
feasible and the status conferred by the
Theremustbeashowingofpermanentintentionof presumption becomes fixed and unassailable. In
thesupposedfathertoconsiderthechildashisown thiscase,thereisnoshowingthatPablo,whohas
by continuous and clear manifestation andpaternal the right to impugn the legitimacy of Jeylynn,
affectionandcare.(Mendozav.CA,G.R.No.86302,
challenged her status during his lifetime.
Sept.24,1991)
Furthermore,thereisadequateevidencetoshow

To prove open and continuous possession of the
thatthechildwasinfacthischild,andthisisthe
status of an illegitimate child, there must be birth certificate where he affixed his signature.
evidence of manifestation of the permanent (SSS v. Aguas, et al.,G.R. No. 165546, Feb. 27,
intention of the supposed father to consider the 2006)
child as his, by continuous and clear manifestations
of parental affection and care, which cannot be Q: In an action for partition of estate, the trial
attributedtopurecharity. court dismissed it on the ground that the
respondent,onthebasisofherbirthcertificate,
Suchactsmustbeofsuchanaturethattheyreveal wasinfacttheillegitimatechildofthedeceased
not only the conviction of paternity, but also the and therefore the latter's sole heir, to the
apparentdesiretohaveandtreatthechildassuchin exclusion of petitioners. However, trial court
all relations in society and in life, not accidentally, failedtoseethatinsaidbirthcertificate,shewas
butcontinuously.(Jisonv.CA,G.R.No.124853,Feb. listed therein as adopted. Was the trial court
24,1998) correctindismissingtheactionforpartition?

Q:Whataretherulesonprovingfiliation? A: No. The trial court erred in relying upon the
said birth certificate in pronouncing the filiation
A: oftherespondent.However,sinceshewaslisted
GR: Primary proof shall be used to prove therein as adopted, she should therefore have
filiation. presentedevidenceofheradoptioninviewofthe
contentsofherbirthcertificate.Inthiscase,there
XPN: In absence of primary proof, secondary isnoshowingthatsheundertooksuch.Itiswell
proofmayberesortedto. settledthatarecordofbirthismerelyprimafacie
evidence of the facts contained therein. It is not
60 CIVILLAWTEAM:

conclusive evidence of the truthfulness of the

statementsmadetherebytheinterestedparties. Q:WhatistheeffectofMa.Theresasclaimthat
(Rivera v. Heirs of Romualdo Villanueva, GR No. thechildisherillegitimatechildwithhersecond
141501,July21,2006) husbandtothestatusofthechild?

Q: In a complaint for partition and accounting A: None. This declaration an avowal by the
with damages, Ma. Theresa alleged that she is mother that her child is illegitimate is the very
the illegitimate daughter of Vicente, and declaration that is proscribed by Art. 167 of the
therefore entitled to a share in the estate left Family Code. This proscription is in consonance
behindbythelatter.Asproof,shepresentedher with, among others, the intention of the law to
birth certificate which Vicente himself signed lean towards the legitimacy of children.
therebyacknowledgingthatsheishisdaughter. (Concepcion v. CA,G.R. No. 123450. Aug. 31,
IstheproofpresentedbyMa.Theresasufficient 2005)
to prove her claim that she is an illegitimate
childofVicente? Q: In a petition for issuance of letters of
administration, Cheri Bolatis alleged that she is
A:Yes.CitingtheearliercaseofDeJesusv.Estate thesolelegitimatedaughterofdecedent,Ramon
ofJuanDizon,(366SCRA499),theSupremeCourt andVanBolatis.Phoebe,thedecedent'ssecond
held that the Ma. Theresa was able to establish wife, opposed the petition and questioned the
that Vicente was in fact her father. The due legitimate filiation of Cheri to the decedent,
recognition of an illegitimate child in a record of asserting that Cheris birth certificate was not
birth,awill,astatementbeforeacourtofrecord, signedbyRamonandthatshehadnotpresented
or in any authentic writing is, in itself, a the marriage contract between her alleged
consummated act of acknowledgment of the parentswhichwouldhavesupportedherclaim.
child,andnofurthercourtactionisrequired.The
ruleis,anyauthenticwritingistreatednotjustas Insaidbirthcertificate,itwasindicatedthather
agroundforcompulsoryrecognition;itisinitself birth was recorded as the legitimate child of
a voluntary recognition that does not require a RamonandVanBolatis,andcontainsaswellthe
separate action for judicial approval. (Eceta v. word"married"toreflecttheunionbetweenthe
Eceta,G.R.No.157037,May20,2004) two. However, it was not signed by Ramon and
Vanemon Bolatis. It was merely signed by the
Q: Gerardo filed acomplaint for bigamy against attending physician, who certified to having
Ma. Theresa, alleging that she had a previous attended to the birth of a child. Does the
subsisting marriage when she married him. The presumptionoflegitimacyapplytoCherimon?
trial court nullified their marriage and declared
that the son, who was born during their A: No. Since the birth certificate was not signed
marriage and was registered as their son, as by Cher's alleged parents but was merely signed
illegitimate.Whatisthestatusofthechild? by the attending physician, such a certificate,
althoughapublicrecordofaprivatedocumentis,
A:Thefirstmarriagebeingfoundtobevalidand underSection23,Rule132oftheRulesofCourt,
subsisting, whereas that between Gerardo and evidence only of the fact which gave rise to its
Ma.Theresawasvoidandnonexistent,thechild execution,whichis,thefactofbirthofachild.A
should be regarded as a legitimate child out of birth certificate, in order to be considered as
the first marriage. This is so because the child's validatingproofofpaternityandasaninstrument
best interest should be the primordial of recognition, must be signed by the father and
considerationinthiscase. mother jointly, or by the mother alone if the
father refuses. There having been no convincing
Q:GerardoandMa.Theresa,however,admitted proof of respondent's supposed legitimate
that the child was their son. Will this affect the relations with respect to the decedent, the
statusofthechild? presumption of legitimacy under the law did not
therefore arise in her favor. (Angeles v. Angeles
A:No.Theadmissionofthepartiesthatthechild Maglaya,G.R.No.153798,Sept.2,2005)
wastheirsonwasinthenatureofacompromise.
The rule is that the status and filiation of a child Q: On the basis of the physical presentation of
cannotbecompromised.Art.164oftheFCisclear theplaintiffminorbeforeitandthefactthatthe
that a child who is conceived or born during the alleged father had admitted having sexual
marriageofhisparentsislegitimate.(Concepcion intercourse with the child's mother, the trial
v.CA,G.R.No.123450.Aug.31,2005) court, in an action to prove filiation with
61

support,heldthattheplaintiffminoristhechild D.LEGITIMATEDCHILDREN
of the defendant with the plaintiffminor's
mother. Was the trial court correct in holding Q:Whatislegitimation?
such?
A:Legitimation isaremedyor processbymeans
A: No. In this age of genetic profiling and DNA of which those who in fact not born in wedlock
analysis,theextremelysubjectivetestofphysical and should therefore be ordinarily illegitimate,
resemblance or similarity of features will not arebyfiction,consideredlegitimate.
sufficeasevidencetoprovepaternityandfiliation
before courts of law. This only shows the very Q:Whoareentitledtolegitimation?
high standard of proof that a child must present
inordertoestablishfiliation. A: Only children conceived and born outside of
wedlock of parents who, at the time of
Note:Thebirthcertificatethatwaspresentedbythe conception, were not disqualified by any
plaintiffminor appears to have been prepared impedimenttomarryeachother.
without the knowledge or consent of the putative
father. It is therefore not a competent piece of Q:Arechildrenbornofparents,whoatthetime
evidenceonpaternity.Thelocalcivilregistrarinthis of conception and birth, were minors may be
case has no authority to record the paternity of an legitimated?
illegitimate child on the information of a third
person. Similarly, a baptismal certificate, while
A: Yes. RA 9858 amended Art. 177 of the Family
considered a public document, can only serve as
Code in allowing children conceived and born
evidenceoftheadministrationofthesacramenton
thedatespecifiedthereinbutnottheveracityofthe
outsideofwedlockofparentswho,atthetimeof
entries with respect to the child's paternity conception of the former, were not disqualified
(Macadangdang v. CA, 100 SCRA 73). Thus, byanyimpedimenttomarryeachother,orwere
certificates issued by the local civil registrar and so disqualified only because either or both of
baptismal certificates are per se inadmissible in themwerebeloweighteen(18)yearsofage,tobe
evidence as proof of filiation and they cannot be legitimated.
admitted indirectly as circumstantial evidence to Q:Whataretherequisitesoflegitimation?
prove the same (Jison v. CA, 350 Phil. 138).
(Cabataniav.CA,G.R.No.124814.Oct.21,2004) A:
1. Child must have been conceived and
C.ILLEGITIMATECHILDREN bornoutsideofwedlock;
2. Childs parents, at the time of formers
Q:Whoareillegitimatechildren? conception, were not disqualified by
anyimpedimenttomarryeachother;
A:Childrenconceivedandbornoutsideavalid 3. The subsequent valid marriage of the
marriage. parents.(Art.177,NCC)

Q: In what instances may an illegitimate child Q: Roderick and Faye were high school
usethesurnameoftheirfather? sweethearts. When Roderick was 18 and Faye,
16 years old, they started living together as
A:RAP husband and wife without the benefit of
1. Filiation has been Recognized by the marriage. When Faye reached 18 years of age,
father through the record of birth herparentsforciblytookherbackandarranged
appearinginthecivilregister for her marriage to Brad. Although Faye lived
2. Admissioninpublicdocument with Brad after the marriage, Roderick
3. Privatehandwritteninstrumentismade continuedtoregularlyvisitFayewhileBradwas
bythefather away at work. During their marriage, Faye gave
birth to a baby girl, Laica. When Faye was 25
Note: Provided that the father has the right to yearsold,Braddiscoveredhercontinuedliaison
instituteanactionbeforetheregularcourtstoprove with Roderick and in one of their heated
nonfiliationduringhislifetime. arguments,FayeshotBradtodeath.Shelostno
timeinmarryinghertrueloveRoderick,without
amarriagelicense,claimingthattheyhavebeen
continuouslycohabitingformorethan5years.

WasthemarriageofRoderickandFayevalid?
62 CIVILLAWTEAM:


A: The marriage was void because there was no Q: What are the rights of legitimate and
marriagelicense.Theirmarriagewasnotexempt illegitimatechildren?
from the requisite of a marriage license because
Roderick and Faye have not been cohabiting for A:
atleast5continuousyearsbeforethecelebration LEGITIMATE ILLEGITIMATE
of their marriage. Their lovers trysts and brief CHILDREN CHILDREN
visitations did not amount to cohabitation.
Moreover, the Supreme Court held that for the Surname
marriage to be exempt from a license, there Bearthesurnameof
Bearthesurnamesof
shouldbenoimpedimentforthemtomarryeach eitherthemotheror
bothparents(mother
other during the entire 5 years of cohabitation. thefatherunderR.A.
andfather)
RoderickandFayecouldnothavecohabitedfor5 9255
years of cohabitation. Roderick and Faye could Support
not have been cohabited for 5 continuous years Receivesupportfrom:
without impediment because Faye was then 1. Parents;
legallymarriedtoBrad.(2008BarQuestion) 2. Ascendants;and Receivesupport
3. inpropercases, accordingtoprovision
WhatisthefiliationstatusofLaica? brothersand ofFC
sistersunderArt
A:HavingbeenbornduringthemarriageofFaye 174.
and Brad, she is presumed to be the legitimate Legitime
childofFayeandBrad,sheispresumedtobethe FullLegitimesand
Shareisequivalentto
legitimate child of Faye and Brad. This othersuccessional
oftheshareofa
presumptionhadbecomeconclusivebecausethe rightsundertheCivil
legitimatechild
periodoftimetoimpugnherfiliationhadalready Code
prescribed. Periodforfilingactionforclaimoflegitimacyor
illegitimacy
Can Laica bring an action to impugn her own Forprimaryproof:
statusonthegroundthatbasedonDNAresults, His/herwholelifetime his/herwholelifetime
Roderickisherbiologicalfather? regardlessoftypeof
proofprovidedunder Forsecondaryproof:
A: No, she cannot impugn her own filiation. The Art172 onlyduringthelifetime
law does not allow a child to impugn his or her oftheallegedparent
own filiation. In the problem, Laicas legitimate Transmissibilityofrighttofileanactiontoclaim
filiationwasaccordedtoherbyoperationoflaw legitimacy
whichmaybeimpugnedonlybyBrad,orhisheirs Yes No
in the cases provided by law within the Righttoinheritabintesto
prescriptiveperiod. Norighttoinheritab
intestofromlegitimate
Can Laica be legitimated by the marriageof her childrenandrelativesof
biologicalparents? Yes
fatherandmother
underArt992,NCC
A:Noshecannotbelegitimatedbythemarriage (IronCurtainRule)
of her biological parents. In the first place she is
not, under the law, the child of Roderick. In the
second place, her biological parents could not
have validly married each other at the time she
wasconceivedandbornsimplybecauseFayewas
still married to Roderick at that time. Under
Article 177 of the Family Code, only children
conceived or born outside of wedlock of parents
who, at the time of the conception of the child
were not disqualified by any impediment to
marryeachother,maybelegitimated.(2008Bar
Question)

RIGHTSOFCHILDREN
63

VIII.ADOPTION c. He is married to a Filipino and
seeks to adopt the legitimate or
A.DOMESTICADOPTIONLAW illegitimate child of his filipino
spouse.
1.WHOCANADOPT
Q:Howmayaguardianadopthisward?
Q:Whomayadopt?
A: A guardian may only adopt his ward after
A: termination of guardianship and clearance of his
1. Filipino; financialaccountabilities.
2. Alien;
3. Guardianwithrespecttohisward. Q: What is the rule when a person seeking to
adopthasaspouse?
Q: What are the qualificationsof a Filipino who
mayadopt? A:
GR: Such person must adopt with his spouse
A:LPGFEC16 jointly. The general rule is that husband and
1. MustbeofLegalage; wifeshalljointlyadopt.
2. InaPositiontocareforhischildren;
3. Goodmoralcharacter; XPN:
4. Fullcivilcapacityandlegalrights; 1. One spouse seeks to adopt the
5. Not been Convicted of any crime legitimatechildoftheother;
involvingmoralturpitude; 2. One spouse seeks to adopt his own
6. Emotionallyandpsychologicallycapable illegitimatechild;
ofcaringforchildren; 3. Spousesarelegallyseparated.
7. GR: At least 16 years older than
adoptee Q: Spouses Primo and Monica Lim, childless,
were entrusted with the custody of two minor
XPN:Itisnotnecessarythatadopterbe children, the parents of whom were unknown.
atleast16yearsolder: Eager of having children of their own, the
a. Adopter is the biological parent of spouses made it appear that they were the
theadoptee, childrens parents by naming them Michelle P.
b. Adopteristhespouseofadoptees LimandMichaelJudeLim.
parent.
Subsequently, Monina married Angel Olario
Q: What are the qualifications of an alien who afterPrimosdeathofherhusband.Shedecided
mayadoptunderR.A.8552? to adopt the children by availing the amnesty
given under R.A. 8552 to those individuals who
A:SD3 simulatedthebirthofachild.Shefiledseparate
1. Possesses Same qualifications as those petitions for the adoption of Michelle, then 25
enumeratedforFilipinoadopters; years old and Michael, 18. Both Michelle and
2. His country has Diplomatic relations Michaelgaveconsenttotheadoption.
withthePhilippines;
3. GR: Has been living in the Philippines The trial court dismissed the petition and ruled
for at least 3 continuous years prior to that Monina should have filed the petition
the application for adoption and jointly with her new husband. Monina, in a
maintainssuchresidenceuntiladoption Motion for Reconsideration argues that mere
decreehasbeenentered. consent of her husband would suffice and that
joint adoption is not needed, for the adoptees
XPN: arealreadyemancipated.
a. He is a former Filipino who seeks
to adopt a relative within the 4th Is the trial court correct in dismissing the
civil degree of consanguinity or petitionsforadoption?
affinity,
b. He is married to a Filipino and A:Yes.Section7Article3ofR.A.8552reads:Sec.
seeks to adopt jointly with his 7Husbandandwifeshalljointlyadopt,xxx.
th
spouse a relative within the 4
degreeofconsanguinityoraffinity, The use of the word shall in the abovequoted
64 CIVILLAWTEAM:

provision means that joint adoption by the timeofdeath.

husband and the wife is mandatory. This is in
consonance with the concept of joint parental Q:Whatisthedefinitionofchild?
authority over the child which is the ideal
situation. As the child to be adopted is elevated A:Achildisanypersonbelow18yearsold.
tothelevelofalegitimatechild,itbutnaturalto
requirethespousestoadoptjointly.Therulealso Q:Whatisthedefinitionofchildlegallyfreefor
ensuresharmonybetweenthespouses. adoption?

Thelawis clear.Thereisnoroomforambiguity. A: A child voluntarily or involuntarily committed
Monina, having remarried at the time the to the DSWD, freed of his biological parents,
petitions for adoption were filed, must jointly guardians,adoptersincaseofrescission.
adopt.Sincethepetitionsforadoptionwerefiled
only by Monina herself, without joining her Q: Whose written consent is necessary for
husband, Olario, the trial court was correct in adoption?
denyingthepetitionsforadoptiononthisground.
(InRe:PetitionforAdoptionofMichelleP.Lim,In A:
Re: Petition for Adoption of Michael Jude P. Lim, 1. Adoptee,if10yearsofageandover;
Monina P. Lim, G.R. Nos. 16899293, May 21, 2. Biologicalparentsofthechild,ifknown
2009) or the legal guardian, or the proper
government instrumentality which has
Q: Is joint adoption still needed when the legalcustodyofthechild;
adopteesarealreadyemancipated? 3. Legitimatechildrenoftheadopter,if10
yearsoldorover;
A: Yes. Even if emancipation terminates parental 4. Illegitimate children of the adopter, if
authority, the adoptee is still considered a 10yearsoldoroverandlivingwithhim;
legitimatechildoftheadopterwithalltherights 5. Spouseoftheadopted,ifmarried;
of a legitimate child such as: (1) to bear the 6. Spouseoftheadopter,ifmarried.
surname of the father and the mother; (2) to
receivesupportfromtheirparents;and(3)tobe Q:Bernadettefiledapetitionforadoptionofthe
entitled to the legitime and other successional threeminorchildrenofherlatebrother,Ian.She
rights. Conversely, the adoptive parents shall, allegedthatwhenherbrotherdied,thechildren
with respect to the adopted child, enjoy all the were left to the care of their paternal
benefits to which biological parents are entitled grandmother, Anna, who went to Italy. This
suchassupportandsuccessionalrights. grandmotherdiedhowever,andsoshefiledthe
petition for adoption. The minors gave their
ADOPTEE. writtenconsenttotheadoptionandsodidallof
her own grownup children. The trial court
Q:Whomaybeadopted? grantedthedecreeofadoptioneventhoughthe
written consent of the biological mother of the
A: children was not adduced by Bernadette. Was
1. Any person below 18 of age who has the trial court correct in granting the decree of
been administratively or judicially adoption?
declaredavailableforadoption;
2. Legitimate child of one spouse by the A: No. The rule is adoption statutes must be
otherspouse; liberally construed in order to give spirit to their
3. Illegitimate child by a qualified adopter humane and salutary purpose which is to uplift
to improve the status of said child to the lives of unfortunate, needy or orphaned
thatoflegitimacy; children. However, the discretion to approve
4. Person of legal age, if prior to the adoption proceedings on the part of the courts
adoption, said person has been should not to be anchored solely on those
consistently considered and treated by principles, but with due regard likewise to the
adoptersastheirchildsinceminority; natural rights of the parents over the child. The
5. Child whose adoption has been written consent of the biological parents is
previouslyrescinded; indispensable for the validity of the decree of
6. Child whose biological parents have adoption.Indeed,thenaturalrightofaparentto
died provided no proceedings have his child requires that his consent must be
been initiated within 6 months from obtained before his parental rights and duties
65

may be terminated and vested in the adoptive 2. Deemed a legitimate child of the
parents. In this case, since the minors' paternal adopter;
grandmother had taken custody of them, her 3. Acquires reciprocal rights and
consentshouldhavebeensecuredinsteadinview obligations arising from parentchild
oftheabsenceofthebiologicalmother.Thisisso relationship;
underSec.9(b)ofR.A.8552,otherwiseknownas 4. Righttousesurnameofadopter;
theDomesticAdoptionActof1998.Diwatafailed 5. In legal and intestate succession, the
inthisrespect,thusnecessitatingthedismissalof adopters and the adoptee shall have
her petition for adoption. (Landingin v. reciprocal rights of succession without
Republic,G.R.No.164948,June27,2006) distinction from legitimate filiation.
However, if the adoptee and his/her
Q: On what grounds may an adoptee seek the biologicalparentshadleftawill,thelaw
rescissionoftheadoption? on testamentary succession shall
govern.
A:
1. Attemptonthelifeoftheadoptee; Q:Statetheeffectsofrescissionoftheadoption
2. Sexualassaultorviolence; intheDomesticAdoptionActof1998(RA8552).
3. Abandonment and failure to comply
withparentalobligations; A:
4. Repeated physical or verbal 1. If adoptee is still a minor or is
maltreatmentbytheadopter. incapacitatedRestorationof:
a. Parentalauthorityoftheadoptees
Note:Adoptercannotrescindbutmaydisinheritthe biologicalparents,ifknownor
adoptee. b. LegalcustodyoftheDSWD;
2. Reciprocal rights and obligations of the
Q: What are the grounds by which an adopter adopters and adoptee to each other
maydisinheritadoptee? shallbeextinguished;
3. Court shall order the civil registrar to
A: cancel the amended certificate of birth
1. Groundless accusation against the of the adoptee and restore his/her
testator of a crime punishable by 6 originalbirthcertificate;
yearsormoreimprisonment; 4. Succession rights shall revert to its
2. Foundguiltyofattemptagainstthelife status prior to adoption, but only as of
of the testator, his/her spouse, the date of judgment of judicial
descendantorascendant; rescission;
3. Causesthetestatortomakechangesor 5. Vested rights acquired prior to judicial
changes a testators will through rescissionshallberespected.
violence, intimidation, fraud or undue
influence; Despite several relationships with different
4. Maltreatment of the testator by word women, Andrew remained unmarried. His first
ordeed; relationship with Brenda produced a daughter,
5. Conviction of a crime which carries a Amy, now 30 years old. His second, with Carla,
penaltyofcivilinterdiction; producedtwosons:JonandRyan.Histhird,with
6. Adultery or concubinage with the Donna, bore him two daughters: Vina and
testatorswife; Wilma. His fourth, while Elena, bore him no
7. Refusal without justifiable cause to children although Elena has a daughter Jane,
supporttheparentorascendant; from a previous relationship. His last, with Fe,
8. Leadsadishonorableordisgracefullife. produced no biological children but they
informally adopted without court proceedings,
Q:Whataretheeffectsofadoption? Sandy,now13yearsold,whomtheyconsideras
theirown.Sandy,now13yearsold,whomthey
A: considerastheirown.Sandywasorphanedasa
1. GR: Severance of all legal ties between babyandwasentrustedtothembythemidwife
the biological parents and the adoptee who attended to Sandys birth. All the children,
and the same shall then be vested on including Amy, now live with Andrew in his
theadopters house.
XPN: In cases where the biological
parentisthespouseoftheadopter;

66 CIVILLAWTEAM:

Isthereanylegalobstacletothelegaladoption Filipinooralientoadopt?
of Amy by Andrew? To the legal adoption of
SandybyAndrewandElena? A:
1. Atleast27yearsoldand16yearsolder
A: No, there is no legal obstacle to the legal thanthechildtobeadoptedatthetime
adoption of Amy by Andrew. While a person of of the application unless adopter is the
age may not be adopted, Amy falls within two parentbynatureofthechild;
exceptions:(1)sheisanillegitimatechildandshe 2. If married, his spouse must jointly file
is being adopted by her illegitimate father to foradoption;
improve her status; and (2) even on the 3. Has the capacity to act or assume all
assumptionthatsheisnotanillegitimatechildof rights and responsibilities of parental
Andrew, she may still be adopted, although of authority;
legal age, because she has been consistently 4. Notbeenconvictedofacrimeinvolving
consideredandtreatedbytheadopterashisown moralturpitude;
child since minority. In fact, she has been living 5. Eligibletoadoptunderhisnationallaw;
withhimuntilnow. 6. Inapositiontoprovideforpropercare
and support and give necessary moral
ThereisalegalobstacletotheadoptionofSandy values;
by Andrew and Elena. Andrew and Elena cannot 7. Agreestoupholdthebasicrightsofthe
adoptjointlybecausetheyarenotmarried. child mandated by the UN convention
of rights of Child and the Philippine
Inhisoldage,canAndrewbelegallyentitledto Laws;
claimsupportfromAmy,Jon,Ryan,Vina,Wilma 8. Comes from a country with which the
and Sandy assuming that all of them have the Philippineshasdiplomaticrelationsand
meanstosupporthim? adoption is allowed under his national
law;
A: Andrew can claim support from them all, 9. Possesses all the qualifications and
except from Sandy, who is not his child, none of the disqualifications under the
legitimate,illegitimateoradopted. laworotherapplicablePhilippinelaws.

Can Amy, Jon, Ryan, Vina, Wilma and Sandy Q: Sometime in 1990, Sarah, born a Filipino but
legallyclaimsupportfromeachother? by then a naturalized American citizen, and her
AmericanhusbandSonnyCruz,filedapetitionin
A: Amy, Jon, Ryan, Vina and Wilma can ask the Regional Trial Court of Makati, for the
support from each other because they are half adoption of the minor child of her sister, a
blood brothers and sisters, and Vina and Wilma Filipina,canthepetitionbegranted?
are fullblood sisters (Art. 195 [5], Family Code), A: It depends. If Sonny and Sarah have been
butnotSandywhoisnotrelatedtoanyofthem. residinginthePhilippinesforatleast3yearsprior
totheeffectivityofR.A.8552,thepetitionmaybe
CanJonandJanelegallymarry? granted. Otherwise, the petition cannot be
granted because the American husband is not
A: Jon and Jane can legally marry because they qualifiedtoadopt.
are not related to each other. Jane is not a
daughterofAndrew.(2008BarQuestion) Whilethepetitionforadoptionwasfiledin1990,
it was considered refiled upon the effectivity of
B.INTERCOUNTRYADOPTIONACTOF1995. R.A.8552.Thisisthelawapplicable,thepetition
(RA8043). being still pending with the lower court. Under
the Act, Sarah and Sonny must adopt jointly
ADOPTER becausetheydonotfallinanyoftheexceptions
where one of them may adopt alone. When
Q:Whomayadopt? husband and wife must adopt jointly, the
Supreme Court has held in a line of cases that
A: both of them must be qualified to adopt. While
1. Anyalien; Sarah, an alien, is qualified to adopt, for being a
2. Filipino citizen, both permanently former Filipino citizen who seeks to adopt a
th
residingabroad. relativewithinthe4 degreeofconsanguinityor
affinity,Sonny,analien,isnotqualifiedtoadopt
Q: What are the qualifications needed for a becauseheisneitheraformerFilipinocitizennor
67

married to a Filipino. One of them not being ofthechild
qualifiedtoadopt,theirpetitionhastobedenied.
However, if they have been residents of the Q:Whatistrialcustody?
Philippines 3 years prior to the effectivity of the
Actandcontinuestoresidehereuntilthedecree A:Itisthepreadoptiverelationshipwhichranges
ofadoptionisentered,theyarequalifiedtoadopt 6 months from the time of the placement. It
thenephewofSarahunderSec7(b)thereof,and startsfromtheactualtransferofthechildtothe
thepetitionmaybegranted.(2000BarQuestion) applicantwho, asactualcustodian,shallexercise
substitute parental authority over the person of
ADOPTEE thechild

Q:Whomaybeadopted? Note:
1. Ifunsatisfactorytherelationshipshallbe
A: Only a legally free child may be adopted suspended by the board and the foreign
providedthefollowingaresubmitted: adoption agency shall arrange for the
1. Childstudy; childsvoluntarycare.
2. Birthcertificate/foundlingcertificate; 2. IfsatisfactorytheBoardshallsubmitthe
3. DeedofVoluntaryCommitment/Decree written consent of the adoption to the
foreign adoption agency within 30 days
of Abandonment/Death Certificate of
aftertherequestofthelattersrequest.
parents;

4. Medicalevaluationorhistory;
IX.SUPPORT
5. Psychologicalevaluation;

6. Recentphoto;
Q:Whatissupport?

Q:Whatisthedefinitionofchild?
A: It comprises everything indispensable for

sustenance,dwelling,clothing,medicalassistance
A:Achildisanypersonbelow15yearsold.
and transportation, in keeping with the financial

capacityofthefamily,includingtheeducationof
Q:Whatisalegallyfreechild?
the person entitled to be supported until he

completes his education or training for some
A: A child who has been voluntarily or
profession, trade or vocation, even beyond the
involuntarily committed to the DSWD of the
ageofmajority.(Art.194,FC)
Philippines, in accordance with the Child Youth

andWelfareCode
Q:Whatarethecharacteristicsofsupport?

Note: No child shall be matched to a foreign
adoptivefamilyunlessitissatisfactorilyshownthat
A:PRIMPEN
thechildcannotbeadoptedinthePhilippines 1. Personal
2. Reciprocalonthepartofthosewhoare
GR: There shall be no physical transfer of a bylawboundtosupporteachother
voluntarily committed child earlier than 6 3. Intransmissible
monthsfromthedateofexecutionofDeedof 4. Mandatory
VoluntaryCommitment. 5. Provisional character of support
judgment
XPN: 6. Exemptfromattachmentorexecution
1. Adoptionbyrelative; 7. Notsubjecttowaiverorcompensation
2. Childwithspecialmedicalcondition.
A.WHATITCOMPRISES
INTERCOUNTRYADOPTIONBOARD
Q:Whatcomprisessupport?
Q: What is the function of InterCountry
AdoptionBoard? A:Supportcomprisesofeverythingindispensable
for:SDCMET
A: The Inter Country Adoption Board acts as the 1. Sustenance
central authority in matters relating to inter 2. Dwelling
countryadoption.TheBoardshallensurethatall 3. Clothing
the possibilities for adoption of the child under 4. Medicalattendance
the Family Code have been exhausted and that 5. Education includes schooling or
the intercountry adoption is in the best interest training for some profession, trade or
68 CIVILLAWTEAM:

vocation, even beyond the age of 3. Parents and their legitimate children,
majority and the legitimate and illegitimate
6. Transportation includes expenses childrenofthelatter;
going to and from school, or to from 4. Parents and their illegitimate children,
placeofwork and the legitimate and illegitimate
childrenofthelatter;
Q:Whataretherulesontheamountofsupport? 5. Legitimatebrothersandsisterswhether
fullorhalfblood.
A: Amount of support shall be in proportion to
the resources or means of the giver and to the Q: Are brothers and sisters not legitimately
necessities of the recipient. It shall be increased relatedlikewiseboundtosupporteachother?
or reduced proportionately, according to the
increase/reduction of necessities of the recipient A:
andtheresourcesofthepersonobliged. GR:Yes.

Q:Whatarethedifferentkindsofsupport? XPN: when the need for support of the
brother or sister, being of age, is due to a
A: cause imputable to the claimants fault or
1. Legalrequiredorgivenbylaw; negligence. In this case, the illegitimate
2. Judicialrequiredbycourt; brotherorsisterhasnorighttobesupported.
Maybe:
a. Pendentelite Q:Whatarethesourcesofsupport?
b. Inafinaljudgment
A:
3. Conventionalbyagreement. SOURCESOFSUPPORT
During After
PendingLitigation
Q:Whataretherulesonsupportofillegitimate Marriage Litigation
childrenofeitherspouse? Spouses
ACP
A: It depends upon the property regime of the
spouses. GR: From the
1. ACP: community
a. Exclusive property of the debtor propertyassets
spouseshallbeliable. XPN: If Art 203 GR:No
b. If the exclusive property is applies, that if the obligationto
insufficient, the community is claimant spouse is support
liable. the guilty spouse,
he/she is not XPN:Ifthere
Note:Thesamebeingconsideredas entitled to isLegal
advance made by the absolute Fromthe
support. Separation.
communitytosaidspouse. community
Inwhich
property
CPG case,the
2. CPG: Support is courtmay
a. Property of the debtorspouse is considered an requirethe
liable. advance of such guiltyspouse
b. If the debtor spouse has no spousesshare. togive
property or the same is support
insufficient, it may be enforced *Theruledoesnot
againsttheconjugalproperty. apply if the
spouses are under
B.WHOAREOBLIGED ACP based on Art
153.
Q: Who are persons obliged to support each Children
other?
Fromthe
Fromthe Fromthe
separate
A: community community
propertiesof
1. Spouses; property property
thespouses
2. Legitimateascendants&descendants;

69

Q:Towhomdoestheliabilitytosupportdevolve of illness is comprised among the mutual
upon? obligations to which the spouses are bound by
way of mutual support. (Arts. 142 and 143.) If
A:Inthefollowingorder:SDAB every obligation consists in giving, doing or not
1. Spouse doing something (Art. 1088), and spouses are
2. Descendants in the in the nearest mutuallyboundtosupporteachother,therecan
degree benoquestionbutthat,wheneitherofthemby
3. Ascendantsinthenearestdegree reason of illness should be in need of medical
4. Brothersandsisters assistance, the other is under the unavoidable
obligation to furnish the necessary services of a
Q: Belen, in behalf of her minor children, physician in order that health may be restored,
institutedapetitionfordeclarationoflegitimacy andheorshemaybefreedfromthesicknessby
and support against Federico, their alleged whichlifeisjeopardized.
father, and Francisco, father of Federico. It
appears that the marriage of the two was Her husband denies liability on the ground that
annulled due to the minority of Federico. May it was not he who requested Dr. Arturos
Franciscobeorderedtogivesupport? assistance.Decide.

A: Yes. There appears to be no dispute that the A: That it was not the husband who called and
childrenareindeedthedaughtersofFedericoby requested his assistance for his wife is no bar to
Belen. Under Art. 199 of the FC, Whenever two thefulfillmentofthesaidobligation,asMarcelo,
ormorepersonsareobligedtogivesupport,the inviewoftheimminentdangertowhichthelife
liability shall devolve upon the following persons of the patient was at that moment exposed,
inthefollowingorderhereinprovided: considered that medical assistance was urgently
1. Thespouse; needed, and the obligation of the husband to
2. Thedescendantsinthenearestdegree; furnishhiswifeintheindispensableservicesofa
3. The ascendants in the nearest degree: physician at such critical moments is specially
and established by the law, as has been seen, and
4. Thebrothersandsisters. compliance therewith is unavoidable.(Pelayo v.
Lauron,etal.,GRNo.L4089,Jan.12,1909)
Theobligationtogivesupportrestsprincipallyon
those more closely related to the recipient. C.SUPPORTDURINGMARRIAGELITIGATION
However,themoreremoterelativesmaybeheld
toshouldertheresponsibilityshouldtheclaimant Q: What is the source of support during the
provethatthosewhoarecalledupontoprovide pendency of legal separation, annulment and
support do not have the means to do so. Here, declarationofnullityofmarriageproceedings?
since it has been shown that the girls' father,
Federico, had no means to support them, then A: The spouses and their common children shall
Francisco, as the girls grandfather, should then besupportedfromthepropertiesoftheabsolute
extendthesupportneededbythem. communityortheconjugalpartnership.

Note: Thesecond option in Art.204 of the FC, that Q:Arethespousesstillobligedtorendermutual
of taking in the family dwelling the recipient, is support after final judgment granting the
unavailinginthiscasesincethefilingofthecasehas petition?
evidently made the relations among the parties
bitter and unpleasant. (Mangonon, et al. v. CA, et A:
al.,G.R.No.125041,Jun.30,2006) GR: No. The obligation of mutual support ceases

afterfinaljudgment.
Q: Marcelo and Juana called Dr. Arturo to their

house to render medical assistance to their
XPN: In case of legal separation the Court may
daughterinlawwhowasabouttogivebirthtoa
orderthattheguiltyspouseshallgivesupportto
child. He performed the necessary operation.
theinnocentone.
When Dr. Arturo sought payment, Marcelo and

Juana refused to pay him without giving any
goodreason.Whoisboundtopaythebillforthe
servicesrenderedbyArturo?

A: Her husband, not her father and mother in
law. The rendering of medical assistance in case
70 CIVILLAWTEAM:

D.AMOUNT notbecompelledtogivesupportifhiswifelived
outside of the conjugal home, unless there was
Q:Whatistheamountofsupport? legalseparation.Isthedismissalproper?

A:Amountshallbeinproportiontotheresources A: No. The law will not permit the husband to
ormeansofthegiverandtothenecessitiesofthe evade or terminate his obligation to support his
recipient. wifeifsheisdrivenawayfromtheconjugalhome
becauseofhisownwrongfulacts.Inthiscase,she
Q: May the amount of support be reduced or was forced to leave the conjugal abode because
increased? of her husbands lewd designs and physical
assaults. She may claim support from him for
A: Yes. Support may be decreased or increased separate maintenance even outside of the
proportionately according to the reduction or conjugalhome.(Goitiav.CamposRueda,G.R.No.
increase of the necessities of the recipient and 11263,Nov.2,1916)
theresourcesofthepersonobligedtofurnishthe
same. G.ATTACHMENT

E.WHENDEMANDABLE Q: Is the right to receive support subject to
attachmentorexecution?
Q: When is the obligation to give support
demandable? A:
GR: No. The right to receive support
A: From the time the person who has a right to andanymoneyorpropertyobtainedas
receivesupportneedsitformaintenance. support cannot be attached no be
subject to execution to satisfy any
# judgmentagainsttherecipient.
Q:Whenshallsupportbepaid?
XPN: In case of contractual support or
A: Only from the date of judicial or extrajudicial support given by will, the excess in
demand. amount beyond that required for legal
support shall be subject to levy on
Note: The right to support does not arise from attachmentorexecution.
mere fact of relationship but from imperative
necessity without which it cannot be demanded. Q:Jurisdictionalquestionsmayberaisedatany
The law presumes that such necessity does not time. What is the exception with respect to the
existunlesssupportisdemanded. provisional character of judgment for support
andtheapplicationofestoppels?
F.OPTIONS
A: Judgment for support is always provisional in
character.ResJudicatadoesnotapply.Thelower
Q:Whataretheoptionsgiventopersonsgiving
court cannot grant a petition based on grounds,
support?
suchasbigamy,notallegedinthepetition.Sucha
decision based on grounds not alleged in the

A:
petitionisvoidonthegroundofnojurisdiction.
1. ToGiveafixedmonthlyallowance;or

2. ToReceiveandmaintaintherecipientin
However,ifthelowercourtsvoiddecisionisnot
thegivershomeorfamilydwelling.
assailed on appeal which dealt only with the
matter of support, the losing party is now

Q: After 1 month of marriage, husband
estopped from questioning the declaration of
repeatedly demanded from wife to perform
nullity and the SC will not undo the judgment of
"unchaste and lascivious acts on his genitals."
the RTC declaring the marriage null and void for
Because of her refusal, he maltreated her by
beingbigamous.
word and deed, inflicting bodily injuries on her.

To escape his lewd designs and avoid further
Itisaxiomaticthatwhileajurisdictionalquestion
harm, she left the conjugal home and took
mayberaisedatanytime,thishoweveradmitsof
refugeinherparent'shouse.
an exception where estoppel has supervened.
(Lamv.Chua,G.R.No.131286,Mar.18,2004)
She filed an action for support which was

dismissedonthegroundthatthehusbandcould
71

Q: Edward abandoned his legitimate children A: The assailed order did not convert the action
whentheywereminors.After19yearsfromthe for support into one for recognition but merely
time Edward left them, they, through their allowed Fe to prove their cause of action. But
mother, finally sued him for support, which the even if the order effectively integrated an action
courtgranted.Thecourtorderedhimtopay2M tocompelrecognitionwithanactionforsupport,
pesosassupportinarrears. such was valid and in accordance with
jurisprudence. In Tayag v. Court of Appeals (209
Edward assails the grant of the support in SCRA 665), the Supreme Court allowed the
arrearsaserroneoussinceunderArt.203ofthe integration of an action to compel recognition
FC, there was never any demand for support, with an action to claim one's inheritance. A
judicialorextrajudicial,fromthem.Ruleonhis separateactionwillonlyresultinamultiplicityof
contention. suits. Furthermore, the declaration of filiation is
entirely appropriate to the action for support.
A: No. Edward could not possibly expect his (Agustinv.CA,G.R.No.162571,June15,2005).
daughters to demand support from him
consideringtheirtenderyearsatthetimethathe Q: Can DNA testing be ordered in a proceeding
abandonedthem.Inanyevent,themotherofthe for support without violating the constitutional
girlshadmadetherequisitedemandformaterial rightagainstselfincrimination?
support although this was not in the standard
form of a formal written demand. Asking one to A: Yes. In People v. Yatar (428 SCRA 504), the
givesupportowingtotheurgencyofthesituation Supreme Court had already upheld the
isnolessademandjustbecauseitcamebyway constitutionality of compulsory DNA testing and
of a request or a plea. (Lacson v. Lacson, et the admissibility of the results thereof as
al.,G.R.No.150644,Aug.28,2006) evidence. Moreover, it has mostly been in the
areas of legality of searches and seizure and in
the infringement of privacy of communication
Q:NoelhelpedLeabyextendingfinancialhelpto wheretheconstitutionalrighttoprivacyhasbeen
support Leas children with Edward. May Noel criticallyatissue.
seekreimbursementofhiscontributions?Ifyes,
fromwhommayhedoso? If,inacriminalcase,anaccusedwhoseverylifeis
at stake can be compelled to submit to DNA
A: Yes. Pursuant to Art. 207 of the FC, Noel can testing, so much more so may a party in a civil
rightfullyexactreimbursementfromEdward.This case,whodoesnotfacesuchdireconsequences,
provision reads that "[W]hen the person obliged belikewisecompelled.DNAtestinganditsresults
tosupportanotherunjustlyrefusesorfailstogive is now acceptable as object evidence without
support when urgently needed by the latter, any runningafoulselfincriminationrightsofaperson.
third person may furnish support to the needy (Agustinv.CA,GRNo.162571,Jun.15,2005)
individual, with right of reimbursement from the
person obliged to give support." The resulting X.PARENTALAUTHORITY
juridical relationship between the Edward and
Noel is a quasicontract, an equitable principle A.GENERALPROVISIONS
enjoining one from unjustly enriching himself at
the expense of another. (Lacson v. Lacson, et Q:Whatispatriapotestas?
al.,GRNo.150644,Aug.28,2006)
A:Thesumtotaloftherightsofparentsoverthe
Q: Fe and her son Martin sued Martins alleged persons and property of their unemancipated
biologicalfatherArnelforsupport.Arneldenied child.
having sired Martin arguing that his affair and
intimacy with Fe had allegedly ended in long Q:Whatdoesparentalauthorityinclude?
before Martins conception.As a result, Fe and
Martin moved for the issuance of an order A:Itshallinclude:
directingallthepartiestosubmitthemselvesto 1. Caring for and rearing of such children
DNA paternity testing. The said motion was forcivicconsciousnessandefficiency;
grantedbythecourt.Didtheorderofthecourt 2. Development of their moral, mental
convert the complaint for support to a petition andphysicalcharacterandwellbeing.
forrecognition?

72 CIVILLAWTEAM:

Q: What are the characteristics of parental Q: What is the rule as to the custody of a child
authority? below7yearsofage?
A:
A:JoNaRePuTe GR: No child below 7 years of age shall be
1. Jointly exercised by the father and separatedfromthemother
mother;
2. Naturalrightanddutyoftheparents; XPN: When the court finds compelling
3. Cannot be Renounced, transferred or reasonstoconsiderotherwise
waived;
Note: The paramount consideration in matters of
XPN:Incasesauthorizedbylaw; custody of a child is the welfare and wellbeing of
thechild
4. Purelypersonal;
Q: If the parents are separated de facto, who
Note: It cannot be exercised through between them has custody over their
agents. child/children?

5. Temporary. A:Intheabsenceofajudicialgrantofcustodyto
one parent, both are entitled to the custody of
Q: What are the rules as to the exercise of theirchild/children.
parentalauthority?
Theparentwhohasbeendeprivedoftherightful
A: custodyofthechildmayresorttotheremedyof
1. The father and the mother shall jointly habeas corpus. (Salientes v. Abanilla, G.R. No.
exercise parental authority over the 162734,Aug.29,2006)
personsoftheircommonchildren.
Q:Thepetitionfordeclarationofnullityfiledby
Note: In case of disagreement, the Crisanto against his wife included a prayer for
fathersdecisionshallprevailunlessthere custodypendenteliteoftheir4yearoldson.The
isajudicialordertothecontrary. supplication for custody was based on the
alleged immorality of the mother who, the
2. If the child is illegitimate, parental husband asserted, was a lesbian. However, the
authorityiswiththemother. trial court citing Art. 213 of the FC, denied
Crisanto's prayer for temporary custody of his
Q: What is meant by the parental preference son,therehavingbeennocompellingreasonto
rule? soorderit.Wasthetrialcourtcorrectindenying
Crisantosprayerfortemporarycustody?
A:Thenaturalparents,whoareofgoodcharacter
andwhocanreasonablyprovideforthechildare A:Yes.Thepetitionerfailedtoovercometheso
ordinarily entitled to custody as against all called "tenderage presumption" rule under Art.
persons. 213oftheFC.Therewasnocompellingevidence
of the mother's unfitness. 'Sexual preference or
Q:Whoshallexerciseparentalauthorityincase moral laxity alone does not prove parental
oflegalordefactoseparationofparents? neglectorincompetencetodeprivethewifeof
custody, the husband must clearly establish that
A:ParentdesignatedbytheCourt. her moral lapses have had an adverse effect on
the welfare of the child or have distracted the
Q:WhatshalltheCourttakeintoaccountinthe errant spouse from exercising proper parental
designationoftheparent? care.

A: All relevant considerations, especially the Note:Thegeneralrulethatchildrenlessthanseven
choiceofthechildoversevenyearsofageexcept yearsofageshallnotbeseparatedfromthemother
whentheparentchosenisunfit. finds its raison d'etrein the basic need of minor
children for their mother's loving care. This is
predicated on the "best interest of the child"
principle which pervades not only child custody
cases but also those involving adoption,
guardianship,support,personalstatusandminorsin
73

conflictwiththelaw.(PabloGualbertov.Gualberto, liberty. Moreover, Art. 213 of the FC deals with
G.R.No.154994/G.R.No.156254,Jun.28,2005) the adjudication of custody and serves as a
guidelinefortheproperawardofcustodybythe
Q:Inapetitionforhabeascorpuswhichhefiled court. While the petitioners can raise it as a
beforetheCourtofAppeals,Joeysoughtcustody counterargumentinthecustodysuit,itmaynot
ofhisminorsonfromhisformerliveinpartner, however be invoked by them to prevent the
Loreta.Joeyallegedthatthechild'smotherwas fatherfromseeingthechild.
abroadmostofthetimeandthus,heshouldbe
given joint custody over their son. The CA Note: Habeas corpus may be resorted to in cases
howeverdeniedthepetition,andonthebasisof where rightful custody is withheld from a person
Art. 213, par (2) of the FC, awarded custody of entitled thereto. Under Art. 211 of the FC, both
the child in favor of the mother. Was the CA parents in this case have joint parental authority
correct in denying Joeys petition for habeas overtheirchildandconsequentlyjointcustodyover
corpusforthecustodyofhisminorson? him. Further, although the couple is separated de
facto,theissueofcustodyhasyettobeadjudicated
A: Yes. Under Art. 176 of the FC, parental by the court. In the absence of a judicial grant of
authorityoveranillegitimatechildisvestedsolely custody,bothparentsarestillentitledtothecustody
oftheirchild.(Salientes,etal.v.Abanilla,etal.,G.R.
in the mother, and this is true notwithstanding
No.162734,Aug.29,2006)
that the child has been recognized by the father

ashisoffspring.Atmost,suchrecognitionbythe
Q: The tug of war over custody of their minor
father would be a ground for ordering the latter
son resulted in Ivy's filing of a petition for
to give support to, but not custody of, the child
habeas corpus against Ernesto before the RTC.
(Davidv.CourtofAppeals,250SCRA82).Custody
The trial court then granted temporary custody
over the minor in this case was therefore
over the child to Ernesto. Who has jurisdiction
awarded correctly to the mother, and this is all
overhabeascorpuscases?
the more so in view of Art. 213 of the FC which

laysdowntheMaternalPreferenceRule.Thereis
A: The RTC. Both the Supreme Court and the
alsonoshowingthatJoeywasabletoshowproof
Court of Appeals still retain jurisdiction over
of any compelling reason to wrest from the
habeascorpuscasesinvolvingminorsdespitethe
motherparentalauthorityovertheirminorchild.
passage of Rep. Act No. 8369 (The Family Courts

Act of 1997) the law conferring upon family
Note:However,theCAerredinapplyingSec.6,Rule
99oftheRulesofCourt.Thisprovisionappliesonly
courts exclusive jurisdiction over such cases. SC
when the parents of the child are married to each had earlier ruled that it would be difficult for
otherbutareseparatedeitherbyvirtueofadecree persons seeking the whereabouts of minors to
of legal separation or because they are leaving seek redress from family courts whose writs are
separately de facto. In this case, the child's parents enforceableonlywithintheirrespectiveterritorial
were never married. Hence, the portion of the CA jurisdiction. This lack of recourse could not have
decisionallowingthechild,uponreachingtheageof beenthelegislativeintent,andthusR.A.8369did
ten, to choose which parent to live, should be noteffectivelydivesttheHighCourtandCourtof
deletedtherefrom.(Brionesv.Miguel,etal.,G.R.No. Appeals of their jurisdiction over habeas corpus
156343.Oct.18,2004) casesinvolvingcustodyofminors.Theprimordial
consideration always is the welfare and best
Q:Inapetitionforhabeascorpusthatwasfiled interest of the child. As it stands then, the RTCs,
by Loran against his estranged wife, as well as thru the appropriately designated Family Court
againsthisparentsinlawwhomheallegedwere branches, the CA and the SC have concurrent
unlawfully restraining him from having custody jurisdictionoversuchpetitions.Sinceinthiscase,
of his child, the trial court issued an order the petition was first filed before the RTC of
directing the aforesaid persons to appear in QuezonCity,thenthelatteracquiredjurisdiction
court and produce the child in question and to over the same to the exclusion of the Court of
show cause why the said child should not be Appeals and the Supreme Court. To hold
discharged from restraint. Does trial court's otherwise would be to risk instances where
orderruncountertoArt.213oftheFC? courts of concurrent jurisdiction might issue
conflicting orders. (ReyesTabujara v. CA, et al.,
A:No.Theassailedorderofthetrialcourtdidnot GRNo.172813,July20,2006)
grant custody of the minor to any of the parties
but was merely a procedural directive addressed
tothepetitionersforthemtoproducetheminor
in court and explain why they are restraining his
74 CIVILLAWTEAM:

B.SUBSTITUTEANDSPECIALPARENTAL
AUTHORITY Q: What is the scope of the parents right to
disciplinethechild?
Q: What is the order of substitute parental
authority? A:Personsexercisingparentalauthoritymay:
1. Impose discipline on minor children as
A:GOC mayberequiredunderthecircumstances.
1. SurvivingGrandparent;
2. Petition the court for the imposition of
2. Oldestbrotherorsister,over21years; appropriate disciplinary measures upon the
XPN:unfitordisqualified child, which include the commitment of the
child in entities or institutions engaged in
3. ActualCustodianover21year; child care or in childrens homes duly
XPN:unfitordisqualified accredited by the proper government
agency.
C.EFFECTSOFPARENTALAUTHORITYUPONTHE Note: Such commitment must not
PERSONOFTHECHILDREN exceed30days.

Q: What are the rules regarding the right to Q: What are the limitations on the exercise of
custodyoverthechild? therighttodisciplinethechildandwhatareits
consequences?
A:
GR: Parents are never deprived of the A:Personsexercisingsuchrightisnotallowedto:
custodyandcareoftheirchildren. 1. treat the child with excessive harshness or
cruelty;or
XPNS: 2.inflictcorporalpunishment.
1. Forcause
Note: the law presumes that the Otherwise,thefollowingareitsconsequences:
childswelfarewillbebestservedin 1.Parentalauthoritymaybesuspended;
thecareandcontrolofhisparents. 2. Parent concerned may be held criminally
liable for violation of RA 7160 (Special
2. If in consideration of the childs Protection of Children against Abuse,
welfareorwellbeing,custodymay ExploitationandDiscriminationAct)
begiveneventoanonrelative.
Q: To whom may special parental authority be
Q: What is the basis for the duty to provide granted?
support? A:
1. Schooladministratorandteachers;
A: Family ties or relationship, not parental 2. Individual entity or institution engaged
authority. inchildcare.

Note: The obligation of the parents to provide
support is not coterminous with the exercise of
parentalauthority.
Q: What is the rule on the parents duty of

representation?
A:
GR: Parents are dutybound to represent their
unemancipated children in all matters affecting
theirinterests;
Note: This duty extends to representation in

courtlitigations.
XPN: A guardian ad litem may be appointed by

the court to represent the child when the best
interestofthechildsorequires.
75

Q:Whatarethedistinctionsbetweensubstitute Q:Whatarethekindsofpropertiesofaminor?
parental authority and special parental Distinguish.
authority?
A:
A: ADVENTITIOUS PROSFECTITIOUS
SUBSTITUTE SPECIALPARENTAL
1. Earnedor
PARENTALAUTHORITY AUTHORITY
acquiredbythe
Exercisedincaseof: 1. Exercised childthroughhis 1. Property
DAU concurrentlywith workorindustry givenbythe
theparental byonerousor parentstothe
1. Death, authorityofthe gratuitoustitle; childforthe
2. Absence,or parents; 2. Ownedbythe latterto
3. Unsuitabilityof 2. Restsonthetheory child; administer;
parents. thatwhilethechild 3. Childisalsothe 2. Ownedbythe
isinthecustodyof usufructuary,but parents;
theperson thechildsuseof 3. Parentsare
exercisingspecial thepropertyshall usufructuary;
parentalauthority, besecondaryto 4. Property
theparents allcollectivedaily administered
temporarily needsofthe bythechild.
relinquishparental family;
authorityoverthe 4. Administeredby
childtothelatter. theparents.

Q: What are the rules regarding the use of the
Q: What is the liability of persons exercising
childsproperty?
specialparentalauthorityoverthechild?

A:
A: They are principally and solidarily liable for
3. Thepropertyofminorchildrenshallbe
damages caused by the acts or omissions of the
devotedtotheirsupportandeducation
childwhileundertheirsupervision,instructionor
unless the title or transfer provides
custody.
otherwise.

4. The parents have the right to use only
Note:Parents,judicialguardiansorthoseexercising
substitute parental authority over the minor are the fruits and income of said property
subsidiarily liable for said acts and omissions of the forthefollowingpurposes:
minor. a. Primarily,tothechildssupport;
b. Secondarily, to the collective daily
D.EFFECTSOFPARENTALAUTHORITYUPONTHE needsofthefamily.
PROPERTYOFTHECHILDREN
Q: What is the rule on disposition and
Q: Who exercises legal guardianship over the encumbranceofthechildsproperty?
propertyofanunemancipatedchild?
A:Theparents,aslegalguardiansoftheproperty
A: The father and the mother, jointly, without oftheirminorchildren,donothavethepowerto
needofcourtappointment. dispose or encumber the property of the latter,
such power is granted by law only to a judicial
Note:Incaseofdisagreement,thefathersdecision guardian of the wards property, and even then,
shall prevail unless there is a judicial order to the only with the courts prior approval, secured in
contrary. accordancewiththeproceedingssetforthunder
theRulesofCourt.
Q:Whenisaparentrequiredtopostabond?
Q: What is the rule on lease of property
A: If the market value of the property or the belongingtominorchildren?
annualincomeofthechildexceeds50,000Php.
A:
Note: The bond shall not be less than 10% of the GR: The parents, as legal guardians of the
value of the property or annual income. (Art. 225, minors property, may validly lease the
FC) same, even without court authorization,

76 CIVILLAWTEAM:

becauseleasehasbeenconsideredasanact GR: Parental authority and responsibility are

ofadministration. inalienable and may not be transferred and
renounced.
XPNS:Courtauthorizationisrequiredif:
1. If the lease will be recorded in the XPN:Incaseauthorizedbylaw.
RegistryofProperty;
2. If the lease is for a period of more Note: Parents may exercise authority over their
than one year, because this is already childrensproperty.
deemedanactofdominion.
XI.EMANCIPATION
E.SUSPENSIONORTERMINATIONOFPARENTAL
AUTHORITY Q:Howdoesemancipationtakeplace?

Q:Whenisparentalauthorityterminated? A:Byattainmentofmajorityattheageof(18)
eighteenyears.
A:
1. Permanent:DED Q:Whataretheeffectsofemancipation?
a. Deathofparents;
b. Emancipationofthechild; A:
c. Deathofchild. 1. Parental authority over the person and
propertyofthechildisterminated
2. Temporary:AGAFIAitmayberevived 2. Child shall be qualified and responsible
a. Adoptionofthechild; for all acts of civil life, save exceptions
b. AppointmentofgeneralGuardian; establishedbyexistinglaws.
c. Judicial declaration of 3. Contracting marriage shall require
Abandonment; parental consent until the age of (21)
d. Finaljudgmentdivestingparentsof twentyone.
PA; 4. The responsibility of parents or
e. IncapacityofparentexercisingPA; guardiansforchildrenandwardsbelow
f. JudicialdeclarationofAbsence. (21) twentyone under the second and
thirdparagraphsofArt.2180oftheCivil
Q:WhatarethegroundsforsuspensionofPA? Codeshallnotbederogated.

A:CHAINB XII.SUMMARYJUDICIALPROCEEDINGSINTHE
1. Gives Corrupting orders, counsel and FAMILYLAW
example;
2. Treats child with excessive Harshness Q: What are the matters subject to summary
andcruelty; proceedings?
3. Subjects/allows child be subjected to
Actsoflasciviousness; A:
4. Convictionofcrimewithpenaltyofcivil 1. Petition for judicial authority to
Interdiction; administer or encumber specific
5. Culpable Negligence of parent or separate property of the abandoning
personexercisingPA; spouse.
6. CompelschildtoBeg. 2. Petition for an order providing for
disciplinarymeasuresoverachild.
Note: If the person exercising PA has subjected the 3. Petitionforapprovalofbondofparents
child or allowed him to be subjected to Sexual who exercise parental authority over
Abuse,he/sheshallbepermanentlydeprivedofPA. thepropertyoftheirchildren.
4. Judicial declaration of presumptive
Q: When may the suspension be revoked and death.
parentalauthorityrevived? 5. Action of a child for delivery of
presumptivelegitime
A:Theremustbeacasefiledforthepurposeorin 6. Judicial determination of family
the same proceeding if the court finds that the domicile in case of disagreement
cause therefore had ceased and will not be betweenthespouses
repeated. 7. Objection of one spouse as to the
professionoftheother.
77

8. Action entrusting parental authority immediately final and executory, the right to
over foundlings, abandoned, neglected appeal was not granted to any of the parties
or abused children to heads of therein.TheRepublic,asoppositorinthepetition
institutions. fordeclaration ofpresumptivedeath,shouldnot
9. Annulment by wife of the husband's be treated differently. It had no right to appeal
decision in the administration and theRTCdecisionofNovember7,2001.TheRTC's
enjoyment of community or conjugal decision was immediately final and executory
property. upon notice to the parties. (Republic v.
10. Appointment of one of the spouses as BermudezLorino, G.R. No. 160258, January 19,
sole administrator but only when the 2005)
other spouse is absent, or separated in
fact,orhasabandonedtheotherorthe Note: However, an aggrieved party may file a
consentiswithheld.(Uyv.CA,G.R.No. petitionforcertioraritoquestionabuseofdiscretion
109557,November29,2000) amounting to lack of discretion. (Republic v. Tango,
G.R.No.161062,July31,2009)
Q: How shall matters subject to summary
proceedingsbedecided? XIII.FINALPROVISIONS

A:Allcasesrequiringsummarycourtproceedings Q:Whatistheruleontheretroactivityofthe
shall be decided in an expeditious manner, FamilyCode?
withoutregardtotechnicalrules.
A:
Q: W filed a petition with the RTC under the GR:TheCodeshallhaveretroactiveeffect.
rules on Summary Judicial Proceedings in the
Family Law provided for in the Family Code, for XPN:Noretroactivityifitwouldprejudicevested
thedeclarationofthepresumptivedeathofher rights.
absentspouse,H,basedontheprovisionsofArt.
41 of the Family Code, for purposes of Q:Whatisavestedright?
remarriage. After trial, the RTC rendered a
decision declaring the presumptive death of H. A:Somerightorinterestinpropertythathas
TheRepublicreceivedacopyofthedecisionon becomefixedorestablished,andisnolonger
Nov14,2001.Subsequently,theRepublicfileda opentodoubtorcontroversy.Rightsarevested
NoticeofAppealonNov22,2001.TheRTCheld whentherighttoenjoyment,presentor
that the appeal was filed within the prospective,hasbecomethepropertyofsome
reglementary period and thus, elevated the personaspresentinterest.
records to the Court of Appeals. However, the
Court of Appeals denied the Republics appeal XIV.FUNERAL
and accordingly affirmed the appealed RTC
decision. Q:Whataretherulesregardingfuneral?

Did the Court of Appeals acquire jurisdiction A:GeneralGuidelines:
over the appeal on a final and executory 1. Dutyandrighttomakearrangementsin
judgmentoftheRTC? funerals in accordance with Art. 199,
FC:
A:No.InSummaryJudicialProceedingsunderthe a. Spouse,
Family Code, there is no reglementary period b. Descendantsinthenearestdegree,
within which to perfect an appeal, precisely c. Ascendantsinthenearestdegree,
because judgments rendered thereunder, by d. BrothersandSisters;
express provision of Art. 247, Family Code, are
immediately final and executory. An appellate 2. Funeralshallbe:
court acquires no jurisdiction to review a a. in keeping with the social position
judgment which, by express provision of law, is ofthedeceased,
immediately final and executory. The right to b. in accordance with the expressed
appealisnotanaturalrightnorisitapartofdue wishesofthedeceased,
process, for it is merely a statutory privilege. c. Inabsenceoftheexpressedwishes,
Since, by express mandate of Article 247 of the his religious beliefs or affiliation
FamilyCode,alljudgmentsrenderedinsummary shalldetermine;
judicial proceedings in Family Law are
78 CIVILLAWTEAM:

3. Anypersonwhodisrespectsthedeador thematterbelefttohisjudgmentanddiscretion
allows the same shall be liable for whenhereacheslegalage.
damages;
The State has an interest in the names borne by
4. If the deceased is married, the individuals and entities for purposes of
tombstone or mausoleum is deemed identification, and that a change of name is a
part of the funeral expense and privilege and not a right, such that before a
chargeable against the community personcanbeallowedtochangethenamegiven
property or conjugal partnership him either in his birth certificate or civil registry,
property. hemustshowproperorreasonablecause,orany
compellingreasonwhichmayjustifysuchchange.
XV.USEOFSURNAMES Otherwise, the request would be denied. (In Re:
Petition for change of name and/or
Q: What are the grounds for change of name correction/cancellationofentryincivilregistryof
whichhavebeenheldvalid? JulianLinCarulasanWang,G.R.No.159966,Mar.
30,2005)
A:CLEARED
1. One has Continuously used and been Note: The touchstone for the grant of a change of
known since childhood by a Filipino name isthat therebeproper and reasonable cause
name and was unaware of alien forwhichthechangeissought.
parentage;
2. The change results as a Legal Q:Canapersonchangehisregisteredfirstname
consequence,asinlegitimation; andsexonthebasisofasexreassignment?
3. There is a sincere desire to adopt a
Filipino name to Erase signs of former A: No. Before a person can legally change his
alienage, all in good faith and without given name, he must present proper or
prejudicinganyone; reasonable cause or any compelling reason
4. ThechangewillAvoidconfusion; justifyingsuchchange.Inaddition,hemustshow
5. Thenameis: that he will be prejudiced by the use of his true
a. Ridiculous, andofficialname.UndertheCivilRegisterLaw,a
b. Extremely difficult to write or birth certificate is a historical record of the facts
pronounce, astheyexistedatthetimeofbirth.Thus,thesex
c. Dishonorable. of a person is determined at birth, visually done
bythebirthattendant(thephysicianormidwife)
Q: Thepetitionfiledby theparents in behalf of by examining the genitals of the infant.
their minor son Julian Lin Carulasan Wang Considering that there is no law legally
soughtthedroppingofthelatter'smiddlename, recognizing sex reassignment, the determination
"Carulasan."Theparentsaverredthattheirplan of a persons sex made at the time of his or her
forJuliantostudyinSingaporeandadjusttoits birth, if not attended by error, is immutable.
culture necessitates the drop since in that (Silverio v. Republic, G.R. No. 174689, Oct. 22,
country,middlenamesorthemother'ssurname 2007)
are not carried in a person's name. They
therefore anticipate that Julian may be Q: What are the procedural requirements for a
subjected to discrimination on account of his petitionforchangeofname?
middle name, which is difficult to pronounce in
light of Singapore's Mandarin language which A:
does not have the letter "R" but if there is, 1. 3yearsresidencyintheprovincewhere
Singaporeans pronounce it as "L." Should the thechangeissoughtpriortothefiling;
petitionforthedroppingofhismiddlenamebe 2. Mustnotbefiledwithin30dayspriorto
granted? anelection;
3. Petitionmustbeverified.
A: No. Petitioners justification for seeking the
change in the name of their child, that of
convenience, was characterized by the Supreme
Courtasamorphous,tosaytheleast,andwould
notwarrantafavorableruling.AsJulianisonlya
minor and has yet to understand and appreciate
thevalueofanychangeinhisname,itisbestthat
79

Q: What is the Rule with regard to the use of Art.372 usingthenameand
surname by a child who is (1) legitimate, (2) surnameemployedby
legitimated,(3)adoptedand(4)illegitimate? herpriortothelegal
separation.
A: Choicessameas
Divorced(atleastifthey
CHILDCONCERNED SURNAMETOBEUSED widowedspouse.She
allowitlaterorforthose
Legitimate mayuseher
Fathers whogotdivorcedduring
Legitimated husbandssurname.
thejapaneseoccupation)
Adopted Adopters Art.373
MothersorFathersif
Illegitimate requisitesofR.A.9255 Q:VirginiaRemo,aFilipinocitizen,ismarriedto
arecompliedwith FranciscoRallonza.Inherpassport,thefollowing
Conceivedpriorto entries appear: "Rallonza" as her surname,
Fathers "MariaVirginia"ashergivenname,and"Remo"
annulmentofmarriage
Conceivedafter as her middle name. Prior to the expiration of
Mothers
annulmentofmarriage herpassport,Virginiaappliedfortherenewalof
her passport with the DFA, with a request to
FACTUALCIRCUMSTANCE SURNAMETOBE revert to her maiden name and surname in the
OFTHEWIFE USED replacementpassport.Virginia,relyingonArticle
1. firstnameand 370 of the Civil Code, contends that the use of
maidenname+ thehusbandssurnamebythewifeispermissive
husbands ratherthanobligatory.IsVirginiacorrect?
surname
2. firstname+ A:No.Amarriedwomanhasanoption,butnota
husbands duty,tousethesurnameofthehusbandinanyof
surname the ways provided by Article 370 of the Civil
3. husbandsfull Code. However, R.A. 8239 or the Philippine
Validmarriage(before name+prefix
PassportActof 1996limitstheinstanceswhena
husbanddies) indicatingthatshe
married woman applicant may exercise the
Art370 ishiswife(e.g.
option to revertto the use of her maiden name.
Mrs.)
4. retaintheuseof Thesearedeathofhusband,divorce,annulment,
hermaidenname anddeclarationofnullityofmarriage.

*useofhusbands Incaseofrenewalofpassport,amarriedwoman
surnameisnotaduty may either adopt her husbands surname or
butmerelyanoption continuously use her maiden name. However,
forthewife oncesheoptedtouseherhusbandssurnamein
Wifeis Shallresumeusing her original passport, she may not revert to the
guiltyparty hermaidenname useofhermaidenname,exceptifanyofthefour
Choices: groundsprovidedunderR.A.8239ispresent.
1. resumeusing
hermaiden Further, even assuming R.A. 8239 conflicts with
name the CivilCode, the provisions of R.A. 8239 which
2. continueusing is a special law specifically dealing with passport
husbands issuance must prevail over the provisions of the
surname CivilCodewhichisthegenerallawontheuseof
Marriageis surnames.Abasictenetinstatutoryconstruction
Annuled Unless: is that a special law prevails over a general law.
Art.371 Wifeis a. court (Remov.Sec.ofForeignAffairs,G.R.No.169202,
innocent decrees
Mar.5,2010)
otherwise;

b. sheorthe

former
husbandis
married
againto
another
person

LegallySeparated Wifeshallcontinue
80 CIVILLAWTEAM:

Q: What are the elements of usurpation of Entry in the Civil Registry of Julian Lin Carulasan
name? Wang,454SCRA155)

A:AUD Q: Honorato filed a petition to adopt his minor
1. Actual use of anothers name by the illegitimatechildStephanie.Stephaniehasbeen
defendant; using her mother's middle name and surname.
2. UseisUnauthorized; He prayed that Stephanie's middle name be
3. Use of anothers name is to Designate changedfrom"Astorga"to"Garcia,"whichisher
personalityoridentifyaperson. mother's surname and that her surname
"Garcia" be changed to "Catindig," which is his
Q: What are the remedies available to the surname. This the trial court denied. Was the
personwhosenamehasbeenusurped? trialcourtcorrectindenyingHonoratosrequest
for Stephanies use of her mothers surname as
A: hermiddlename?
1. Civil insofar as private persons are
concerned: A:No.Thenameofanindividualhastwoparts
a. Injunction thegivennameorpropernameandthesurname
b. Damages or family name. The given name may be freely
selected by the parents for the child, but the
2. Criminal when public affairs are surnametowhichthechildisentitledisfixedby
prejudiced. law. The Civil Code (Arts. 364 to 380) is silent as
totheuseofamiddlename.EvenArt.176ofthe
Q: Is the use of anothers name always FC, as amended by R.A. 9255 (An Act Allowing
actionable? Illegitimate Children to Use the Surname of
TheirFather)issilentastowhatmiddlenamea
A:No.Itisnotactionablewhenitisusedasstage, childmayuse.
screenorpenname.
An adopted child is entitled to all the rights
Provided:GIM provided by law to a legitimate child without
1. UseisinGoodfaith; discrimination of any kind, including the right to
2. No Injury is caused to the rights of the bear the surname of her father and her mother.
personwhosenamewasused; Asshehadbecomealegitimatechildonaccount
3. UseisMotivatedby: of her adoption, it follows that Stephanie is
a. Modesty entitled to utilize the surname of her father,
b. desire to avoid unnecessary Honorato Catindig, and that of her mother,
trouble GemmaGarcia.
c. otherreasonnotprohibitedbylaw
ormorals. Since there is no law prohibiting an illegitimate
child adopted by her natural father, like
MIDDLENAME Stepnanie, to use, as middle name her mother's
surname, the High Court found no reason why
Note: A middle name has practical or legal sheshouldnotbeallowedtodoso.
significance as it serves to identify the maternal
pedigree or filiation of a person and distinguishes Note: The Supreme Court, in granting the petition,
him from others who may have the same given predicated its ruling upon the statutory principle
name and surname as he has. Art. 364 of the Civil that adoption statutes, being humane and salutary,
Codestatesthatlegitimateandlegitimatedchildren should be liberally construed to carry out the
shallprincipallyusethesurnameoftheirfather.Art. beneficentpurposesofadoption.Themoderntrend
174oftheFamilyCodegiveslegitimatechildrenthe is to consider adoption not merely as an act to
righttobearthesurnamesofthefatherandmother, establisharelationshipofpaternityandfiliation,but
while illegitimate children, under Art. 176, as alsoasanactwhichendowsachildwithlegitimate
amended by R.A. 9255, shall use the surname of status. (In the Matter of the Adoption of Stephanie
their mother, unless their father recognizes their Nathy Astorga Garcia,G.R. No. 148311. Mar. 31,
filiation, in which case, they may bear the father's 2005)
surname. In the case of these children, their
registration in the civil registry requires that their
middle names be indicated therein, apart of course
from their given names and surnames. (In re:
Petition for Change of Name and/or Correction of
81

Q: Giana was born to Andy and Aimee, who at If the problem is intended only for purpose of
the time of Gianas birth were not married to determining whether factual changes are in
eachother.WhileAndywassingleatthattime, order,thentheanswersare:
Aimee was still in the process of securing a
judicialdeclarationofnullityonhermarriageto a. A change from legitimate to
herexhusband.Giannasbirthcertificate,which illegitimateisproperuponproof
wassignedbybothAndyandAimee,registered of lack of marriage between Andy
the status of Gianna as legitimate, her andAimee.
surname carrying that of Andys, and that her
parentsweremarriedtoeachother. b. If the child is considered
illegitimate,thensheshouldfollow
Can a judicial action for correction of entries in thesurnameofhermother.
Giannas birth certificate be successfully
maintainedto: Instead of a judicial action, can administrative
proceedings be brought for the purpose of
a. Change her status from legitimate to makingtheabovecorrections?
illegitimate;and
A:UnderR.A.9048,onlytypographicalerrorsare
A: A judicial action cannot be maintained to allowed to be corrected administratively. The
changethestatusofGiannafromlegitimateto changeofstatusfromlegitimatetoillegitimateis
illegitimatechildofAndyandAimee.Whileitis notatypographicalerrorandevenassumingthat
true that Gianna is the biological daughter of it is, its administrative correction is not allowed
Andy and Aimee conceived and born without under R.A. 9048. Typographical errors involving
marriage between them, Gianna is presumed, status, age, citizenship, andgender are expressly
under the law as the legitimate child of Aimee excluded from what may be corrected
andherhusband.Thisfiliationmaybeimpugned administratively.
only by the husband. To correct the status of
Gianna in her birth certificate from legitimate The change of the surname is also not allowed
childofAndyandAimeetoillegitimatechildof administratively. R.A. 9048 provides for an
Andy and Aimee will amount to indirectly administrativeprocedureforchangeoffirstname
impugning her filiation as the child of Aimees onlyandnotforchangeofsurname.
husbandinaproperaction.Whatcannotbedone
directlycannotbedoneindirectly. AssumingthatAimeeissuccessfulindeclaring
her former marriage void, and Andy and
b. ChangehersurnamefromthatofAndysto Aimee subsequently married each other,
Aimeesmaidensurname? wouldGiannabelegitimated?

A: No, Gianna will not be legitimated. While
A: A judicial action to change the surname of thecourtmayhavedeclaredthemarriagevoid
GiannafromthesurnameofAndytothemaiden
abinitioand,therefore,nomarriagetookplace
surname of Aimee is also not allowed. Gianna,
in the eyes of the law, Gianna will still not be
being presumed to be the legitimate child of
legitimated.Thisisbecauseatthetimeshewas
Aimees husband is required by law to be
registered under the surname of Aimees conceived and born her biological parents
husband.WhileitistruethatGiannasregistered couldnothavevalidlymarriedeachother.For
surname is erroneous, a judicial action for theirmarriagetobevalid,thecourtmustfirst
correction of entry to change the surname of declarethefirstmarriagenullandvoid.Inthe
Gianna to that of Aimees maiden surname will problem, Gianna was conceived and born
alsobeerroneous.Ajudicialactiontocorrectan beforethecourthasdecreedthenullityofher
entryinthebirthcertificateisallowedtocorrect mothers previous marriage. (2008 Bar
anerrorandnottocommitanothererror. Question)

Alternative Answers: It may be noted that the
problems does not show whether Gianna was
bornwhileAimeewaslivingwithherexhusband.
Neitherdoesitshowwhofiledthejudicialaction
tocorrecttheentries.

82 CIVILLAWTEAM:

XVI.ABSENCE Note:Theadministratoroftheabsentee'sproperty
shallbeappointedinaccordancewiththesame
A.PROVISIONALMEASURESINCASEOF order.
ABSENCE
B.DECLARATIONOFABSENCE
Q:Whatisabsence?
Q:Whenmayabsencebejudiciallydeclared?
A: Special status of a person who has left his
domicileandthereafterhiswhereaboutsandfate A:Itdepends.
are unknown, it being uncertain whether he is 1. Where the absentee left no agent to
already dead or still alive. (Olaguiviel v. Morada, administer his property after two (2)
63O.G.4940) years without any news about the
absentee or since receipt of the last
Q:Whatarethekindsofabsence? news.
2. Wheretheabsenteehasleftapersonto
A: administer his property after five (5)
1. PhysicalAbsence years.
2. LegalAbsence
Q:Whomayaskforthedeclarationofabsence?
Q:Whatisprovisionalabsence?
A:
A: 1. Spousepresent
1. When a person disappears from his 2. Heirsinstitutedinawill
domicile 3. Relativeswhomaysucceedbyintestacy
2. Hiswhereaboutsareunknownand: 4. Persons who may have over the
a. hedidnotleaveanyagent property of the absentee some right
b. he left an agent but the agents subordinated to the condition of his
powerhasexpired death.

Q:Whenshallthejudicialdeclarationofabsence
Q:Whatistheremedyofaninterestedparty,a takeeffect?
relativeorafriendoftheabsenteetoprotect
thelatter'sinterest? A: Six (6) months after its publication in a
newspaperofgeneralcirculation.
A: They may petition the Court for the
appointmentofarepresentativetorepresentthe C.ADMINISTRATIONOFTHEPROPERTYOFTHE
absenteeinallthatmaybenecessary. ABSENTEE

Q:WhatisthedutyoftheCourtafterappointing Q:Whenshalltheadministrationoftheproperty
therepresentative? oftheabsenteecease?
A:TheCourtshall:
A:ADD
1. Takethenecessarymeasuresto 1. WhenabsenteeAppearspersonallyor
safeguardtherightsandinterestsofthe bymeansofanagent.
absentee. 2. WhenDeathoftheabsenteeisproved
2. Specifythepowers,obligations,and andhistestateorintestateheirs
remunerationoftherepresentative. appear.
3. Regulatethepowers,obligationsand 3. Whenathirdpersonappears,showing
remunerationaccordingtothe byaproperDocumentthathehas
circumstancesbytherulesconcerning acquiredtheabsentee'spropertyby
guardians. purchaseorothertitle.

Q:Whatistheorderofpreferenceinthe
appointmentofarepresentative?
A:
1. Spousepresent,except,whenlegally
separated.
2. Intheabsenceofspouse,any
competentperson.
83

D.PRESUMPTIONOFDEATH his existence has not been known for
four(4)years.
Q:Whatarethekindsofpresumeddeath?
Q:Whenistheabsenteepresumedtohavedied
A: underanextraordinarypresumption?
1. Ordinary presumption ordinary
absence; absentee disappears under A: At the time of disappearance. i.e. when the
normal conditions without danger or calamitytookplace.
ideaofdeath.
Q: May a petition for the declaration of
2. Extraordinary presumption qualified presumptive death be the subject of a judicial
absence; disappearance with great declaration,ifitistheonlyquestionuponwhich
probabilityofdeath. acompetentcourthastopass?

Q:Whataretherulesinordinarypresumptionof A: No. Under the Civil Code, the presumption of
death? death is established by law and no court
declaration is needed for the presumption to
A:Incaseof: arise. Moreover, It is clear that a judicial
declaration that a person is presumptively dead,
1. Disappearanceuponorbeforereaching beingapresumptionjuristantumonly,subjectto
theageofseventyfive(75)years: contrary proof, cannot become final. If a judicial
decree declaring a person presumptively dead,
a. Afteranabsenceofseven(7)years? cannotbecomefinalandexecutoryevenafterthe
A: The absentee is presumed dead for lapseofthereglementaryperiodwithinwhichan
allpurposesexcept,succession. appeal may be taken, then a petition for such a
declaration is useless, unnecessary, superfluous
b. Afteranabsenceoften(10)years? andofnobenefittothepetitioner.
A: The absentee is presumed dead for
allpurposesincludingsuccession. Q: Juana married Arturo on January 1973.
However, because the latter was unemployed
2. Disappearanceattheageofseventysix thespousesconstantlyargued.Thus,Arturoleft
(76)yearsorolder: the conjugal dwelling on October 1975. Years
passed without any word from Arturo. Juana
a. Afteranabsenceoffive(5)years? didnthearanynewsofArturo,hiswhereabouts
A: The absentee is presumed dead for or even if he was alive or not. Believing that
allpurposesincludingsuccession. Arturo was already dead, Juana married Dante
on June 1986. Subsequently, however, Dante's
Q:Whenistheabsenteepresumedtohavedied application for naturalization filed with the
underanordinarypresumption? United States Government was denied because
of the subsisting marriage between Juana and
A:Attheendofthefive,sevenortenyearperiod Arturo. Hence, on March , 2007, Juana filed a
asthecasemaybe. Petitionfordeclarationofpresumptivedeathof
Arturo with the RTC. The RTC dismissed the
Q: Who are presumed dead for all purposes Petition on the ground that Juana was not able
including the division of estate among heirs in toprovetheexistenceofawellgroundedbelief
caseofextraordinarypresumptionofdeath? that her husband Arturo was already dead as
requiredunderArticle41oftheFamilyCode.
A:VAD
1. Person on board a Vessel lost during a a.WastheRTCcorrectindismissingthepetition
sea voyage, or an airplane which is basedonArticle41oftheFamilyCode?
missing,whohasnotbeenheardoffor
four (4) years since the loss of the No. Since the marriages were both celebrated
vesselorairplane; undertheauspicesoftheCivilCodeitistheCivil
2. Person in the Armed forces who has Code that applies to this case not Art. 41 of the
takenpatinwar,andhasbeenmissing FC. Under the Civil Code, proof of well founded
forfour(4)years; beliefisnotrequired.Juanacouldnothavebeen
3. Person who has been in Danger of expected to comply with the requirement of
death under other circumstances and proof of "wellfounded belief" since the FC was
84 CIVILLAWTEAM:

not yet in effect at the time of her marriage to taken place by the seventh year of absence,
Dante. Moreover, the enactment of the FC in Arturo is to be presumed dead starting October
1988 does not change this conclusion. The FC 1982.
shallhavenoretroactiveeffectifitimpairsvested
rights.Toretroactivelyapplytheprovisionsofthe Further,thepresumptionofdeathcannotbethe
FC requiring Juana to exhibit "wellfounded subject of court proceedings independent of the
belief"will,ultimately,resultintheinvalidationof settlement of the absentees estate. In case the
hersecondmarriage,whichwasvalidatthetime presumptionofdeathisinvokedindependentlyof
it was celebrated. Such a situation would be such an action or special proceeding there is no
untenable and would go against the objectives righttobeenforcednoristherearemedyprayed
thattheFamilyCodewishestoachieve. forbythepetitioneragainstherabsenthusband.
Neither is there a prayer for the final
b. Will the petition for declaration of determination of his right or status or for the
presumptivedeath,therefore,prosper? ascertainmentofaparticularfact,forthepetition
does not pray for a declaration that the
No. Under the Civil Code, the presumption of petitioner'shusbandisdead,butmerelyasksfor
death is established by law and no court adeclarationthathebepresumeddeadbecause
declaration is needed for the presumption to hehadbeenunheardfrominsevenyears.Insum,
arise. For the purposes of the civil marriage law, thepetitionforadeclarationthatthepetitioner's
Art. 83 of the Civil Code, it is not necessary to husband is presumptively dead, even if judicially
have the former spouse judicially declared an made, would not improve the petitioner's
absentee.Thelawonlyrequiresthattheformer situation, because such a presumption is already
spouse has been absent for seven consecutive established by law. (Valdez v. Republic, G.R. No.
yearsatthetimeofthesecondmarriage,thatthe 180863,September8,2009)
spouse present does not know his or her former
spouse to be living, that such former spouse is
generally reputed to be dead and the spouse
presentsobelievesatthetimeofthecelebration
ofthemarriage.Sincedeathispresumedtohave
Q:Discussthedistinctionsbetweendeclarationofpresumptivedeathforpurposeofcontracting
subsequentmarriageandopeningsuccessionanddeclarationofabsenceunderRulesofCourt.
A:
DECLARATIONOFPRESUMPTIVEDEATHFORPURPOSEOF:
CONTRACTINGSUBSEQUENT DECLARATIONOFABSENCE
OPENINGOFSUCCESSION
MARRIAGE
Applicablelaws
Arts.390396,CivilCode Arts.4144,FamilyCode Rule107,RulesofCourt
Whomayfilepetition
1. Spousepresent;
2. Heirsinstitutedinthewill;
3. Relatives who will succeed by
Absenteescoheirs,heirs,assigns,
intestacy;or
representativeorsuccessorsin Spousepresent
4. Thosewhohaveoverthepropertyof
interest
the absentee some right
subordinated to the condition of his
death.(Sec.2,Rule107)
Purposeofpetition
Itistoappointanadministratoroverthe
Forthepurposeofcontracting
propertiesoftheabsentee.Thisisproper
Toopensuccession subsequentmarriagebyspouse
onlywheretheabsenteehasproperties
present
tobeadministered
85

Whentofilepetition
GR: 4 consecutive years absence of

spouse and the spouse present
After2years:
has a wellfounded belief that the
GR:Absenceoftenyears. 1. From his disappearance and
absentspousewasalreadydead
without any news about the

XPN: If he disappeared after the absentee;or
XPN: 2 consecutive years absence
age of seventyfive years, an 2. Of the last news about the
of spouse In case of
absence of five years shall be absentee.
disappearance where there is
sufficient in order that his
danger of death under the
successionmaybeopened After 5 years: If he left an administrator
circumstances set forth in the
ofhisproperty.(Sec.2)
provisionsofArticle391oftheCivil
Code(Art.41,FC)
Effectivityofdeclaration
6 months after its publication of place
and time of hearing in a newspaper of
general circulation and in the Official
Upon institution of a summary Upon institution of a summary
Gazette.Theordermustalsoberecorded
proceedingincourt. proceedingincourt.
in the Civil Registry of the place where
theabsenteelastresided.(par.2,Sec.6,
Rule107)
Groundsforterminationofdeclaration
1. Absentee appears personally or
Upon recording of the affidavit of throughanagent;
reappearanceoftheabsentspouse, 2. Absenteesdeathisprovedandheirs
Upon recording of the affidavit of
unlessthereisajudgmentannulling appear;or
reappearance.
the previous marriage or declaring 3. Thirdpersonappearsshowingthathe
itvoidabinitio. acquired title over the property of
theabsentee(Sec.8).
Effectofreappearance
Itdoesnotautomaticallyterminate
the subsequent marriage. To cause
the termination of the subsequent
marriage, the reappearance must
be made in an affidavit of
If the absentee appears, or
reappearance and the recording of
without appearing his existence is
a sworn statement of the fact and
proved, he shall recover his
circumstances of such
property inthe condition inwhich The trustee or administrator shall cease
reappearanceinthecivilregistry.
it may be found, and the price of intheperformanceofhisoffice,andthe

any property that may have been propertyshallbeplacedatthedisposalof
If, however, there was previous
alienatedorthepropertyacquired thosewhomayhavearightthereto.
judgmentannullingordeclaringthe
therewith; but he cannot claim
prior marriage void, then the
either fruits or rents. (Art. 392,
reappearanceoftheabsentspouse,
CivilCode)
the execution of the affidavit, and
the recording of the sworn
statement shall not result to the
termination of the subsequent
marriage.

86 CIVILLAWTEAM:

XVII.CIVILREGISTRAR 4. adoption
5. naturalization
A.ARTICLE407413 6. lossorrecoveryofcitizenship,
7. civilinterdiction
Q:Whatisthecivilregister? 8. judicialdeterminationoffiliation
9. changes of name (Silverio v. Republic,
A:Referstothevariousregistrybooksandrelated G.R.No.174689,October22,2007)
certificatesanddocumentskeptinthearchivesof
the local civil registry offices, Philippine Q: What is the nature of the books making up
Consulate,andoftheOfficeoftheCivilRegistrar the civil register and the documents relating
General. thereto?

Q:Whatshallberecordedinthecivilregister? A:Thebooksanddocumentsshallbeconsidered
public documents and shall be prima facie
A: The following, concerning the civil status of evidenceofthefactsthereincontained.
persons:
B.RA9048
1. Acts
2. Events Q:WhendidR.A.9048takeeffect?
3. Judicialdecrees
A:March22,2001.
Q:Whatiscivilstatus?
Q: What is the rule with regard to changing or
A:Thecircumstancesaffectingthelegalsituation correctionofentriesinthecivilregister?
or sum total of capacities or incapacities of a A:
person in view of his age, nationality and family
membership (Beduya v. Republic, G.R. L71639, GR:Noentryinacivilregistershallbechangedor
May 29, 1964). It also includes all his personal correctedwithoutajudicialorder.
qualitiesandrelations,moreorlesspermanentin XPN:
nature, not ordinarily terminable at his own will, 1. clericalortypographicalerrorsand
suchashisbeinglegitimateorillegitimate,orhis
beingmarriedornot. 2. changeoffirstnameornicknamewhich
can be corrected or changed
Q:Whataretheactsauthorizedtobeenteredin administratively by the concerned city
thecivilregister? or municipal civil registrar or consul
general in accordance with the
A: provisions of RA 9048 (Clerical Error
1. legitimation Law).
2. acknowledgmentofillegitimate
children Q:Whatisaclericalortypographicalerror?
3. naturalization
A: Refers to a mistake committed in the
Q:Whataretheeventsauthorizedtobeentered performanceofclericalworkinwriting,copying,
inthecivilregister? transcribingortypinganentryinthecivilregister
that is harmless and innocuous, such as
A: misspelled name or misspelled place of birth or
1. births thelike,whichisvisibletotheeyesorobviousto
2. marriages the understanding, and can be corrected or
3. naturalization changed only by reference to other existing
4. deaths record or records: Provided, that no correction
must involved the change of , nationality, age,
Q: What are the judicial decrees authorized to status or sex of the petitioner. (Section 2(c), RA
beenteredinthecivilregister? 9048)

A:
1. legalseparations
2. annulmentsofmarriage
3. declarationsofnullityofmarriage
87

C.RULE108,RULESOFCOURT RA9048doesnotsanctionachangeoffirstname
on the ground of sex reassignment. Rather than
Q: May clerical or typographical errors be avoiding confusion, changing petitioners first
correctedunderRule108oftheRulesofCourt? name for his declared purpose may only create
grave complications in the civil registry and the
A: No. The correction or change of clerical or public interest. Before a person can legally
typographical errors can now be made through change his given name, he must present proper
administrativeproceedingsandwithouttheneed or reasonable cause or any compelling reason
for a judicial order. In effect, RA 9048 removed justifyingsuchchange.Inaddition,hemustshow
fromtheambitofRule108oftheRulesofCourt that he will be prejudiced by the use of his true
the correction of such errors. Rule 108 now andofficialname.Inthiscase,hefailedtoshow,
applies only to substantial changes and orevenallege,anyprejudicethathemightsuffer
correctionsinentriesinthecivilregister.(Silverio asaresultofusinghistrueandofficialname.
v.Republic,G.R.No.174689,October22,2007)
2. May a person's sex as indicated in his
Q:Whatisafirstname? certificate of birth be changed on the
groundofsexreassignment?
A: Refers to a name or nickname given to a
personwhichmayconsistofoneormorenames A: No. Under RA 9048, a correction in the civil
inadditiontothemiddleandlastnames. registryinvolvingthechangeofsexisnotamere
clerical or typographical error. It is a substantial
Q: John Lloyd Cruzada filed a petition for the changeforwhichtheapplicableprocedureisRule
change of his first name and sex in his birth 108oftheRulesofCourt.Theentriescorrectable
certificate in the RTC. He alleged that his name under Rule 108 of the Rules of Court are those
was registered as John Lloyd Cruzada in his providedinArticles407and408oftheCivilCode.
certificateoflivebirth.Hissexwasregisteredas These acts, events and judicial decrees provided
male. Further, he alleged that he is a male inArticles407and408oftheCivilCodeproduce
transsexual. Prior to filing the petition, he legal consequences that touch upon the legal
underwent sex reassignment surgery Thailand. capacity,statusandnationalityofaperson.Their
Thus, he seeks to have his name in his birth effects are expressly sanctioned by the laws. In
certificate changed from John Lloyd to contrast, sex reassignment is not among those
Joanna, and his sex from male to female actsoreventsmentionedinArticle407.Neitheris
on the ground of sex reassignment pursuant to it recognized nor even mentioned by any law,
Articles 407 to 413 of the Civil Code, Rules 103 expressly or impliedly. A persons sex is an
and108oftheRulesofCourtandRA9048. essential factor in marriage and family relations.
It is a part of a persons legal capacity and civil
1. May a person's first name be changed on status. In this connection, Article 413 of the Civil
thegroundofsexreassignment? Code provides that, all other matters pertaining
totheregistrationofcivilstatusshallbegoverned
A: No. The State has an interest in the names byspeciallaws.Butthereisnosuchspeciallawin
borne by individuals and entities for purposes of the Philippines governing sex reassignment and
identification. A change of name is a privilege, its effects. (Silverio v. Republic, G.R. No. 174689,
not a right. Petitions for change of name are October22,2007)
controlledbystatutes.RA9048nowgovernsthe
change of first name. RA 9048 provides the Note: The jurisdiction over applications for change
grounds for which change of first name may be offirstnameisnowprimarilylodgedwiththecityor
allowed: municipalcivilregistrarorconsulgeneralconcerned.
The intent and effect of the law is to exclude the
(1) The petitioner finds the first name or changeoffirstnamefromthecoverageofRules103
nickname to be ridiculous, tainted with dishonor (Change of Name) and 108 (Cancellation or
orextremelydifficulttowriteorpronounce; Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative
(2The new first name or nickname has been
petition for change of name is first filed and
habitually and continuously used by the
subsequently denied. Hence, the remedy and the
petitionerandhehasbeenpubliclyknownbythat proceedings regulating change of first name are
firstnameornicknameinthecommunity;or primarily administrative in nature, not judicial.
(3)Thechangewillavoidconfusion. (Silverio v. Republic, G.R. No. 174689, October 22,
2007)
88 CIVILLAWTEAM:

PROPERTY
PROPERTY
4. Astoindividuality
I.CHARACTERISTICS a. Specificproperty
b. Genericproperty
Q:Whatisproperty?
5. Astosusceptibilitytotouch
A:Itisanobjectorarightwhichisappropriated a. Tangible
or susceptible of appropriation by man, with b. Intangible
capacity to satisfy human wants and needs
(PinedaProperty,p.1,1999Ed) 6. Astosusceptibilitytosubstitution
a. Fungible
Q: What are the requisites for a thing to be b. Nonfungible
consideredasproperty?
7. Astoaccession
A:USA a. Principal
1. Utility capability to satisfy a human b. Accessory
need
2. Substantivity/Individuality A.HIDDENTREASURE
independentexistence
3. Appropriability susceptibility to Q:Whatistheconceptofhiddentreasure?
ownership/possession, even if not yet
actuallyappropriated A:HUM

Q: What properties are not susceptible of 1. Hiddenandunknown
appropriation? 2. Unknownowner
3. Consists of Money, jewels, or other
A: preciousobjects.(Notrawmaterials)

1. Commonthings(rescommones) Q: What is the meaning of other precious
objects?

XPN: Those that may be appropriated A: Under the ejusdem generis rule, the phrase
undercertainconditionsinalimitedway. should be understood as being similar to money
orjewelry.
e.g.Electricity
Q:Isoilorgoldconsideredashiddentreasure?
2. Not susceptible due to physical
impossibility A:No,thesearenaturalresources.
e.g.Sun
Q:Whatistheruleregardingdiscoveryofhidden
3. Notsusceptibleduetolegalimpossibility treasure?
e.g.Humanbody
A:
II.CLASSIFICATIONOFPROPERTY GR: If the finder is the owner of the land,
building,orotherpropertywhereitisfound,
Q:Whataretheclassificationsofproperty?
theentirehiddentreasurebelongstohim.
XPN: If the finder is not the owner or is a
A:
stranger (includes the lessee or
1. Astomobility
usufructuary), he is entitled to thereof.
a. Immovableorrealproperty
(Art566,NCC)
b. Movableorpersonalproperty

Q:Whatistheeffectifthefinderismarried?
2. Astoownership
a. Publicdominion A:Ifthefinderismarriedheorshegetsonehalf
b. Privateownership of the treasure or its value his or her spouse is
entitledtoshareonehalfofthatshareitbeinga
3. Astoalienability conjugalproperty.(Art.117,par.4,FC)
a. Alienable
b. Inalienable
89

Q:Whenisthefinderentitledtoanyshareinthe its ownership is no longer apparent. The
hiddentreasure? contractor, Adams, is not a trespasser and
therefore entitled to onehalf of the hidden
A:Requisites:ACTA treasure and Blas as owner of the property, is
entitled the other half (Art. 438, NCC). Since the
1. Discoverywasmadeonthepropertyof notes and coins have historical value, the
Another, or of the State or any of its governmentmayacquirethemattheirjustprice
politicalsubdivisions; which in turn will be divided equally between
2. MadebyChance;and AdamandBlas(Art.438,par.3,CC)
3. He is not a Trespasser or Agent of the
landowner.(Art.438par.2,NCC) Alternative Answer: The Banco de las Islas
Filipinasistheownerofthevault.Thefinderand
Note:Ifthethingsfoundbeofinteresttoscienceor the owner of the land cannot share in the notes
thearts,theStatemayacquirethemattheirjust and coins, because they are not buried treasure
price,whichshallbedividedinconformitywiththe under the law, as the ownership is known.
rulestated.(Art.438,NCC) Although under Art. 720 of the Civil Code the
findershallbegivenarewardofonetenthofthe
Q:WhatisthemeaningofByChance? priceofthethingfound,asalostmovable,onthe
principleofquasicontract.
A: The finder had no intention to search for the
treasure. There is no agreement between the However, the notes and coinsmay have become
owner of the property and the finder for the res nullius considering that Banco de las Islas
search of the treasure. (Pineda Property, p. 86, Filipinas is no longer a juridical person and has
1999ed) apparently given up looking for them and Adam,
the first one to take possession with intent to
Q:Adam,abuildingcontractor,wasengagedby
possessshallbecomethesoleowner.
Blastoconstructahouseonalotwhichhe(Blas)
owns. While digging on the lot in order to lay Q: Assuming that either or both Adam and Blas
down the foundation of the house, Adam hit a areadjudgedasowners,willthenotesandcoins
veryhardobject.Itturnedouttobethevaultof bedeemedpartoftheirabsolutecommunityor
the old Banco de las Islas Filipinas. Using a conjugal partnership of gains with their
detonation device, Adam was able to open the respectivespouses?
vaultcontainingoldnotesandcoinswhichwere
in circulation during the Spanish era. While the A: Yes. The hidden treasure will be part of the
notesandcoinsarenolongerlegaltender,they absolute community or conjugal property, of the
were valued at P 100 million because of their respectivemarriages(Arts.91,93and106,Family
historical value and the coins silver and nickel Code).
content.Thefollowingfiledlegalclaimsoverthe
notesandcoins: AlternativeAnswer:Itisnothiddentreasureand
therefore, not part of the absolute or conjugal
i) Adam,asfinder; partnership of the spouses.But the finder of the
ii) Blas, as owner of the property where lostmovable,thenhisrewardequivalenttoone
theywerefound; tenth of the value of the vaults contents, will
iii) Bank of the Philippine Islands, as form part of the conjugal partnership. If the
successorininterest of the owner of government wants to acquire the notes and
thevault;and coins, it must expropriate them for public use as
iv) ThePhilippineGovernmentbecauseof museumpiecesandpayjustcompensation.(2008
theirhistoricalvalue. BarQuestion)
Q:Whoownsthenotesandcoins?
B.RIGHTOFACCESSION
A: Hidden treasure is money jewelry or other
preciousobjectstheownershipofwhichdoesnot
Q:Whatistherightofaccession?
appear (Art. 439, CC). The vault of the Banco de
las Islas Filipinas has been buried for about a
century and the Bank of the Philippine Islands A:Thatrightofownershipofwhichanownerofa
cannotsucceedbyinheritancetothepropertyof thing has over the products of said thing
BancodelasIslasFilipinas.Theownershipofthe (accession discreta), as well as to all things
vault,togetherwiththenotesandcoinscannow inseparably attached or incorporated thereto
legallybeconsideredashiddentreasurebecause
90
CIVILLAWTEAM:

PROPERTY
whether naturally or artificially (accession Civil fruits are the rents of buildings, the price of
continua).(PinedaProperty,p.88,1999ed) leases of lands and other property and the amount
of perpetual or life annuities or other similar
income.
1.FRUITS
Q:Whatistheobligationoftheownerwho
Q:Whatistheruleontheownersrightof
receivesthefruitfromathirdperson?
accessionwithrespecttowhatisproducedby

hisproperty?
A: He who receives the fruitshastheobligation
to pay the expenses made by a third person in

A: Totheownerbelongsthe: theirproduction,gathering,andpreservation.
1. naturalfruits;
2. industrialfruits; NOTE: Only such as are manifest or born are
3. civilfruits.(Art.441,NCC) consideredasnaturalorindustrialfruits.
NOTE: Natural fruits are the spontaneous products Withrespecttoanimals,itissufficientthattheyare

of the soil, and the young and other products of inthewombofthemother,althoughunborn.
animals.
Industrial fruits are those produced by lands of any

kindthroughcultivationorlabor.

2.ACCESSION;IMMOVABLEPROPERTYFRUITS
Q:Whatistheruleiftheplanterandownerofthelandaredifferent?
A:Asto:
GatheredFruits
PlanterinGF PlanterinBF
Reimbursedforexpensesfor
Planter Keepsfruits production,gathering,and
preservation
Nonecessitytoreimbursethe
Owner planterofexpensessinceheretains Getsfruits,payplanterexpenses
thefruits
StandingCrops
PlanterinGF PlanterinBF
Reimbursedforexpenses,
Loseseverything.Norightof
Planter
forproduction,gathering,and reimbursement
preservation.
Ownsfruitsprovidedhepays
planterexpenses,
Owner Ownsfruits
forproduction,gathering,and
preservation.
91

Q:Givetherulewhenthelandowneristhebuilder,planterorsower.
A:
LandOwner
OwnerofMaterials
andBuilder,PlanterorSower
GoodFaith GoodFaith
1.Removematerialsifw/oinjuryto
works,plantingsorconstructions;or
Acquirebuildingetc.afterpayingindemnityforvalueof
materials.
2.Receiveindemnityforvalueof
materials
BadFaith GoodFaith
1.Removematerials,w/orw/oinjury
Acquirebuildingetc.afterpayingvalueofmaterialsAND andbeindemnifiedfordamages;or
indemnityfordamages,subjecttotherightoftheownerof
materialstoremove 2.Beindemnifiedforvalueofmaterials
anddamages
GoodFaith BadFaith
Losematerialsw/obeingindemnified
Acquirew/opayingindemnityandrighttodamages.
andpaydamages
BadFaith BadFaith
Asthoughbothactedingoodfaith
(inparidelicto)
92
CIVILLAWTEAM:

PROPERTY
Q:Givetherulewhenlandownerisnotbuilder,planterorsower.
A:
LandOwner Builder,Planter,SowerandOwnerofMaterials
GoodFaith GoodFaith
LOhasoptionto: Incaselandownerexercises(1),builderhastherightto
retainuntilindemnityispaidandcannotberequiredto
1.Acquireimprovementsafterpayingindemnitywhich payrent.
couldeitherbe:
a.Originalcostsofimprovements
b.Increaseinthevalueofthewhole.
2.Sellthelandtobuilderandplanterorcollectrentfrom
sowerunlessthevalueofthelandisconsiderablygreater
thanthebuildingetc.,inwhichcase,thebuilderandplanter
shallpayrentunderthetermsfixedbytheparties.
GoodFaith BadFaith
1.Optionto:
a.Acquireimprovementswithoutpayingindemnity
andcollectdamages. 1.Loseimprovementswithoutrighttobeindemnified.

b.Sellthelandtobuilderandplanterorrentittothe
sower,andcollectdamagesinbothcases.
2.Recovernecessaryexpensesforpreservationofland.
c.Orderthedemolitionofworkorrestorationto
formerconditionandcollectdamagesinbothcases.
3.Paydamagestolandowner.
2.Paynecessaryexpensesforpreservation.
BadFaith GoodFaith
1.Landownermustindemnifybuilder,planter,sowerfor 1.Receiveindemnityforimprovementsandreceive
improvementsandpaydamages. damages;or
2.Removetheminanyeventandreceivedamages
2.CannotcompelBuilder,planterandsowertobuyland.
BadFaith BadFaith
Asthoughbothactedingoodfaith
(inparidelicto)
93

Q:Givetherulewhenthelandowner,builder,planter,sowerandownerofmaterialsaredifferentpersons.
A:
LandOwner Builder,Planter,Sower OwnerofMaterials
GoodFaith GoodFaith GoodFaith
1.Acquireimprovementsandpay 1.Rightofretentionfornecessary 1.Collectvalueofmaterials

indemnitytobuilder,planter,sower andusefulexpensesand2.Payvalue primarilyfromBPSandsubsidiarily
andbesubsidiarilyliabletoownerof ofmaterialstoitsowner. fromLOifformerisinsolvent
materialsforvalueofmaterials

2.Removeonlyifw/oinjury
2.Either
a.Sellthelandtobuilderand
planterexceptifitsvalueis
considerablymore.
b.Renttosower.
GoodFaith GoodFaith BadFaith
1.Optionto: 1.Rightofretentionfornecessary 1.Losematerialswithoutrightto

andusefulexpenses. indemnity.
a.Acquireimprovementsandpay
indemnitytobuilder,planter,
sower.
2.Keepbuildingetc.without 2.Paydamages.
b. indemnitytoownerofmaterialsand
collectdamagesfromhim.
i.Selltobuilder,planterexceptif
thevalueoflandis
considerablymore,then,
forcedlease.
ii.Renttosower
2.Withoutsubsidiaryliabilityforcost
ofmaterials.
94
CIVILLAWTEAM:

PROPERTY
GoodFaith BadFaith BadFaith
1.Optionto:
1.Recovervaluefrombuilder,
a.Acquireimprovementswithout planter,sower(inparidelicto)
payingindemnityandcollect
damages. 1.Recovernecessaryexpensesfor
landpreservation.
b.Demolition/restoreplus 2.Ifbuilder,planter,soweracquired
damages. improvements,removematerialsif
possiblewithoutinjury.
2.Losesimprovementswithoutright
c.Selltobuilder,planterorcollect
rentfromsowerplusdamages. toindemnityfromlandownerunless
thelattersellstheland.
3.Noactionagainstlandownerand
maybeliabletothelatterfor
2.Paynecessaryexpensestobuilder, damages.
planter,sower
BadFaith BadFaith BadFaith
Sameasthoughbothactedingoodfaith
(inparidelicto)
BadFaith GoodFaith GoodFaith
1.Removematerialsifpossible
withoutinjury.
1.Acquireimprovementsafterpaying 1.Removeimprovements
indemnityanddamagestobuilder,
planter,sower,unlessthelatter 2.Beindemnifiedfordamagesinany
decidestoremove. event 2.Collectvalueofmaterialsprimarily
frombuilder,planter,sower,
subsidiarilyfromlandowner.
BadFaith BadFaith GoodFaith
1.Acquireimprovementsafter
indemnity,subsidiarilyliabletoowner
ofmaterials.
1.Rightofretentionfornecessary
expenses
1.Collectvalueofmaterialsprimarily
frombuilder,planter,sower,
2.
subsidiarilyfromlandowner.
2.Payvalueofmaterialstoownerof
a.Selltobuilder,planterexceptif
materialsandpayhimdamages.
valueoflandismore.
b.Renttosower.
95

GoodFaith BadFaith GoodFaith
1.Optionto:
a.Acquirewithoutpaying
1.Collectvalueofmaterialsand
indemnityandcollectdamages. 1.Recovernecessaryexpenses.
damagesfrombuilder,planter,
sower.
b.Selltobuilder,planterorrentto
sowerandcollectdamages

2.Loseimprovementswithoutright
2.Paynecessaryexpensestobuilder, ofindemnityfromlandownerunless
2.Removematerialsinanyeventif
planter,sower. thelattersellstheland.
builder,planter,sower.
3.Subsidiarilyliabletoownerof
materials.
BadFaith GoodFaith BadFaith
1.Indemnityfordamages Noindemnity,losesmaterials.
Acquire improvements and pay
indemnity and damages to builder,
planter, sower unless the latter
decidestoremove. 2. Remove improvements in any
event.
Q:Whencantheownerofthelandappropriate two more months, a resurvey of the land

ashisowntheworks,sowingorplantingofthe showedthatitreallybelongedtoFred.Whatare
builder,planter,sowerrespectively. theoptionsavailabletoFred?
A:Onlywhenthebuilder,planter,sowerbelieves A: As to the pending crops planted by Felix in

that he has the right to so build, plant, or sow good faith, Fred has the option of allowing Felix
because he thinks he owns the land or believes to continue the cultivation and to harvest the
himself to have a claim of title. (Morales v. CA, crops, or to continue the cultivation and harvest
G.R.No.12196,Jan.28,1998) the crops himself. In the latter option, however,
Felixshallhavetherighttoapartoftheexpenses
Note: Improvements made prior to the annotation of cultivation and to a part of the net harvest,
ofthenoticeoflispendensaredeemedtohavebeen bothinproportiontothetimeofpossession.(Art.
made in good faith. After such annotation, the 545)(2000BarQuestion)
buildercannolongerinvoketherightsofabuilderin
goodfaith.(Carrascosov.CA,G.R.No.123672,Dec. Q:Becauseofconfusionastotheboundariesof
14,2005) the adjoining lots that they bought from the
same subdivision company, X constructed a
Q:Maytheownerofthelandchooseneitherto
house on the adjoining lot of Y in the honest
paythebuildingnortosellthelandanddemand
beliefthatitisthelandthatheboughtfromthe
theremovalofthestructuresandrestorationof
subdivisioncompany.
possessionofthelot.Decide.
1. What are the respective rights of X and Y
A: The ownerhas the option of paying the value
withrespecttoX'shouse?
of the building or selling the land. He cannot

refuseeithertopayorsellandcompeltheowner
ofthebuildingtoremoveitfromthelandwhere A:TherightsofY,asownerofthelot,andofX,as
it is erected. He is entitled to such removal only builderofahousethereon,aregovernedbyArt.
when, after having chosen to sell the land, the 448 which grants to Y the right to choose
other party fails to pay for the same. (Ignacio v. betweentworemedies:(a)appropriatethehouse
Hilario,76Phil606,1946) by indemnifying X for its value plus whatever
necessary expenses the latter may have incurred
Q: Felix cultivated a parcel of land and planted
for the preservation of the land, or (b) compel X
sugarcane,believingittobehisown.Whenthe
to buy the land if the price of the land is not
cropwaseightmonthsold,andharvestableafter
96
CIVILLAWTEAM:

PROPERTY
considerablymorethanthevalueofthehouse.If one of the measures to protect builders in good

itis,thenXcannotbeobligedtobuythelandbut faith.
he shall pay reasonable rent, and in case of
disagreement,thecourtshallfixthetermsofthe Q: Pending complete reimbursement, may the
lease. spousesNuguidbenefitfromtheimprovement?
2. Suppose X was in good faith but Y knew A:No.SincespousesNuguidoptedtoappropriate

thatXwasconstructingonhis(Y's)landbut the improvement for themselves when they
simplykeptquietaboutit,thinkingperhaps appliedforawritofexecutiondespiteknowledge
thathecouldgetX'shouselater.Whatare that the auction sale did not include the
therespectiverightsofthepartiesoverX's apartment building, they could not benefit from
houseinthiscase? the lots improvement until they reimbursed the
improver in full, based on the current market
A: Since the lot owner Y is deemed to be in bad value of the property. (Pecson v. CA, G.R. No.
faith (Art. 453), X as the party in good faith may 115814,May26,1995)
(a) remove the house and demand
indemnification for damages suffered by him, or Q: In good faith, Pedro constructed a fivedoor
(b) demand payment of the value of the house commercial building on the land of Pablo who
plusreparationfordamages(Art.447,inrelation was also in good faith. When Pablo discovered
toArt.454).Ycontinuesasownerofthelotand the construction, he opted to appropriate the
becomes,underthesecondoption,ownerofthe building by paying Pedro the cost thereof.
houseaswell,afterhepaysthesumsdemanded. However, Pedro insists that he should be paid
(1999BarQuestion) the current market value of the building, which
wasmuchhigherbecauseofinflation.
Q:Pecsonownedacommerciallotonwhichhe
built a building. For failure to pay realty taxes, 1.Whoiscorrect,PedroorPablo?
the lot was sold at public auction to
Nepomuceno,whointurnsoldittothespouses A: Pablo is correct. Under Art. 448 in relation to
Nuguid.Thesale,however,doesnotincludethe Art.546,thebuilderingoodfaithisentitledtoa
building. The spouses subsequently moved for refund of the necessary and useful expenses
the delivery of possession of the said lot and incurred by him, or the increase in value which
apartment. Pecson filed a motion to restore the land may have acquired by reason of the
possession pending determination of the value improvement, at the option of the landowner.
oftheapartment.MayPecsonclaimpaymentof Thebuilderisentitledtoarefundoftheexpenses
rentals? he incurred, and not to the market value of the
improvement.
A: Yes, Pecson is entitled to rentals by virtue of
Note: The case of Pecson v. CA, G.R. No. 115814,
his right of retention over the apartment. The
May26,1995isnotapplicable.
constructionoftheapartmentwasundertakenat
thetimewhenPecsonwasstilltheownerofthe
2. In the meantime that Pedro is not yet paid,
lot. When the Nuguids became the uncontested
who is entitled to the rentals of the building,
owner of the lot, the apartment was already in
PedroorPablo?
existenceandoccupiedbytenants.
A:Pabloisentitledtotherentalsofthebuilding.
Art.448doesnotapplytocaseswheretheowner
Astheowneroftheland,Pabloisalsotheowner
of the land is the builder but who later lost the
of the building being an accession thereto.
land; not being applicable, the indemnity that
However, Pedro who is entitled to retain the
should be paid to the buyer must be the fair
building is also entitled to retain the rentals. He,
marketvalueofthebuildingandnotjustthecost
however,shallapplytherentalstotheindemnity
of construction thereof. To do otherwise would
payabletohimafterdeductingreasonablecostof
unjustlyenrichthenewowneroftheland.
repairandmaintenance.(2000BarQuestion)
Note: While the law aims to concentrate in one
Q:Whatistheeffectifthebuildingbuiltonthe
person the ownership of the land and the
land owned by another is sold to pay for the
improvements thereon in view of the
impracticability of creating a state of forced co landsvalue?
ownership, it guards against unjust enrichment
insofarasthegoodfaithbuildersimprovementsare A:Thebuilderbecomespartowneroftheland.
concerned. The right of retention is considered as
97

Q: When may the land owner compel the auction, applying the proceeds first to
removalofthebuildingbuiltonhisland? the payments of the value of the land,
andtheexcessifany,tobedeliveredto
A: The landowner may not seek to compel the the owner of the house in payment
owner of the building to remove the building thereof. (Filipinas College Inc. v.
from the land after refusing to pay for the Timbang, G.R. No. L12812, Sept. 29,
buildingortoselltheland.Heisentitledtosuch 1959)
removal only when, after having chosen to sell
theland,theotherpartyfailstopayforsaidland. Q: Will the land owner upon demand for
(Ignaciov.Hilario,G.R.L175,April30,1946) paymentautomaticallybecometheownerofthe
improvementforfailureofthebuildertopayfor
Q: What is the rule when the lands value is thevalueoftheland?
considerablymorethantheimprovement?
A:No.ThereisnothinginArt.448and546which
A:Landownercannotcompelthebuildertobuy would justify the conclusion that upon failure of
theland.Insuchevent,aforcedleaseiscreated the builder to pay the value of the land, when
and the court shall fix the terms thereof in case such is demanded by the landowner, the land
the parties disagree thereon (Depra v. Dumalo, owner becomes automatically the owner of the
No.L57348,May16,1985). improvementunderArt.445.
Q: What is the rule when land owner sells the Q: The Church, despite knowledge that its
landtoa3rdpersonwhoisinbadfaith? intended contract of sale with the National
Housing Autority had not been perfected,
A: Builder must go against the 3rd person but if proceeded to introduce improvements on the
thelatterhaspaidthelandowner,acaseagainst disputed land. On the other hand, NHA
such land owner may still be filed by the builder knowinglygrantedtheChurchtemporaryuseof
rd rd
andthe3 personmayfilea3 partycomplaint the subject properties and did not prevent the
againstlandowner. Churchfrommakingimprovementsthereon.Did
theChurchandNHAactinbadfaith?
Q: Does the land owner have the right of
removalordemolition? A: Yes. The Church and the NHA, both acted in
bad faith, hence, they shall be treated as if they
A:
were both in good faith. (National Housing
GR:No.
Authority v. Grace Baptist Church, G.R. No.

156437,Mar.1,2004)
XPN:Optionexercisedwascompulsory
sellingandbuilderfailedtopay. USUFRUCTUARY

Q:Whatistherecourselefttothepartieswhere
thebuilderfailstopaythevalueoftheland? Q: What are the rights of the usufruct over
improvements he introduced on the property
A: While the Civil Code is silent on this point, heldinusufruct?
guidancemaybehadfromthesedecisions:
A:
1. InMirandav.Fadullon,G.R.No.L8220,
Oct. 29, 1955, the builder might be GR: The usufructuary is not entitled to
madetopayrentalonly,leavethingsas indemnityfortheexpenseshehadincurredin
they are, and assume the relation of themakingoftheimprovements.
lessorandlessee;
XPN:Hemayremovetheimprovementseven
against the will of the owner. Provided, that
2. InIgnaciov.Hilario,G.R.L175,April30,
nodamagewouldbecausedtotheproperty.
1946, owner of the land may have the
(Art.579,NCC)
improvementremoved;or

Note: The usufructuary may introduce useful or
3. In Bernardo v. Bataclan, G.R. No. L luxurious improvements but is prohibited from
44606,Nov.28,1938,thelandandthe alteringtheformandsubstanceoftheproperty
improvement may be sold in a public
98
CIVILLAWTEAM:

PROPERTY
Note:Iftheusufructuaryhasnotchosentoremove A: The rule does not apply to manmade or

the improvements, he may not be compelled to do artificial accretions to lands that adjoin canals or
so(PinedaProperty,p.329,1999ed) esterosorartificialdrainagesystem(Ronquillovs.
CA,G.R.No43346,Mar.20,1991).
Q:Whatiftheimprovementscannotberemoved
withoutcausingdamagetotheproperty? Q:Whatifthedepositsaccumulate,notthrough
the effects of the current of the water, but
becauseoftheconstructionsmadebytheowner
A: The usufructuary can setoff the value of the
purely for defensive purposes against the
improvementsagainsttheamountofthedamage
damagingactionofthewater?
hehadcausedtotheproperty.(Art.580,NCC)
A: The deposits are still deemed to be alluvion
3.LANDADJOININGRIVERBANKS andwillbelongtotheriparianowner.

A.ALLUVION Q: What if the deposit is brought about by sea
water?
Q:Whatisalluviumoralluvion?
A: It belongs to the State and forms part of the
A:Itisthegradualdepositofsedimentbynatural publicdomain.
actionofacurrentoffreshwater(notseawater),
Q:Mustalluvialdepositsberegistered?
the original identity of the deposit being lost.
Where is by sea water, it belongs to the State.
A: Yes, though automatically it is owned by the
(Government of Philippine Islands v. Cabangis,
riparianowner.(HeirsofNavarrov.IAC,G.R.No.
G.R.No.L28379,Mar.27,1929)
68166,Feb.12,1997)
Note:Art.457statesTotheownersofthelands
adjoining the banks of the rivers belong the Q:Whatiftheriparianownerfailstoregisterthe
accretion which they gradually receive from the depositswithintheprescriptiveperiod?
effectsofthecurrentofthewaters.
A:Failuretoregisterthealluvialdepositacquired
Q:Distinguishaccretionfromalluvium? byaccretionforaperiodof50yearssubjectssaid
accretiontoacquisitionthruprescriptionbythird
A: Accretion is the process whereby the soil is
persons.(Reynantev.CA,G.R.No.95907,Apr.8,
depositedwhilealluviumisthesoildeposited.
1992)
Q:Whataretherequisitesofalluvium?
Note:RegistrationundertheTorrensSystemdoes
not protect the riparian owner against the
A:GMA
diminution of the area of his registered land
1. DepositisGradualandimperceptible through gradual changes in the course of an
2. Madethroughtheeffectsofthecurrent adjoiningstream
ofthewater
Q: What are the reasons for granting a riparian
3. The land where the accretion takes
ownertherighttoalluviondepositedbyariver?
place is Adjacent to the banks of the
river
A:
Q: What is the effect if all the requisites are 1.Tocompensatehimfor:

present?
a. dangeroflossthathesuffersdue
A:Theriparianownerisautomaticallyentitledto tothelocationofhisland
theaccretion.
b. fortheencumbrancesandother
Q: When does the alluvion start to become the easementsonhisland
propertyoftheriparianowner?
2 To promote the interests of agriculture
A:Fromthetimethatthedepositcreatedbythe asheisinthebestpositiontoutilizethe
current of water becomes manifest. (Heirs of accretion.
Navarrov.IAC,GR.No.68166,Feb.12,1997)

Q:Towhatdoestheruleonalluvionnotapply?
99

B.CHANGEINTHECOURSEOFRIVER ownership of it, provided he removes it within 2
3 years.
Q: What happens when a river changes its
course by natural causes and its bed is formed Q:Distinguishalluviumfromavulsion.
onaprivateestate?
A:
A: It becomes of public dominion whether it is ALLUVIUM AVULSION

navigableorfloatableornot.
Gradualand Suddenorabrupt
Q:Whataretherequisites? imperceptible process
A:NAPA Soilcannotbe Identifiableand

identified verifiable
1. There must be a Natural change in the
course of the waters of the river; Belongstotheowner Belongstotheowner
otherwise, the bed may be the subject ofthepropertyto fromwhosepropertyit
ofaStategrant(ReyesPuno,p.54) whichitisattached wasdetached
2. ThechangemustbeAbruptorsudden;
3. ThechangemustbePermanent; Detachmentfollowedby
Merelyanattachment
attachment
Note: the rule does not apply to temporary
overflowingoftheriver.
Q:Whataretherequisitesofavulsion?
4. There must be Abandonment by the
ownerofthebed. A:CAP
1. Transfer is caused by the Current of a
Note: Abandonment pertains to the decision river,creek,ortorrent.
not to bring back the river to the old bed. 2. TransferissuddenorAbrupt
(ReyesPuno,p.53)
3. The Portion of the land transported is
Q: What is the effect when the river bed is knownoridentifiable.
abandoned?
Q: What if land from one tenement is
A: Once the river bed has been abandoned, the transferredtoanotherbyforcesofnatureother
owners of the invaded land become owners of thantherivercurrent?
theabandonedbedtotheextentasprovidedby
Art.462.Nopositiveact isneededontheirpart, A: By analogy, it can still be considered as an
asitissubjecttheretoipsojurefromthemoment avulsion.
themodeofacquisitionbecomesevident.
Q: What is the rule on acquisition of titles over
Note: The rule on abandoned river bed does not anavulsion?
apply to cases where the river simply dries up
because there are no persons whose lands are A:
occupiedbythewatersoftheriver.
GR:Originalownerretainstitle.
C.AVULSION
XPNs: The owner must remove (not merely
Q:Whatisavulsion?
claim)thetransportedportionwithin2years
A:Itisthedepositofknown(identifiable)portion toretainownership,otherwise,thelandnot
of land detached from the property of another removed shall belong to the owner of the
whichisattachedtothepropertyofanotherasa landtowhichithasbeenadjudicatedincase
resultoftheeffectofthecurrentofariver,creek of:
ortorrent.
1. Abandonment;or
Note:Art.459statesthatWheneverthecurrentof 2. Expiration of 2 years, whether the
a river, creek, or torrent segregates from an estate failure to remove be voluntary or
onitsbanksaknownportionoflandandtransfersit involuntary,andirrespectiveofthe
to another estate, the owner of the land to which areaoftheportionknowntohave
the segregated portion belonged retains the beentransferred.
100
CIVILLAWTEAM:

PROPERTY
4.ISLANDS Dodongthusmayacquiresaidlandbyacquisitive
prescription. But here, Dodongs possession
Q:Whataretherulesonownershipwithregard cannot be considered to be in good faith, so 30
toformationofislands? years of possession is needed. (Jagualing v. CA,
G.R.No.94283,Mar.4,1991)
A:
Note:Thereisnoaccessionwhenislandsareformed
LOCATION OWNER by the branching of a river; the owner retains
ownershipoftheisolatedpieceofland.
Ifformedonthesea
C.BYOBJECT
W/interritorialwaters State
1.REALORIMMOVABLE
Outsideterritorial
Firstcountrytooccupy
waters Q: What are the categories of immovable
property?
Ifformedonlakesornavigable/floatablerivers
A:RealPropertyby:NIDA
State 1. Nature cannot be carried from place
toplace.
Ifformedonnonnavigable/floatablerivers
2. Incorporation those which are
Ownerofnearer attached to an immovable in a fixed
Nearerinmarginto
marginisthesole manner and considered as an integral
onebank
owner part thereof, irrespective of its
ownership.
Islanddivided
Ifequidistant
longitudinallyinhalves 3. Destination things placed in buildings
or on lands by the owner of the
immovable or his agent in such a
Q: Eduave is the owner of land forming part of manner that it reveals the intention to
anislandinanonnavigableriver.Saidlandwas attachthempermanentlythereto.
eroded due to a typhoon, destroying the bigger
portion thereof and improvements thereon. 4. Analogy classified by express
Due to the movements of the river deposits on provisionoflaw.
the part of the land that was not eroded, the
area was increased. Later, Eduave allowed IMMOVABLEBYNATURE&
Dodongtointroduceimprovementsthereonand
live there as a caretaker. However, Dodong BYINCORPORATION
however later denied Eduaves claim of
ownershipsothelatterfiledactiontoquiettitle Par.1,Art.415.Land,buildings,roadsand
overtheproperty.Whohasabetterrighttothe constructionsofallkindsadheredtothesoil.
land?
A: Eduave. Clearly, the land in question is an
island that appears in a nonfloatable and non Q:Arebarongbarongsimmovableproperty?
navigableriver,anditisnotdisputedthatEduave
is the owner of the parcel of land along the A: No. They are not permanent structures but
margin of the river and opposite the island. meresuperimpositionsonland.
ApplyingArt.465,theislandbelongstotheowner
of the parcel of land nearer the margin. More Q: Where buildings are sold to be demolished
accurately, because the island is longer than the immediately, are the buildings immovable or
property of Eduave, he is deemed ipso jure the movable?
owner of that portion which corresponds to the
length of his property along the margin of the A:Thesaleinvolvesmovableproperty.Whatare
river. If however, the riparian owner fails to reallysoldarethematerials.
assert his claim thereof, the same may yield to
the adverse possession of the third parties, as
indeed even accretion to land titled under the Q:Whatistheeffectofdemolitionofahouse?
Torrens system must itself still be registered.
101

A: Once a house is demolished, its character as 2. Real property by incorporation If they
an immovable ceases. This is because a house is have been planted thru cultivation or
classifiedasanimmovablepropertybyreasonof labor
its adherence to the soil on which it is built.
(Bicerra v. Teneza, G.R. No. L16218, Nov. 29, Note: The moment trees are detached or uprooted
1962) fromthelanditisconsideredaspersonalproperty.
However, in case of uprooted timber, they are still
Q:Mayabuildingbemortgagedapartfromthe notconsideredaspersonalpropertybecausetimber
landonwhichitwasbuilt? isanintegralpartofthetimberland.
A: While it is true that a mortgage of land IMMOVABLEBYINCORPORATION

necessarilyincludes,intheabsenceofstipulation
of the improvements thereon, buildings, still a Par.3,Art.415.Everythingattachedtoan
buildingbyitselfmaybemortgageapartfromthe immovableinafixedmanner,insuchawaythat
landonwhichithasbeenbuilt.Suchamortgage itcannotbeseparatedtherefromwithout
would still be a real estate mortgage for the breakingthematerialordeteriorationofthe
building would still be considered immovable object.
property even if dealt with separately and apart
from the land. (Yee v. Strong Machinery
Company,G.R.No.11658,Feb.15,1918)
Q:Whatisresvinta?
Q:Canabuildingerectedonalandbelongingto
anotherbemortgaged? A:Theseareimmovablebyincorporation,which
whenseparatedfromtheimmovable,theyregain
A: Yes. A valid real estate mortgage can be theirconditionasmovable?
constituted. Art. 415 of the New Civil Code
mentions buildings separate from land. This IMMOVABLEBYINCORPORATION&BY
meansthatthebuildingbyitselfisanimmovable DESTINATION
andmaybesubjectofaREM.(PrudentialBankv.
Panis,G.R.No.L50008,Aug.31,1987) Par.4,Art.415.Statutes,reliefs,paintingsorother
objectsforuseorornamentation,placedinbuildingsor
Q: Is the annotation or inscription of a deed of onlandsbytheowneroftheimmovableinsucha
sale of real property in a chattel mortgage mannerthatitrevealstheintentiontoattachthem
permanentlytothetenements.
registryconsideredaninscriptionintheregistry
ofrealproperty?

A:No.Byitsexpressterms,theChattelMortgage
Q:Whatdoyoumeanbyplacedbytheowner?
Law contemplates and makes provisions for
mortgages of personal property; and the sole A: The objects must be placed by the owner of
purpose and object of the chattel mortgage the immovable and not necessarily the owner of
registry is to provide for the registry of Chattel theobject.
mortgages,thatistosay,mortgagesofpersonal
property executed in the manner and form
prescribed in the statute. (Yee v. Strong
MachineryCo,G.R.No.L11658,Feb.15,1918)
Par.2,Art.415.Trees,plantsandgrowingfruits,
whiletheyareattachedtothelandorforman
integralpartofanimmovable.
Q:Aretreesimmovableormovable?
A:
1. Real property by nature if they are

spontaneousproductsofthesoil

102
CIVILLAWTEAM:

PROPERTY
Q:DistinguishPar.3fromPar.4. from the act of the owner in giving by contract a

permanent destination to the machinery. (Valdez v.
A: CentralAltagracia,225U.S.58,1912)
PAR.3 PAR.4 Q: How is the equipment of a transportation

businessclassified?
Cannotbeseparated Canbeseparatedfrom
fromtheimmovable theimmovablewithout A:Atransportationbusinessisnotcarriedonina
withoutbreakingor breakingor buildingoronaspecifiedland.Hence,equipment
deterioration deterioration. destinedonlytorepairorserviceatransportation
business may not be deemed real property, but
Mustbeplacedbythe personal property. (Mindanao Bus Co. v. City
ownerofthe Assessor and Treasurer, G.R. No. L17870, Sept.
Neednotbeplacedby 29,1962)
immovable,orbyhis
theowner
agentwhetherexpress
orimplied Note: Machines must be essential and principal
elementsintheindustryandmustdirectlymeetthe
Realpropertyby needsofsaidindustry.Itdoesnotincludemovables
Realpropertyby which are merely incidentals, without which the
incorporationand
incorporation business can still continue or carry on their
destination
functions.
Q: Are machineries bolted or cemented on real

property mortgaged considered an immovable
Par.5,Art.415.Machinery,receptacles,
property?
instrumentsorimplementsintendedbythe
ownerofthetenementforanindustryorworks A: No. The fact that machineries were bolted or
whichmaybecarriedoninabuildingorona cemented on real property mortgaged does not
pieceofland&whichtenddirectlytomeetthe make them ipso facto immovable under Art. 415
needsofthesaidindustryorworks. (3)and(5)asthepartiesintenthastobelooked
into.
Q:Canpartiestreatanimmovablepropertyby
Q: What are the requisites for machinery to be
natureasachattel?
consideredrealproperty?
A: Yes. Even if the properties appear to be
A:COTE
immovable by nature, nothing detracts the
parties from treating them as chattels to secure
1.The industry or work must be Carried
an obligation under the principle of estoppel.
oninabuildingoronapieceofland;
(Tsaiv.CA,G.R.No.120098,Oct.2,2001)
2. Themachinerymust:
a. Be placed by the Owner of the
Q:Whatistheeffectoftemporaryseparationof
tenementorhisagent;
movables from the immovables to which they
b. Tenddirectlytomeettheneedsof
areattached?
thesaidindustryorwork;and
c. Be Essential and principal to the A:2views
industry or work, and not merely
incidentalthereto. 1. They continue to be regarded as
immovables.
Q: Is machinery placed by a tenant or by a 2. Fact of separation determines the
usufructuaryconsideredrealproperty? conditionoftheobjectsthusrecovering
theirconditionasmovables.
A:No.Sinceitisplacedbyapersonhavingonlya
temporaryright,itdoesnotbecomeimmobilized.
Note: Where a tenant places the machinery under

theexpressprovisionofleasethatitshallbecomea
part of the land belonging to the owner upon the
termination of the lease without compensation to
thelessee,thetenantactsasanagentoftheowner
and the immobilization of the machineries arises
103

2.PERSONALORMOVABLE D.BYOWNER
Q:Whataremovableproperties? Q: How are properties classified according to

ownership?
A:SOFTSS
A:
1. Movables Susceptible of appropriation
whicharenotincludedinArt.415; 1. Public dominion property owned by
2. Real property which by any Special theState(oritspoliticalsubdivisions)in
provisionoflawconsidersaspersonalty its public or sovereign capacity and
e.g. growing crops under the Chattel intendedforpublicuse.
MortgageLaw.
3. Forces of nature which are brought 2. Privateownershippropertyownedby:

underthecontrolofscience
e.g. electricity generated by electric
powers, solar light for batteries a. Private persons, either individually
power. orcollectively;and
b. The State in its private capacity
4. In general, all things which can be (patrimonialproperty).
Transported from place to place c. TheLGUs:
withoutimpairmentoftherealproperty i. Property for public use
towhichtheyarefixed; roads, streets, squares,
5. Obligations and actions which have for fountains, public waters,
their object movables or demandable promenadesandpublicworks
sums;and for public service paid for by
6. Shares of stock of agricultural, theLGUs.
commercial and industrial entities, ii. Patrimonial Property all
although they have real estate. (Art. otherpropertiespossessedby
416,NCC) LGUs without prejudice to
speciallaws.(Art.419,NCC)

Q: State the tests to determine whether a 1.PUBLICDOMINION
propertyisamovableproperty.
Q: What are the kinds of property of public
A:MES dominion?
1. Test of Exclusion everything not A:Propertieswhichare:USD

includedinArt.415.
Note:E.g.shipsorvesselsorinterestin 1. ForpublicUse;
abusiness. 2. Intended for public Service and not for
publicuse;and
3. For the Development of the national
wealth.(Art.420,NCC)
2. ByreasonofaSpeciallawimmovable
bynaturebutmovableforthepurpose
ofthespeciallaw. Q: What are the characteristics of properties of
Note: e.g. Growing crops for purposes publicdominion?
oftheChattelMortgageLaw.
A:ULEPROB
3. Test of Mobility if the property is
capable of being carried from place to 1. In general, they can be Used by
placewithoutinjuringtherealproperty everybody;
to which it may in the mean time be 2. CannotbeLevieduponbyexecutionor
attached. attachment;
3. MayEitherberealorpersonalproperty;
4. CannotbeacquiredbyPrescription;

104
CIVILLAWTEAM:

PROPERTY
5. Cannot be Registered under Land Q:Arealiensprohibitedtoprivatelyownlands?

Registration Law and be the subject of
TorrensTitle; A:Yes.Alienshavenorighttoacquireanypublic
6. Outsidethecommerceofmancannot or private agriculture, commercial or residential
bealienatedorleasedorbesubjectof lands(exceptbyhereditarysuccession).(Krivenko
anycontract; v.RegisterorDeeds)
7. Cannot be Burdened by voluntary
easement. Note:Thesameruleappliestoaforeigncorporation
evenifitisareligiousnonstockcorporation.
Q:Whohastheauthoritytoclassifyorreclassify
publiclands? Q: What is the patrimonial property of the
State?
A: As provided in the Public Land Act, the
classification or reclassification of public lands A: It is the property not devoted to public use,
into alienable or disposable, mineral or forest publicservice,orthedevelopmentofthenational
lands is a prerogative of the executive wealth.Itisintendedratherfortheattainmentof
department of the government and not of the the economic ends of the State, that is, for
courts. subsistence.ItisownedbytheStateinitsprivate
orproprietarycapacity.
Q:Canpropertyofpublicdominionbeconverted
Note:ItmaybedisposedofbytheStateinthesame
topatrimonialproperty?
mannerthatprivateindividualsdisposeoftheirown
property subject, however, to administrative laws
A: Yes, through a formal declaration by the
andregulations
executive or legislative body that the property is
no longer needed for public use or for public Note: It may be subject to prescription (Art. 1113)
service. and it can be the object of ordinary contracts or
agreements.(PinedaProperty,p.28,1999ed)
Q:Maypublicstreetsorthoroughfaresbeleased
orlicensedtomarketstallholdersbyvirtueofa E.BYNATURE
cityordinanceorresolutionoftheMetroManila
Commission? Q: How are properties classified according to
consumability?
A: No. The right of the public to use the city
streets may not be bargained away through A:
contract.Hence,theagreementbetweenthecity
government and stall holders is contrary to law 1. Consumable property that which
andthereforevoid. cannot be used according to its nature
withoutbeingconsumedorbeingeaten
orusedup.
Q: Do LGUs have the power to withdraw a i.e.Aglassofwine

publicstreetfrompublicuse?
2. NonConsumable property that which
A: LGU cannot withdraw a public street from can be used according to its nature
public use, unless it has been granted such withoutbeingconsumedorbeingeaten
authoritybylaw.(Dacanayv.AsistioJr,,G.R.No. orusedup.
93654,May6,1992) i.e. Eyeglasses (Art. 418, Pineda
Property,p.21.1999ed)
2.PRIVATEOWNERSHIP
Q: How are properties classified according to
Q: What are properties in private ownership of susceptibilitytosubstitution?
privatepersonsorentities?
A:
A:AllpropertiesnotbelongingtotheStateorto
its political subdivision are properties of private 1. Fungiblepropertythatpropertywhich
ownership pertaining to private persons, either belongstoacommongenuspermitting
individuallyorcollectively. itssubstitution.
i.e.grainsofsugarorsalt,oil,vinegar
105

2. Non fungible property that property 4. Independent other rights are not
which is specified and not subject to necessaryforitsexistence.
substitution.
i.e. a specific house at a specific 5. Perpetual ownership lasts as long as
address. the thing exists. It cannot be
extinguished by non user but only by
Note: As to whether a property is fungible or non adversepossession.
fungible is determined by the agreement of the
parties and not on the consumability of the thing. 1.BUNDLEOFRIGHTSPERSONALORMOVABLE
(PinedaProperty,p.22,1999ed)
A.JUSUTENDI,FRUENDI,ABUTENDI,
III.OWNERSHIP VINDICANDI,DISPODENDI,POSSIDENDI

A.RIGHTSINGENERAL Q:Whataretheattributesofownership?

Q:Whatisownership? A:

A: The juridical relation of a person over a thing 1. Righttoenjoy (jusutendi)
by virtue of which said person has the exclusive 2. Righttothefruits (jusfruendi)
powerorauthoritytoreceiveallthebenefitsand 3. Righttoabuse (jusabutendi)
advantages arising from said thing, save those 4. Righttodispose (jusdispodendi)
restricted by law or the recognized rights of 5. Righttorecover (jusvindicandi)
others.
REMEDIESTORECOVERPOSSESSION
Q:Whatarethekindsofownership?
1.ACTIONSTORECOVEROWNERSHIPAND
A:FNSC POSSESSIONOFREALPROPERTY
1. Full ownership includes all the rights
ofanowner; Q: What are the legal remedies to recover
Note:Nakedownership+Usufruct possessionofonesproperty?

2. Naked ownership ownership where A:
the rights to the use and to the fruits 1. Personalpropertyreplevin
havebeendenied; 2. Realproperty
Note:FullownershipUsufruct a. AccionInterdictal
i. ForcibleEntry
3. Soleownershipownershipisvestedin ii. Unlawfuldetainer
onlyoneperson; b. AccionPubliciana
c. AccionReinvindicatoria
4. Coownershipownershipisvestedin2
ormorepersons. A.DISTINCTIONSBETWEENACCION
Q:Whatarethecharacteristicsofownership? REIVINDICATORIA,ACCIONPUBLICIANA,ACCION
A: INTERDICTAL
1. Elastic power/s may be reduced and
thereafter automatically recovered ACCIONINTERDICTAL
upon the cessation of the limitingq;
rights. Q:Whatisaccioninterdictal?

2. General the right to make use of all A: A summary action to recover physical or
the possibilities or utility of the thing material possession only and must be brought
owned, except those attached to other withinoneyearfromthetimethecauseofaction
realrightsexistingthereon. arises.

3. Exclusive there can only be one 1. ForcibleEntry
ownershipoverathingatatime.There 2. Unlawfuldetainer
may be two or more owners but only
oneownership.

106
CIVILLAWTEAM:

PROPERTY
leased from Alava. Jaimes possession was in

ACCIONPUBLICIANA behalfofhismother,andnotinhisownright.
Q:Whatisaccionpubliciana? Q: What is the effect of nonregistration of the

contractoflease?
A:Ordinarycivilproceedingtorecoverthebetter
right of possession, except in cases of forcible A:Althoughtheleasecontractwasnotfiledwith
entry and unlawful detainer. What is involved the Register of Deeds, nevertheless, Rudy was
hereisnotpossessiondefactobutpossessionde bound by the terms and conditions of said
jure. contract.Thelease,ineffectbecameapartofthe
contract of sale. However, Rudy had no cause of
ACCIONREINVINDICATORIA action for unlawful detainer against Anita
because of the subsisting contract of lease;
Q:Whatisaccionreinvindicatoria? hence,hecouldnotfilethecomplaintagainsther.
(Laov.Lao,G.R.No.149599,May16,2000)
A: Action to recover real property based on
ownership.Here,theobjectistherecoveryofthe
dominionoverthepropertyasowner.
B.DISTINCTIONBETWEENFORCIBLEENTRYAND
Q: What are the requisites of accion
UNLAWFULDETAINER
reinvindicatoria?
A:Requisites: Q: Distinguish forcible entry from unlawful

detainer.
1. IdentityofProperty
2. Plaintiffstitletotheproperty A:
ForcibleEntry UnlawfulDetainer
Note: Where the facts averred in the complaint
reveals that the action is neither one of forcible
Astowhenpossessionbecameunlawful
entrynorunlawfuldetainerbutessentiallyinvolvesa
boundarydispute,thesamemustberesolvedinan
accion reinvindicatoria (Sarmiento v. CA, G.R. No. Possessionisinceptively
116192,Nov.16,1995). lawful but becomes
illegal from the time
Q:AcontractofleaseexecutedbyAlava(lessor) defendant unlawfully
and Anita Lao (lessee) was not registered with withholds possession
the Register of Deeds. Aside from Anita, Rudy after the expiration or
Lao also leased a portion of the same property Possession of the termination of his right
whereheputuphisbusiness.Atthattime,Rudy defendant is unlawful thereto.
knew that Anita and her husband were the from the beginning as
owners of the said building. He also knew that he acquires possession
shehadleasedthatportionoftheproperty,and by force, intimidation,
that Jaime Lao, their son, managed and strategy, threat or Note: The question of
maintainedthebuilding,aswellasthebusiness stealth(FISTS). possession is primordial,
while the issue of
thereon. Rudy eventually purchased the entire
ownership is generally
propertyfromAlava.Rudythenfiledacomplaint
unessential in unlawful
forunlawfuldetaineragainstJaimeallegingthat
detainer.(RosaRicaSales
thelatterhadoccupiedaportionofhisproperty Center v. Sps. Ong, G.R.
without any lease agreement and without 132197,Aug.16,2005)
payinganyrentals,andprayedthatanorderbe
rendereddirectingJaimetovacatethepremises.
Astonecessityofdemand
Shouldthecomplaintbedismissed?
A: Yes. The records in this case show that the No previous demand Demandisjurisdictional
respondent has been in possession of the for the defendant to if the ground is non
property in question, not by mere tolerance or vacateisnecessary. payment of rentals or
generosity of Rudy, but as the manager of his failure to comply with
mother, who conducted her business in the theleasecontract.
buildingwhichstoodonaportionoftheproperty
107

Astonecessityofproofofpriorphysical
possession

Plaintiff must prove Plaintiff need not have

that he was in prior been in prior physical
physical possession of possession.
the premises until he 3. REQUISITESFORRECOVERYOF
was deprived thereof PROPERTY
bythedefendant.
Note: The fact that Q:Whataretherequisitesinanactionto
petitioners are in recoverproperty?
possession of the lot
does not automatically
entitlethemtoremainin A:
possession. (Ganilla v.
CA, G.R. No. 150755, 1. Clearlyidentifythelandheisclaimingin
June28,2005) accordancewiththetitle/sonwhichhe
baseshisrightofownership;and
Astowhen1yearperiodiscountedfrom 2. Provethathehasabettertitlethanthe
defendant
1 year period is 1yearperiodiscounted
generally counted from from the date of last Note: Plaintiffs title must be founded on positive
thedateofactualentry demandorlastletterof right or title and not merely on the lack or
oftheland. demand. inefficiencyofthedefendantstitle.Inotherwords,
heshallnotbepermittedtorelyuponthedefectsof
the defendants title (Art. 434, Pineda Property, p.
59,1999ed)
2.ACTIONSFORRECOVERYOFPOSSESSIONOF
MOVABLEPROPERTY
Q:Whyis theplaintiffnotallowedtorelyonthe
weaknessofdefendantstitle?
REPLEVIN
Q:Whatisreplevin? A:
A:Itistheremedywhenthecomplaintpraysfor 1. Possibility that neither the plaintiff nor

the recovery of the possession of personal the defendant is the true owner of the
property. property. In which case, the defendant
whoisinpossessionwillbepreferred.
Q:Mayapropertyincustodialegisbesubjectof 2. Oneinpossessionispresumedtobethe
areplevinsuit? owner and he cannot be obliged to
showorproveabettertitle
A: No. A property validly deposited in custodia 3. Possessorintheconceptofanowneris
legiscannotbesubjectofareplevinsuit.(Calubv. presumed to be in good faith and he
CA,G.R.No.115634,Apr.27,2000) cannotbeexpectedtobecarryingevery
now and then his proofs of ownership
overtheproperty
4. Hewhoreliesontheexistenceofafact,
should prove that fact. If he cannot
prove, the defendant does not have to

prove.(PinedaProperty,p.59,1999ed)

108
CIVILLAWTEAM:

PROPERTY
2.DISTINCTIONBETWEENREALANDPERSONALRIGHTS
Q:Distinguishrealfrompersonalrights
A:
RealRight PersonalRight
Creation
Createdbytitlealonesavewhentitleisalsothe
madeasinsuccession.Itisnotdirectlycreatedover
Createdbybothtitleandmodedirectlyoverathing
athingbutisexercisedthroughanotheragainst
whomtheactionistobebrought.
Object
Generallycorporealortangible.Objectisspecific Incorporealorintangible.Objectcoversallthe
prorpertyorthing presentandfuturepropertyofthedebtor(Art.2236)
Subjects
(a) Onedefiniteactivesubject(e.g.owner)
(b) Oneindefinitepassivesubjectwhichisthe
wholeworld (a) Anactivesubject(creditor)
(b) Adefinitepassivesubject(debtor)
Rightofpursuitisthereforeavailable.Real
rightfollowsitsobjectinthehandsofany
possessor
Enforceability
Enforceableonlyagainsttheoriginaldebtororhis
Enforceableagainstthewholeworld
transfereechargedwithnoticeofthepersonalrights
Limit
Limitedbyusefulness,valueorproductivityofthe
Nosuchlimitation
thing
Extinguishment
Notsoextinguished.Claimfordamagesmaystillbe
Extinguishedbylossordestructionofthething
pursuedincaseoflossordestructionofthething

109

B.MODESOFACQUIRINGOWNERSHIP IV.ACCESSION

Q:Whatarethemodesofacquiringownership? A.RIGHTTOHIDDENTREASURES

SeeII.Classification;A.HiddenTreasuresp.89
A:

B.GENERALRULES
1. Originalarethosewhichdonotarise
ordependuponanypreexistingright 1.FORIMMOVABLES
ortitleofanotherperson
ACCESSIONDISCRETA
i.e.Occupation,IntellectualCreation,
AcquisitivePrescription Q:Whatisaccessiondiscreta?

2. Derivativearethosewhichariseor A:Itistherightpertainingtotheownerofathing
dependuponapreexistingor overeverythingproducedthereby.
precedingrightortitleofanother
person Q:Whataretherequisitesofaccessiondiscreta?

A:
i.e.Law,Donation,Successionmortis 1. Increaseoradditiontotheoriginalthing
causa,tradition(delivery) 2. Atrepeatedintervals
3. Byinherentforces
C.LIMITATIONS
Q:Whatarethekindsoffruits?
Q: What are the limitations on the right of
ownership? A:NIC
1. Natural
A:Thoseimposedbythe:CCSLOG a. Spontaneousproductsofthesoil;
b. Theyoungand
1. Stateintheexerciseof: c. Other products of animals,
a. Poweroftaxation whether brought about by
b. Policepower scientificmeansornot.
c. Powerofeminentdomain 2. Industrial produced by lands of any
2. Law kindthrough:
a. Legaleasementsand a. Cultivationor
b. The requirement of legitime in b. Labor
succession; 3. Civilfruits
3. Ownerhimself a. Derived from the use of property
a. Voluntaryeasement or
b. Mortgage b. Income from the property itself.
c. Pledge They consist of rents of buildings
d. Lease; and the prices of leases of lands.
4. Grantorofthepropertyonthegrantee, (Art.442,NCC)
eitherby:
a. Contract Q:Towhomdothefruitsbelong?
b. Donationor
c. Will; A:
5. Those arising from Conflicts of private GR:Totheowneroftheland.(Art.441,NCC)
rights
a. Those which take place in XPNS:Ifthethingis:[PULPA]
accessioncontinua; 1. In Possession of a possessor in good
6. Constitution faith (Art 546, NCC); before the
a. Prohibition against the acquisition possessionislegallyinterrupted.
ofprivatelandsbyaliens.
2. SubjecttoaUsufruct(Art.566,NCC)
3. Leaseofruralland
110 CIVILLAWTEAM:

PROPERTY
4. Pledged (Art. 1680 and Art. 2102, par. accessory would result in substantial
7, NCC); pledge is entitled to the fruits Damagetoeitherordiminishitsvalue.
buthastheobligationtocompensateor 4. To the Owner of the thing belongs the
setoff what he receives with those extensionorincreasestosuchthing.
whichareowingtohim. 5. Bad faith of one party Neutralizes the
badfaithoftheothersothattheyshall
5. In possession of an Antichretic creditor beconsideredingoodfaith.
(Art.2132,NCC) 6. He who is in Good faith may be held
responsiblebutnotpenalized.
Q: What does the maxim pratus sequitor 7. No one shall unjustly Enrich himself at
ventremmean? theexpenseofanother
A:Theoffspringfollowsthedam(mother).
ACCESSIONINDUSTRIAL
ACCESSIONCONTINUA
Q: What are the maxims in connection with
accessionindustrial?
Q:Whatisaccessioncontinua?
A:
A:Itistherightpertainingtotheownerofathing
overeverythingincorporatedorattachedthereto 1. Theaccessoryfollowstheprincipal.
eithernaturallyorartificially;byexternalforces.
2. Theaccessoryfollowsthenatureofthat
1. Withrespecttorealproperty[IN] towhichitrelates.
a. Accession Industrial (building,
plantingorsowing) 3. Whatisbuiltuponthelandgoeswithit;
b. Accession Natural (alluvium, or the land is the principal, and
avulsion, change of a river course, whatever is built on it becomes the
andformationofislands) accessory.

Note: In case of uprooted trees, the Q: What is the rule on ownership regarding
ownerretainsownershipifhemakes accessionindustrial?
a claim within 6 months. This does
not include trees which remain A:
planted on a known portion on land
carriedbytheforceofthewaters.In GR: The owner of the land is the owner of
this latter case, the trees are whatever is built, planted or sown on that land,
regarded as accessions of the land including the improvements or repairs made
through gradual changes in the thereon.
course of adjoiningstream. (Payatas
v. Tuazon, No. 30067, March 23, XPN:
1929)
1. Whenthedoerisingoodfaiththerule
2. Withrespecttopersonalproperty[SAC] ismodified.
a. Specification
b. Adjunctionorconjunction 2. Improvementsonthelandofoneofthe
c. Commixtionorconfusion spouses at the expense of the conjugal
partnership will belong to the
partnershiportothespousewhoowns
Q: What are the basic principles in accession thelanddependingonwhichofthetwo
continua? propertieshasahighervalue(Art.120,
FC)
A:BADONGE
Note:Ifthedoerisinbadfaith,heisentitledonlyto
1. He who is in Bad faith is liable for necessaryexpensesforthepreservationoftheland
damages.
2. Accessoryfollowstheprincipal

3. Union or incorporation must generally
be effected in such a manner that to
separate the principal from the
111

ACCESSIONNATURAL Q: What are the classes of adjunction or
conjunction?
Q: To whom does the offspring of animals
belong when the male and female belong to A:PEWWS
differentowners? 1. Painting(pintura)
2. Engraftment like setting a precious
A: Under the Partidas, the owner of the female stoneonagoldenring)
was considered also the owner of the young, 3. Writing(escritura)
unlessthereisacontrarycustomorspeculation. 4. Weaving
5. Soldering joining a piece of metal to
Thelegalpresumption,intheabsenceofproofto anothermetal)
thecontrary,isthatthecalf,aswellasitsmother a. Ferruminacion principal and
belongstotheownerofthelatter,bytherightof accessoryareofthesamemetal
accretion. (US v. Caballero, G.R. No. 8608, Sept. b. Plumbaturadifferentmetals(Art.
26,1913). 468,NCC)

Note: This is also in accord with the maxim Q: Who owns the movables subject to
pratussequitorventrem adjunction?
A: The owner of the principal by law becomes
2.FORMOVABLES owner of the resulting object and should
indemnify the owner of the accessories for the
A.ACCESSIONCONTINUA valuesthereof

Q: What is the basic principle of accession with Q: What are the tests to determine the
respecttomovableproperty? principal?
A:VVUM
A: Accession exists only if separation is not 1. ThatofgreaterValueIftwothingsare
feasible. Otherwise, separation may be ofequalvalue.(Art.468)
demanded. 2. ThatofgreaterVolumeIftwothings
areofequalvolume.(Art.468)
Q: Enumerate different kinds of accession 3. ThattowhichtheotherhasbeenUnited
continuaasregardmovables. as an ornament, or for its use or
perfection If it cannot be determined
A:AMS fromArt.467.(Art.467)
1.Adjunctionorconjunction 4. That which has greater Merits, utility
2.Mixture andvolumeifthings.
3.Specification

ADJUNCTION Q: How is ownership determined if the
adjunctioninvolvesthreeormorethings?
Q:Whatisadjunction?
A: The court should first distinguish the principal
A: The process by virtue of which two movable and apply Art. 466 in an equitable manner such
thingsbelongingtodifferentownersareunitedin that the principal acquires the accessory,
such a way that they form a single object and indemnifying the former owner thereof for its
each of the things united preserves its own value.
nature.(Art.466,NCC)
Q:Howaboutiftheadjunctioninvolvesthreeor
Q:Whatareitscharacteristics? morethings?

A:Thatthereare:2BUS A: The principal should first be distinguished,
1. 2movables; after, Art. 466 will be applied in an equitable
2. Belongingtodifferentowners; manner, such that the principal acquires the
3. Unitedformingasingleobject; accessory, indemnifying the former owner
4. Separationwouldimpairtheirnatureor thereofforitsvalue.
result in substantial injury to either
Note: Art. 466 states that Whenever two movable
thing.
things belonging to different owners are, without

bad faith, united in such a way that they form a
112 CIVILLAWTEAM:

PROPERTY
single object, the owner of the principal thing Q:Howistheindemnitymade?

acquires the accessory, indemnifying the former
ownerthereofforitsvalue. A:
1. Delivery of a thing equal in kind and
Q:Whenisseparationofthingsallowed? value;or
2. Payment of its price including the
A:WAB sentimentalvalue.(Article471,NCC)

1. SeparationWithoutinjury
MIXTURE
2. Accessory is more precious than the
principal Q:Whatisamixture?
3. OwneroftheprincipalactedinBad
faith.(Art.469,NCC) A: It is the combination of materials where the
respective identities of the component elements
Q:Whataretherulesasregardsrightsofowners arelosteithervoluntarilyorbychance.(Arts.472
overthethinginadjunction? 473,NCC)

A: Q:Whatarethekindsofmixtures?

OWNEROFTHE OWNEROFTHE A:COMCON
PRINCIPLE ACCESSORY 1.Commixtionmixtureofsolids
GoodFaith GoodFaith 2. Confusionliquids
1. Receivepaymentfor
valueofaccessory;OR Q:Whataretherulesregardingmixtures?
2. GR:Demand
1. Acquireaccessory separationprovided
A:
andpayownerof thethingsuffersno
theaccessoryforits injury 1st Owner 2ndOwner
value;OR XPN:Ifaccessoryismore ByWillofBothOwnersofbyAccident
2. Demandseparation preciousthan
providedthething principal,hemay GoodFaith GoodFaith
suffersnoinjury. demandseparationw/
1. Rightissubjecttostipulations;OR
orw/oinjurytothe
2. Rightisinproportiontothepart
thing.
belongingtohim(Coownershiparises)
GoodFaith BadFaith ByWillofOnly1Owner/ByChance
Acquireaccessoryw/o
Loseaccessoryandpay GoodFaith GoodFaith
payingtheownerof
damages.
accessoryandentitled Havethethingsseparatedprovidedthethingsuffers
todamages. noinjury;OR
BadFaith GoodFaith If cannot be separated w/o injury, acquire interest
1. Payvalueof onmixtureinproportiontohispart(coownership)
1. Receivepaymentand
accessoryandpay
damages;OR BadFaith
damages;OR GoodFaith
(causedthemixture)
2. Havethethings
separated,even
2. Haveaccessory 2nd owner will acquire
thoughthereis 1st owner will lose his part
separatedw/orw/o entire mixture and
injurytothe on the mixture and pay
injurytoprincipaland nd entitledtodamages
principalandpay damagestothe2 owner
receivedamages
damages.
BadFaith BadFaith GoodFaith
BadFaith
Sameasthoughbothactedingoodfaith (causedthemixture)
AsifbothactedinGF,
sincethe1stowneris
As if both acted in GF,
inBFandthe2nd
becausethe2ndownerinGF
ownerwhocausedthe
was the one who caused
mixtureinGFinaway
theratification,becausethe
ratifiestheBFof1st
1stowner
owner.
113

SPECIFICATION Q:Distinguishadjunction,mixtureand
specification.
Q:Whatisaspecification?
A:
A: It is the giving of new form to anothers
material thru application of labor. The material ADJUNCTION MIXTURE SPECIFICATION
undergoesatransformationorchangeofidentity.
Mayinvolve1
Q: What are the respective rights of the maker Involvesatleast Involvesat thing(ormore)
andtheownerofthematerialsinspecification? 2things least2things butformis
changed
A:
Accessory Accessory
Coownership
followsthe followsthe
OwnerofMaterials results
Maker(M) principal principal
(OM)
GoodFaith GoodFaith Thingsmixed
Thenewobject
orconfused
Appropriatethething Thingsjoined retainsor
mayeither
transformedandpaythe retaintheir preservesthe
retainorlose
ownerofthematerialsfor nature natureofthe
theirrespective
itsvalue originalobject
natures
XPN:Ifthematerialis
morepreciousthanthe
thingtransformed,the Receivepaymentfor B.RULESFORDETERMININGTHEPRINCIPALAND
ownerofthematerials valueofmaterials
ACCESSORY
hastheoptionto:
1. acquiretheworkand Q:Whatarethefactorstodeterminethe
indemnifythemaker principalandtheaccessory?
forhislabor;or
2. demandindemnityfor A:PrimaryFactors(Importance/purpose)
thematerial.
1. The thing which is incorporated to
GoodFaith GoodFaith another thing as an ornament is the
1. Receive payment for 1. Appropriate new accessory.Theotheristheprincipal
valueofhiswork;OR thing and pay the 2. Thethingtowhichisaddedtoorjoined
2. Appropriate the new maker for the work; toanotherfortheuseorperfectionof
thing and pay the OR thelatteristheaccessory.Theotheris
owner of materials for 2. Receivepaymentfor theprincipal
itsvalue. valueofmaterials
BadFaith GoodFaith SecondaryFactors
1. Losethenewthingand 1. Appropriatethenew 1. Theonewhichhasagreatervalueshall
pay damages to owner thingwithoutpaying beconsideredprincipal
ofthematerials;OR and receive 2. Iftheyhaveequalvalue,theonewith
damages;OR greatervolumeshallbeconsidered
principal(Art.467468.PinedaProperty,
2. Pay value of materials Note: Not available if the p.141142,1999ed)
and damages to owner new thing is more valuable
ofthematerials. thanmaterialsforscientific Note: In painting and sculpture, writings, printed
orartisticreasons
matter,engravingandlithographs,theboard,metal,

stone,canvas,paperorparchmentshallbedeemed
2. Receive payment for
the value of materials theaccessorything.(Art.468)
anddamages.

114 CIVILLAWTEAM:

PROPERTY
V.QUIETINGOFTITLE B.DISTINCTIONBETWEENQUIETINGTITLE.
ANDREMOVING/PREVENTINGACLOUD.
A.REQUIREMENT
Q:Differentiateanactiontoquiettitlefroman
Q:Whataretherequisitesforanactiontoquiet actiontoremovecloudontitle.
title?
A:LCDR A:
ACTIONTOREMOVE
1. PlaintiffmusthaveaLegalorequitable ACTIONTOQUIETTITLE
CLOUDONTITLE
titleto,orinterestintherealproperty
which is the subject matter of the Toputanendto
Fortheremovalofa
action; troublesomelitigation
possiblefoundationfor
2. TheremustbeCloudinsuchtitle; withrespecttothe
afuturehostileclaim
3. SuchcloudmustbeDuetosome propertyinvolved
a. Instrument; Aremedialaction Apreventiveaction
b. Record;
Involvingapresent Topreventafuture
c. Claim;
adverseclaim cloudonthetitle
d. Encumbrance;or
e. proceeding which is apparently
valid but is in truth invalid,
ineffective, voidable or C.PRESCRIPTIONORNONPRESCRIPTION
unenforceable,andisprejudicialto OFACTION
theplaintiffstitle;and
4. Plaintiffmust Q:Whataretheprescriptiveperiodsforbringing
a. Returntothedefendantall anactiontoquiettitle?
benefitshemayhavereceived A:
fromthelatter;or
b. reimbursehimforexpensesthat 1. Plaintiffinpossessionimprescriptible
mayhaveredoundedtohis 2. Plaintiff not in possession 10 years
benefit. (ordinary)or30years(extraordinary)

Note:Lachesisdefinedasthefailureorneglect,for
Q: What are the requisites for existence of a unreasonableandunexplainedlengthoftime,todo
cloud? that which by exercising due diligence, could or
shouldhavebeendoneearlier.
A:ATP
Thenegligenceoromissiontoassertarightwithina
1. ThereisanApparentlyvalidoreffective reasonabletime,warrantingapresumptionthatthe
instrument. partyentitledtoassertiteitherhasabandoneditor
2. ButsuchinstrumentisinTruth: declinedtoassertit.(TijamvSibonghanoy,L21450,
a. Invalid; Apr.15,1968)
b. ineffective;
c. voidable; Q: May an action filed within the period of
d. unenforceable; limitations,stillbebarred?
e. has been extinguished or
terminated; A: Yes, by laches. (See Arts. 1431, 1433, 1437,
f. has been barred by extinctive NCC)
prescription.
3. Such instrument may be Prejudicial to Q:Isanactiontoquiettitleimprescriptible?
thetitle.
A: Yes. Even though the Civil Code does not
include an action to quiet title as one of those

Q: What is the purpose of an action to remove
actions which are imprescriptible, the SC in this
cloudontitle?
caseheldthatsuchactionisimprescriptible.The
A: It is intended to procure the cancellation, or basis of the court is Art. 480. The
delivery of, release of an instrument, imprescriptibility of an action to quiet title is a
encumbrance, or claim constituting a claim on general principle from American jurisprudence.
plaintiffs title, and which may be used to injure (Buctonv.Gabar,G.R.No.L36359,Jan.31,1974)
orvexhimintheenjoymentofhistitle.
115

VI.COOWNERSHIP Q: What happens when a coowner sells the
wholepropertyashis?
A.CHARACTERISTICSOFCOOWNERSHIP
A:Thesalewillaffectonlyhisownsharebutnot
1.INGENERAL those of the other coowners who did not
consenttothesale.
Q:Whatiscoownership?
Note:Asaleoftheentirepropertybyonecoowner
A: It is a state where an undivided thing or right without the consent of the other coowners is not
belongs to two or more persons. (Art. 484). It is null and void but affects only his undivided share
andthetransfereegetsonlywhatwouldcorrespond
the right of common dominion which two or
tohisgrantorinthepartitionofthethingownedin
morepersonshaveinaspiritual(orideal)partof
common(Paulmitanvs.CA,GRNo.51584,Nov.25,
thethingwhichisnotphysicallydivided.
1992.)

Q:Cantherebeanagreementtokeepthething
Q:Whatarethecharacteristicsofcoownership?
undividedforacertainperiodoftime?
A:PRESLG
A: Yes. An agreement to keep the thing n
undivided for a certain period of time, not
1. Pluralityofsubjects/owners;
exceedingtenyears,shallbevalid.Thistermmay
2. There is no mutual Representation by
beextendedbyanewagreement.
thecoowners;
3. It exists for the common Enjoyment of
A donor or testator may prohibit partition for a
thecoowners;
periodwhichshallnotexceedtwentyyears.
4. There is a Single object which is not
materiallydivided; Neither shall there be any partition when it is
5. IthasnodistinctLegalpersonality prohibitedbylaw.
6. ItisGovernedfirstofallbythecontract
of the parties; otherwise, by special Q:Distinguishcoownershipfromjointtenancy
legal provisions, and in default of such
provisions, by the provisions of Title III A:
oftheNewCivilCodeoncoownership.
COOWNERSHIP JOINTOWNERSHIP
Tenancyincommon JointTenancy
Q:Whataretherequisitesofcoownership?
Astotheextentofownership
A:POL Eachcoowneristhe
Eachjointownerowns
ownerofhisownideal
thewholething.
1. Pluralityofowners; share.
2. Object, which is an undivided thing or Astodisposition
right; Jointownermaynot
3. Each coowners right must be Limited Eachcoownermay
disposeofhisown
only to his ideal share of the physical disposeofhisundivided
sharewithoutofallthe
whole sharewithouttheother
rest,becausehereally
coownersconsent.
hasnoidealshare.
Astotransferofsharesincaseofdeath
Note: By the very nature of coownership, a co
Upon the death of a
ownercannotpointtoanyspecificportionofthe Uponthedeathofaco
joint owner, his share
property owned in common as his own because owner, his ideal share
goes to the other joint
his share remains intangible and ideal (Spouses goestohisheirs.
ownersbyaccretion.
Avila et al vs. Spouses Barabat, GR. No. 141993,
May17,2006). Astominorityorlegaldisability
In case of a minor who The legal disability of
isacoowner,thisdoes one joint owner
notbenefittheothers. benefitstheothers.
Prescription
Prescription will
Prescriptionwillnotrun
continue to run among
amongthem.
coowners
116 CIVILLAWTEAM:

PROPERTY
Q:Distinguishcoownershipfrompartnership. Therealrightincondominiummaybeownership
A: or any other interest in real property recognized
by law, on property in the Civil Code and other
ORDINARY pertinentlaws.(Sec.2,RANo.4726)
COOWNERSHIP
PARTNERSHIP
Nolegalpersonality. Withlegalpersonality. (2)INTERESTINREALPROPERTY
Canbecreatedwithout Canbecreatedonlyby
theformalitiesofa contract,expressor Q:Whatisacondominium?
contract. implied.
Bycontractorbywill. Bycontractonly. A:Aninterestinrealpropertyconsistingof;
Agreementtoexistfor
Notermlimitissetby 1. a separate interest in a unit in a
morethan10yearsis
law. residential, industrial or commercial
void.
building;and
Nomutual Thereismutual
2. an undivided interest in common,
representation. representation.
directlyorindirectly,inthe
Notdissolvedbythe a. landonwhichitislocated;and
Dissolvedbydeathor
death/incapacityofa b. In other common areas of the
incapacityofapartner.
coowner. building.
Acoownercandispose
ofhissharew/othe Apartnercannotbe
(3)CONCEPTOFCOMMONAREAS,AMENDMENT
consentoftheothers substitutedw/othe
henceinawayaco consentoftheothers.
ownerissubstituted. Q:Whatarecommonareas?
Profitsmaybe
Profitsofacoowner A: The entire project excepting all units
stipulatedupon(for
dependonhis separatelygrantedorheldorreserved.
e.g.,profitsharing
proportionateshare.
agreements) Q:Whatisaproject?
Forcollective
Forprofit.
enjoyment. A:Theentireparcelofrealpropertydividedorto
Nopublicinstrumentis be divided in condominiums, including all
neededevenifthe Maybemadeinany structuresthereon.
objectoftheco formexceptwhenreal
ownershipisan propertyiscontributed. Q: Where the common areas in the
immovable. condominium are held by the owners of
separate units as coowners thereof, to whom
2.SPECIALRULES: cantheunitsthereinbeconveyed?

A.CONCEPTOFCONDOMINIUM A:

GR:OnlytoFilipinocitizens.
(1)CONDOMINIUMCORPORATION
XPN: To aliens in case of hereditary

Q:Whatisacondominiumcorporation?
succession.
A: A condominium may include, in addition, a

(4)DOCUMENTSTOCONSIDER
separate interest in other portions of such real
property. Title to the common areas, including
the land, or the appurtenant interests in such Q:Whataretherequirementsbeforeaproperty
areas, may be held by a corporation specially be considered divided or to be divided into
formed for the purpose (known as the condominiums?
condominium corporation) in which the
holdersofseparateinterestshallautomaticallybe A:Anenablingormasterdeedmustberecorded
members or shareholders, to the exclusion of intheRegisterofDeedsoftheprovinceorcityin
others,inproportiontotheappurtenantinterest whichthepropertyliesanddulyannotatedinthe
oftheirrespectiveunitsinthecommonareas. correspondingcertificateofthetitleoftheland,if
thelatterhasbeenpatentedorregisteredunder
either the Land Registration or Cadastral Acts.
(Sec.4,RA.No.4726)
117

Q: What must an enabling or master deed shallincludetheregisteredownersofcondominiums
contain? intheproject.Untilregistrationofarevocation,the
provisionsofRA.No.4726shallcontinuetoapplyto
suchproperty.(Sec.4,RA.No.4726)
A:
B.RIGHTSANDOBLIGATIONSOF
1. Description of the land on which the
CONDOMINIUMOWNER
buildingorbuildingsandimprovements

areoraretobelocated;
(1)CONTRIBUTIONS/DUES
2. Descriptionofthebuildingorbuildings,

stating the number of stories and
Q: What are the incidents of a condominium
basements, the number of units and
grant?
theiraccessories,ifany;
3. Description of the common areas and
facilities; A: Unless otherwise expressly provided in the
4. A statement of the exact nature of the enabling or master deed or the declaration of
interest acquired or to be acquired by restrictions,theincidentsofacondominiumgrant
thepurchaserintheseparateunitsand areasfollows:
in the common areas of the
condominiumproject.Wheretitletoor 1. The boundary of the unit granted are
the appurtenant interests in the the interior surfaces of the perimeter
common areas is or is to be held by a walls, floors, ceilings, windows and
condominium corporation, a statement doors thereof. The following are not
tothiseffectshallbeincluded; partoftheunitbearingwalls,columns,
5. Statement of the purposes for which floors, roofs, foundations and other
thebuildingorbuildingsandeachofthe common structural elements of the
units are intended or restricted as to building; lobbies, stairways, hallways,
use; and other areas of common use,
6. A certificate of the registered owner of elevator equipment and shafts, central
the property, if he is other than those heating, central refrigeration and
executingthemasterdeed,aswellasof central airconditioning equipment,
all registered holders of any lien or reservoirs, tanks, pumps and other
encumbrance on the property, that central services and facilities, pipes,
they consent to the registration of the ducts,flues,chutes,conduits,wiresand
deed; other utility installations, wherever
7. The following plans shall be appended located, except the outlets thereof
tothedeedasintegralpartsthereof: whenlocatedwithintheunit.
a. A survey plan of the land 2. There shall pass with the unit, as an
includedintheproject,unless appurtenance thereof, an exclusive
a survey plan of the same easement for the use of the air space
property had previously bee encompassed by the boundaries of the
filedinsaidoffice; unit as it exists at any particular time
b. A diagrammatic floor plan of andastheunitmaylawfullybealtered
thebuildingorbuildingsinthe or reconstructed from time to time.
project, in sufficient detail to Such easement shall be automatically
identify each unit, its relative terminated in any air space upon
location and approximate destruction of the unit as to render it
dimensions; untenantable.
8. Any reasonable restriction not contrary 3. Unless otherwise, provided, the
tolaw,moralsorpublicpolicyregarding common areas are held in common by
therightofanycondominiumownerto the holders of units, in equal shares,
alienateordisposeofhiscondominium. oneforeachunit.
4. A nonexclusive easement for ingress,
Note:Theenablingormasterdeedmaybeamended egress and support through the
or revoked upon registration of an instrument common areas is appurtenant to each
executed by the registered owner or owners of the unitandthecommonareasaresubject
propertyandconsentedtobyallregisteredholders tosucheasements.
of any lien or encumbrance on the land or building 5. Each condominium owner shall have
or portion thereof. The term registered owner theexclusiverighttopaint,repaint,tile,
118 CIVILLAWTEAM:

PROPERTY
wax, paper or otherwise refinish and aggregate, more than 70% interest in
decoratetheinnersurfacesofthewalls, the common areas are opposed to
ceilings, floors, windows and doors continuation of the condominium after
boundinghisownunit. suchexpropriationorcondemnation;or
6. Each condominium owner shall have
the exclusive right to mortgage, pledge 5. That the Conditions for such partition
or encumber his condominium and to bysalehavebeenmet.
havethesameappraisedindependently
of the other condominiums but any Q:WhencanaCorporationCondominiumbe
obligation incurred by such voluntarilydissolved?
condominiumownerispersonaltohim.
7. Each condominium owner has also the A:
absolute right to sell or dispose of his 1. By the affirmative vote of all the
condominium unless the master deed stockholders or members thereof at a
contains a requirement that the general or special meeting duly called
property be first offered to the for the purpose: Provided all the
condominium owners within a requirements of Section 62 of the
reasonable period of time before the CorporationLawarecompliedwith.
sameisofferedtooutsideparties.(Sec.
6,RANo.4726) 2. GR:Whentheenablingormasterdeed
isrevoked
C.GROUNDSFORPARTITIONOFCOMMON
AREAS,ORDISSOLUTIONOFTHE XPN:
CONDOMINIUM
1. That 3 years after damage or
Q:Canthecommonareasbedivided? destruction to the project which
renders a material part thereof
A:
unfitforitsusepriorthereto,ithas
not been rebuilt or repaired
GR:No,therecanbenojudicialpartition.
substantiallytoitspriorstate;or
XPNs: A partition shall be made only upon a 2. Thatdamageordestructiontothe
showingthat:COURE project has rendered 1/2 or more
of the units therein untenantable
1. That 3 yrs after damage to the project and that more than 50% of the
whichrenderedamaterialpartthereof members of the corporation, if
unfitforitsusepriorthereto,ithasnot nonstock, or the shareholders
been Repaired substantially to its state representingmorethan30%ofthe
priortosaiddamage;or capital stock entitled to vote, if a
stock corporation, are opposed to
2. That damage to the project has therepairorreconstructionofthe
rendered 1/2 or more of the units project,or
therein Untenantable and owners 3. That the project has been in
holding, in aggregate, more than 30% existence in excess of 50 years,
interest in the common areas are that it is obsolete and
opposedtotherepair;or uneconomical,andmorethan50%
of the members of the
3. That the project has been in existence corporation, if nonstock, or the
formorethan50yrs,isObsoleteandis stockholders representing more
uneconomic, and owners holding, in than 50% of the capital stock
aggregate, more than 50% interest in entitled to vote, if a stock
the common areas are opposed to the corporation, are opposed to the
repairormodernizing;or repairorrestorationorremodeling
ormodernizingoftheproject;or
4. That the project or a material part 4. Thattheprojectoramaterialpart
thereof has been condemned or thereof has been condemned or
Expropriated, the project is no longer expropriated and that the project
viable and owners holding, in is no longer viable, or that the
members holding in aggregate
119

more than 70% interest in the 2. ToShareinthebenefitsinproportionto
corporation, if nonstock, or the his interest, provided the charges are
stockholders representing more borneinthesameproportion.(Art.485,
than 70% of the capital stock NCC)
entitled to vote, if a stock
corporation, are opposed to the Note: A contrary stipulation is void. Hence,
continuation of the condominium benefits cannot be stipulated upon by the co
regime after expropriation or owners.
condemnation of a material
portionthereof;or 3. Each coowner may bring an Action for
5. That the conditions for such a ejectment.(Art.487,NCC)
dissolution have been met. (Secs.
Note:Actionforejectmentcovers;forcibleentry,
13&14,RA4726) unlawful detainer, accion publiciana, quieting of
title,accionreivindicatoria,replevin.
B.SOURCEOFCOOWNERSHIP
4. To Compel other coowners to
Q:Whatarethesourcesofcoownership? contributetoexpensesforpreservation
ofthething(Art.488,NCC)
A:LOSTCC
1. Law ex. easement of party walls 5. ToOpposetoanyactofalteration(Art.

(Article658,NCC) 491, NCC) even if beneficial to the co
owners.
2. Occupancy ex. when two persons
6. To Protect against acts of majority
gather forest products or catch a wild
animal which are prejudicial to the minority
(Art.492,par.3,NCC)

3. Succession ex. heirs of undivided
7.ToExerciselegalredemption.
propertybeforepartition
8. ToaskforPartition(Art.494,NCC)
4. Testamentary (or mortis causa) /
Donationintervivos EJECTMENT
i.e. Where the donor prohibits Q: Borromeo, a coowner of a parcel of land,

partition of the property for a allowed Resuena to reside in said land. After
certainperiodoftime sometime, Borromeo later demands that
Resuena should vacate the property, but the
5. Contract latter refused. May Borromeo file an ejectment
suitevenifheisamerecoownerofthelot?
6. byChanceorfortuitousevent
A: Yes. Art. 487 of the Civil Code which provides
Example:Hiddentreasure that anyone of the coowners may bring an
action in ejectment is a categorical and an
C.RIGHTSOFCOOWNERS unqualified authority in favor of Borromeo to
evict Resuena from the portion occupied.
Q:Whataretherightsofeachcoownerasto BorromeosactionforejectmentagainstResuena
thethingownedincommon? is deemed to be instituted for the benefit of all
coowners of the property. (Resuena v. CA, G.R.
A:USACOPEP No.128338,Mar.28,2005)
1. To Use the thing according to the Q: Does the filing of an ejectment suit require
purposeintendedprovidedthat: theconsentoftheothercoowners?
a. It is w/o prejudice to the interest A: No. Art.487 states that any one of the co
ofthecoownership;and ownersmaybringactionforejectment.Thelaw
does not require that consent of the coowners
b. W/opreventingtheuseofother must be first secured before bringing an action
coowners.(Art.486,NCC) forejectment.
120 CIVILLAWTEAM:

PROPERTY
Q: What if the case does not prosper, are the 2.ACTSOFALTERATION

othercoownersboundbythejudgment?
Q:Whatisanalteration?
A:
A: Alteration is a change which is more or less
GR:No. permanent, which changes the use of the thing
andwhichprejudicestheconditionofthethingor
XPN: They were also served with summons,
itsenjoymentbytheothers.(Paras,p.344)
evenasunwillingplaintiffs.
Q:Whatdoesalterationinclude?
Q:Cansuitforejectmentbebroughtbyoneco
owneragainstanothercoowner? A: It includes the act by virtue of which a co
ownerchangesthethingfromthestateinwhich
A: No, since the latter also has a right of
the others believe it should remain. It is not
possession;theonlyeffectoftheactionwillbeto
limited to material charges. (Viterbo v. Quinto,
obtainrecognitionofthecoownership.
35226R,Dec.19,1973)
1.DISTINCTIONBETWEENRIGHTTOPROPERTY Q:Distinguishactsofadministrationfromactsof
OWNEDINCOMMONANDFULLOWNERSHIP alteration.
OVERHIS/HERIDEALSHARE
A:
Q: Distinguish right to property owned in
common and full ownership over his/her ideal ACTSOF
ACTSOFALTERATION
share ADMINISTRATION
A: Acts,byvirtueofwhich,aco
a. Righttopropertyownedincommon Refertothe owner,inoppositiontothe
enjoyment, expressedortacitagreement
exploitation, ofallthecoowners,andin
Eachcoownerisgrantedtherighttousethe alterationofthe violationoftheirwill,changes
propertyownedincommonforthepurposefor thingwhichdonot thethingfromthestatein
whichitisintended. affectits whichtheothersbelieveit
substance,form, wouldremain,orwithdraws
Therearetworestrictionsintheenjoymentof orpurpose itfromtheusetowhichthey
thisright: believeitisintended
i. thecoownershipshallnotbeinjured; Transitoryin
Permanent
ii. theexerciseshallnotpreventtheother character
coownersfromusingtheproperty
Donotaffectthe Affectorrelatethesubstance
accordingtotheirownrights.
substanceorform oressenceofthething
b. Fullownershipoverhis/heridealshare Inrelationtothe
rightofaco
Acoownerhasfullownershipofhisshare owner,they Requirestheconsentofall
(undividedinterest)andthefruitsandbenefits requirethe coowners
arisingtherefrom.Beingthefullownerthereofhe consentofthe
mayalienate,assignormortgageit;hecanalso majority
substituteanotherpersonintheenjoymentofhis
Canbeexercised
share,exceptonlywhenpersonalrightsare Mustbeexercisedbytheco
bythecoowners
involved. ownersthemselves
throughothers
121

Q:Whatistheliabilityofacoownerwhomakes Q: What is the rule as regards to the right to
an alteration without the express or implied demandpartition?
consentoftheothers?
A:
A:Heshall:LDP GR:Everycoownerhastherighttodemand
partition.
1. Losewhathehasspent;
2. be obliged to Demolish the XPNs:EASPAUL
improvementsdone;and 1. When partition would render the thing
3. Pay for the loss and damages the Unserviceable;or
community property or other co
ownersmayhavesuffered. 2. WhenthethingisessentiallyIndivisible;

Q:Whatisconversion? 3. PartitionisprohibitedbyLawbyreason
A: It refers to the act of using or disposing of of their origin or juridical nature ex.
anotherspropertywithoutlawfulauthoritytodo partywallsandfences;
so in a manner different from that with which a
property is held by the trustees to whom the 4. WhenthecoownersAgreetokeepthe
ownerhadentrustedthesame.Itisnotnecessary propertyundividedforaperiodoftime
that the use for which the property is given be butnotmorethan10yrs;
directly to the advantage of the person
misappropriating or converting the property of 5. PartitionisProhibitedbythetransferor
another. (People v. Carballo, 17136CR, Nov. 17, (donor/testator)butnotmorethan20
1976) yrs;

3.RIGHTTOPARTITION Note: 10 years ordinary prescription, 30
yearsextraordinarypartition.

Q: What are the rights of coowners as to the
6. When a coowner possessed the
idealshareofeach? property as an Exclusive owner for a
period sufficient to acquire it through
A:FARTS
prescription.(AcquisitivePrescription)
1. EachhasFullownershipofhispartand
7. CoownersmayagreethatitbeAllotted
ofhisshareofthefruitsandbenefits; tooneofthemreimbursingtheothers;

2. RighttoAlienate,disposeorencumber; 8. Iftheycannotagree,maySellthething
anddistributetheproceeds.
3. RighttoRenouncepartofhisinterestto
reimburse necessary expenses incurred Q: May the right to ask for partition be waived
byanothercoowner; orrenouncedpermanently?

4. RighttoenterintoTransactionaffecting A:No,suchwaiverorrenunciationisvoid.
hisidealshare;

Q: Can prescription run in favor of or against a
Note: The transaction affects only his
coowner?
ideal share not that of the other co

owners.
A:

GR: As long as he expressly or impliedly
5. RighttoSubstituteanotherpersoninits
recognizesthecoownership,itcannot.
enjoyment,exceptwhenpersonalrights

areinvolved.
Reason:Possessionofacoownerislikethatof

Note:Personalrightsorjusinpersonamis atrusteeandshallnotberegardedasadverse
the power belonging to one person to totheothercoownersbutinfactisbeneficial
demand from another, as a definite to all of them. Acts considered adverse to
passivesubjectdebtor,thefulfillmentofa strangers may not be considered adverse
prestation to give, to do, or not to do. insofar as coowners are concerned. (Salvador
(Paras,p.773) v.CA,G.R.No.109910,Apr.5,1995)

122 CIVILLAWTEAM:

PROPERTY
XPN: Coowner's possession may be deemed willnotlieinfavorofPastor.(Salvadorv.CA,G.R.

adversetothecestuiquetrustortheotherco No.109910,Apr.5,1995)
owners provided the following elements must
concur: Q:Shouldcreditorsand/orassigneesbenotified
oftheproposedpartition?
1. Thathehasperformedunequivocalacts
of repudiation amounting to an ouster A:Thelawdoesnotrequirethatanotificationbe
of the cestui que trust or the other co givenbut:
owners;
1. If notice is given it is their duty to
2. That such positive acts of repudiation appear to concur /oppose, otherwise
have been made known to the cestui creditorsclaimsaredeemedwaived.
quetrustortheothercoowners;and
2. If no notice is given creditors and/or
3. That the evidence thereon must be assignees may still question the
clear and convincing. (Salvador v. CA, partitionmade.
G.R.No.109910,Apr.5,1995)
Q: Can a partition already executed or
Note:Prescriptionbeginstorunfromthe implementedbestillimpugned?
timeofrepudiation.
Exampleofactsofrepudiation:filingof A:
anactionto: GR:No.
1. Quiettitle;or
2. Recoveryofownership. XPN:
1. In case of fraud, regardless of
XPNtoXPN:Constructivetrustscanprescribe. notificationandopposition;
Express trust cannot prescribe as long as the
relationship between trustor and trustee is 2. Incaseofpartitionwasmadeovertheir
recognized.(Paras,p.362) objection even in absence of fraud
(Article497,NCC)
Q: The two lots owned by Alipio was inherited
by his 9 children, including Maria, upon his Q:Whatarerightsofcoownersarenotaffected
death. Pastor, Marias husband, filed a bypartition?
complaintforquietingoftitleandannulmentof
documents against the spouses Yabo, alleging A:MRSP
thatheownedatotalof8sharesofthesubject 1.Rightsof:
lots,havingpurchasedthesharesof7ofAlipio's a. Mortgage;
children and inherited the share of his wife, b. Servitude;
Maria, and that he occupied, cultivated, and c. any other Real rights existing
possessed continuously, openly, peacefully, and beforepartition.
exclusively the parcels of land. He prayed that
hebedeclaredtheabsoluteownerof8/9ofthe 2. Personal rights pertaining to third
lots. His coheirs then instituted an action to persons against the coownership (Art.
partition the lots. Did Pastor acquire by 499,NCC)
prescription the shares of his other coheirs or
coowners? Example:A,BandCwherecoownersofparcelof
land mortgaged to M. If A, B, and C should
A: No. The only act which may be deemed as physicallypartitiontheproperty,themortgagein
repudiation by Pastor of the coownership over Ms favor still covers all the three lots, which,
thelotsishisfilingofanactiontoquiettitle.The together, formerly constituted one single parcel.
period of prescription started to run only from If A alone had contracted an unsecured
this repudiation. However, this was tolled when obligation, he would of course be the only one
his coheirs, instituted an action for partition of responsible.(Paras,p.376)
thelots.Hence,theadversepossessionbyPastor
beingforonlyabout6monthswouldnotvestin
himexclusiveownershipofhiswife'sestate,and
absent acquisitive prescription of ownership,
lachesandprescriptionoftheactionforpartition
123

4.RIGHTTOCONTRIBUTIONSFOREXPENSES A: Expenses to improve or embellish the thing
shall be decided upon by the majority. (Art. 489,
Q: What are the expenses which the coowners NCC)
canbecompelledtocontribute?
Note: There is no majority unless the resolution is
A:Onlynecessaryexpenses.Usefulexpensesand approved by the coowners who represent the
controllinginterestintheobjectofthecoownership
thoseforpureluxuryarenotincluded.
(par.2Art.492,NCC)
Q: Differentiate necessary, useful, expense of
pureluxury. 1.WAIVER
A: Necessary expenses are those made for the Q:Mayacoowneroptnottocontributetothe

preservationofthething,orthosewithoutwhich expenses for the preservation of the property?
the thing would deteriorate or be lost, or those How?
that augment the income of the things upon A:
which are expended, or those incurred for GR: Yes, by renouncing his undivided
cultivation, production, upkeep, etc. (Mendoza v interestequaltotheamountofcontribution.
DeGuzman,52Phil.171) XPN: If the waiver or renunciation is
prejudicial to the coownership, otherwise
Useful expenses incurred for the preservation of he cannot exempt himself from the
the realty in order that it may produce the contribution(Art.488,NCC)
natural, industrial, and civil fruits it ordinarily Note: The value of the property at the time of the
produce.(Marcelinov,Miguel,53OG5650) renunciation will be the basis of the portion to be
renounced.
Ornamentalexpensesaddvaluetothethingonly
for a certain persons in view of their particular Q: Is the failure or refusal of a coowner to
whims, neither essential for preservation nor contribute pro rata to his share in expenses
usefultoeverybodyingeneral. tantamounttorenunciation?
Q: When may acts of preservation made in the A: No, there must be an express renunciation,
propertyofthecoowners? otherwiseheisrequiredtoreimbursetheothers
fortheexpensestheyincurred.
A: At the will of one of the coowners, but he
must, if practicable, first notify the others of the Q:Whatistheeffectofrenunciation?
necessityofsuchrepairs.
A:Itisineffectadacionenpagosincethereisa
Q: What are those acts which require the change in the object of the obligation (i.e. from
majorityconsentofthecoowners? sum of money to interest in the coownership).
Consequently, the consent of the other co
A:IME ownersisnecessary.
a. Management Note:Dacionenpagoisajuridicalconceptwhereby
b. Enjoyment a debtor pays off his obligations to the creditor by
c. Improvementorembellishment the conveyance of ownership of his property as an
accepted equivalent of performance or payment.
Q: What is the remedy in case the minority Theendresultmaybethesame,buttheconceptis
opposes the decision of the majority in co entirelydifferentfromthatofapurchase.(Damicog
ownership? vDesquitada,CV43611,Oct.3,1983)
A: Minority may appeal to the court against the Q: Can the renunciation be made without the
majoritys decision if the same is seriously consentofanyunpaidcreditor?
prejudicial.
A:No,foritisineffectanovationbysubstitution,
Q: Who shall decide on matters relating to itwillprejudicetherightsoftheunpaidcreditor.
expensesfortheimprovementorembellishment
ofthething? Note:Novationbysubstitutionisthesubstitutionof
thepersonofthedebtor.
124 CIVILLAWTEAM:

PROPERTY
6.RIGHTTOREDEMPTIONOFCOOWNERS Q: Villaner, upon death of his wife, sold the

SHARE conjugal property to Leonardo. Villaners 8
children, as coowners of the property, now
Q:Whosesharesmayacoownerredeem? claim that the sale does not bind them as they
didnot consent to suchundertaking. Is thesale
A:Thesharesofalloranyothercoownerifsold bindingonthechildren?
toathirdperson.
A: No. While a coowner has the right to freely
Q: What if two or more coowners want to sell and dispose of his undivided interest,
redeem? nevertheless, as a coowner, he cannot alienate
thesharesofhisothercoowners.Thedisposition
A: They may do so in proportion to the shares made by Villaner affects only his share pro
theyrespectivelyhave. indiviso, and the transferee gets only what
correspondstohisgrantor'sshareinthepartition
Q: What is the effect of redemption by a co ofthepropertyownedincommon.Theproperty
owner? being conjugal, Villaner's interest in it is the
undivided onehalf portion. When his wife died,
A: Redemption of the whole property by a co her rights to the other half was vested to her
owner does not vest in him sole ownership over heirs including Villaner and their 8 legitimate
said property. Redemption within the period children.
prescribed by law will inure to the benefit of all
coowners. Hence, it will not put an end to Q:Whatisthestatusofthesale?Isitvalid,void
existing coownership (Mariano v. CA, GR. No. orvoidable?
101522,May28,1993).
A:Asaleoftheentirepropertybyonecoowner
Q: Fortunato, his siblings and mother are co without the consent of the other coowners is
owners of a parcel of land. Lumayno purchased valid. However, it will only affect the interest or
the shares of Fortunatos coowners. When share in the undivided property of the coowner
Fortunatodied,hiswifeclaimedthatshehasthe whosoldthesame.
right of redemption over the shares previously
soldbythecoownerstoLumaynobecausethey Q:Whatistheremedyoftheotherheirsinthis
have not formally subdivided the property. case?
However, although the lot had not yet been
formallysubdivided,still,theparticularportions A: The proper action in cases like this is not for
belonging to the coowners had already been the nullification of the sale or the recovery of
ascertained. In fact the coowners took possession of the thing owned in common from
possession of their respective parts. Can thethirdpersonwhosubstitutedthecoowneror
Fortunatos wife be entitled to right of legal coowners who alienated their shares, but the
redemption? division of the common property or that is, an
action for partition under Rule 69 of the Revised
A: No. She is no longer entitled to the right of Rules of Court. (Acabal v. Acabal, G.R. No.
legal redemption under Art. 1632 of the Civil 148376,Mar.31,2005)
Code.Aslegalredemptionisintendedtominimize
coownership, once the property is subdivided D.TERMINATION/EXTINGUISHMENT
and distributed among the coowners the
community ceases to exist and there is no more
Q:Howiscoownershipextinguished?
reason to sustain any right of legal redemption.

The exercise of this right presupposes the
A:CALSTEP
existence of a coownership at the time the
1. Consolidation or merger in one co
conveyanceismadebyacoownerandwhenitis
owner;
demanded by the other coowners. Even an oral
2. Acquisitive prescription in favor of a
agreement of partition is valid and binding upon
third person or a coowner who
theparties.(Vda.deApev.CA,G.R.No.133638,
repudiates;
Apr.15,2005)
3. Lossordestructionofthingcoowned;
4. Saleofthingcoowned;
5. Terminationofperiodagreedupon;
6. Expropriation;
7. JudicialorextrajudicialPartition.
125

1.EFFECTOFPARTITION VII.POSSESSION

Q:Whataretheeffectsofpartition? A.CHARACTERISTICS

Q:Whatispossession?
A:

1. It confers upon the coowner exclusive
A: Possession is the holding of a thing or the
title over the property adjudicated to
enjoymentofaright(Art.523)
him(Art.1091);

2. Possession of the coowner over the
Q:Whataretherequisitesofpossession?
property adjudicated to him shall be

deemedexclusivefortheperiodduring
A:PAP
which the copossession lasted (Art.
1. Possession in fact or holding or control
543,NCC).Inotherwords,itisdeemed
ofathingorright;
continuous. (Pineda Property, p. 206,
1999ed) 2. Animus possidendi or the deliberate
intentiontopossess;
2.RIGHTSAGAINSTINDIVIDUALCOOWNERSIN
CASEOFPARTITION 3. Possessionbyvirtueofonesownright
Q: What are the obligations of coowners upon Q: What are the degrees of possession?
partition? Distinguish.

A:NJJS
A:WARD
1. Mutual Accounting for benefits
received,fruitsandotherbenefits 1. Possession with No right or title
2. MutualReimbursementsforexpenses possessor knows that his possession is
3. Indemnity for Damages caused by wrongful,
reasonofnegligence/fraud
4. Reciprocal Warranty for defects of title e.g.Possessionofathieforausurperof
and quality of the portion assigned to land.
thecoowner(Art.500501,NCC)
2. With Juridical title possession
peaceably acquired and will not ripen
3.PARTITIONINCASECOOWNERSCANNOT
intofullownershipaslongasthereisno
AGREE
repudiationoftheconceptunderwhich
propertyisheld.
Q:Howispartitioneffected?
e,g. Possession of a tenant, depositary,
A: agent.
1. Byagreementbetweentheparties;or
2. Byjudicialproceedings(Art.496)
3. With Just title or title sufficient to

transfer ownership, but not from the
Q: What is the remedy in case the co owners
trueownerripenstofullownershipby
cannotagreeinthepartition?
thelapseoftime.
A: If realty is involved, an action for partition
(underRule69oftheRulesofCourt)againstthe e,g.Possessionofabuyerofapieceof
coownersmaybefiled.Incaseofpersonaltyand land from one who pretends to be the
actualpartitioncouldnotbemade,itmaybesold ownerthereof.
under the discretion of the court and the
proceeds be divided among the owners after 4. WithatitleinfeeSimplespringsfrom
deducting the necessary expenses (Pineda ownership; highest degree of
Property,p.198,1999ed) possession.

126 CIVILLAWTEAM:

PROPERTY
Q:Whataretheclassesofpossession? Q: Is it possible for a person who has been

declaredastheownerofacertainpropertynot
A:OVALOHGBC tobeentitledtoitspossession?
1. In ones Own name possessor claims A: Yes. Possession and ownership are distinct
thethingforhimself legal concepts. Ownership confers certain rights
2. Voluntarybyvirtueofanagreement totheowneramongwhicharetherighttoenjoy
3. In the name of Another held by the the thing owned and the right to exclude other
possessorforanother;agent,subjectto persons from possession thereof. On the other
authority and ratification; if not hand, possession is defined as the holding of a
authorized,negotiorumgestio thing or the enjoyment of a right. Literally, to
4. Legalbyvirtueoflaw; possessmeanstoactuallyandphysicallyoccupya
e.g. possession in behalf of thingwithorwithoutaright.Thusapersonmay
incapacitated be declared an owner but not entitled to
possession.(HeirsofRomanSorianov.CA,GRNo.
5. IntheConceptofanownerpossessor, 128177,August15,2001)
by his actions, is believed by others as
theowner,whetherheisingoodorbad Note: Possession is merely one of the attributes
faith ownership.(JusPossidendi)
6. In the concept of a Holder possessor
holds it merely to keep or enjoy it, the B.ACQUISITIONOFPOSSESSION
ownership pertaining to another; ex.
usufructuary
Q:Whatarethewaysofacquiringpossession?

A:FAMS
Note:Noneoftheseholdersmayasserta
claim of ownership for himself over the
thing but they may be considered as
1. By Material occupation/exercise of a
possessorsintheconceptofanowner,or right
underaclaimofownership,withrespect 2. BySubjectionofthething/righttoour
to the right they respectively exercise will
overthething. 3. ByproperActsandlegalFormalities
establishedforacquiringsuchright
7.
PossessioninGoodfaith (Art.531,NCC)
8.
PossessioninBadfaith
9.
Constructive possession does not Q:Whatifthepossessionisacquiredbya
meanthatamanhastohavehisfeeton stranger?
everysquaremeterofground.
A:Wherepossessionisacquirednotbyanagent
Q:Whatkindofpossessioncanserveastitle? or representative but by a stranger without
agency,possessionisnotacquireduntiltheactof
A:Possessionwithtitleinfeesimple. the agent or representative is ratified (Art. 532,
NCC).
Q:Differentiatepossessionandoccupation
Q: What are the acts which do not give rise to
A: possession?
POSSESSION OCCUPATION A:Possessionthrough:FATV

Applytoproperties Appliesonlyto
whetherwithorwithout propertywithoutan 1. Forceorintimidationaslongasthereis
anowner owner a possessor who objects thereto. (Art.
Possessiondoesnot Occupationconfers 536,NCC)
conferownership ownership
Therecanbeno
Therecanbepossession 2. Acts executed clandestinely and
occupationwithout
withoutownership withouttheknowledgeofthepossessor
ownership
whichmeansthat:
a.actsarenotpublic;and
b.unknowntotheownerorpossessor
127

3. Mere Tolerance by the owner or the realty must act in good faith in registering his
lawfulpossessor. deedofsale.Rosariospriorpurchaseoftheland
4. Acts executed by Violence. (Art 537, wasmadeingoodfaith;shewastheonlybuyerat
NCC) thattime.HergoodfaithdidnotceaseafterJose
toldhimofthesecondsaletoEmma.Becauseof
Q: What kind of possession can serve as a title that information, Rosario wanted an audience
foracquiringdominion? with Emma but was snubbed by the latter. In
ordertoprotectherright,Rosarioregisteredher
A: Only the possession acquired and enjoyed in adverse claim. Said recording is deemed to be in
theconceptofowner.(Art.540,NCC) good faith and emphasize Emmas bad faith.
(Carbonellv.CAG.R.No.L29972,Jan.26,1976)
C.EFFECTSOFPOSSESSION
Q: Is Emma entitled to the improvements she
1.POSSESSORINGOODFAITH introducedinthelot?

Q:Whenisapossessoringoodfaith? A: No. Emmas rights to the improvements she
introduced are governed by Arts. 546 and 547
A: When he is not aware that there exists in his (necessaryandusefulexpensemadebypossessor
title or mode of acquisition any flaw which in good faith). These provisions seem to imply
invalidatesit.(Art.526,NCC) that the possessor in bad faith has neither the
rightofretentionofusefulimprovementsnorthe
Q:Whendoespossessioningoodfaithcease? right to demand refund for useful expenses.
(Carbonellv.CAG.R.No.L29972,Jan.26,1976)
A: Possession in good faith ceases from the
moment defects in his title are made known to Q:Whataretherightsofapossessor?
thepossessor.
Thisinterruptionofgoodfaithmaytakeplace: A:
1. atthedateofsummonsor GOODFAITH BADFAITH
2. that of the answer if the date of Astofruitsreceived
summonsdoesnotappearatthedate Reimburse fruits
Entitled while
receivedorwhichlawful
However,thereisacontraryviewthatthedateof possession is in good
possessor would have
summons may be insufficient to convince the faith
received
possessorthathistitleisdefective. Astopendingfruits
Liable to the lawful Norighttosuch
Q: What is the effect in case possession ceases possessorforexpenses pendingfruits
tobeingoodfaith? of cultivation and shall
shareinnetharvestto
A:Possessorinbadfaithisrequiredtopayrentor timeofpossession
in case vacate the property, in both cases he is
Astoexpenses:
required to pay damages to the lawful owner or
(Necessaryexpenses)
possessoroftheproperty.
Right of Rightof

reimbursement and reimbursementand
Q: Jose offered to sell his lot to Rosario which
retention retention
the latter accepted. They executed a document
(Usefulexpenses)
containing the sale. Later, Rosario sought the
execution of the formal deed of sale, but Jose Rightofremoval Norightofremoval
couldnotcontinuethesalebecausehesoldthe Astoliabilityincaseof
lot to Emma with whom he executed a formal deteriorationorloss
deed of sale. Informed that the sale in favor of No liability, unless due Alwaysliablefor
Emmawasnotregistered,Rosarioregisteredher tohisfault/negligence deteriorationorloss
adverse claim.Later, Emma registeredher deed
of sale and a TCT was issued to her but with
Rosarios adverse claim. Emma then took
possessionof the lot. Who has a better rightto
theland?

A: Rosario. To merit the protection of Art 1544
(double sale) it is essential that the buyer of the
128 CIVILLAWTEAM:

PROPERTY
A.RIGHTTOPENDINGFRUITS Q:Whatareusefulexpenses?
Q:Whenarefruitsconsideredreceived? A:Thosewhichincreasethevalueorproductivity
oftheproperty.
A:
Q: Who has the right to be refunded for useful
1. Natural and industrial fruits from the
expenses?
timetheyaregatheredorsevered
2. Civil fruits from the time of their A: Only to the possessor in good faith with the
accrual and not their actual receipt. samerightofretentionasinnecessaryexpenses.
(Art.544,NCC) (Art.546)
Q: What if there are ungathered natural or Note: Possessor in good faith need not pay rent
industrialfruitsatthetimegoodfaithceases? during the period of retention. (Pineda Property, p.
280,1999ed)
A: The possessor shall share in the expenses of
cultivation,netharvest,andchargesinproportion Q:Whatistheeffectofvoluntarysurrenderof
tothetimeofpossession.(Art545,NCC) property?
Q: What are the options of the owner in case
there are pending fruits at the time good faith A: It is a waiver of the possessors right of
ceases? retentionbuthisrighttoberefundedmaystillbe
enforced, unless he also waived the same.
A: (PinedaProperty,p.282,1999ed)
1. To pay the possessor in good faith
indemnity for his cultivation expenses Q: May a possessor remove the useful
and charges and his share in the net improvementsheintroduced?
harvest;or
2. To allow him to finish the cultivation A:Yes,butonlybyapossessoringoodfaithand
andgatheringofthegrowingfruits. onlywhennosubstantialdamageorinjurywould
becausedtotheprincipalthing.(Art.547)
Q:Whatifthepossessorrefuses,foranyreason,
tofinishthecultivationandgathering?
Note: However, this right of removal is only
A: He forfeits the right to be indemnified in any
subordinate to the owners right to keep the
othermanner.(Art.545,par.3,NCC))
improvements himself by paying the expenses
incurredortheconcomitantincreaseinthevalueof
B.RIGHTTOBEREIMBURSED
the property caused by the improvements. (Pineda

Property,p.283,1999ed)
(1)NECESSARYANDUSEFULEXPENSES
Q:Whatarenecessaryexpenses? (2)EXPENSESFORPURELUXURY
A: Expenses incurred to preserve the property, Q:Whatareluxuriousexpenses?

without which, said property will physically
deteriorateorbelost. A: Expenses incurred for improvements
introduced for pure luxury or mere pleasure.
Q: Who is entitled to reimbursement for (PinedaProperty,p.281,1999ed)
necessaryexpenses?
Q:Areluxuriousexpensesrefundable?
A: Every possessor, whether the possessor is in
goodfaithorbadfaith. A:No,evenifthepossessorisingoodfaith.
Note:However,onlythepossessoringoodfaithmay Note: But he may remove the luxurious

retain the thinguntil he has been reimbursed. (Art. improvementsiftheprincipalthingsuffersnoinjury
546,PinedaProperty,p.279,1999ed) thereby,andifhissuccessorinthepossessiondoes
not prefer to refund the amount expended. (Art.
548)
129

2.POSSESSORINBADFAITH Q When Dolorico died, his guardian Ortiz
continued the cultivation and possession of the
property, without filing any application to
Q:Whenisapossessorinbadfaith? acquire title. In the homestead application,
DoloriconamedMartin,ashisheirandsuccessor
A: When he isaware that there exists in his title ininterest.Martinlaterrelinquishedhisrightsin
ormodeofacquisitionanyflawwhichinvalidates favorofQuirinohisgrandsonandrequestedthe
it. Director of Lands to cancel the homestead
application which was granted. Quirino filed his
Note: Only personal knowledge of the flaw in sales applications and the said property was
onestitleormodeofacquisitioncanmakehima awarded to him being the only bidder. Is Ortiz
possessorinbadfaith. entitledtorightofretention?
Q: When is good or bad faith material or A:Yes.Apossessoringoodfaithhastherightof

immaterial? retention of the property until he has been fully
reimbursed for all the necessary and useful
A:Itisimportantinconnectionwiththe expensesmadebyhimontheproperty.Itsobject
is to guarantee the reimbursement for the
1.receiptoffruits, expenses, such as those for the preservation of
2.indemnityforexpenses,and theproperty,orfortheenhancementofitsutility
3.acquisition of ownership by orproductivity.Itpermitstheactualpossessorto
prescription. remain in possession while he has not been
reimbursed by the person who defeated him in
Itbecomesimmaterialwhentherighttorecover thepossessionforthosenecessaryexpensesand
isexercised.(Article539,NCC) useful improvements made by him on the thing
possessed. (Ortiz v. Kayanan, G.R. No. L32974,
Q: What are the requisites to constitute July30,1979)
possessionwhetheringoodfaithorinbadfaith?
Q: What is the rule when two or more persons
A: claimpossessionoverthesameproperty?
1. Possessor has a title/mode of A:Itdepends.
acquisition;
2. There is a flaw or defect in said GR: Possession cannot be recognized in two
title/mode; differentpersonalities
3. The possessor is aware or unaware of
theflawordefect. XPNincaseofcopossessionwhenthereisno
conflict.
Q: May mistake upon a doubtful questions or
difficult question of law be the basis of Q:Whatarethecriteriaincasethereisadispute
possessioningoodfaith? ofpossessionof2ormorepersons?

A: Yes. Mistake upon a doubtful or difficult A:Criteriaincaseofdispute:[A2DE]
questions of law (provided such ignorance is not
gross and therefore inexcusable) may be a basis 1. Present/Actual possessor shall be
ofgoodfaith.Itistruethatignoranceofthelaw preferred
excuses no one but error in the application of 2. Ifthereare2possessors,theonelonger
the law, in the legal solutions arising from such inpossession
application, and the interpretation of doubtful 3. IftheDatesofpossessionarethesame,
doctrinecanstillmakeapersonignoranceofthe theonewithatitle
law may be based on an error of fact. (Paras, p 4. IfalloftheaboveareEqual,thefactof
463) possession shall be judicially
determined, and in the meantime, the
thingshallbeplacedinjudicialdeposit.
Note:Mistakeuponadoubtfulordifficultquestion (Article538,NCC)
oflawreferstothehonesterrorintheapplication
or interpretation of doubtful or conflicting legal
provisions/doctrines,andnottotheignoranceofthe
law.(Article526,par.3,NCC)
130 CIVILLAWTEAM:

PROPERTY
D.LOSSORUNLAWFULDEPRIVATIONOFA 3. Reimbursetheexpensesforpublication
MOVABLE if there was a public auction sale.
Q:Whatisalostthing?
1.PERIODTORECOVER
A:Itisonepreviouslyunderthelawfulpossession
and control of a person but is now without any See:PrescriptivePeriods
possessor.
2.FINDEROFLOSTMOVABLE
Note:Itisnotanabandonedproperty(Pineda
Property,p.503,1999ed) Q:Whatistherightofapossessorwhoacquires
amovableclaimedbyanother?
Q:Whatisthedutyofafinderofalost
movable? A:
1. Badfaithnoright
A: Whoever finds a lost movable, which is not a 2. Good faith presumed ownership. It is
treasure,mustreturnittoitspreviouspossessor. equivalenttotitle.
If the latter is unknown, the finder shall Requisites:
immediatelydeposititwiththemayorofthecity a. possessioningoodfaith
ormunicipalitywherethefindinghastakenplace. b. owner has voluntarily parted with
thepossessionofthething;and
Note:Themayorinturnmustpubliclyannouncethe c. Possessor is in the concept of an
findingofthepropertyfortwoconsecutiveweeks. owner.

Q: Is the possession of movable property
Q: When is public auction of the lost movable acquiredingoodfaithequivalenttoatitle?
authorized?
A:Yes.
A: If the movable cannot be kept without
deterioration, or without expenses which GR: Doctrine of irrevindicability The
considerablydiminishitsvalue,itshallbesoldat possession of movable property acquired in
publicauctioneightdaysafterthepublication. goodfaithisequivalenttotitle.
Note: This is merely presumptive as it can be

Q: May the lost movable be awarded to the
defeatedbythetrueowner.(Art.559,NCC)
finder?
XPNs:
A:Yes.Iftheownerorpreviouspossessordidnot 1. Whentheownerhaslost;or
appear after 6 months from the publication, the 2. Has been unlawfully deprived of a
thingfoundoritsvalueorproceedsiftherewasa movable.
sale, shall be awarded to the finder. The finder , In which case the possessor cannot
however, shall pay for the expenses incurred for retain the thing as against the owner,
thepublication.(Art.719,NCC) whomayrecoveritwithoutpayingany
indemnity
Q:Whatisthedutyoftheownerwhoappeared?
XPN to the XPNs: Where movable is
acquired in good faith at a public sale, the
A:
owner must reimburse to recover. (Art. 559
par.2,NCC)
1. Give a reward to the finder equivalent
toonetenth(1/10)ofthesumorofthe
priceofthethingfound.(Art.720,NCC)
2. Reimburse to the finder for the latters
expenses incurred for the preservation
of the thing. (Art. 546,NCC) and
expenses spent for the location of the
owner
131

Q: Using a falsified manager's check, Justine, as Q: During his lifetime, Velasco acquired Lot A
thebuyer,wasabletotakedeliveryofasecond from spouses Sacluti and Obial evidenced by a
handcarwhichshehadjustboughtfromUnited deed of sale. In 1987, spouses Padilla entered
Car Sales. Inc. The sale was registered with the thesaidpropertyastrusteesbyvirtueofadeed
Land Transportation Office. A week later, the ofsaleexecutedbytheRuralBank.ThePadillas
United Car Sales learned that the check had averred that the Solomon spouses owned the
been dishonored, but by that time, Justine was propertywhichwasidentifiedasLotB.However,
nowhere to be seen. It turned out that Justine itwasprovedduringtrialthatthelandoccupied
hadsoldthecartoJerico,thepresentpossessor by spouses Padilla was Lot A in the name of
whoknewnothingaboutthefalsifiedcheck.Ina Velasco, whereas the land sold by the bank to
suitfiledbyUnitedCarSales.Inc.againstJerico the spouses Padilla was Lot B. The heirs of
for recovery of the car, United Car Sales alleges Velasco demanded that spouses Padilla vacate
it had been unlawfully deprived of its property the property, but they refused. Thus, the heirs
through fraud and should, consequently, be filedacomplaintforaccionpubliciana.Whohas
allowed to recover it without having to thebetterrightofpossession?
reimbursethedefendantforthepricethelatter
hadpaid.Shouldthesuitprosper? A: The heirs of Velasco has the better right.
Accion publiciana, or for recovery of the right to
A: Yes, the suit should prosper because the possessisanactionfiledintheRTCtodetermine
criminalactofestafashouldbedeemedtocome the better right to possession of realty
withinthemeaningofunlawfuldeprivationunder independently of the title. The objective of the
Art.559,CivilCode,aswithoutitUnitedCarSales plaintiffs in accion publiciana is to recover
wouldnothavepartedwiththepossessionofits possession only, not ownership. Lot A was the
car.(1998BarQuestion) subjectofacadastralcase.TheOCTwasissuedto
Sacluti and Obial who sold the same to Artemio.
Note:Thepossessionofmovablepropertyacquired From the date of sale, until Artemios death, he
in good faith is equivalent to a title. Nevertheless, wasincontinuouspossessionoftheland.
one who has lost any movable or has been
unlawfullydeprivedthereof,mayrecoveritfromthe Q:Hastheactionalreadyprescribed?
person in possession of the same. (Art. 559, Civil
Code) A:No.Theremedyofaccionpublicianaprescribes
after the lapse of ten years. In the present case,
3.DISTINGUISHEDFROMVOIDABLETITLE theactionwasfiledwiththeRTCin1991.Spouses
Padilla dispossessed the heirs of Velasco of the
Q: What is the rule in case the seller of a thing property in 1987. At the time of the filing of the
hasvoidabletitleonthethingsold? complaint, only 4 years had elapsed from the
timeofdispossession.Therealrightofpossession
is not lost till after the lapse of 10 years. (Art.
A: Where the seller of goods has a voidable title
554(4),NCC).(SpousesPadillav.Velasco,G.R.No.
thereto,buthistitlehasnotbeenavoidedatthe
169956,Jan.19,2009)
timeofthesale,thebuyeracquiresagoodtitleto
the goods, provided he buys them in good faith, Q: What are the presumptions in favor of a
forvalue,andwithoutnoticeoftheseller'sdefect possessor?
oftitle.(Art.1506,NCC)
A:GCENCE
E.INCONCEPTOFOWNER,HOLDER,INONES
OWNNAME,INNAMEOFANOTHER 1. Goodfaith
2. Continuityofinitialgoodfaith
F.RIGHTSOFTHEPOSSESSOR 3. Enjoyment in the same character in
whichpossessionwasacquireduntilthe
Q:Whataretherightsofapossessor? contraryisproved
4. Noninterruptioninfavorofthepresent
A:RPR possessor
1. tobeRespectedinhispossession 5. Continuous possession by the one who
2. to be Protected in said possession by recovers possession of which he was
legalmeans wrongfullydeprived
3. tosecureinanactionforforcibleentry 6. Extensionofpossessionofrealproperty
the proper writ to Restore him in his toallmovablescontainedtherein.
possession(Article539,NCC)
132 CIVILLAWTEAM:

PROPERTY
Q:Whataretherightsofapossessorasregards Q:Whataretherightsofapossessorwithregard
necessaryexpenses? tousefulexpenses?

A: A:Ifingoodfaith:
GOODFAITH BADFAITH 1.Righttorefund
1.Righttorefund; Rightto 2.Rightofretentionuntilpaid
2.Rightofretention; refund 3.Rightofremoval,provided:
a. withoutdamagetotheprincipalthing
Note: During his possession, he is not The possessor b. subject to the superior right of the
obligedtopayrentnordamagesincase hasnorightof prevailing party to keep the
herefusestovacatethepremises. retention improvements by paying the expenses
ortheincreaseinvalueofthething
Q: Why is there no right of retention in case of
badfaith? Note:Ifthepossessorisinbadfaith,hehasnoright.

A:Aspunishmentforhisbadfaith. Q:Whataretherightsofapossessorwithregard
toexpensesforpureluxury?
Q:Isthererightofremoval?
A:
A:None,whetheringoodfaithorbadfaith. GOODFAITH BADFAITH
Rightofremoval, samerights,butliable
Reason: Necessary expenses affect the existence Provided: onlyforthevalueofthe
orsubstanceofthepropertyitself. 1.withoutinjuryto ornamentsatthetime
principalthing; heentersinto
Note: Improvements be so incorporated to the 2.successorin possession,incasehe
principalthingthattheirseparationmustnecessarily possessiondoesnot preferstoretain
reducethevalueofthethingnotcurablebyordinary prefertorefund
repairs. amountexpended.
Q:Whatareotherrightsofpossessor?
A:
Withrespectto GOODFAITH BADFAITH
Oncapital Chargedtoowner Chargedtoowner
Taxesand
Onfruits Chargedtopossessor Chargedtoowner
Charges
Charges Prorata Chargetoowner
Possessormustreturnvalueoffruits
alreadyreceivedaswellasvalueof
Gatheredorseveredfruits Possessorisentitledtothefruits fruitswhichtheownerorlegitimate
possessorshouldbeentitled
(doesnotapplytopossessorinBF)
Cultivationexpensesofgathered Possessorisnotentitledtobe
Possessorisentitledtobereimbursed
fruits reimbursed
Shareproratabetweenpossessor
Pendingorungatheredfruits andownerofexpenses,net Ownerisentitledtothefruits
harvest,andcharges
indemnitytopossessorinprorata:
(ownersoption)
Productionexpensesofpending
a. money Noindemnity
fruits
b. allowingfullcultivationand
gatheringofallfruits
Improvementsnolongerexisting Noreimbursement Noreimbursement
Liableifactingwithfraudulent
Liabilityforaccidentallossor
intentornegligence,after Liableineverycase
deterioration
summons
Improvementsduetotimeor Inuretotheownerorlawful
Inuretotheownerorlawfulpossessor
nature possessor
Note:Apossessorisprotectedregardlessofthemannerofacquisition.
133

Q: May the owner of a property eject the 4. Destructionortotallossofthethinga
possessorforciblywithoutcourtintervention? thingislostwhenitperishesorgoesout
of commerce, or disappears in such a
A: No. The owner must resort to the courts and waythatitsexistenceisunknown,orit
cannotforciblyejectapossessor(Bagovs.Garcia, cannot be recovered. (Art. 1189, Civil
No.2587,January8,1906). Code)
G.LOSS/TERMINATION 5. Assignment complete transmission of

thething/righttoanotherbyanylawful
manner.
Q:Howispossessionlost?
VIII.USUFRUCT
A:PRADA

A.CHARACTERISTICS
1. Possession of another subject to the

provisionsofArt.537,ifapersonisnot
Q:Whatarethecharacteristicsofusufruct?
in possession for more than one year
A:ENA
but less than 10 years he losses
possession de fact. This means that he
1. Essential those without which it
cannolongerbringanactionofforcible
cannotbetermedasusufruct:
entry or unlawful detainer, since the
a. real right (whether registered in
prescriptive period is one year for such
theregistryofpropertyornot);
actions. But he may still institute an
b. constitutedonproperty.
accionpublicianatorecoverpossession
i.real
de jure, possession as a legal right or
ii.personal;
the real right of possession. (Paras, p.
iii.consumable;
548)
iv.nonconsumable;
Note: Acts merely tolerated, and those
v.tangible;
executed clandestinely and without the vi.intangible.
knowledgeofthepossessorofathing,or c. temporaryduration;
byviolence,donotaffectpossession.(Art. d. purpose:toenjoythebenefitsand
537,CivilCode) derive all advantages from the
objectasaconsequenceofnormal
2. Abandonment useorexploitation.

Note: Abandonment involves a voluntary 2. Natural that which ordinarily is
renunciationofallrightsoverathing present, but a contrary stipulation can
eliminateitbecauseitisnotessential.
Requisites: a. The obligation of conserving or
preservingtheformandsubstance
a. the abandoner must have been a
(value)ofthething.
possessor in the concept of owner
b. Transmissible
(either an owner or mere possessor

may respectively abandon either
ownershiporpossession) 3. Accidental those which may be
b. the abandoner must have the present or absent depending upon the
capacitytorenounceortoalienate( stipulationofparties
for abandonment is the repudiation a. Whetheritbepureoraconditional
ofpropertyright) usufruct
c. there must be physical b. Thenumberofyearsitwillexist
relinquishmentofthethingorobject c. Whether it is in favor of one
d. there must be no spes recuperandi personorseveral,etc.
(expectation to recover) and no
more anumus revertendi ( intention
to return or get back) (Paras, pp.
344345)

3. Recoveryofthethingbythelegitimate
owner
134 CIVILLAWTEAM:

PROPERTY
Q: Is the usufructuary bound to preserve the ownerwho lesseeenjoy

formandsubstanceofthethinginusufruct? allowsthe
A: usufructuary
toenjoythe
GR:Yes. objectof
usufruct
XPN: In case of an abnormal usufruct, RepairsandTaxes
whereby the law or the will of the parties
Usufructuary
mayallowthemodificationofthesubstance
paysfor
ofthething.
ordinary
repairsand
Q: Chayong owned a parcel of land which she Lesseeisnotobligedtopayfor
paysfor
mortgaged to Michael. Upon the OCT was an repairs/taxes
annual
annotation of usufructuary rights in favor of chargesand
Cheddy. Is Michael obliged to investigate taxesonthe
Chayongstitle? fruits
A: No. The annotation is not sufficient cause to

require Michael to investigate Chayongs title B.CLASSIFICATION
becausethelattersownershipovertheproperty
remains unimpaired despite such encumbrance. Q:Whatarethekindsofusufruct?
Only the jus utendi and jus fruendi over the
propertyaretransferredtotheusufructuary.The A:ONESE
owner of the property maintains the jus
1. AstoOrigin:
disponendi or the power to alienate, encumber,
a. Legal created by law such as
transform,andevendestroythesame.(Hemedes
usufruct of the parents over the
v. CA, G.R. Nos. 107132 and 108472, Oct. 08,
property of their unemancipated
1999)
children
Q:Differentiateusufructfromlease. b. Voluntary created by will of the
parties either by act inter vivos
A:CRONEC (e.g. donation) or by act mortis
causa e.g. in a last will and
USUFRUCT LEASE testament)
c. Mixed (or prescriptive) created
Natureoftheright
by both law and act of the person
Realrightonlyif,asinthecaseofa (e.g. acquired by prescription: I
leaseoverrealproperty,thelease possessedingoodfaithaparcelof
Alwaysareal
isregistered,orisformorethan land which really belonged to
right
oneyear,otherwiseitisapersonal another.Stillingoodfaith,Igavein
right
my will to X, the naked ownership
CreatorofRight of land and to Y, the usufruct. In
Maynotbetheowner,asinthe due time, Y may acquire the
Ownerorhis
caseofasublessorora ownership of the usufruct by
agent
usufructuary acquisitive prescription.) (Paras, p.
Origin 572)
2. AstoNumberofbeneficiary
Bycontract,bywayofexceptionby
Bylaw, a. Simple if only one usufructuary
law(asinthecaseofanimplied
contract, enjoystheusufruct
newlease,orwhenabuilderhas
willoftestator b. Multipleifseveralusufructuaries
builtingoodfaithonthelandof
or enjoytheusufruct
anotherabuilding,whenthelandis
by i. simultaneous at the same
considerablyworthmoreinvalue
prescription time.
thanthebuilding.
ii. successive one after the
ExtentofEnjoyment
other.
Allfruits,uses Onlythoseparticularorspecific Note: In this latter case, if usufruct is
andbenefits use. created by donation, all the donees must
Cause bealive,oratleasedalreadyconceived,at
Apassive Anactiveownerwhomakesthe thetimeoftheperfectionofthedonation.

135

3. AstoExtentofobject: 5. To Setoff the improvements he may
a. Total constituted on the whole havemadeonthepropertyagainstany
thing damagetothesame(Art.580,NCC)
b.Partialconstitutedonlyonapart 6. To Retain the thing until he is
reimbursed for advances for
4. AstoSubjectmatter: extraordinary expenses and taxes on
a. Overthings thecapital(Art.612,NCC)
i. Normal(orperfectorregular) 7. To Collect reimbursements from the
involves non consumable owner for indispensable extra ordinary
things where the form and repairs, taxes on the capital he
substancearepreserved advanced,anddamagescausedtohim
ii. Abnormal (or imperfect or 8. ToRemoveimprovementsmadebyhim
irregular) involves ifthesamewillnotinjuretheproperty
consumablethings
b. Over rights involves intangible Q: 120hectares of land from the NHA property
property; rights must not be were reserved for the site of the National
personal or intransmissible in GovernmentCenter.7hectaresfromwhichwere
character so present or future withdrawn from the operation. These revoked
support cannot be an object of lands were reserved for the Manila Seedling
usufruct. Bank Foundation, Inc. (MSBF). However, MSBF
occupied approximately 16 hectares and leased
5. AstoEffectivityorextinguishment: aportionthereoftoBulacanGardenCorporation
a. Purenotermorcondition (BGC). BGC occupies 4,590 sqm. Implementing
b. With a term there is a period suchrevocation,NHAorderedBGCtovacateits
whichmaybeeithersuspensiveor occupied area. BGC then filed a complaint for
resolutory injunction. Has BGC any right over the leased
i. exdiefromacertainday premises?
ii. indiemuptoacertainday
iii. exdieindiemfromacertain A: A usufructuary may lease the object held in
dayuptoacertainday. usufruct.Theownerofthepropertymustrespect
c. Conditionalsubjecttoacondition theleaseenteredintobytheusufructuarysolong
whichmaybeeithersuspensiveor astheusufructexists.MSBFwasgivenausufruct
resolutory. overonlya7hectarearea.NHAcannotevictBGC
ifthe4,590squaremeterportionMSBFleasedto
C.RIGHTSANDOBLIGATIONSOF BGCiswithinthe7hectareareaheldinusufruct
USUFRUCTUARY byMSBF.However,theNHAhastherighttoevict
BGC if BGC occupied a portion outside of the 7
Q:Whataretherightsoftheusufructuaryasto hectare area covered by MSBF's usufructuary
thethinganditsfruits? rights. (NHA v. CA, G.R. No. 148830, Apr. 13,
2005)
A:RISERICR
Q:Whataretherightsoftheusufructuaryasto
1. ToReceivethefruitsofthepropertyin theusufructitself?
usufructandhalfofthehiddentreasure
he accidentally finds on the property A:ARC
(Arts.566,438,NCC)
2. ToenjoyanyIncreasewhichthethingin a. To Alienate or mortgage the right of
usufructmayacquirethroughaccession usufruct(Art.572,NCC)
(Art.571,NCC)
3. TopersonallyEnjoythethingorleaseit XPN: parental usufruct (Arts. 225, 226
to another (Arts. 572577, NCC) FC)
generallyforthesameorshorterperiod
astheusufruct b. In a usufruct to Recover property/real
4. To make such Improvements or right, to bring the action and to oblige
expensesonthepropertyhemaydeem the owner thereof to give him the
proper and to remove the proper authority and the necessary
improvements provided no damage is proof to bring the action (Art. 578,
causedtotheproperty(Art.579,NCC) NCC)
136 CIVILLAWTEAM:

PROPERTY
c. In a usufruct of part of a Common Note: Civil fruits accrue daily, stock dividends and
property, to exercise all the rights cashdividendsareconsideredcivilfruits.
pertainingtothecoownerwithrespect
to the administration and collection of Q:Whatiftheexpensesexceedtheproceedsof
fruitsorinterests. thegrowingfruits?
Q:Canusufructuaryexerciseactsofownership? A:Theownerhasnoobligationtoreimbursethe
difference.(Art.567,NCC)
A:
GR:Ausufructuarycannotexerciseacts Q: May the usufructuary lease the thing in
of ownership such as alienation or usufructevenwithouttheownersconsent
conveyance.
A: Yes, but not being the owner, he cannot
XPNs: When what is to be alienated or alienate,pledgeormortgagethethingitself.
conveyedisa:CIA
Q: May the usufructuary alienate, pledge, or
1. Consumable mortgagetherightofusufruct?
2. PropertyIntendedforsale;
3. Property which has been A: Yes, he, being the owner of the right itself.
Appraisedwhendelivered. (Art.572,NCC)
Note:ifithasnotyetbeenappraisedorifitisnota Q: Up to when may the transferee enjoy the

consumable:returnthesamequality(mutuum) rightstransferredtohimbytheusufructuary?
Q:Whataretherightsoftheusufructuaryasto A:Untiltheexpirationoftheusufruct.Transferof
advancesanddamages? usufructuary rights, gratuitous or onerous, is co
terminouswiththetermofusufruct.
A:Tobe:ITD
a. reimbursed for Indispensable Q:Whathappensifthethingsubjectofusufruct
extraordinaryrepairsmadebyhim ismortgagedbytheowner?
Note: The reimbursement shall be in the
amount equal to the increase in value of A: Usufructuary has no obligation to pay
theproperty(Art.594,NCC) mortgage.Butifthesameisattached,theowner
becomes liable for whatever is lost by the
b. reimbursed for Taxes on the capital usufructuary.
advancedbyhim(Art.597,par.2,NCC)
Q:Towhatmaytheusufructuarybeliablefor?
c. indemnified for Damages caused by
usufructuary to the naked owner (Art. A: For the damages suffered by the usufructuary
581,NCC) onaccountoffraudcommittedbyhimorthrough
hisnegligence.
Q: What are the rights of a usufructuary on
pendingnaturalandindustrialfruits? Q:Whenistheusufructuarynotliable?
A: A:
1. Fordeteriorationduetowearandtear
Fruits
Rightsoftheusufructuary 2. For deterioration due to a fortuitous
Growing:
event
Atthe
notboundtorefundtotheowner
beginning
theexpensesofcultivationand
ofthe
production
usufruct
belongtotheownerbutheisbound
Atthe
toreimbursetheusufructuaryof
termination
theordinarycultivationexpenses
ofthe
(Art.545,NCC)outofthefruits
usufruct
received(Art.443,NCC)
137

Q: What are the rights and obligations of the g. Pay interest on taxes on capital
usufructuarywithrespecttoconsumablethings? paidbythenakedowner
h. Pay debts when usufruct is
A: The usufructuary shall have the right to make constituted on the whole
useoftheconsumablething.Atthetermination patrimony
of the usufruct, the usufructuary has the i. Secure the naked owners/court's
obligationto: approval to collect credits in
certaincases
1. If the thing hasbeen appraised, pay its j. Notifytheownerofanyprejudicial
appraisedvalue; rd
actcommittedby3 persons
2. Ifthethinghasnotbeenappraised: k. Payforcourtexpensesandcosts
a. Return the same quantity and
quality;or 3.Atthetermination
b. Pay its current price at such
termination. a. Returnthethinginusufructtothe
nakedownerunlessthereisaright
Q:Whatifthedamagesexceedthevalueofthe ofretention
improvements? b. Paylegalinterestforthetimethat
theusufructlasts
A:Theusufructuaryisliableforthedifferenceas c. Indemnifythenakedownerforany
indemnity. losses due to his negligence or of
histransferees
Q: What if the improvements exceed the Note: If the animals all perish w/o fault but due to
amountofdamages? contagious disease / uncommon event deliver
remains saved. If the young of animals perished in
A: He may remove the portion of the part due to accident, usufruct continues on
improvementsrepresentingtheexcessinvalueif remaining portion. If the usufruct is constituted on
it can be done without injury; otherwise, the sterileanimals,theyareconsideredasiffungibleand
excessinvalueaccruestotheowner. havetheobligationtoreplacesamekindandquality.
Q:Whydoimprovementsaccruetotheowner? OBLIGATIONSBEFORETHEUSUFRUCTT
A: Because there is no indemnity for Q:Whataretheeffectsoffailuretopostabond

improvements. orsecurity?
Q: What are the obligations of the A:

usufructuary?
1. The owner shall have the following
A: options:
1.Beforetheusufruct a. receivershipofrealty;
b.saleofmovables;
a. Makeaninventory c.depositofsecurities;or
b. Givesecurity d.investmentofmoney;or
e. retention of the property as
2.Duringtheusufruct administrator.
2. The net product shall be delivered to
a. Takecareofproperty theusufructuary;
b. Replace the young of animals that 3. The usufructuary cannot collect credit
die or are lost or become prey dueormakeinvestmentsofthecapital
when the usufruct is constituted withouttheconsentoftheownerorof
onaflockorherdoflivestock; thecourtuntilthebondisgiven.
c. Makeordinaryrepairs
d. Notify the owner of urgent extra
ordinaryrepairs
e. Permit works & improvements by
thenakedownernotprejudicialto
theusufruct
f. Pay annual taxes and charges on
thefruits
138 CIVILLAWTEAM:

PROPERTY
Q:Whenmaytheusufructuarybeexemptfrom Q:Whatareextraordinaryrepairs?
theobligationtogivesecurity?
A:
A:When:SIR
1. Those required by the wear and tear
1. NoonewillbeInjuredbythelackofthe due to the natural use of the thing but
bond; notindispensableforitspreservation.
2. The donor (or parent) Reserved the 2. Those required by the deterioration of
usufructofthepropertydonated; or damage to the thing caused by
3. The usufruct is Subject to caucion exceptional circumstances and are
juratoriawhere: indispensableforitspreservation.
a. Theusufructuary:takesanoathto
takecareofthethingsandrestore Q:Whopaysforextraordinaryrepairs?
them to its previous state before
theusufructisconstituted. A: Depends on the kind of extraordinary repairs:
b. The property subject to such (Art.594,NCC)
cannot be alienated or
encumberedorleased. 1.Ifmadebytheownerhecanmakethem
buttohisexpenseandheshallhavethe
Reason: because this would mean right to demand from the usufructuary
that the usufructuary does not the payment of legal interest on the
need the property if the thing or amount expended during the duration
propertycanbealienated. oftheusufruct.
Q:Whatiscaucionjuratoria? 2. Ifmadebytheusufructuary
A: The usufructuary, being unable to file the GR:theusufructuarymaymakethembut

requiredbondorsecurity,filesaverifiedpetition he is not entitled to indemnity because
inthepropercourtaskingforthedeliveryofthe theyarenotneededforthepreservation
houseandfurniturenecessaryforhimselfandhis ofthething.
familywithoutanybondorsecurity.(Art.587)
XPN: He shall have the right to demand
Q: When does the usufructuary start to have a the payment of the increase in value at
right to the proceeds and benefits after the theterminationoftheusufructprovided
securityhasbeengiven? that:
A: He shall have a right to all the proceeds and 1. He notified the owner of the
benefits from the day on which he should have urgencyoftherepairs
commencedtoreceivethem.(Retroactivity)(Art. 2. The owner failed to make repairs
588,NCC) notwithstandingsuchnotification
3. The repair is necessary for the
Q:Whatareordinaryrepairs? preservationoftheproperty.

A:Suchasarerequiredbythewearandteardue Q: Does the usufructuary have a right of
to the natural use of the thing and are retention even after the termination of the
indispensableforitspreservation.(Art.592,NCC) usufruct?

Note: A: Yes, until he is reimbursed for the increase in
value of the property caused by extraordinary
GR: Usufructuary has no liability when the repairsforpreservation.
thingdeterioratesduetowearandtear.Heis
obligedtoreturnthethinginsuchstate. Q:Howistheincreaseinvaluedetermined?
XPNs:whenthereisfraudornegligence A: It is the difference between the value of the
property before the repairs were made and the
valueaftertherepairshavebeenmade.
139

D.RIGHTSOFTHEOWNER Q: A usufruct is constituted on an immovable
where a building is erected, and the building is
Q:Whataretherightsofanakedownerandthe destroyed,whatwillhappen?
limitationsimposeduponhim?
A:Usufructuarywillhavetherighttomakeuseof
A: thelandandmaterials.
Rights Limitations Q: An insurance covering the object of

Canalienatethethingin usufructuary was obtained, who gets the
Alienation proceeds?
usufruct
Cannotaltertheform
Alteration A:Ifbothofthempaidpremium:bothwillshare
andsubstance
Cannotdoanything in the insurance proceeds. If it was only the
Enjoyment prejudicialtothe owner who paid, then proceeds will go to him
usufructuary alone.
Canconstructanyworks
andmakeany Q: What is the effect of improper use of the
improvementprovided thingbytheusufructuary?
Constructionand
itdoesnotdiminishthe
Improvement
valueortheusufructor A: The owner may demand the delivery of and
prejudicetherightsof administration of the thing with responsibility to
theusufructuary. delivernetfruitstousufructuary.

Q: What is theeffect of thedeath of thenaked Q: On 1 January 1980, Minerva, the owner of a
ownerontheusufruct? building granted Petronila a usufruct over the
propertyuntil01June1998whenManuel,ason
A: It does not terminate the usufruct. His rights of Petronila, would have reached his 3oth
aretransmittedtohisheirs. birthday.Manuel,however,diedon1June1990
whenhewasonly26yearsold.
Q:Isrenunciationanassignmentofright?
MinervanotifiedPetronilathattheusufructhad
A: No, it is really abandonment by the been extinguished by the death of Manuel and
usufructuaryofhisrightanddoesnotrequirethe demanded that the latter vacate the premises
consent of the naked owner but it is subject to and deliver the same to the former. Petronila
therightsofcreditors. refused to vacate the place on the ground that
theusufructinherfavorwouldexpireonlyon1
Q: What is the obligation of the owner if the June1998whenManuelwouldhavereachedhis
property held in usufruct is expropriated for 30th birthday and that the death of Manuel
publicuse? th
before his 30 birthday did not extinguish the
usufruct.
A:Theownerisobligedto:
Whosecontentionshouldbeaccepted?
1. eitherreplaceit;or
2. paylegalinteresttousufructuaryofthe A:Petronilascontentioniscorrect.UnderArticle
netproceedsofthesame. 606 of the Civil Code, a usufruct granted for the
time that may elapse before a third person
Q: What happens when a part of the thing reachesacertainageshallsubsistforthenumber
subjectoftheusufructislost? ofyearsspecifiedevenifthethirdpersonshould
die unless there is an express stipulation in the
A:Theremainingpartshallcontinuetobeheldin contractthatstatesotherwise.
usufruct.
Inthecaseatbar,thereisnoexpressstipulation
Q: Can usufruct be constituted in favor of a that the consideration for the usufruct is the
town,corporationorassociation? existence of Petronilas son. Thus, the general
rule and not the exception should apply in this
A:Yes,butitcannotbeformorethan50years. case.(1997BarQuestion)

140 CIVILLAWTEAM:

PROPERTY
Q:Whatareconsideredspecialusufructs? IX.EASEMENTS

A:Theseareusufructon: A.CHARACTERISTICS

1. Pensionorincome(Art.570,NCC) Q:Whatisaneasementorservitude?
2. Property owned in common (Art. 582,
NCC) A: It is an encumbrance imposed upon an
3. Cattle(livestock)(Art.591,NCC) immovableforthebenefitof:
4. OnVineyardsandwoodland 1. another immovable belonging to a
(Arts575576,NCC) differentowner;or
5. Rightofaction(Art.578,NCC) 2. for the benefit of a community or one
6. Mortgagedproperty(Art.600,NCC) or more persons to whom the
7. over the Entire patrimony (Art. 598, encumbered estate does notbelong by
NCC) virtue of which the owner is obliged to
8. thingswhichGraduallydeteriorate abstain from doing or to permit a
(Art.573,NCC) certain thing to be done on his estate.
9. Consumableproperty(Art.574,NCC) (Arts.613614,NCC)

E.EXTINCTION/TERMINATION Q: Distinguish Dominant Estate from Servient
Estate.
Q:Howisusufructextinguished?
DOMINANTESTATE SERVIENTESTATE
A:PLDTERM Immovableinfavorof Thatpropertyorestate
which,theeasementis whichissubjecttothe
1. AcquisitivePrescription established dominantestate
Note:theusebyathirdpersonandnot Uponwhichan
thenonusebytheusufructuary Whichtherightbelongs
obligationrests.

2. TotalLossofthething Theimmovableinfavorofwhich,theeasementis
Note: if the loss is only partial, the established is called the dominant estate; that
usufruct continues with the remaining whichissubjectthereto,theservientestate.
part.
Q:Cantherebeaneasementoveranother
3. Death of the usufructuary; unless a easement?Explain.
contraryintentionappears.
Reason: Usufruct is constituted A: There can be no easement over another
essentially as a lifetime benefit for the easement for the reason that an easement may
usufructuary or in consideration of his be constituted only on a corporeal immovable
person. property. An easement, although it is real right
overanimmovable,isnotacorporealright.(1995
4. Termination of right of the person BarQuestion)
constitutingtheusufruct
5. Expirationoftheperiodorfulfillmentof Q:Differentiateeasementfromservitude.
theresolutorycondition
6. Renunciationbytheusufructuary. A:

Note: it partakes the nature of a EASEMENT SERVITUDE
condonation or donation, it must comply
withtheformsofdonation. Usedincivillaw
AnEnglishlawterm
countries
7. Merger of the usufruct and ownership Real Realorpersonal
in the same person who becomes the
Burdenimposedupon
absolute owner thereof. (Art. 1275, Therightenjoyed
another
NCC)

141

Q:Whatarecharacteristicsofeasement? Q:Distinguisheasementfromusufruct.
A:NICELIAR A:
1.Is a right limited by the Needs of the EASEMENT USUFRUCT

dominant owner or estate, without Constitutedon
possession;
2. IsInseparablefromtheestatetowhich Onrealproperty Realorpersonal
it is attached cannot be alienated Usegranted
independently of the estate; (Art. 617, Limitedtoaparticularor
NCC) Includesallusesand
specificuseofthe
fruits
3. Cannot consist in the doing of an act servientestate
unlesstheactisaccessoryinrelationto Astorightofpossession
arealeasement;
Involvesarightof
4. Involves 2 neighboring Estates: the Nonpossessingrightover
possessioninan
dominant estate to which the right animmovable
immovableormovable
belongs and the servient estate upon
whichanobligationrests; Astoeffectofdeath
5. Is a Limitation on the servient owners Notextinguishedby Extinguishedbydeathof
rightsofownership; deathofdominantowner usufructuary
6. Is Indivisible not affected by the Natureofright
division of the estate between two or Realrightwhetherornot Realrightwhetherornot
morepersons;(Art.618,NCC) registered registered
7. It is enjoyed over Another immovable
Astotransmissibility
neverononesownproperty;
8. Is a Real right but will affect third Transmissible Transmissible
personsonlywhenregistered. Howitmaybeconstituted

Q:Whatareessentialqualitiesofeasements? Cannotbeconstitutedon
Maybeconstitutedin
aneasementbutitmay
favor,or,burdening,a
A: beconstitutedonthe
pieceoflandheldin
landburdenedbyan
usufruct
1. Incorporeal; easement
2. Imposeduponcorporealproperty;
3. Confernorighttoaparticipationinthe Q:Cantherebe:
profitsarisingfromit; a.Aneasementoverausufruct?
4. Imposed for the benefit of corporeal
property; A: There can be no easement over a
5. Has2distincttenements:dominantand usufruct. Since an easement may be
servientestate; constituted only on a corporeal immovable
6. Causemustbeperpetual. property, no easement may be constituted
onausufructwhichisnotacorporealright.
Q:Whatismeantbyeasementestablishedonly
onanimmovable? b.Ausufructoveraneasement?
A:Thetermimmovablemustbeunderstoodin A: There can be no usufruct over an

itscommonandnotinitslegalsense. easement. While a usufruct may be created
over a right, such right must have an
existence of its own independent of the
property.Aservitudecannotbetheobjectof
a usufruct because it has no existence
independent of the property to which it
attaches.
142 CIVILLAWTEAM:

PROPERTY
Q:Distinguisheasementfromlease. APPARENTSIGN
A: Q:Whatisthedoctrineofapparentsign?
Easement Lease
A: Easements are inseparable from the estate to
Nature
which they actively or passively pertain. The
Real right whether existence of apparent sign under Art. 624 is
Real right only when
registeredornot equivalenttoatitle.Itisasifthereisanimplied
registered OR when the
(whether real or contract between the two new owners that the
leaseexceeds1yr.
personal) easement should be constituted, since no one
Whereconstituted objected to the continued existence of the
Onlyonrealproperties Realorpersonal windows.
Limitationsontheuseofright
Note: It is understood that there is an exterior sign
There is limited right to contrarytotheeasementofpartywallwhenever:
Limited right to both
the use of real property
possession and use of
of another but w/o right 1. there is a window or opening in the
anothersproperty
ofpossession dividingwallofbuildings
ScopeandUses 2. entire wall is built within the boundaries
ofoneoftheestates
Coversallfruitsanduses Generally covers only a
3. the dividing wall bears the burden of the
asarule particularorspecificuse
binding beams, floors and roof frame of
Whomaycreate oneofthebuildings,butnotthoseofthe
The lessor may or may others
Can be created only by 4. the lands enclosed by fences or live
not be the owner as
the owner, or by a duly hedges adjoin others which are not
whenthereisasublease
authorized agent, acting enclosed
orwhenthelessorisonly
inbehalfoftheowner In all these cases, ownership is deemed to belong
ausufructuary
exclusivelytotheownerofthepropertywhichhasin
Howitiscreated
its favor the presumption based on any of these
GR:onlybycontract; signs.

XPN: by law as in the Q:Whatistheeffectofacknowledgementofan
Maybecreatedby:
case of an implied new easementinoneownsproperty?
law,
lease, or when a builder
contract,
has built in GF on the A: An acknowledgement of the easement is an
lastwillor
land of another a admission that the property belongs to another
prescription
building,whenthelandis
(BOMEDCOv.HeirsofValdez,G.R.No.124669).
considerably worth more
invaluethanthebuilding
PARTIESTOANEASEMENT
PassiveorActiveOwner
Theownerismoreorless The owner or lessor is Q:Whoarethepartiestoaneasement?
passive, and he allows moreorlessactive
theusufructuarytoenjoy A:
the thing given in
usufruct 1. Dominant estate refers to the
Whohasthedutytomakerepairs immovableforwhichtheeasementwas
established.
Usufructuary has the Lessee generally has no

duty to make the dutytopayforrepairs
2. Servient estate the estate which
ordinaryrepairs
providestheserviceorbenefit.
Whobearspaymentoftaxesandchargesonthe
property
Usufructuarypaysforthe Lessee generally pays no
annualchargesandtaxes taxes
andonthefruits
Limitationontheuseoftheproperty
The lessee cannot
Usufructuary may lease
constitue a usufruct on
thepropertytoanother
thepropertyleased
143

DOMINANTOWNER Q: What are the obligations or limitations
imposedontheservientowner?
Q:Whataretherightsofthedominantowner?
A:IC
A:MARE
1. He cannot Impair the use of the
1. Exerciseallrightsnecessaryfortheuse easement.
oftheeasement(Art.625,NCC) 2. He must Contribute to the necessary
2. Make on the servient estate all works expensesincaseheusestheeasement,
necessary for the use and preservation unlessotherwiseagreedupon
oftheservitude(Art.627par.1,NCC) (Art.628par.2,NCC)
3. Renouncetheeasementifhedesiresto
exempt from contributing necessary B.CLASSIFICATIONSOFEASEMENT
expenses(Art.628,NCC)
4. Askformandatoryinjunctiontoprevent Q:Whataretheclassificationsofeasements?
impairment of his right. (Resolme v.
Lazo,27Phil416) A:

Q: What are the obligations of the dominant 1. Astorecipientofthebenefit:
owner? a. Real(orPredial)Theeasementis
infavorofanotherimmovable.
A:CANC b. PersonalTheeasementisinfavor
ofacommunity,orofoneormore
1. He cannot Alter the easement or personstowhomtheencumbered
render it more burdensome. (Art. 627 estate does not belong (easement
par.1,NCC) of right of way for passage of
2. He shall Notify the servient owner of livestock).
works necessary for the use and
preservationoftheservitude.(Art.627 2.Astopurposeornatureoflimitation:
par.2,NCC) a. PositiveOnewhichimposeupon
3. He must Choose the most convenient the servient estate the obligation
time and manner of making the of allowing something to be done
necessary works as to cause the least orofdoingithimself.
inconveniencetotheservientowner. b. Negative That which prohibits
4. Ifthereareseveraldominantestateshe the owner of the servient estate
must Contribute to the necessary from doing something which he
expenses in proportion to the benefits could lawfully do if the easement
derived from the works (Art. 628 par. didnotexist
1,NCC)
3. Astothemannerofexercised:
SERVIENTOWNER a. ContinuousTheirusemayormay
notbeincessant
Q:Whataretherightsoftheservientowner?
Note: For acquisitive
A:RMC prescription, the easement of
aqueduct and easement of light
1. Retaintheownershipoftheportionof and view are considered
the estate on which easement is continuous.
imposed
2. Makeuseoftheeasementunlessthere b. Discontiuous used at intervals
is an agreement to the contrary. (Art. anddependupontheactsofman.
628par.2,NCC),
3. Changetheplaceormanneroftheuse Right of way because it may be
oftheeasement,provideditbeequally exercised only if a person passes or
convenient(Art.629,par.2,NCC) setsfootonsomebodyelsesland.

4. As to whether their existence is
indicated:

144 CIVILLAWTEAM:

PROPERTY
a. Apparent Made known and e.g. Easement of light and view

continually kept in view by where the owner is prohibited from
external signs that reveal the obstructingthepassageoflight.
use and enjoyment of the
same 1.LEGALEASEMENT

e.g.rightofwaywhenthereis Q:WhatisaLegalEasement?
an alley or a permanent
path A:Aneasementestablishedbylawforpublicuse
orfortheinterestofprivatepersons.
b. NonapparentTheyshowno
external indication of their Q:WhatisaPublicLegalEasement?
existence.
A: A Public Legal Easement is for public or

e.g. easement of not building communaluse.
to more than a certain
height. Q:WhatisaPrivateLegalEasement?
A:APrivateLegalEasementsisfortheinterestof
5. Astotherightgiven:
privatepersonsorforprivateuse.

a. Right to partially use the
Q:Whatarethekindsoflegaleasements?
servientestate
e.grightofway A:WINDPLW
b. Right to get specific materials
or objects from the servient 1. EasementrelatingtoWaters
estate 2. EasementrelatingtorightofWay
c. right to participate in 3. Intermediate distances and works for
ownership certainconstructionandplantings
e.geasementofpartywall 4. EasementagainstNuisance
d. Right to impede or prevent 5. DrainageofBuilding
the neighboring estate from 6. EasementofPartywall
performing a specific act of 7. EasementofLightandview
ownership.
A.RIGHTOFWAY
6. Astosource:
a. Legal those created by law for
publicuseorprivateinterests. Q:Whatisrightofway?
b. Voluntary constituted by will or
agreement of the parties or by A:Itistherighttodemandthattheownerofan
testator. estatesurroundedbyotherestatesbeallowedto
c. Mixed created partly by pass thru the neighboring estates after payment
agreementandpartlybylaw. ofproperindemnity.

7. Astothedutyoftheservientowner: Q:Caneasementofrightofwaybeacquiredby
a. PositiveImposesupontheowner prescription?
of the servient estate the
A:No,becauseitisdiscontinuousorintermittent
obligationofallowingsomethingto
(Ronquillo, et al. vs. Roco, GR No. L10619, Feb.
bedoneordoingithimself.
28,1958).

e.g. right of way imposes the duty
toallowtheuseofsaidway.
Q: What kind of servitude in favor of the
government is a private owner required to
b. Negative Prohibits the owner of recognize?
the servient estate from doing
A: The only servitude which he is required to
somethingwhichhecouldlawfully
recognizeinfavorofthegovernmentis:
doiftheeasementdidnotexist.

1. theeasementofapublichighway,
2. privatewayestablishedbylaw,or
145

3. any government canal or lateral that A: Romulo will prevail. Under Art. 650, the
hasbeenpreexistingatthetimeofthe easement of right of way shall be established at
registrationoftheland. the point least prejudicial to the servient estate
andwherethedistancefromthedominantestate
Note: If the easement is not preexisting and is to a public highway is the shortest. In case of
sought to be imposed only after the land has been conflict, the criterion of least prejudice prevails
registered under the LR Act, proper expropriation over the criterion of shortest distance. Since the
proceedings should be had, and just compensation route chosen by Federico will prejudice the
paid to the registered owner (Eslaban v. Vda De housingproject ofRomulo,Romulohastheright
Onorio,G.R.No.146062). to demand that Federico pass another way even
thoughitwillbelonger.(2000BarQuestion)
Q:Whataretherequisitesforeasementonright
ofway? Q:SpousesdelaCruzareoccupantsofaparcelof
landlocatedatthebackofRamiscalsproperty.
A:POOND
They use as their pathway, to and from the
nearest public highway from their property, a
1. The easement must be established at
longstripoflandownedbyRamiscal.Theyalso
the point least Prejudicial to the
enclosed such strip of land with a gate, fence,
servientestate
and roof. Ramiscal demanded that the spouses
2. ClaimantmustbeanOwnerofenclosed
demolishthesame.Thespousesrefused.Arethe
immovableorwithrealright
spousesentitledtoarightofway?
3. TheremustbenoadequateOutlettoa
publichighway
A: No. There is no voluntary nor legal easement
4. The right of way must be absolutely
established.Thespousesfailedtoshowthatthey
Necessarynotmereconvenience
entered into an agreement with Ramiscal to use
5. The isolation must not be Due to the
thepathway.Art649providesthattheeasement
claimantsownact
of right of way is not compulsory if the isolation
6. There must be payment of proper
of the immovable is due to the proprietors own
Indemnity.
acts. Mere convenience for the dominant estate

is not enough to serve as its basis. There should
Q: What if the property is not the shortest way
benootheradequateoutlettoapublichighway.
and will not cause the least damage to the
Also,underArt.649,itistheowneroranyperson
servientestate?
whobyvirtueofarealrightmaycultivateoruse
any immovable surrounded by other immovable
A: The way which will cause the least damage
pertaining to other persons, who is entitled to
shouldbeusedevenifitwillnotbetheshortest.
demand a right of way through the neighboring
Theeasementofrightofwayshallbeestablished estates. Here, the spouses fell short of proving
atthepointleastprejudicialtotheservientestate that they are the owners of the supposed
andwherethedistancefromthedominantestate dominantestate.(Eslabanv.VdaDeOnorio,G.R.
to a public highway is the shortest. In case of No.146062)
conflict, the criterion of least prejudice prevails
Q: David owns a subdivision which does not
overthecriterionofshortestdistance
haveanaccesstothehighway.Whenheapplied
Q: What does least prejudicial mean in for a license to establish the subdivision, he
determiningtherightofway? represented that he will purchase a ricefield
located between his land and the highway, and
A: It means it is the shortest way and the one develop it into an access road. However, when
whichwillcausetheleastdamagetotheproperty thelicensewasgranted,hedidnotbuytherice
to the servient estate in favor of the dominant field, which remained unutilized. Instead, he
estate. chose to connect his subdivision with the
neighboringsubdivisionofNestor,whichhasan
Q: The coconut farm of Federico is surrounded access to the highway. When Nestor and David
bythelandsofRomulo.Federicoseeksarightof failed to arrive at an agreement as to
waythroughaportionofthelandofRomuloto compensation, Nestor built a wall across the
bringhiscoconutproductstothemarket.Hehas road connecting with Davids subdivision. Is
chosen a point where he will pass through a David entitled to an easement of right of way
housingprojectofRomulo.Thelatterwantshim through the subdivision of Nestor which he
to pass another way which is 1km longer. Who claims to be the most adequate and practical
shouldprevail? outlettothehighway?
146 CIVILLAWTEAM:

PROPERTY
A: No, David is not entitled to the right of way Q:Issaidextinguishmentautomatic?

beingclaimed.Theisolationofhissubdivisionwas
duetohisownactoromissionbecausehedidnot A: No. There must be a demand for
developanaccessroadtothericefieldswhichhe extinguishmentcoupledwithtenderofindemnity
was supposed to purchase according to his own bytheservientowner.
representation when he applied for a license to
establish the subdivision. (Floro vs. Llenado, 244 Q:EmmaboughtaparceloflandfromEquitable
SCRA713) PCI Bank, which acquired the same from Felisa,
theoriginalowner.Thereafter,Emmadiscovered
Q: How much is the proper indemnity to the that Felisa had granted a right of way over the
servientestate? landinfavorofthelandofGeorgina,whichhad
no outlet to apublic highway, but the easment
A:Ifthepassageis: wasnotannotatedwhentheservientestatewas
registeredundertheTorrenssystem.Emmathen
1. Continuous and permanent the filed acomplaint for cancellation of the right of
indemnity consists of the value of the way, on the ground that it had been
land occupied plus the amount of extinguished by such failure to annotate. How
damagescausedtotheservientestate. wouldyoudecidethecontroversy?
2. Temporary indemnity consists in the
paymentofthedamagecaused A:Thecomplaintforcancellationofeasementof
rightofwaymustfail.Thefailuretoannotatethe
Q:Howwideshouldaneasementofrightofway easement upon the title of the servient estate is
be? not among the grounds for extinguishing an
easementunderArt.631oftheCivilCode.Under
A:Thewidthoftheeasementshallbethatwhich Art 617, easements are inseparable from the
is sufficient for the needs of the dominant estatetowhichtheyactivelyorpassivelybelong.
estate.(Art.651,NCC) Once it attaches, it can only be extinguished
underArt631,andtheyexisteveniftheyarenot
Q: Can a dominant owner demand a driveway stated or annotated as an encumbrance on the
forhisautomobile? Torrens title of the servient estate. (2001 Bar
Question)
A: Yes, due to necessity of motor vehicles in the
presentage. OTHERLEGALEASEMENTS
Q:Whoisresponsibleforrepairsandtaxes? WATERS
A: Q:Whatarethedifferenteasementsrelatingto
waters?
1.As to repairs the dominant owner is
liablefornecessaryrepairs. A:Theseare:DRAWBN
2. Astoproportionateshareofthetaxesit
shall be reimbursed by said owner to 1. Naturaldrainage(Art.637)
the proprietor of the servient estate. 2. drainageofBuildings(Art.674)
This applies only to permanent 3. easementonRiparianbanksfor
easements.(Art.654,NCC) navigation,floatage,fishing,
salvage,andtowpath(Art.638)
Q: What are the special causes of 4. easementofaDam(Arts.639,647)
extinguishmentofrightofway? 5. easementfordrawingWaterorfor
wateringanimals(Arts.640641)
A: 6. easementofAqueduct(Arts.642
636)
1. Theopeningofapublicroad,or
NATURALDRAINAGE
2. Joining the dominant tenement to
another which has an exit to a public Note: Lowerestates must receivewaterswhich are
road. naturally and without intervention of man descend
from higher estates including earth and stones
carriedwiththem.
147

Q:Whatareitslimitations? PARTYWALL
A: Q:Whatisapartywall?
a. Dominantownermustnotincreasethe A: A common wall which separates two estates,

burdenbuthemayerectworkstoavoid built by common agreement at the dividing line
erosion. suchthatitoccupiesaportionofbothestateson
equalparts.
b. The servient owner must not impede
thedescentofwater(butmayregulate Note:itisakindofcompulsorycoownership.
it).
Q: Distinguish easement of party wall from co
EASEMENTFORDRAWINGWATERORFOR ownership.
WATERINGANIMALS
A:
Note:Thisisacombinedeasementfordrawingof
waterandrightofway. PARTYWALL COOWNERSHIP
Canbedivided
Q:Whataretherequisitesforeasementfor
Sharesofcoowners physically;acoowner
wateringcattle?
cannotbephysically cannotpointtoany
segregatedbuttheycan definiteportionofthe
A:
bephysicallyidentified propertybelongingto
1. Itmustbeimposedforreasonsofpublic him
use Noneofthecoowners
2. Itmustbeinfavorofatownorvillage mayusethecommunity
Nolimitationastouse
indemnitymustbepaid propertyforhis
ofthepartywallfor
exclusivebenefit
exclusivebenefitofa
becausehewouldbe
party
Note:therighttomakethewaterflowthruor invadingontherightsof
underinterveningorlowerestates theothers
Anyownermayfree
Q:Whataretherequisitesfordrawingwateror
himselffrom
forwateringofanimals?
contributingtothecost
Partialrenunciationis
A: ofrepairsand
allowed
constructionofaparty
1. Owner of the dominant estate has the wallbyrenouncingALL
capacitytodisposeofthewater; hisrights
2. The water is sufficient for the use
intended Q: What are the presumptions (juris tantum) of
3. Proposed right of way is the most existenceofapartywall?
convenient and the least onerous to
thirdpersons. A:
4. Pay indemnity to the owner of the 1. in adjoining walls of building, up to
servientestate(Art.643) commonelevation
2. in dividing walls of gardens and yards
EASEMENTOFAQUEDUCT (urban)
3. individingfences,wallsandlivehedges
Q:Howistheeasementofaqueductconsidered? ofruraltenements
4. Inditchesordrainsbetweentenements
A:Forlegalpurposes,itisconsideredcontinuous
andapparenteventhoughtheflowofwatermay Rebuttalofpresumption:
not be continuous or its use depends upon the 1. Title
needsofthedominantestateoruponaschedule 2. bycontraryproof
ofalternatedaysorhours.(Art.646,NCC) 3. bysignscontrarytotheexistenceofthe
servitude(Arts.660&661,NCC)
Note: If the signs are contradictory, they
canceleachother.

148 CIVILLAWTEAM:

PROPERTY
Q: Who spends for the cost of repairs and Q: What are the conditions for drainage of
constructionofpartywalls? buildings?
A: The partowners. They are obliged to
contribute in proportion to their respective A:
interests.
1. Noadequateoutlet
Q:Mayanownerrefusetocontribute? 2. The outlet must be at the point where
egress is easiest and establishing a
A: conduitforthedrainageofwater
3. Properindemnity
GR: Yes, any owner may free himself from
the obligation to contribute by renouncing LATERALANDSUBJACENTSUPPORT
hisrightsinthepartywall.
Q: Can there be a stipulation or testamentary
XPN: When the party wall actually supports provision allowing excavations that could cause
his building, he cannot refuse to contribute dangertoanadjacentlandorbuilding?
fortheexpensesorrepairandconstruction.
(Art.662,NCC) A:No,thesameshallbevoid.(Art.685,NCC)
XPNtoXPN:Iftheownerrenounceshispart Reason:apersonisprotectedevenagainsthisown
ownership of the wall, in this case he shall folly,intheinterestofpublicsafety.(Paras,p.729)
bear the expenses of repairs and work
necessary to prevent any damage which Q: What should be done first before making an
demolitionmaycausetothepartywall.(Art. excavation?
663,NCC)
A: Any proprietor who intends to make any
Q:Mayanownerincreasetheheightofaparty excavation shall notify all owners of adjacent
wall? lands.
A:Yes,providedthathemust: 2.VOLUNTARYEASEMENT
1. dosoathisownexpense; Q:Whenisaneasementvoluntary?
2. payforanydamagecausedevenifitis
temporary; A:itisvoluntarywhenitisestablishedbythewill
3. He must bear the cost of maintaining oftheowners.
theportionadded;
4. He must pay the increased cost of Q:Whomayconstitutevoluntaryeasements?
preservationofthewall(Art.664,NCC);
A: The owner possessing capacity to encumber
5. He shall be obliged to reconstruct the
property may constitute voluntary servitude. If
wall at his expense if necessary for the
there are various owners, all must consent; but
walltobeartheincreasedheightandif
consentoncegivenisnotrevocable.
additionalthicknessisrequired,heshall
provide the space therefore from his
Q: For whose favor are voluntary easements
ownland.
established?

DRAINAGEOFBUILDINGS A:
1. Predialservitudes:
Q:Definedrainageofbuildings
a. for the owner of the dominant
estate
A: It is the right to divert the rain waters from
b. for any other person having any
onesownrooftotheneighboringestate.
juridical relation with the
dominant estate, if the owner
ratifiesit.
2. Personal servitudes: for anyone
capacitatedtoaccept.

149

Q: How are voluntary easements created and Q:Whatiseasementofview(jusprospectus)?
whatarethegoverningrulesforsuch?
A: The right to make openings or windows to
A: enjoytheviewthrutheestateofanotherandthe
power to prevent all constructions or works
1.Ifcreatedbytitle(contract,will,etc.),the whichcouldobstructsuchviewormakethesame
titlegoverns. difficult.
2.Ifacquiredbyprescription,itisgoverned Note:Itnecessarilyincludeseasementoflight.
bythemannerorformofpossession.
Q: What are its modes of acquisition of
In both cases, the Civil Code will only easementoflightandview?
applysuppletorily.
A:
C.MODESOFACQUIRINGEASEMENTS 1.bytitle
2.byprescription
1.COMPULSORYEASEMENTS
Q:Whatistheprescriptiveperiodforacquisition
Q:Howareeasementsacquired? ofeasementoflightandview?

A:FARTP A:10years.
1. ByTitleAlleasements:
a. Continuous and apparent (Art. Q:Fromwhendoestheprescriptiveperiodstart
620) torun?
b. Continuous nonapparent (Art.
622) A: The reckoning point depends on whether the
c. discontinuous, whether easementispositiveornegativewhich,inturn,is
apparentornonapparent(Art. dependent on where the opening is made if it is
622) made:
2. ByPrescriptionoftenyears
continuousandapparent(Art.620) 1. On ones own wall and the wall does
3. BydeedofRecognition notextendoverthepropertyofanother
4. ByFinaljudgment Theeasementisnegative.
5. By Apparent sign established by the
ownerofthetwoadjoiningestates Commencement of Period of
prescription starts from the time
Q:Howistheprescriptiveperiodcomputed? formalprohibitionismade.

A: Reason: The owner merely exercises his
rightofdominionandnotofaneasement.
a. Positive easement the period is
Negative easement is not automatically
counted from the day when the owner
vested as formal prohibition is a pre
of the dominant estate begins to requisite.
exerciseit
b. Negative easement from the day a 2. Thru a party wall or on ones own wall
notarial prohibition is made on the which extends over the neighboring
servientestate estateTheeasementispositive.

CommencmentofPeriodofprescription
2.EASEMENTOFLIGHTANDVIEW
starts from the time the window is
opened.
Q:Whatiseasementoflight(jusluminum)?
Reason: owner of the neighboring estate
A: The right to admit light from neighboring who has a right to close it up allows an
estate by virtue of the opening of a window or encumbranceonhisproperty.
themakingofcertainopenings.

150 CIVILLAWTEAM:

PROPERTY
Q:Howaboutwithregardtoopeningsatheight Q: How is easement of light and view

ofceilingjoists? extinguished?
A:
A: The owner of a wall which is not a party wall
maymakeanopeningtoadmitlightandair,but 1. Merger
notviewsubjecttotheff: 2. When the easement can no longer be
used
1. The size must not be more than 30 3. Expirationoftheterm(iftemporary)or
squarecentimeters fulfillment of the condition (if
2. The opening must be at the height of conditional)
the ceiling joists or immediately under 4. Renunciation of the owner of the
theceiling dominant estate of the redemption
3. There must be an iron grating agreedupon
imbeddedinthewall 5. Nonuserfor10years
4. Theremustbewireascreen.
EXTINGUISHMENTOFEASEMENTS
Q: What are the restrictions as to easement of
views? Q:Howareeasementsextinguished?
A: A:MARINECREW
1. Direct Views: the distance of 2 meters
between the wall and the boundary 1. Merger of ownership of the dominant
mustbeobserved andservientowner
2. Oblique Views: (walls perpendicular or 2. Annulmentofthetitletotheservitude
at an angle to the boundary line) must 3. Redemptionagreedupon
notbe60cmtothenearestedgeofthe 4. Impossibilitytousetheeasement
window. 5. Nonuser:10years
6. Expiration of the term or fulfillment of
Note: Any stipulation to the contrary is void (Art. theresolutorycondition
673,NCC). 7. Bad Condition when either or both
estates fall into such a condition that
Q: What if the wall upon which an opening is theeasementcouldnotbeused
made,becomesapartywall? 8. Resolution of the right of grantor to
create the easement (as when the
A: A partowner can order the closure of the vendoraretroredeemstheland)
opening. No partowner may make an opening 9. Expropriationoftheservientestate
thru a party wall without the consent of the 10. Waiver by the dominant owner
others. gatheredfrompositiveacts
Note:Ifthewallbecomesapartywallhecanclose
the window unless there is a stipulation to the X.NUISANCE
contrary(Art.669,CivilCode,Parasp.715)
Q:Whatisanuisance?
Q: Does nonobservance of the distances
providedinArticle670giverisetoprescription? A:Any:

A: No, this refers to a negative easement as the 1. act,
windowisthruawallofthedominantestate. 2. omission,
3. establishment,
Note: No windows, apertures, balconies, or other
4. businessor
similar projections which afford a direct view upon
or towards an adjoining land or tenement can be
5. conditionofpropertyor
made, without leaving a distance of two meters 6. anythingelsewhich:ISAHO
between the wall inwhich they are made andsuch a. Injures/dangers the health or
contiguous property. Neither can side or oblique safetyofothers
viewsuponortowardssuchconterminousproperty b. Shocks, defies or disregards
be had, unless there be a distance of sixty decencyormorality
centimeters. The nonobservance of these distances c. Annoysoroffendsthesenses
does not give rise to prescription. (Art. 670, Civil d. Hinders or impairs the use of
Code) propertyor
151

e.
Obstructs or interferes with the Q:Distinguishnuisancepersefromnuisanceper
freepassagetoanypublichighway accidens.
orstreetorbodyofwater
A:
Q:Mayanuisancebebothpublicandprivate?
PERSE PERACCIDENS
A:Yes,itiscalledmixednuisance. Asamatteroflaw Asamatteroffact
Dependsuponits
e.g.Ahousewashedontoastreetrailwaytrack: locationand
private nuisance to the railway company and a Needonlybeproved
surroundings,the
publicnuisancebecauseitobstructsthestreet. inanylocality
mannerofitsconduct
orothercircumstances
Q:Distinguishnuisancefromtrespass. Maybeabatedonly
Maybesummarily withreasonablenotice
A: abatedunderthelaw tothepersonallegedto
ofnecessity bemaintainingordoing
Nuisance Trespass suchnuisance

Useofonesown Directinfringementof
propertywhichcauses anothersrightor ATTRACTIVENUISANCE
injurytoanother property
Q:Whatisthedoctrineofattractivenuisance?
Injuryisdirectand
Injuryisconsequential A. One who maintains on his estate or premises
immediate
an attractive nuisance without exercising due
case to prevent children from playing therewith

orresortingthereto,isliabletoachildoftender
Q:Whatarethekindsofnuisance?
years who is injured thereby, even if the child is
A:
technically a trespasser in the premises. (Jarco
1. Accordingtothenumberofpersons Marketing Corp. v. CA, 117 SCAD 818, 321 SCRA
affected: 375(1991),Paras,p.741)

Q:Whatisthebasisfortheliability?
a. Public(orcommon)nuisanceis
onewhichaffectsthecommunity
A: The attractiveness is an invitation to children.
orneighborhoodorconsiderable
Safeguards to prevent danger must therefore be
numberofpersons
setup.
b. Privatenuisanceisonewhich
affectsanindividualorfew Q: What are the elements of attractive
personsonly. nuisance?
2. Otherclassificationofnuisance:
A:
a. NuisancePerSethatkindof
nuisancewhichisalwaysa 1. Itmustbeattractive
nuisance.Byitsnature,itisalways 2. Dangeroustochildrenoftenderyears.
anuisanceatalltimesandunder
anycircumstancesregardlessof Q:Isaswimmingpoolanattractivenuisance?
locationofsurroundings.
A:
b. NuisancePerAccidensthatkind
ofnuisancebyreasonoflocation, GR:Aswimmingpoolorwatertankisnotan
surroundingorinthemanneritis attractivenuisance,forwhileitisattractive,
conductedormanaged. it is merely an imitation of the work of
nature.Hence,ifsmallchildrenaredrowned
in an attractive water tank of another, the
ownerisnotliableeveniftherebenoguards
in the premises (Hidalgo Enterprises v.
Balandan,et.al,L3422Jun.13,1952).
152 CIVILLAWTEAM:

PROPERTY
XPN:Swimmingpoolwithdangerousslides XI.ACTIONTOQUIETTITLE
Note: The doctrine of attractive nuisance does not Q:Whatisanactiontoquiettitle?

generally apply to bodies of water, artificial as well
asnaturalintheabsenceofsomeunusualcondition A:Itisanactionforthepurposeofputtinganend
or artificial other than the mere water and its to vexatious litigation with respect to the
location. propertyinvolved.
REMEDIESAGAINSTNUISANCE Note: An action to quiet title is quasi in rem an

action in personam concerning real property where
Q:Whataretheremediesagainstnuisance? judgment therein is enforceable only against the
defeatedpartyandhisprivies.
A:Ifthenuisanceis:
Q:Whatarethereasonsforquietingtitle?
PUBLIC PRIVATE
Civilaction CivilAction A:
Abatementw/ojudicial Abatementw/ojudicial
proceedings proceedings 1. preventlitigation;
Prosecutionunder 2. protecttruetitleandpossession;
RPC/localordinance 3. real interest of both parties which
requires the determination of the
Q: What are the requisites of extrajudicial precisestateoftitle.
abatement?
A:BARVID Q:Whataretheinstanceswhereactiontoquiet
titledoesnotapply?
1. ThenuisancemustbespeciallyInjurious
tothepersonaffected. A:
2. No Breach of peace or unnecessary
injurymustbecommitted GR:
3. Demand must first be made upon the
1. Toquestionsinvolvinginterpretationof
owner or possessor of the property to
documents;
abatethenuisance.
2. Tomerewrittenororalassertionsof
4. DemandisRejected
claims.
5. Abatement is Approved by the district

health officer and executed with the
XPNs:
assistanceofthelocalpolice,and
1. Ifmadeinalegalproceeding
6. Value of destruction does not exceed
2. If it is being asserted that the
P3,000
instrumentorentryinplaintiffsfavoris
notwhatitpurportstobe
Q: When can an owner of the thing abated 3. Toboundarydisputes
recoverdamages? 4. Todeedsbystrangerstothetitleunless
purporting to convey the property of
A: If the thing is found by the court not to be a theplaintiff
nuisance,theownercanclaimdamages. 5. Toinstrumentsinvalidontheirface
6. Where the validity of the instrument
Note: A private person or a public official involvespurequestionsoflaw
extrajudicially abating a nuisance shall be liable for
damages if he causes unnecessary injury or if the
allegednuisanceislaterdeclaredbythecourtstobe
notrealnuisance.
Q:Doestherighttoquestiontheexistenceofa
nuisanceprescribe?
A:No.Itisimprescriptible.
153

Q: Edgardo donated a parcel of land to a A.OCCUPATION
barangaysubjecttotheconditionthatitshallbe
usedfortheconstructionofapublicplazawithin Q:Whataretherequisitesofoccupation?
5yearsfromexecutionoftheDeedofDonation.
Otherwise, the deed shall have no force and
A:WISCS
effect and ownership of the land will revert to
1. TheremustbeSeizureofathing,
thedonor.Thebarangaytookpossessionofthe
2. which must be a Corporeal personal
property and allowed the construction of
property,
buildingsbypublicandprivateentities.Edgardo
3. which must be Susceptible of
filed a complaint for quieting of title and
appropriationbynature
recovery of possession of the area donated
4. ThethingmustbeWithoutanowner
againstthebarangayclaimingthatthedonation
5. There must be an Intention to
hadceasedtobeeffective,forfailuretocomply
appropriate.
with the conditions of the donation. Was the

actiontoquiettitleproperlymade?
Q:Distinguishoccupationfrompossession.
A:No.Theactiontoquiettitleisunavailinguntil
A:
thedonationshallhavefirstbeenrevoked.Inthe
case at bar, the barangay traces its claim of
ownership over the disputed property to a valid OCCUPATION POSSESSION
contractofdonationwhichisyettobeeffectively Asregardsacquisitionofownership
revoked.Suchrightfulclaimdoesnotconstitutea Merelyraisesthe
cloud on the supposed title of Edgardo over the presumptionof
same property removable by an action to quiet Modeofacquiring
ownershipwhen
title.(Dolarv.Brgy.Lublub,G.R.No.152663,Nov. ownership
exercisedinthe
18,2005) conceptofowner
XII.MODESOFACQUIRINGOWNERSHIP Astopropertyinvolved
Involvesonlycorporeal
Anykindofproperty
Q:Differentiatemodefromtitle. personalproperty
Asregardsownershipofthethingbyanother
A:
Requiresthattheobject Thepropertymaybe
MODE TITLE bewithoutanowner ownedbysomebody
Directly and Serves merely to give Asregardstheintenttoacquire
immediatelyproducesa the occasion for its Maybehadinthe
Theremustbeanintent
realright acquisitionorexistence conceptofamere
toacquireownership
Cause Means holder
Proximatecause Remotecause Asregardspossession
Essence of the right Maynottakeplacew/o
Means whereby that Mayexistw/o
which is to be created someformof
essenceistransmitted occupation
ortransmitted possession
Astoperiod

Q:Whatarethemodesofacquiringownership? Shortduration Generallylonger
Astoleadingtoanothermodeofacquisition
A:OLDTIPS
Cannotleadtoanother Mayleadtoanother
modeofacquisition modeprescription
1. Occupation
2. Law
3. Donation
4. Tradition
5. Intellectualcreation
6. Prescription
7. Succession

154 CIVILLAWTEAM:

PROPERTY
Q:Whatarethethingssusceptibleof death because they partake of a will

occupation? (Art.728,NCC)

A: Q: What are the essential features or elements
1. Thingsthatarewithoutanownerres ofatruedonation?
nullius;abandoned
Note:Stolenpropertycannotbesubjectof A:
occupation
1. Alienation of property by the donor
2. Animals that are the object of hunting duringhislifetime,whichisaccepted
andfishing 2. Irrevocability by the donor of the
3. Hiddentreasure donation
4. Abandonedmovables. 3. AnimusDonandi(donativeintent)
4. Consequent impoverishment of the
Q: May a person acquire ownership over a wild donor(diminutionofhisassets)
animalbyoccupation?
A: Wild animals are considered res nullius when Q: What rules govern donations of the same
not yet captured. After its capture, animals that thingtodifferentdonees?
escapedbecomeresnulliusagain.
A: These are governed by provisions on double
Q:Whencanlandbetheobjectofoccupation? saleassetforthinArticle1544.(Art.744,NCC)
A:Itdepends.
Note: If the same thing should have been sold to
1. If without an owner, it pertains to the different vendees, the ownership shall be
State(RegalianDoctrine). transferredtothepersonwhomayhavefirsttaken
2. If abandoned and the property is possession thereof in good faith, if it should be
private, it can be the object of movableproperty.Shoulditbeimmovableproperty,
occupation. theownershipshallbelongtothepersonacquiringit
3. And if the land does not belong to whoingoodfaithfirstrecordeditintheRegistryof
Property. Should there be no inscription, the
anyoneispresumedtobepublic.
ownership shall pertain to the person who in good

faithwasfirstinthepossession;and,intheabsence
B.DONATION
thereof,tothepersonwhopresentstheoldesttitle,
providedthereisgoodfaith(Art.1544,CivilCode)
1.DEFINITION
OBJECTOFDONATIONS
Q:Whatisdonation?
Q:Whatmaydonationcover?
A:Itisanactofpureliberalitywherebyaperson
disposesgratuitouslyofathingorrightinfavorof A: Donation may cover all present property.
anotherwhoacceptsit.(Art.725,CivilCode.) Donationscannotcomprehendfutureproperty.
Q:Whataretherequisitesofdonation? (Art.751,NCC)
A:ACID Q:Canfutureinheritanceortheinchoaterightto
inheritbedonated?
1. Donor must have Capacity to make the
donation A:No,becauseitisfutureproperty.
2. He must have donative Intent (animus
donandi) Q: May property, the acquisition of which is
3. TheremustbeDelivery subjecttosuspensiveconditionbedonated?
4. Donee must Accept or consent to the
donation during the lifetime of the A: Yes, because once the condition is fulfilled, it
donor and of the donee in case of retroacts to the day the contract is constituted.
donation inter vivos (Art. 746, NCC); (Art.1187par1,NCC)
whereas in case of donation mortis
causa,acceptanceismadeafterdonors
155

Q: May ownership and usufruct of property be It is merely reducible to the extent that the
donatedtodifferentpersonsseparately? supporttohimselfandhisrelativesisimpairedor
prejudiced.(PinedaProperty,p.571,1999ed)
A: Yes, provided all the donees are living at the
timeofdonation.(Art.756,NCC) Q:Whatisreversionindonation?
Q: Is there a limitation on the amount that can
bedonated? A: It is a condition established in the deed of
donation which has for its effect the restoration
A: orreturnofthepropertydonatedtothedonoror
hisestateorinfavorofotherpersonswhomust
1. Ifthedonorhasforcedheirshecannot belivingatthetimeofthedonationforanycause
give or receive by donation more than orcircumstances.(Art.757)
whathecangiveorreceivebywill.
2. If the donor has no forced heirs, Note: If the reversion is in favor of other persons
donation may include all present whoarenotalllivingatthetimeofthedonation,the
property provided he reserves in full reversion stipulated shall be void, but the donation
ownershiporinusufruct: shallremainvalid.
a. the amount necessary to support
himandthoserelativesentitledto 3.KINDS
supportfromhim.
b. property sufficient to pay the
Q:Whatarethekindsofdonation?
donors debt contracted prior to

thedonation.
A:

2.CHARACTERISTICS
1. Accordingtomotiveorcause:SRMO

a. Simple
A.EXTENTTOWHICHDONORMAYDONATE
b. Remuneratory(1stkind)
PROPERTY
c. Remuneratory(2ndkind):

ConditionalorModaldonations
Q:Uptowhatextentmayadonationcover?
d. Onerousdonations
2. Astoperfectionorextinguishment:
A:Itmaycomprehendallthepresentpropertyof a. Pure
thedonor,orpartthereof,providedhereserves, b. Withacondition
in full ownership or in usufruct, sufficient means c. Withaterm
for the support of himself, and of all relatives 3. Accordingtoeffectivity:
who, at the time of the acceptance of the a. Intervivos(Art.729,CivilCode)
donation,arebylawentitledtobesupportedby b. MortisCausa(Art.728,CivilCode)
thedonor.(Art.750,NCC) c. PropterNuptias

Q:Canfuturepropertiesbesubjectofdonation?

A: No, donations cannot comprehend future
properties

Note: Future property means anything which the
donorcannotdisposeofatthetimeofthedonation.
(Art.751,NCC)

B.RESERVATIONSANDREVERSIONS

Q:Whatistheeffectifthedonorviolatesthe

requirementforreservationunderArticle750?

A: A donation where the donor did not reserve
propertyorassetsforhimselfinfullownershipor
in usufruct sufficient for his support and all
relativeslegallydependentuponhim,isnotvoid.
156 CIVILLAWTEAM:

PROPERTY
Q:Discussthekindsofdonationaccordingto 2. Donation cannot comprehend Future

motiveorcause? property except donations between
future husband and wife (See Art. 84
A: FC)
3. Nopersonmaygivebywayofdonation
PURPOSE FORM Morethanhemaygivebywill
Simple
sametothatofformsin B.DONATIONBYREASONOFMARRIAGE
pureliberality
donations
Remuneratory(1stkind)
torewardpastservices Q:Whataredonationsbyreasonofmarriageor
providedtheservicesdo sametothatofformsin donationspropternuptias(DPN)?
notconstitutea donations
demandabledebt. A: Those donations which are made before the
Remuneratory(2ndkind) celebration of the marriage, in consideration of
1. rewardfuture thesame,andinfavorofoneorbothparties.
services;or
1. Oneroussame
2. becauseof Q: What are the grounds for filing an action for
formofthatof
futurecharges revocationofaDPN?
contracts
orburdens,
2. Gratuitious
whenthevalue A:
sameformof
ofsaidservices, 1. Marriageisnotcelebrated
thatof
burdens,or 2. Marriageisjudiciallydeclaredvoid
donations
chargesisless 3. Marriagetookplacewithoutconsentof

thanthevalueof parents,whenrequiredbylaw
thedonation. 4. Marriageisannulledanddoneeactedin
Onerous
badfaith
Burdens,chargesor
sameasthatof 5. Uponlegalseparation,doneebeingthe
servicesareequalin
contracts guiltyspouse
valuetothatofthe
6. Donation subject to resolutory
donation.
conditionandittookplace
7. Doneecommittedanactofingratitude
Q:Discussthekindsofdonationaccordingto
motiveorcause?
A: C.DONATIONMORTISCAUSA
1. Pure donation is one which is not
subjecttoanycondition Q:Whatisdonationmortiscausa?
2. Conditionalisonewhereinthedonor A: These are donations which are to take effect
imposes on the donee a condition uponthedeathofthedonor.
dependentonthehappeningofafuture
event or past event unknown to the NOTE: it partakes of the nature of testamentary
parties. provisionsandgovernedbytherulesonsuccession.
3. WithaTermisonewhereinthedonor (Art.728,NCC)
imposes on the donee a condition
dependent upon the happening of a
futureandcertainevent.

A.DONATIONINTERVIVOS
Q:Whatarethelimitationsimposedbylawin
makingdonationsintervivos?
A:RFM
1. Donor must Reserve sufficient means
forhissupportandforhisrelativeswho
are entitled to be supported by him
(Art.750,NCC)
157

Q: Distinguish donation inter vivos from Q:Whatlawswillapplytoonerousdonations?
donationmortiscausa.
A:
A:
1. Totallyonerousrulesoncontracts
INTERVIVOS
MORTISCAUSA 2. Partiallyonerous
Astowhenittakeseffect a. Portionexceedingthevalueof
Takeseffectduringthe the burden simple
lifetimeofthedonor, Takeseffectupon donations
independentlyofthehis donorsdeath b. Portion equivalent to the
death burden law on contracts
Astocauseorconsideration (PinedaProperty,p.547,1999
Incontemplationof ed)
donorsdeathwithout
Causeisdonorspure
intentiontodisposeof E.SIMPLE,MODAL,CONDITIONAL
generosity
thethingincaseof
survival
Onpredecease Q:Whatisasimpledonation?
Validifdonorsurvives
Voidifdonorsurvives A:Onewhichisnotsubjecttoanycondition
thedone
Onrevocability
Alwaysrevocableatany Q:Whatisaconditionaldonation?
Generallyirrevocable
timeandforanyreason
exceptforgrounds
beforethedonors A:Onewhereinthedonorimposesonthedonea
providedforbylaw
death condition dependent on the happening of a
Onformalities future event or past event unknown to the
Mustcomplywiththe Mustcomplywiththe parties.
formalitiesofdonations formalitiesofawill
Onwhenacceptanceismade Q: What is the effect if a suspensive condition
Acceptanceduring may take place beyond the natural expectation
Afterdonorsdeath
donorslifetime oflifeofthedonor?
Onwhenpropertyisconveyedtothedonee
Propertyretainedbythe A: The condition does not destroy the nature of
Propertycompletely
donorwhileheisstill theactasadonationintervivos,unlessacontrary
conveyedtothedonee
alive intentionappears.(Art.730)
Ontaxpayable
Donorstax Estatetax Q:Whatisamodaldonation?

D.ONEROUSDONATION A: A donation subject to burdens or charges.
Q:Whatisanonerousdonation?
4.FORMALITIESREQUIRED
A:Adonationgivenforwhichthedonorreceived
a valuable consideration which is the equivalent
A.HOWMADEANDACCEPTED
ofthepropertysodonated.

Q:Whomustmaketheacceptance?
Q:Whatarethekindsofonerousdonations?

A:Acceptancemaybemadebythedoneehimself
A:
or thru an agent with special power of attorney

otherwise,donationshallbevoid.(Art.745,NCC)
1. Totally onerous when the burden is

equaltoorgreaterthanthevalueofthe
Q:Whyisthereaneedforanacceptance?
propertydonated

A:Becausethedoneemaynotwanttoacceptthe
2. Partially onerous when the burden is
donors liberality or if donation is onerous, he
lesser than the value of the donation.
maynotagreewiththeburdenimposed.

158 CIVILLAWTEAM:

PROPERTY
Note:Donationisperfectedoncetheacceptanceof privateinstrument(Statuteof
the donation was made known to the donor. Frauds),regardlessofvalue.
Accordingly,ownershipwillonlyreverttothedonor Otherwise, donation is
iftheresolutoryconditionisnotfulfilled. unenforceable

Q: What is the effect of donations made to 2. Ofimmovableproperty:
incapacitatedpersons? a. Must be in a public instrument
specifying
A:Donationsmadetoincapacitatedpersonsshall i. thepropertydonatedand
be void, though simulated under the guise of ii. the burdens assumed by the
another contract or through a person who is donee
interposed(Art.743,NCC) b. Acceptancemaybemade:
i. Inthesameinstrumentor
Q: Who may accept donationsmade in favor of ii. In another public instrument,
minors? notified to the donor in
authentic form, and noted in
A:Ifthedonationispureandsimpleanddoesnot bothdeeds.
require written acceptance, the minors can Otherwise,donationisvoid.
acceptthedonationbythemselves
Ifthedonationneedswrittenacceptance,itmay
5.QUALIFICATIONSOFDONOR,DONEE
be accepted by their guardian or legal

representatives
Q:Whoqualifiesasadonor?

Q: Who may accept donations made to
A: Any person who has capacity to contract and
conceivedandunbornchildren?
capacity to dispose of his property. (Art. 735,
NCC)
A: Donations made to conceived and unborn

children may be accepted by those who would
Q:Whyisthereaneedforcapacitytocontract?
legally represent them if they were already born

(Art.742,NCC)
A:Becauseadonationintervivosiscontractualin
natureandisamodeofalienationofproperty.
B.PERFECTION

Q:Whenisthepossessionofcapacitytocontract
Q:Whenisadonationperfected?
bythedonordetermined?

A: Donation is perfected from the moment the
A:Hiscapacityshallbedeterminedasofthetime
donorknowsoftheacceptancebythedonee(Art.
ofthemakingofdonation.(Art.737,NCC)
734,NCC).
Note: Making of donation shall be construed to
meanperfection.
C.DIFFERENCESBETWEENFORMALITIESFOR
DONATIONOFREAL,PERSONALPROPERTIES Q:Whomayqualifyasdonees?

Q:Whatistheformalitiesrequiredfordonation A: All those who are not specially disqualified by
ofrealandpersonalproperties? law.

A: Q:Mayanunbornchildbeadonee?Adonor?
1. Ofmovableproperty:
a. With simultaneous delivery of A: An unborn child may be a donee but not a
propertydonated: donor.
i. for P 5,000 or less may be As a donee, donations made to conceived and
oral/written unborn children may be accepted by those
ii. for more than P 5,000 personswhowouldlegallyrepresentthemifthey
written in public or private werealreadyborn.(Art.742,NCC)
document Note: if the conceived child did not become a
b. Withoutsimultaneousdelivery: person,thedonationisnullandvoid
i. The donation and acceptance An unborn child cannot be a donor because it is
mustbewritteninapublicor essentialforapersontobeabletomakeadonation,
hemusthavefullcivilcapacity

159

6.EFFECTSOFDONATION/LIMITATIONS c. Thedoneshallnotbeliable
beyondthevalueofdonation
A.INGENERAL received.
Q: What rights and actions does the donee B.DOUBLEDONATIONS

acquire?
Q:Whenistheredoubledonation?
A: The donee is subrogated to the rights and
actionswhichincaseofevictionwouldpertainto
thedonor. A:Whenthesamethinghasbeendonatedtotwo
ormorepersons.
Q:Whenaredonorsliableforevictionofhidden
defects? Q:Whatistheruleincaseofadoubledonation?
A: A:TheruleondoublesaleunderArticle1544
shallbeapplicable:
1. If the donation is simple or
remunerative, donor is not liable for
eviction or hidden defects because the a. MovableOwnerwhoisfirsttopossess
donationisgratuitous,unlessthedonor ingoodfaith
actedinbadfaith. b. Immovable
2. Ifthedonationisonerous,thedonoris a. Firsttoregisteringoodfaith
liable on his warranty against eviction b. No inscription, first to possess in
and hidden defects but only to the goodfaith
extentoftheburden. c. No inscription & no possession in
good faith Person who presents
Q: What are the rules regarding the liability of oldesttitleingoodfaith
thedoneetopaythedebtsofdonor?
C.EXCESSIVE/INOFFICIOUS
A:
Q: What is the rule in case of an excessive or
1. Where donor imposes obligation upon
inofficiousdonation?
the done; (Art. 758, NCC) the done is
liable:
A:
a. to pay only debts previously
contracted; 1. A donor may not donate more than
b. for debts subsequently contracted whathecangivebywill;
only when there is an agreement
tothateffect; Reason: If he donates more than waht he
cannotgivebywill,thedonationwillbecome
Note:Notliablefordebtsinexcessofthe
excessiveandtoinsistonit,thelegitimesof
value of donation received, unless the
the compulsory heirs will be impaired.
contraryisintended.
Legitimes are reserved for the compulsory
2. Wherethereisnostipulationregarding heirs and the same cannot be impaired or
thepaymentofdebts:(Art.759,NCC) disposedofbythetestator.
a. Doneeisgenerallynotliabletopay 2. The donee cannot receive by way of

donorsdebts donation more than what he may
b. Donee is responsible only if receivebywill.
donation has been made in fraud
ofcreditors. Reason:ifthedoneecanreceivebydonation
(devise or legacy) more than what the
Note:Thepresumptionthatthedonations testator is allowed by law to give, the
was made in fraud of creditors arises
donation is inofficious and it may be
when the donor has not left sufficient
suppressed totally or reduced as to its
assets to pay his debts, at the time of
donation.
excess.
160 CIVILLAWTEAM:

PROPERTY
D.SCOPEOFAMOUNT 1. By individuals, associations or

corporations not permitted by Law to
Q:Whatpropertiesmaybedonated? makedonations;
2. By persons guilty of Adultery or
concubinageatthetimeofdonation;
A:Thedonationmaycoverallpresentpropertyof
3. By a Ward to the guardian before the
thedonor.Presentpropertyreferstopropertyof
approvalofaccounts;
the donor which he could dispose of at the time
4. By Spouses to each other during the
ofthedonation.
marriage or to persons of whom the
otherspouseisapresumptiveheir.
Q: What is the standing of the donation where 5. Between persons found guilty of the
thedonordidnotreservedpropertyorassetsfor same Criminal offense in consideration
himself sufficient for his support and all his thereof;
relativeslegallydependentuponhim? 6. To Relatives of such priest, etc. within
the 4th degree, or to the church to
A: It is valid. It is merely reducible to the extent whichsuchpriestbelongs;
that the support to himself and his relatives is 7. ToanAttestingwitnesstotheexecution
impairedorprejudiced.(Agapitov.DeJoya,[CA]. of donation, if there is any, or to the
40Off.Gaz.P.3526) spouse, parents or children or anyone
claimingunderthem;
Q:Mayfuturepropertiesbedonated? 8. TothePriestwhoheardtheconfession
of the donor during the latters last
illness, or the minister of the gospel
A: No. The donor is not yet the owner of said who extended spiritual aid to him
property.Apersoncannotgivewhathedoesnot duringthesameperiod;
own. 9. To a public Officer or his/her spouse,
descendants or ascendants in
NOTE:Futureinheritanceisfutureproperty,butnot considerationofhis/heroffice;
all future property is future inheritance. Future 10. To a Physician, surgeon, nurse, health
inheritance like future property cannot be disposed officerordruggistwhotookcareofthe
of bydonation.However, accrued inheritance,even donorduringhis/herlastillness;
if not yet delivered, may be alienated by the heir
because hereditary rights are transmitted from the
REVOCATIONORREDUCTION
moment of the death of the decedent. (Art. 777,

NCC)
A.GROUNDSFORREVOCATIONANDREDUCTION

E.INFRAUDOFCREDITORS
Q: What are the grounds for revocation of

donation?
Q: What is the remedy in case of donations
A:
executedinfraudofcreditors?
1. UnderArt.760
A:Thecreditorsmayrescindthedonationtothe a. Birthofadonorschildorchildren
extentoftheircredits.Theactionisknownas (legitimate, legitimated, or
accionpauliana. illegitimate) after the donation,
eventhoughbornafterhisdeath.
NOTE:Ifthedonordidnotreservedenough b. Appearanceofadonorschildwho
assetstopayhiscreditorswhomheowned is missing and thought to be dead
beforethedonation,thedonationispresumedto bythedonor
beinfraudofcreditors. c. Subsequentadoptionbythedonor
ofaminorchild.
7.VOIDDONATIONS
2. UnderArt.764
When the donee fails to comply with
Q:Whatarethedonationsprohibitedbylaw? any of the conditions which the donor
imposeduponthedonee.
A:Donationsmade:LAWSCRAPOP

3. Under Art. 765 by reason of
ingratitude
161

a.If the donee should commit some Q: Can a donor execute a donation subject to a
offense against the person, the condition?
honor or the property of the
donor, or of his wife or children A: Yes. A donor may execute a donation subject
underhisparentalauthority to a condition, the non fulfilment of which
b. Ifthedoneeimputestothedonor authorizes the donor to go to court to seek its
any criminal offense, or any act revocation(notreduction).
involving moral turpitude, even
though he should prove it, unless Note:thewordconditionshouldbeunderstoodin
the crime or act has been its broad sense and not in its strict legal sense. It
committed against the donee meanschargesorburdensimposedbythedonor.
himself, his wife or children under
Q: In a conditional donation, can revocation be
hisauthority
doneunilaterallybythedonor?
c. If he unduly refuses him support
when the donee is legally or
A: No. A donor cannot revoke a conditional
morally bound to give support to
donation unilaterally, that is, without going to
thedonor
court,evenifthedoneehadbreachedanyofthe

obligations imposed in the donation. A Judicial
Q: What are the grounds for reduction of
action is essential if the donee refuses to return
donation?
theproperty,orpayitsvaluetothedonor,orto
lattersheirsorassigns.However,theactionmust
A:ThesamegroundsforrevocationunderArticle
be filed within the prescriptive period fixed buy
760. The donation shall be reduced insofar as it
law, otherwise, it will be barred. (Ongsiaco v.
exceeds the portion that may be freely disposed
Ongsiaco,101Phil1196)
ofbywill,takingintoaccountthewholeestateof
thedonoratthetimeofthebirth,appearance,or
Q: Can the creditors of the deceased file an
adoptionofachild.(Art.761)
actionforreductionofinofficiousdonation?
B.HOWDONE A: No. Only compulsory heirs or their heirs and

successors in interest may sue for reduction of
Q: Can a donation be revoked once it is inofficiousdonations.Theremedyofthecreditor
perfected? istosue,duringthelifetimeofthedonor,forthe
annulment of inofficious donation made in fraud
A: Once a donation is perfected, it cannot be ofcreditors(Art.1387);ortheycangoagainstthe
revokedwithouttheconsentofthedoneeexcept estate of the deceased and not against the
ongroundsprovidedbylaw(Arts.760,764,765, donees.
NCC)
C.EFFECTS
Q:Isrevocationorreductionautomatic?
A: No. The emergence of the circumstances Q: What are the obligations of the donee upon
enumerated in Art. 760 does not automatically therevocationorreductionofdonation?
revokeorreducethedonation.Therevocationor
reduction is authorized only if the amount or A:
value of the property donated exceeds the
disposablefreeportion. 1. Return the thing or the object of the
donation
Q:Forpurposesofprescriptionofaction,whatis 2. If the property had already been
the rule in case of concurrence of two or more alienated and could not be recovered
groundsforrevocationorreduction? anymore, its value shall be paid to the
donor. The value shall be the price of
A: In the event that two or more causes are the property estimated at the time of
present, the earliest among them shall be the theperfectionofthedonation
starting point in the reckoning of the period of
prescriptionoftheaction. 3. If the property had been mortgaged,
the donor may pay the mortgage

obligations, subject to reimbursement
bythedonee.(Art.762)
162 CIVILLAWTEAM:

PROPERTY
Q:Isthedoneerequiredtoreturnthefruits? Q: What if the donor dies within the fouryear

prescriptiveperiod?
A:
1. If due to noncompliance with any A: The right of action to revoke or reduce is
condition imposed on the donation transmittedtohisheirs.(PinedaProperty,p.589,
fruits acquired after noncompliance 1999ed)
shallbereturned
2. If due to causes stated under Art. 760,
E.INOFFICIOUSDONATIONS
ingratitude, or inofficious donations
fruits acquired from the time the
complaintisfiledshallbereturned(Art. Q:Whenisadonationinofficious?
768)
A:Adonationisinofficiousorexcessivewhenits
D.PRESCRIPTION amount impairs the legitimes of the compulsory
heirs.
Q: What is the period of prescription of action
forrevocationorreduction? Note: Donations must be charged only against the
disposable free portion. If its amount exceeds the
same,theexcessisvoidforbeinginofficious(Pineda
A: Property,p.598,1999ed)
PRESCIPTIVE RECKONING
PERIOD PERIOD
Birthofchild 4years From the birth of Q:Whatisthestatusofaninofficiousdonation?
thefirstchild
Legitimation 4years From Birth of the A:Duringthelifetimeofthedonor,theinofficious
legitimated child, donation is effective since the excessiveness of
not from the date the donation can only be determined after the
of marriage of the donorsdeath.
parents
Recognition 4years From the date the
Note: Consequently, the donee is entitled to the
ofan recognition of the
fruitsofthepropertydonatedduringthelifetimeof
illegitimate childbyanymeans
the donor (Art. 771, Pineda Property, p. 599, 1999
child enumerated in
ed)
Article 712 of the
FamilyCode
Adoption 4years From the date of Q: May an heir waive his right during the
filingoftheoriginal lifetime of the donor to file an action for
petition for suppression or reduction of an inofficious
adoption, provided donation?
a decree of
adoption is issued
A: No. Such waiver, in whatever form it is
thereafter
extended,isvoid.(Art.772)
Appearance 4years From the date an
ofachild information was
believedto received as to the F.INGRATITUDE
bedead existence or
survivalofthechild Q:Arethereanyothergroundsforrevocationof
believed to be donation by reason of ingratitude other than
dead thoseenumeratedunderArticle765?
Non 4years From the non
compliance compliance with
withany thecondition A: None. The grounds under Article 765 are
condition exclusive.
imposed
Actof 1year From the time the
ingratitude donor had learned
of the donees act
of ingratitude,
provided it was
possible for him to
fileanation.
163

Q: Suppose the husband of the donee had Q:Whatistheremedyofthedonor?
maligned the donor, is there a ground for
revocationbyreasonofingratitude? A: If the property is already transferred in the
name of the buyer or mortgagee, the remedy of
A:None.Theactmustbeimputabletothedonee thedonoristorecoverthevalueoftheproperty
himself and not to another. (Pineda Property, p. determined as of the time of the donation. (Art.
593,1999ed) 767,PinedaProperty,p.594,1999ed)
Q: What if there are mortgages and alienations Q:Canthedonormakearenunciationofactions

effectedbeforethenotationofthecomplaintfor torevokeinadvance?
revocationintheRegistryofProperty?
A:No.Suchwaiverisvoid.
A: Such alienations and mortgages shall remain
validandmustberespected.(Art.766) Note: However, the donor may renounce an action
torevokeiftheactofingratitudehadalreadybeen
Note: Alienations and mortgages after the done.
registration of the pendency of the complaint shall
bevoid.
SUMMARYOFTHERULESONREDUCTIONOFDONATIONS
TIMEOFFILINGOFTHE TRANSMISSIBILITYOF
EXTENTOFREDUCTION RIGHTSTOTHEFRUITS
ACTION ACTION
1.Failureofthedonortoreservesufficientmeansforsupport(Art.750,NCC)
Anytimebythedonoror Nottransmissible
Donationreducedto Doneeisentitledtothe
byrelativesentitledto Note:thedutytogive
extentnecessaryto fruitsasownerofthe
supportduringthe andrighttoreceive
providesupport(Art.750, propertydonated(Art.441,
donorslifetime(Art.750, supportarepersonal(Art.
NCC) NCC)
NCC) 195,FC)
2.Inofficiousnessforbeinginexcessofwhatthedonorcangivebywill(Art.750,771,NCC)
Donationeffectiveduring
Transmissibletodonors Doneeappropriatesfruits
thedonorslifetime
Within5yearsafterthe heirsasdonationshallbe (Art.441,NCC)
subjecttoreductiononly
donorsdeath(Art.771, reducedasregardsthe
uponhisdeathwith
1149,NCC) excessatdonorsdeath retumthosefromfilingof
regardtotheexcess(Art.
(Art.771,NCC) complaint
771,NCC)
3.Birth,appearanceoradoptionofachild (Art.760,NCC)
[Sameasin#1
Doneeappropriatesfruits
Revocation]
[Sameasin#1 notaffectedbyreduction
W/in4yearsfrombirth
[Sameasin#1Revocation] Reduction] (Art.441,NCC).When
of1stchild,legitimation
donationisrevokedforany
(recognition),adoption,
Tochildren&descendants Donationreducedto ofthecausementionedin
judicialdeclarationof
ofdonoruponhisdeath extentnecessaryto article760,thedoneeshall
filiationorreceiptofinfo
(Art.763,2,NCC) providesupport(Art. notreturnthefruitsexcept
ofexistenceofthechild
750,NCC) fromthefilingofthe
believedtobedead
complaint(Art.768,NCC).
(Art.763,NCC)
4.Fraudagainstcreditors(Art.759,NCC)
Fruitsshallbereturnedin
Within4yearsfrom Propertyreturnedforthe
casedoneeactedinbad
perfectionofdonationor Tocreditorsheirsor benefitofcreditors
faith;ifimpossibleto
fromknowledgebythe successorsininterest subjecttotherightsof
return,indemnifythe
creditorofthedonation (Art.1178,NCC) innocent3rdpersons(Art.
donorscreditorfor
(Art.1389,NCC) 1387,NCC)
damages(Art.1388,,NCC)
164 CIVILLAWTEAM:

PROPERTY
MODESOFEXTINGUISHINGOWNERSHIP
Q:Whatarethemodesofextinguishing
ownership?
A:
1. Absoluteallpersonsareaffected
a. physicallossordestruction
b. legal loss or destruction (when it
goesoutofcommerceofman)
2. Relative only for certain persons for

othersmayacquiretheirownership
a. law
b. succession
c. tradition as a consequence of
certaincontracts
d. donation
e. abandonment
f. destruction of the prior title or
right
i.e. expropriation , rescission,
annulment, fulfillment of a
resolutorycondition)
g. Prescription(Paras,p.779)

Q:Whatisadefactocaseofeminentdomain?
A: Expropriation resulting from the actions of

nature as in a case where land becomes part of
thesea.Inthiscase,theownerloseshisproperty
infavorofthestatewithoutanycompensation.
165

PRESCRIPTION Resultsintheacquisition
Resultsinthelossofa
ofownershiporotherreal
realorpersonalright
DEFINITION rightsinapersonaswell
orbarsthecauseof
asthelossofsaid
actiontoenforcethe
Q:Whatismeantbyprescription? ownershiporrealrightsin
right
another
A: One acquires ownership and other real rights Howproved
through the lapse of time in the manner and Shouldbe
Canbeprovenunderthe
under the conditions laid down by law. In the affirmativelypleaded
generalissuewithoutits
same way, rights and actions are lost by andprovedtobarthe
beingaffirmatively
prescription.(Art.1106,NCC) actionorclaimofthe
pleaded
adverseparty
Q:Whatarethekindsofprescription? Relationshipbyownerandpossessor
Relationshipbetweenthe
A: occupantandthelandin Onedoesnotlookto
termsofpossessionis theactofthe
1. Acquisitive prescription one acquires capableofproducinglegal possessorbuttothe
ownershipandotherrealrightsthrough consequences;itisthe neglectoftheowner
the lapse of time in the manner and possessorwhoistheactor
undertheconditionslaiddownbylaw.
Q:Whomayacquirebyprescription?
a. Ordinary requires the A:PSM
possession of things in good
faith and with a just title for 1. Persons who are capable of acquiring
thetimefixedbylaw; propertybyotherlegalmodes
2. State
b. Extraordinary does not 3. Minors through guardians of
requiregoodfaithorjusttitle personally
but possession for a period
longer than ordinary Q: Who are the persons against whom
acquisitiveprescription prescriptionruns?

2. Extinctiveprescriptionlossofproperty A:MAPJ
rightsoractionsthroughthepossession
by another of a thing for the period 1.Minors and other incapacitated persons
provided by law or failure to bring the who have parents, guardians or other
necessary action to enforce ones right legalrepresentatives.
withintheperiodfixedbylaw. 2. Absenteeswhohaveadministrators.
3. Persons living abroad who have
Q: Differentiate acquisitive from extinctive managersoradministrators
prescription. 4. Juridicalpersons,exceptthestateandits
subdivision
A:
ACQUISITIVE EXTINCTIVE Q:Againstwhomdoesprescriptionnotrun?
Howacquired
A:SPG
Inactionoftheowner
Requirespossessionbya
ofpossessionor 1. BetweenSpouses,eventhoughtherebe
claimantwhoisnotthe
neglectofhisrightto a separation of property agreed upon in
owner
bringanaction the marriage settlements or by judicial
Rightscovered decree.
Applicabletoallkinds 2. Between Parents and children, during
Applicabletoownership theminorityorinsanityofthelatter.
ofrightswhetherreal
andotherrealrights 3. Between Guardian and ward during the
orpersonal
Effect
continuanceoftheguardianship

Vestsownershipand Producesthe
otherrealrightsinthe extinctionofrightsor
occupant barsarightofaction
166 CIVILLAWTEAM:

PRESCRIPTION
Q:Whatcanbesubjectofprescription? A.GOODFAITH
A:PP Q:Whenisapossessoringoodfaith?
1. Privateproperty
2. Patrimonialpropertyofthestate A:Ifheisnotawareoftheexistenceofanyflaw
ordefectinhistitleormodeofacquisitionwhich
Note: Patrimonial property of the state is the invalidates it (Art. 526 in relation to Art. 1128)
propertyitownsbutwhichisnotdevotedtopublic and has reasonable belief that the person from
use, public service, or the development of national whom he received the thing was the owner
wealth.Itiswealthownedbythestateinitsprivate, thereof, and could transmit his ownership (Art.
as distinguished from its public, capacity. (Paras, p. 1127)
58)
Q:Whenmustgoodfaithexist?
A.ACQUISITIVE

1.CHARACTERISTICS A: It must exist not only from the beginning but
throughout the entire period of possession fixed
Q: What is thebasisof acquisitiveprescription? by law. (Pineda Succession and Prescription, p.
643,2009ed)
A:Itisbasedontheassertionofausurperofan
adverse right for such a long period of time, B.JUSTTITLE
uncontestedbythetrueowneroftheright,asto
give rise to the presumption that the latter has Q:Whatdoesjusttitlemean?
given up such right in favour of the former.
(Tolentino,CivilCodeofthePhilippines,Vol.IV,p.
A: It means that the possessor obtained the
2)
possession of the property through one of the
modesrecognizedbylawforacquiringownership
Q: What are the basic requirements of but the transferor or grantor was not the owner
prescription as a mode of acquiring ownership? of the property or he has no power to transmit
theright(Art.1129)
A:
Note: Just title is never presumed, it must be
1. Actual possession of a property, which proved.(Art.1130,NCC)
issusceptibleofprescription
2. Possessionmustbeintheconceptofan Note: The title for prescription must be true and
owner and not that of a mere holder valid(Art.1130)
(Art.1118)
3. Possessionmustbepublicoropen(Art.
1118) Q:Whatisatruetitle?
4. Possessionmustbepeaceful(Art.1118)
5. Possessionmustbecontinuousandnot A: One which actually exists and is not just a
interrupted(Art.1118) pretendedone.
6. Possession must be adverse, that is,
exclusiveandnotmerelytolerated Note: An absolutely simulated or fictitious title is
7. Possession must satisfy the full period voidandcannotbeabasisforordinaryprescription.
requiredbylaw(PinedaSuccessionand (PinedaSuccessionandPrescription,p.646,2009ed)
Prescription,p.606,2009ed)
Q:Whatisavalidtitle?
2.ORDINARY
A:Atitlewhichissufficienttotransmitownership
Q:Whatisordinaryprescription? of the property or right being conveyed had the
transferor or grantor been the real owner
A: It requires possession of things in good faith thereof.
andwithjusttitleforthetimefixedbylaw.

167

3.EXTRAORDINARY 5.PERIOD
Q:Whatisextraordinaryprescription? Q: What are the periods as regards prescription

asamodeofacquisitionofownership?
A: Prescription where the possessor is in bad
faith. It does not require good faith or just title A:
but possession for a period longer than ordinary
1. Movables
acquisitive prescription (Pineda Succession and
a. 4yearsgoodfaith
b. 8yearsbadfaith

Q: How does ownership of personal property 2. Immovables
prescribe? a. 10yearsgoodfaith
b. 30yearsbadfaith
A:Throughuninterruptedpossessionfor8years,
withoutneedofanyothercondition.(Art.1132) Q: What are the rules for the computation of
timenecessaryforprescription?
Q: How about ownership and other real rights
A:
overimmovables?
1. Thepresentpossessormaycompletethe
A:Theyprescribethroughuninterruptedadverse period necessary for prescription by
possession for 30 years, without need of title or tacking his possession to that of his
ofgoodfaith(Art.1137) grantororpredecessorininterest.
2. Itispresumedthatthepresentpossessor
Q: What are the requisites of extraordinary whowasalsothepossessorataprevious
prescription? time, has continued to be in possession
duringtheinterveningtime,unlessthere
A:CLASG isprooftothecontrary.
3. The first day shall be excluded and the
1. Capacityofthepossessortoacquireby lastdayincluded.(Art1138,NCC)
prescription;
2. Susceptibilityofobjecttoprescription; 6.WHATCANNOTBEREQUIREDBYACQUISITIVE
3. Adverse possession of the character PRESCRIPTION
prescribedbylaw;
4. Lapseoftimerequiredbylaw;
5. Goodfaithofpossessororproofofjust Q:Whatcannotbesubjectofprescription?
title.
A:PRIM
1. Publicdomain;
4.REQUISITES 2. Registeredland;
3. Intransmissiblerights;
Q: What are the basic requirements of 4. Movablespossessedthroughacrime;
prescription as a mode of acquiring ownership?
Q: Emilio died, leaving 8 children. In 1960, His
A: eldest child, Flores, took possession of and
1. Capacitytoacquirebyprescription; cultivated the land, caused the cancellation of
2. A thing capable of acquisition by the tax declaration in Emilios name covering a
prescription; parcel of land and caused the issuance of
3. Possession of the thing under certain anotherinhisownname.ThecoheirsofFlores
conditions;and discoveredthecancellation.UponFloresdeath,
4. Lapseoftimeprovidedbylaw theheirsofhissisterstogetherwithhissurviving
sistersfiledacomplaintin1999againsttheheirs
ofFloresforpartitionofthelotanddeclaration
NOTE: The first two requisites apply to both
ordinary and extraordinary prescription, but
of nullity of the documents. Did the heirs of
thelasttworequisitesvaryforeachkind. Flores acquire ownership over the lot by
extraordinaryacquisitiveprescription?

168 CIVILLAWTEAM:

PRESCRIPTION
A:Yes.Whiletheactiontodemandpartitionofa Q: Anthony bought a piece of untitled

coowned property does not prescribe, a co agricultural land from Bert. Bert, in turn,
owner may acquire ownership thereof by acquired the property by forging Carlos
prescription, where there exists a clear signature in a deed of sale over the property.
repudiation of the coownership, and the co Carlohadbeeninpossessionofthepropertyfor
owners are apprised of the claim of adverse and 8 years, declared it for tax purposes, and
exclusiveownership.Inthiscase,therespondents religiously paid all taxes due on the property.
neverpossessedthelot,muchlessassertedtheir AnthonyisnotawareofthedefectinBertstitle,
claim thereto until 1999 when they filed the buthasbeeninactualphysicalpossessionofthe
complaint for partition. In contrast, Flores took property from the time he bought it from Bert,
possession of the lot after Emilios death and whohadneverbeeninpossession.Anthonyhas
exercised acts of dominion thereon tilling and sincethenbeeninpossessionofthepropertyfor
cultivating the land, introducing improvements, oneyear.
and enjoying the produce thereof. The statutory
period of prescription commenced in 1960 when CanAnthonyacquireownershipoftheproperty
Flores, who had neither title nor good faith, by acquisitive prescription? How many more
secured a tax declaration in his name and may, years does he have to possess it to acquire
therefore, be said to have adversely claimed ownership?
ownership of the lot. On said date, respondents
werealsodeemedtohavebecomeawareofthe A: Yes, Anthony can acquire ownership of the
adverse claim. Floress possession thus ripened property by ordinary acquisitive prescription
into ownership through acquisitive prescription whichrequiresjusttitleandgoodfaith(Art.1117,
after the lapse of 30 years. (Heirs of Restar v. CC). There was just title because a deed of sale
HeirsofCichon,G.R.No.161720,Nov.22,2005) wasissuedinhisfavoreventhoughitwasforged,
which fact he was not aware of. He needs to
Q:Sixto,ownerofaparcelofland,died.Hewas possessthelandingoodfaithandintheconcept
survived by hiswife and 3 children. The subject of owner for a total of ten years in order to
land was donated by his wife to Silverio, who acquire ownership. Since Anthony possessed the
immediatelyenteredintopossessionoftheland, landforonlyoneyear,hehasnotcompletedthe
builtafencearoundit,constructedaresidential tenyearperiod.EvenifAnthonytacksthe8year
house,declareditfortaxpurposesandpaidthe periodofpossessionbyCarlowhointhedeedof
taxesthereon,andresidedthereuntilhisdeath. saleissupposedtobehisgrantororpredecessor
After 45 years from the time of donation, in interest (Article 1138[I], CC), the period is still
Soledad, one of Sixtos children, filed a shortoftenyears.
complaint for recovery of ownership, and
possession against Silverio. Who is the rightful If Carlo is able to legally recover his property,
owneroftheland? can he require Anthony to account for all the
fruitshehasharvestedfromthepropertywhile
A: By extraordinary acquisitive prescription, inpossession?
Silveriobecametherightfulowneroftheland.In
extraordinary prescription ownership and other A: Since Anthony is a possessor in good faith,
realrightsoverimmovablepropertyareacquired Anthonycannotbemadetoaccountforthefruits
through uninterrupted adverse possession hegatheredbeforehewasservedwithsummons.
thereof for 30 years without need of title or of A possessor in good faith is entitled to the fruits
goodfaith. received before the possession was legally
interruptedbytheserviceofsummons(Art.544,
When Soledad filed the case, Silverio was in CC).AfterAnthonywasservedwithsummons,he
possessionofthelandfor45yearscountedfrom became a possessor in bad faith and a builder,
the time of the donation. This is more than the planter,sowerinbadfaith.Hecanalsobemade
required 30 years of uninterrupted adverse to account for the fruits but he may deduct
possessionwithoutjusttitleandgoodfaith.Such expenses for the production gathering and
possessionwaspublic,adverseandintheconcept preservationofthefruits(Art.443,CC).
of an owner. He declared the land for taxation
purposes and religiously paid the realty taxes Q: If there are standing crops on the property
thereon. Together with his actual possession of when Carlo recovers possession, can Carlo
theland,thesetaxdeclarationsconstitutestrong appropriatethem?
evidence of ownership of the land occupied by
him. (Calicdan v. Cendea, G.R.No. 155080, Feb. A: The value of the standing crops must be
5,2004) prorated depending upon the period of
169

possession and the period of growing and negligentintheassertionofhisright.(Tolentino,
producingthefruits.Anthonyisentitledtoapart CivilCodeofthePhilippines,Vol.IV,p.2)
of the net harvest and a part of the expenses of
cultivation in proportion to his period of 2.REQUISITES
possession.However,CarlomayallowAnthonyto
gather these growing fruits as an indemnity for
Q:Whatarethebasicrequirementsof
theexpensesofcultivation.IfAnthonyrefusesto
prescriptionasamodeofacquiringownership?
accept this concession, he shall lose the right to

indemnityunderArt.443.(Art.545,par.3,NCC).
A:
(2008BarQuestion)
1. Capacitytoacquirebyprescription;
2. Athingcapableofacquisitionby
B.EXTINCTIVE prescription;
3. Possessionofthethingundercertain
1.CHARACTERISTICS conditions;and
4. Lapseoftimeprovidedbylaw
Q:Whatisextinctiveprescription?
3.PERIODS
A:Itreferstothetimewithinwhichanaction
maybebrought,orsomeactdone,topreservea Q: What are the periods as regards prescription
right(PinedaSuccessionandPrescription,p.660, ofactionstorecovermovablesandimmovables?
2009ed)
A:
NOTE:Itisalsoreferredtoasprescriptionofactions,
statuteoflimitations,andstatuteofrepose 1. Movables
c. 4yearsgoodfaith
Q:Whatisthebasisofextinctiveprescription?
d. 8 years bad faith (Art. 1140 in
relationtoArt.1132)
A:Itbasedontheprobability,bornofexperience,
thattheallegedrightwhichaccruedinthepast
neverexistedorhasalreadybeenextinguished; 2. Immovables
orifitexists,theinconveniencecausedbythe
lapseoftimeshouldbebornebytheparty c. 10yearsgoodfaith
d. 30yearsbadfaith(Art.1141)
170 CIVILLAWTEAM:

PRESCRIPTION
II.NOPRESCRIPTIONAPPLICABLE
NOPRESCRIPTIONAPPLICABLE
Whenitispossessedthroughacrimesuchasrobbery,theft,orestafa.
ByOffender Note:Thepersonwhocannotinvoketherightofprescriptionistheoffenderorpersonwhocommitted
thecrimeoroffense,notasubsequenttransfereewhodidnotparticipateinthecrimeoroffense,
unlessthelatterknewthecriminalnatureoftheacquisitionofthepropertybythetransferor.(Art.
1133,PinedaSuccessionandPrescription,p.651,2009ed)
1.
Anactiontorecoveraregisteredlandbytheowner
2.
Right to petition for the issuance for the issuance of a Writ of Possession filed by the
RegisteredLands(PD1529) applicantforregisteredland

Note:Similarly,anactiontorecoverpossessionofaregisteredlandneverprescribes.
1.Actionlegaltodemand
arightofway Imprescriptible
2.Toabateanuisance
Actiontoquiettitleif
Imprescriptible
plaintiffinpossession
Appliestobothactionanddefense.
Voidcontracts
Note:However,anactiontoannulavoidablecontractprescribesafter4years
Actiontodemand
partition
Aslongasthecoownershipisrecognizedexpresslyorimpliedly(Art.494)
Note:Distinguishedfrom
laches
RightofreversionorreconveyancetotheStateofthepublicpropertiesregisteredandwhicharenot
capableofprivateappropriationorprivateacquisitiondoesnotprescribe
Propertyofpublic
Note: In contrast, where private property is taken by the Government for public use without first
dominion
acquiringtitletheretoeitherthroughexpropriationornegotiatedsale,theownersactiontorecover
thelandorthevaluethereofdoesnotprescribe.

III.PRESCRIPTIONORLIMITATIONOFACTIONS
Q:WhataretherespectiveprescriptiveperiodsofactionsspecifiedundertheCivilCode?
ACTIONS PRESCRIPTIVEPERIOD
8years(goodfaith)or4years(badfaith)fromthetime
RecoverMovables thepossessionislost(Art.1140,PinedaSuccessionand
30years(Recoverownership)(Art.1141)
RecoverImmovables 10years(Recoverrealrightofpossession)(Art.555(4),
PinedaSuccessionandPrescription,p.667,2009ed)
MortgageAction 10yearsfromdefaultofmortgagor(Art.1142)
Basedonwrittencontract
10years
Note:Ifcontractisoralorquasi,prescriptiveperiodis6
years(Art.1145)
Basedonobligationcreatedbylaw 10yearsfromthetimetherightofactionaccrues
10yearsfromthedayjudgmentbecamefinaland
Basedonjudgment
executory(Art.1144)
Baseduponaninjurytotherightsofplaintiff 4years
Basedonquasidelicts 4years(Art.1146)
Forcibleentryanddetainer 1year
Defamation 1year(Art.1147)
Allotheractionsnotspecified 5years(Art.1149)
171

IV.INTERRUPTION
Q:Whatarethegroundsforinterruptionof
prescriptiveperiod?
A:
1. Whentheyarefiledbeforethecourt.
2. Whenthereisawrittenextrajudicial
demandbythecreditors
3. Whenthereisanywritten
acknowledgmentofthedebtbythe
debtor.(Art.1155)
V.NUISANCE
Note:seediscussionunderNuisance(X.Nuisance)
172 CIVILLAWTEAM:

OBLIGATIONS
OBLIGATIONS ACTIVESUBJECT

I.DEFINITION Q:Whoisanactivesubject?

Q:Whatisanobligation? A:Onewhoisdemandingtheperformanceofthe
obligation.Itishewhoinhisfavortheobligation
A:Itisajuridicalnecessitytogive,todo,ornotto isconstituted,establishedorcreated.Heiscalled
do.(Art.1156,NCC) thecreditor(CR)orobligee.

It is a juridical relation whereby a person PASSIVESUBJECT
(creditor)maydemandfromanother(debtor)the
observance of a determinative conduct (giving, Q:Whoisapassivesubject?
doing, or not doing), and in case of breach, may
demandsatisfactionfromtheassetsofthelatter. A: One bound to perform the prestation to give,
(AriasRamos) todo,ornottodo.Heiscalledthedebtor(DR)or
obligor. (Pineda, Obligations and Contracts, p. 2,
Note:Art.1156refersonlytocivilobligationswhich 2000ed)
areenforceableincourtwhenbreached.Itdoesnot
cover natural obligations (Arts. 14231430, NCC) Note:Whenthereisarightthereisacorresponding
because these are obligations that cannot be obligation.Rightistheactiveaspectwhileobligation
enforcedincourtbeingbasedmerelyonequityand is the passive aspect. Thus, it is said that the
natural law and not on positive law. (Pineda, conceptsofcreditanddebtaretwodistinctaspects
ObligationsandContracts,2000ed,p.3) ofunitaryconceptofobligation.(Pineda,Obligations
andContracts,p.2,2000ed)
II.ELEMENTSOFANOBLIGATION
OBJECT
Q:Whataretheelementsofanobligation?
Q:Whataretherequisitesofavalidobject?
A:JAPOC
1. Juridicalorlegaltievinculumjuris; A:Theobjectmustbe:
2. Activesubjectobligeeorcreditor; 1. licitorlawful;
3. Passivesubjectobligorordebtor; 2. possible,physically&judicially;
4. Objectprestation;and 3. determinateordeterminable;and
5. Causeefficientcauseisthesamewith 4. pecuniary value or possible equivalent
vinculumjuris. inmoney.

VINCULUMJURIS Note: Absence of either of the first three (licit,
possibleand/ordeterminate)makestheobjectvoid.
Q:Whatisvinculumjuris?
Form is not generally considered essential, though
A:Itistheefficientcauseorjuridicaltiebyvirtue sometimesitisaddedasthe5threquisite.Thereisno
of which the debtor has become bound to particular form to make obligations binding, except
performtheprestation. in certain rare cases. (Tolentino, Civil Code of the
Philippines,Vol.IV,2002ed.p.57)
Q:Howisvinculumjurisestablished?
III.DIFFERENTKINDSOFPRESTATION
A:By:
1. law(i.e.relationofhusbandandwife Q:Whatisprestation?
forsupport)
2. bilateralacts(i.e.contracts) A:Itisaconductthatmayconsistofgiving,doing,
3. unilateral acts (i.e. crimes and quasi ornotdoingsomething.
delicts)(Tolentino, Civil Code Vol. IV, p.
Note:Itistheconductthatmustbeobservedbythe
59,1999ed)
debtor/obligor.
173

Q: What are the different kinds of prestation? 2. Performance
Distinguish. a. Positivetogive;todo
b. Negativenottodo
A:
OBLIGATION OBLIGATIONTO OBLIGATION 3. Subjectmatter
TOGIVE DO NOTTODO a. Personaltodo;nottodo
Consistsinthe Coversallkinds b. Realtogive
deliveryofa ofworksor
Consistsin 4. Object
movableor services
refrainingfrom a. Determinate/specific
immovable whether
doingsomeacts particularlydesignatedor
thingtothe physicalor
creditor mental physicallysegregatedfromall
i.e.Easement othersofthesameclass.
prohibiting b. Generic is designated merely by
building itsclassorgenus.
proprietoror c. Limited generic generic objects
i.e.Contract possessorfrom confined to a particular class (e.g.
i.e.Sale,
forprofessional committing an obligation to deliver one of my
deposit,
serviceslike nuisance(Art. horses)(Tolentino,CivilCodeofthe
pledge,
painting, 682,NCC), Philippines,Vol.IV,2002ed,p.91)
donation,
modeling, restrainingorder
antichresis
singing,etc. orinjunction 5. Personobliged
(Pineda, a. Unilateral only one party is
Obligationsand bound
Contracts,p.3, b. Bilateralbothpartiesarebound
2000ed)

6. Creation
Q:Whataretherequisitesofavalidprestation? a. Legalimposedbylaw(Art.1158,
NCC)
A: b. Conventional established by the
1. Possible,physicallyandjuridically; agreement of the parties like
2. Determinate, or at least determinable contracts
according to preestablished elements
orcriteria;and 7. Susceptibilityofpartialfulfillment
3. Has a possible equivalent in money a. Divisibleobligationissusceptible
(Tolentino,CivilCodeVol.IV,p.58,1999 ofpartialperformance
ed). b. Indivisible obligation is not
susceptible
IV.CLASSIFICATIONOFOBLIGATIONS
8. Existenceofburdenorcondition
Q:Whatarethekindsofobligation? a. Pure is not burdened with any
conditionorterm.Itisimmediately
A:Fromtheviewpointof: demandable.
1. Sanction b. Conditional is subject to a
a. Civil gives a right of action to conditionwhichmaybesuspensive
compeltheirperformance (happeningofwhichshallgiverise
b. Naturalnotbasedonpositivelaw to the obligation) or resolutory
but on equity and natural law; (happening terminates the
does not grant a right of action to obligation).
enforce their performance, but
after voluntary fulfillment by the 9. Characterofresponsibilityorliability
obligor,theyauthorizeretentionof a. Joint each debtor is liable only
whathasbeendelivered/rendered forapartofthewholeliabilityand
byreasonthereof. toeachcreditorshallbelongonlya
c. Moral cannot be enforced by partofthecorrelativerights
actionbutarebindingontheparty b. Solidary a debtor is answerable
who makes it in conscience and for the whole of the obligation
naturallaw. without prejudice to his right to

174 CIVILLAWTEAM:

OBLIGATIONS
collect from his codebtors the substitution of the first one (Art.
latters shares in the obligation 1206,NCC)
(Art.1207,NCC)
11. Impositionofpenalty
10. Righttochooseandsubstitution a. Simple there is no penalty
a. Alternative obligor may choose imposed for violation of the terms
to completely perform one out of thereof
the several prestations(Art. 1199, b. Obligation with penalty
NCC) obligationwhichimposesapenalty
b. Facultative only one prestation for violation (Art. 1226, NCC)
has been agreed upon, but the (Pineda,ObligationsandContracts,
obligor may render one in 2000ed,p.57)
V.SOURCESOFOBLIGATIONS
Q:Whatarethesourcesofobligations?Distinguish.
A:LCQDQ
Sources Obligations Perfection
Law exlege Fromthetimedesignatedbythelawcreatingorregulatingthem.
GR:Fromthetimeoftheperfectionofthecontract(i.e.meetingof
theminds)

XPNs:
Contracts excontractu 1. Whenthepartiesmadestipulationontherightofthecreditor
tothefruitsofthething
2. When the obligation is subject to a suspensive condition or
period;arisesuponfulfillmentoftheconditionorexpirationof
theperiod.
Quasi
exquasicontractu
contracts
exmaleficioorex
Delicts Fromthetimedesignatedbythelawcreatingorregulatingthem.
delicto
Quasi exquasimaleficioorex
delict quasidelicto
Note:Theenumerationisexclusive.

A.OBLIGATIONEXLEGE B.OBLIGATIONEXCONTRACTU

Q: What are the characteristics of a legal Q:Whataretherequisitesforacontracttogive
obligationoranobligationexlege? risetoobligationsexcontractu?

A: A:
1. Does not need the consent of the 1. It must contain all the essential
obligor; requisitesofacontract
2. Must be expressly set forth in the law 2. It must not be contrary to law, morals,
creating it and not merely presumed; good customs, public order, and public
and policy
3. Inorderthatthelawmaybeasourceof
obligation, it should be the creator of Q:Whatiscomplianceingoodfaith?
theobligationitself.
A: It is performance in accordance with the
Q:Whatgovernsobligationsarisingfromlaw? stipulation, clauses, terms and conditions of the
contract.
A: These obligations shall be regulated by the
provisionsofthelawwhichestablishesthem.The Note:Thecontractisthelawbetweentheparties.
CivilCodeisapplicablesuppletorily.
175

Q: May a party unilaterally evadehis obligation 1. Negotiorium gestio (inofficious
inthecontract? manager) arises when a person
voluntarily takes charge of the
A: management of the business or
GR:Neither party may unilaterally evade his propertyofanotherwithoutanypower
obligationinthecontract. fromthelatter.
2. Solutio indebiti (unjust enrichment)
XPNs:Unilateralevasionisallowedwhenthe: takes place when a person receives
1. contractauthorizessuchevasion something from another without any
2. otherpartyassentsthereto right to demand for it, and the thing
was unduly delivered to him through
Q:Istherealimitationontherightoftheparties mistake.
tofreelyenterintostipulations?
Note:Thedeliverymustnotbethroughliberalityor
A: Yes. Parties may freely enter into any someothercause.
stipulations provided such are not contrary to
law,morals,goodcustoms,publicorderorpublic NEGOTIORUMGESTIO
policy
Q: Upon the declaration of martial rule in the
Q: What governs obligations arising from Philippines, X, together with his wife and
contracts? children, disappeared from his residence along
Ermita, Manila. Years passed without Y hearing
A: fromXandhisfamily.Ycontinuedtakingcareof
GR:These obligations shall be governed Xshouse,evencausingminorrepairstobedone
primarily by the stipulations, clauses, terms at his house to preserve it. In 1976, when
andconditionsofthepartiesagreements. business began to perk up in the area, Z,
approached Y and proposed that they build
XPN: Contracts with prestations that are stores at the ground floor of the house and
unconscionableorunreasonable. convertitssecondfloorintoapensionhouse.Y
agreed to Zs proposal and together they spent
Note: In case of unconscionable penalty for fortheconstructionofstoresatthegroundfloor
breachofcontract(Art.1229,NCC),orliquidated and the conversion of the second floor into a
damages (Art. 2226, NCC), the same may be pensionhouse.Whileconstructionwasgoingon,
reduced by the court. (Pineda, Obligations and fire occurred at a nearby house. The houses at
Contracts,p.13,2000ed) the entire block, including Xs, were burned.
After the EDSA revolution in February 1986, X
and his family returned from the United States
C.OBLIGATIONEXQUASICONTRACTU wheretheytookrefugein1972.

Q:Whatisquasicontract? Uponlearningofwhathappenedtohishouse,X
suedYfordamages.Ypleadedasadefensethat
A: It is a juridical relation arising from lawful, he merely took charge of his house under the
voluntary and unilateral acts based on the principleofnegotiorumgestio.Hewasnotliable
principle that no one should unjustly enrich astheburningofthehouseisafortuitousevent.
himselfattheexpenseofanother.
IsYliabletoXfordamagesundertheforegoing
Q:Whatispresumptiveconsent? circumstance?

A: Since a quasicontract is a unilateral contract A:No.Yisnotliablefordamages,becauseheisa
createdbythesoleactoractsofthegestor,there gestor in negotiorum gestio(Art. 2144,
is no express consent given by the other party. NCC).Furthermore, B is not liable to A for any
The consent needed in a contract is provided by fortuitous event because he did not commit any
law through presumption. (Pineda, Obligations of the instances provided under Art. 2147 of the
andContracts,p.15,2000ed) CivilCode:
1. He did not undertake risky operation
Q: What are the principal forms of quasi which the owner was not accustomed to
contracts? embarkupon;
2. He has not preferred his own interest to
A: thatoftheowner;
176 CIVILLAWTEAM:

OBLIGATIONS
3. Hehasnotfailedtoreturnthepropertyor officers. GSIS sought the restoration of the said

businessafterdemandoftheowner;and disallowedbenefitsbutthecourtruledthatsuch
4. He has not assumed the management in restoration cannot be enforced against Xs
badfaith.(1993BarQuestion) retirement benefits as this is expressly
prohibited by law under R.A. 8291. Is X obliged
Q: In fear of reprisals from lawless elements to return the benefits improperly received by
besieging his barangay, X abandoned his himundertheprincipleofsolutioindebiti?
fishpond, fled to Manila and left for Europe.
Seekingthatthefishinthefishpondwereready A:Yes.ItcannotbedeniedthatXwasarecipient
for harvest, Y, who is in the business of of benefits that were properly disallowed by the
managingfishpondsonacommissionbasis,took COA. These COA disallowances would otherwise
possession of the property, harvested the fish have been deducted from his salaries. The GSIS
andsoldtheentireharvesttoZ. can no longer recover these amounts by any
administrative means due to the specific
Thereafter,YborrowedmoneyfromWandused exemption of retirement benefits from COA
themoneytobuynewsuppliesoffishfryandto disallowances. X resultantly retained benefits to
preparethefishpondforthenextcrop. which he was not legally entitled which, in turn,
gaverisetoanobligationonhisparttoreturnthe
1. What is the juridical relation between amounts under the principle of solutio indebiti.
XandYduringX'sabsence? (GSIS v. COA, G.R. No. 138381, Nov. 10, 2004;
2. Upon the return of X to the barangay, GSIS v. Pineda, et. al., G.R. No. 141625, Nov. 10,
what are the obligations of Y to X as 2004).
regardsthecontractwithZ?
3. Upon X's return, what are the D.OBLIGATIONSEXDELICTO
obligationsofXasregardsY'scontract
withW? Q:Whatisthebasisforcivilliabilityarisingfrom
4. What legal effects will result if X delictsasaccordingtothepenalcode?
expressly ratifies Y's management and
what would be the obligations of X in A: Art. 100 of the Revised Penal Code provides
favorofY? that:Everypersoncriminallyliableforafelonyis
alsocivillyliable.
Explainallyouranswers.
Q:Whatisdelict?
A:
1. The juridical relation is that of the A:Itisanactoromissionpunishedbylaw.
quasicontractof"negotiorumgestio".Y
is the "gestor" or "officious manager" E.OBLIGATIONSEXQUASIDELICTO
andXisthe"owner"(Art.2144,NCC).
2. Y must render an account of his Q:Whatisquasidelictortort?
operationsanddelivertoXthepricehe
received for the sale of the harvested A: It is an act or omission arising from fault or
fish.(Art.2145,NCC). negligence which causes damage to another,
3. XmustpaytheloanobtainedbyYfrom there being no preexisting contractual relations
W because X must answer for betweentheparties.
obligations contracted with third
persons in the interest of the owner Q:Whataretheelementsofaquasidelict?
(Art.2150,NCC).
4. Express ratification by X provides the A:
effects of an express agency and X is 1. Actoromission;
liabletopaythecommissionshabitually 2. Fault or negligence attributable to the
receivedbythegestorasmanager(Art. personcharged;
2149,NCC).(1992BarQuestion) 3. Damageorinjury;
4. Direct relation of cause and effect
SOLUTIONINDEBITI between the act arising from
fault/negligence and the damage or
X received his full retirement benefits including injury(proximatecause);and
those monetary benefits that were properly 5. No preexisting contractual relation
disallowed by COA to be granted to public betweentheparties.
177

Q:Whatisthescopeofcivilliability? VI.NATUREANDEFFECTSOFOBLIGATIONS

A:RRI A.OBLIGATIONTOGIVE
1. Restitution;
2. Reparationfordamagecaused;and Q: In an obligation to deliver a thing, what are
3. Indemnityforconsequentialdamages. theobligationsofthedebtor?

F.NATURALOBLIGATIONS A:Itdependsuponthekindofobligation.

Q:Whatarenaturalobligations? SPECIFIC GENERIC
Deliverthethingwhichis
A: They are real obligations to which the law Deliverthethingagreed
neitherofsuperiornor
denies an action, but which the debtor may upon(Art.1165,NCC)
inferiorquality
performvoluntarily.
Takecareofthething Specificperformancei.e.

withtheproperdiligence deliveryofanotherthing
Q:Whataretheinstancesofnaturalobligations? ofagoodfatherofa withinthesamegenusas
familyunlessthelaw thethingpromisedif
A: requiresorparties suchthingisdamaged
1. Performance after the civil obligation stipulateanother duetolackofcareora
hasprescribed; standardofcare(Art. generalbreachis
2. Reimbursement of a third person for a 1163,NCC) committed
debtthathasprescribed; Iftheobjectisgeneric,
3. Restitutionbyminorafterannulmentof Deliverallaccessions, butthesourceis
contract; accessoriesandfruitsof specifiedordelimited,
4. Deliverybyminorofmoneyorfungible thething(Art.1166,NCC) theobligationisto
thinginfulfillmentofobligation; preservethesource
5. Performance after action to enforce
Paydamagesincaseof Paydamagesincaseof
civilobligationhasfailed; breachofobligationby breachofobligationby
6. Payment by heir of debt exceeding reasonofdelay,fraud, reasonofdelay,fraud,
valueofpropertyinherited;and negligence, negligence,
7. Payment of legacy after will has been contraventionofthe contraventionofthe
declaredvoid. tenorthereof tenorthereof(Art.1170)
Obligationisnot
Q:Distinguishnaturalfromcivilobligation. Fortuitousevent
extinguished(genus
extinguishesthe
nunquamperuitgenus
A: obligation
neverperishes)
NATURALOBLIGATION CIVILOBLIGATION

Basedfromlaw,
Basedonequityand contracts,quasi
naturallaw contracts,delicts,and
quasidelicts
Canbeenforcedincourt
Cannotbeenforcedin
becausetheobligeehasa
courtbecausethe
rightofaction
obligeehasnorightof
(Pineda,Obligationsand
actiontocompelits
Contracts,2000ed,p.
performance
636)

Q: May natural obligations be converted into
civilobligations?

A:Yes,bywayofnovation.Thenaturalobligation
becomesavalidcauseforacivilobligationafterit
hasbeenaffirmedorratifiedanewbythedebtor.
(Pineda, Obligations and Contracts, 2000 ed, p.
634)

178 CIVILLAWTEAM:

OBLIGATIONS
Q: In failing to deliver a thing, what are the Q: What is the principle of balancing of
remediesofthecreditor? equities as applied in actions for specific
performance?
A:
SPECIFICOBLIGATION GENERICOBLIGATION A: In decreeing specific performance, equity
Specificperformance requires not only that the contract be just and
(deliveryofanything equitable in its provisions, but that the
Specificperformance consequencesofspecificperformance,islikewise
belongingtothesame
species) bejustandequitable.Thegeneralruleisthatthis
equitable relief will not be granted if, under the
Rescission(actionto Askthattheobligation
circumstances of the case, the result of the
rescindunderArt.1380, becompliedwithatthe
NCC) debtorsexpense specific performance of the contract would be
harsh,inequitable,andoppressiveorresultinan
Resolutionor specific
Resolution(actionfor unconscionable advantage to the plaintiff
performance,with
cancellationunderArt. (Agcaoiliv.GSIS,G.R.No.30056,Aug.30,1988).
damagesineithercase
1191,NCC)
(Art.1191,NCC)
B.OBLIGATIONTODOORNOTTODO
Damages,inbothcases(Art.1170,NCC)
Q:Whatarethetypesofpersonalobligations?
Note:Maybeexclusiveorinadditiontotheabove

mentionedremedies(Pineda,Obligationsand
A:
Contracts,2000ed,p.37)
1. positivetodo
2. negativenottodo
Note: In obligation to deliver a specific thing, the

creditorhastherighttodemandpreservationofthe
Q:Whataretheremediesinpersonal
thing,itsaccessions,accessories,andthefruits.The
obligations?
creditor is entitled to the fruits and interests from
thetimetheobligationtodeliverthethingarise. A:
Q:Whatisthenatureoftherightofthecreditor 1. positivepersonalobligations
withrespecttothefruits? a. notpurelypersonalactto
haveobligationexecutedat
A: debtor'sexpenseplus
1. Beforedeliverypersonalright damages
2. Afterdeliveryrealright b. purelypersonalactdamages
only.
Note: The creditor has a right to the fruits of the
thingfromthetimetheobligationtodeliveritarises. Note;sameruleappliesifobligationisdonein
However, he shall acquire no real right over it until contraventionofthetermsoftheobligation.
thesamehasbeendeliveredtohim(Art.1164,NCC).
2. Negative personal obligation to have
Q:Distinguishpersonalrightfromrealright. the prohibited thing undone plus
damages. However, if thing cannot be
A: physically or legally undone, only
damagesmaybedemanded.
PERSONAL REAL

Jusadrem Jusinre Q:Isspecificperformancearemedyinpersonal
Enforceableonlyagainst obligations?
Enforceableagainstthe
adefiniteperson/group
wholeworld
ofpersons A:No.Otherwisethismayamounttoinvoluntary
Righttodemandfrom servitudewhichisprohibitedbytheConstitution.
Rightoveraspecific
another,asadefinite
thing,withoutadefinite
passivesubject,the Q:Whenmayathingbeorderedundone?
passivesubjectagainst
fulfillmentofthe A:
whomtherightmaybe
prestationtogive,todo 1. ifmadepoorly
personallyenforced.
ornottodo. 2. negativepersonalobligations
Hasadefinitepassive Nodefinitepassive
subject subject

179

C.BREACHESOFOBLIGATIONS 2. Where it would be physically or legally
impossible to undo what has been
Q:Whataretheformsofbreachofobligations? undonebecauseof:
a. theverynatureoftheactitself;
A: b. aprovisionoflaw;or
1. Voluntarydebtorisliablefordamages c. conflictingrightsofthirdpersons.
ifheisguiltyof:
a. default(mora) Note:Ineithercase,theremedyistoseekrecovery
b. fraud(dolo) fordamages.
c. negligence(culpa)
d. breach through contravention of DEFAULT(MORA))
thetenorthereof
Q:Whendoesdelayordefaultarise?
2. Involuntary debtor is unable to
performtheobligationduetofortuitous A: Those obliged to deliver or to do something
eventthusnotliablefordamages incurindelayfromthetimetheobligeejudicially
or extrajudicially demands from them the
Q: What is the concept of a good father of the fulfillmentoftheirobligation.
family?
In reciprocal obligations, neither party incurs in
A:TheSupremeCourtdescribedagoodfatherof delay if the other does not comply in a proper
afamilybyfirststatingwhoisnot.Heisnotandis manner with what is incumbent upon him. From
not supposed to be omniscient of the future; the moment one of the parties fulfills his
rather, he is one who takes precautions against obligations,delaybytheotherbegins.(Art.1169,
anyharmwhenthereissomethingbeforehimto NCC)
suggest or warn him of the danger or to foresee
it(Picart v. Smith, G.R. No. L12406, Mar. 15, Q:Whataretherequisitesofdelay?
1918).
A:
1.COMPLETEFAILURETOPERFORM 1. Obligation must be due, demandable
andliquidated;
Q:Whataretheeffectsofbreachofobligation? 2. Debtor fails to perform his positive
obligationonthedateagreedupon;
A:Ifapersonobligedtodosomethingfailstodo 3. Ajudicialorextrajudicialdemandmade
it,orifhedoesitincontraventionofthetenorof by the creditor upon the debtor to
the obligation, the same shall be executed at his fulfill, perform or comply with his
cost.Andwhathasbeenpoorlydone,beundone. obligation;and
(Art.1167,NCC) 4. Failure of the debtor to comply with
suchdemand.
When the obligation consists in not doing, and
theobligordoeswhathasbeenforbiddenhim,it Note: In reciprocal obligations, the moment one
shall also be undone at his expense. (Art.1168, partyisreadytocomplywithhisobligation,delayby
NCC) theotherbegins.Thereisnoneedfordemandfrom
eitherparty.
Q: What are the instances where the remedy
underArt.1168isnotavailable? 2.DELAY

A: Q:Whatarethekindsofdelayordefault?
1. Where the effects of the act which is
forbidden are definite in character A:
even if it is possible for the creditor to 1. Mora solvendi default on the part of
ask that the act be undone at the thedebtor/obligor
expense of the debtor, consequences a. Ex re default in real obligations
contraryto theobjectoftheobligation (togive)
will have been produced which are b. Ex personae default in personal
permanentincharacter. obligations(todo)

2. Moraaccipiendidefaultonthepartof
thecreditor/obligee
180 CIVILLAWTEAM:

OBLIGATIONS
3. Compensatio morae default on the MORAACCIPIENDI

part of both the debtor and creditor in
reciprocalobligations Q:Whataretherequisitesofmoraaccipiendi?

MORASOLVENDI A:
1. Offer of performance by a capacitated
Q:Whataretherequisitesofmorasolvendi? debtor;
2. Offermustbetocomplyprestationasit
A: shouldbeperformed;and
1. Obligationpertainstothedebtor; 3. Refusal of the creditor without just
2. Obligation is determinate, due and cause.
demandable,andliquidated;
3. Obligation has not been performed on Q:Whataretheeffectsofmoraaccipiendi?
itsmaturitydate;
4. Thereisjudicialorextrajudicialdemand A:
bythecreditor; 1. Responsibility of DR is limited to fraud
5. Failure of the debtor to comply with andgrossnegligence
suchdemand 2. DR is exempted from risk of loss of
thing;CRbearsriskofloss
Q: Does mora solvendi apply in natural 3. Expenses by DR for preservation of
obligations? thingafterdelayischargeabletoCR
4. Iftheobligationbearsinterest,DRdoes
A: No (Art. 1423, NCC), because performance is nothavetopayfromtimeofdelay
optionalorvoluntaryonthedebtorspart. 5. CRliablefordamages
6. DRmayrelievehimselfofobligationby
Q: Does mora solvendi apply in negative consigningthething
obligations?
Q:Whataretherulesondefault?
A:Nobecauseonecanneverbelateinnotgiving
ordoingsomething. A:
1. Unilateralobligations
Q:Whataretheeffectsofmorasolvendi? GR: Default or delay begins from
extrajudicial or judicial demand mere
A: expiration of the period fixed is not
1. Debtor may be liable for damages or enough in order that DR may incur
interests;and delay.
2. Whenithasforitsobjectadeterminate
thing, debtor may bear the risk of loss XPNs:
of the thing even if the loss is due to a. Theobligationorthelawexpressly
fortuitousevent(Art.1165,NCC). sodictates;
b. Timeisoftheessence;
Q:Maythedebtorsliabilitybemitigatedevenif c. Demand would be useless, as DR
heisguiltyofdelay? has rendered it beyond his power
toperform;or
A: Yes. If the debtor can prove that loss would d. DRhasacknowledgedthatheisin
neverthelesstranspireevenifhehadnotbeenin default.
default, the court may equitably mitigate his
liability. (Art. 2215 (4), NCC; Pineda, Obligations 2. Reciprocalobligations
andContracts,2000ed.,p.47) GR: Fulfillment by both parties should
besimultaneous.

XPN: When different dates for the
performance of obligation is fixed by
theparties.

181

Q:Whatarereciprocalobligations? WAIVEROFFUTUREFRAUD

A: These are obligations created and established Q:Mayanactionarisingfromfraudbewaived?
at the same time, out of the same cause and
whichresultsinthemutualrelationshipbetween A: With respect to fraud that has already been
theparties. committed, the law does not prohibit
renunciationoftheactionfordamagesbasedon
Q:Inreciprocalobligations,whendoesaparty the same. However, the law does prohibit any
incurindelay? waiver of an action for future fraud since the
sameiscontrarytolawandpublicpolicy.
A: In reciprocal obligations one party incurs in
delayfromthemomenttheotherpartyfulfillshis Note:Waiverofpastfraudisvalidsincesuchcanbe
deemed an act of generosity. What is renounced is
obligation,whilehehimselfdoesnotcomplyoris
the effect of fraud, particularly the right to
not ready to comply in a proper manner with
indemnity.
whatisincumbentuponhim.

Q:Whatarethekindsoffraud?Distinguish.
Q: In reciprocal obligations, when is demand

necessaryinorderforapartytoincurindelay?
A:

FRAUDDURINGTHE FRAUDDURINGTHE
A:Onlywhentherespectiveobligationsaretobe
PERFECTIONOFTHE PERFORMANCEOFTHE
performedonseparatedates. CONTRACTORCAUSAL OBLIGATIONOR
FRAUD INCIDENTALFRAUD
Q:Whatistheeffectofnoncomplianceofboth (ART.1338) (ART.1344)
partiesinreciprocalobligations? WhenEmployed
Duringtheperformance
A: If neither party complies with his prestation, Beforeorduringthe
ofa
defaultofonecompensatesforthedefaultofthe perfectionofacontract
preexistingobligation
other. PurposeofExecution
Tosecuretheconsentof Toevadethenormal
Q: What may cause the cessation of the effects anothertoenterintothe fulfillmentofthe
ofmora? contract obligation
ResultantEffect
A:
Vitiationofconsent Breachofanobligation
1. Renunciation(express/implied);or
2. Prescription. StatusoftheContract
Voidable Valid
3.FRAUD
RightorRemedyofAggrievedParty

Rightofinnocentparty Rightofinnocent
Q:Whatisfraud?
toannulthecontract party/creditortoclaim

withdamages fordamages
A: It is an intentional evasion of the faithful

performanceoftheobligation(8Manresa72).
Q: What are the remedies of the defrauded

party?
Q:Whattypeoffraudmustbepresentinorder

thattheobligormaybeheldliablefordamages?
A:

1. Specificperformance(Art.1233,NCC)
A: The fraud must be incidental fraud, or that
2. Resolution of the contract (Art. 1191,
which is present during the performance of the
NCC)
obligation, and not causal fraud, or fraud
3. Damages,ineithercase
employed in the execution of a contract, which

vitiatesconsent.

182 CIVILLAWTEAM:

OBLIGATIONS
4.NEGLIGENCE relation contractualrelation

Thesourceof
Q:Distinguishfraudfromnegligence. obligationof
Thesourceofobligation
defendanttopay
A: isdefendants
damagesisthebreach
negligenceitself
Fraud Negligence ornonfulfillmentof
Thereisnodeliberate thecontract
Thereisdeliberate intentiontocause Proofoftheexistence
intentiontocause damageorinjuryevenif ofthecontractandof
Thenegligenceofthe
damage theactwasdone itsbreachornon
defendantmustbe
voluntarily fulfillmentissufficient
proved
primafacietowarrant
Liabilitycannotbe Liabilitymaybe recovery
mitigated mitigated Proofofdiligencein
Proofofdiligenceinthe
GR:Waiverforfuture theselection&
selection&supervision
negligencemaybe supervisionofthe
oftheemployeesisa
allowedincertaincases employeesisnotan
defense
availabledefense
Waiverforfuturefraud
XPN:Natureofthe
isvoid
obligationorpublic Q:Whatisthedegreeofdiligencerequired?
policyrequires
extraordinarydiligence A:
(e.g.commoncarrier) 1. Thatagreedupon
2. In the absence of such, that which is
Note:Whennegligenceissogrossthatitamountsto requiredbythelaw
wantonattitudeonthepartofthedebtor,thelaws 3. In the absence of the foregoing,
incaseoffraudshallapply. diligence of a good father of afamily
that reasonable diligence which an
Wherenegligenceshowsbadfaith(i.e.,deliberately ordinary prudent person would have
committed)itisconsideredequivalenttofraud.Any done under the same circumstances.
waiverofanactionforfuturenegligenceofthiskind XPN:Common carriers requiring
isthereforevoid.(DeLeon,ObligationsandContract, extraordinary diligence (Arts. 1998
2003ed.,p.57)
2002)

Q: What are the effects of contributory
5.CONTRAVENTIONOFTENOROFOBLIGATION
negligenceofthecreditor?
(VIOLATIO)

A:
Q: What is violation of the terms of the
GR:Itreducesormitigatesthedamageswhich
contract?
hecanrecover.

A:Itistheactofcontraveningthetenororterms
XPN:If the negligent act or omission of the
or conditions of the contract. It is also known as
creditor is the proximate cause of the event
violatio,i.e.failureofcommoncarriertotakeits
whichledtothedamageorinjurycomplained
passenger to their destination.(Pineda,
of,hecannotrecover.
ObligationsandContracts,2000ed,p.50)

Q: Distinguish culpa contractual from culpa Note: Under Art. 1170, NCC, the phrase in any
aquiliana. manner contravene the tenor of the obligation
includes any illicit act which impairs the strict and
A: faithfulfulfillmentoftheobligation,oreverykindof
CULPA defectiveperformance.
CULPACONTRACTUAL
AQUILIANA(QUASI
(CONTRACT)
DELICT)
Negligenceismerely
Negligenceis
anincidentinthe
substantiveand
performanceofan
independent
obligation
Thereisalwaysapre Theremayormaynotbe
existingcontractual apreexisting
183

6.FORTUITOUSEVENT Q: Is there liability for loss due to fortuitous
event?
Q:Whatisfortuitousevent?
A:
A: It is an occurrence or happening which could GR: There is no liability for loss in case of
notbeforeseen,orevenifforeseen,isinevitable fortuitousevent.
(Art.1174,NCC).
XPNs:LaNSPCBaG
Q:Whataretherequisitesofafortuitousevent? 1. Law
2. Nature of the obligation requires the
A: assumptionofrisk
1. Cause is independent of the will of the 3. Stipulation
debtor; 4. The debtor is guilty of dolo, malice or
2. The event is unforeseeable or badfaith,hasPromisedthesamething
unavoidable; to two or more persons who does not
3. Occurrence renders it absolutely havethesameinterest
impossible for the debtor to fulfill his 5. ThedebtorContributedtotheloss(Tan
obligation in a normal manner; v.Inchausti&Co.,G.R.No.L6472,Mar.
impossibility must be absolute not 7,1912)
partial, otherwise not force majeure; 6. ThepossessorisinBadfaith(Art.552)
and 7. TheobligorisGuiltyoffraud,negligence
4. Debtor is freefrom any participation in or delay or ifhe contravened the tenor
the aggravation of the injury to the of the obligation (Juan Nakpil v. United
creditor. Construction Co., Inc. v. CA, G.R. No. L
47851,Apr.15,1988)
Note: The fortuitous event must not only be the
proximate cause but it must also be the only and Q: Philcomsat contends that expiration of the
sole cause. Contributory negligence of the debtor RPUS Military Bases Agreement and non
renders him liable despite the fortuitous event. ratification of the treaty is not a fortuitous
(Pineda,ObligationsandContracts,2000ed,p.62) event.Decide.

Q: If the happening of an event is difficult to A: No. The requisites for fortuitous events are
foresee,isitafortuitousevent? presentintheinstantcase.PhilcomsatandGlobe
hadnocontroloverthenonrenewaloftheterm
A: No. The mere difficulty to foresee the oftheRPUSMilitaryBasesAgreementwhenthe
happening is not impossibility to foresee the sameexpiredin1991,becausetheprerogativeto
same. (Republic v. Luzon Stevedoring Corp., G.R. ratify the treaty belonged to the Senate. Neither
No.L21749,Sept.29,1967) didthepartieshavecontroloverthesubsequent
withdrawal of the US military forces and
Q:DistinguishActofGodfromActofMan personnel from Cubi Point. The events made
impossible the continuation of the agreement
A: without fault on the part of either party. Such
ACTOFGOD ACTOFMAN fortuitous events rendered Globe exempt from
Fortuitousevent Forcemajeure paymentofrentalsfortheremainderoftheterm
Eventcausedbythe of the agreement. (Philippine Communications
Eventwhichis
legitimateorillegitimate Satellite Corp.v.Globe Telecom, Inc.,G.R. No.
absolutelyindependent
actsofpersonsother
ofhumanintervention 147324,May25,2004)
thantheobligor

i.e.armedinvasion,
i.e.earthquakes, Q: MIAA entered into acompromise agreement
robbery,war(Pineda,
storms,floods, with ALA. MIAA failed to pay within the period
Obligationsand
epidemics stipulated. Thus, ALA filed a motion for
Contract,2000ed,p.60)
execution to enforce its claim. MIAA filed a
Note: There is no essential difference between commentandattributedthedelaystoitsbeinga
fortuitouseventandforcemajuere;theybothrefer government agency and the Christmas rush. Is
to causes independent of the will of the obligor. thedelayofpaymentafortuitousevent?
(Tolentino,CivilCodeofthePhilippines,Vol.IV,2002
ed,p.127) A:No.TheactofGoddoctrinerequiresallhuman
agencies to be excluded from creating the cause
184 CIVILLAWTEAM:

OBLIGATIONS
ofthemischief.Suchdoctrinecannotbeinvoked 2. Ongenericobligationtheobligationis
to protect a person who has failed to take steps not extinguished (genus nun quam
toforestallthepossibleadverseconsequencesof peruitgenusneverperishes)
loss or injury. Since the delay in payment in the
present case was partly a result of human Q: AB Corp. entered into a contract with XY
participation whether from active intervention Corp. whereby the former agreed to construct
orneglectthewholeoccurrencewashumanized the research and laboratory facilities of the
and was therefore outside the ambit of a caso latter.Underthetermsofthecontract,ABCorp.
fortuito. agreedtocompletethefacilityin18months,at
the total contract price of P10 million. XY Corp.
First, processing claims against the government paid50%ofthetotalcontractprice,thebalance
arecertainlynotonlyforeseeableandexpectable, to be paid upon completion of the work. The
butalsodependentuponthehumanwill.Second, work started immediately, but AB Corp. later
the Christmas season is not a casofortuito, but a experienced work slippage because of labor
regularly occurring event. Third, the occurrence unrest in his company. AB Corp.s employees
of the Christmas season did not at all render claimed that they are not being paid on time;
th
impossible the normal fulfillment of the hence, the work slowdown. As of the 17
obligation. Fourth, MIAA cannot argue that it is month,workwasonly45%completed.ABCorp.
freefromanyparticipationinthedelay.Itshould asked for extension of time, claiming that its
have laid out on the compromise table the laborproblemsisacaseoffortuitousevent,but
problems that would be caused by a deadline this was denied by XY Corp. When it became
fallingduringtheChristmasseason.Furthermore, certain that the construction could not be
it should have explained to ALA the process finished on time, XY Corp. sent written notice
involved for the payment of ALs claim. (MIAA v. cancellingthecontractandrequiringABCorp.to
Ala Industries Corp., G.R. No. 147349, Feb. 13, immediatelyvacatethepremises.
2004)
Can the labor unrest be considered a fortuitous
Q:JALcancelledallitsflighttoManiladuetothe event?
Mt. Pinatubo eruption and NAIA's indefinite
closure.Thepassengerswerethenforcedtopay A:Laborunrestisnotafortuitouseventthatwill
for their accommodations and meal expenses excuse AB Corp. from complying with its
from their personal funds. Thus, they filed an obligation of constructing the research and
action for damages against JAL. Can JAL avoid laboratory facilities of XY Corp.The labor unrest,
liability by invoking that delays were caused by whichmayevenbeattributedinlargeparttoAB
forcemajeure? Corp. itself, is not the direct cause of non
compliance by AB Corp. It is independent of its
A:Yes.TheMt.PinatuboeruptionpreventedJAL obligation. It is similar to the failure of a DBP
from proceeding to Manila on schedule. Such borrower to pay her loan just because her
eventcanbeconsideredas"forcemajeure"since plantation suffered losses due to the cadang
the delayed arrival in Manila was not imputable cadang disease. It does not excuse compliance
toJAL. withtheobligation(DBPv.Vda.DeMoll).

WhenJALwaspreventedfromresumingitsflight Additional Answer: The labor unrest in this case
to Manila due to the effects of Mt. Pinatubo is not a fortuitous event. The requisites of
eruption,whateverlossesordamagesintheform fortuitous event are: (1) the event must be
of hotel and meal expenses the stranded independent of human will or at least of the
passengers incurred, cannot be charged to JAL. debtorswill;(2)theeventcouldnotbeforeseen,
Indeed,intheabsenceofbadfaithornegligence, or if foreseen is inevitable; (3) the event must
JAL cannot be liable for the amenities of its haverenderedimpossibledebtorscomplianceof
stranded passengers by reason of a fortuitous the obligation in a proper manner; and (4) the
event.(JapanAirlinesv.CA,G.R.No.118664,Aug. debtor must not be guilty of concurrent
7,1998). negligence. All the requisites are absent in this
case. AB Corp. could have anticipated the labor
Q:Whataretheeffectsoffortuitousevent? unrestwhichwascausedbydelaysinpayingthe
laborers wages. The company could have hired
A: additional laborers to make up for the work
1. On determinate obligation the slowdown.
obligationisextinguished
185

CanXYCorp.unilaterallyandimmediatelycancel a. personalrightsofthedebtor
thecontract? b. rightsinherentinthepersonofthe
debtor
A: No. XY Corp. cannot unilaterally and c. properties exempt from execution
immediatelycancelthecontractbecausethereis (e.g.familyhome)
need for a judicial action of rescission. The
provisionsofArt.1191oftheCivilCodeproviding 3. Accionpauliana(rescissoryaction)an
forrescissioninreciprocalobligationscanonlybe actiontoimpugnorassailtheactsdone
invokedjudicially. orcontractsenteredintobythedebtor
infraudofhiscreditor;
Alternative Answer: Yes, XY Corp. may
unilaterally cancel the obligation but this is Note: Must be a remedy of last resort,
subject to the risk that the cancellation of the availed of only after all other legal
reciprocal obligation being challenged in court remedies have been exhausted and have
and if AB Corp. succeeds, then XY Corp. will be beenprovenfutile.
declaredindefaultandbeliablefordamages.
Presupposesajudgmentandtheissuance
bythetrialcourtofawritofexecutionfor
MustABCorp.returnthe50%downpayment?
the satisfaction of the judgment and the

failureoftheSherifftoenforceandsatisfy
A:No,undertheprincipleofquantummeruit,AB thejudgmentofthecourt.
Corp. had the right to retain payment
corresponding to his percentage of Note: Resort to the remedies must be in the order
accomplishment less the amount of damages statedabove.(Art.1177,NCC)
suffered by XY Corp. because of the delay or
default.(2008BarQuestion) Q: Saturnino was the registered owner of two
parcelsofland.TheAdorableswerelesseesofa
D.REMEDIES portion of Lot No. 1. Saturnino and his son,
Francisco, obtained a loan from Salvador, in
Q:Whataretheremediesthatmaybeavailedof considerationofwhichtheypromisedtotransfer
incaseofbreach? thepossessionandenjoymentofthefruitsofLot
No.2.SaturninosoldtoFranciscopartofLotNo.
A: 1, which Francisco sold to Jose Ramos. The
1. Specific performance, or substituted portion of land being rented by Salvador was
performance by a third person in case includedintheportionsoldtoRamos.Thedeeds
of an obligation to deliver a generic of sale evidencing the conveyances were not
thing,andinobligationstodo,unlessit registered in the office of the register of deeds.
isapurelypersonalact;or WhenSaturninoandFranciscofailedtopaytheir
2. Rescission (or resolution in reciprocal loan,ademandletterwassenttoFrancisco,but
obligations); herefusedtopay.
3. Damages,inanycase;
4. Subsidiaryremediesofcreditors: When Salvador learned of the sale made by
a. Accionsubrogatoria Francisco to Ramos, Salvador filed a complaint
b. Accionpauliana for the annulment or rescission of the sale on
c. Acciondirecta the ground that the sale was fraudulently
prepared and executed. Can Salvador file an
1.SPECIFICPERFORMANCE action for the rescission or annulment of the
sale?
Q: What are the remedies in connection with
specificperformance? A: No. As creditor, Salvador does not have such
material interest as to allow him to sue for
A: rescission of the contract of sale. At the outset,
1. Exhaustion of the properties of the Salvadors right against Francisco and Ramos is
debtor (not exempt from attachment only a personal right to receive payment for the
underthelaw) loan; it is not a real right over the lot subject of
2. Accion subrogatoria (subrogatory thedeedofsale.
action) an indirect action brought in
thenameofthedebtorbythecreditor Thesalewasnotmadeinfraudofcreditors.Art.
toenforcetheformersrightsexcept: 1177 of the Civil Code provides for successive
186 CIVILLAWTEAM:

OBLIGATIONS
measuresthatmustbetakenbyacreditorbefore Q:Whatissubstituteperformance?
he may bring an action for rescission of an
allegedly fraudulent sale. Without availing of the A: It is a remedy of the creditor in case of non
first and second remedies, Salvador simply performancebythedebtor;whereanotherparty
undertook the third measure and filed an action performstheobligationorthesameisperformed
forannulmentofthesale.Thiscannotbedone. attheexpenseofthedebtor.

Anactionforrescissionisasubsidiaryremedy;it Q:Whenmaytherebesubstituteperformance?
cannot be instituted except when the party A:
suffering damage has no other legal means to 1. Positivepersonalobligation:
obtain reparation for the same. Considering a. If not purely personal
Article 1380 of the Civil Code, which states that substitute performance; the
contractvalidlyagreeduponmayberescindedin obligation shall be executed
thecasesestablishedbylaw,Salvador,etal.have at debtors cost if he fails to
not shown that they have no other means of doit.(Art.1167,NCC)
enforcingtheircredit.(Adorable,et.al.v.CA,G.R. b. Purelypersonalnosubstitute
No.119466,Nov.25,1999) performance may be
demanded because of the
Q:Whilethecasewaspending,Felixdonatedhis personal qualifications taken
of parcels of land in favor of his children. into consideration. The only
JudgmentwasrenderedagainstFelix.Whenthe remedyisdamages.
sheriff, accompanied by counsel of Philam, 2. Realobligation:
sought to enforce the alias writ of execution, a. Generic thing substitute
they discovered that Felix no longer had any performance;deliverymaybe
property and that he had conveyed the subject made by a person other than
properties to his children. Thus, Philam filed an the debtor since the object is
accionpauliana for rescission of the donations. merelydesignatedbyitsclass
Felix countered that an action for rescission of or genus. The creditor may
the donation had already prescribed since the ask that the obligation be
timeofprescriptionhastorunfromthedateof complied with at the expense
registration. Has the action filed by Philam ofthedebtor.(1165,NCC)
prescribed? b. Specific thing specific
performance may be
A: No. Philam only learned about the unlawful demanded, that is, the
conveyancesmadebyFelixmorethanfouryears creditor may compel the
after the donations were effected, when its debtortomakethedelivery.
counselaccompaniedthesherifftoButuanCityto
attach the properties. There they found that he 2.RESCISSION
nolongerhadanypropertiesinhisname.Itwas
onlythenthatPhilam'sactionforrescissionofthe Q:WhatisrescissionunderArticle1191?
deedsofdonationaccruedbecausethenitcould
besaidthatPhilamhadexhaustedalllegalmeans A: It refers to the cancellation of the contract or
to satisfy the trial court's judgment in its favor. reciprocalobligationincaseofbreachonthepart
Since Philam filed its complaint for accion ofone,whichbreachisviolativeofthereciprocity
paulianaagainstpetitionersbarelyamonthfrom between the parties. This is properly called
its discovery that Felix had no other property to resolution.
satisfythejudgmentawardagainsthim,itsaction
forrescissionofthesubjectdeedsclearlyhadnot Note: The rescission under Art. 1380 is rescission
yet prescribed.(Khe Hong Cheng v. CA,G.R. No. basedonlesionorfrauduponcreditors.
144169,Mar.28,2000)
Q: To what kind of obligation is resolution
Note: The debtor is liable with all his property, available?
present and future, for the fulfillment of his
obligations, subject to the exemptions provided by A: Reciprocal obligation, since resolution is
law (De Leon, Obligations and Contracts, 2003 ed, impliedtherein.
p.71)

187

Q:Whomaydemandresolution? Q:Whatisacciondirecta?

A:Injuredparty. A:Itistherightofthelessortogodirectlyagainst
thesublesseeforunpaidrentsofthelessee.
Q: May the injured party demand resolution
afterheelectsspecificperformance? Note: Under Art. 1652 of the Civil Code, the
A: sublessee is subsidiarily liable to the lessor for any
GR:No.Hisrightisnotconjunctive,thus,hemay rentduefromthelessee.
not choose both remedies of resolution and
specificperformance. VII.KINDSOFCIVILOBLIGATIONS
XPN:Yes,ifspecificperformanceshouldbecome
impossible Q:Whatarethekindsofcivilobligations?

Q:Whendoesliabilityfordamagesarise? A:
1. Pureobligations;
A:ThoseliableunderArt.1170shallpaydamages 2. Conditionalobligations;
onlyifasidefromthebreachofcontract, 3. Obligationswithaperiodorterm;and
prejudiceordamagewascaused.(Bergv.Teus, 4. AlternativeorFacultativeobligations
G.R.No.L6450,Oct30,1954)
Q:Differentiateacivilobligationfromanatural
Q:Whatarethekindsofdamages? obligation.
A:
1. Moral A:
2. Exemplary CIVILOBLIGATION NATURALOBLIGATION
3. Nominal Astobindingforce
4. Temperate Arisesfromequityand
Arisesfrompositivelaw
5. Actual justice
6. Liquidated4.SUBSIDIARYDEMEDIES Astoenforcementincourt
Cannotbeenforcedin
Q: What are the requisites of accion court.Itdepends
Canbeenforcedbycourt
subrogatoria? exclusivelyuponthe
action
goodconscienceofthe

debtor.
A:

1. Thedebtorsassetsmustbeinsufficient
A.PUREOBLIGATIONS
tosatisfyclaimsagainsthim
2. The creditor must have pursued all
properties of the debtor subject to Q:Whatispureobligation?
execution
3. The right of action must not be purely A:Onewhoseeffectivityorextinguishmentdoes
personal not depend upon the fulfillment or non
4. The debtor whose right of action is fulfillment of a condition or upon the expiration
exercised must be indebted to the ofaperiodandisdemandableatonce.(Art.1179,
creditor. NCC)

Q:Whataretherequisitesofaccionpauliana? B.CONDITIONALOBLIGATIONS

A: Q:Whatisconditionalobligation?
1. Defendantmustbeindebtedtoplaintiff
2. The fraudulent act performed by the A: It is an obligation subject to a condition and
debtorsubsequent to the contractgives the effectivity of which is subordinated to the
advantagetoanother fulfillment or nonfulfillment of a future and
3. Thecreditorisprejudicedbysuchact. uncertain event, or upon a past event unknown
4. Thecreditormusthavepursuedall totheparties.
propertiesofthedebtorsubjectto
execution
5. Thecreditorhasnootherlegalremedy.

188 CIVILLAWTEAM:

OBLIGATIONS
Q: Ramon, the judicial administrator of the Q: Distinguish suspensive from resolutory

estate of Juan, found out that Rodriguez had conditions.
enlarged the area of the land which he
purchased from Juan before his death. Thus, A:
Ramon demanded Rodriguez to vacate the RESOLUTORY
SUSPENSIVECONDITION
portion allegedly encroached by him. Rodriguez CONDITION
refused and contested there was indeed a EffectofFulfillment
conditional sale with the balance of the Obligationarisesor Obligationis
purchase price payable within five years from becomeseffective extinguished
the execution of the deed of sale. Ramon then EffectofNonfulfillment
filedanactionforrecoveryofpossessionofthe Ifnotfulfilled,no
Ifnotfulfilled,juridical
disputedlot.Isthecontractofsaleaconditional juridicalrelationis
relationisconsolidated
one? created
WhenRightsareAcquired
A: No. The stipulation that the "payment of the Rightsarenotyet
Rightsarealready
fullconsiderationbasedonasurveyshallbedue acquired,butthereis
acquired,butsubjectto
hopeorexpectancythat
and payable in 5 years from the execution of a thethreatordangerof
theywillsoonbe
formal deed of sale" is not a condition which extinction
acquired
affects the efficacy of the contract of sale. It

merely provides the manner by which the full
Q: In cases of obligations with a suspensive
consideration is to be computed and the time
condition, what are the effects of loss,
within which the same is to be paid. But it does
deterioration, and improvements in real
not affect in any manner the effectivity of the
obligations?
contract. (Heirs of San Andresv.Rodriguez, G.R.

No.135634,May31,2000)
A:
WITHDRSFAULT WITHOUTDRSFAULT
Q:Distinguishperiodfromcondition.
Loss
DRpaysdamages Obligationextinguished
A:
Deterioration
PERIOD CONDITION
CR chooseb/w
AstoTime
rescissionofobligation
Mayrefertopastevent
Referstothefuture orfulfillment(with ImpairmentbornebyCR
unknowntotheparties
indemnityfordamagesin
AstoFulfillment
eithercase)
Itwillhappenatan
Improvement
exactdateoratan
Mayormaynothappen 1. By the things nature or bytime inure to the
indefinitetime,butis
benefitoftheCR
suretoarrive
2. AtthedebtorsexpenseDRshallhavenoright
AstoitsInfluenceontheObligationtobeFulfilledor
otherthanthatgrantedtoausufructuary
Performed

Noeffectorinfluence Maygiverisetoan
upontheexistenceof obligation(suspensive)
Q:WhataretherequisitesforArt.1189toapply?
theobligationbutonlyin orthecessationofone
itsdemandabilityor alreadyexisting A:
performance (resolutory) 1. Mustbearealobligation;
2. Objectisaspecific/determinatething;
1.SUSPENSIVECONDITION 3. Obligation is subject to a suspensive
condition;
Q:Whatisasuspensivecondition? 4. Theconditionisfulfilled;and
5. There is loss, deterioration or
A: A condition the fulfillment of which will give improvement of the thing during the
risetotheacquisitionofaright. pendency of the happening of the
condition.

Note: The same conditions apply in case of an
obligorinobligationswitharesolutorycondition.In
suchcases,thethirdrequisitemustread,subjectto
aresolutorycondition.

189

Q:GSISapprovedtheapplicationofAgcaoilifor Q:Xdonatedaparceloflandtothemunicipality
the purchase of a house and lot in the GSIS of Tarlac under a condition that a public school
Housing Project; it is subject to the condition shall be erected and a public park be made
that he should immediately occupy the house. within6monthsfromthedateoftheratification
But he could not because the house was of the donation by the parties. After the
uninhabitable. He paid the first installment and registration of the said donation, X sold the
otherfeesbutrefusedtomakefurtherpayment same land to Y. Thereafter, Ybrought an action
until GSIS had made the house habitable. GSIS against the Province of Tarlac, alleging that the
refused and opted to cancel the award and conditions of the donation is a condition
demand the vacation by Agcaoili of the precedent, thus, the municipality of Tarlac did
premises.CanGSIScancelthecontract? not acquire ownership over the land when it
failed to comply with the saidcondition. Is the
A: No. There was a perfected contract of sale contentionofYcorrect?
betweentheparties;therehadbeenameetingof
the minds upon the purchase by Agcaoili of a A: No. In this case, the condition could not be
determinatehouseandlotatadefinitepriceand complied with except after giving effect to the
fromthatmoment,thepartiesacquiredtheright donation.TheMunicipalityofTarlaccouldnotdo
to reciprocally demand performance. Based on anyworkonthedonatedlandifthedonationhad
their contact, it can only be understood as not really been effected, because it would be an
imposing on GSIS an obligation to deliver to invasion of another's title, for the land would
Agcaoiliareasonablyhabitabledwellinginreturn havecontinuedtobelongtothedonorsolongas
for his undertaking to pay the stipulated price. the condition imposed was not complied with.
Since GSIS did not fulfill that obligation, and was Thus,consideringthattheconditionitselfwasfor
notwillingtoputthehouseinhabitablestate,it apublicschooltobebuiltmeansthatownership
cannot invoke Agcaoili's suspension of payment of the land was already with the Municipality.
of amortizations as cause to cancel the contract (Parksv.ProvinceofTarlac,G.R.No.L24190,July
betweenthem. 13,1926)

Note: In reciprocal obligations, neither party incurs Q: The late Don Lopez, Sr., who was then a
indelayiftheotherdoesnotcomplyorisnotready member of the Board of Trustees of CPU,
to comply in a proper manner with what is executed a deed of donation in favor of the
incumbent upon him. (Agcaoili v. GSIS, G.R. No. L latterofaparceloflandsubjecttothecondition
30056,Aug.30,1988) thatitshallbeutilizedfortheestablishmentand
use of a medical college. However, the heirs of
2.RESOLUTORYCONDITION Don Lopez, Sr.,filed an actionfor annulment of
the donation, reconveyance and damages
Q:Whatisaresolutorycondition? againstCPUallegingthatCPUhadnotcomplied
withtheconditionsofthedonation.
A:Aconditionwheretherightsalreadyacquired
arelostuponfulfillmentofthecondition. Are the conditions imposed resolutory or
suspensive?
Q:Whataretheeffectsoffulfillmentof
resolutorycondition? A: Under Art. 1181 of the Civil Code, on
A: conditional obligations, the acquisition of rights,
1. Realobligations: as well as the extinguishment or loss of those
a. Thepartiesshallreturntoeach already acquired, shall depend upon the
otherwhattheyhavereceived. happening of the event which constitutes the
b. Obligationisextinguished. condition. Thus, when a person donates land to
c. Incaseoftheloss,deteriorationor another on the condition that the latter would
improvementofthething,Art. build upon the land a school, the condition
1189,withrespecttothedebtor, imposed was not a condition precedent or a
shallbeappliedtothepartywhois suspensive condition but a resolutory one. It is
boundtoreturn. notcorrecttosaythattheschoolhousehadtobe
constructed before the donation became
2. Personalobligationsthecourtsshall effective,thatis,beforethedoneecouldbecome
determine,ineachcase,theretroactive the owner of the land, otherwise, it would be
effectoftheconditionthathasbeen invading the property rights of the donor. The
compliedwith. donationhadtobevalidbeforethefulfillmentof

190 CIVILLAWTEAM:

OBLIGATIONS
the condition. If there was no fulfillment or Q: What are the effects of the fulfillment of a
compliancewiththecondition,thedonationmay resolutorycondition?
now be revoked and all rights which the donee A:
mayhaveacquiredunderitshallbedeemedlost 1. Realobligations:
andextinguished.(CentralPhilippineUniversityv. a. obligationisextinguished
CA,G.R.No.112127,July17,1995) b. Parties shall return to each other
whattheyhavereceived.
Q: What does a constructive fulfillment of a 2. Personal obligations the court
conditionentail? determinestheretroactiveeffectofthe
conditionfulfilled.
A:When the debtor actually prevents the
fulfillment of the condition, then said condition Q:Whataretheothertypesofconditions?
shallbedeemedfulfilled.
A:CaMPNIDCAPI
2.POTESTATIVECONDITION 1. Casualtheperformanceorfulfillment
of the condition depends upon chance
Q:Whenisaconditionsaidtobepotestative? and/orthewillofathirdperson
2. Mixed the performance or fulfillment
A: When the condition depends upon the will of of the condition depends partly upon
oneofthecontractingparties. thewillofapartytotheobligationand
partlyuponchanceand/orthewillofa
Q:Doesaconditionwhichdependsuponthewill thirdperson
of the debtor invalidate both the condition and 3. Positiveinvolvesthedoingofanact
the obligation? What about a condition which 4. Negative involves the omission of an
dependsuponthewillofthecreditor? act
5. Divisible is susceptible of partial
A:Yes.Thisisbecauseitsvalidityandcompliance performance
is left to the will of the debtor, and cannot 6. Indivisibleisnotsusceptibleofpartial
therefore be easily demanded. But if the performance
conditionisapreexistingone,onlythecondition 7. Conjunctive there are several
isvoid,leavingtheobligationitselfvalid.Further, conditions in an obligation all of which
if the condition is resolutory, it is valid because mustbeperformed
whatislefttothesolewillofthedebtorisnotthe 8. Alternative there are several
existence or the fulfillment of the obligation but conditionsinanobligationbutonlyone
merelyitsextinguishment. mustbeperformed
9. Possible is capable of fulfillment
If the fulfillment depends upon the will of the according to the nature, law, public
creditor, in any case, both the condition and the policyorgoodcustoms
obligationarevalid. 10. Impossibleisnotcapableoffulfillment
according to nature, law, public policy
Q: What are the effects of the fulfillment of a orgoodcustoms(Art.1183,NCC)
suspensivecondition?
A: Q: What is the effect of an impossible or
1. Realobligations: unlawfulcondition?
GR: Effects retroact to the day of
constitutionoftheobligation. A:
XPN:Noretroactivityasto; GR: Impossible conditions annul the
a.fruits obligation which depends upon the parties
b.interests butnotofathirdperson.

XPN to the XPN: There may be XPNs:PDDoNT.
retroactivity as to the fruits and 1. Preexistingobligation
interestsinunilateralobligationsifsuch 2. ObligationisDivisible
intentionappears 3. InsimpleorremuneratoryDonations
4. In case of conditions Not to do an
2. Personal obligations the court impossiblething
determinestheretroactiveeffectofthe 5. InTestamentarydispositions
conditionfulfilled.
191

Note: In the foregoing, the obligations remain Q:Forwhosebenefitistheperiodconstituted?
valid,onlytheconditionisvoidanddeemedto
havenotbeenimposed.Itisapplicableonlyto A:
obligations not to do and gratuitous GR:Whenaperiodhasbeenagreeduponfor
obligations. the performance or fulfillment of an
obligation, it is presumed to have been
Q: When will the effect of fulfillment of a established for the benefit of both the
conditionretroact? creditorandthedebtor.

A: XPN: When it appears from the tenor of the
1. Inanobligationtogiveitretroactsto period or other circumstances that it was
the day of the constitutionof the established for the benefit of one of the
obligation parties.
2. Inanobligationtodoornottodothe
court may determine to what date Q: What is the effect of the term being for the
retroactivityshallbeallowed,oritmay benefitofeithertheCRortheDR?
even refuse to permit retroactivity
(Tolentino,Civil CodeofthePhilippines, A:
Vol.IV,2002ed,p.166) 1. WhenitisforthebenefitoftheCreditor
Creditor may demand the
performance of the obligation at any
C.OBLIGATIONSWITHAPERIOD time but the DR cannot compel him to
accept payment before the expiration
Q:Whatisanobligationwithaperiodoraterm? oftheperiod(e.g.ondemand)
2. WhenitisforthebenefitoftheDebtor
A: It is an obligation whose demandability or
extinguishment is subject to the expiration of a Debtor may oppose any premature
periodoraterm.(Art.1193,NCC) demand on the part of the CR for
performance of the obligation, or if he
Q: What are the requisites of a valid period or sodesires,hemayrenouncethebenefit
term? of the period by performing his
obligationinadvance.(Manresa)
A:
1. Future Q:Whatistheeffectofafortuitouseventinan
2. Certain obligationwithaperiod?
3. Possible,legallyandphysically
A:Itonlyrelievesthecontractingpartiesfromthe
Q:Isthestatementofadebtorthathewillpay fulfillment of their respective obligation during
whenhismeanspermithimtodosorelatetoa thetermorperiod.
periodoracondition?Issuchastatementvalid
considering that the same is left to the will of Q:Whenmaythecourtfixtheperiod?
thedebtor?
A:
A:Whenthedebtorbindshimselftopaywhenhis 1. If the obligation does not fix a period,
means permit him to do so, the obligation is butfromitsnatureandcircumstancesit
deemed with a period or term. This is valid can be inferred that a period was
because it is not the payment itself that is intendedbytheparties
dependent upon the will of the debtor, but the 2. If the duration of the period depends
momentofpayment. uponthewilloftheDR

3. In case of reciprocal obligations, when
As the time of payment is not fixed, the court
thereisajustcauseforfixingtheperiod
mustfixthesamebeforeanyactionforcollection
4. IftheDRbindshimselfwhenhismeans
may be entertained, unless, the prior action of
permithimtodoso
fixing the term or period will only be a formality

andwillservenopurposebutdelay.

192 CIVILLAWTEAM:

OBLIGATIONS
Q:Whenmayadebtorlosehisrighttomakeuse Q: In alternative obligations, when does the

oftheperiod? choicemadetakeeffect?

A: A: The choice made takes effect only upon
1. Insolvency of the DR, unless security is communication of the choice to the other party
provided and from such time the obligation ceases to be
2. Didnotdeliversecuritypromised alternative(Art.1205,NCC).
3. Impaired security through his own acts
or through fortuitous event, unless he Note:Thenoticeofselectionorchoicemaybeinany
givesanewsecurityequallysatisfactory formprovideditissufficienttomaketheotherparty
(if impairment is without the fault of know that the election has been made. (Tolentino,
DR,heshallretaintheright) CivilCodeofthePhilippines,2002ed,p.205)
4. Violatesundertakinginconsiderationof
extensionofperiod Q:DoesthechoicemadebytheDRrequirethe
5. DR attempts to abscond (Art. 1198, concurrenceoftheCR?Whathappenswhen
NCC) throughtheCRsfault,selectionisdeemed
impossible?
D.ALTERNATIVEOBLIGATION

A:No.Toholdotherwisewoulddestroythevery
Q: Distinguish facultative from alternative
natureoftherighttoselectgiventotheDR.Once
obligations.
a choice is made, it can no longer be renounced

andthepartiesareboundthereto.
A:

FACULTATIVE ALTERNATIVE
When choice is rendered impossible through the
OBLIGATIONS OBLIGATIONS
Fortuitouslossofall
CRsfault, theDRmaybringanactionto rescind
Fortuitouslossextinguishes thecontractwithdamages(Art.1203,NCC).
prestationwillnot
theobligation
extinguishtheobligation
Culpablelossobligesthe Q: What are the limitations on the right of
Culpablelossof choiceofthedebtor?
debtortodeliversubstitute
anyobjectduewillgive
prestationwithoutliability
risetoliabilitytodebtor A:Debtorcannotchooseprestationswhichare:
todebtor
GR:Choicepertainto 1. Impossible;
debtor 2. Unlawful;and
Choicepertainsonlyto 3. could not have been the object of the
debtor XPN:Expresslygranted obligation.
tocreditororthird
person Q: When is an alternative obligation converted
Onlyoneobjectisdue Severalobjectsaredue toasimpleobligation?
Maybecompliedwithby Maybecompliedwith
substitutionofonethatis byfulfillinganyofthose A:When:
due alternatelydue 1. thepersonwhohasarightofchoicehas
Ifprincipalobligationis Ifoneprestationisvoid, communicatedhischoice;or
void,thecreditorcannot theothersfreefrom 2. onlyoneispracticable.(Art.1202,NCC)
compeldeliveryofthe vicespreservethe

substitute validityoftheobligation

Ifvariousprestationsare
impossibletoperform
Ifthereisimpossibilityto
exceptone,thisone
delivertheprincipalthingor
mustbedelivered.
prestation,theobligationis
Ifallprestationsare
extinguished,evenifthe
impossibletoperform,
substituteobligationisvalid
theobligationis
extinguished
Wherethechoiceis
Lossofsubstitutebefore
giventothecreditor,the
thesubstitutionthroughthe
lossofthealternative
faultofthedebtordoesnt
throughthefaultofthe
makehimliable
debtorrendershim

liablefordamages
193

Q: What are the effects of loss of objects of Q:Distinguishjointfromsolidaryobligation.
alternativeobligations?
A:
A: JOINTOBLIGATION SOLIDARYOBLIGATION
DUETO Notpresumed.Mustbe
DUETODEBTORS
FORTUITOUS expresslystipulatedby
FAULT
EVENT theparties,orwhenthe
ChoiceBelongstoDebtor Presumedbylaw laworthenatureofthe
CRshallhavearight obligationrequires
toindemnifyfor solidarity.(Art.1207,
damagesbasedon NCC)
DRreleased
Allare thevalueofthelast Eachdebtorisliableonly
fromthe Eachdebtorisobligedto
lost thingwhich foraproportionatepart
obligation paytheentireobligation
disappeared/service oftheentiredebt
whichbecome Eachcreditorhasthe
impossible righttodemandfrom
Eachcreditor,ifthereare
DRshalldeliver DRshalldeliverthat anyofthedebtors,the
Some several,isentitledonly
thatwhichhe whichheshallchoose paymentorfulfillmentof
butnot toaproportionatepart
shallchoose fromamongthe theentireobligation
allare ofthecredit
fromamong remainderwithout (Tolentino,CivilCodeVol
lost
theremainder damages IV,1999ed.p.217)
Only
one Deliverthatwhichremains Q: What is the rule as regards the joint or
remains solidarycharacterofanobligation?

ChoiceBelongstoCreditor A:
CRmayclaimthe GR: When two or more creditors or two or
DRreleased
Allare price/valueofanyof more debtors concur in one and the same
fromthe
lost themwithindemnity obligation, the presumption is that the
obligation
fordamages obligationisjoint.
CRmayclaimanyof
DRshalldeliver thosesubsisting
Some XPNs: The obligation shall be solidary when:
thatwhichhe withoutarightto
butnot ELNCJ
shallchoose damagesOR
allare 1. Expressly stipulated that there is
fromamong price/valueofoneof
lost solidarity;
theremainder thoselostwithright
todamages 2. Lawrequiressolidarity;
Only Deliverthatwhichremains.Incaseof 3. Nature of the obligation requires
one faultofDR,CRhasarighttoindemnity solidarity;
remains fordamages 4. Charge or condition is imposed upon
heirs or legatees and the will expressly
VIII.JOINTANDSOLIDARYOBLIGATIONS makes the charge or condition in
solidum(Manresa);or
Q:Whatarejointobligations? 5. solidary responsibility is imputed by a
final Judgment upon several
A:Itiswheretheentireobligationistobepaidor defendants.(Gutierrez v. Gutierrez, 56
performed proportionately by the debtors (Art. Phil177)
1208,NCC).
Q:ChuaboughtandimportedtothePhilippines
Q:Whataresolidaryobligations? dicalciumphosphate.Whenthecargoarrivedat
thePortofManila,itwasdiscoveredthatsome
A: It is where each of the debtors obliges to pay wereinapparentbadcondition.Thus,Chuafiled
theentireobligation,andwhereeachoneofthe withSmith,Bell,andCo.,Inc.,theclaimagentof
creditorshastherighttodemandfromanyofthe First Insurance Co., a formal statement of claim
debtors, the payment or fulfillment of the entire for the loss. No settlement of the claim having
obligation (Art. 1207, NCC; Pineda, Obligations been made, Chua then filed an action. Is Smith,
andContracts,2000ed,p.139). Bell, and Co., solidarily liable upon a marine
insurance policy with its disclosed foreign
principal?

194 CIVILLAWTEAM:

OBLIGATIONS
A: No. Article 1207 of the Civil Code clearly 5. Insolvencyofadebtorwillnotincrease

provides that "there is a solidary liability only theliabilityofhiscodebtors;
whentheobligationexpresslysostates,orwhen 6. Vicesofeachobligationemanatingfrom
the law or the nature of the obligation requires a particular debtor or creditor will not
solidarity." The wellentrenched rule is that affecttheothers;and
solidary obligation cannot lightly be inferred. It 7. In indivisible or joint obligation, the
must be positively and clearly expressed. (Smith, defenseofresjudicataofonedoesnot
Bell & Co., Inc. v. CA,G.R. No. 110668, Feb. 6, extendtotheothers.
1997)
B.JOINTINDIVISIBLEOBLIGATIONS
Q: The labor arbiter rendered a decision, the
fallo of which states that the following Q: What are the different permutations of joint
respondents as liable, namely: FCMC, Sicat, indivisibleobligations?Whataretheireffects?
Gonzales, Chiu Chin Gin, Lo Kuan Chin, and
INIMACO. INIMACO questions the execution, A:
alleging that the alias writ of execution altered 1. If there are two or more debtors,
and changed the tenor of the decision by compliancewiththeobligationrequires
changingtheirliabilityfromjointtosolidary,by the concurrence of all the debtors,
the insertion of the words "AND/OR". Is the although each for his own share. The
liability of INIMACO pursuant to the decisionof obligation can be enforced only by
thelaborarbitersolidaryornot? precedingagainstallofthedebtors.
2. If there are two or more creditors, the
A: INIMACO's liability is not solidary but merely concurrence or collective act of all the
joint. Wellentrenched is the rule that solidary creditors, although each of his own
obligation cannot lightly be inferred. There is a share, is also necessary for the
solidary liability only when the obligation enforcementoftheobligation.
expressly so states, when the law so provides or 3. Eachcreditisdistinctfromoneanother;
whenthenatureoftheobligationsorequires.In therefore a joint debtor cannot be
the dispositive portion of the labor arbiter, the requiredtopayfortheshareofanother
word "solidary" does not appear. The said fallo withdebtor,althoughhemaypayifhe
expressly states the following respondents wantsto.
thereinasliable,namely:FilipinasCarbonMining 4. In case of insolvency of one of the
Corporation, Sicat, Gonzales, Chiu Chin Gin, Lo debtors, the others shall not be liable
Kuan Chin, and INIMACO. Nor can it be inferred forhisshares.Toholdotherwisewould
therefromthattheliabilityofthesixrespondents destroy the joint character of the
in the case below is solidary, thus their liability obligation.
shouldmerelybejoint.(INIMACOv.NLRC,G.R.No.
101723,May11,2000) Q: What is the effect of breach of a joint
indivisibleobligationbyonedebtor?
A.JOINTOBLIGATIONS
A:Ifoneofthejointdebtorsfailstocomplywith
Q: What are the legal consequences if the his undertaking, the obligation can no longer be
obligationisjoint? fulfilledorperformed.Itistheconvertedintoone
ofindemnityfordamages.InnocentjointDRshall
A: not contribute to the indemnity beyond their
1. Each debtor is liable only for a correspondingshareoftheobligation.
proportionatepartoftheentiredebt;
2. Each creditor, if there are several, is C.SOLIDARYOBLIGATIONS
entitledonlytoaproportionatepartof
thecredit; Q:Whatistheeffectofsolidaryobligation?
3. Thedemandmadebyonecreditorupon
onedebtor,produceseffectsofdefault A: Each one of the debtors is obliged to pay the
onlyasbetweenthem; entire obligation, and each one of the creditors
4. Interruption of prescription caused by hastherighttodemandfromanyofthedebtors
thedemandmadebyonecreditorupon thepaymentorfulfillmentoftheentireobligation
one debtor, will NOT benefit the co
creditorsorthecodebtors;
195

Q:Joey,JovyandJojoaresolidarydebtorsunder Q:Whataretherulesinasolidaryobligation?
a loan obligation of P300, 000.00 which has
fallendue.Thecreditorhas,however,condoned A:
Jojo's entire share in the debt. Since Jovy has
becomeinsolvent,thecreditormakesademand 1. Anyone of the solidary creditors may
onJoeytopaythedebt. collect or demand payment of whole
obligation; there is mutual agency among
1. How much, if any, may Joey be solidarydebtors(Arts.1214,1215)
compelledtopay?
2. To what extent, if at all, can Jojo be
2. Any of the solidary debtor may be
compelled by Joey to contribute to
required to pay the whole obligation; there
suchpayment?
is mutual guaranty among solidary debtors

(Arts.1216,1217,1222)
A:
1. Joey can be compelled to pay only the
remainingbalanceofP200,000, inview 3. Each one of solidary creditors may do
of the remission of Jojos share by the whatever maybe useful to the others, but
creditor.(Art.1219,NCC) notanythingprejudicialtothem(Art.1212);
2. Jojo can be compelled by Joey to however, any novation, compensation,
contribute P50,000. When one of the confusion or remission of debt executed by
solidary debtors cannot, because of his any solidary creditor shall extinguish the
insolvency, reimburse his share to the obligation without prejudice to his liability
debtorpayingtheobligation,suchshare forthesharesoftheothersolidarycreditors.
shall be borne by all his codebtors, in
proportion to the debt of each.(par. 3, Q:Incasesofsolidarycreditors,mayoneactfor
Art.1217,NCC) all?Whatarethelimitations?
Sincetheinsolventdebtor'ssharewhichJoey
paid was Pl00,000, and there are only two A: Yes. However, while each one of the solidary
remaining debtors namely Joey and Jojo creditors may execute acts which may be useful
these two shall share equally the burden of or beneficial to the others, he may not do
reimbursement.Jojomaythusbecompelled anything which may be prejudicial to them. (Art.
by Joey to contribute P50,000. (1998 Bar 1212,NCC)
Question)
Note: Prejudicial acts may still have valid legal
Q:Whatarethekindsofsolidaryobligation? effects,buttheperformingcreditorshallbeliableto
his cocreditors. (Pineda, Obligations and Contracts,
A: 2000ed,p.157)
1. Passive solidarity onthe part of the
debtors Q: What are the effects of assignment of rights
2. Active solidarity on thepart of the inasolidaryobligation?
creditors
3. Mixedsolidarityonbothsides A:
GR: Solidary creditor cannot assign his right
Q:Distinguishsolidarityfromindivisibility. because it is predicated upon mutual
confidence,meaningpersonalqualificationof
A: each creditor had been taken into
INDIVISIBILITY SOLIDARITY consideration when the obligation was
Referstothevinculum constituted.(Art.1213,NCC)
Referstotheprestation
existingbetweenthe
orobjectofthecontract
subjectsorparties XPNs:
Doesnotrequire 1. Assignmenttococreditor;or
Requiresthepluralityof
pluralityofsubjectsor 2. Assignment is with consent of co
partiesorsubjects
parties creditor.
Incaseofbreach,itis
convertedtooneof Incaseofbreach,the
indemnityfordamages liabilityofthesolidary
andtheindivisibilityof debtorsfordamages
theobligationis remainssolidary
terminated
196 CIVILLAWTEAM:

OBLIGATIONS
Q: To whom must payment be made in a A:Itistantamounttononperformance.(Pineda,

solidaryobligation? ObligationsandContracts,2000ed,p.179)

A: E.OBLIGATIONSWITHAPENALCLAUSE
GR:Toanyofthesolidarycreditors.
Q:Whatisapenalclause?
XPN: If demand, judicial or extrajudicial, has
been made by one of them, payment should A: It is an accessory obligation attached to the
bemadetohim.(Art.1214,NCC) principal obligation to assure greater
responsibilityincaseofbreach.
D.DIVISIBLEANDINDIVISIBLEOBLIGATIONS
Note: Proof of actual damages suffered by the
Q: What is the primary distinction between creditor is not necessary in order that the penalty
divisibleandindivisibleobligations? maybedemanded.(Art.1228,NCC)

A: Q: What is the effect of incorporating a penal
DIVISIBLE INDIVISIBLE clauseinanobligation?

Nonsusceptibility tobe
A:
Susceptibilityofan performedpartially
GR: The penalty fixed by the parties is a
obligationtobe Partialperformanceis
compensation or substitute for damages in
performedpartially tantamounttonon
performance caseofbreach.

XPNs:Damagesshallstillbepaidevenifthere
isapenalclauseif:
Q: What is the true test in determining
1. thereisastipulationtothecontrary
divisibility?
2. the debtor refuses to pay the agreed
penalty
A:Whetherornottheprestationissusceptibleof
3. the debtor is guilty of fraud in the
partial performance, not in the sense of
fulfillmentoftheobligation.(Art.1126,
performance in separate or divided parts, but in
NCC)
the sense of the possibility of realizing the
purposewhichtheobligationseekstoobtain.Ifa
thing could be divided into parts and as divided, Note:Thenullityofthepenalclausedoesnotcarry
itsvalueisimpaireddisproportionately,thatthing withitthatoftheprincipalobligation.
is indivisible. (Pineda, Obligations and Contracts,
2000ed,p.174) The nullity of the principal obligation carries with it
thatofthepenalclause.(Art.1230,NCC)
Q:Whenmayanobligationtodeliveradivisible
thingbeconsideredindivisible? Q:Whenmaypenaltybereducedbythecourts?

A: A:PIU
1. Whenthelawsoprovides;or 1. Partialperformanceoftheobligation;
rd
2. By stipulation of the parties.(3 par., 2. Irregularperformanceoftheobligation;
Art.1255,NCC) or
3. PenaltyisUnconscionableevenifthere
Q: What is the effect of illegality of a part of a hasbeennoperformance.
contract?
A:
1. Divisible contract illegal part is void
and unenforceable. Legal part is valid
andenforceable.(Art.1420,NCC)
2. Indivisible contract entire contract is
indivisibleandunenforceable.
Q:Whatistheeffectofpartialperformancein
indivisibleobligation?
197

IX.EXTINGUISHMENTOFOBLIGATIONS Q: Is the creditor bound to accept payment or
performancebyathirdperson?
Q:Whatarethemodesofextinguishmentofan A:
obligation? GR:No,thecreditorisnot.

A: XPNs:
1. Paymentorperformance 1. Whenmadebyathirdperson whohas
2. Lossofthethingdue interest in the fulfillment of the
3. Condonationorremissionofdebt obligation
4. Confusionormerger 2. Contrarystipulation
5. Compensation
6. Novation Q: What are the rights of a third person who
7. Annulment paidthedebt?
8. Rescission
9. Fulfillmentofaresolutorycondition A:
10. Prescription(Art.1231,NCC) 1. With knowledge and consent of the
debtor:
Note:Theenumerationisnotexclusive. a. can recover entire amount paid
(absolutereimbursement)
MUTUALDESISTANCE b. can be subrogated to all rights of
thecreditor
Q:Ifthepartiesmutuallydisagreeasregardsthe 2. Without knowledge or against the will
obligation,mayitbecancelled? ofthedebtorcanrecoveronlyinsofar
as payment has been beneficial to the
A: Yes. That is in the nature of mutual debtor (right of conditional
desistance which is a mode of extinguishing reimbursement)
obligations. It is a concept that derives from the
principlethatsincemutualagreementcancreate NOTE: Payment made by a third person who does
a contract, mutual disagreement by the parties not intend to be reimbursed by the debtor is
can cause its extinguishment.(Saura v. deemed to be a donation, which requires the
Development Bank of the Phils., G.R. No. 24968, debtor's consent. But the payment is in any case
Apr.27,1972) valid as to the creditor who has accepted it. (Art.
1238,NCC)
A.PAYMENTORPERFORMANCE
Q:Statetherequisitesofavalidpayment.
Q: Is the term payment, as used in the Code,
limitedtoappreciablesumsofmoney? A:CCPAD
1. Capacityofthepayor
A:No. Payment may consist not only in the 2. Capacityofthepayee
delivery of money but also the giving of a thing 3. Proprietyofthetime,place,mannerof
(other than money), the doing of an act, or not payment
doingofanact. 4. Acceptancebythecreditor
5. Delivery of the full amount or the full
Q:Whatistenderofpayment? performanceoftheprestation

A: Tender of payment is the definitive act of Q:Whatarethecharacteristicsofpayment?
offering the creditor what is due him or her,
together with the demand that the creditor A:
acceptthesame. 1. Integrity;
2. Identity;and
Note: There must be a fusion of intent, ability and 3. Indivisibility.
capability to make good such offer, which must be
absoluteandmustcovertheamountdue.(FEBTCv.
DiazRealtyInc.,G.R.No.138588,Aug.23,2001)

198 CIVILLAWTEAM:

OBLIGATIONS
INTEGRITY Q: Is the acceptance by a creditor of a partial

paymentanabandonmentofitsdemandforfull
Q:Howshouldperformancebemade? payment?

A: A: No. When creditors receive partial payment,
GR:Performanceshouldalwaysbeinfull. they are not ipso facto deemed to have
abandonedtheirpriordemandforfullpayment.
XPNs:
1. Substantial performance performed in Toimplythatcreditorsacceptpartialpaymentas
goodfaith complete performance of their obligation, their
2. Creditor accepts the performance acceptance must be made under circumstances
knowing its incompleteness or that indicate their intention to consider the
irregularitywithoutprotestorobjection performance complete and to renounce their
3. Debt is partly liquidated and partly claimarisingfromthedefect.
unliquidated, but the liquidated part of
thedebtmustbepaidinfull Note:WhileArticle1248oftheCivilCodestatesthat
creditors cannot be compelled to accept partial
IDENTITY payments,itdoesnotprohibitthemfromaccepting
such payments. (Selegna Management and
Q: What should be given as payment of an Development Corp. v. UCPB, G.R. No. 165662, May
obligation? 30,2006)

A:
GR:Thingpaidmustbetheverythingdueand Q:Towhompaymentshouldbemade?
cannot be another thing even if of same
qualityandvalue. A:Paymentshallbemadetothepersoninwhose
favor the obligation has been constituted, or his
XPNs: successorininterest,oranypersonauthorizedto
1. Dationinpayment receiveit.(Art.1240)
2. Novationoftheobligation
3. Obligationisfacultative Q:Ispaymenttoanunauthorizedpersonavalid
payment?

INDIVISIBILITY A:
GR:Paymenttoanunauthorizedpersonisnot
Q: Can the debtor or creditor be compelled to avalidpayment.
perform/acceptpartialprestations?
XPNs:
A: 1. Paymenttoanincapacitatedpersonif:
GR: Debtor cannot be compelled by the a. hekeptthethingdelivered,or
creditor to perform obligation in parts and b. ithasbeenbeneficialtohim
neithercanthedebtorcompelthecreditorto 2. Payment to a third person insofar as it
acceptobligationinparts. redoundedtothebenefitoftheCR
3. Paymentingoodfaithtothepossessor
XPNs:When: ofcredit
1. partial performance has been agreed
upon
2. part of the obligation is liquidated and
partisunliquidated
3. torequirethedebtortoperforminfull
isimpractical
199

SPECIALFORMSOFPAYMENT Assuch,theessentialelementsofacontractofsale,
namely, consent, object certain, and cause or
Q:Whatarethespecialformsofpayment? considerationmustbepresent.

A: In its modern concept, what actually takes place in
CONCEPT dacion en pago is an objective novation of the
DationinPayment obligation where the thing offered as an accepted
equivalent of the performance of an obligation is
AlienationbytheDRofaparticularpropertyinfavor
considered as the object of the contract of sale,
ofhisCR,withthelattersconsent,forthe
whilethedebtisconsideredasthepurchaseprice.In
satisfactionoftheformersmoneyobligationtothe
any case, common consent is an essential
latter,withtheeffectofextinguishingthesaid
prerequisite, be it sale or novation, to have the
moneyobligation(Pineda,Obligationsand
effectoftotallyextinguishingthedebtorobligation.

ApplicationofPayment
Designationoftheparticulardebtbeingpaidbythe
Q: Lopez obtained a loan in the amount of
DRwhohastwoormoredebtsorobligationsofthe P20,000.00 from the Prudential Bank. He
samekindinfavorofthesameCRtowhomthe executedasuretybondinwhichhe,asprincipal,
paymentismade(Pineda,ObligationsandContracts, and PHILAMGEN as surety, bound themselves
2000ed,p.229) jointlyandseverallyforthepaymentofthesum.
PaymentbyCession Healsoexecutedadeedofassignmentof4,000
DRcedeshispropertytohisCRssothelattermay sharesoftheBaguioMilitaryInstitutioninfavor
sellthesameandtheproceedsrealizedappliedto ofPHILAMGEN.Isthestockassignmentmadeby
thedebtsoftheDR Lopezdationinpaymentorpledge?
TenderofPayment
VoluntaryactoftheDRwherebyheofferstotheCR A:Thestockassignmentconstitutesapledgeand
foracceptancetheimmediateperformanceofthe not a dacion en pago. Dation in payment is the
formersobligationtothelatter deliveryandtransmissionofownershipofathing
Consignation by the debtor to the creditor as an accepted
Actofdepositingtheobjectoftheobligationwith equivalent of the performance of the obligation.
thecourtorcompetentauthorityaftertheCRhas Lopezs loan has not yet matured when he
unjustifiablyrefusedtoacceptthesameorisnotina "alienated" his 4,000 shares of stock to
positiontoacceptitduetocertainreasonsor Philamgen. Lopez's obligation would arise only
circumstances when he would default in the payment of the
principal obligation which is the loan and
1.DATIONINPAYMENT Philamgenhadtopayforit.Sinceitiscontraryto
thenatureandconceptofdationinpayment,the
Q: What does dation in payment or dacion en same could not have been constituted when the
pagoentail? stockassignmentwasexecuted.Incaseofdoubt
astowhetheratransactionisapledgeoradation
A: Dacion en pago is the delivery and inpayment,thepresumptionisinfavorofpledge,
transmission of ownership of a thing by the the latter being the lesser transmission of rights
debtor to the creditor as an accepted equivalent andinterests.(Lopezv.CA,G.R.No.L33157,June
of the performance of the obligation. The 29,1982)
propertygivenmayconsistnotonlyofathingbut
also of a real right. (Tolentino, Civil Code of the Q: Cebu Asiancars Inc., with the conformity of
Philippines,Vol.IV,2002ed,p.293) the lessor, used the leased premises as a
collateral to secure payment of a loan which
Note:Theconsentofthecreditorisessential. Asiancars may obtain from any bank, provided

thattheproceedsoftheloanshallbeusedsolely
It is a special mode of payment where the debtor
for the construction of a building which, upon
offersanotherthingtothecreditorwhoacceptsitas
the termination of the lease or the voluntary
equivalentofpaymentofanoutstandingdebt.
surrender of the leased premises before the
Theundertakingpartakesofthenatureofsale,that expiration of the contract, shall automatically
is,thecreditorisreallybuyingthethingorproperty become the property of the lessor. Meeting
of the debtor, payment for which is to be charged financialdifficultiesandincurringanoutstanding
againstthedebtorsdebt. balance on the loan, Asiancars conveyed
ownership of the building on the leased
premises to MBTC, by way of "dacion en
200 CIVILLAWTEAM:

OBLIGATIONS
pago."IsthedacionenpagobyAsiancarsinfavor Yenanddamagesforthedelayattherateof6%
ofMBTCvalid? per annum. Unable to execute the decision in
Japan,NorthwestAirlinesfiledacasetoenforce
A: Yes. MBTC was a purchaser in good faith. said foreign judgment with the RTC of Manila.
MBTChadnoknowledgeofthestipulationinthe What is the rate of exchange that should be
lease contract. Although the same lease was appliedforthepaymentoftheamount?
registered and duly annotated, MBTC was
charged with constructive knowledge only of the A: The repeal of R.A. 529 by R.A. 8183 has the
fact of lease of the land and not of the specific effect of removing the prohibition on the
provisionstipulatingtransferofownershipofthe stipulation of currency other than Philippine
building to the Jaymes upon termination of the currency, such that obligations or transactions
lease.Whilethealienationwasinviolationofthe maynowbepaidinthecurrencyagreeduponby
stipulation in the lease contract between the the parties. Just like R.A. 529, however, the new
Jaymes and Asiancars, MBTCs own rights could law does not provide for the applicable rate of
notbeprejudicedbyAsiancarsactionsunknown exchange for the conversion of foreign currency
to MBTC. Thus, the transfer of the building in incurred obligations in their peso equivalent. It
favor of MBTC was valid and binding. (Jayme v. follows, therefore, that the jurisprudence
CA,G.R.No.128669,Oct.4,2002) established in R.A. 529 regarding the rate of
conversion remains applicable. Thus, in Asia
2.FORMOFPAYMENT World Recruitment, Inc. v. National Labor
RelationsCommission,theSC,applyingR.A.8183,
Q: What are the rules as regards payment in sustained the ruling of the NLRC that obligations
monetaryobligations? in foreign currency may be discharged in
Philippine currency based on the prevailing rate
A: at the time of payment. It is just and fair to
1. Payment in cash all monetary preserve the real value of the foreign exchange
obligations shall be settled in the incurredobligationtothedateofitspayment.
Philippinecurrencywhichislegaltender
inthePhilippines.However,theparties If the rate of interest is not stipulated, what
may agree that the obligations or shouldbetherateofinterestthatshouldapply?
transactions shall be settled in any Whenshouldtheinterestbegintorun?
othercurrencyatthetimeofpayment.
(Sec.1,R.A.8183) A:InEasternShippingLines,Inc.v.CA,itwasheld
that absent any stipulation, the legal rate of
Note: R.A. 8183 amended the first interest in obligations which consists in the
paragraph of Art. 1249 of the Civil Code, paymentofasumofmoneyis12%perannumto
but the rest of the article remain be reckoned from the time of filing of the
subsisting. (Pineda, Obligations and complaintthereinuntilthesaidforeignjudgment
Contracts,2000ed,p.221) is fully satisfied. (C.F. Sharp & Co., Inc. v.
NorthwestAirlines,Inc.,G.R.No.133498,Apr.18,
2. Payment in check or other negotiable 2002)
instrument not considered payment,
they are not considered legal tender PAYMENTBYNEGOTIABLEINSTRUMENT
and may be refused by the creditor
exceptwhen: Q:Diaz&CompanyobtainedaloanfromPacific
a. thedocumenthasbeencashed;or BankingCorpwhichwassecuredbyarealestate
b. it had been impaired through the mortgageovertwoparcelsoflandownedbythe
faultofthecreditor. plaintiffDiazRealty.ABCrentedanofficespace
in the building constructed on the properties
PAYMENTINCASH covered by the mortgage contract. The parties
then agreed that the monthly rentals shall be
Q:NorthwestAirlines,throughitsJapanBranch, paid directly to the mortgagee for the lessor's
entered into an International Passenger Sales account, either to partly or fully pay off the
Agency Agreement with CF Sharp, authorizing aforesaid mortgage indebtedness. Thereafter,
thelattertosellitsairtransporttickets.CFSharp FEBTC purchased the credit of Diaz & Company
failed to remit the proceeds of the ticket sales, in favor of PaBC, but it was only after 2 years
thus, Northwest Airlines filed a collection suit thatDiazwasinformedaboutit.Diazaskedthe
before the Tokyo District Court which rendered FEBTC to make an accounting of the monthly
judgment ordering CF Sharp to pay 83,158,195
201

rental payments made by Allied Bank. Diaz 4.APPLICATIONOFPAYMENTS
tenderedtoFEBTCtheamountofP1,450,000.00
throughanInterbankcheck,inordertoprevent Q: What does the concept of application of
the imposition of additional interests, penalties paymentsmean?
and surcharges on its loan but FEBTC did not
acceptitaspayment,instead,Diazwasaskedto A: It is the designation of the debt to which the
deposittheamountwiththeFEBTCsDavaoCity payment must be applied when the debtor has
Branch Office. Was there a valid tender of several obligations of the same kind in favor of
payment? thesamecreditor.

A:Yes.True,jurisprudenceholdsthat,ingeneral, Q: What are the requisites of application of
acheckdoesnotconstitutelegaltender,andthat payments?
a creditor may validly refuse it. It must be
emphasized, however, that this dictum does not A:
prevent a creditor from accepting a check as 1. Onedebtorandonecreditor
payment. In other words, the creditor has the 2. Twoormoredebtsofthesamekind
optionandthediscretionofrefusingoraccepting 3. Amountpaidbythedebtormustnotbe
it. (FEBTC v. Diaz Realty Inc., G.R. No. 138588, sufficienttocoveralldebts
Aug.23,2001) 4. Debtsarealldue
5. Parties have not agreed previously on
Q:Whohastheburdenofprovingpaymentinan theapplication
actionforsumofmoney?
Q:Whatisthegoverningruleincasethedebtor
A:Thepartywhopleadspaymentasadefensehas failstoascertainwhichdebthispaymentistobe
the burden of proving that such payment has, in applied?
fact,beenmade.
A:Thechoicemaybetransferredtothecreditor
Q: Are receipts the only evidence that can be aswhenthedebtormakespaymentanddoesnot
presentedtoprovepayment? makeapplicationanddebtoracceptsareceiptin
whichtheapplicationismade.Insuchacase,the
A: No. Receipts of payment, although not debtor cannot complain of the application the
exclusive, are deemed the best evidence of the creditor has made unless there be a cause for
fact of payment. (Dela Pea and Villareal v. CA invalidatingthecontract.
andRuralBankofBolinao,Inc.,G.R.No.177828,
Feb.13,2009
Q: If both the creditor and the debtor fail to
EXTRAORDINARYINFALTIONORDEFLATION applypayments,whatrulegoverns?

Q: What is the rule in payment in case of an A:Legalapplicationofpaymentgovernswherein
extraordinaryinflationordeflation? thelawmakestheapplication.

A: In case an extraordinary inflation or deflation The payment should be applied to the more
of the currency stipulated should supervene, the onerousdebts:
value of the currency at the time of the 1. When a personis bound as principal in
establishmentoftheobligationshallbethebasis oneobligationandassuretyinanother,
of payment, unless there is an agreement to the theformerismoreonerous.
contrary.(Art.1250,NCC) 2. When there are various debts, the
oldestonesaremoreburdensome.
Q: Does the exchange rate at the time of the 3. Whereonebearsinterestandtheother
establishment of the obligation apply in all does not, even if the latter is the older
cases? obligation, the former is considered
moreonerous.
A:No.Therule thatthevalueofthecurrencyat 4. Where there is an encumbrance, the
the time of the establishment of the obligation debt with a guaranty is more onerous
shall be the basis of payment finds application thanthatwithoutsecurity.
only when there is an official pronouncement or 5. Withrespecttoindemnityfordamages,
declaration of the existence of an extraordinary thedebtwhichissubjecttothegeneral
inflationordeflation. rules on damages is less burdensome
202 CIVILLAWTEAM:

OBLIGATIONS
than that in which there is a penal latter.(Pineda, Obligations and Contracts, 2000
clause. ed,p.241)
6. The liquidated debt is more
burdensomethantheunliquidatedone. Tender of payment is the manifestation by
7. An obligation in which the debtor is in debtors of their desire to comply with or to pay
default is more onerous than one in their obligation. (Sps. Benosv.Sps.Lawilao, G.R.
whichheisnot.(Tolentino,CivilCodeof No.172259,Dec.5,2006)
thePhilippines,Vol.IV,2002ed,p.314
315) Note: If the creditorrefuses the tender ofpayment
withoutjustcause,thedebtorsaredischargedfrom
Note:Ifthedebtshappentobeofsamenatureand the obligation by the consignation of the sum due.
burden, the payment shall be applied (Sps. Benosv.Sps.Lawilao, G.R. No. 172259, Dec. 5,
proportionately. 2006)

PAYMENTBYCESSION CONSIGNATION

Q: What are the circumstances evidencing Q:Whatisconsignation?
paymentbycession?
A: Act of depositing the object of the obligation
A: Debtor abandons all of his property for the with the court or competent authority after the
benefit of his creditors in order that from the CRhasunjustifiablyrefusedtoacceptthesameor
proceedsthereof,thelattermayobtainpayment is not in a position to accept it due to certain
ofcredits. reasons or circumstances. (Pineda, Obligations
andContracts,2000ed,p.241)
Note: It presupposes insolvency of the debtor. All
the debtors creditors must be involved and the Q:Whenandwhereisconsignationmade?
consentofthelattermustbeobtained.
A:Consignationismadebydepositingtheproper
Q: What are the difference between Dation in amount to the judicial authority, before whom
PaymentandPaymentinCession? thetenderofpaymentandtheannouncementof
the consignation shall be proved. (Sps.
A: Benosv.Sps.Lawilao, G.R. No. 172259, Dec. 5,
DATIONINPAYMENT PAYMENTINCESSION 2006)
Maybeonecreditor Pluralityofcreditors
Notnecessarilyinstate Debtormust bepartially Note: Once the consignation has been duly made,
offinancialdifficulty orrelativelyinsolvent the debtor may ask the judge to order the
Thingdeliveredis Universalityorproperty cancellationoftheobligation.
consideredasequivalent ofdebtoriswhatis
ofperformance ceded Q: When will consignation produce effects of
Paymentextinguishes payment?
obligationtotheextent Merelyreleasesdebtor
ofthevalueofthething fornetproceedsof A:
deliveredasagreed thingscededor GR: Consignation shall produce effects of
upon,provedorimplied assigned,unlessthereis payment only if there is a valid tender of
fromtheconductofthe contraryintention payment.
creditor
Ownershipistransferred Ownershipisnot XPNs:When:ARTIT
toCRupondelivery transferred
1. Creditor is Absent or unknown,
Anactofnovation Notanactofnovation
ordoesntappearatplaceofpayment
Doesnotpresuppose
Presupposesinsolvency 2. Creditor Refuses to issue a receipt
insolvency
withoutjustcause
3. Titleoftheobligationhasbeenlost
5.TENDEROFPAYMENT
4. Creditor is Incapacitated to
receivepaymentatthetimeitisdue
Q:Whatconstitutesavalidtenderofpayment?
5. Twoormorepersonsclaimtherightto
collect
A:Voluntaryactofthedebtorwherebyheoffers

to the creditor for acceptance the immediate Note:Theexpensesofconsignation,whenproperly
performance of the formers obligation to the made,shallbechargedagainstthecreditor.
203

Q:Whataretherequisitesofconsignation? Q:Inanejectmentcase,Xrefusedtovacatethe
land alleging that Y had sold to him the
A:VPCPAS additionalarea,thepaymentofwhichwouldbe
1. Validexistingdebtwhichisalreadydue; effected five years after the execution of a
2. Prior valid tender except when prior formaldeedofsale.However,thepartiesfailed
tenderofpaymentisdispensable; to execute a deed of sale. During the pendency
3. Creditor unjustly refuses the tender of of the action, X deposited the payment for the
payment; additiontothelotwiththecourt.Isthereavalid
4. Prior notice of consignation given to consignation?
persons interested in the fulfillment of
theobligation; A: No. Under Art. 1257 of this Civil Code,
5. Amount or thing is deposited at the consignation is proper only in cases where an
disposalofjudicialauthority;and existing obligation is due. In this case, the
6. Subsequent notice of the fact of contracting parties agreed that full payment of
consignation to persons interested in purchasepriceshallbedueandpayablewithin5
thefulfillmentoftheobligation. yearsfromtheexecutionofaformaldeedofsale.
At the time Rodriguez deposited the amount in
Q:Canthedebtorwithdrawthething court, no formal deed of sale had yet been
deposited? executed by the parties, and, therefore, the 5
year period during which the purchase price
A:Before the creditor has accepted the shouldbepaidhadnotcommenced.Inshort,the
consignation,orbeforeajudicialdeclarationthat purchase price was not yet due and payable.
the consignation has been properly made, the (HeirsofSanAndresv.Rodriguez,G.R.No.135634,
debtor may withdraw the thing or the sum May31,2000)
deposited, allowing the obligation to remain in
force.(Art.1260,NCC) Q:Underapactoderetrosale,XsoldtoYhislot
and the building erected thereon. They agreed
NOTE: If, the consignation having been made, the thathalfoftheconsiderationshallbepaidtothe
creditor should authorize the debtor to withdraw bank to pay off the loan of X. After paying the
the same, he shall lose every preference which he firstinstallment,Y,insteadofpayingtheloanto
mayhaveoverthething.Thecodebtors,guarantors the bank, restructured it twice. Eventually, the
andsuretiesshallbereleased.(Art.1261,NCC) loanbecamedueanddemandable.Thus,Xpaid

the bank. On the same day, Y also went to the
Q: Distinguish tender of payment from
bank and offered to pay the loan, but the bank
consignation.
refusedtoacceptthepayment.

A:
Y then filed an action for consignation without

notifyingX.IsthereavalidconsignationbyYof
TENDEROFPAYMENT CONSIGNATION
thebalanceofthecontractprice?
Nature

Antecedentof Principalor
A:No.Yfiledthepetitionforconsignationagainst
consignationor consummatingactfor
thebankwithoutnotifyingtheX,resultingtothe
preliminaryactto theextinguishmentof
consignation theobligation formers failure to prove the payment of the
Effect balance of the purchase price and consignation.
Itdoesnotbyitself Itextinguishesthe Infact,evenbeforethefilingoftheconsignation
extinguishthe obligationwhendeclared case, Y never notified the X of their offer to
obligation valid pay.(Sps. Benosv. Sps.Lawilao, G.R. No. 172259,
Character Dec.5,2006)
Judicialforitrequiresthe
filingofacomplaintin
court(Pineda,
Extrajudicial
Obligationsand
Contracts,2000ed,p.
242)

204 CIVILLAWTEAM:

OBLIGATIONS
Q: Because of Ligayas refusal to accept several f. When debtor Promised to deliver

tendersof payment and notices ofconsignation the same thing to two or more
given by OSSA in its desire to comply with its personswhodonothavethesame
obligationtopayoninstallments,OSSAbrought interest
a complaint for consignation against Ligaya g. When the debt of a certain and
before the RTC. The RTC allowed OSSA, among determinatethingproceedsfroma
others,todepositwithit,bywayofconsignation, Criminaloffense
allfuturequarterlyinstallmentswithoutneedof h. WhentheobligationisGeneric
formaltendersofpaymentandserviceofnotices
ofconsignation. 2. Genericobligationtogive:

Ligayaassailsthevalidityoftheconsignationon GR: The obligation is not extinguished
the ground that there was no notice to her becauseagenericthingneverperishes.
regarding OSSA's consignation of the amounts
corresponding to certain installments. Is Ligaya XPN:In case of generic obligations
correct? whose object is a particular class or
group with specific or determinate
A: No. The motion and the subsequent court qualities(limitedgenericobligation)
order served on Ligaya in the consignation
proceedingssufficientlyservedasnoticetoLigaya 3. An obligation to do the obligation is
of OSSA's willingness to pay the quarterly extinguished when the prestation
installments and the consignation of such becomes legally or physically
payments with the court. For reasons of equity, impossible.
the procedural requirements of consignation are
deemed substantially complied with in the Q:Differentiatelegalfromphysicalimpossibility
present case (De Mesa v. CA, G.R. Nos. 106467 toperformanobligationtodo.
68,Oct.19,1999).
A:
B.LOSSOFTHETHINGDUE 1. Legalimpossibilityactstipulatedtobe
performed is subsequently prohibited
Q:Whenisathingconsideredlost? bylaw.
2. Physical impossibility act stipulated
A:When:DOPE could not be physically performed by
1. It Disappears in such a way that its the obligor due to reasons subsequent
existenceisunknown; to the execution of the contract.
2. ItgoesOutofcommerce; (Pineda, Obligations and Contracts,
3. ItPerishes;or 2000ed,p.261)
4. ItsExistenceisunknownorifknown,it
cannotberecovered. Q:Whatistheeffectofpartialloss?

Q:Whatistheeffectoflossofthethingwhichis A:
theobjectoftheobligation? 1. Due to the fault or negligence of the
debtor Creditor has the right to
A:Iftheobligationisa: demandtherescissionoftheobligation
1. Determinateobligationtogive: or to demand specific performance,
plusdamages,ineithercase.
GR:The obligation is extinguished when 2. Duetofortuitousevent:
theobjectoftheobligationislost. a. Substantial loss obligation is
extinguished.
XPNs:LASCDPCG b. Unsubstantial loss the CR shall
a. Lawprovidesotherwise deliver the thing promised in its
b. Nature of the obligation requires impairedcondition.
theAssumptionofrisk
c. Stipulationtothecontrary
d. DebtorContributedtotheloss
e. Loss the of the thing occurs after
thedebtorincurredinDelay
205

Q:Whatistheeffectwhenthethingislostinthe (Pineda, Obligations and Contracts, 2000 ed, p.
possessionofthedebtor? 267)
EXPRESSCONDONATION
A:
GR: It is presumed that loss is due to DRs Q:Whataretherequisitesofcondonation?
fault.
A:GAIDE
XPN:Presumptionshallnotapplyincaseloss 1. MustbeGratuitous;
is due to earthquake, flood, storm or other 2. Acceptancebythedebtor;
naturalcalamity. 3. MustnotbeInofficious;
4. Formalities provided by law on
XPNtotheXPN:Debtorstillliableevenifloss Donations must be complied with if
isduetofortuitouseventwhen: condonationisexpress;and
1. Debtorincurredindelay;or 5. AnExistingdemandabledebt.
2. Debtorpromisedtodeliverthethingto
two or more persons with different IMPLIEDCONDONATION
interests(par.3,Art.1165,NCC)
Q:Whatistheeffectofthedeliveryofaprivate
Q:Whatdoesrebussicstantibusmean? documentevidencingacredit?

A: A principle in international law which means A:Thedeliveryofaprivatedocumentevidencinga
that an agreement is valid only if the same credit, made voluntarily by the creditor to the
conditions prevailing at time of contracting debtor, implies the renunciation of the action
continuetoexistatthetimeofperformance.Itis whichtheformerhadagainstthelatter.
the basis of the principle of unforeseen difficulty
ofservice.
If in order to nullify this waiver it should be

Note: However, this principle cannot be applied
claimedtobeinofficious,thedebtorandhisheirs
absolutely in contractual relations since parties are mayupholditbyprovingthatthedeliveryofthe
presumed to have assumed the risk of unfavorable documentwasmadeinvirtueofpaymentofthe
developments. (Pineda, Obligations and Contracts, debt.(Art.1271,NCC)
2000ed,p.264)
NOTE:Whenevertheprivatedocumentinwhichthe
Q:Whataretherequisitesinordertorelievethe debt appears is found in the possession of the
debtor from his obligation, in whole or in part, debtor, it shall be presumed that the creditor
basedonunforeseendifficultyofservice? delivered it voluntarily, unless the contrary is
proved.(Art.1272,NCC)
A:
1. Event or change in circumstance could It is presumed that the accessory obligation of
not have been foreseen at the time of pledge has been remitted when the thing pledged,
theexecutionofthecontract; after its delivery to the creditor, is found in the
possession of the debtor, or of a third person who
2. Such event makes the performance
ownsthething.(Art.1274,NCC)
extremelydifficultbutnotimpossible;

3. Theeventmustnotbeduetotheactof
Q:Whatistheeffectofinofficiouscondonation?
anyoftheparties;and

4. The contract is for a future prestation.
A: It may be totally revoked or reduced
(Tolentino,Civil CodeofthePhilippines,
depending on whether or not it is totally or only
Vol.IV,2002ed,p.347)
partly inofficious. (Pineda, Obligations and

C.CONDONATION

Q:Cantherebeaunilateralcondonation?
Q:Whatiscondonation?

A:No.Sinceitisadonationofanexistingcredit,
A: It is an act of liberality by virtue of which the
considered a property right, in favor of the
creditor, without receiving any price or
debtor,itisrequiredthattheDRgiveshisconsent
equivalent, renounces the enforcement of the
thereto by making an acceptance. If there is no
obligation, as a result of which it is extinguished
acceptance, there is no condonation. (Pineda,
initsentiretyorinthatpartoraspectofthesame
ObligationsandContracts,2000ed,p.267)
to which the condonation or remission refers.
206 CIVILLAWTEAM:

OBLIGATIONS
D.CONFUSIONORMERGER not extinguish the obligation. (Art.

1276,NCC)
Q: When is there a confusion or merger of
rights? Q: In a joint obligation, what is the effect of
confusionormergerinonedebtororcreditor?
A:Themeetinginonepersonofthequalitiesofa
creditoranddebtorofthesameobligation. A:
GR: Joint obligation is not extinguished since
Q: What are the requisites of confusion of confusion is not definite and complete with
rights? regard to the entire obligation. A part of the
obligationstillremainsoutstanding.
A:
1. Merger in the same person of the XPN: Obligation is extinguished with respect
characters of both a creditor and d onlyto thesharecorrespondingtothe DRor
debtor; CR concerned. In effect, there is only partial
2. Must take place in the persons of a extinguishment of the entire obligation.
principal creditor and a principal (Pineda, Obligations and Contracts, 2000 ed,
debtor;and p.281)
3. Mergerisdefiniteandcomplete.
E.COMPENSATION.
Q: What is the effect of confusion or merger of
rights? Q:Whatiscompensation?

A: The creditor and debtor becomes the same A:Itisamodeofextinguishingtotheconcurrent
personinvolvingthesameobligation.Hence,the amount, the obligations of those persons who in
obligationisextinguished.(Art.1275,NCC) their own right are reciprocally debtors and
creditors of each other (Art. 1232, NCC). It
Q:Cantherebepartialconfusion? involves the simultaneous balancing of two
obligations in order to extinguish them to the
A:Yes.Itwillbedefiniteandcompleteuptothe extentinwhichtheamountofoneiscoveredby
extentoftheconcurrentamountorvalue,butthe thatoftheother.
remaining obligation subsists. (Pineda,
ObligationsandContracts,2000ed,p.278) Q:Whataretherequisitesofcompensation?

Q:Whatistheeffectwhenconfusionormerger A:
isrevoked? 1. Bothpartiesmustbemutuallycreditors
and debtors in their own right and as
A: If the act which created the confusion is principals;
revoked for some causes such as rescission of 2. Both debts must consist in sum of
contracts, or nullity of the will or contract, the money or if consumable, of the same
confusion or merger is also revoked. The subject kindorquality;
obligation is revived in the same condition as it 3. Bothdebtsaredue;
wasbeforetheconfusion. 4. Both debts are liquidated and
demandable;
Note: During such interregnum, the running of the 5. Neither debt must be retained in a
periodofprescriptionoftheobligationissuspended. controversy commenced by third
(Pineda,ObligationsandContracts,2000ed,p.279) person and communicated with debtor
(neitherdebtisgarnished);and
Q:Whatistheeffectofconfusionormergerin 6. Compensation must not be prohibited
relationtotheguarantors? bylaw.

A: Note:WhenalltherequisitesmentionedinArt.1279
1. Mergerwhichtakesplaceintheperson of the Civil Code are present, compensation takes
of the principal debtor or principal effectbyoperationoflaw,evenwithouttheconsent
creditor benefits the guarantors. The orknowledgeofthecreditorsanddebtors.
contractofguarantyisextinguished.
2. Confusion which takes place in the
person of any of the guarantors does
207

1.KINDSOFCOMPENSATION CONVENTIONAL

Q:Whatarethekindsofcompensation? Q:Whatisconventionalcompensation?

A: A:Itisonethattakesplacebyagreementofthe
1. Legal compensation by operation of parties.
law
2. Conventional by agreement of the JUDICIALCOMPENSATION
parties
3. Judicial by judgment of the court Q:Whatisjudicialcompensation?
when there is a counterclaim duly
pleaded, and the compensation A: One made by order of a court based on a
decreed permissive counterclaim. Pleading and proof of
thecounterclaimmustbemade.
LEGALCOMPENSATION
FACULTATIVECOMPENSATION
Q: What are the debts not subject to
compensation? Q:Whatisfacultativecompensation?

A: A: One of the parties has a choice of claiming or
1. Debtsarisingfromcontractsofdeposit opposingthecompensation.
2. Debts arising from contracts of
commodatum Q: What are the obligations subject to
3. Claims for support due by gratuitous facultativecompensation?
title
4. Obligations arising from criminal A:Whenoneofthedebtsarisesfrom:
offenses 1. Depositum
5. Certain obligations in favor of 2. Obligationsofadepositary
government (e.g. taxes, fees, duties, 3. Obligationsincommudatum
andothersofasimilarnature) 4. Claimofsupportduetogratuitoustitle
XPN:Futuresupport.
Note: If a person should have against him several 5. Civilliabilityfromacrime
debts which are susceptible of compensation, the
rules on the application of payments shall apply to Q:Distinguishcompensationfrompayment.
theorderofthecompensation.(Art.1289,NCC) A:
COMPENSATION PAYMENT
Q:DeLeonsoldanddeliveredtoSilahisvarious Amodeofextinguishing
merchandise. Due to Silahis' default, De Leon totheconcurrent
Paymentmeansnotonly
amount,theobligations
filed a complaint for the collection of said deliveryofmoneybut
ofthosepersonswhoin
accounts.Silahisasserts,asaffirmativedefense, alsoperformanceofan
theirownrightare
a debit memo as unrealized profit for a obligation
reciprocallydebtorsand
supposed commission that Silahis should have creditorsofeachother
received from De Leon. Was there legal Capacityofpartiesnot Debtormusthave
compensation? necessary capacitytodisposeof
thethingpaid;
A: Silahis admits the validity of its outstanding Reason:Compensation creditormusthave
accounts with De Leon. But whether De Leon is operatesbylaw,notby capacitytoreceive
liable to pay Silahis a commission on the subject theactoftheparties payment
sale to Dole is disputed. This circumstance Therecanbepartial Theperformancemust
prevents legal compensation from taking place. extinguishmentofthe becompleteunless
(SilahisMarketingCorp.v.IAC,G.R.No.L74027, obligation waivedbythecreditor
Dec.7,1989) Legalcompensation
takesplacebyoperation Involvesdeliveryor
Note: Compensation is not proper where the claim oflawwithout action
ofthepersonassertingthesetoffagainsttheother simultaneousdelivery
is not clear nor liquidated; compensation cannot Itisnotnecessarythat
Partiesmustbemutually
extendtounliquidated,disputedclaimexistingfrom thepartiesbemutually
debtorsandcreditorsof
breachofcontract.(SilahisMarketingCorp.v.IAC,G. debtorsandcreditorsof
eachother
R.No.L74027,Dec.7,1989) eachother
208 CIVILLAWTEAM:

OBLIGATIONS
Q:Distinguishcompensationfromconfusion. has beenheld that the relation existing between

a depositor and a bank is that of creditor and
A: debtor.Asageneralrule,abankhasarightofset
COMPENSATION CONFUSION offofthedepositsinitshandsforthepaymentof
(Arts.12781279) (Arts.12751277) anyindebtednesstoitonthepartofadepositor"
Twopersonswhoare Onepersonwhere (Gullas v. PNB, GR No. L43191, November 13,
mutualdebtorsand qualitiesofdebtorand 1935). Hence, compensation took place between
creditorsofeachother creditoraremerged themutualobligationsofXandYbank.(1998Bar
Atleasttwoobligations Oneobligation Question)

Q: Atty. Laquihon, in behalf of Pacweld, filed a Q: Eduardo was granted a loan by XYZ Bank for
pleading addressed to MPCC titled motion to the purpose of improving a building which XYZ
direct payment of attorney's fee, invoking a leased from him. Eduardo executed the
decision wherein MPCC was adjudged to pay promissory note in favor of the bank, with his
Pacweld the sum of P10,000.00 as attorney's friend Ricardo as cosignatory. In the PN, they
fees. MPCC filed an opposition stating that the both acknowledged that they are individually
said amount is setoff by a like sum of andcollectivelyliableandwaivedtheneedfor
P10,000.00,collectibleinitsfavorfromPacweld prior demand. To secure the PN, Ricardo
also by way of attorney's fees which MPCC executed a real estate mortgage on his own
recovered from the same CFI of Manila in property. When Eduardo defaulted on the PN,
another civil case. Was there legal XYZstoppedpaymentofrentalsonthebuilding
compensation? on the ground that legal compensation had set
in.SincetherewasstillabalancedueonthePN
A:MPCCandPacweldwerecreditorsanddebtors after applying the rentals, XYZ foreclosed the
ofeachother,theirdebtstoeachotherconsisting real estate mortgage over Ricardos property.
infinalandexecutoryjudgmentsoftheCFIintwo Ricardo opposed the foreclosure on the ground
separate cases. The two obligations, therefore, that he is only a cosignatory; that no demand
respectively offset each other, compensation wasmadeuponhimforpayment,andassuming
having taken effect by operation of law and he is liable, his liability should not go beyond
extinguished both debts to the concurrent halfofthebalanceoftheloan.Further,Ricardo
amountofP10,000.00,pursuanttotheprovisions said that when the bank invoked compensation
of Arts. 1278, 1279 and 1290 of the Civil Code, betweentherentalsandtheamountoftheloan,
since all the requisites provided in Art. 1279 of itamountedtoanewcontractornovation,and
thesaidCodeforautomaticcompensation"even hadtheeffectofextinguishingthesecuritysince
though the creditors and debtors are not aware he did not give his consent (as owner of the
of the compensation" were present. (Mindanao property under the real estate mortgage)
Portland Cement Corp. v. CA,G.R. No. L62169, thereto.
Feb.28,1983)
CanXYZBankvalidlyassertlegalcompensation?
Q: X, who has a savings deposit with Y Bank in
the sum of PI,000,000.00, incurs a loan A: XYZ Bank may validly assert the partial
obligation with the said bank in the sum of compensation of both debts, but is should be
P800,000.00 which has become due. When X facultative compensation because not all of the
triestowithdrawhisdeposit,YBankallowsonly five requisites of legal compensation are present
P200,000.00 to be withdrawn, less service (Art. 1279, NCC). The payment of the rentals by
charges, claiming that compensation has XYZ Bank is not yet due, but the principal
extinguished its obligation under the savings obligation of loan where both Eduardo and
accounttotheconcurrentamountofX'sdebt.X Ricardoareboundsolidarilyandthereforeanyof
contends that compensation is improper when themisboundprincipallytopaytheentireloan,is
oneofthedebts,ashere,arisesfromacontract due and demandable without need of demand.
of deposit. Assuming that the promissory note XYZBankmaydeclareitsobligationtopayrentals
signed by X to evidence the loan does not asalreadydueanddemandpaymentfromanyof
provideforcompensationbetweensaidloanand thetwodebtors.
hissavingsdeposit,whoiscorrect?
Alternative Answer: Legal compensation can be
A:Ybankiscorrect.AlltherequisitesofArt.1279, validly asserted between the bank, Eduardo and
Civil Code are present. Compensation shall take Ricardo. This is a case of facultative obligation,
placewhentwopersonsarereciprocallycreditor thus, the bank can assert partial compensation.
and debtor of each other. In this connection, it
209

Banks have an inherent right to set off where intheobligationunderArt.1302,NCC.(2008Bar
both obligations are due and demandable (Art. Question)
1279,NCC).
F.NOVATION
CanRicardospropertybeforeclosedtopaythe
fullbalanceoftheloan? Q:Whatisnovation?

A: No, because there was no prior demand on A: It is the change of an obligation by another,
Ricardo, depriving him of the right to reasonably resulting in its extinguishment or modification,
block the foreclosure by payment. The waiver of either by changing the object or principal
prior demand in the PN is against public policy conditions,orbysubstitutinganotherintheplace
and violates the right to due process. Without ofthedebtororbysubrogatingathirdpersonto
demand,thereisnodefaultandtheforeclosureis the rights of the creditor. (Pineda, Obligations
null and void. Since the mortgage, insofar as andContracts,2000ed,p.298)
Ricardo is concerned is not violated, a
requirement under Act 3135 for a valid Q:Whataretherequisitesofnovation?
foreclosureofrealestatemortgageisabsent.
A:
In the case of DBP v. Licuanan, it was held that: 1. Previousvalidobligation;
the issue of whether demand was made before 2. Anagreementbythepartiestocreatea
the foreclosure was effected is essential. If newoneoramodifiedversion;
demand was made and duly received by the 3. Extinguishment or modification of the
respondentsandthelatterstilldidnotpay,then oldobligation;and
theywerealreadyindefaultandforeclosurewas 4. Validnewobligation.
proper.However,ifdemandwasnotmade,then
the loans had not yet become due and Q:Isnovationpresumed?
demandable. This meant that the respondents
had not defaulted in their payment and the A: No. Novation is never presumed, it must be
foreclosurewaspremature. provenasafacteitherby:
1. Explicitdeclarationifitbesodeclared
Alternative Answer 1:No. Although the principal inunequivocalterms;or
obligationofloanisdueanddemandablewithout 2. Material incompatibility that the old
need of further demand the foreclosure of the and the new obligations be on every
accessorycontractofrealestatemortgage,there point incompatible with each other.
isaneedofnoticeanddemand. (Art.1293,NCC)

AlternativeAnswer2:Yes.Ricardospropertycan Q: SDIC issued to Danilo a Diners Card (credit
beforeclosedtopaythefullbalanceoftheloan. card) with Jeannete as his surety. Danilo used
He is admittedly individually and collectively this card and initially paid his obligations to
liable. His liability is solidary. He and Eduardo SDIC. Thereafter, Danilo wrote SDIC a letter
have waived notice for a prior demand as requestingittoupgradehisRegularDinersClub
providedinthepromissorynote. Card to a Diamond (Edition) one. As a
requirement of SDIC, Danilo secured from
DoesRicardohavebasisundertheCivilCodefor Jeanette her approval and the latter obliged.
claimingthattheoriginalcontractwasnovated? Danilo'srequestwasgrantedandhewasissued
aDiamond(Edition)DinersClubCard.Danilohad
A: None of the three kinds of novation is incurredcreditchargedplusappropriateinterest
applicable. There is no objective novation, andservicecharge.However,hedefaultedinthe
whether express or implied, because there is no paymentofthisobligation.Wastheupgradinga
changeintheobjectorprincipalconditionsofthe novation of the original agreement governing
obligation. There is no substitution of debtors, the use of Danilo Alto's first credit card, as to
either. Compensation is considered as extinguishthatobligation?
abbreviated or simplified payment and since
Ricardo bound himself solidarily with Eduardo, A: Yes. Novation, as a mode of extinguishing
any facultative compensation which occurs does obligations,maybedoneintwoways:byexplicit
not result in partial legal subrogation. Neither declaration,orbymaterialincompatibility.
Eduardo nor Ricardo is a third person interested
There is no doubt that the upgrading was a
novation of the original agreement covering the
210 CIVILLAWTEAM:

OBLIGATIONS
first credit card issued to Danilo Alto, basically b. ifsuspensiveanditdidnotoccur

since it was committed with the intent of it is as if there is no obligation;
cancelling and replacing the said card. However, thus,thereisnothingtonovate
the novation did not serve to release Jeanette Did the assignment amount to payment by
fromhersuretyobligationsbecauseinthesurety cession?
undertaking she expressly waived discharge in
case of change or novation in the agreement A:No.There was only one creditor, the DBP.
governingtheuseofthefirstcreditcard.(Molino Article1255contemplatestheexistenceoftwoor
v. Security Diners International Corp.,G.R. No. morecreditorsandinvolvestheassignmentofall
136780,Aug.16,2001) thedebtor'sproperty.

Q:Whataretheeffectsofnovation? Did the assignment constitute dation in
payment:
A:
1. Extinguishment of principal also A: No. The assignment, being in its essence a
extinguishestheaccessory,except: mortgage, was but a security and not a
a. Mortgagor, pledgor, surety or satisfactionofindebtedness.(DBPv.CA,G.R.No.
guarantor agrees to be bound by 118342,Jan.5,1998)
thenewobligation(Tolentino,Civil
Code of the Philippines, Vol. IV,
1999ed,p.395)
b. Stipulationmadeinfavorofathird
person such as stipulation pour
atrui(Art. 1311, NCC), unless
beneficiary consents to the
novation.
2. Ifthenewobligationis:
a. Void old obligation shall subsist
since there is nothing to novate,
except when the parties intended
that the old obligation be
extinguishedinanyevent.
b. Voidable novation can take
place, exceptwhen such new
obligationisannulled.Insuchcase,
oldobligationshallsubsist.
c. Pureobligationconditionsofold
obligationdeemedattachedtothe
new, unless otherwise stipulated
(Tolentino, Civil Code of the
Philippines, Vol. IV, 1999 ed, p.
399)
d. Conditionalobligation:
i. if resolutory valid until
the happening of the
condition
ii. if suspensive and did
not materialize no
novation, old obligation
isenforced

3. If old obligation is conditional and the
newobligationispure:
a. if resolutoryand it occurred old
obligationalreadyextinguished;no
new obligation since nothing to
novate
211

CONTRACTS Note:Wefollowthetheoryofcognitionandnotthe
theory of manifestation. Under our Civil Law, the
Q:Whatisacontract? offer & acceptance concur only when the offeror
comes to know, and not when the offeree merely
A: It is a meeting of the minds between two or manifestshisacceptance.
more persons whereby one binds himself, with
respect to the other, or where both parties bind Q:Whataretherequisitesofavalidconsent?
themselves reciprocally in favor of one another,
tofulfillaprestationtogive,todo,ornottodo. A:Itshouldbe:
(Pineda, Obligations and Contracts, 2000 ed, p.
328) 1. Intelligent, or with an exact notion of
themattertowhichitrefers;
Q:Whatisthedifferencebetweenanobligation
andacontract? Note:Intelligenceinconsentisvitiatedby
error; freedom by violence, intimidation
or undue influence; and spontaneity by
A: While a contract is one of the sources of
fraud.
obligations, an obligation is the legal tie or

relations itself that exists after a contract has
2. Free;and
beenenteredinto.
3. Spontaneous.

Hence, there can be no contract if there is no
Q:Whatistheeffectonthevalidityofacontract
obligation. But an obligation may exist without a
ifconsentisreluctant?
contract. (De Leon, Obligations and Contracts,

2003ed,p.283284)
A: A contract is valid even though one of the

parties entered into it against his wishes and
I.ESSENTIALREQUISITESOFACONTRACT
desires or even against his better judgment.

Contracts are also valid even though they are
Q:Statetheessentialelementsofcontracts.
entered into by one of the parties without hope

ofadvantageorprofit(Martinezv.Hongkongand
A:COC
Shanghai Banking Corp., GR No. L5496, Feb. 19,
1. Consent;
1910).
2. Objectorsubjectmatter;and

3. Causeorconsideration.
Q:Whatarethekindsofsimulationofcontract?

Q:Statethecharacteristicsofacontract.
A:

1. Absolute the contracting parties do
A:ROMA
notintendtobeboundbythecontract
1. Relativity(Art.1311,NCC)
atall,thusthecontractisvoid.
2. Obligatoriness and consensuality(Art.

1315,NCC)
2. Relativetherealtransactionishidden;
3. Mutuality(Art.1308,NCC)
the contracting parties conceal their
4. Autonomy(Art.1306,NCC)
true agreement; binds the parties to

their real agreement when it does not
CONSENT
prejudice third persons or is not

intended for any purpose contrary to
Q:Whataretheelementsofconsent?
law, morals, etc. If the concealed

contract is lawful, it is absolutely
A:LMCR
enforceable, provided it has all the
1. Legal capacity of the contracting
essential requisites: consent, object,
parties;
andcause.
2. Manifestation of the conformity of the

contractingparties;
As to third persons without notice, the
3. PartiesConformitytotheobject,cause,
apparent contract is valid for purposes
terms and condition of the contract
beneficial to them. As to third persons
must be intelligent, spontaneous and
with notice of the simulation, they
freefromallvicesofconsent;and
acquirenobetterrighttothesimulated
4. TheconformitymustbeReal.
contractthantheoriginalpartiestothe

same.
212 CIVILLAWTEAM:

CONTRACTS
Q:Tiroisaholderofanordinarytimberlicense Q:Whataretherequisitesofavalidoffer?
issuedbytheBureauofForestry.Heexecuteda
deedofassignmentinfavoroftheJaviers.Atthe A:
timethesaiddeedofassignmentwasexecuted, 1. Mustbecertain
Tirohadapendingapplicationforanadditional 2. Maybemadeorallyorinwriting,unless
forest concession. Hence, they entered into thelawprescribesaparticularform
anotheragreement.
Q:Whendoesofferbecomeineffective?
Afterwards, the Javiers, now acting as timber
license holders by virtue of the deed of A:
assignment entered into a forest consolidation 1. Death, civil interdiction, insanity or
agreement with other ordinary timber license insolvency of either party before
holders. For failure of the Javiers to pay the acceptanceisconveyed
balancedueunderthetwodeedsofassignment,
Tirofiledanactionagainstthem.Arethedeeds 2. Express or implied revocation of the
ofassignmentnullandvoidfortotalabsenceof offerbytheofferee
consideration and nonfulfillment of the
conditions? 3. Qualified or conditional acceptance of
theoffer,whichbecomescounteroffer
A:Thecontemporaneousandsubsequentactsof
Tiro and the Javiers reveal that the cause stated 4. Subject matter becomes illegal or
inthefirstdeedofassignmentisfalse.Itissettled impossible before acceptance is
that the previous and simultaneous and communicated
subsequent acts of the parties are properly
cognizable indicia of their true intention. Where Q:Whatistheruleoncomplexoffer?
thepartiestoacontracthavegivenitapractical
constructionbytheirconductasbyactsinpartial A:
performance, such construction may be 1. Offers are interrelated contract is
considered by the court in construing the perfectedifalltheoffersareaccepted
contract, determining its meaning and 2. Offers are not interrelated single
ascertainingthemutualintentionofthepartiesat acceptance of each offer results in a
the time of contracting. The first deed of perfected contract unless the offeror
assignment is a relatively simulated contract hasmadeitclearthatoneisdependent
which states a false cause or consideration, or upontheotherandacceptanceofboth
one where the parties conceal their true isnecessary.
agreement. A contract with a false consideration
isnotnullandvoidperse.UnderArticle1346of Q:Whatistheruleonadvertisementsasoffers?
the Civil Code, a relatively simulated contract,
when it does not prejudice a third person and is A:
not intended for any purpose contrary to law, 1. Businessadvertisementsnotadefinite
morals, good customs, public order or public offer, but mere invitation to make an
policy binds the parties to their real agreement. offer,unlessitappearsotherwise
(Javierv.CA,G.R.No.L48194,Mar.15,1990) 2. Advertisement for bidders
onlyinvitation to make proposals and
Q:Whatarecontractsofadhesion? advertiser is not bound to accept the
highest or lowest bidder, unless it
A: One party has already a prepared form of a appearsotherwise.
contract, containing the stipulations he desires,
and he simply asks the other party to agree to Q:Whataretheeffectsofanoption?
themifhewantstoenterintothecontract.
A: Option may be withdrawn anytime before
Q: What are the elements of a valid offer and acceptance is communicated but not when
acceptance? supportedbyaconsiderationotherthanpurchase
priceoptionmoney.
A:
1. Definiteunequivocal
2. Intentional
3. Completeunconditional
213

Q:Whataretherequisitesofavalidacceptance? Note: The most evident and fundamental requisite
in order that a thing, right or service may be the
A: objectofacontract,itshouldbeinexistenceatthe
1. Must be absolute; a qualified moment of the celebration of the contract, or at
acceptanceconstitutesacounteroffer least,itcanexistsubsequentlyorinthefuture.
2. Nospecifiedformbutwhentheofferor
specifies a particular form, such must Q: What are the thingswhichcanbe the object
becompliedwith ofcontracts?

Note: Offer or acceptance, or both, expressed in A:
electronicform,isvalid,unlessotherwiseagreedby GR:Allthingsorservicesmaybetheobjectof
theparties(electroniccontracts). contracts.
Q:Whatistheperiodforacceptance?
XPNs:
A: 1. Thingsoutsidethecommerceofmen;
1. Statedfixedperiodintheoffer 2. Intransmissiblerights;
a. Must be made within the period 3. Future inheritance, except in cases
givenbytheofferor expresslyauthorizedbylaw;
i. Astowithdrawaloftheoffer: 4. Services which are contrary to law,
morals, good customs, public order or
GR: It can be made at any time publicpolicy;
before acceptance is made, by 5. Impossiblethingsorservices;and
communicatingsuchwithdrawal 6. Objects which are not possible of
determinationastotheirkind.
XPN: When the option is founded
upon a consideration, as something Q: A contract of sale of a lot stipulates that the
paid or promised since partial "payment of the full consideration based on a
payment of the purchase price is surveyshallbedueandpayablein5yearsfrom
consideredasproofoftheperfection
theexecutionofaformaldeedofsale".Isthisa
ofthecontract
conditionalcontractofsale?

2. Nostatedfixedperiod
a. Offerismadetoapersonpresent
A:No,itisnot.Thestipulationisnotacondition
acceptance must be made
whichaffectstheefficacyofthecontractofsale.
immediately It merely provides the manner by which the full
b. Offerismadetoapersonabsent consideration is to be computed and the time
acceptance may be made within within which the same is to be paid. But it does
such time that, under normal
not affect in any manner the effectivity of the
circumstances, an answer can be contract. (Heirs of San Andresv.Rodriguez, G.R.
receivedfromhim No.135634,May31,2000)

Note: Acceptance may be revoked before it comes
CAUSE
totheknowledgeoftheofferor(withdrawalofoffer)

Q:Whataretherequisitesofacause?
OBJECT

A:Itmust:
Q:Whataretherequisitesofanobject?
1. exist

2. betrue
A:
3. belicit
1. Determinate as to kind (even if not

determinate, provided it is possible to
Q: What are the two presumptions in contracts
determine the same without the need
astocause?
ofanewcontract);

2. Existing or the potentiality to exist
A:
subsequenttothecontract;
1. Every contract is presumed to have a
3. Mustbelicit;
cause;and
4. Withinthecommerceofman;and
2. Thecauseisvalid.
5. Transmissible.

214 CIVILLAWTEAM:

CONTRACTS
Q:Whatarethekindsofcauses? c. in cases specified by law

(e.g.contracts entered when ward
A: sufferslesionofmorethan25%)
1. Cause of onerous contracts the
prestation or promise of a thing or II.KINDSOFCONTRACT
servicebytheother
2. Cause of remuneratory contracts the Q:Whatarethekindsofcontracts?
serviceorbenefitremunerated
3. Cause of gratuitous contracts the A:
mere liberality of the donor or 1. Consensual contracts which are
benefactor perfected by the mere meeting of the
4. Accessory identical with cause of mindsoftheparties
principal contract, the loan which it
derived its life and existence (e.g.: 2. Real contracts that require delivery for
mortgageorpledge) perfection creation of real rights over
immovablepropertymustbewritten
Q:Distinguishcausefrommotive.
3. Solemn contracts contracts which
A: mustappearinwriting,suchas:
CAUSE MOTIVE
Directandmost a. Donations of real estate or of
Indirectorremote
proximatereasonofa movables if the value exceeding
reasons
contract P5,000;
Objectiveandjuridical Psychologicalorpurely b. Transferoflargecattle;
reasonofcontract personalreason c. Stipulationtopayinterestinloans;
Legalityorillegalityof Legalityorillegalityof d. Saleoflandthroughanagent;
causeaffectsthe motivedoesnotaffect e. Partnership to which immovables
existenceorvalidityof theexistenceorvalidity arecontributed;
thecontract ofcontract f. Stipulationlimitingcarriersliability
Causeisalwaysthesame to less than extraordinary
Motivediffersforeach
foreachcontracting
contractingparty diligence;or
party
g. Contractsofantichresisandsaleof
vessels.
Q: What is the effect of the error of cause on

contracts?

Q: What is the principle of relativity of

A:
contracts?
1. Absenceofcause(wantofcause;there

is total lack or absence of cause)
A:
Confers no right and produces no legal
GR: A contract is binding not only between
effect
partiesbutextendstotheheirs,successorsin
2. Failure of cause Does not render the
interest, and assignees of the parties,
contractvoid
provided that the contract involves
3. Illegalityofcause(thecauseiscontrary
transmissible rights by their nature, or by
to law, morals, good customs, public
stipulationorbyprovisionoflaw.
orderandpublicpolicy)Contractisnull

andvoid
XPNs:
4. Falsityofcause(thecauseisstatedbut
1. Stipulation pour autrui (stipulation in
the cause is not true)Contract is void,
favor of a third person) benefits
unless the parties show that there is
deliberately conferred by parties to a
anothercausewhichistrueandlawful
contractuponthirdpersons.
5. Lesion or inadequacy of cause Does

notinvalidatethecontract,unless:
Requisites:
a. there is fraud, mistake, or undue
a. The stipulation must be part, not
influence;
wholeofthecontract;
b. when the parties intended a
b. Contracting parties must have
donation or some other
clearly and deliberately conferred
contract;or
afavoruponthirdperson;
215

c. Third person must have hisdebtassoonasheisable,evenafter10years
communicatedhisacceptance;and and that he waives his right to prescription.
d. Neither of the contracting parties What are the effects of said stipulation to the
bears the legal representation of actionforcollectionfiledbyBorromeo?
thethirdperson.
A: None. The rule is that a lawful promise made
2. Whenathirdpersoninducesapartyto for a lawful consideration is not invalid merely
violatethecontract because an unlawful promise was made at the
same time and for the same consideration. This
Requisites: rule applies although the invalidity is due to
a. Existenceofavalidcontract violation of a statutory provision, unless the
b. Third person has knowledge of statute expressly or by necessary implication
suchcontract declarestheentirecontractvoid.Thus,evenwith
c. Third person interferes without such waiver of prescription, considering that it
justification was the intent of the parties to effectuate the
3. Thirdpersonscomingintopossessionof terms of the promissory note, there is no legal
the object of the contract creating real obstacle to the action for collection filed by
rights Borromeo. (Borromeo v. CA,G.R. No. L22962,
Sept.28,1972)
4. Contracts entered into in fraud of
creditors Note: Where an agreement founded on a legal
consideration contains several promises, or a
Q:Fieldmen'sInsuranceissued,infavorofMYT, promisetodoseveralthings,andapartonlyofthe
a common carrier, accident insurance policy. thingstobedoneareillegal,thepromiseswhichcan
50%ofthepremiumwaspaidbythedriver.The be separated, or the promise, so far as it can be
policyindicatedthattheCompanywillindemnify separated, from the illegality, may be
the driver of the vehicle or his representatives valid.(Borromeo v. CA,G.R. No. L22962, Sept. 28,
upon his death. While the policy was in force, 1972)
the taxicab driven by Carlito, met with an
accident.Carlitodied.MYTandCarlito'sparents Q: What is the principle of mutuality of
filedacomplaintagainstthecompanytocollect contracts?
theproceedsofthepolicy.Fieldmensadmitted
theexistencethereof,butpleadedlackofcause A: Contract must be binding to both parties and
ofactiononthepartoftheparents.Decide. itsvalidityandeffectivitycanneverbelefttothe
willofoneoftheparties.(Art.1308,NCC)
A:Yes.Carlitosparentswho,admittedly,arehis
soleheirshaveadirectcauseofactionagainstthe Q:Whatistheprincipleofautonomyof
Company. This is so because pursuant to the contracts?
stipulations, the Company will also indemnify
A:Itisthefreedomofthepartiestocontractand
third parties. The policy under consideration is
includes the freedom to stipulate provided the
typical of contracts pour autrui, this character
stipulationsarenotcontrarytolaw,morals,good
being made more manifest by the fact that the
customs,publicorderorpublicpolicy.(Art.1306,
deceased driver paid 50% of the premiums.
NCC)
(Coquia v. Fieldmens Insurance Co., Inc.,G.R. No.

L23276,Nov.29,1968)
A.CONSENSUALCONTRACTS

Q:Whatistheobligatoryforceofcontracts?
Q:Whatareconsensualcontracts?

A: The parties are bound not only by what has
A:Theyarecontractsperfectedbymereconsent.
been expressly provided for in the contract but

alsotothenaturalconsequencesthatflowoutof
Note:Thisisonlythegeneralrule.
suchagreement.(Art.1315,NCC)

B.REALCONTRACTS
Q: Villamor borrowed a large amount from

Borromeo,forwhichhemortgagedhisproperty
Q:Whatarerealcontracts?
but defaulted.Borromeo pressed him for

settlement.Thelatterinsteadofferedtoexecute
A:Theyarecontractsperfectedbydelivery
a promissory note containing a promise to pay

216 CIVILLAWTEAM:

CONTRACTS
C.FORMALCONTRACTS 7. Chattel mortgage personal property

must be recorded in the Chattel
Q:Whatareformalcontracts? MortgageRegister

A: Contracts which require a special form for III.FORMOFCONTRACTS
perfection.
Q:Whatarerulesontheformofcontracts?
Q: What are the formalities required in the
followingcontracts? A:
A: 1. Contracts shall be obligatory, in
1. Donations: whatever form they may have been
a. personal property if value entered into, provided all essential
exceeds 5000, the donation requisitesfortheirvalidityarepresent.
andacceptancemustbothbe
written. 2. Contracts must be in a certain form
b. b.realproperty: when the law requires that a contract
i. donation must be in a public beinsomeformtobe:
instrument, specifying therein the a. valid;
property donated and value of b. enforceable;or
chargeswhichdoneemustsatisfy. c. fortheconvenienceoftheparties.
ii. acceptance must be written, either
inthesamedeedofdonationorina 3. The parties may compel each other to
separateinstrument. reduce the verbal agreement into
iii. If acceptance is in a separate writing.
instrument, the donor shall be
notified therof in authentic form, Note:
andthisstepmustbenotedinboth GR:Formisnotrequiredinconsensualcontracts.
instruments.
Note: The acceptance in a separate XPNs: When the law requires a contract be in
documentmustbeapublicinstrument. certainforits:
1. validity(formalcontracts);or
2. Partnership where real property 2. enforceability(underStatuteofFrauds).
contributed:
i. there must be a public instrument Q: What are the acts which must appear in a
regardingthepartnership. publicdocument?
ii. the inventory of the realty must be
made, signed by the parties and A:
attachedtothepublicinstrument. 1. Donationofrealproperties(Art.719);
2. Partnership where immoveable
3. Antichresistheamountoftheprincipal property or real rights are contributed
andinterestmustbeinwriting. to the common fund (Arts. 1171 &
1773);
4. Agency to sell real property or an 3. Actsandcontractswhichhavefortheir
interestthereinauthorityoftheagent object the creation, transmission,
mustbeinwriting. modification or extinguishment of real
rights over immovable property; sales
5. Stipulation to charge interest interest ofrealpropertyorofaninteresttherein
mustbestipulatedinwriting. is governed by Arts. 1403, No. 2, and
1405[Art.1358(1)];
6. Stipulation limiting common carrier's 4. The cession, repudiation or
duty of extraordinary diligence to renunciation of hereditary rights or of
ordinarydiligence: those of the conjugal partnership of
i. must be in writing, signed by gains[Art.1358(2)]
shipperorowner 5. The power to administer property or
ii. supportedbyvaluableconsideration anyotherpowerwhichhasforitsobject
other than the service rendered by an act appearing or which should
thecomoncarrier appear in a public document or should
iii. reasonable,justandnotcontraryto prejudiceathirdperson[Art.1358(3)];
publicpolicy.
217

6. The cession of actions or rights A:Itmaybeorderedattheinstanceof:
proceeding from an act appearing in a 1. ifthemistakeismutualeitherpartyor
publicdocument[Art.1358(4)]. hissuccessorsininterest;otherwise;
2. uponpetitionoftheinjuredparty;or
Q:Whatarecontractsthatmustberegistered? 3. hisheirsandassigns.

A: Note:Whenoneofthepartieshasbroughtanaction
1. Chattelmortgages(Art.2140) to enforce the instrument, no subsequent
2. Sale or transfer of large cattle (Cattle reformationcanbeasked(estoppel).
RegistrationAct)
Q: In case of reformation of contracts, is the
REFORMATION prescription period in bringing an action for
reformation run from the time the contract
Q:Whatisreformationofinstruments? becamedisadvantageoustooneparty?

A:Itisaremedytoconformtotherealintention A: In reformation of contracts, what is reformed
of the parties due to mistake, fraud, inequitable is not the contract itself, but the instrument
conduct,accident.(Art.1359) embodying the contract. It follows that whether
the contract is disadvantageous or not is
Note:Reformationisbasedonjusticeandequity. irrelevant to reformation and therefore, cannot
beanelementinthedeterminationoftheperiod
Q: What are the requisites in reformation of forprescriptionoftheactiontoreform.
instruments?
IV.DEFECTIVECONTRACTS
A:
1. Meetingofthemindstothecontract Q:Whatmaybethestatusofcontracts?
2. True intention is not expressed in the
instrument A:
3. ByreasonofMARFI: 1. Valid
a. Mistake, 2. Void
b. Accident, 3. Voidable
c. Relativesimulation, 4. Rescissible
d. Fraud,or 5. Unenforceable
e. Inequitableconduct 6. Inexistent
4. ClearandconvincingproofofMARFI
A.RESCISSIBLECONTRACTS
Note: When there is no meeting of the minds, the
properremedyisannulmentandnotreformation. Q:Whatarerescissiblecontracts?

Q: In what cases is reformation of instruments A: Those which have caused a particular
notallowed? economicdamageeithertooneofthepartiesor
to a third person and which may be set aside
A: even if valid. It may be set aside in whole or in
1. Simple, unconditional donations inter part, to the extent of the damage caused. (Art.
vivos 1381,NCC)
2. Wills
3. Whentheagreementisvoid Q:Whichcontractsarerescissible?
4. When an action to enforce the
instrumentisfiled(estoppel) A:
1. Entered into by persons exercising
Q:Whatistheprescriptiveperiodinreformation fiduciarycapacity:
ofinstruments? a. Enteredintobyguardianwhenever
ward suffers damage more than
A:10yearsfromthedateoftheexecutionofthe ofvalueofproperty.
instrument. b. Agreed upon in representation of
absentees, if absentee suffers
Q: Who may ask for the reformation of an lesion by more than of value of
instrument? property.

218 CIVILLAWTEAM:

CONTRACTS
c. Contractswhererescissionisbased Applicability
on fraud committed on creditor Appliestobothunilateral
Appliesonlytoreciprocal
(accionpauliana) andreciprocal
obligations
d. Objects of litigation; contract obligations
enteredintobydefendantwithout PersonwhocanInitiatetheAction
knowledge or approval of litigants Eventhirdpersons
Onlytheinjuredparty
orjudicialauthority prejudicedbythe
whoisapartytothe
e. Payment by an insolvent on contractmaybringthe
contract
debts which are not yet due; action
prejudicesclaimofothers FixingofPeriodbytheCourt
f. Provided for by law (Arts. 1526, Courtmayfixaperiodor
1534, 1538, 1539, 1542, 1556, grantextensionoftime
1560,1567&1659,NCC) forthefulfillmentofthe Courtcannotgrant
obligationwhenthereis extensionoftime
sufficientreasonto
2. Paymentsmadeinstateofinsolvency:
justifysuchextension
a. Plaintiff has no other means to
Purpose
maintainreparation
Reparationfordamage
b. Plaintiff must be able to return Cancellationofthe
orinjury,allowingpartial
whatever he may be obliged to contract
rescissionofcontract
returnduetorescission

c. The things must not have been Note:WhileArticle1191usesthetermrescission,
passed to third persons in good the original term which was used in the old Civil
faith Code, from which the article was based, was
d. Itmustbemadewithin4yrs. resolution.(Ongv.CA,G.R.No.97347,July6,1999)

Q: What are the requisites before a contract Q: What is the obligation created by the
entered into in fraud of creditors may be rescissionofthecontract?
rescinded?
A: Mutual restitution of things which are the
A: objectsofthecontractandtheirfruitsandofthe
1. There must be credit existing prior to pricewithinterest.
thecelebrationofthecontract;
2. There must be fraud, or at least, the Q:Whenismutualrestitutionnotapplicable?
intenttocommitfraudtotheprejudice
ofthecreditorseekingrescission; A:
3. Thecreditorcannotinanylegalmanner 1. Creditor did not receive anything from
collecthiscredit(subsidiarycharacterof contract;or
rescission);and 2. Thing already in possession of third
4. The object of the contract must not be persons in good faith; subject to
legallyinpossessionofathirdpersonin indemnityonly,iftherearetwoormore
goodfaith. alienationsliabilityoffirstinfractor.

Note: Rescission is possible only when the person
Q:Distinguishrescissionfromresolution. demanding rescission can return whatever he may
be obliged to restore. A court of equity will not
RESOLUTION RESCISSION rescindacontractunlessthereisrestitution,thatis,
(ART.1191) (ARTICLE1381) the parties are restored to the status quo
Bothpresupposecontractsvalidlyenteredintoand ante.(Article1385)
subsistingandbothrequiremutualrestitutionwhen
proper Q: Reyes (seller) and Lim (buyer) entered intoa
Nature contract to sell of a parcel of land. Harrison
Principalaction. Lumber occupied the property as lessee. Reyes
Subsidiaryremedy
retaliatoryincharacter offeredtoreturntheP10milliondownpayment
GroundsforRescission to Lim because Reyes was having problems in
5groundsunderArt. removing the lessee from the property. Lim
Onlygroundisnon 1381.(lesionsorfraudof rejectedReyesoffer.LimlearnedthatReyeshad
performanceof creditors) alreadysoldthepropertytoanother.
obligation Nonperformanceisnot
important
219

Trialcourt,inthiscase,directedReyestodeposit Q: What are the characteristics of the right to
the P10 million downpayment with the clerk of rescind?
court but Reyes refused. Does Reyes have the
obligation to deposit the P10 million A:
downpaymentinthecourt? 1. Can be demanded only if plaintiff is
ready, willing and able to comply with
A: Yes. There is also no plausible or justifiable hisownobligationanddefendantisnot;
reason for Reyes to object to the deposit of the 2. Notabsolute;
P10milliondownpaymentincourt.Thecontract 3. Needs judicial approval in the absence
to sell can no longer be enforced because Reyes of a stipulation allowing for extra
himselfsubsequentlysoldtheproperty.BothLim judicial rescission, in cases of non
and Reyes are seeking for rescission of the reciprocalobligations;
contract. 4. Subject to judicial review if availed of
extrajudicially;
Byseekingrescission,asellernecessarilyoffersto 5. May be waived expressly or impliedly;
returnwhathehasreceivedfromthebuyer.Such and
a seller may not take back his offer if the court 6. Impliedtoexistinreciprocalobligations
deemsitequitable,topreventunjustenrichment therefore need not be expressly
and ensure restitution, to put the money in stipulatedupon.
judicialdeposit.
Q:Mayaninjuredpartyavailofbothfulfillment
Note:Inthiscase,itwasjust,equitableandproper andrescissionasremedy?
forthe trialcourt to order the deposit ofthedown
payment to prevent unjust enrichment by Reyes at A:
theexpenseofLim.Depositingthedownpaymentin GR:The injured party can only choose
courtensureitsrestitutiontoitsrightfulowner.Lim, between fulfillment and rescission of
ontheotherhand,hasnothingtorefund,ashehas theobligation,andcannothaveboth.
not received anything under the contract to sell.
(Reyes v. Lim, Keng and Harrison Lumber, Inc., G.R. Note: This applies only when the
No.134241,Aug.11,2003) obligationispossibleoffulfillment.

Q:Whatarethebadgesoffraudattendingsales, XPN: If fulfillment has become
asdeterminedbythecourts? impossible,Article1191,NCCallowsthe
injured party to seek rescission even
A: afterhehaschosenfulfillment.(Ayson
1. Consideration of the conveyance is Simonv.Adamos,G.R.No.L39378,Aug.
inadequateorfictitious; 281984)
2. TransferwasmadebyaDRafterasuit
hasbeenbegunandwhileitispending Q: Vermen and Seneca entered into an
againsthim "offsettingagreement",whereSenecaisobliged
3. SaleuponcreditbyaninsolventDR; to deliver construction materials to Vermen,
4. The presence of evidence of large who is obliged to pay Seneca and to deliver
indebtednessorcompleteinsolvencyof possession of 2 condominium units to Seneca
thedebtor; uponitscompletion.Senecafiledacomplaintfor
5. Transfer of all his property by a DR rescission of the offsetting against Vermen
when he is financially embarrassed or alleging that the latter had stopped issuing
insolvent; purchase orders of construction materials
6. Transfer is made between father and without valid reason, thus resulting in the
son, where there are present some or stoppage of deliveries of construction materials
anyoftheabovecircumstances;and on its part, in violation of the Offsetting
7. Failure of the vendee to take exclusive Agreement.Cantheagreementberescinded?
possessionoftheproperty.
A: Yes, because the provisions of the offsetting
agreement are reciprocal in nature. Article 1191
of the Civil Code provides the remedy of
rescission (more appropriately, the term is
"resolution") in case of reciprocal obligations,
where one of the obligors fails to comply with
thatisincumbentuponhim.
220 CIVILLAWTEAM:

CONTRACTS
The question of whether a breach of contract is In a contract to sell, the payment of the purchase
substantial depends upon the attendant priceisapositivesuspensivecondition,thefailureof
circumstances. Seneca did not fail to fulfill its which is not a breach, casual or serious, but a
obligation in the offsetting agreement. The situationthatpreventstheobligationofthevendor
discontinuance of delivery of construction to convey title from acquiring an obligatory force.
materialstoVermenstemmedfromthefailureof (Ongv.CA,G.R.No.97347,July6,1999)
Vermen to send purchase orders to Seneca.
Vermen would never have been able to fulfill its Q: Goldenrod offered to buy a mortgaged
obligation in allowing Seneca to exercise the property owned by Barreto Realty to which it
optiontotransferfromPhaseItoPhaseII,asthe paidanearnestmoneyamountingtoP1million.
construction of Phase II has ceased and the It was agreed upon that Goldenrod would pay
subject condominium units will never be the outstanding obligations of Barreto Realty
available. The impossibility of fulfillment of the with UCPB. However, Goldenrod did not pay
obligation on the part of Vermen necessitates UCPBbecauseofthebanksdenialofitsrequest
resolution of the contract, for indeed, the non for the extension to pay the obligation.
fulfillment of the obligation aforementioned Thereafter, Goldenrod, through its brocker,
constitutes substantial breach of the agreement. informed Barreto Realty that it could not go
(Vermen Realty Development Corp. v. CA and through with the purchase of the property and
Seneca Hardware Co., Inc., G.R. No. 101762, July alsodemandedtherefundoftheearnestmoney
6,1993) it paid. In the absence of a specific stipulation,
maythesellerofrealestateunilaterallyrescind
Q: Ong and spouses Robles executed an the contract and as a consequence keep the
"agreementofpurchaseandsale"of2parcelsof earnest money to answer for damages in the
land. Pursuant to the contract they executed, event the sale fails due to the fault of the
Ongpartiallypaidthespousesthebydepositing prospectivebuyer?
it with the bank. Subsequently, Ong deposited
sumsofmoneywiththeBPIinaccordancewith A: No. Goldenrod and Barretto Realty did not
their stipulation that Ong pay the loan of the intend that the earnest money or advance
spousewithBPI.ToanswerforOngsbalance,he payment would be forfeited when the buyer
issued 4 postdated checks which were should fail to pay the balance of the price,
dishonored.Ongfailedtoreplacethechecksand especially in the absence of a clear and express
topaytheloaninfull.Canthecontractentered agreementthereon.
intobyOngandthespousesberescinded?
Moreover, Goldenrod resorted to extrajudicial
A: No. The agreement of the parties in this case rescission of its agreement with Barretto Realty.
maybesetaside,butnotbecauseofabreachon Under Article 1385, NCC, rescission creates the
the part of Ong for failure to complete payment obligation to return the things which were the
ofthepurchaseprice.Rather,hisfailuretodoso object of the contract together with their fruits
brought about a situation which prevented the and interest. Therefore, by virtue of the
obligation of the spouses to convey title from extrajudicial rescission of the contract to sell by
acquiringanobligatoryforce. Goldenrod without opposition from Barretto
Realty, which in turn, sold the property to other
Theagreementofpurchaseandsaleshowsthatit persons, Barretto Realty, had the obligation to
isinthenatureofacontracttosell.Ongsfailure return the earnest money which formed part of
to complete payment of the purchase price is a the purchase price plus legal interest from the
nonfulfillment of the condition of full payment date it received notice of rescission. It would be
which rendered the contract to sell ineffective most inequitable if Barretto Realty would be
and without force and effect. The breach allowed to retain the money at the same time
contemplatedinArticle1191,NCCistheobligors appropriate the proceeds of the second sale
failuretocomplywithanobligation.Inthiscase, madetoanother.(Goldenrod,Inc.v.CA,G.R.No.
Ongs failure to pay is not even a breach but 126812,Nov.24,1998)
merely an event which prevents the vendors
obligation to convey title from acquiring binding
force.
Note:Thecontractenteredintobythepartiesinthe
case at bar does not fall under any of those
mentioned by Article 1381. Consequently, Article
1383isinapplicable.
221

Q: What is the prescriptive period of action for Q:Whatarethevicesofconsent?
rescission?
A:MIVUF
A: 1. Mistake substantial mistake and not
1. Under Art. 1381, no.1 within 4 years merely an accidental mistake; must
from the time the termination of the refertothe:
incapacityoftheward; a. substanceofthethingwhichisthe
2. Under Art. 1381, no. 2 within 4 years subjectofthecontract;or
from the time the domicile of the b. to those conditions which have
absenteeisknown;or principally moved one or both
3. UnderArt.1381,nos.3&4&Art.1382 partiestoenterthecontract.
within 4 years from the time of the
discoveryoffraud. Note: Mistake as to identity or
qualifications of one of the parties
B.VOIDABLECONTRACTS will vitiate consent only when such
identity or qualifications have been
Q: What are the characteristics of a voidable theprincipalcauseofthecontract.
contract?
A: 2. Intimidation An internal moral force
1. Effectiveuntilsetaside; operating in the will and inducing
2. May be assailed or attacked only in an performanceofanact.
actionforthatpurpose; 3. Violence An external, serious or
3. Canbeconfirmed;and irresistible physical force exerted upon
4. Canbeassailedonlybythepartywhose a person to prevent him from doing
consent was defective or his heirs or something or to compel him to do an
assigns. act.
4. UndueinfluenceAnymeansemployed
Q:Whenisthereavoidablecontract? upon a party which, under the
circumstancescouldnotberesistedand
A:When: hastheeffectofcontrollinghisvolition
1. one of the parties is incapacitated to andinducinghimtogivehisconsentto
giveconsent;or the contract, which otherwise, he
2. consentwasvitiated. wouldnothaveenteredinto.
5. Fraud Use of insidious words or
Q: Who are the persons incapacitated to give machinations in inducing another party
consent? to enter into the contract, which
without them, he would not have
A:DIM agreed.
1. Deafmutes who do not know how to
readandwrite(illiterates) Q:Whatarethekindsofmistake?
2. Insaneordementedpersons,unlessthe
contractwasenteredintoduringalucid A:
interval 1. Mistake of fact When one or both of
3. Minorsexcept: the contracting parties believe that a
a. Contractsfornecessaries factexistswheninrealityitdoesnot,or
b. Contracts by guardians or legal that such fact does not exist when in
representatives&thecourthaving realityitdoes.
jurisdictionhadapprovedthesame
c. When there is active 2. MistakeoflawWhen1orbothparties
misrepresentation on the part of arrive at erroneous conclusion or
theminor(minorisestopped) interpretation of a question of law or
d. Contracts of deposit with the legal effects of a certain act or
Postal Savings Bank provided that transaction.
theminorisover7yearsofage
e. Upon reaching age of majority Note:
theyratifythesame GR: Mistake as a vice of consent refers to
mistakeoffactsandnotoflaw.

222 CIVILLAWTEAM:

CONTRACTS
XPN:Whenmistakeoflawinvolveserrorasto mental weakness or some other handicap. It

the effect of an agreement when the real contemplates a situation wherein a contract is
purpose of the parties is frustrated (Art. 1334, entered into but the consent of one of the
NCC). contracting parties is vitiated by mistake or fraud
committed by the other.(Leonardo v. CA, G.R. No.
Todeterminetheeffectofanallegederror,boththe 125485,Sept.13,2004)
objectiveandsubjectiveaspectsofthecasewhichis
the intellectual capacity of the person who Q: What are the requisites that ignorance of or
committedthemistake. erroneousinterpretationoflaw(mistakeoflaw)
mayvitiateconsent?
Q:Whenwillmistakeinvalidateconsent?
A:
A:Mistake,inordertoinvalidateconsent,should 1. Mistake must be with respect to the
refer to the substance of the thing which is the legaleffectoftheagreement;
object of the contract, or to those conditions 2. Itmustbemutual;and
whichhaveprincipallymovedoneorbothparties 3. Real purpose of the parties must have
to enter into the contract.(Leonardo v. CA, G.R. beenfrustrated.
No.125485,Sept.13,2004)
Q:Whataretherequisitesofintimidation?
Q: Leonardo is the only legitimate child of the
late spouses Tomasina and Balbino. She only A:
finished Grade three and did not understand 1. One of the parties is compelled to give
English. The Sebastians, on the other hand, are his consent by a reasonable and well
illegitimate children. She filed an action to groundedfearofanevil;
declarethenullityoftheextrajudicialsettlement 2. Theevilmustbeimminentandgrave;
of the estate of her parents, which she was 3. Itmustbeunjust;and
made to sign without the contents thereof, 4. Theevilmustbethedeterminingcause
which were in English, explained to her. She forthepartyuponwhomitisemployed
claimsthatherconsentwasvitiatedbecauseshe inenteringintothecontract.
was deceived into signing the extrajudicial
settlement. Is the extrajudicial settlement of Q:Whataretherequisitesofviolence?
estateofTomasinavalid?
A:Itmustbe:
A:No.Whenoneofthepartiesisunabletoread, 1. seriousorirresistible;and
orifthecontractisinalanguagenotunderstood 2. the determining cause for the party
by him, and mistake or fraud is alleged, the upon whom it is employed in entering
personenforcingthecontractmustshowthatthe intothecontract.
terms thereof have been fully explained to the
former. (Art. 1332, NCC) Leonardo was not in a Q:Whatarethekindsoffraud?
position to give her free, voluntary and
spontaneous consent without having the A:
document,whichwasinEnglish,explainedtoher. 1. Fraudintheperfectionofthecontract
Therefore, the consent of Leonardo was a. Causalfraud(dolocausante)
invalidated by a substantial mistake or error, b. Incidentalfraud(doloincidente)
rendering the agreement voidable. The
extrajudicial partition between the Sebastians 2. Fraud in the performance of an
and Leonardo should be annulled and set aside obligation(Art.1170,NCC)
on the ground of mistake. (Leonardo v. CA, G.R.
No.125485,Sept.13,2004) Requisites:
a. Fraud, insidious words or
Note: Contracts where consent is given by mistake machinations must have been
or because of violence, intimidation, undue employed by one of the
influenceorfraudarevoidable.Thesecircumstances contractingparties;
are defects of the will, the existence of which b. Itmusthavebeenserious;
impairs the freedom, intelligence, spontaneity and
c. Itinducedtheotherpartytoenter
voluntariness of the party in giving consent to the
intoacontract;and
agreement.
d. Shouldnothavebeenemployedby
Art. 1332 was intended to protect a party to a bothcontractingpartiesorbythird
contract disadvantaged by illiteracy, ignorance, persons.
223

Q: Distinguish dolo causante from dolo thissuspensivecondition.(Samsonv.CA,G.R.No.
incidente. 108245,Nov.25,1994)

A: Q:Whatarethecausesofextinctionofactionto
DOLOCAUSANTE DOLOINCIDENTE annul?
(ART.1338) (ART.1344)
Referstofraudwhichis Referstofraudwhichis A:
seriousincharacter notseriousincharacter 1. Prescription the action must be
Itisthecausewhich Itisnotthecausewhich commenced within 4 years from the
inducesthepartyto inducesthepartyto timethe:
enterintoacontract enterintoacontract a. incapacity ends; guardianship
Rendersthecontract Rendersthepartyliable ceases;
voidable fordamages b. violence, intimidation or undue
influenceends;or
Note:Incontracts,thekindoffraudthatwillvitiate c. mistakeorfraudisdiscovered
consent is one where, through insidious words or
machinations of one of the contracting parties, the
2. Ratificationcleansesthecontractofits
other is induced to enter into a contract which,
defects from the moment it was
withoutthem,hewouldnothaveagreedto.Thisis
known as dolo causante or causal fraud which is
constituted
basicallyadeceptionemployedbyonepartypriorto
or simultaneous to the contract in order to secure Requisites:
the consent of the other. (Samson v. CA, G.R. No. a. there must be knowledge of the
108245,Nov.25,1994) reason which renders the contract
voidable;
Q: Santos lease contract was about to expire b. suchreasonmusthaveceased;and
butitwasextendedandhecontinuedtooccupy c. the injured party must have
theleasedpremisesbeyondtheextendedterm. executedanactwhichexpresslyor
Samson offered to buy Santos store and his impliedly conveys an intention to
right to the lease. Santos stated that the lease waivehisright
contract between him and the lessor was
impliedly renewed and that formal renewal 3. By loss of the thing which is the object
thereof would be made upon the arrival of a ofthecontractthroughfraudorfaultof
certain Tanya Madrigal, based on the letter to thepersonwhoisentitledtoannulthe
himgivenbythelessor.WhenSamsonoccupied contract
the premises, he was forced to vacate for
Santos failure to renew his lease. He filed an Q:Whomayinstituteactionforannulment?
actionfordamagesagainstSantosforfraudand
bad faith claiming that the misrepresentation A: By all who are thereby obliged principally or
induced him to purchase the store and the subsidiarily.
leaseholdright.Decide. Note: He who has capacity to contract may not
invoketheincapacityofthepartywithwhomhehas
A:No,Santoswasnotguiltyoffraudnorbadfaith contracted.

inclaimingthattherewasimpliedrenewalofhis
A third person who is a stranger to the contract
contractof leasewithhislessor.Thelettergiven
cannotinstituteanactionforannulment.
by the lessor led Santos to believe and conclude

thathisleasecontractwasimpliedlyrenewedand
Q:Whataretheeffectsofannulment?
thatformalrenewalthereofwouldbemadeupon

the arrival of Tanya Madrigal. Thus, from the
A:
start,itwasknowntobothpartiesthat,insofaras
1. If contract not yet consummated
the agreement regarding the transfer of Santos
parties shall be released from the
leasehold right to Samson was concerned, the
obligationsarisingtherefrom.
object thereof relates to a future right. It is a
2. If contract has already been
conditional contract, the efficacy of which
consummated rules provided in Arts.
dependsuponanexpectancytheformalrenewal
13981402,NCC,shallgovern.
oftheleasecontractbetweenSantosandlessor.

The efficacy of the contract between the parties

wasthusmadedependentuponthehappeningof
224 CIVILLAWTEAM:

CONTRACTS
Q:Whatisconfirmation? involved, but merely regulates the formalities of

the contract necessary to render it enforceable.
A: It is an act by which a voidable contract is Evidence of the agreement cannot be received
curedofitsviceordefect. withoutthewritingorasecondaryevidenceofits
contents. (Swedish Match, AB v. CA, G.R. No.
Q:Whatisrecognition? 128120,Oct.20,2004)

A:Itisanactwherebyadefectofproofiscured Note: The Statute of Frauds applies only to
such as when an oral contract is put into writing executorycontracts,nottothosethatarepartiallyor
orwhenaprivateinstrumentisconvertedintoa completely fulfilled. Where a contract of sale is
publicinstrument. alleged to be consummated, it matters not that
neitherthereceiptfortheconsiderationnorthesale
Q:Whatisratification? itself was in writing. Oral evidence of the alleged
consummatedsaleisnotforbiddenbytheStatuteof
Fraudsandmaynotbeexcludedincourt.(Victoriano
A:Itisanactbywhichacontractenteredintoin
v.CA,G.R.No.87550,Feb.11,1991)
behalf of another without or in excess of

authorityiscuredofitsdefect.
Q:WhatisthepurposeoftheStatuteofFrauds?

Q:Whatarethemodesofratification?
A: It is to prevent fraud and perjury in the
enforcement of obligations depending for their

A:
evidenceontheunassistedmemoryofwitnesses,
1. For contracts infringing the Statute of
by requiring certain enumerated contracts and
Frauds:
transactions to be evidenced by a writing signed
a. expressly
bythepartytobecharged.(SwedishMatch,ABv.
b. impliedly by failure to object to
CA,G.R.No.128120,Oct.20,2004)
the presentation of oral evidence

to prove the contract, or by the
Q: What are the contracts or agreements
acceptance of benefits under the
coveredbytheStatuteofFrauds?
contract.
2. If both parties are incapacitated,
ratificationbytheirparentsorguardian A:
shallvalidatethecontractretroactively 1. Anagreementthatbyitstermsisnotto
be performed within a year from the
C.UNENFORCEABLECONTRACTS
makingthereof;
2. A special promise to answer for the
Q:Whatareunenforceablecontracts? debt,defaultormiscarriageofanother
3. Anagreementmadeinconsiderationof
A: The following contracts are unenforceable marriage, other than a mutual promise
unlesstheyareratified: tomarry;
1. Thoseenteredintowithoutorinexcess 4. An agreement for the sale of goods,
ofauthority; chattels or things in action, at a price
2. Those that do not comply with the not lower that 500 pesos, unless the
StatuteofFraudsi.e.,arenotinwriting
buyeracceptsandreceivespartofsuch
nor subscribed by the party charged or goodsandchattels,ortheevidences,or
byhisagent;or someofthem,ofsuchthingsinaction,
3. Those where both contracting parties or pay at the time some part of the
areincapableofgivingconsent. entry is made by the auctioneer in his
sales book, at the time of the sale, of
Q:WhatisStatuteofFrauds? the amount and kind of property sold,
terms of sale, price, names of the
A: The Statute of Frauds [Article 1403, (2)] purchasers and person on whose
requirescertaincontractsenumeratedthereinto account the sale is made, it is a
be evidenced by some note or memorandum in
sufficientmemorandum
order to be enforceable. The term "Statute of 5. An agreement for the leasing for a
Frauds" is descriptive of statutes which require longer period than one year, or for the
certain classes of contracts to be in writing. The sale of real property or of an interest
Statute does not deprive the parties of the right therein;
to contract with respect to the matters therein
225

6. Arepresentationtothecreditofathird D.VOIDCONTRACTS
person
Q:Whatarethekindsofvoidcontracts?
Q:Cenido,asanheirofAparatoandclaimingto
be the owner of a house and lot, filed a A:
complaint for ejectment against spouses 1. Thoselackinginessentialelements:
Apacionado. On the other hand, spouses Noconsent,noobject,nocausesomeor
Apacionado allege that they are the owners allelementsofavalidcontractareabsent
whichareunregisteredpurchasedbythemfrom a. Thosewhichareabsolutelysimulated
its previous owner, Aparato. Their claim is orfictitious:nocause
anchored on a 1page typewritten document b. Thosewhosecauseorobjectdidnot
entitled "Pagpapatunay," executed by Aparato. exist at the time of the transaction:
IsthePagpapatunayenteredintobyBonifacio nocauseorobject
andspouseApacionadovalidandenforceable? c. Those whose object is outside the
commerceofman:noobject
A: It is valid but unenforceable. Generally, d. Those which contemplate an
contracts are obligatory, in whatever form such impossibleservice:noobject
contracts may have been entered into, provided e. Those where the intention of parties
all the essential requisites for their validity are relative to principal object of the
present.When,however,thelawrequiresthata contractcannotbeascertained
contract be in some form for it to be valid or
enforceable, that requirement must be complied 2. Contractsprohibitedbylaw
with. a. Pactum commisorium the creditor
appropriates to himself the things
Thesaleofrealpropertyshouldbeinwritingand given by way of pledge or mortgage
subscribed by the party charged for it to be tofulfillthedebt
enforceable.The"Pagpapatunay"isinwritingand b. Pactum de non alienando an
subscribed by Aparato, hence, it is enforceable agreement prohibiting the owner
under the Statute of Frauds. Not having been from alienating the mortgaged
subscribed and sworn to before a notary public, immovable
however, the "Pagpapatunay" is not a public c. Pactum leonina a stipulation in a
document, and therefore does not comply with partnership agreement which
par.1,Art.1358,NCC. excludes one or more partners from
Moreover,therequirementofapublicdocument anyshareintheprofitsorlosses
in Article 1358 is not for the validity of the
instrument but for its efficacy. Although a 3. Illegalorillicitcontracts(e.g.contractto
conveyance of land is not made in a public sellmarijuana)
document, it does not affect the validity of such
conveyance.Theprivateconveyanceofthehouse Q: On July 6, 1976, Honorio and Vicente
and lot is therefore valid between Aparato and executed a deed of exchange. Under this
the spouses. (Cenidov.Spouses Apacionado,G.R. instrument,Vicenteagreedtoconveyhis64.22
No.132474,Nov.19,1999) squaremeter lot to Honorio, in exchange for a
500squaremeter property. The contract was
Q:Whatarethetwowaysofratifyingcontracts entered into without the consent of Honorios
whichinfringetheStatuteofFrauds? wife.Isthedeedofexchangenullandvoid?

A: A:Thedeedisvaliduntilandunlessannulled.The
1. Failure to object during the trial to the deedwasenteredintoonJuly6,1976,whilethe
admissibility of parol evidence to Family Code took effect only on August 3, 1998.
support a contract covered by the Lawsshouldbeappliedprospectivelyonly,unless
StatuteofFrauds. alegislativeintenttogivethemretroactiveeffect
2. Acceptance of benefits when the is expressly declared or is necessarily implied
contract has been partly executed fromthelanguageused.Hence,theprovisionsof
because estoppel sets in by accepting theCivilCode,nottheFamilyCodeareapplicable.
performance. According to Article 166 of the Civil Code, the
husband cannot alienate or encumber any real
property of theconjugal partnership without the
wifes consent. This provision, however, must be
226 CIVILLAWTEAM:

CONTRACTS
read in conjunction with Article 173 of the same ininterestnotprotected

Code.Thelatterstatesthatanactiontoannulan bylaw
alienation or encumbrance may be instituted by Actiontoannul
thewifeduringthemarriageandwithintenyears contractprescribesin4
fromthetransactionquestioned.Hence,thelack Actiontodeclarenullity years(Pineda,
of consent on her part will not make the doesnotprescribe Obligationsand
husbands alienation or encumbrance of real Contracts,2000ed,p.
property of the conjugal partnership void, but 606)
merelyvoidable.(Villarandav.Villaranda,G.R.No.
153447,Feb.23,2004) Q:Distinguishvoidcontractfromrescissible
contract.
Q: Judie sold onehalf of their lot to Guiang
under a deed of transfer of rights without the A:
consentandovertheobjectionofhiswife,Gilda VOID RESCISSIBLE
and just after the latter left for abroad. When Defectisinherent Defectisinitseffects,either
Gilda returned home and found that only her inthecontract againstoneofthepartiesora
itself thirdperson
son, Junie, was staying in their house. She then
Nullityisamatter
gatheredherotherchildren,JojiandHarrietand Basedonequityandmatterof
oflawandpublic
went to stay in their house. For staying in their privateinterest
interest
alleged property, the spouses Guiang
Nolegaleffects Produceslegaleffectsand
complained before the barangay authorities for evenifnoactionis remainsvalidifnoactionis
trespassing. filedtosetitaside filed
Actiontodeclare Actiontorescindprescribes
Is the deed of transfer of rights executed by itsnullitydoesnot within4years(Art.1389,NCC;
Judie Corpuz and the spouses Guiang void or prescribe(Art. Pineda,Obligationsand
voidable? 1410,NCC) Contracts,2000ed,p.605)

A: Q: Distinguish void contract from inexistent
Itisvoid.Gildasconsenttothecontractofsaleof contract.
their conjugal property was totally inexistent or
absent. Thus, said contract properly falls within A:
theambitofArticle124oftheFC. VOIDCONTRACT INEXISTENTCONTRACT
Thosewhereallthe
The particular provision in the old Civil Code requisitesofacontract
which provides a remedy for the wife within 10 arepresent,butthe
Thosewhereoneor
years during the marriage to annul the cause,objectorpurpose
someoftherequisites
encumbrance made by the husband was not iscontrarytolaw,
whichareessentialfor
carried over to the Family Code. It is thus clear morals,goodcustoms,
validityareabsolutely
that any alienation or encumbrance made after publicorderorpublic
lacking
theFamilyCodetookeffectbythehusbandofthe policyorthecontract
conjugal partnership property without the itselfisprohibitedor
consent of the wife is null and void. (Spouses declaredprohibited.
Guiangv.CA,G.R.No.125172,June26,1998) Principleofinpari
Principleofinpari
delicto
delictoisapplicable.
isnotapplicable.
Q: Distinguish void contract from voidable

contract.
V.EFFECTOFCONTRACTS

A:
VOID VOIDABLE
Q:Betweenwhomdocontractstakeeffect?
Consentisvitiatedor

Absenceofessential A:Contractstakeeffectonlybetweentheparties,
thereisincapacityto
element/sofacontract andtheirassignsandheirs,thelatterbeingliable
giveconsent
Noeffectevenifnotset Validcontractuntilset only to the extent of the property received from
aside aside thedecedent.
Cannotberatified Canberatified
Nullitycanbesetup Q: What are the instances when the heirs may
Nullitycanbesetup be liable for the obligation contracted by the
againstanyperson
onlyagainstaparty decedent?
assertingrightarising
thereto
fromit,andhissuccessors
227

A: When the rights and obligations arising from
thecontractaretransmissible:
1. Bytheirnature;or
2. Bystipulation;or
3. Byprovisionoflaw.

Q: What are the requisites in order that a third
person may demand the fulfillment of the
contract?

A:
1. The contracting parties must have
clearly and deliberately conferred a
favoruponthethirdperson;
2. Thethirdpersonsinterestorbenefitin
such fulfillment must not be merely
incidental;and
3. Such third person communicated his
acceptance to the obligor before the
stipulationsinhisfavorarerevoke.

228 CIVILLAWTEAM:

SALES
SALES b. Illicitobject
6. Presenceorabsenceofconditions:
Q:Whatisasale? a. Absolute
b. Conditional
A: Sale is a contract where one party (seller) 7. Wholesaleorretail:
obligateshimselftotransfertheownershipofand a. Wholesale
to deliver a determinate thing, while the other b. Retail
party (buyer) obligates himself to pay for said 8. Proximateinducementforthesale:
thing a price certain in money or its equivalent. a. Salebydescription
(Tolentino,p.1,2000ed.) b. Salebysample
c. Salebydescriptionandsample
I.INTRODUCTION 9. Whenthepriceistendered:
a. Cashsale
A.DEFINITIONOFTHECONTRACTOFSALE b. Saleoninstallmentplan

Q:Whatisacontractofsale? ASTOPRESENCEORABSENCEOFCONDITION

A:Bythecontractofsale,oneofthecontracting ABSOLUTESALE
parties obligates himself to transfer the
ownershipofandtodeliveradeterminatething, Q:Whenisasaleabsolute?
and the other to pay therefor a price certain in
moneyoritsequivalent.(Art.1458,NCC) A: The sale is absolute where the sale is not
subject to any condition whatsoever and where
KINDSOFSALES thetitlepassestothebuyerupondeliveryofthe
thingsold.(DeLeon,p.15)
Q:Whatarethedifferentkindsofsales?
Q:Whenisadeedofsaleconsideredabsolutein
A:Asto: nature?
1. Natureofthesubjectmatter:
a. Saleofrealproperty; A:Adeedofsaleisconsideredabsoluteinnature
b. Saleofpersonalproperty where there is neither a stipulation in the deed
2. Valueofthethingsexchanged: that title to the property sold is reserved in the
a. Commutativesale; selleruntilthefullpaymentoftheprice,norone
b. Aleatorysale givingthevendortherighttounilaterallyresolve
3. Whether the object is tangible or the contract the moment the buyer fails to pay
intangible: withinafixedperiod.
a. Sale of property (tangible or
corporeal); CONDITIONALSALE

Note:Atangibleobjectisalsocalled Q:Whenisasaleconditional?
choseinpossession

A:Itisconditionalwherethesalecontemplatesa
b. Sale of a right (assignment of a
contingency,andingeneral,wherethecontractis
right, or a credit or other
subject to certain conditions, usually in the case
intangibles such as copyright,
of the vendee, the full payment of the agreed
trademark,orgoodwill);
purchasepriceandinthecaseofthevendor,the

fulfillmentofcertainwarranties.(DeLeon,p.15)
Note: An intangible object is a

choseinaction.

4. Validityordefectofthetransaction:

a. Valid

b. Rescissible

c. Voidable

d. Unenforceable

e. Void

5. Legalityoftheobject:

a. Licitobject
229

Q: Distinguish a conditional sale from an B.ESSENTIALREQUISITES
absolutesale OFACONTRACTOFSALE

A: Q:Whataretheelementsofacontractofsale?
CONDITIONALSALE ABSOLUTESALE
Onewherethetitleto A:ANE
Onewheretheselleris thepropertyisnot 1. Accidental elements dependent on
grantedtherightto reservedtotheselleror partiesstipulations;Examples:
unilaterallyrescindthe ifthesellerisnot a. Conditions
contractpredicatedon grantedtherightto b. Interest
thefulfillmentornon rescindthecontract c. time&placeofpayment
fulfillment,asthecase basedonthefulfillment d. penalty
maybe,ofthe ornonfulfillment,asthe

prescribedcondition. casemaybe,ofthe
2. Natural elements those that are
prescribedcondition.
inherent even in absence of contrary
Contracts,firstthe
provision.
contracttosell(whichis
conditionalor E.g.warranties
preparatorysale)and
Contractexecuted 3. Essentialelementsforvalidity:
second,thefinaldeedof
betweenthesellerand a. Consent
saleortheprincipal
thebuyer b. Determinatesubjectmatter
contractwhichis
executedafterfull c. Consideration
paymentofthepurchase
price Q:Whatistheeffectand/orconsequenceofthe
absenceofconsentoftheownerinacontractof
Q:Whatistheeffectofthenonperformanceof saleofsaidproperty?
the condition or if the condition did not take
place? A: The contract of sale is void. One of the
essentialrequirementsofavalidcontractofsale
A: Where the obligation of either party to a istheconsentoftheowneroftheproperty.
contractofsaleissubjecttoanyconditionwhich
is not performed, such party may refuse to FORMALITIESREQUIRED
proceed with the contract or he may waive
performance of the condition. Unlike in a non Q:Isthereaformalrequirementforthevalidity
fulfillmentofawarrantywhichwouldconstitutea ofacontractofsale?
breachofthecontract,thenonhappeningofthe
condition, although it may extinguish the A:
obligation upon which it is based, generally does GR: No form is required. It is a consensual
notamounttoabreachofacontractofsale. contract.(Pineda,p.78)

Q:Inasalewithassumptionofmortgage,isthe XPN: Under Statute of Frauds, the following
assumption of mortgage a condition without contracts must be in writing; otherwise, they
which there will be no perfected contract of shallbeunenforceable:
sale? 1. Saleofpersonalpropertyatapricenot
lessthanP500;
A:Yes.Insaleswithassumptionofmortgage,the 2. Sale of a real property or an interest
assumption of mortgage is a condition to the therein;
sellers consent so that without approval by the 3. Sale of property not to be performed
mortgagee, no sale is perfected (Ramos v. Court withinayearfromthedatethereof;
ofAppeals,G.R.No.108294Sept.15,1997) 4. When an applicable statute requires
thatthecontractofsalebeinacertain
form.(Art.1403,par.2)

Note: Statute of Frauds applies only to executory
contracts but not to partially executed contracts.
(Pineda,p.81)

230 CIVILLAWTEAM:

SALES
Q: Are there instances where the Statute of B.OPTIONCONTRACT

Frauds is not essential for the validity of a
contractofsale? Q:Whatisanoptioncontract?

A:Yes. A: A contract granting a privilege in one person,
1. When there is a note or memorandum forwhichhehaspaidaconsideration,whichgives
inwritingandsubscribedtobytheparty him the right to buy certain merchandise or
orhisagent(containsessentialtermsof specified property, from another person, at
thecontract); anytimewithintheagreedperiod,atafixedprice.
2. When there has been partial Note: Consideration in an option contract may be
performance/execution (seller delivers anything or undertaking of value, unlike in sale
with the intent to transfer title/receives whereitmustbeapricecertaininmoney.
price);
3. When there has been failure to object Q:Whatisthenatureofanoptioncontract?
to presentation of evidence aliunde as
to the existence of a contract without A:Itisapreparatorycontractinwhichoneparty
beinginwritingandwhichiscoveredby grants to another, for a fixed period and at a
theStatuteofFrauds; determined price, the privilege to buy or sell, or
4. When sales are effected through todecidewhetherornottoenterintoaprincipal
electroniccommerce.(Villanueva,p.92) contract. It binds the party who has given the
option not to enter into the principal contract
C.STAGESOFACONTRACTOFSALE with any other person during the period
designated, and within that period, to enter into
Q: What are the 3 stages involved in the suchcontractwiththeonewhomtheoptionwas
formationofacontractofsale? granted, if the latter should decide to use the
option.Itisaseparateanddistinctcontract.
A:
1. Negotiation/Policitation Note:Iftheoptionisperfected,itdoesnotresultin
2. Perfection the perfection or consummation of the sale. (Diaz,
3. Consummation p.7)

1.NEGOTIATION/PREPARATORY Q:Whatistheperiodwithinwhichtoexercise
theoption?
A.OFFER
A:
Q:Whataretherulesintheconceptionstage
1. Withinthetermstipulated
abouttheoffer?
2. Ifthereisnostipulation,thecourtmay
fixtheterm
A:

OFFERIS
RULE Notes:Anactionforspecificperformancetoenforce
FLOATED
theoptiontopurchasemustbefiledwithin10years
ANDITIS: fromthetimethecauseofactionaccrues.
Priortoacceptance,maybe
Offeris withdrawnatwillbyofferorbutno The implied renewal of the lease on a monthto
floated authoritytomodifyit monthbasisdidnothavetheeffectofextendingthe
life of the option to purchase which expired at the
Mustbeacceptedwithintheperiod, endoftheoriginalleaseperiod.Thelessoriscorrect
otherwise,extinguishedattheendof inrefusingtosellonthegroundthattheoptionhad
Witha periodandmaybewithdrawnatwill expired.(2001BarQuestion)
period byofferorbutmustnotbearbitrary,
otherwise,liablefordamages Q:Howisanoptionexercised?
Extinguishedbyhappening/non
Witha
happeningofcondition A:Anoticeofacceptancemustbecommunicated
condition
toofferorevenwithoutactualpaymentaslongas
without Continuestobevaliddependingupon paymentisdeliveredintheconsummationstage.
period/ circumstancesoftime,placeand
condition person
Witha
counter Originalofferisextinguished
offer
231

Q:Whatistheeffectofaseparateconsideration Q:NDCandFirestoneenteredintoacontractof
inanoptioncontract? lease wherein it is stipulated that Firestone has
the right of first refusal to purchase the leased
A: property "should lessor NDC decide to sell the
1. Withseparateconsideration: same. After the rumor that NDC will transfer
a. Contractisvalid thelottoPUP,Firestoneinstitutedanactionfor
b. Offeror cannot withdraw offer specific performance to compel NDC to sell the
untilafterexpirationoftheoption property in its favor. PUP moved to intervene
c. Is subject to rescission & damages arguing that the Memorandum issued by then
butnotspecificperformance President Aquino ordered the transfer of the
whole NDC compound to the Government,
2. Withoutseparateconsideration: which in turn would convey it in favor of PUP.
a. the option contract is not deemed CanFirestoneexerciseitsrightoffirstrefusal?
perfected
b. offer may be withdrawn at any A: Yes. It is a settled principle in civil law that
timepriortoacceptance when a lease contract contains a right of first
refusal, the lessor is under a legal duty to the
Note: However, even though the option was not lessee not to sell to anybody at any price until
supported by a consideration, the moment it was afterhehasmadeanoffertoselltothelatterata
accepted,contractofsaleisperfected.(Art.1324) certainpriceandthelesseehasfailedtoacceptit.
The lessee has a right that the lessor's first offer
Q: What is the effect of acceptance and shallbeinhisfavor.(PUPv.CA,G.R.No.143513,
withdrawaloftheoffer? Nov.14,2001)

A: If the offer had already been accepted and Q: In a 20year lease contract over a building,
such acceptance has been communicated to the lessee is expressly granted a right of first
before the withdrawal is communicated, the refusalshouldthelessordecidetosellboththe
acceptance creates a perfected contract, even if land and building. However, the lessor sold the
noconsiderationwasasyetpaidfortheoption. propertytoathirdpersonwhoknewaboutthe
lease and in fact agreed to respect it.
Inwhichcase,iftheofferordoesnotperformhis Consequently,thelesseebringsanactionagainst
obligationsundertheperfectedcontract,heshall both the lessorseller and the buyer (a) to
be liable for all consequences arising from the rescind the sale and (b) to compel specific
breach thereof based on any of the available performance of his right of first refusal in the
remedies such as specific performance, or sense that the lessor should be ordered to
rescissionwithdamagesinbothcases. execute a deed of absolute sale in favor of the
lessee at the same price. The defendants
C.RIGHTOFFIRSTREFUSAL contend that the plaintiff can neither seek
rescission of the sale nor compel specific
Q:Whatistherightoffirstrefusal? performance of a "mere" right of first refusal.
Decidethecase.
A: It is a right of first priority, all things and
conditionsbeingequal;identityofthetermsand A:
conditions offered to the optionee and all other a. The action filed by the lessee, for both
prospective buyers, with optionee to enjoy the rescission of the offending sale and
rightoffirstpriority.Itcreatesapromisetoenter specificperformanceoftherightoffirst
into a contract of sale and it has no separate refusal which was violated, should
consideration. prosper.Therulingin(EquatorialRealty
Development, Inc. v. Mayfair Theater,
Note:Adeedofsaleexecutedinfavorofa3rdparty Inc.,G.R.No.106063,Nov.21,1996),a
who cannot be deemed a purchaser in good faith, case with similar facts, sustains both
and which is in violation of the right of first refusal rightsofactionbecausethebuyerinthe
grantedtotheoptioneeisvalidbutrescissible.(Arts. subsequent sale knew the existence of
1380,1381[1])
rightoffirstrefusal,hence,inbadfaith.

b. The action to rescind the sale and to
compeltherightoffirstrefusalwillnot
prosper. (Ang Yu Asuncion v. CA, G.R.
232 CIVILLAWTEAM:

SALES
No. 109125, Dec. 2, 1994). The court Note:Itisapplicableonlytoexecutorycontractsand

ruledthattherightoffirstrefusalisnot not to contracts which are totally or partially
foundeduponacontractbutonaquasi performed.
delictual relationship covered by the
principlesofhumanrelationsandunjust If aparticular form is requiredunderthe Statute of
enrichment (Art 19, et seq. Civil Code). Frauds: sale is valid & binding between the parties
Hence,theonlyactionthatwillprosper butnotto3rdpersons.
according to the Supreme Court is an
action for damages in a proper forum Q:Maytherightoffirstrefusalbewaived?
forthepurpose.(1998BarQuestion)

A: Yes. Like other rights, the right of first refusal

Note:Theofferofthepersoninwhosefavortheright
offirstrefusalwasgivenmustconformwiththesame may be waived or when a party entered into a
termsandconditionsasthosegiventotheofferee. compromiseagreement.(Diaz,p.55)
Q:AndresleasedhishousetoIrisforaperiodof Q: Differentiate an option contract from a right

2years,attherateofP25,000monthly,payable offirstrefusal.
annuallyinadvance.Thecontractstipulatedthat
it may be renewed for another 2year period A:Anoptioncontractisapreparatorycontractin
upon mutual agreement of the parties. The which one party grants to another, for a fixed
contractalsograntedIristherightoffirstrefusal periodandatadeterminedprice,theprivilegeto
topurchasethepropertyatanytimeduringthe buyorsell,ortodecidewhetherornottoenter
lease, if Andres decides to sell the property at into a principal contract. It binds the party who
the same price that the property is offered for has given the option not to enter into the
saletoathirdparty.Twentythreemonthsafter principal contract with any other person during
executionoftheleasecontract,Andressoldthe theperioddesignated,andwithinthatperiod,to
housetohismotherwhoisnotathirdparty.Iris enter into such contract with the one whom the
filedanactiontorescindthesaleandtocompel optionwasgranted,ifthelattershoulddecideto
Andres to sell the property to her at the same use the option. It is a separate and distinct
price. Alternatively, she asked the court to contract.
extend the lease for another two years on the
sameterms. Inarightoffirstrefusal,whiletheobjectmaybe
determinate, the exercise of the right would be
Q: Can Iris seek rescission of the sale of the dependent not only on the grantors eventual
propertytoAndresmother? intentiontoenterintoabindingjuridicalrelation
with another but also on terms, including the
A: Iris can seek rescission because pursuant to price,thatareyettobefirmedup.(Diaz,p.54)
EquatorialRealtyCo.v.MayfairTheaterrescission
isareliefallowedfortheprotectionofoneofthe
contracting parties and even third persons from OPTION RIGHTOFFIRST
all injury and damage the contract of sale may CONTRACT REFUSAL
causeortheprotectionofsomeincompatibleand Principalcontract; Accessory;cannotstand
standsonitsown onitsown
preferredright.
Needs separate Doesnotneedseparate
consideration consideration
Q: Will the alternative prayer for extension of
Theremustbesubject
theleaseprosper? Subjectmatter&price
matterbutpricenot
mustbevalid
important
A:No,theextensionoftheleaseshouldbeupon
Notconditional Conditional
the mutual agreement of the parties. (2008 Bar
Notsubject tospecific Subjecttospecific
Question)
performance performance
Q:Isitnecessarythattherightoffirstrefusalbe
embodiedinawrittencontract?
A:Yes,thegrantofsuchrightmustbeclearand
express.
233

D.POLICITATION/MUTUALPROMISETOBUY interest on thecontract to the time the contract
ANDSELL/ comes into existence the perfection stage upon
the concurrence of the essential elements
Q:Whatispolicitation? thereof. (Sps. Raet & Sps. Mitra v. CA, G.R. No.
128016,Sept.17,1998)
A: Policitation is defined as an unaccepted
unilateralpromisetobuyorsell.Thisproducesno Q: Severino executed two deeds when he sold
judicialeffectandcreatesnolegalbond.Thisisa hispropertytoHenrysothatHenrycanobtaina
mereoffer,andhasnotyetbeenconvertedintoa loan with Philam Life. He alsoauthorized Henry
contract. It covers the period from the time the tofileanejectmentsuitagainstthelesseesand
prospective contracting parties indicate interest when the prayer for ejectment was granted,
in the contract to the time the contract is Henrytookpossessionoftheproperty.Severino
perfected.(Villanueva,p.6). now claims ownership over the property
claimingthatthesaleisfictitiousthereforethere
Q: Is there a legal bond already created in the wasnosaletospeakof.IsSeverinoscontention
negotiationstage? correct?

A: None. In negotiation (policitation) stage, the A:No.Thereisaperfectedcontractofsaledueto
offerisfloatedaswellastheacceptance. the second deed of sale in this case. The basic
characteristic of an absolutely simulated or
2.PERFECTION
fictitiouscontractisthattheapparentcontractis
Q:Whenisacontractofsaledeemedperfected? not really desired or intended to produce legal
effectsoralterthejuridicalsituationoftheparties
A: in any way. However, in this case, the parties
GR: It is deemed perfected at the moment already undertook certain acts which were
there is meeting of minds upon the thing directed towards fulfillment of their respective
which is the object of the contract and upon covenantsundertheseconddeed,indicatingthat
theprice.(Art.1475,par.1) they intended to give effect to their agreement.
Further, the fact that Severino executed the two
XPN:Whenthesaleissubjecttoasuspensive deeds, primarily so that Henry could eject the
conditionbyvirtueoflaworstipulation. tenant and enter into a loan/mortgage contract
with Philam Life, is a strong indication that he
Q: Spouses Raet and Mitra negotiated with intendedtotransferownershipofthepropertyto
Gatusaboutthepossibilityofbuyinghisrightsto Henry.Forwhy(HernandoR.Penalosav.Severino
certainunitsatasubdivisiondevelopedbyPhil Santos,G.R.No.133749,Aug.23,2001)
Ville for them to be qualified to obtain loans
fromGSIS.TheypaidanamountforwhichGatus Q: What is the effect of Severinos and Henrys
issued them receipts in her own name. GSIS failure to appear before the notary public who
disapproved their loan application. PhilVille notarizedthedeed?
advisedthemtoseekothersourcesoffinancing.
In the meantime, they were allowed to remain A: None. The nonappearance of the parties
inthesubjectpremises.Isthereaperfectedand beforethenotarypublicwhonotarizedthedeed
enforceable contract of sale or at least an does not necessarily nullify nor render the
agreement to sell over the disputed housing parties' transaction void ab initio. Article 1358,
units? NCConthenecessityofapublicdocumentisonly
forconvenience,notforvalidityorenforceability.
A:None.Therewasnocontractofsaleperfected Whereacontractisnotintheformprescribedby
between the private parties over the said law,thepartiescanmerelycompeleachotherto
property,therebeingnomeetingofthemindsas observe that form, once the contract has been
toterms,especiallyonthepricethereof.Atbest, perfected.
only a proposed contract to sell obtained which
did not even ripen into a perfected contract due Note: Contracts are obligatory in whatever form
they may have been entered into, provided all
at the first instance to private respondents'
essentialrequisitesarepresent.(Penalosav.Santos,
inability to secure approval of their GSIS housing
G.R.No.133749,Aug.23,2001)
loans. As it were, petitioners and private

respondents have not hurdled the negotiation
phaseofacontract,whichistheperiodfromthe
time the prospective contracting parties indicate
234 CIVILLAWTEAM:

SALES
Q:Whenisanauctionsaleperfected? D.OBLIGATIONSCREATED
A: A sale by auction is perfected when the OBLIGATIONSOFTHEBUYER

auctioneerannouncesitsperfectionbythefallof
thehammer,orinothercustomarymanner.(Art. Q:Whataretheobligationsofthebuyer?
1476,par.2)
A:
Q: Does the seller have the right to bid in an 1. Paymentoftheprice
auctionsale? GR:Sellerisnotboundtodeliverunless
thepurchasepriceispaid
A: Yes. The seller has the right to bid provided XPN: A period of payment has been
thatsuchrightwasreservedandnoticewasgiven fixed
tothateffect.(Pineda,p.53) 2. Acceptdeliveryofthingsold
3. Payforexpensesofdelivery
Q:Whenisasaleofforeignexchangeconsidered
perfected? Note: A grace period granted the buyer in case of
failure to pay is a right not an obligation. Non
A: A sale of foreign exchange is considered payment would still generally require judicial or
perfected from the moment the Bangko Sentral extrajudicialdemandbeforedefaultcanarise.
ng Pilipinas authorizes the purchase, even if the
foreign bank has not yet honored the letter of Q:Whataretheotherobligationsofthebuyer?
credit. (Pacific Oxygen and Acetylene Co. v.
CentralBank,G.R.No.L21881,Mar.1,1968) A:
1. To take care of the goods without the
3.CONSUMMATION obligation to return, where the goods
are delivered to the buyer and he
Q: How does the consummation stage in a rightfullyrefusestoaccept;
contractofsaletakeplace?
Note:Thegoodsinthebuyerspossession
A: It takes place by the delivery of the thing areatthesellersrisk.
togetherwiththepaymentoftheprice.
2. To be liable as a depositary if he
Q: A and PDS Development Corp. executed a voluntarilyconstitutedhimselfassuch;
contract to sella parcel of land. A died without 3. To pay interest for the period between
having completed the installment on the delivery of the thing and the payment
property. His heirs then took over the contract ofthepriceinthefollowingcases:
tosellandassumedhisobligationsbypayingthe a. shouldithavebeenstipulated;
sellingpriceofthelotfromtheirownfunds,and b. shouldthethingsoldanddelivered
completed the payment. To whom should the producesfruitsorincome;or
finalDeedofAbsoluteSalebeexecutedbyPDS? c. should he be in default, from the
time of judicial or extrajudicial
A:Havingsteppedintotheshoesofthedeceased demand for the payment of the
with respect to the said contract, and being the price.
oneswhocontinuedtopaytheinstallmentsfrom
their own funds, As heirs became the lawful OBLIGATIONSOFTHESELLER
ownersofthesaidlotinwhosefavorthedeedof
absolute sale should have been executed by Q:Whataretheobligationsoftheseller?
vendor PDS. (Dawson v. Register of Deeds of
QuezonCity,G.R.No.120600Sept.22,1998) A:DDTWTP
1. Deliverthethingsold;
2. Deliver fruits & accessions/accessories
accruingfromperfectionofsale;
3. Transfertheownership;
4. Warranties;
5. Takecareofthething,pendingdelivery,
withproperdiligence;
6. Payfortheexpensesofthedeedofsale
unless there is a stipulation to the
contrary
235

E.CHARACTERISTICSOFACONTRACTOFSALE 2. Barter
SALE BARTER

Considerationisgiving Considerationis
Q: What are the characteristics of a contract of
ofmoneyaspayment givingofathing
sale?
Ifconsiderationconsistspartyinmoney&partlyby

thinglookatmanifestintention;
A: IfintentionisnotclearArt.1468
1. Consensual Valueofthingisequal Valueofthingismore
2. Bilateral orlessthanamountof thanamountofmoney=
3. GR:Commutative money=Sale Barter
Bothare governedbylawonsales
XPN: Aleatory In some contracts of
sale,whatonereceivesmayintimebe
greater or smaller than what he has 3. AgencytoSell
given.(Tolentino,p.2,2000ed) SALE AGENCYTOSELL
4. Principal
Agentnotobligedtopay
5. Title and not a mode of acquiring Buyerpaysforprice forprice;must
ownership ofobject accountforthe
6. Onerous proceedsofthesale.
7. Reciprocal Principalremainsthe
8. Nominate Buyerbecomes ownerevenifthe
ownerofthing objectdeliveredto
Q: Is a contract of sale identified as such based agent
on the nomenclature given to the contract by Agentassumesnopersonal
theparties? Sellerwarrants liabilityaslongas
withinauthoritygiven
A: No. Contracts are not defined by the parties Mayberevoked
Notunilaterally
butbyprinciplesoflaw.Todeterminethenature unilaterallyevenw/o
revocable
of the contract, the courts are not bound by the ground
name or title given to it by the contracting Sellerreceivesprofit Agentnotallowedtoprofit
parties. It is the intention of the parties which Realcontract Personalcontract
controls. (Diaz, Law on Sales as expounded by
Jurisprudence,2006ed.,p.1) 4. DacionenPago
SALE DACIONENPAGO
Q: What are the factors to be considered in
determiningthenatureofthecontract? Nopreexisting Contractwherepropertyis
A: credit alienatedtoextinguishpre
1. Languageofthecontract existingcredit/debt
2. Conductofparties Buyerseller Novatescreditordebtor
relationship relationshipintosellerbuyer

F.DISTINCTIONSOFTHECONTRACTOFSALE
WITHOTHERCONTRACTS 5. Lease

Q:DistinguishSalefromthefollowing: SALE LEASE
Useofthingisfor
1. Donation. Obligationtoabsolutely
specifiedperiodonly
transferownershipof
withobligationto
thing
SALE DONATION return
Onerous Gratuitous/onerous Considerationisthe
Considerationistheprice
Consensual Formalcontract rental
Sellerneedstobeownerof
LawonSales LawonDonation thingtotransfer
ownership.
Lessorneednotbe
Note:Leasewithoptionto owner
buyreallyacontractof
salebutdesignatedas
leaseinname.

236 CIVILLAWTEAM:

SALES
G.CONTRACTTOSELL document entitled "Receipt of Down Payment"

in favor of Alcaraz for the purchase of their
Q:Whatisacontracttosell? house and lot, with the condition that Ramona
will make a down payment upon execution of
A: It is one form of conditional sale where the document. The Coronels would then cause
ownership or title is retained by the seller until the transfer of the property in the name of
thefulfillmentofapositivesuspensivecondition, Ramonaandwillexecuteadeedofabsolutesale
normally the payment of the purchase price by in favor of Ramona. Ramona paid the
thebuyerinthemanneragreedupon.(Gomezv. downpayment as agreed. Is there a perfected
CA,et.al.,G.R.120747,Sept.21,2000) contractofsaleoramerecontracttosell?
Q: Distinguish a contract to sell from a contract A:Theagreementcouldnothavebeenacontract

ofsale. tosellbecausethesellershereinmadenoexpress
reservation of ownership or title to the subject
A:
parcel of land. The Coronels had already agreed
CONTRACTOFSALE CONTRACTTOSELL
tosellthehouseandlottheyinheritedfromtheir
Asregardstransferofownership
father, completely willing to transfer full
Ownershipistransferred
ownership of the subject house and lot to the
tothebuyerupon Ownershipis
buyer if the documents were then in order.
deliveryoftheobjectto transferreduponfull
him. paymentofthe However, the TCT was then still in the name of
Note:Vendorhaslost purchaseprice. theirfather,thatiswhytheycausedtheissuance
andcannotrecover Note:Priortofull of a new TCT in their names upon receipt of the
ownershipuntiland payment,ownershipis downpayment.AssoonasthenewTCTisissued
unlessthecontractis retainedbytheseller. in their names, they were committed to
resolvedorrescinded immediately execute the deed of absolute sale.
Astonumbersofcontractsinvolved Only then will the obligation of the buyer to pay
Therearetwocontracts: the remainder of the purchase price arise. This
1.Thecontracttosell suspensive condition was fulfilled. Thus, the
conditional contract of sale became obligatory,
Note:Conditionalor the only act required for the consummation
preparatorysale thereof being the delivery of the property by
Thereisonlyone
means of the execution of the deed of absolute
contractexecuted
2.Thedeedofabsolute sale in a public instrument, which they
betweenthesellerand
sale unequivocally committed themselves to do as
thebuyer.

evidenced by the "Receipt of Down Payment."
Note:Theprincipal
(Coronel, et al. v. CA, G.R. No. 103577, Oct. 7,
contractisexecuted
1996)
afterfullpaymentofthe
purchaseprice.
Q: Instead of executing a deed of Absolute Sale
Paymentasacondition
in favor of Ramona, the Coronels sold the
Fullpaymentofthe
Nonpaymentofthe priceisapositive
property to Catalina and unilaterally and
priceisaresolutory suspensivecondition. extrajudicially rescinded the contract with
condition.Vendorloses Note:Failuretofully Ramona. Ramona then filed a complaint for
ownershipoverthe paythepriceisnota specific performance. Will Ramonas action
propertyandcannot breachbutanevent prosper?
recoverituntiland thatpreventsthe
unlessthecontractis obligationofthevendor A: Yes. Under Article 1187, the rights and
resolvedorrescinded. toconveytitlefrom obligations of the parties with respect to the
becomingeffective. perfected contract of sale became mutually due
Remediesavailable and demandable as of the time of fulfillment or
1. Specific occurrence of the suspensive condition. Hence,
2. Performance 1. Resolution petitionersellers' act of unilaterally and
3. Rescission 2. Damages extrajudicially rescinding the contract of sale
4. Damages cannot be justified, there being no express
stipulation authorizing the sellers to
extrajudicially rescind the contract of sale.
Q: Having agreed to sell property which they
(Coronel, et al. v. CA, G.R. No. 103577, Oct. 7,
inheritedfromtheirfather,whichwasthenstill
1996)
intheirfathersname,theCoronelsexecuteda
237

Q:Whataretheinstanceswhenwhatisinvolved a. whenaseparationofpropertywas
isacontracttosell? agreed upon in the marriage
settlements;or
A: b. when there has been a judicial
1. Wheresubjectmatterisindeterminate separation of property agreed
2. Saleoffuturegoods uponbetweenthem
3. Stipulation that deed of sale &
corresponding certificate of sale would B.ABSOLUTEINCAPACITY
beissuedonlyafterfullpayment
Q:Whoarethoseabsolutelyincapacitatedto
II.PARTIESTOACONTRACTOFSALE enterintoacontractofsale?

Q:Whoarethepartiestoacontractofsale? A:
1. Unemancipatedminors(Art.1327,NCC);
A: 2. Insaneordementedpersons,anddeaf
1. Selleronewhosellsandtransfersthe mutes who do not know how to write
thingandownershiptothebuyer (Art.1327,NCC)
2. Buyer one who buys the thing upon
payment of the consideration agreed Q: May a capacitated person file an action for
upon annulment using as basis the incapacity of the
incapacitatedparty?
A.CAPACITYOFTHEPARTIES
A: No. He is disqualified from alleging the
Q:Whomayenterintoacontractofsale? incapacityofthepersonwhomhecontracts(Art.
1397,NCC);
A:
GR:Anypersonwhohascapacitytocontract Q: In a defective contract, where such defect
or enter into obligations, may enter into a consists in the incapacity of a party, does the
contractofsale,whetheraspartyselleroras incapacitated party have an obligation to make
partybuyer. restitution?

XPN: A:
1. Minors, insane and demented persons GR:heincapacitatedpersonisnotobligedto
and deafmutes who do not know how makeanyrestitution.
towrite XPN:insofarashehasbeenbenefitedbythe
2. Persons under a state of drunkenness thing or price received by him. (Art. 1399,
orduringhypnoticspell NCC)
3. Husband and wife sale by and
betweenspouses C.RELATIVEINCAPACITY

Note:Contractsofsaleenteredbysuchlegally
Q: Who are those relatively incapacitated to
incapacitated persons are merely voidable,
enterintoacontractofsale?
subject to annulment or ratification. However,
the action for annulment cannot be instituted
by the person who is capacitated since he is A:
disqualified from alleging the incapacity of the 1. Spouses(Art.1490,NCC)
personwithwhomhecontracts. 2. Agents, Guardians, Executors and
Administrators, Public Officers and
However,statusofprohibitedsalesbetween Employees, Court Officers and
spousesisnotmerelyvoidable,butnulland Employees, and others specially
void. disqualifiedbylaw.(Art.1491,NCC)

XPNtoXPN: Note: Under Art. 1490 of the NCC, spouses cannot
sellpropertytoeachother,except:
1. Where necessaries are sold and
delivered to a minor or other person a. When a separation of property was
without capacity to act, he must pay a agreedinthemarriagesettlements;or
reasonablepricetherefor. b. Whentherehasbeenajudicialseparation
2. Incaseofsalebetweenspouses: ofpropertyagreeduponbetweenthem.

238 CIVILLAWTEAM:

SALES
Q:Whatisthestatusofthefollowingcontracts XPN: Even when the property

ofsale? regimeprevailingwastheconjugal
partnership of gains, the Supreme
A: Courtheldthesalebythehusband
1. Thatenteredintobyminors: ofaconjugalpropertywithoutthe
a. Merely voidable, subject to consent of the wife is void, not
annulmentorratification merely voidable under Art. 124 of
b. Action for annulment cannot be theFamilyCodesincetheresulting
instituted by the person who is contract lack one of the essential
capacitatedsinceheisdisqualified elements of full consent. (Guiang
from alleging the incapacity of the v. CA, G.R. No. 125172, June 26,
person with whom he contracts 1998)
(withpartialrestitutioninsofaras
the minor is benefited) where 3. Between Common Law Spouses also
necessaries are sold and delivered nullandvoid.
toaminororotherpersonwithout
capacity to act, he must pay a In CalimlimCanullas v. Fortun, the
reasonableprice(Art.1489) Court decided that sale between
common law spouses is null and void
2. Saleby&betweenspouses(Art.1490): because Art. 1490 prohibits sales
a. Statusofprohibitedsalesbetween between spouses to prevent the
spouses: exercise of undue influence by one
GR:Nullandvoid spouse over the other, as well as to
protectthe institutionofmarriage.The
XPN: In case of sale between prohibitionappliestoacouplelivingas
spouses: husband and wife without the benefit
ofmarriage,otherwise,theconditionof
i. When a separation of those incurred guilt would turn out to
property was agreed upon in be better than those in legal union.
themarriagesettlements;or (CalimlimCanullasv.Fortun,et.al.,G.R.
ii. When there has been a No.L57499,June22,1984)
judicialseparationofproperty
agreeduponbetweenthem But when the registered property has
beenconveyedsubsequentlytoathird
Reasons: partybuyeringoodfaithandforvalue,
i. Preventdefraudingcreditors then reconveyance is no longer
ii. Avoid situation where available to commonlaw spouseseller,
dominant spouse takes since under the Torrens system every
advantage over the weaker buyer has a right to rely upon the title
spouse ofhisimmediateseller.(Cruzv.CA,G.R.
iii. Avoid circumvention on No.120122,Nov.6,1997)
prohibition of donation
betweenspouses Q:Whohastherighttoassailthevalidityofthe
transactionbetweenspouses?
rd
b. Contractofsalewith3 parties:
GR: Under the law on sales, it A:Thefollowingaretheonlypersonswhocan
would seem that a spouse may, questionthesalebetweenspouses:
without the consent of the other 1. The heirs of either of the spouses who
spouse, enter into sales havebeenprejudiced;
transactions in the regular or 2. Priorcreditors;and
normal pursuit of their profession, 3. The State when it comes to the
vocationortrade.(inrelationwith paymentofthepropertaxesdueonthe
Art.73,FamilyCode) transactions

239

Q:Whoarethepersonswithrelativeincapacitytobethevendeeinacontractofsale?

A:AGECOP
RELATIVELY RATIFICATION
PROPERTIESINVOLVED STATUSOFSALE
INCAPACITATEDTOBUY
Propertyentrustedtothemfor
administrationorsale
Agents
XPN:Whenprincipalgavehis
Canberatifiedafterthe
consent
inhibitionhasceased
Propertyofthewardduring

periodofguardianship
Reason:theonlywrongthat
subsistsistheprivatewrong
Note:Contractsenteredby Voidable totheward,principalor
Guardian guardianinbehalfofwardare estate;andcanbecondoned
rescissibleifwardsufferslesion bytheprivateparties
bymorethanofthevalueof themselves
property.
Executorsand Propertyoftheestateunder
administrators administration
Propertyandrightsinlitigationor
Courtofficersand Cannotberatified
leviedupononexecutionbefore
employees
thecourtundertheirjurisdiction
Void Reason:Itisaprivatewrong.
Othersspecially
(Villanueva,LawonSales,p.
disqualifiedbylaw
Pubicofficersand PropertyoftheStateentrustedto 3031)
employees themforadministration

Note:Prohibitionsareapplicabletosalesinlegalredemption,compromisesandrenunciations.

InthecaseofRubiasv.Batiller(51SCRA120),itsoughttodeclarethedifferenceinthenullitybetweencontracts
enteredintobyguardians,agents,administratorsandexecutors,fromthecontractsenteredintobyjudges,judicial
officers,fiscalsandlawyers.
240 CIVILLAWTEAM:

SALES
D.SPECIALDISQUALIFICATIONS
Q:Whoarethosepersonsspeciallydisqualified
bylawtoenterintocontractsofsale?
A:ALIENUnOS
1. ALIENswhoaredisqualifiedtopurchase
privateagriculturallands(Art.XIISecs.3
&7)
2. Unpaid seller having a right of lien or
havingstoppedthegoodsintransitu,is
prohibitedfrombuyingthegoodseither
directlyorindirectlyintheresaleofthe
same at public/private sale which he
maymake(Art.1533[5];Art.1476[4])
3. The Officer holding the execution or
deputy cannot become a purchaser or
be interested directly or indirectly on
any purchase at an execution. (Sec. 21
Rule39,RulesofCourt)
4. In Sale by auction, seller cannot bid
unless notice has been given that such
saleissubjecttoarighttobidinbehalf
oftheseller.(Art.1476)
Q: Atty. Leon G. Maquera acquired his clients

property as payment for his legal services, then
sold it and as a consequence obtained an
unreasonable high fee for handling his clients
case.Didhevalidlyacquirehisclientsproperty?
A: No. Article 1491 (5) of the New Civil Code

prohibits lawyers acquisition by assignment of
the clients property which is the subject of the
litigation handled by the lawyer. Also, under
Article 1492, the prohibition extends to sales in
legal redemption. (In Re: Suspension from the
Practice of Law in the territory of Guam of Atty.
LeonG.Maquera,B.M.No.793,July30,2004)

241

III.SUBJECTMATTEROFSALE Note:Wherelandissoldforalumpsumandnotso
much per unit of measure or number, the
A.REQUISITESOFAVALIDSUBJECTMATTER boundaries of the land stated in the contract
determinetheeffectsandscopeofthesale,notthe
areathereof.Thevendorsareobligatedtodeliverall
Q:Whataretherequisitesofaproperobjectof the land included within the boundaries, regardless
sale? of whether the real area should be greater or
smaller than that recited in the deed. This is
A: particularly true where the area is described as
1. Things "humigitkumulang,"thatis,moreorless.(Semirav.
a. Determinateordeterminable CA,G.R.No.76031,Mar.2,1994)
b. Lawful (licit), otherwise contract is
void Q:Canrightsbetheobjectsofsale?
c. Should not be impossible (within
thecommerceofmen) A:Yes,iftheyaretransmissible.(Art.1347)

2. Rights
B.PARTICULARKINDS
GR:Mustbetransmissible.
XPN: Q:Whatmaybeobjectsofsale?
a. Futureinheritance
b. Service cannot be the object of A:
sale. They are not determinate 1. Existing Goods owned/ possessed by
things and no transfer of selleratthetimeofperfection
ownershipisavailablebutitcanbe
theobjectofcertaincontractssuch 2. Future Goods goods to be
uas contract for a piece of work. manufactured,raised,acquiredbyseller
(Pineda,Sales,2002ed.,p.13) after perfection of the contract or
whose acquisition by seller depends
Q:RodriguezfirstpurchasedaportionofaLotA uponacontingency(Art.1462)
consisting of 345 square meters located in the
middle of Lot B, which has a total area of 854 Note: Sale of future goods is valid only as an
executory contract to be fulfilled by the acquisition
square meters, from Juan. He then purchased
&deliveryofgoodsspecified.
another portion of said lot. As shown in the
3. SaleofUndividedInterestorShare
receipt, the late Juan received P500.00 from
a. Sole owner may sell an
Rodriguez as "advance payment for the
undividedinterest.(Art.1463)
residential lot adjoining his previously paid lot
Ex.Afractionorpercentageof
onthreesidesexceptingonthefrontage.Juans
suchproperty
heirs now contests the validity of the
b. Saleofanundividedshareina
subsequent sale, alleging that the object is not
specific mass of fungible
determinateordeterminable.Decide.
goods makes the buyer a co

owner of the entire mass in
A: Their contention is without merit. There is no
proportion to the amount he
disputethatRodriguezpurchasedaportionofLot
bought.(Art.1464)
Aconsistingof345squaremeters.Thisportionis
c. A coowner cannot sell more
locatedinthemiddleofB,whichhasatotalarea
than his share (Yturralde v.
of 854 square meters, and is clearly what was
CA)
referred to in the receipt as the "previously paid

lot."SincethelotsubsequentlysoldtoRodriguez
4. SaleofThingsinLitigation
issaidtoadjointhe"previouslypaidlot"onthree
a. Sale of things under litigation
sides thereof, the subject lot is capable of being
isrescissibleifenteredintoby
determined without the need of any new
the defendant , without the
contract. The fact that the exact area of these
approvalofthelitigantsorthe
adjoiningresidentiallotsissubjecttotheresultof
court(Art.1381)
asurveydoesnotdetractfromthefactthatthey
b. Norescissionisallowedwhere
aredeterminateordeterminable.Concomitantly,
the thing is legally in the
theobjectofthesaleiscertainanddeterminate. rd
possession of a 3 person
(Heirs of San Andres v. Rodriguez, G.R. No.
135634,May31,2000)
242 CIVILLAWTEAM:

SALES
who did not acted in bad A.SALEBYAPERSONWHODOESNOTOWNTHE

faith. THINGSOLD

5. Things subject to Resolutory Condition. Q:Whatisthestatusofasalebyapersonwho
Ex. Things acquired under legal or doesnotownthethingsubjectofthesale?
conventional right of redemption, or
subjecttoreservatroncal.(Art.1465) A:Itdependsuponthestageofthesale.
1. When seller is not owner at perfection
6. Indeterminate Quantity of Subject stagethesaleisvalid.
Matter Ownershipofthesubjectmatterbythe
a. The fact that the quantity is seller at this stage is not an essential
not determinate shall not be requirementforthevalidityofsale.Itis
an obstacle to the existence necessary at the time of delivery.
of the contract provided it is Hence,avalidcontractofsalecancover
possible to determine the subjectmatterthatisnotyetexistingor
same, without need of a new even a thing having only a potential
contract.(Art.1349) existence at the time of perfection; or
even a thing subject to a resolutory
condition.
IV.OBLIGATIONOFTHESELLER
TOTRANSFEROWNERSHIP Note:Ifthesellerlateracquirestitlethereto
anddeliversit,titlepassesbyoperationof
Q:Shouldthesellerbetheowneratthetimeof law.
perfectionofthecontract?
2. When seller is not owner at
A: consummationstage
GR:No.Sellermusthavetherighttotransfer a. Old view the contract of sale is
ownership at the time of delivery or valid, but the transfer of title is
consummation stage. He need not be the void. (MindanaoAcademy, Inc. v.
owner at the time of perfection of the Yap, G.R. No. L17681, Feb. 26,
contract. 1965)
b. New view the sale by a non
XPN:Foreclosuresalewhereinthemortgagor owner of the subject property is
shouldbetheabsoluteowner. void instead of treating the
tradition/delivery aspect as having
Q: EJ was subjected to a buybust operation no effect on transferring
where police officers posed to buy 500 pesos ownership to the buyer. (DBP v.
worth of S. She was then charged with a CA,G.R.No.110053,Oct.16,1995)
violation of the Dangerous Drugs Act for
traffickingdrugs.EJusesasdefenseherlackof Note:Nemodatquodnonhabetyou
possession of the object of the sale. Would her cannotgivewhatyoudonothave,properly
contentionfreeherfromliability? applicabletotheconsummationofasale.

A: No. Though she was not in possession of the Q: What is the legal effect of sale by a non
object of sale, Article 1459 merely requires that owner?
the vendor must have the right to transfer
ownership of the object sold at the time of A:
delivery. In the case at bar, though Beth is not GR: The buyer requires no better title to the
the owner, she had the right to dispose of the goods than the seller had; caveat emptor
prohibited drug. Ownership was thereafter (buyerbeware).
acquireduponherdeliverytothemeninthealley
after her payment of the price. (People v. XPN:
Ganguso,G.R.No.115430,Nov.23,1995) 1. Estoppel when the owner of the
goodsisbyhisconductprecludedfrom
denyingthesellersauthoritytosell
2. When the contrary is provided for in
recordinglaws
243

3. Whenthesaleismadeunderstatutory existenceaslongas
power of sale or under the order of a thehopeitselfvalidly
courtofcompetentjurisdiction existed.(eg.lotto)
4. When the sale is made in a merchants Note:ThepresumptionisEmptioReiSperatae
store in accordance with the Code of
Commerceandspeciallaws Q: Jose, as coowner, sold the entire land in
5. When a person who is not the owner favor of his minor daughter, Ida. Alleging that
sells and delivers a thing, and Jose had fraudulently registered it in his name
subsequentlyacquiredtitlethereto alone, his sisters, sued him for recovery of 2/3
6. When the seller has a voidable title share of the property. Ida did not pay for the
whichhasnotbeenavoidedatthetime land.Isthesalevalid?
ofthesale
7. Salebycoownerofthewholeproperty A: No. Jose did not have the right to transfer
oradefiniteportionthereof ownership of the entire property to petitioner
8. Specialrightsofunpaidseller since2/3thereofbelongedtohissisters.Also,Ida
couldnothavegivenherconsenttothecontract,
Q: What are the instances when the Civil Code being a minor at the time. Consent of the
recognizes sale of things not actually or already contracting parties is among the essential
ownedbytheselleratthetimeofsale? requisites of a contract, including one of sale,
absent which there can be no valid contract.
A: Moreover,Idaadmittedlydidnotpayanycentavo
1. Sale of a thing having potential for the property, which makes the sale void.
existence(Art.1461,NCC) Article1471oftheCivilCodeprovides:Iftheprice
2. Saleoffuturegoods(Art.1462,NCC) issimulated,thesaleisvoid,buttheactmay be
3. Contract for the delivery at a certain shown to have been in reality a donation, or
price of an article, which the seller in someotheractorcontract.(Labagalav.Santiago,
the ordinary course of business G.R.No.132305,Dec.4,2001)
manufactures/procuresforthegeneral
market,whetherthesameisonhandat
thetimeornot(Art.1467,NCC) V.PRICE

B.SALEBYAPERONHAVINGAVOIDABLETITLE A.MEANINGOFPRICE

Q:Whatistheeffectofasalemadebytheseller Q:Whatisaprice?
withvoidabletitleovertheobject?
A: Price signifies the sum stipulated as the
A: equivalent of the thing sold and also every
1. Perfectionstage:validbuyeracquires incidenttakenintoconsiderationforthefixingof
titleofgoods thepriceputtothedebitofthebuyerandagreed
2. Consummationstage:validIfthetitle tobyhim.(Villanueva,p.52)
hasnotyetbeenavoidedatthetimeof
saleandthebuyermustbuythegoods B.REQUISITESFORAVALIDPRICE
underthefollowingconditions:
a. Ingoodfaith Q:Whataretherequisitesofprice?
b. Forvalue
c. Withoutnoticeofsellersdefectof A:Mustbe:
title 1. Real
2. Inmoneyoritsequivalent
EMPTIOREISPERATAE EMPTIOSPEI 3. Certain or ascertainable at the time of
Saleofthinghaving Saleofmerehopeor theperfectionofthecontract
potentialexistence expectancy
Uncertaintyisw/regard Uncertaintyisw/regard C.HOWPRICEISDETERMINED
toquantity&quality toexistenceofthing
Contractdealsw/ Q:Whenispricecertain?
Contractdealsw/future
presentthinghope
thing
orexpectancy A:
Saleisvalidonlyifthe Saleisvalideventhough 1. Ifthereisastipulation
expectedthingwill expectedthingdoes 2. If it be with reference to another thing
exist. notcomeinto certain
244 CIVILLAWTEAM:

SALES
3. If the determination of the price is left Q: What is the effect on the contract of sale in
tothejudgmentofspecifiedperson(s) case of a breach in the agreed manner of
4. By reference to certain fact(s) as payment?
referredtoinArt.1472(Art.1469)
A:None.Itisnottheactofpaymentofpricethat
Note:Ifthepriceisbasedonestimates,itis determines the validity of a contract of sale.
uncertain. Payment of the price has nothing to do with the
perfection of the contract, as it goes into the
D.GROSSINADEQUACYOFTHEPRICE performance of the contract. Failure to pay the
consideration is different from lack of
Q:Whatistheeffectofgrossinadequacyof consideration. Failure to pay such results in a
price? righttodemandthefulfillmentorcancellationof
theobligationunderanexistingvalidcontract.On
A: theotherhand,lackofconsiderationpreventsthe
GR:Itdoesnotaffectthevalidityofthesaleif existence of a valid contract. (Sps. Bernardo
itisfixedingoodfaithandwithoutfraud Buenaventura and Consolacion Joaqui v. CA, GR
No.126376,Nov.20,2003)
XPN:CoRDS
1. If Consent is vitiated (may be annulled Q:Ispaymentofthepurchasepriceessentialto
orpresumedtobeequitablemortgage) transferownership?
2. If the parties intended a Donation or
someotheract/contract A:Unlessthecontractcontainsastipulationthat
3. IfthepriceissolowastobeShocking ownership of the thingsold shall not pass to the
totheconscience purchaser until he has fully paid the price,
4. If in the event of Resale, a better price ownershipofthethingsoldshallbetransferredto
canbeobtained the vendee upon the actual or constructive
deliverythereof.(Diaz,p.48)
Note:
GR:Thevalidityofthesaleisnotnecessarilyaffected E.WHENNOPRICEISAGREEDUPONBYTHE
wherethelawgivestheownertherighttoredeem PARTIES
because the lesser the price, the easier it is for the

ownertoeffectredemption.
Q:Whatistheeffectoffailuretodeterminethe
XPN:Whilethereisnodisputethatmereinadequacy
price?
ofthepricepersewillnotsetasideajudicialsaleof
realproperty,nevertheless,wheretheinadequacyof A:
the price is purely shocking to the conscience, such 1. Where contract is executory
thatthemindrevoltsatitandsuchthatareasonable ineffective
manwouldneitherdirectlyorindirectlybelikelyto 2. Where the thing has been delivered to
consenttoit,thesamewillbesetaside.(Cometav. and appropriated by the buyer the
CA351SCRA294) buyer must pay a reasonable price
therefore
Q:Whatistheeffectifthepriceissimulated?
Note: The fixing of the price cannot be left to the
A: discretionofoneoftheparties.However,iftheprice
GR:Contractofsaleisvoid. fixedbyoneofthepartiesisacceptedbytheother,
thesaleisperfected.
XPN:Theactmaybeshowntohavebeenin
realityadonationorsomeotheractor
contract.
Q:Whatisconsideredreasonableprice?
A:Generallythemarketpriceatthetimeand
placefixedbythecontractorbylawforthe
deliveryofthegoods.
245

F.MANNEROFPAYMENT Q: Distinguish the failure to pay the
considerationfromlackofconsideration.
Q: What is the effect of a breach of the agreed
mannerofpaymenttothecontractofsale? A:
FAILURETOPAY LACKOF
A: None. A contract of sale being a consensual CONSIDERATION CONSIDERATION
contract, it becomes binding and valid upon the Astovalidityofcontractofsale
meetingofthemindsastoprice. Itisnottheactofpayment
1. Ifthereissuchmeetingofthemindsas ofpricethatdetermines
to price, the contract of sale is valid, thevalidityofacontractof
despite the manner of payment, or sale.
Lackofconsideration
even the breach of that manner of
preventsthe
payment. Note:Paymentoftheprice
existenceofavalid
hasnothingtodowiththe
2. If the real price is not stated in the contract.
perfectionofthecontract.
contract, then the contract of sale is
Instead,itgoesintothe
validbutsubjecttoreformation.
performanceofthe
3. Ifthereisnomeetingofthemindsasto contract.
thepricebecausethepricestipulatedin Astoresultantright
the contract is simulated, then the Failuretopaythe
contract is void, in accordance with considerationresultsina Thecontractofsaleis
Article 1471 of the Civil Code. (Sps. righttodemandthe nullandvoidand
Buenaventura v. CA, G.R. No. 126376, fulfillmentorcancellation producesnoeffect
Nov.20,2003) oftheobligationunderan whatsoever
existingvalidcontract.
Note: A definite agreement on the manner of
payment of the price is an essential element in the G.EARNESTMONEYVISAVISOPTIONMONEYY
formation of a binding and enforceable contract of
sale.(Cov.CA,G.R.No.123908,Feb.9,1998) OPTIONMONEY

Q: In an action for specific performance with Q:Whatistheeffectoffailuretodeterminethe
damages,Xallegedthattherewasanagreement price?
topurchasethelotofY.Asregardsthemanner
of payment, however, Ys receipts contradicted A:
the testimony of X. The receipts failed to state 1. Where contract is executory
the total purchase price or prove that full ineffective
payment was made. For this reason, it was 2. Where the thing has been delivered to
contended that there was no meeting of their and appropriated by the buyer the
minds and there was no perfected contract of buyer must pay a reasonable price
sale.Decide. therefore

A: The question to be determined should not be Note: The fixing of the price cannot be left to the
whethertherewasanagreedprice,butwhatthat discretionofoneoftheparties.However,iftheprice
agreed price was. The sellers could not render fixedbyoneofthepartiesisacceptedbytheother,
invalid a perfected contract of sale by merely thesaleisperfected.
contradictingthebuyersobligationregardingthe
price, and subsequently raising the lack of Q:Whatisanoptionmoney?
agreement as to the price. (David v. Tiongson,
G.R.No.108169,Aug.25,1999) A:Thedistinctconsiderationincaseofanoption
contract. It does not form part of the purchase
price hence, it cannot be recovered if the buyer
didnotcontinuewiththesale.

Q:Whenispaymentconsideredoptionmoney?

A:Paymentisconsideredoptionmoneywhenitis
given as a separate and distinct consideration
from the purchase price. Consideration in an
option contract may be anything or undertaking
ofvalue.
246 CIVILLAWTEAM:

SALES
EARNESTMONEY Simeonsuddenlyhasachangeofheart,claiming
that the deal is disadvantageous to him as he
Q:Whatisanearnestmoneyorarras? hasfoundoutthatthepropertycanfetchthree
times the agreed purchase price. Bert seeks
A: This is the money given to the seller by the specific performance but Simeon contends that
prospectivebuyertoshowthatthelatteristruly he has merely given Bert an option to buy and
interestedinbuyingtheproperty,anditsaimisto nothing more and offers to return the option
bindthebargain.(Pineda,p.75) moneywhichBertrefusestoaccept.

Q: What is the effect of giving an earnest 1. Will Bert's action for specific
money? performanceprosper?Explain.
2. May Simeon justify his refusal to
A:Itformspartofthepurchasepricewhichmay proceed with the sale by the fact that
bedeductedfromthetotalprice.Italsoservesas the deal is financially disadvantageous
a proof of the perfection of the contract of sale. tohim?Explain.
The rule is no more than a disputable
presumption and prevails only in the absence of A:
contrary or rebuttable evidence. (PNB v CA, 262 1. Bert's action for specific performance
SCRA464,1996) will prosper because there was a
binding agreement of sale, not just an
Note:Optionmoneymaybecomeearnestmoneyif optioncontract.Thesalewasperfected
thepartiessoagree. upon acceptance by Simeon of 10% of
the agreed price. This amount is in
Q: When is payment considered an earnest reality an earnest money which, under
money? Art. 1482, "shall be considered as part
of the price and as proof of the
A: When the payment constitutes as part of the perfection of the contract." (Topacio v.
purchaseprice.Hence,incasewhenthesaledid CA, G.R. No. 102606, July 3, 1992;
not happen, it must be returned to the VillongcoRealtyv.Bormaheco,G.R.No.
prospectivebuyer. L26872,July25,1975).

Q: Distinguish option money from earnest 2. Simeon cannot justify his refusal to
money. proceed with the sale by the fact that
the deal is financially disadvantageous
A: to him. Having made a bad bargain is
OPTIONMONEY EARNESTMONEY not a legal ground for pulling out of a
Moneygivenas bindingcontractofsale,intheabsence
distinct Formspartofthe of some actionable wrong by the other
considerationfor purchaseprice party (Vales v. Villa, G.R. No. 10028,
anoptioncontract Dec. 16, 1916), and no such wrong has
Appliestoasale Givenonlywhenthereis been committed by Bert. (2002 Bar
notyetperfected alreadyasale Question)
Prospectivebuyeris Whengiven,thebuyeris
notrequiredto boundtopaythe
VI.FORMATIONOFCONTRACTOFSALE
buy. balance.

Ifbuyerdoesnot Ifsaledidnotmaterialize,
Note:seeIntroduction,StagesofContractofSale
decidetobuy,it itmustbereturned. pp.230234
cannotbe (Villanueva,p.87,
recovered. Pineda,p.77)
Q: Bert offers to buy Simeon's property under

the following terms and conditions: P1 million
purchase price, 10% option money, the balance
payable in cash upon the clearance of the
property of all illegal occupants. The option
money is promptly paid and Simeon clears the
propertyofallillegaloccupantsinnotimeatall.
However, when Bert tenders payment of the
balance and asks for the deed of absolute sale,
247

VII.TRANSFEROFOWNERSHIP this case, the subject motor vehicle) the thing
sold remained at the sellers risk. The Union
A.MANNEROFTRANSFER Motor should therefore bear the loss of the
subject motor vehicle after its agent allegedly
Q:Whatistheeffectofdelivery? stolethesame.(UnionMotorCorp.v.CA,G.R.No.
117187,July20,2001)
A:
GR:Title/ownershipistransferred Q:Howmaythebuyeracceptthedeliveryofthe
thingsold?
XPN:Contraryisstipulatedasinthecaseof:
1. Pactum reservatii in domini A:
agreement that ownership will remain 1. Express he intimates to sellerthat he
with seller until full payment of price hasaccepted
(Contracttosell); 2. Implied
2. Saleonacceptance/approval; a. Buyer does not act inconsistent
3. Saleonreturn; with ownership of seller after
4. There is implied reservation of delivery
ownership; b. Retainswithoutintimatingtoseller
thathehasrejected
Note:Sellerbearsexpensesofdelivery.
Q: What is the effect if the buyer refuses to
Q: Spouses Bernal purchased a jeepney from acceptdespitedeliveryoftheobjectofthesale?
Union Motor to be paid in installments. They
then executeda promissory note and adeed of A: Delivery is completed. Since delivery of the
chattelmortgageinfavorofUnionMotorwhich subjectmatterofthesaleisanobligationonthe
in turn assigned the same with Jardine Finance. part of the seller, the acceptance thereof by the
Toeffectuatethesaleaswellastheassignment buyer is not a condition for the completeness of
of the promissory note and chattel mortgage, thedelivery.(Villanueva,p.117)
the spouses were required to sign documents,
one of which was a sales invoice. Although the Note: Thus, even with such refusal of acceptance,
Spouses have not yet physically possessed the delivery (actual/constructive), will produce its legal
vehicle, Union Motors agent required them to effects. (e.g. transferring the risk of loss of the
signthereceiptasaconditionforthedeliveryof subject matter to the buyer who has become the
thevehicle.Itwasdiscoveredthatthesaidagent ownerthereof)(Villanueva,p.117)
stolethevehicleevenpriortoitsdeliverytothe
spouses. Was there a transfer of ownership of UnderArt.1588,whenthebuyersrefusaltoaccept
thesubjectvehicle? the goods is without just cause, the title thereto
passes to him from the moment they are placed at

hisdisposal.(Villanueva,p.117)
A: No. The issuance of a sales invoice does not

prove transfer of ownership of the thing sold to
Q:Ispaymentofthepurchasepriceessentialto
the buyer; an invoice is nothing more than a
transferownership?
detailed statement of the nature, quantity and

cost of the thing sold and has been considered
A:Unlessthecontractcontainsastipulationthat
notabillofsale.
ownership of the thingsold shall not pass to the

purchaser until he has fully paid the price,
Theregistrationcertificatesignedbythespouses
ownershipofthethingsoldshallbetransferredto
does not conclusively prove that constructive
the vendee upon the actual or constructive
delivery was made nor that ownership has been
deliverythereof.(Diaz,p.48)
transferred to the respondent spouses. Like the

receipt and the invoice, the signing of the said
Q: What are the effects of a sale of goods on
documentswasqualifiedbythefactthatitwasa
installment?
requirement of Union Motor for the sale and

financingcontracttobeapproved.Inallformsof
A:
delivery, it is necessary that the act of delivery,
1. Goods must be delivered in full except
whether constructive or actual, should be
whenstipulated
coupledwiththeintentionofdeliveringthething.

The act, without the intention, is insufficient.
Inasmuch as there was neither physical nor
constructive delivery of a determinate thing, (in
248 CIVILLAWTEAM:

SALES
2. Whennotexaminedbythebuyeritis c.
c. when the seller of the
notaccepteduntilexaminedoratleast goodsdrawsonthebuyerfor
hadreasonabletimetoexamine the price and transmits the
billofexchangeandthebillof
Q:Whenmaythebuyersuspendpaymentofthe lading to the buyer , and the
price? latter does not honor the bill
of exchange by returning the
A: billofladingtotheseller
GR: 4. WhensaleisnotVALID
1. If he is disturbed in the possession or 5. Whenthesellerisnottheownerofthe
ownershipofthethingbought goods
2. If he has wellgrounded fear that his XPNs:
possession or ownership would be a. Estoppel: when the owner is
disturbed by a vindicatory action or precluded from denying the
foreclosureofmortgage. sellersauthoritytosell
b. Registered land bought in
Note: These grounds are not exclusive. It can good faith: Ratio: Buyer need
only be exercised if the price or any part not go beyond the Torrens
thereofhasnotyetbeenpaidandthecontract title
is not yet consummated. (Art. 1590) If the c. OrderofCourtsinaStatutory
disturbanceis causedby the existence of non Sale
apparentservitude,theremedyisrescission. d. When the goods are
purchased in a Merchants
XPN: store, Fair or Market (Art.
1. Sellergivessecurityforthereturnofthe 1505)
priceinapropercase;
2. A stipulation that notwithstanding any SALEONTRIAL,APPROVALORSATISFACTION
suchcontingency,thebuyermustmake
payment; Q:Whatissaleontrial,approvalorsatisfaction?
3. Disturbance or danger is caused by the
seller; A: It is a contract in the nature of an option to
4. If the disturbance is a mere act of purchaseifthegoodsprovetobesatisfactory,the
trespass; approval of the buyer being a condition
5. Uponfullpaymentoftheprice. precedent.

Q: What are the rules in case of sale on trial,
B.WHENDELIVERYDOESNOTTRANSFERTITLE approvalorsatisfaction?

Q:Whendoesdeliverydoesnottransfertitle? A:

A: Title Remainswithseller
1. SaleonTrial,Approval,orSatisfaction
GR:Bornebyseller
2. When there is an EXPRESS XPN:
RESERVATION RiskofLoss 1. Buyerisatfault
a. If it was stipulated that 2. Buyeragreedto
ownership shall not pass to beartheloss
the purchaser until he has
GR:Buyermustgivegoodsa
fullypaidtheprice(Art.1478) trial
3. When there is an IMPLIED Astotrial XPN:Buyerneednotdosoif
RESERVATION itisevidentthatitcannot
a. a. When goods are shipped, performthework.
but the bill of lading states
Whenperiod
that goods are deliverable to Itrunsonlywhenalltheparts
withinwhichbuyer
the seller or his agent, or to essentialfortheoperationof
mustsignifyhis
the order of the seller or his theobjecthasbeendelivered
acceptanceruns
agent
b. b. When the bill of lading is
retained by the seller or his
agent
249

Validityof b. Allowing buyer to make use of
stipulationthata rd rights
Valid,providedthe3 person
3rdpersonmust 4. Tradition by operation of law
isingoodfath
satisfyapprovalor Execution of a public instrument is
satisfaction equivalent to delivery. But to be
Ifthesaleismade effective, it is necessary that the seller
toabuyerwhois Generally,itcannotbe have such control over the thing sold
anexpertonthe consideredasaleonapproval that,atthemomentofsale,itsmaterial
objectpurchased deliverycouldhavebeenmade.

C.KINDSOFDELIVERY GR:Thereispresumptionofdelivery

Q:Whatarethedifferentkindsofdelivery? XPN:
a. Contrarystipulation;
A: b. When at the time of execution,
1. Actual thing sold is placed under the subject matter was not subject to
controlandpossessionofbuyer/agent; thecontrolofseller;
2. Constructive does not confer physical c. Seller has no capacity to deliver at
possession of the thing, but by timeofexecution;
constructionoflaw,isequivalenttoacts d. Such capacity should subsist for a
ofrealdelivery. reasonable time after execution of
instrument.
Requisites:
a. The seller must have control over Note: Delivery should be coupled with intention of
thething delivering the thing, and acceptance on the part of
b. The buyer must be put under the buyer to give legal effect of the act. Without
control suchintention,thereisnosuchtradition.
c. Theremustbeintentiontodeliver
the thing for purposes of Q: Susan invested in commodity futures
ownership trading in OCP, which involves the buying or
selling of a specified quantity and grade of a
i. TradicionSymbolicadelivery commodity at a future date at a price
of certain symbols established at the floor of theexchange. As per
representingthething termsofthetradingcontract,customer'sorders
ii. Tradicion Instrumental shallbedirectlytransmittedbyOCPasbrokerto
delivery of the instrument of itsprincipal,FrankwellEnterprises,whichinturn
conveyance. mustplacethecustomer'sorderswiththeTokyo
iii. Traditio Longa Manu Exchange. In this case, however, there is no
Delivery of thing by mere evidence of such transmission. When Susan
agreement;whensellerpoints withdrew her investment, she was not able to
to the property without need recover the entire amount. She thus filed a
ofactuallydelivering complaint and the trialcourt ruledinher favor,
iv. TradicionBreviManuBefore sayingthatthecontractisaspeciesofgambling
contractofsale,thewouldbe andthereforevoid.Isthecourtsrulingcorrect?
buyer was already in
possession of the wouldbe A:Yes.Atradingcontractisacontractforthesale
subjectmatterofsale of products for future delivery, in which either
v. ConstitutumPossessoriumat seller or buyer may elect to make or demand
the time of perfection of delivery of goods agreed to be bought and sold,
contract, seller continues to but where no such delivery is actually made. In
have possession merely as a this case, no actual delivery of goods and
holder commodity was intended and ever made by the
parties. In the realities of the transaction, the
3. Quasitradition delivery of rights, parties merely speculated on the rise and fall in
credits or incorporeal property, made thepriceofthegoods/commoditysubjectmatter
by: of the transaction. If Susans speculation was
a. Placing titles of ownership in the correct, she would be the winner and OCP, the
handsofthebuyer; loser,soOCPwouldhavetopayherthe"margin".
250 CIVILLAWTEAM:

SALES
Butifshewaswronginherspeculationthenshe 2. FOB (Free On Board) when goods are

would emergeas the loser andOCP, the winner. delivered at the point of shipment,
OCP would then keep the money or collect the delivery to carrier by placing the goods
difference from her. This is clearly a form of onvesselisdeliverytobuyer
gambling provided for with unmistakable 3. CIF(Cost,Insurance,Freight)
certainty under Article 2018. (Onapal Phils. a. When buyer pays for services of
Commodities,Inc.vs.CAandSusanChua,G.R.No. carrier, delivery to carrier is
90707,Feb.1,1993) delivery to buyer, carrier as agent
ofbuyer;
Note: Futures Commission Merchant/Broker refers b. Whenbuyerpayssellertheprice
to a corporation or partnership, which must be from the moment the vessel is at
registered and licensed as a Futures Commission the port of destination, there is
Merchant/Broker and is engaged in soliciting or in alreadydeliverytobuyer
accepting orders for the purchase or sale of any 4. COD (Collect On Delivery) the carrier
commodity for future delivery on or subject to the acts for the seller in collecting the
rulesofthecontractmarketandthat,inconnection purchase price, which the buyer must
with such solicitation or acceptance of orders,
paytoobtainpossessionofthegoods.
accepts any money, securities or property (or

extends creditin lieu thereof) tomargin, guarantee
or secure any trade or contract that results or may
Q: What are the sellers duties after delivery to
resulttherefrom. thecarrier?

Q: Given that actual possession, control and A:
enjoyment is a main attribute of ownership, is 1. To enter on behalf of the buyer into
symbolicdeliverybymereexecutionofthedeed such contract reasonable under the
of conveyance sufficient to convey ownership circumstances;
overproperty? 2. To give notice to the buyer regarding
necessityofinsuringthegoods.
A: Yes, possession is also transferred along with
ownership thereof by virtue of the deed of Q:Whereistheplaceofdelivery?
conveyance. The mere execution of the deed of
conveyanceinapublicdocumentisequivalentto A:
the delivery of the property, prior physical 1. Thatagreedupon
deliveryorpossessionisnotlegallyrequired.The 2. Placedeterminedbyusageoftrade
deedoperatesasaformalorsymbolicdeliveryof 3. Sellersplaceofbusiness
the property sold and authorizes the buyer or 4. Sellersresidence
transferee to use the document as proof of 5. In case of specific goods, where they
ownership.Nothingmoreisrequired.(Sps.Sabio canbefound
v. International Corporate Bank, Inc. et. at. G.R.
No.132709,Sept.4,2001) Q:Whenshouldtheobjectbedelivered?

Q:Candeliverybeeffectedthroughacarrier? A:
1. Stipulatedtime
A: 2. Ifthereisnone,atareasonablehour.
GR:Yes,ifthesellerisauthorized.Deliveryto
carrierisdeliverytothebuyer. Q: What are the effects of a sale of goods on
installment?
XPN:
1. Acontraryintentionappears A:
2. Impliedreservationofownershipunder 1. Goods must be delivered in full except
Art.1503,pars1,2,3. whenstipulated
2. Whennotexaminedbythebuyeritis
Q:Whatarethekindsofdeliverytocarrier? notaccepteduntilexaminedoratleast
hadreasonabletimetoexamine
A:
1. FAS(FreeAlongSide)whengoodsare
delivered alongside the ship, there is
alreadydeliverytothebuyer
251

Q: When is the seller not bound to deliver the property had not been delivered to Ten Forty;
thingsold? hence, it did not acquire possession either
materially or symbolically. As between the two
A: buyers, therefore, respondent was first in actual
1. Ifthebuyerhasnotpaidtheprice; possession of the property. (Ten Forty Realty &
2. Noperiodforpaymenthasbeenfixedin Devt. Corp. v. Cruz, G.R. No. 151212, Sept. 10,
thecontract; 2003)
3. A period for payment has been fixed in
the contract but the buyer has lost the Q:Explaintheprincipleofpriustempore,potior
righttomakeuseofthetime. jure.

D.DOUBLESALE A:Knowledgebythefirstbuyerofthesecondsale
cannotdefeatthefirstbuyersrightsexceptwhen
Q:Whenisthereadoublesale? the second buyer first registers in good faith the
secondsale.Conversely,knowledgegainedbythe
A: There is double sale when the same object of second buyer of the first sale defeats his rights
thesaleissoldtodifferentvendees. evenifheisfirsttoregister,sincesuchknowledge
taints his registration with bad faith to merit the
nd
Note:Requisites: protection of Art. 1544 (2 par.), the second
1. Samesubjectmatter realty buyer must act in good faith in registering
2. Sameimmediateseller hisdeedofsale.(Diaz,p.125)
3. Twoormoredifferentbuyers
4. Bothsalesarevalid Note:Whereonesaleisabsoluteandtheotherisa
pacto de retro transaction where the period to
Q:Whatistheruleondoublesale? redeemhasnotyetexpired,Art.1544willnotapply.
(Pineda,p.223)
A:Firstintime,priorityinright
Q: Juliet offered to sell her house and lot,
Note:RuleonDoubleSaleregardingimmovables: together with all the furniture and appliances
GR:ApplyArt.1544 therein,toDehlma.Beforeagreeingtopurchase
XPN: Sale of registered lands apply Torrens the property, Dehlma went to the Register of
System DeedstoverifyJulietstitle.Shediscoveredthat
while the property was registered in Juliets
Q: What are the rules according to Article 1544 name under the Land Registration Act, as
oftheCivilCode? amendedbythePropertyRegistrationDecree,it
wasmortgagedtoElainetosecureadebtofP80,
A: 000. Wanting to buy the property, Dehlma told
c. MovableOwnerwhoisfirsttopossess Juliet to redeem the property from Elaine, and
ingoodfaith gave her an advance payment to be used for
d. Immovable purposes of releasing the mortgage on the
d. Firsttoregisteringoodfaith property. When the mortgage was released,
e. No inscription, first to possess in JulietexecutedaDeedofAbsoluteSaleoverthe
goodfaith property which was duly registered with the
f. No inscription & no possession in Registry of Deeds, and a newTCT was issuedin
good faith Person who presents Dehlmas name. Dehlma immediately took
oldesttitleingoodfaith possession over the house and lot and the
movables therein. Thereafter, Dehlma went to
E.PROPERTYREGISTRATIONDECREE the Assessors Office to get a new tax
declaration under her name. She was surprised
Q: Ten Forty Realty purchased from Galino a to find out that the property was already
parcel of land. However, the Deed of Sale was declared for tax purposes in the name of XYZ
not recorded in the Registry of Deeds. Bankwhichhadforeclosedthemortgageonthe
Subsequently,Galino sold thesame property to propertybeforeitwassoldtoher.XYZBankwas
Cruz who immediately took possession of the alsothepurchaserintheforeclosuresaleofthe
said property. Who has a better right between property. At that time, the property was still
TenFortyandCruz? unregistered but XYZ Bank registered the
A:Intheabsenceoftherequiredregistration,the SheriffsDeedofConveyanceinthedaybookof
law gives preferential right to the buyer who in the Register of Deeds under Act 3344 and
good faith is first in possession. The subject obtainedataxdeclarationinitsname.
252 CIVILLAWTEAM:

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WasDehlmaapurchaseringoodfaith? Knowledge gained by the second buyer of the

first sale defeats his rights even if he is first to
A: Yes, Dehlma is a purchaser in good faith. She register the second sale, since such knowledge
learned about the XYZ tax declaration and taints his prior registration with bad faith (Art.
foreclosure sale only after the sale to her was 1544)(Uraca,et.alv.CA,G.R.No.115158,Sept.
registered.Shereliedonthecertificateoftitleof 5,1997)
her predecessorininterest. Under the Torrens
System, a buyer of registered lands is not VIII.RISKOFLOSS
required by law to inquire further than what the
Torrens certificate indicates on its face. If a Q:Whenisathingconsideredlost?
personproceedstobutitrelyingonthetitle,that
personisconsideredabuyeringoodfaith. A:Itisunderstoodthatthethingislostwhenit:
1. perishes,or
The priority in time rule could not be invoked 2. goesoutofcommerce,or
by XYZ Bank because the foreclosure sale of the 3. disappears in such a way that its
landinfavourofthebankwasrecordedunderAct existence is unknown or cannot be
nd
3344, the law governing transactions affecting recovered.(Art.1189,2 par.)
unregistered land, and thus, does not bind the
land. Q:Whatisdeterioration?

Q:WhoasbetweenDehlmaandXYZBankhasa A: Deterioration is the lowering of the value or
betterrighttothehouseandlot? characterofathing.Itnormallyoccursbyreason
ofordinarywearandtear.(Pineda,Credit,p.20)
A:BetweenDehlmaandthebank,theformerhas
abetterrighttothehouseandlot. Q:Whobearstheriskoflossordeterioration?

Q:Whoownsthemovablesinsidethehouse? A:
A: Unless there is a contrary stipulation in the Res perit domino Seller is the
BEFORE
absolutedeedofsale,Dehlmaownsthemovables ownersosellerbearsriskofloss
PERFECTION
coveredbytheDeedofSaleandherownershipis
perfectedbytheexecutionanddeliveryofpublic
document of sale. The delivery of the absolute Resperitdomino
deedofsaleisasymbolicaldeliveryofthehouse
andlot,includingthecontentsofthehouse.This AT Contractshallbewithoutany
PERFECTION effectthesellerbearstheloss
is an obligation to deliver a specific thing, which
sincethebuyerisrelievedofhis
includes the delivery of the specific thing itself
obligationunderthecontract
and all of its accessions and accessories even
TwoViews:
though they may not have been mentioned (Art.
Paras:Buyer,except:
1166,CC).(2008BarQuestion) 1. whenobjectsoldconsistsof
fungiblegoodsforapricefixed
Q:Doespriorregistrationbythesecondbuyerof AFTER 2. whensellerisguiltyoffraud,
a property subject of a double sale confer PERFECTION negligence,default,or
ownership or preferred right in his favor over BUT violationofcontractualterms;
thatofthefirstbuyer? BEFORE or
DELIVERY 3. whenobjectsoldisgeneric.
A: Prior registration of the disputed property by
the second buyer does not by itself confer Tolentino:Seller;
ownership or a better right over the property. Deterioration & fruits Buyer
Article 1544 requires that such registration must bearsloss
becoupledwithgoodfaith. Resperitdomino

Knowledge gained by the first buyer of the Buyerbecomestheownerso
secondsalecannotdefeatthefirstbuyer'srights AFTER buyerbearsriskofloss
DELIVERY
exceptwherethesecondbuyerregistersingood
Delivery extinguish ownership vis
faith the second sale ahead of the first, as
avis the seller & creates a new
providedbytheCivilCode. oneinfavorofthebuyer

253

Q: What is the effect of the loss of the thing
subjectofthecontractatthetimeofsale? Q: Who may negotiate a Negotiable Document
ofTitle?
A:
1. Totallosscontractisvoid&inexistent A:
2. Partial loss buyer may elect between 1. Owner
withdrawing from the contract or 2. Persontowhomthepossessionpr
demanding the remaining part, paying custodyofthedocumenthasbeen
itsproportionateprice entrustedbytheowner
a. If bailee undertakes to
E.WhenOwnershipisTransferred deliverthegoodstosuch
person
SeeTransferofOwnership.p.247 b. If document is in such
form that it may be
negotiatedbydelivery.
IX.DOCUMENTSOFTITLE
NonNegotiableDocumentsofTitle
Q:WhatisaDocumentofTitle?
Q:WhatareNonnegotiabledocumentsoftitle?
A: A document used in the ordinary course of
businessinthesaleortransferofgoods,asproof A:
of the possession or control of the goods , or 1. They are delivered only to a
authorizing or purporting to authorize the specifiedperson
possessorofthedocumenttotransferorreceive, 2. Carrierwillnotdeliverthegoodsto
either by endorsement or by delivery , goods any holder of the document or to
representedbysuchdocument(Art.1636). whom such document may have
beenendorsedbytheconsignee
Q: What is the purpose of the Documents of 3. Must present the deed of sale or
Title? donationinhisfavour

A: Q: What are the warranties of seller of
1. Evidence of possession or control of documentsoftitle?
goodsdescribedtherein
2. Medium of transferring title and A:
possession over the goods described 1. GenuinessoftheDocument
therein without having to effect actual 2. Legalrighttonegotiateortransfer
delivery(Villanueva,2009ed.) 3. No knowledge of fact which would
3. Thecustodyofanegotiablewarehouse impair the validity or worth of the
receipts issued to the order of the document
owner,ortobearer,isarepresentation 4. Right to transfer Title to the goods and
of title upon which bona fide merchantability or fitness for a
purchasersforvalueareentitledtorely particular purpose, whenever such
,despitebreachesoftrustorviolations warranties would have been implied
of agreement on the part of the had the contract transfer the goods
apparent owner (Siy Cong Bieng v. withoutadocument.
HSBC,56Phil598)
RulesRegardingLevyandGarnishmentofGoods
NegotiableDocumentsofTitle
Q: What does a person to whom a non
Q:WhatisaNegotiableDocumentofTitle? negotiable instrument has been transferred but
not negotiated, acquire as against the
A: A document of title which states that the transferor?
goods referred therein will be delivered to the
bearer, or to the order of any person named in A:Heacquires:
suchdocument(Art.1509,NCC). 1. Titletothegoods,subjecttotheterms
ofanyagreementwiththetransferor;
2. Right to notify the bailee who issued
the document of the transfer thereof,
254 CIVILLAWTEAM:

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and thereby to acquire the direct X.REMEDIESOFANUNPAIDSELLER

obligation of such bailee to hold
possession of the goods for him A.DEFINITIONOFUNPAIDSELLER
according to the terms of the
document. Q:Whoisanunpaidseller?

Q:Howmaythetransferorscreditordefeatthe A:Thesellerofgoodsisdeemedtobeanunpaid
aforementionedrightsofthetransferee? sellereither:
1. when the whole of the price has not
A: Prior to the notification to such bailee by the beenpaidortendered;or
transferor or transferee of a nonnegotiable 2. when a bill of exchange or other
document of title, the title of the transferee to negotiable instrument has been
thegoodsandtherighttoacquiretheobligation received as conditional payment, and
of such bailee may be defeated by the the condition on which it was received
transferorscreditorbythelevyofanattachment has been broken by reason of the
orexecutionuponthegoods.(Art.1514,NCC) dishonor of the instrument, the
insolvencyofthebuyer,orotherwise.
Q: If the goods are delivered to a bailee by the
ownerorbyapersonwhoseactinconveyingthe Note:Itincludesanagentofthesellertowhomthe
title to them to a purchaser in good faith for bill of lading has been indorsed, or consignor or
value and a negotiable instrument was issued agentwhohashimselfpaid,orisdirectlyresponsible
for them, can the said goods be attached, for the price, or any other person who is in the
garnishedorleviedupon? positionofaseller.

A: B.REMEDIESOFUNPAIDSELLER
GR: No, the goods cannot be attached,
garnished or levied upon while they are in Q:WhataretheremediesofanUnpaidSeller?
thebaileespossession.
A:
XPN: I. Ordinary
1. When the document is first
surrendered;or 1. ActionforPrice
2.Whenitsnegotiationisenjoined. Exercisedwhen:
a. ownershiphaspassedtobuyer;
Note:Thebaileeshallinnocasebecompelled b. priceispayableonadaycertain
to deliver the actual possession of the goods c. goods cannot readily be resold for
untilthedocumentis: reasonable price and Art. 1596 is
1.Surrenderedtohim;or inapplicable
2.Impoundedbythecourt.
(Art.1519,NCC) 2. Action for Damages In case of
wrongfulneglectorrefusalbythebuyer
Q: What are the rights of a creditor whose toacceptorpayforthethingsold
debtoristheownerofanegotiabledocumentof
title? II. Special

A: He is entitled to such aid from courts of 1. Possessory Lien Seller not bound to
appropriatejurisdictionby: deliver if buyer has not paid him the
1.injunction; price. It is exercisable only in following
2.attachingsuchdocument; circumstances:
3. as regards property which cannot be readily a. goods sold without stipulation as
attachedorlevieduponbyordinarylegalprocess tocredit
satisfyingtheclaimbymeansallowedbylawor b. goods sold on credit but term of
equity.(Art.1520,NCC) credithasexpired
c. buyerbecomesinsolvent

Note:Whenpartofgoodsdelivered,may
stillexerciserightongoodsundelivered

255

2. StoppageinTransitu Q:Whenaregoodsconsideredtobeintransit?
Requisites:ISENTU
a. Insolventbuyer A:
b. Seller must Surrender the 1. After delivery to a carrier or other
negotiabledocumentoftitle,ifany baileeandbeforethebuyerorhisagent
c. Seller must bear the Expenses of takesdeliveryofthem;and
delivery of the goods after the 2. If the goods are rejected by the buyer,
exerciseoftheright. and the carrier or other bailee
d. Seller must either actually take continues in possession of them. (Art.
possession of the goods sold or 1531,par.1)
give Notice of his claim to the
carrier or other person in Q: When are goods deemed to be no longer in
possession transit?
e. GoodsmustbeinTransit
f. Unpaidseller A:
1. Afterdeliverytothebuyerorhisagent
2. Ifthebuyer/agentobtainspossessionof
3. SpecialRighttoReselltheGoods the goods at a point before the
Exercisedwhen: destinationoriginallyfixed;
a. Goodsareperishable, 3. Ifthecarrierorthebaileeacknowledges
b. Stipulated the right of resale in thatheholdsthegoodsinbehalfofthe
caseofdefault,or buyer/hisagent;
c. Buyer in default for unreasonable 4. If the carrier or bailee wrongfully
time refuses to deliver the goods to the
buyerorhisagent.(Villanueva,p.181)
4. SpecialRighttoRescind
Requisites: XI.PERFORMANCEOFCONTRACT
a. Expressly stipulated OR buyer is in
defaultforunreasonabletime A.SALEOFPERSONALPROPERTY.
b. Noticeneededtobegivenbyseller
tobuyer RULESONSALEOFPERSONALPROPERTY.

Note: Ownership of goods already with buyer but INSTALLMENTSALESLAW
sellermaystillrescind;ownershipisdestroyedeven
withoutcourtinterventionbutinordinarysale,need Q:WhatistheInstallmentSalesLaw?
togotocourt.
A: Commonly known as the Recto Law. It is
Q:Whataretheinstanceswhenpossessorylien embodiedinArt.1484oftheNCCwhichprovides
islost? for the remedies of a seller in the contracts of
saleofpersonalpropertybyinstallments.
A:
1. Seller delivers without reserving Note: Art. 1484 of the NCC incorporates the
ownership in goods or right to possess provisions of Act No. 4122passed bythe Philippine
them Legislature on Dec. 9, 1939, known as the
2. Buyer or agent lawfully obtains "Installment Sales Law" or the "Recto Law," which
possessionofgoods thenamendedArt.1454oftheCivilCodeof1889.
3. Waiver
Q:TowhatdoestheRectoLawapply?
Note:Sellerloseslienwhenhepartswithgoods(but
still,stoppageintransitucanbeexercised) A: This law covers contracts of sale of personal
propertybyinstallments(ActNo.4122).Itisalso
Q:Whatistherightofstoppageintransitu? applied to contracts purporting to be leases of
personal property with option to buy, when the
A:Thesellermayresumepossessionofthegoods lessor has deprived the lessee of the possession
at any time while they are in transit, and he will or enjoyment of the thing. (PCI Leasing and
thenbecomeentitledtothesamerightsinregard Finance Inc. v. Giraffe X Creative Imaging, Inc.,
to the goods as he would have had if he had G.R.No.142618,July12,2007)
never parted with the possession. (Art. 1530,
NCC)
256 CIVILLAWTEAM:

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Q:Whatarethealternativeremediesincaseof payable on installments. The law declares as

saleofpersonalpropertyininstallments? "publicpolicytoprotectbuyersofrealestateon
installment payments against onerous and
A: oppressiveconditions.
1. Specific Performance: Exact fulfillment
shouldthebuyerfailtopay Note:Thepurposeofthelawistoprotectbuyersin
installmentagainstoppressiveconditions.
GR: If availed of, the unpaid seller
cannot anymore choose other Q: What are the transactions/sale covered by
remedies; theMacedaLaw?

XPN: if after choosing, it has become A: The law involves the sale of immovables on
impossible,rescissionmaybepursued installment(MacedaLaw,R.A.6552).
1. Coverage: Residential Real Estate
2.Rescission: Cancel the sale if buyer fails (Villanueva,p.431)
topay2ormoreinstallments 2. Exclude:
a. Industriallots
Deemedchosenwhen: b. Commercial buildings (and
a. Noticeofrescissionissent commerciallotsbyimplication)
b. Takespossessionofsubjectmatter c. Saletotenantsunderagrarianlaws
ofsale
c. Filesactionforrescission Q:Whataretherightsgrantedtobuyers?

3. Foreclosure: Foreclose on chattel A:
mortgageifbuyerfailstopay2ormore 1. Buyerpaidatleast2yearsinstallment
installments a. Pay w/o interest the balance
withingraceperiodof1monthfor
GR: Actual foreclosure is necessary to everyyearofinstallmentpayment.
barrecoveryofbalance Grace period to be exercised once
- Extent of barring effect: every5years.
purchaseprice b. When no payment cancelled;
buyer entitled to 50% of what he
XPN: Mortgagor refuses to deliver has paid + 5% for every year but
propertytoeffectforeclosure;expenses not exceeding 90% of payments
incurredinattorneysfees,etc. made

Q: When the lessor of the property chose to Note:Cancellationtobeeffected30
deprive the lessee of the subject personal daysfromnotice&uponpaymentof
property, can the former recover any unpaid cashsurrendervalue.
rentalsfromthelatter?
2. Buyerpaidlessthan2yearsinstallment
A: In choosing, through replevin, to deprive the a. Grace period is not less than 60
respondent of possession of the leased daysfromduedate
equipment, the petitioner waived its right to b. Cancellation if failure to pay w/in
bring an action to recover unpaid rentals on the 60daysgrace
saidleaseditems. c. 30 days notice before final
cancellation
B.SALEOFREALPROPERTY.
Note:buyercanstillpayw/inthe30
RULESONSALEOFREALPROPERTY daysperiodwithinterest.

REALTYINSTALLMENTBUYERACT Q:Whataretheotherrightsgrantedtoabuyer?

Q:WhatistheRealtyInstallmentBuyerAct? A:
1. Sellorassignrightstoanother
A: Commonly known as the Maceda Law. It is 2. Reinstate contract by updating within
embodiedinR.A.6552whichprovidesforcertain 30daysbeforeandcancellation
protection to particular buyers of real estate 3. DeedofSaletobedonebynotarialact
257

4. Pay full installment in advance the Bernie discovered that DEVLAND had failed to
balanceofpriceanytimew/ointerest develop the subdivision in accordance with the
5. Have full payment annotated in approved plans and specifications within the
certificateoftitle timeframeintheplan.Hethuswrotealetterto
DEVLAND informing it that he was stopping
Note:Appliestocontractsevenbeforethelawwas payment.Consequently,DEVLANDcancelledthe
enacted.Stipulationtothecontraryisvoid sale and wrote Bernie, informing him that his
paymentsareforfeitedinitsfavor.
Q:WhatarethesocalledMacedaandRecto 1. Was the action of DEVLAND proper?
laws in connection with sales on installments? Explain.
Givethemostimportantfeaturesoneachlaw. 2. Discuss the rights of Bernie under the
circumstances.
A: The Maceda Law (R.A. 6552) is applicable to 3. Supposing DEVLAND had fully
salesofimmovablepropertyoninstallments.The developed the subdivision but Bernie
mostimportantfeaturesare: failedtopayfurtherinstallmentsafter
4 years due to business reverses.
1. After having paid installments for at least Discuss the rights and obligations of
two years, the buyer is entitled to a theparties.
mandatorygraceperiodofonemonthfor
everyyearofinstallmentpaymentsmade, A:
to pay the unpaid installments without 1. Assuming that the land is a
interest. residential subdivision project under
P.D. No. 957 (The Subdivision and
Ifthecontractiscancelled,thesellershall Condominium Buyers Protective
refund to the buyer the cash surrender Decree), DEVLAND's action is not
value equivalent to fifty percent (50%) of properbecauseunderSection23ofsaid
the total payments made, and after five Decree,noinstallmentpaymentshallbe
years of installments, an additional five forfeited to the owner or developer
percent(5%)everyyearbutnottoexceed when the buyer, after due notice,
ninety percent (90%) of the total desistsfromfurtherpaymentduetothe
paymentsmade. failure of the ownerdeveloper to
develop the subdivision according to
2. In case the installments paid were less theapprovedplansandwithinthetime
than2years,thesellershallgivethebuyer limitforcomplyingwiththesame.
agraceperiodofnotlessthan60days.If
thebuyerfailstopaytheinstallmentsdue 2. Under the same Section of the Decree,
at the expiration of the grace period, the Bernie may, at his option, be
seller may cancel the contract after 30 reimbursed the total amount paid
days from receipt by the buyer of the including amortization interests but
notice of cancellation or demand for excluding delinquency interests at the
rescissionbynotarialact.(Rillov.CA,G.R. legalrate.HemayalsoasktheHousing
No.125347June19,1997) andLandUseRegulatoryBoardtoapply
penal sanctions against DEVLAND
The Recto Law (Art.1484) refers to sale of consistingofpaymentofadministrative
movablespayableininstallmentsandlimitingthe fine of not more than P20.000.00
rightofseller,incaseofdefaultbythebuyer,to and/orimprisonmentfornotmorethan
oneofthreeremedies: 20years.
1. Exactfulfillment;
2. Cancel the sale of two or more 3. Under R.A. No. 6552 (Maceda Law),
installmentshavenotbeenpaid; DEVLAND has the right to cancel the
3. Foreclose the chattel mortgage on the contractbutithastorefundBerniethe
thingssold,alsoincaseofdefaultoftwo cash surrender value of the payments
or more installments, with no further on the property equivalent to 50% of
action against the purchaser. (1999 Bar the total payments made. (2005 Bar
Question) Question)

Q: Bernie bought on installment a residential
subdivision lot from DEVLAND. After having
faithfully paid the installments for 48 months,
258 CIVILLAWTEAM:

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XII.WARRANTIES B.IMPLIEDWARRANTIES

Q:Whatisawarranty? Q:Whatareimpliedwarranties?

A: A statement or representation made by the A:Warrantiesdeemedincludedinallcontractsof
seller of goods, as part of the contract of sale, salebyoperationoflaw.(Art.1547)
havingreferencetothecharacter,quality,ortitle,
of the goods, and by which he promises or 1. Warranty that seller has right to sell
undertakestoinsurethatcertainfactsareorshall refers to consummation stage. Not
beashethenrepresents. applicable to sheriff, auctioneer,
mortgagee,pledge
Note:Mayeitherbeexpressorimplied.
2. Warrantyagainsteviction
Q:Whatistheeffectofabreachofwarranty?
Requisites:JPENS
A:Buyermay: a. BuyerisEvictedinwholeorinpart
1. Refusetoproceedwiththecontract;or fromthesubjectmatterofsale
2. Proceed with the contract; waive the b. FinalJudgment
condition. c. Basis of eviction is a right Prior to
saleoractimputabletoseller
Note:Iftheconditionisinthenaturethatitshould d. Seller has been Summoned in the
happen, the nonperformance may be treated as a suit for eviction at the instance of
breachofwarranty. buyer; or made 3rd party
defendant through 3rd party
Q: What are the kinds of warranties? complaintbroughtbybuyer
Distinguish. e. Nowaiveronthepartofthebuyer

A: Note: For eviction disturbance in law is
i. Express requiredandnotjusttrespassinfact.
ii. Implied
3. Warranty against encumbrances (non
A.EXPRESSWARRANTIES apparent)

Q:Whatareexpresswarranties? Requisites:
a. immovable sold is encumbered
A: Any affirmation of fact or any promise by the with nonapparent burden or
sellerrelatingtothethingifthenaturaltendency servitude not mentioned in the
of such affirmation or promise is to induce the agreement
buyer to purchase the same, and if the buyer b. nature of nonapparent servitude
purchasesthethingrelyingthereon.(Art.1546) or burden is such that it must be
presumed that the buyer would
Q: What are the requisites of express not have acquired it had he been
warranties? awarethereof

A:AIR XPN: warranty not applicable when
1. It must be an Affirmation of fact nonapparent burden or servitude is
relatingtothesubjectmatterofsale recorded in the Registry of Property
2. Natural tendency is to Induce buyer to unlessthereisexpressedwarrantythat
purchasesubjectmatter the thing is free from all burdens &
3. Buyer purchases the subject matter encumbrances
Relyingthereon
4. WarrantyagainstHiddenDefects
Q:Whatistheliabilityofthesellerforbreachof
expresswarranties? Requisites:HENNAS
a. DefectisimportantorSerious
A:Thesellerisliablefordamages.(Villanueva,p. i. The thing sold is unfit for the
249) usewhichitisintended
ii. Diminishesitsfitnessforsuch
use or to such an extent that
259

the buyer would not have Q: What is covered by a warranty against
acquiredithadhebeenaware eviction?
thereof
b. DefectisHidden A:Itcoversevictionbyafinaljudgmentbasedon
c. DefectExistsatthetimeofthesale arightpriortothesaleoranactimputabletothe
d. BuyergivesNoticeofthedefectto vendor,thevendeeisdeprivedofthewholeorof
thesellerwithinreasonabletime apartofthethingpurchased.
e. Actionforrescissionorreductionof
the price is brought within the The vendor shall answer for the eviction even
properperiod though nothing has been said in the contract on
i. 6 months from delivery of thesubject.(Art.1548,NCC)
thethingsold
ii. Within 40 days from the Q: What is the effect of a breach of warranty
deliveryincaseofanimals againsteviction?
f. There must be No waiver of
warrantyonthepartofthebuyer. A: The buyer shall have the right to demand the
seller:
Q:Whenisimpliedwarrantynotapplicable?
1. Thereturnofthevaluewhichthething
A:ASAP soldhadatthetimeoftheeviction,be
1. Asisandwhereissale itgreaterorlesserthanthepriceofthe
2. Saleofsecondhandarticles sale
3. Salebyvirtueofauthorityinfactorlaw 2. The income or fruits, if he has been
4. Sale at public auction for tax ordered to deliver them to the party
delinquency whowonthesuitagainsthim
3. The costs of suit which caused the
C.EFFECTSOFWAIVEROFIMPLIEDWARRANTIES eviction,and,inapropercase,thoseof
suit brought against the vendor for the
Q:Whataretheeffectsofwaiverofanimplied waranty
warranty? 4. The expenses of contract if buyer has
paidthem
A: 5. The damages and interests and
1. Seller in bad faith & there is waiver ornamental expenses if sale was made
againstevictionvoid inbadfaith.
2. When buyer w/o knowledge of a
particular risk, made general Note:Vendorisliableforanyhiddendefectevenif
renunciation of warranty is not a heisnotaware.(CaveatVenditor)
waiverbutmerelylimitsliabilityofseller
incaseofeviction Purchasermustbeawareofthetitleofthevendor.
3. When buyer with knowledge of risk of (CaveatEmptor)
eviction assumed its consequences &
made a waiver seller not liable Q:Whataretherightsofbuyerincaseofpartial
(applicable only to waiver of warranty eviction?
againsteviction)
A:
WARRANTYAGAINSTEVICTION 1. Restitution (with obligation to return
thethingw/ootherencumbrancesthan
Q:Whatisawarrantyagainsteviction? thosewhichithadwhenheacquiredit)
2. Enforcement of warranty against
A: In a contract of sale, unless a contrary eviction(Paras,p.153andArt.1556)
intention appears, there is an implied warranty
onthepartofthesellerthatwhentheownership WARRANTYAGAINSTHIDDENDEFECT
istopass,andthatthebuyershallfromthattime
haveandenjoythelegalandpeacefulpossession Q:Whatisahiddendefect?
st
ofthething.(Art.1547,1 paragraph)
A: A hidden defect is one which is unknown or
couldnothavebeenknowntothebuyer.(Diaz,p.
145)

260 CIVILLAWTEAM:

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Note:Sellerdoesnotwarrantpatentdefect;Caveat 3. Ifthecontraryhasbeenstipulated,and
emptor(buyerbeware) thevendorwasnotawareofthehidden
faults or defects in the thing sold. (Art.
Q:Whatisaredhibitorydefect? 1566)

A: It is a defect in the article sold against which Q: What is the effect of a breach of warranty
defect the seller is bound to warrant. The vice againsthiddendefects?
must constitute an imperfection, a defect in its
nature,ofcertainimportance;andaminordefect A: It would depend on whether the seller had
does not give rise to redhibition. (De Leon, knowledgeofsuchdefectandwhethertherehas
Comments and Cases on Sales and Lease, 2005 beenawaiverofthewarranty.
ed,p.318)
1. If the thing should be lost in
Q:Whatisaredhibitorydefectonanimals? consequence of the hidden faults, and
sellerwasawareofthemheshall:
A:Ifthehiddendefectofanimals,evenincasea a. beartheloss,
professionalinspectionhasbeenmade,shouldbe b. returnthepriceand
of such a nature that expert knowledge is not c. refundtheexpensesofthecontract
sufficient to discover it, the defect shall be withdamages
consideredasredhibitory.
2. If the thing is lost and seller was not
Q:Whenisthesaleofanimalvoid? awareofthehiddenfaultsheshall:
a. returnthepriceandinterest
A:Thesaleisvoidifanimalis: b. reimburse the expenses of the
1. Sufferingfromcontagiousdiseases; contract which the buyer might
2. Unfit for the use or service for which have paid, but not for damages.
theywerepurchasedasindicatedinthe (Villanueva, Law on Sales,2004 ed,
contract pp.548549)

Q: When is a vendor responsible for hidden Q:Whataretheremediesofthebuyerincaseof
defects? saleofthingswithhiddendefects?

A:Ifthehiddendefectswhichthethingsoldmay A:Thevendeemayelectbetween:
have: 1. Withdrawingfromthecontract,or
1. Renderitunfitfortheuseforwhichitis 2. Demanding a proportionate reduction
intended,or of the price, with damages in either
2. Diminishitsfitnessforsuchusetosuch case.
an extent that, had the vendee been
aware thereof, he would not have Q: Is there a waiver of warranty against hidden
acquireditorwouldhavegivenalower defects when thelessee inspected thepremises
priceforit.(Art.1561) andpushedthroughwiththecontract?

Q: Up to what extent does the seller warrant A: Yes. Under Arts. 1561 and 1653 of the Civil
againsthiddendefects? Code, the lessor is responsible for warranty
against hidden defects, but he is not answerable
A:Thesellerisresponsibletothevendeeforany forpatentdefectsorthose,whicharevisible.Jon
hidden faults or defects in the thing sold, even de Ysasi admitted on crossexamination that he
thoughhewasnotawarethereof. inspectedthepremisesthreeorfourtimesbefore
signing the lease contract. During his inspection,
Q: When is the seller not answerable for the he noticed the rotten plywood on the ceiling,
defectsofthethingsold? whichinhisopinionwascausedbyleakingwater
or termites. Yet, he decided to go through with
A:
theleaseagreement. Hence,respondentscannot
1. For patent defects or those which are be held liable for the alleged warranty against
visible,or hidden defects. (Jon and Marissa De Ysasi v.
2. Even for those which are not visible if Arturo and Estela Arceo, G.R. No. 136586, Nov.
thebuyerisanexpertwho,byreasonof 22,2001)
his trade or profession, should have
knownthem(Art.1561),or
261

IMPLIEDWARRANTIESINCASEOFSALEOF are inscribed on the face of certificate of title.
GOODS (Pinedasales,p.275)

Q: What are the specific implied warranties in Q:Doescaveatemptorapplyinjudicialsales?
saleofgoods?
A:Yes.Thepurchaserinajudicialsaleacquiresno
A: higher or better title or right than that of the
1. Warrantyoffitness judgmentdebtor.Ifithappensthatthejudgment
debtorhasnoright,interest,orlienonandtothe
GR:Noimpliedwarranty property sold, the purchaser acquires none.
(Pinedasales,p.280)
XPN:
a. Buyer manifests to the seller the D.REMEDIESINCASEOFBREACHOFWARRANTY
particular purpose for which the
goodsarerequired;and Q:Whataretheremediesofthebuyerincaseof
b. Buyer relies upon the sellers skill breachofwarranty?
orjudgment
A:
2. Warranty of merchantability That 1. Accept goods & set up breach of
goodsarereasonablyfitforthegeneral warranty by way of recoupment in
purposeforwhichtheyaresold. diminutionorextinctionortheprice.
2. Acceptgoods&maintainactionagainst
CAVEATEMPTOR sellerfordamages
3. Refuse to accept goods & maintain
Q:Whatdoestheprincipleofcaveatemptor actionagainstsellerfordamages
mean? 4. Rescind contract of sale & refuse to
receive goods/return them when
A: It literally means, Let the buyer beware. The alreadyreceived.
rule requires the purchaser to be aware of the
supposed title of the vendor and one who buys Q: Are the remedies of the buyer in case of
without checking the vendors title takes all the breachofwarrantyabsolute?
risks and losses consequent to such failure.
(Agcaoili,p.184) A: No. The vendee's remedies against a vendor
with respect to the warranties against hidden
Q: In what particular sale transactions does defects of or encumbrances upon the thing sold
caveatemptorapply? arenotlimitedtothoseprescribedinArticle1567
where the vendee, in the case of Arts. 1561,
A: 1562, 1564, 1565 and 1566, may elect either to
1. Salesofanimals(Art.1574) withdraw from the contract or demand a
2. Doublesales(Art.1544) proportionate reduction of the price, with
3. Insheriffssales(Art.1570) damagesineithercase.
4. Taxsales(Art.1547,lastparagraph)
Thevendeemayalsoaskfortheannulmentofthe
Note:Intheabovesales,thereisnowarrantyoftitle contract upon proof of error or fraud, in which
or quality on the part of the seller. The purchaser case the ordinary rule on obligations shall be
whobuyswithoutcheckingthetitleofthevendoris applicable. Under the law on obligations,
assumingallrisksofeviction.
responsibilityarisingfromfraudisdemandablein

all obligations and any waiver of an action for
Insheriffssales,thesheriffdoesnotguaranteethe
title to real property and it is not incumbent upon
future fraud is void. Responsibility arising from
him to place the buyer in possession of such negligence is also demandable in any obligation,
property.(Pinedasales,p.275) butsuchliabilitymayberegulatedbythecourts,
accordingtothecircumstances.
Q: Is caveat emptor applicable in sales of
registeredland? The vendor could likewise be liable for quasi
delictunderArticle2176oftheCivilCode,andan
A: No. The purchaser of a registered land under action based thereon may be brought by the
theTorrenssystemismerelychargedwithnotice vendee.Whileitmaybetruethatthepreexisting
oftheburdensandclaimsonthepropertywhich contract between the parties may, as a general
262 CIVILLAWTEAM:

SALES
rule, bar the applicability of the law on quasi XIII.BREACHOFCONTRACT

delict, the liability may itself be deemed to arise
from quasidelict, i.e., the acts which breaks the A.REMEDIESOFTHESELLER
contract may also be a quasidelict. (CocaCola Note:seeRectoandMacedaLaw(XI.Performanceof
Bottlers Philippines, Inc. v. CA, G.R. No. 110295, Contract)p.258
Oct.18,1993)
B.REMEDIESOFTHEBUYER
Q: What are the instances when the buyer
cannotrescindthesaleincasethereisabreach Q:Whataretheremediesofthebuyer?
ofwarranty?
A: A:
1. Ifheknewofthebreachofwarranty I. Immovablesingeneral
2. If he fails to return or offer to return 1. Disturbed in possession or with
goods to seller in substantially as good reasonablegroundstofeardisturbance
condition as they were at time Suspendpayment
ownershipwastransferred 2. Incaseofsubdivisionorcondoprojects
3. If he fails to notify the seller within a Ifrealestatedeveloperfailstocomply
reasonable time of his election to with obligation according to approved
rescind plan:
a. Rescind
E.CONDITIONVISVISWARRANTY b. Suspend payment until seller
complies
Q: What is the effect of nonfulfillment of a II. Movables
condition? 1. Failure of seller to deliver Action for
specificperformancewithoutgivingthe
A: If imposed on the perfection of contract sellertheoptionofretainingthegoods
prevents the juridical relation itself from coming onpaymentsofdamages
intoexistence 2. Breach of sellers warranty The buyer
may, at his election, avail of the
Theotherpartymay: followingremedies:
1. Refusetoproceedwiththecontract a. Accept goods & set up breach of
2. Proceed w/ contract, waiving the warrantybywayofrecoupmentin
performanceofthecondition diminution or extinction or the
price.
Q: What is the difference between a condition b. Accept goods & maintain action
andawarranty? againstsellerfordamages
c. RefusetoAcceptgoods&maintain
A: actionagainstsellerfordamages
CONDITION WARRANTY d. Rescind contract of sale & refuse
Purportstothe to receive goods/return them
Purportstothe whenalreadyreceived.
performanceof
existenceofobligation
obligation
Neednotbestipulated; Note: When the buyer has claimed and been
Mustbestipulatedto grantedaremedyinanyoftheseways,noother
mayformpartof
formpartofthe remedy can thereafter be granted, without
obligationbyprovision
obligation prejudicetothebuyersrighttorescind,evenif
oflaw
Relatestothesubject previously he has chosen specific performance
Mayattachitselfto when fulfillment has become impossible.
matteritselforto
obligationofsellerto (Villanueva, p. 389 in relation with Art. 1191,
obligationoftheseller
deliverpossession& NCC)
astothesubjectmatter
transfer
ofthesale
3. Disturbed in possession or with
reasonablegroundstofeardisturbance
Suspendpayment

263

XIV.EXTINGUISHMENTOFSALE Q: What is the difference between preemption
andredemption?
A.CAUSESOFEXTINGUISHMENT
A:
Q: What are the causes for extinguishment of PREEMPTION REDEMPTION
sale? Arisesbeforesale Arisesaftersale
Therecanberescission
Rescissioninapplicable
A:Acontractofsaleisextinguishedby: oforiginalsale
Actionisdirectedagainst Actionisdirected
1. Same causes as all other obligations, prospectiveseller againstbuyer
namely:
a. Paymentorperformance B.PERIODOFREDEMPTION
b. Lossofthethingdue
c. Condonation or remission of the Q:Whatistheperiodofredemption?
debt
d. Confusion or merger of the rights A:
ofcreditoranddebtor 1. No period agreed upon 4 years from
e. Compensation dateofcontract
f. Novation 2. When there is agreement should not
g. Annulment exceed 10 years; but if it exceeded,
h. Rescission validonlyforthefirst10years.
i. Fulfillmentofresolutorycondition 3. When period to redeem has expired &
j. prescription there has been a previous suit on the
2. Causesstatedintheprecedingarticles; nature of the contract seller still has
3. ConventionalRedemption;or 30 days from final judgment on the
4. Legalredemption basis that contract was a sale with
pactoderetro:
B.REDEMPTION
Rationale: no redemption due to
Q:Whatisredemption? erroneous belief that it is equitable
mortgagewhichcanbeextinguishedby
A: It is a mode of extinguishment wherein the payingtheloan.
seller has the right to redeem or repurchase the
thingsolduponreturnofthepricepaid. 4. When period has expired & seller
allowed the period of redemption to
Q:Whatarethekindsofredemption? expire seller is at fault for not having
exercised his rights so should not be
A: grantedanewperiod
1. Legal
2. Conventional Note:Tenderofpaymentissufficientbutitisnotin
itself a payment that relieves the seller from his
Q:Shouldtherighttoredeembeincorporatedin liabilitytopaytheredemptionprice.
everycontractofsale?
Q: When does period of redemption begin to
A:Therightofthevendortoredeem/repurchase run?
must appear in the same instrument. However,
partiesmaystipulateontherightofrepurchasein A:
a separate document but in this case, it is valid 1. Right of legal preemption or
only between the parties and not against third redemptionshallbeexercisedwithin30
persons.(Pineda,p.333) daysfromwrittennoticebythebuyer
deed of sale not to be recorded in
Registry of Property unless
accompaniedbyaffidavitthatbuyerhas
givennoticetoredemptioners

2. When there is actual knowledge, no
need to give written notice; period of
redemption begins to run from actual
knowledge
264 CIVILLAWTEAM:

SALES
D.EXERCISEOFTHERIGHTTOREDEEM propertywhichheoughtnot,inequityandgood
conscience, hold and enjoy. It has been broadly
Q: Is written notice mandatory for the right of ruled that a breach of confidence, although in
redemptiontocommence? business or social relations, rendering an
acquisition or retention of property by one
A: Yes, the notice must be in writing stating the person unconscionable against another, raises a
executionofthesaleanditsparticulars.Itmaybe constructivetrust.Itisraisedbyequityinrespect
madeinaprivateorpublicdocument.(Pineda,p. ofproperty,whichhasbeenacquiredbyfraud,or
400) where, although acquired originally without
fraud, it is against equity that it should be
Q: Is there a prescribed form for an offer to retained by the person holding it. (Arlegui v. CA
redeem? G.R.No.126437,Mar.6,2002)

A: There is no prescribed form for an offer to Note: "A constructive trust is substantially an
redeem to be properly effected. Hence, it can appropriate remedy against unjust enrichment. It is
either be through a formal tender with raised by equity in respect of property, which has
consignation of the redemption price within the beenacquiredbyfraud,orwhere,althoughacquired
prescribed period. What is paramount is the originally without fraud, it is against equity that it
availment of the fixed and definite period within shouldberetainedbythepersonholdingit."(76Am.
whichtoexercisetherightoflegalredemption. Jur.2d,Sec.222,p.447citedinArleguiv.CAG.R.No.
126437,Mar.6,2002)
Note: Art. 1623 does not prescribe any distinctive

methodfornotifyingtheredemptioner. D.CONVENTIONALREDEMPTION

Q: Is tender of payment necessary for Q:Whatisconventionalredemption?
redemptiontotakeeffect?
A: Seller reserved the right to repurchase thing
A: Tender of payment is not necessary; offer to soldcoupledwithobligationtoreturnpriceofthe
redeemisenough. sale, expenses of contract & other legitimate
payments and the necessary & useful expenses
Q:Whatistheeffectoffailuretoredeem? madeonthethingsold

A:Theremustbejudicialorderbeforeownership Note: Right to repurchase must be reserved at the
timeofperfectionofsale.(Pineda,p.333)
of real property is consolidated to the buyer a

retro.
E.LEGALREDEMPTION

TRUSTDESONTORT
Q:Whatislegalredemption?

Q:Whatisatrustdesontort?
A: Also referred to as retracto legal, it is the
righttobesubrogateduponthesametermsand
A: It is a trust created by the purchase or
conditionsstipulatedinthecontract,intheplace
redemption of property by one other than the
ofonewhoacquiresthethingbypurchaseorby
person lawfully entitled to do so and in fraud of
dation in payment or by other transaction
theother.
whereby ownership is transmitted by onerous
title.
Q:Doconstructivetrustsariseonlyoutoffraud

orduress?
Q:Whataretheinstancesoflegalredemption?

A:No.Aconstructivetrust,otherwiseknownasa
A:
trustexmaleficio,atrustexdelicto,atrustdeson
1. Sale of a coowner of his share to a
tort,aninvoluntarytrust,oranimpliedtrust,isa
stranger(Art.1620)
trustbyoperationoflawwhicharisescontraryto
2. Whenacreditorotherincorporealright
intention and in invitum, against one who, by
inlitigationissold(Art.1634)
fraud, actual or constructive, by duress or abuse
3. Saleofanheirofhishereditaryrightsto
ofconfidence,bycommissionofwrong,orbyany
astranger(Art.1088)
form of unconscionable conduct, artifice,
4. Sale of adjacent rural lands not
concealment, or questionable means, or who in
exceeding1hectare(Art.1621)
any way against equity and good conscience,
either has obtained or holds the legal right to
265

5. Sale of adjacent small urban lands extending the period of redemption or
bought merely for speculation (Art. grantinganewperiodisexecuted
1622) 4. Purchaser Retains for himself a part of
thepurchaseprice
Q: Are there other instances when the right of 5. SellerbindshimselftopaytheTaxeson
legalredemptionisalsogranted? thethingsold
6. In any other case where the real
A: intention of the parties is that the
1. Redemptionofhomesteads transactionshallSecurethepaymentof
2. Redemptionintaxsales adebtortheperformanceofanyother
3. Redemptionbyjudgmentdebtor obligation.
4. Redemptioninextrajudicialforeclosure 7. Art. 1602 shall also apply to a contract
5. Redemption in judicial foreclosure of purportingtobeanAbsolutesale.(Art.
mortgage 1604)

Q:Whendoeslegalredemptionperiodbeginto Note: In case of doubt in determining whether it is
run? equitable mortgage or sale a retro (with right of
repurchase); it shall be construed as equitable
A: The right of legal redemption shall not be mortgage.
exercised except within 30 days from the notice
in writing by the prospective seller, or seller, as Remedyisreformation.
the case may be. The deed of sale shall not be Anequitablemortgageisonewhichalthoughlacking
in some formality, or form or words, or other
recorded in the Registry of Property unless
requisites demanded by a statute, nevertheless
accompaniedbyanaffidavitofthesellerthathe
reveals the intention of the parties to charge real
has given written notice thereof to all possible propertyassecurityforadebt,andcontainsnothing
redemptioners.(Art.1623,NCC) impossibleorcontrarytolaw.

C.EQUITABLEMORTGAGE Q: Does inadequacy of price constitute proof
sufficient to declare a contract as one of
Q:Whatisanequitablemortgage? equitablemortgage?

A:Onewhichlackstheproperformalities,formor A:Mereinadequacyofthepriceisnotsufficient.
wordsorotherrequisitesprescribedbylawfora The price must be grossly inadequate, or purely
mortgage,butshowstheintentionoftheparties shockingtotheconscience.(Diaz,p.186)
to make the property subject of the contract as
security for a debt and contains nothing Q:Xtransferredthreeparcelsoflandinfavorof
impossibleorcontrarytolaw Y. The transaction was embodied in two Deeds
of Absolute Sale for the price of P240, 000. The
Q:Whataretheessentialrequisitesofequitable titles of said lots were transferred to Y.
mortgage? However, X failed to vacate and turn over the
purchased lots. This prompted Y to file an
A: ejectment suit against X. X claimed that the
1. Partiesenteredintoacontractofsale transactions entered between them were not
2. Their intention was to secure an actually sales, but an equitable mortgage. Does
existingdebtbywayofamortgage. the transaction involve an absolute sale or an
equitablemortgageofrealproperty?
Q: What is the rule on the presumption of an
equitablemortgage? A: It is an absolute sale. Decisive for the proper
determination of the true nature of the
A: A sale with conventional redemption is transaction between the parties is the intent of
deemed to be an equitable mortgage in any of the parties. There is no conclusive test to
thefollowingcases:(Art.1602)AIRSTAR determinewhetheradeedabsoluteonitsfaceis
1. Price of the sale with right to reallyasimpleloanaccommodationsecuredbya
repurchaseisunusuallyInadequate mortgage.Todeterminewhetheradeedabsolute
2. Seller Remains in possession as lessee in form is a mortgage in reality, the court is not
orotherwise limited to the written memorials of the
3. Uponoraftertheexpirationoftheright transaction.Thisissobecausethedecisivefactor
to repurchase Another instrument in evaluating such agreement is the intention of
266 CIVILLAWTEAM:

SALES
the parties, as shown not necessarily by the operation,hewasrequiredtoexecuteadeedof

terminology used in the contract but by all the saleoveraparceloflandinfavorofEulalia.She
surrounding circumstances, such as the relative soldthepropertytohergrandnieceJocelynwho
situations of the parties at that time; the thereafter instituted an action for ejectment
attitudes, acts, conduct, and declarations of the against the Spouses Bandong. To assert their
parties; the negotiations between them leading right, Spouses Bandong filed an action for
to the deed; and generally, all pertinent facts annulment of sale against Eulalia and Jocelyn
having a tendency to fix and determine the real allegingthattherewasnosaleintendedbutonly
nature of their design and understanding. As equitable mortgage for the purpose of securing
such, documentary and parol evidence may be theshortageincurredbyDomengintheamount
submittedandadmittedtoprovetheintentionof ofP70,000.00whileemployedasbiyaheroby
theparties.(SpsAustriav.SpsGonzales,G.R.No. Eulalia.WasthedeedofsalebetweenDomeng
147321,Jan.21,2004) and Eulalia a contract of sale or an equitable
mortgage?
Q: Ceballos was able to borrow from Mercado
certain sum of money and as security, she A: It is an equitable mortgage. In executing the
executed a Deed of Real Estate Mortgage over said deed of sale, Domeng and Eulalia never
thesubjectproperty.Thesaidmortgagewasnot intendedthetransferofownershipofthesubject
registered. Ceballos defaulted. Thereafter, a property but to burden the same with an
DeedofAbsoluteSalewasexecutedbyCeballos encumbrance to secure the indebtedness
and her husband whereby the mortgaged incurred by Domeng on the occasion of his
property was sold to Mercado for the price of employment with Eulalia. The agreement
P16, 500.00. Ceballos offered to redeem the betweenDominadorandEulaliawasnotavoided
property from Mercado for the price of P30, in its entirety so as to prevent it from producing
000.00 but the latter's wife refused since the anylegaleffectatall.Instead,thesaidtransaction
samewasalreadytransferredintheirnamesby isanequitablemortgage,therebymerelyaltering
virtue of the Deed of Absolute Sale. As a the relationship of the parties from seller and
consequence,Ceballosfiledthecasecontending buyer, to mortgagor and mortgagee, while the
that the Contract should be declared as an subject property is not transferred butsubjected
equitable mortgage. Is the contention of toalieninfavorofthelatter.(Sps.Raymundo,et
Ceballoscorrect? al.v.Sps.Bandong,G.R.No.171250,Jul.4,2007)

A:No.Theinstanceswhenacontract,regardless G.DISTINGUISHEDFROM
of its nomenclature, may be presumed to be an OPTIONTOBUY
equitable mortgage are enumerated in Art. 1602
of the Civil Code. Here, none of those Q: On May 19, 1951, the spousessellers
circumstances were present. The original executedapublicinstrumentofabsolutesalein
transactionwasaloan.Ceballosfailedtopaythe favor of the buyer for a consideration which is
loan; consequently, the parties entered into sufficientlyadequate.Afewdaysthereafter,the
anotheragreementtheassailed,dulynotarized buyersexecutedinfavorofthesellersanoption
DeedofAbsoluteSale,whichsupersededtheloan to buy within one year, the property subject of
document. Ceballos had the burden of proving the absolute sale, which option was extended
that she did not intend to sell the property and foramonth.Priortotheexpirationofsaidone
that Mercado did not intend to buy it; and that year period, the buyer sold said property to a
the new agreement did not embody the true thirdperson.
intention of the parties. (Ceballos v. Intestate
Estate of the Late Emigdio Mercado, G.R. No. If the spousessellers would file an action for
155856,May28,2004) reformation of instrument where they seek
reformation of the absolute sale into one of
Q:Eulaliawasengagedinthebusinessofbuying equitablemortgage,willsaidactionprosper?
and selling large cattle. In order to secure the
financialcapitalsheadvancedforheremployees A: No, it will not prosper. If a seller has been
(biyaheros) she required them to surrender TCT granted merely an option to buy (not a right to
of their properties and to execute the repurchase)withinacertainperiod,andtheprice
corresponding Deeds of Sale in her favor. paidbythebuyerisadequate,thesaleisabsolute
Domeng Bandong was not required to post any andcannotbeconstruednorpresumedtobeone
security but when Eulalia discovered that he of equitable mortgage, even if the period within
incurred shortage in cattle procurement whichtoexercisetheoptionhasbeenextended.
267

(Villarica, et. al. v. CA, G.R. L19196, Nov. 29, 7. solicitationofasale;
1968) 8. offer to sell, directly or by an agent, or
by a circular, letter, advertisement or
Note:SCheldthatinthiscase,therewasnosale otherwise;and
a retro and that the right of repurchase is not a 9. a. privilege given to a member of a
rightgrantedthesellerbythebuyerinaseparate cooperative, corporation, partnership,
instrument. Such right is reserved by the vendor oranyassociationand/or
inthesameinstrumentofthesaleasoneofthe b.theissuanceofacertificateorreceipt
stipulationsinthecontract. evidencing or giving the right of
participation in, or right to, any land in
Also, once the instrument of absolute sale is consideration of payment of the
executed, the seller can no longer reserve the membershipfeeordues.(Deemedsale)
right of repurchase and any right thereafter
grantedthesellerbythebuyercannotbearight Q: How are the terms buy and purchase
of repurchase but some other rights, like that of definedundertheDecree?
anoptiontobuy.
A:Shallincludeanycontracttobuy,purchase,or
XV.LAWONSALEOFSUBDIVISIONAND otherwise acquire for a valuable consideration a
CONDOMINIUM(PD957) subdivision lot, including the building and other
improvements,ifany,inasubdivisionprojectora
SCOPEOFAPPLICATION condominiumunitinacondominiumproject.
Q:Aresalesordispositionsofsubdivisionlotsor Q:Whatisasubdivisionproject?
condominiumunitspriortotheeffectivityofthe
decree exempt from compliance with the A:AtractoraparceloflandregisteredunderAct
requirementsstatedtherein? No. 496 which is partitioned primarily for
residential purposes into individual lots with or
A: No. It shall be incumbent upon the owner or without improvements thereon, and offered to
developer of the subdivision or condominium thepublicforsale,incashorininstallmentterms.
project to complete compliance with his or its
obligations as provided in the decree within two Note: It shall include all residential, commercial,
yearsfromthedateofeffectivityoftheDecree, industrial and recreational areas as well as open
spacesandothercommunityandpublicareasinthe
unless otherwise extended by the Authority or
project.
unlessanadequateperformancebondisfiled.
Q:Whatisasubdivisionlot?
Note: Failure of the owner or developer to comply
with the obligations under this and the preceding
A: Any of the lots, whether residential,
provisions shall constitute a violation punishable
underSections38and39oftheDecree. commercial, industrial, or recreational, in a
subdivisionproject.
DEFINITIONOFTERMS
Q:Whatisacomplexsubdivisionplan?
Q: How is sale or sell defined under the
Decree? A:Asubdivisionplanofaregisteredlandwherein
astreet,passagewayoropenspaceisdelineated
A:Shallinclude: ontheplan.
1. Every disposition, or attempt to Q:Whatisacondominiumproject?

dispose,foravaluableconsideration,of
a subdivision lot, including the building A:Theentireparcelofrealpropertydividedorto
andotherimprovementsthereof,ifany, bedividedprimarilyforresidentialpurposesinto
in a subdivision project or a condominium units, including all structures
condominium unit in a condominium thereon.
project;
Q:Whatisacondominiumunit?
2. contracttosell;
3. contractofpurchaseandsale;
A: A part of the condominium project intended
4. exchange;
for any type of independent use or ownership,
5. attempttosell;
includingoneormoreroomsorspaceslocatedin
6. optionofsaleorpurchase;
oneormorefloors(orpartofpartsoffloors)ina
268 CIVILLAWTEAM:

SALES
buildingorbuildingsandsuchaccessoriesasmay thebuildingorbuildingsincludedinthe
beappendedthereto. condominium project in accordance
with the National Building Code (R.A.
Q:Definethefollowingterms: No.6541).
3. The subdivision plan, as so approved,
1. Owner. shallthenbesubmittedtothe Director
A:Registeredownerofthelandsubject ofLandsforapproval.
of a subdivision or a condominium 4. In case of complex subdivision plans,
project. court approval shall no longer be
required.
2. Developer. 5. The condominium plan as likewise so
A: person who develops or improves approved, shall be submitted to the
thesubdivisionprojectorcondominium RegisterofDeedsoftheprovinceorcity
project for and in behalf of the owner inwhichthepropertyliesandthesame
thereof. shall be acted upon subject to the
conditions and in accordance with the
3. Dealer. procedureprescribedinSection4ofthe
A: any person directly engaged as CondominiumAct(R.A.No.4726).
principal in the business of buying,
selling or exchanging real estate Q: Part of the required documentary
whether on a fulltime or parttime attachmentstotheapplicationisacertificateof
basis. title to the property which is free from all liens
and encumbrances. Does this bar an owner of
4. Broker. mortgaged property from engaging in
A: any person who, for commission or subdivision or condominium project while the
other compensation, undertakes to sell mortgageisinforce?
or negotiate the sale of a real estate
belongingtoanother. A:No.Incaseanysubdivisionlotorcondominium
unitismortgaged,itissufficientiftheinstrument
5. Salesman. of mortgage contains a stipulation that the
A: person regularly employed by a mortgagee shall release the mortgage on any
brokertoperform,forandinhisbehalf, subdivision lot or condominium unit as soon as
any or all functions of a real estate thefullpurchasepriceforthesameispaidbythe
broker. buyer.
REGISTRATIONANDLICENSETOSELL Q: When is a subdivision or condominium

projectdeemedtoberegistered?
Q:Uponwhatagencyisexclusivejurisdictionto
regulaterealestatetradeandbusinessvested? A: Upon completion of the publication
requirement
A:NationalHousingAuthority
Note: The fact of such registration shall be
Q:Whatmustaregisteredownerofaparcelof evidencedbyaregistrationcertificatetobeissuedto
landdoifhewishestoconvertsaidpropertyinto theapplicantownerordealer.
asubdivisionorcondominiumproject?
Re: Publication requirement: This is complied with
A:Heshall: when the NHA has caused to be published a notice
of the filing of the registration statement, at the
1. Submit his subdivision plan to the expense of the applicantowner or dealer, in two
Authority which shall act upon and newspapers general circulation, one published in
approve the same, upon a finding that EnglishandanotherinPilipino,onceaweekfortwo
theplancomplieswiththeSubdivision consecutive weeks, reciting that a registration
statement for the sale of subdivision lots or
Standards' andRegulations enforceable
condominium units has been filed in the National
atthetimetheplanissubmitted.
HousingAuthority;
2. If the conversion desired involves a
condominium project, the same
procedure shall be followed except
that,inaddition,theNHAshallactupon
and approve the plan with respect to
269

Q: After issuance of the registration certificate, to work a fraud upon prospective
maytheownerordealeralreadysellsubdivision buyers.
lotsorcondominiumunits?
Q:Whenmayalicensetosellorregistrationofa
A: No. He must first obtain a license to sell the subdivisionorcondominiumprojectberevoked?
projectwithintwoweeksfromtheregistrationof
suchproject. A: The Authority may, motu proprio or upon
verified complaint filed by a buyer of a
Q: What is the purpose of the requirement of subdivision lot or condominium unit, revoke the
postingofaperformancebondsbeforealicense registration of any subdivision project or
tosellmaybeissued? condominium project and the license to sell any
subdivision lot or condominium unit in said
A: It is to guarantee the construction and projectbyissuinganordertothiseffect,withhis
maintenance of the roads, gutters, drainage, findings in respect thereto, if upon examination
sewerage,watersystem,lightingsystems,andfull into the affairs of the owner or dealer during a
development of the subdivision project or the hearing, it shall appear there is satisfactory
condominium project and the compliance by the evidencethatthesaidownerordealer:
owner or dealer with the applicable laws and
rulesandregulations. 1. isinsolvent;or
2. hasviolatedanyoftheprovisionsofthis
Q: Is a license to sell and performance bond Decree or any applicable rule or
required in all subdivision and condominium regulation of the Authority, or any
projects? undertaking of his/its performance
bond;or
A: No. The following transactions are exempt 3. has been or is engaged or is about to
fromsaidrequirements: engageinfraudulenttransactions;or
4. hasmadeanymisrepresentationinany
1. Sale of a subdivision lot resulting from prospectus, brochure, circular or other
the partition of land among coowners literature about the subdivision project
andcoheirs. or condominium project that has been
2. Sale or transfer of a subdivision lot by distributedtoprospectivebuyers;or
the original purchaser thereof and any 5. isofbadbusinessrepute;or
subsequentsaleofthesamelot. 6. does not conduct his business in
3. Sale of a subdivision lot or a accordance with law or sound business
condominiumunitbyorfortheaccount principles.
of a mortgagee in the ordinary course
ofbusinesswhennecessarytoliquidate Note:Wheretheownerordealerisapartnership
abonafidedebt. or corporation or an unincorporated association,
it shall be sufficient cause for cancellation of its
Q:Whenmayalicensetosellbesuspended? registrationcertificateanditslicensetosell,ifany
member of such partnership or any officer or
A: director of such corporation or association has
beenguiltyofanyactoromissionwhichwouldbe
1. Uponverifiedcomplaintbyabuyerofa
cause for refusing or revoking the registration of
subdivisionlotoracondominiumunitin
anindividualdealer,brokerorsalesman.
anyinterestedparty,theAuthoritymay,
in its discretion, immediately suspend DEALERS,BROKERSAMDSALESMEN
the owner's or dealer's license to sell
pending investigation and hearing of Q: What is the duration of the registration of
thecase. dealers,brokersandsalesmen?
2. TheNHAmaymotupropriosuspendthe
license to sell if, in its opinion, any A: On the thirtyfirst day of December of each
information in the registration year.
statement filed by the owner or dealer
is or has become misleading, incorrect, However, in the case of salesmen, their
inadequateorincompleteorthesaleor registration shall also cease upon termination of
offering for a sale of the subdivision or theiremploymentwithadealerorbroker.
condominiumprojectmayworkortend
270 CIVILLAWTEAM:

SALES
Note: Renewal of registration for the succeeding mustbepresentedinsuchmannerthat

year shall be granted upon written application will not tend to mislead or deceive the
therefore made not less than thirty nor more than public.
sixty days before the first day of the ensuing year 2. The owner or developer shall
and upon payment of the prescribed fee, without answerable and liable for the facilities,
the necessity of filing further statements or improvements, infrastructures or other
information, unless specifically required by the forms of development represented or
Authority.
promised in brochures, advertisements
and other sales propaganda
All applications filed beyond said period shall be
treatedasoriginalapplications. disseminated by the owner or
developer or his agents and the same
Q: When can there be refusal or revocation of shall form part of the sales warranties
registrationasdealers,brokersorsalesmen? enforceable against said owner or
developer,jointlyandseverally.
A:Suchregistrationmayberefusedorrevokedby
theNHAif,afterreasonablenoticeandhearing,it Note: Failure to comply with these warranties
shall determine that such applicant or registrant shall also be punishable in accordance with the
has: penaltiesprovidedforinthisDecree.
1. violatedanyprovisionofthisDecreeor Q: Within what period must the owner or

anyruleorregulationmadehereunder; developer construct and provide the facilities,
or improvements, infrastructures and other forms
2. made a material false statement in his of development, including water supply and
applicationforregistration;or lighting facilities, which are offered and
3. been guilty of a fraudulent act in indicated in the approved subdivision or
connection with any sale of a condominium plans, brochures, prospectus,
subdivisionlotorcondominiumunit;or printed matters, letters or in any form of
4. demonstrated his unworthiness to advertisement?
transact the business of dealer, broker,
orsalesman,asthecasemaybe. A:
Note: In case of charges against a salesman, GR: Within one year from the date of the
notice thereof shall also be given the broker or issuanceofthelicenseforthesubdivisionor
dealeremployingsuchsalesman. condominiumproject
Pending hearing of the case, the Authority shall XPN: Such other period of time as may be
have the power to order the suspension of the fixedbytheAuthority.
dealer's, broker's, of salesman's registration;
ALTERATIONINAPPROVEDSUBDIVISIONPLAN
provided,thatsuchordershallstatethecausefor
thesuspension.
Q:Whatistheruleiftheownerdesirestomake
alterationsintheapprovedsubdivisionplan?
The suspension or revocation of the registration
of a dealer or broker shall carry with it all the
A:
suspensionorrevocationoftheregistrationofall
hissalesmen. GR: No owner or developer shall change or
altertheroads,openspaces,infrastructures,
WARRANTIESOFTHEOWNERORDEVELOPER
facilitiesforpublicuseand/orotherformof
subdivisiondevelopmentascontainedinthe
Q:Inmakingadvertisements,doestheowneror
approved subdivision plan and/or
developermakewarrantiesrelativetosuch?
representedinitsadvertisements
A:Yes.
XPN: If he has obtained the permission of
1. Advertisements that may be made the Authority and the written conformity or
through newspaper, radio, television, consent of the duly organized homeowners
leaflets, circulars or any other form association, or in the absence of the latter,
about the subdivision or the by the majority of the lot buyers in the
condominium or its operations or subdivision.
activitiesmustreflecttherealfactsand
271

RIGHTSANDREMEDIESOFABUYER TAKEOVERDEVELOPMENT
Q:Maypaymentmadebyabuyerbeforfeitedin Q: When can there be a TakeOver

favor of the owner or developer in case the Development?
buyer desists from further payment due to the
failureoftheownerordevelopertodevelopthe A: The NHA may take over or cause the
subdivisionorcondominiumprojectaccordingto development and completion of the subdivision
theapprovedplanwithinthetimelimitprovided or condominium project at the expenses of the
for such? What is the buyers remedy in this ownerordeveloper,jointlyandseverally,incases
case? where the owner or developer has refused or
failedtodeveloporcompletethedevelopmentof
A:No,suchforfeitureisnotallowed.Suchbuyer theprojectasprovidedforintheDecree.
may, at his option, be reimbursed the total
amount paid including amortization interests but Note: The Authority may, after such takeover,
excluding delinquency interests, with interest demand, collect and receive from the buyers the
thereonatthelegalrate. installmentpaymentsdueonthelots,whichshallbe
utilizedforthedevelopmentofthesubdivision.
Q:Doesadefaultingbuyerhaveanyrightunder
theDecree?
XVI.THECONDOMINIUMACT(RA4726)
A:Yes.Therightsofthebuyerintheeventofthis
failure to pay the installments due for reasons PRELIMINARIES
otherthanthefailureoftheownerordeveloper
to develop the project shall be governed by Q:Whatisacondominium?
RepublicActNo.6552.
A: It is an interest in real property consisting of
Where the transaction or contract was entered separate interest in a unit in a residential,
into prior to the effectivity of Republic Act No. industrial or commercial building and an
6552 on August 26, 1972, the defaulting buyer undivided interest in common, directly or
shall be entitled to the corresponding refund indirectly,inthelandonwhichitislocatedandin
based on the installments paid after the othercommonareasofthebuilding.
effectivity of the law in the absence of any
provisioninthecontracttothecontrary. Note:Itmayinclude,inaddition,aseparateinterest
inotherportionsofsuchrealproperty.
Q: What is the owner or developers obligation
in case the lot bought and fullypaid by the Q:Whatcomprisesarealrightincondominium?
buyerismortgaged?
A: The real right in condominium may be
A:Intheeventamortgageoverthelotorunitis ownership or any other interest in real property
outstanding at the time of the issuance of the recognized by law, on property in the Civil Code
title to the buyer, the owner or developer shall andotherpertinentlaws.
redeem the mortgage or the corresponding
portion thereof within six months from such Q:Whatisacondominiumunit?
issuanceinorderthatthetitleoveranyfullypaid
lot or unit may be secured and delivered to the A: It is a part of the condominium project
buyerinaccordanceherewith. intended for any type of independent use or
ownership, including one or more rooms or
Q: May the parties waive compliance with the spaces located in one or more floors (or part or
decree? partsoffloors)inabuildingorbuildingsandsuch
accessoriesasmaybeappendedthereto.
A: No. Any condition, stipulation, or provision in
contract of sale whereby any person waives Q:Whatisacondominiumproject?
compliancewithanyprovisionoftheDecreeorof
anyruleorregulationissuedthereundershallbe A: It is the entire parcel of real property divided
void. or to be divided in condominiums, including all
structuresthereon,

272 CIVILLAWTEAM:

SALES
Q:Whatarecommonareas? corporation shall constitute the

managementbodyoftheproject.
A: The entire project excepting all units
separatelygrantedorheldorreserved. Q: What are the incidents of a condominium
grant?
Q:Whatismeantbytodividerealproperty?
A: Unless otherwise expressly provided in the
A: To divide the ownership thereof or other enabling or master deed or the declaration of
interest therein by conveying one or more restrictions,theincidentsofacondominiumgrant
condominiums therein but less than the whole areasfollows:
thereof.
1. The boundary of the unit granted are
Q: What is the rule as regards acquisition of the interior surfaces of the perimeter
ownershipovercommonareas? walls, floors, ceilings, windows and
doorsthereof.
A:Transferorconveyanceofaunitorapartment,
officeorstoreorotherspacethereinshallinclude Note: The following are not part of
the transfer or conveyance of the undivided theunitbearingwalls,columns,
interests in the common areas or, in a proper floors, roofs, foundations and
case, the membership or shareholdings in the other common structural
condominiumcorporation elementsofthebuilding:

a. lobbies, stairways, hallways,

Q: Are there any restrictions as regards
and other areas of common
ownershipofcondominiumunitsprovidedunder use,
theCondominiumAct? b. elevator equipment and shafts,
centralheating,
A: c. centralrefrigerationandcentral
1. Asregardsindividuals: airconditioningequipment,
GR:None. d. reservoirs, tanks, pumps and
other central services and
XPN: where the common areas in the facilities,
condominiumprojectareownedbythe e. pipes, ducts, flues, chutes,
owners of separate units as coowners conduits,wiresandotherutility
thereof, no condominium unit therein installations, wherever located,
shall be conveyed or transferred to excepttheoutletsthereofwhen
personsotherthan: locatedwithintheunit.
1. Filipinocitizens,or
2. Corporations at least sixty 2. There shall pass with the unit, as an
percent of the capital stock of appurtenance thereof, an exclusive
whichbelongtoFilipinocitizens easement for the use of the air space
encompassed by the boundaries of the
XPN to the XPN: in cases of hereditary unit as it exists at any particular time
succession. andastheunitmaylawfullybealtered
orreconstructedfromtimetotime.
2. Asregardscorporations:
Where the common areas in a Note: Such easement shall be
automatically terminated in any air
condominium project are held by a
spaceupondestructionoftheunitas
corporation, no transfer or conveyance
torenderituntenantable.
of a unit shall be valid if the
concomitant transfer of the 3. Common areas are held in common by
appurtenant membership or the holders of units, in equal shares,
stockholding in the corporation will one for each unit, unless otherwise
cause the alien interest in such provided.
corporation to exceed the limits
imposedbyexistinglaws. 4. A nonexclusive easement for ingress,
egress and support through the
Note: Whenever the common areas in a
common areas is appurtenant to each
condominium project are held by a
condominium corporation, such
273

unitandthecommonareasaresubject
tosucheasements. 2. damage or destruction to the
project has rendered onehalf or
5. Each condominium owner shall have more of the units therein
theexclusiverighttopaint,repaint,tile, untenantable and that
wax, paper or otherwise refinish and condominium owners holding in
decoratetheinnersurfacesofthewalls, aggregatemorethanthirtypercent
ceilings, floors, windows and doors interest in the common areas are
boundinghisownunit. opposedtorepairorrestorationof
theproject;or
6. Each condominium owner shall have
the exclusive right to mortgage, pledge 3. theprojecthasbeeninexistencein
or encumber his condominium and to excess of fifty years, that it is
havethesameappraisedindependently obsolete and uneconomic, and
of the other condominiums but any that condominium owners holding
obligation incurred by such in aggregate more than fifty
condominiumownerispersonaltohim. percent interest in the common
areas are opposed to repair or
7. GR: Each condominium owner has also restoration or remodeling or
the absolute right to sell or dispose of modernizingoftheproject;or
hiscondominium.
XPN: If the master deed contains a 4. the project or a material part
requirement that the property be first thereof has been condemned or
offered to the condominium owners expropriated and that the project
within a reasonable period of time is no longer viable, or that the
before the same is offered to outside condominium owners holding in
parties; aggregate more than seventy
percent interest in the common
Q: May common areas be divided through areas are opposed to continuation
judicialpartition? of the condominium regime after
expropriation or condemnation of
A: amaterialportionthereof;or
GR: Common areas shall remain
undivided,andthereshallbenojudicial 5. theconditionsforsuchpartitionby
partitionthereof. sale set forth in the declaration of
restrictions, duly registered in
XPN: Where several persons own accordance with the terms of the
condominiums in a condominium Act,havebeenmet.
project, an action may be brought by
one or more such persons for partition Q: What is the rule regarding issuance of
thereofbysaleoftheentireproject,as certificateoftitlewheretheenablingormaster
if the owners of all of the deed provides that the land included within a
condominiumsinsuchprojectwereco condominium project are to be owned in
ownersoftheentireprojectinthesame commonbythecondominiumownerstherein?
proportion as their interests in the
commonareas: A:TheRegisterofDeedsmay,attherequestofall
thecondominiumownersanduponsurrenderof
Note: However, a partition shall be all their "condominium owner's" copies, cancel
madeonlyuponashowingthat: thecertificatesoftitleofthepropertyandissuea
new one in the name of said condominium
1. three years after damage or ownersasproindivisocoownersthereof.
destruction to the project which
renders material part thereof unit Q: How are deeds, declarations or plans for a
for its use prior thereto, the condominiumprojectconstrued?
project has not been rebuilt or
repaired substantially to its state A:
priortoitsdamageordestruction, 1. Liberally, to facilitate the operation of
or theproject
274 CIVILLAWTEAM:

SALES
2. Provisions shall be presumed to be risks, and for bonding of the

independentandseverable. members of any management
body;
DECLARATIONOFRESTRICTIONS c. Provisionsformaintenance,utility,
gardening and other services
Q: When should a declaration of restrictions be benefiting the common areas, for
registeredandwhatistheeffectofsuch? the employment of personnel
necessary for the operation of the
A: The owner of a project shall, prior to the building,andlegal,accountingand
conveyanceofanycondominiumtherein,register other professional and technical
a declaration of restrictions relating to such services;
project. d. Forpurchaseofmaterials,supplies
and the like needed by the
Suchrestrictionsshallconstitutealienuponeach commonareas;
condominium in the project, and shall insure to e. For payment of taxes and special
andbindallcondominiumownersintheproject. assessmentswhichwouldbealien
upontheentireprojectorcommon
Note:Suchliens,unlessotherwiseprovided, areas,andfordischargeofanylien
may be enforced by any condominium orencumbranceleviedagainstthe
ownerintheprojectorbythemanagement entire project or the common
bodyofsuchproject. areas;
f. For reconstruction of any portion
Q: What should a declaration of restrictions or portions of any damage to or
provide? destructionoftheproject;
g. The manner for delegation of its
A:Thedeclarationofrestrictionsshallprovidefor powers;
themanagementoftheprojectbyanyoneofthe h. Forentrybyitsofficersandagents
followingmanagementbodies: into any unit when necessary in
1. acondominiumcorporation, connection with the maintenance
2. an association of the condominium or construction for which such
owners, bodyisresponsible;
3. a board of governors elected by i. For a power of attorney to the
condominiumowners,or management body to sell the
4. a management agent elected by the entireprojectforthebenefitofall
owners or by the board named in the of the owners thereof when
declaration. partition of the project may be
5. votingmajorities, authorized under Section 8 of the
6. quorums, Condominium Act, which said
7. notices, power shall be binding upon all of
8. meetingdate,and the condominium owners
9. other rules governing such body or regardlessofwhethertheyassume
bodies. the obligations of the restrictions
ornot.
Q: What may a declaration of restrictions
provide? 2. The manner and procedure for
amending such restrictions:Provided,
A: Such declaration of restrictions, among other Thatthevoteofnotlessthanamajority
things,mayalsoprovide: ininterestoftheownersisobtained.
3. For independent audit of the accounts
1. Astoanysuchmanagementbody; ofthemanagementbody;
a. For the powers thereof, including 4. For reasonable assessments to meet
powertoenforcetheprovisionsof authorized expenditures, each
thedeclarationsofrestrictions; condominium unit to be assessed
b. For maintenance of insurance separately for its share of such
policies, insuring condominium expenses in proportion (unless
owners against loss by fire, otherwise provided) to its owners
casualty, liability, workmen's fractional interest in any common
compensation and other insurable areas;
275

5. For the subordination of the liens Q:Maythemanagementbodymayacquireand
securing such assessments to other hold, for the benefit of the condominium
liens either generally or specifically owners, tangible and intangible personal
described; property and dispose of the same by sale or
6. For conditions, other than those otherwise?
providedforinSections8and13ofthe
Act,uponwhichpartitionoftheproject A: Yes, unless otherwise provided for by the
and dissolution of the condominium declarationofrestrictions.
corporationmaybemade. Note: The beneficial interest in such personal
property shall be owned by the condominium
Note:Suchrighttopartitionordissolution owners in the same proportion as their respective
maybeconditionedupon: interestsinthecommonareas.
a. failure of the condominium owners
torebuildwithinacertainperiod; A transfer of a condominium shall transfer to the
b. specified inadequacy of insurance transferee ownership of the transferor's beneficial
proceeds; interestinsuchpersonalproperty.
c. specified percentage of damage to
thebuilding; CONDOMINIUMCORPORATIONS
d. adecisionofanarbitrator;or
e. upon any other reasonable Q:Whatisacondominiumcorporation?
condition.
A: A corporation specially formed for the
Q: What is theduty of the Register of Deeds as purpose,inwhichtheholdersofseparateinterest
regardsthisdeclarationofrestrictions? shall automatically be members or shareholders,
to the exclusion of others, in proportion to the
A:TheRegisterofDeedsshallenterandannotate appurtenant interest of their respective units in
thedeclarationofrestrictionsuponthecertificate thecommonareas.
of title covering the land included within the
project,ifthelandispatentedorregisteredunder Note: As regards title to the common areas,
theLandRegistrationorCadastralActs. including the land, or the appurtenant interests in
such areas, these may be held by a condominium
POWERSOFANDRESTRICTIONSUPON corporation.
MANAGEMENTBODY
Q: What is the term of a condominium
Q:Whataretherestrictionsimposedbythelaw corporation?
upon corporations which is also the
managementbodyofthecondominiumproject? A: Coterminus with the duration of the
condominium project, the provisions of the
A:Therestrictionsareasfollows: CorporationLawtothecontrarynotwithstanding.

1. The corporate purposes of such a
corporationshallbelimitedtothe: Membership
a. holding of the common areas,
either in ownership or any other Q:Whataretherulesregardingmembershipina
interestinrealpropertyrecognized condominiumcorporation?
bylaw,
b. managementoftheproject,and A: Membership in a condominium corporation,
c. to such other purposes as may be regardless of whether it is a stock or nonstock
necessary,incidentalorconvenient corporation, shall not be transferable separately
to the accomplishment of said from the condominium unit of which it is an
purposes. appurtenance.
2. Thearticlesofincorporationorbylaws
ofthecorporationshallnotcontainany Note:Whenamemberorstockholderceasestoown
provision contrary to or inconsistent a unit in the project in which the condominium
withthe: corporation owns or holds the common areas, he
a. provisionsoftheAct; shall automatically cease to be a member or
b. enablingormasterdeed;or stockholderofthecondominiumcorporation.
c. declaration of restrictions of the
project.
276 CIVILLAWTEAM:

SALES
Q: May a condominium corporation sell, superior rights of the corporation

exchange, lease or otherwise dispose of the creditors.
common areas owned or held by it in the
condominiumproject? Note: Such transfer or conveyance shall
be deemed to be a full liquidation of the
A: interestofsuchmembersorstockholders
GR:Duringitsexistence,itcannotdoso. inthecorporation.

XPN:Ifauthorizedbytheaffirmativevoteof 2. After such transfer or conveyance, the
allthestockholdersormembers. provisions of this Act governing
undivided coownership of, or
Q: Is the so called appraisal right under the undivided interest in, the common
Corporation Code available to stockholders or areas in condominium projects shall
membersofacondominiumcorporation? fullyapply.

A: Q: When may voluntary dissolution of a
GR:Notavailable.Thelawprovidesthatthe condominiumcorporationbeallowed?
bylaws of a condominium corporation shall
provide that a stockholder or member shall A:Acondominiumcorporationmaybevoluntarily
not be entitled to demand payment of his dissolvedonly:
sharesorinterestinthosecaseswheresuch 1. when the enabling or the master deed
right is granted under the Corporation Law of the project in which the
xxx condominium corporation owns or
holdsthecommonareaisrevoked;and
XPN:Ifsaidstockholderormemberconsents 2. uponashowingthat:
tosellhisseparateinterestintheprojectto a. three years after damage or
the corporation or to any purchaser of the destructiontotheprojectinwhich
corporation'schoicewhoshallalsobuyfrom the corporation owns or holds the
the corporation the dissenting member or common areas, which damage or
stockholder'sinterest. destructionrendersamaterialpart
thereof unfit for its use prior
Note: In case of disagreement as to price, the thereto, the project has not been
procedure set forth in the appropriate rebuilt or repaired substantially to
provision of the Corporation Law for valuation its state prior to its damage or
ofsharesshallbefollowed. destruction;or

The corporation shall have two years within b. damage or destruction to the
which to pay for the shares or furnish a project has rendered onehalf or
purchaserofitschoicefromthetimeofaward. more of the units therein
untenantable and that more than
All expenses incurred in the liquidation of the thirty percent of the members of
interest of the dissenting member or the corporation, if nonstock, or
stockholdershallbebornebyhim.
the shareholders representing
more than thirty percent of the
capital stock entitled to vote, if a

DissolutionandLiquidation
stock corporation, are opposed to
therepairorreconstructionofthe
Q: What is the effect of involuntary dissolution
project,or
of a condominium corporation for any of the

causesprovidedbylaw?
c. theprojecthasbeeninexistencein
excess of fifty years, that it is

A:
obsolete and uneconomical, and
1. The common areas owned or held by
thatmorethanfiftypercentofthe
the corporation shall, by way of
members of the corporation, if
liquidation, be transferred proindiviso
nonstock, or the stockholders
andinproportiontotheirinterestinthe
representing more than fifty
corporation to the members or
percent of the capital stock
stockholders thereof, subject to the
entitled to vote, if a stock
corporation, are opposed to the
277

repairorrestorationorremodeling the corporate and of individual condominium
ormodernizingoftheproject;or creditors.

d. the project or a material part Q:WhatshouldtheCourtdoif,inanactionfor
thereof has been condemned or partition of a condominium project or for the
expropriated and that the project dissolution of condominium corporation on the
is no longer viable, or that the ground that the project or a material part
members holding in aggregate thereof has been condemned or expropriated,
more than seventy percent the Court findsthat theconditionsprovided for
interest in the corporation, if non intheCondominiumActorinthedeclarationof
stock, or the stockholders restrictionshavenotbeenmet?
representing more than seventy
percent of the capital stock A: The Court may decree a reorganization of the
entitled to vote, if a stock project,declaringwhichportionorportionsofthe
corporation, are opposed to the projectshall continueasacondominiumproject,
continuation of the condominium the owners thereof, and the respective rights of
regime after expropriation or said remaining owners and the just
condemnation of a material compensation,ifany,thatacondominiumowner
portionthereof;or may be entitled to due to deprivation of his
property.
e. the conditions for such a
dissolution set forth in the Note: Upon receipt of a copy of the decree, the
declaration of restrictions of the RegisterofDeedsshallenterandannotatethesame
project in which the corporation onthepertinentcertificateoftitle.
owns or holds the common areas,
havebeenmet. Assessment,NoticethereofandLienCreated

Note: action for voluntary dissolution is that under Q: If real property has been divided into
Rule104oftheRulesofCourt. condominiums, how will it be assessed for
taxationpurposes?
Q: May the members or stockholders of a
condominium corporation dissolve such A: Each condominium separately owned shall be
corporation? separatelyassessed,forpurposesofrealproperty
taxation and other tax purposes to the owners
A: Yes, by the affirmative vote of all the thereof and the tax on each such condominium
stockholdersor membersthereofatageneralor shallconstitutealiensolelythereon.
special meeting duly called for the
purpose:Provided, that all the requirements of Q:Whoshouldpayforanassessmentuponany
Section 62 of the Corporation Law are complied condominium made in accordance with a duly
with. registereddeclarationofrestrictions?

Q: What is the consequence of voluntary A:Itisanobligationoftheownerthereofatthe
dissolutionofacondominiumcorporation? timetheassessmentismade.

A: Q: What are the rules as regards the notice of
GR:Thecorporationshallbedeemedtohold assessment?
apowerofattorneyfromallthemembersor
stockholders to sell and dispose of their A:Thenotice:
separateinterestsintheproject. 1. is to be registered with the Register of
XPN: Unless otherwise provided for in the Deeds of the city or province where
declarationofrestrictions suchcondominiumprojectislocated.
2. shallstatethefollowing:
Q: How is a condominium corporation a. amount of such assessment and
liquidated? suchotherchargesthereonasmay
beauthorizedbythedeclarationof
A:Liquidationofthecorporationshallbeeffected restrictions,
byasaleoftheentireprojectasifthecorporation b. a description of the condominium
ownedthewholethereof,subjecttotherightsof unit against which same has been
assessed,and
278 CIVILLAWTEAM:

SALES
c. the name of the registered owner Q: What are the rules as regards labor
thereof. performedorservicesormaterialsfurnished?
3. Such notice shall be signed by an
authorized representative of the A:
management body or as otherwise 1. If with the consent of or at the request
provided in the declaration of ofacondominiumownerorhisagentor
restrictions. hiscontractororsubcontractor:
GR: it shall not be the basis of a lien
Q: What is the effect if the management body against the condominium of any other
causes a notice of assessment to be registered condominiumowner
withtheregisterofdeeds? XPN:suchotherownershaveexpressly
consented to or requested the
A: The amount of any such assessment plus any performanceofsuchlabororfurnishing
other charges thereon, such as interest, costs ofsuchmaterialsorservices.
(including attorney's fees) and penalties, as such
may be provided for in the declaration of Note: Such express consent shall be
restrictions,shallbeandbecomealienuponthe deemed to have been given by the
condominiumassessed. owner of any condominium in the
case of emergency repairs of his
Note: Effect of payment: Upon payment of said condominiumunit.
assessment and charges or other satisfaction
thereof, the management body shall cause to be 2. If performed or furnished for the
registeredareleaseofthelien. commonareasandifdulyauthorizedby
themanagementbodyprovidedforina
Q:Whataretherulesasregardstheliencreated declarationofrestrictionsgoverningthe
incaseofunpaidassessments,etc? property: shall be deemed to be
performed or furnished with the
A: express consent of each condominium
GR: Such lien shall be superior to all other owner.
liens registered subsequent to the
registrationofsaidnoticeofassessment Q: How may an owner of any condominium
XPNs: removehiscondominiumfromalienagainsttwo
1. realpropertytaxliensaresuperior; ormorecondominiumsoranypartthereof?
2. whendeclarationofrestrictionsprovide
for the subordination thereof to any A: By payment to the holder of the lien of the
otherliensandencumbrances. fraction of the total sum secured by such lien
whichisattributabletohiscondominiumunit.
Q: What is the rule as regards enforcement of
thelien?

A: Such liens may be enforced in the same
manner provided for by law for the judicial or
extrajudicial foreclosure of mortgages of real
property.

Q: Can the management body bid in the
foreclosure sale based on the lien for unpaid
assessments?

A:
GR: No, the management body shall have
powertobidatforeclosuresale.

XPN: Unless otherwise provided for in the
declarationofrestrictions,
Note: The condominium owner shall have the

samerightofredemptionasincasesofjudicialor
extrajudicialforeclosureofmortgages.
279

SUCCESSION Note: Under this theory the basis of
successionisasortoffamilycoownership
I.GENERALPROVISIONS withtheresultthatlegalsuccessionisthe
normal procedure and testamentary
A.DEFINITION/WHATISTRANSMITTED succession, the exception or one of the
limitations.
Q:Whatissuccession?
3. EclecticTheoryAccordingtothisview,
A:Successionisamodeofacquisitionbyvirtueof the basis of testamentary succession is
which the property, rights and obligations to the the right of ownership but the basis of
extentofthevalueoftheinheritanceofaperson, legal or intestate succession is the ties
are transmitted through his death to another or of blood and the right of family co
others either by his will or by operation of law. ownership.(Caguioa,p.2)
(Art.774)
Q:Whatarethecharacteristicsofsuccession?
Q:Whatisthebasisofsuccession?
A:
A: 1. Itisamodeofacquisition;
1. Negative Theories refer to those 2. Onlyproperty,rightsandobligationsto
which deny to succession any rational the extent of the value of the
basis and which have been formulated inheritancearetransmitted;
by the individualistic and socialistic 3. Thetransmissiontakesplaceonlyatthe
schools. timeofdeath;
a. There can be no testamentary 4. The transmission takes place either by
succession because these rights willorbyoperationoflaw.
aremerelythecreationsofthewill
of a person who is devoid of any Q:Whataretherequisitesofsuccession?
will,beingalreadydead.
b. There can be no intestate A:DATE
successionbecausethecommunity 1. Deathofdecedent;
of property in the family can only 2. Acceptance of the inheritance by the
be conceived of as long as the successor;
latterexists. 3. Transmissibleestate;
4. Existence and capacity of successor,
Note: According to this view, the designatedbydecedentorlaw.
propertiesof the deceased are converted
intoresnulliuswhich,tothejudgmentof B.SUCCESSIONOCCURSATTHEMOMENTOF
others, fall under the ownership of the DEATH
firstoccupantwhogenerallyistherelative
nearestindegreeand,tothejudgmentof Q:Whenarerightstosuccessiontransmitted?
others,belongtothestate.
A: The rights to succession are transmitted from
2. Positive Theories Those which base the moment of the death of the decedent. (Art.
succession on the right of property. 777)
According to this view, succession is
based on individual ownership and the Note: Although, the provision states that the rights
power of the owner to dispose of the are transmitted upon the death of a person, it is
same. rathervestedupondeath.
a. If an owner can freely dispose of
hispropertieswithsuchconditions Q:Whatistransferredbydeathinsuccession?
as he may deem convenient, then
itfollowsthathecandistributethe A: Only the property, rights and obligations not
sameafterhisdeathsincethewill extinguished by death are transmitted to the
is nothing more than the heirs.
instrumentofalienationsubjectto
theconditionofdeath.
b. Those which base succession on
therightoffamily

280 CIVILLAWTEAM:

SUCCESSION
Q:Areafteracquiredpropertiesofthedecedent Note:Thisisanexceptiontothegeneralrulethat
transmissible? contracts or obligations are binding upon the
parties,theirheirsorsuccessorsininterest.
A:
GR: Property acquired during the period Q: What are the obligations that are
between the execution of the will and the extinguishedbydeath?
deathofthetestatorisnotincluded.
A:
XPN: When a contrary intention expressly 1. Monetary obligations are not
appearsinthewill.(Art.793) transmittedtotheheirs.
Note:Appliesonlytolegaciesanddevisesand 2. Nonmonetary obligations are
nottoinstitutionofheirs. transmittedtotheheirs.

Theinheritanceofapersonincludesnotonly Q:Mayheirsbeheldliableforthedebtsor
thepropertyandthetransmissiblerightsand obligationsofthedecedent?
obligations existing at the time of his death,
but also those which have accrued thereto A:
sincetheopeningofthesuccession.(Art.781) GR:No.Itistheestatethatpaysforthedebts
leftbythedecedent.
Q: What is the general rule as regards
transmissibilityofrights? XPN: It is true that the heirs assume liability
for the debts of the decedent, although it is
A:Iftherightorobligationisintuitupersonae,itis limited only to the extent of the value of the
intransmissible,otherwiseitistransmissible. inheritance received. (Estate of Hemady v.
Luzon Surety Co., G.R. No. L8437, Nov. 28,
Note:Intuitupersonaemeansstrictlypersonal. 1956)

Q:Whatrightsarenottransferredbythedeath Note:Theheirsarenotpersonallyliablewith
ofaperson? theirownindividualpropertiesforthemonetary
obligations/debtsleftbythedecedent.
A:
1. Purelypersonalrights; Q: Is a contract of guaranty extinguished by
2. Rights which are made intransmissible death?
bystipulationoftheparties;
3. Rights which are intransmissible by A: No, because a contract of guaranty does not
provisionoflaw. fall in any of the exceptions under Art. 1311
(relativityofcontracts).Aguarantorsobligationis
Note: All other rights are transmissible to the heirs basicallytopaythecreditoriftheprincipaldebtor
uponthedeathofaperson. cannot pay. Payment does not require any
personal qualifications. The personal
Q: What are the rights that are extinguished by qualifications become relevant only at the time
death? theobligationisincurredbutnotsoatthetimeof
discharge or fulfillment of the obligation. (Estate
A:PAPULP of Hemady v. Luzon Surety Co., Inc., G.R. No. L
1. Partnershiprights 8437,Nov.28,1956)
2. Agency
3. Personaleasements Q: The wife died while the action for legal
4. Usufruct separation waspending. Her children, however,
5. Legalsupport wanted to continue the action. They ask that
6. Parentalauthority they be allowed to substitute their deceased
mother, arguing that the action should be
Q: What obligations or contracts are not allowedtocontinue.Decide.
transmittedbydeath?
A:Thechildrencannotbesubstitutedinanaction
A:Thosewhicharemadeintransmissible: for legal separation upon the death of their
1. bytheirnature; mother who filed the case. An action for legal
2. bystipulation;or separation is purely personal on the part of the
3. byprovisionoflaw(Art.1311) innocent spouse because such an action affects

281

the marital status of the spouses. (Bonilla v. C.KINDSOFSUCCESSORS
Barcena,G.R.No.L41715,June18,1976)
Q:Whatarethekindsofheirs?
Q: Fortunata died while her action for quieting
oftitleofparcelsoflandwaspending.Doesher A:
deathresultintheextinguishmentoftheaction 1. Voluntary called to succeed either by
ormayherheirssubstituteherinthecase? virtueofthewillofthetestator:
a. Devisee
A: Her heirs may substitute her because the b. Legatee
actionisnotextinguishedbyherdeath.Sincethe
rightstothesuccessionaretransmittedfromthe Note: An heir is one who succeeds to
momentofthedeathofthedecedent,fromthat the whole (universal) or aliquot part of
moment, the heirs become the absolute owners the estate. Devisee or legatee is one
of his property, subject to the rights and who succeeds to definite, specific, and
obligations of the decedent, and they cannot be individualizedproperties.
deprived of their rights thereto except by the
methods provided for by law. The right of the 2. Compulsory called by law to succeed
heirs to the property of the deceased vests in to a portion of the testators estate
them upon such death, even before judicial knownaslegitime.
declaration of their being heirs in the testate or
intestateproceedings. 3. LegalorIntestatebyoperationoflaw
throughintestatesuccession.
When she died, her claim or right to the parcels
of land in litigation was not extinguished by her Q:Whoaredeviseesandlegatees?
deathbutwastransmittedtoherheirsuponher
death. Her heirs have thus acquired interest in A: Devisees are persons to whom gifts of real
thepropertiesinlitigationandbecamepartiesin property are given by virtue of a will. On the
interest in the case. (Bonilla v. Barcena, et al., other hand, Legatees are persons to whom gifts
G.R.No.L41715,June18,1976) ofpersonalpropertyaregivenbyvirtueofawill

Q: Can the heir enter into a contract of sale, Q: What are the distinctions between heirs and
conveyance or any disposition pertaining to his legatees/devisees?
interest in the inheritance even pending the
settlementoftheestate? A:
HEIRS DEVISEESORLEGATEES
A: Yes, because his hereditary share/interest in Astorepresentationofdeceasedsjuridicalperson
the decedents estate is transmitted or vested Representthejuridical Neverrepresentthe
immediately from the moment of decedents personalityofthe personalityofthe
death.Thisis,however,subjecttotheoutcomeof deceasedandacquire deceasednomatter
thesettlementproceedings. theirrights,withcertain howbigthelegacyor
exceptionstohis thedeviseis
Q:Whatisthenatureofthetransactionentered obligations
into by the heir pertaining to his hereditary Determinabilityofamountofinheritance
share in the estate pending the settlement of Inheritanundetermined Arealwaysgivena
theestate? quantitywhoseexact determinatethingora
amountcannotbe fixedamount
A:Theeffectofsuchtransactionistobedeemed knownaprioriand
limited to what is ultimately adjudicated to the whichcannotbefixed
heir. However, this aleatory character of the untiltheinheritanceis
contract does not affect the validity of the liquidated
transaction. Extentofsuccessionalright
Succeedtothe Onlysucceedtothe
Q:Mayanheirconveyfutureinheritance? remainderofthe determinatethingor
propertiesafterallthe quantitywhichis
A:Nocontractmaybeenteredintouponafuture debtsandallthelegacies mentionedinthelegacy
inheritance except in cases expressly authorized anddeviceshavebeen ordevise
bylaw(Art.1347). paidorgiven
Astowhentheyexist
282 CIVILLAWTEAM:

SUCCESSION
Canexistwhetherthe Onlyintestamentary Q:Whoarethecompulsoryheirs?

successionbetestateor succession
intestate A:
Effectofpreterition 1. Legitimate children and descendants
Theinstitutionofanheir Thelegaciesanddevises (LCD)
isentirelyannulled remainvalidinsofaras 2. Legitimate parents and ascendants
theyarenotinofficious. (LPA)
Effectofdefectivedisinheritance 3. Survivingspouse(SS)
Incaseofimperfector Thelegaciesand
defectivedisinheritance, deviseesremainvalid Legitimatechildrenanddescendants(LCD)
theinstitutionofanheir insofarastheyarenot
isannulledtotheextent inofficious. Q:Isanadoptedchildacompulsoryheir?
thatthelegitimesare
impaired. A: Legitimate children includes adopted
childrenandlegitimatedchildren.
Q: Suppose a person is named tosucceed toan
entire estate. The estate, however, consists of Under R.A. 8552 or the Domestic Adoption Law
only one parcel of land. Is he an heir or a adoptedchildrenhavethesamerightsgrantedto
devisee? the legitimate children. Adopted children, for all
intentsandpurposesareconsideredaslegitimate
A:Itdependsonthemannerofhisdesignationin children.
thewill. Here,becauseheiscalledtoinheritthe
entireestate,heisanheir. Hence,theadoptedchildrencanalreadyexclude
legitimateparents/ascendants.
Q:Inwhatinstancesdothedistinctionsbetween
heirsanddevisees/legateesbecomesignificant? Legitimateparentsandascendants(LPA)
A: Q: When do legitimate parents and ascendants

inherit?
1. Preterition
2. Imperfect/defectivedisinheritance A: Legitimate parents and ascendants inherit in
3. Afteracquiredproperty default of legitimate children and descendants.
4. Acceptance or repudiation of Theyaresecondarycompulsoryheirs.
successionalrights
Q:Isthepresenceofillegitimatechildrenofthe
Q: What are the classifications of compulsory decedentexcludetheLPA?
heirs?
A:No.Legitimateparentsandascendantsconcur
A: withtheillegitimatechildrenofthedecedent.
1. PrimarycompulsoryheirsTheyarenot
excluded by the presence of other However, if the decedent is himself illegitimate,
compulsoryheirs. his illegitimate children exclude the illegitimate
parentsandascendants.
E.g. legitimate children, surviving
Survivingspouse(SS)
spouse
2. Secondary compulsory heirs Those
Q: Can a common law spouse be a compulsory
who succeed only in default of the
heir?
primarycompulsoryheirs.
E.g.legitimateascendants A:No.Theremustbevalidmarriagebetweenthe
decedent and the surviving spouse. If the
3. Concurring compulsoryheirsTheyget marriage is null and void, the surviving spouse
their legitimes together with the cannotinherit.
primary or secondary heirs. Neither
excludes primary or secondary heirs, Q: How can the heirs of the decedent use the
noreachother. nullity of marriage to prevent the surviving
E.g. Surviving spouse and illegitimate spousefrominheriting?
childrenanddescendants.
A: The heirs can raise the issue of nullity of the
marriage in the same proceeding for the
283

settlementoftheestate.Thisisallowedbecause 2. Unilateral act No acceptance by the
amarriagethatisnullandvoidcanbecollaterally transferees is needed during the
attacked. lifetimeofthetestator.
3. StrictlypersonalactThedispositionof
However, in case of voidable marriages, if the property is solely dependent upon the
marriage is not annulled before the decedent testator.
died,thesurvivingspousecanstillinherit 4. Ambulatory A will is essentially
revocable during the lifetime of the
Reason:Voidablemarriagescanonlybeattacked testator.
inadirectproceeding,i.e.annulmentproceeding. 5. FreefromvicesofconsentAwillmust
have been executed freely, knowingly
Note: The surviving spouse is not a compulsory and voluntarily, otherwise, it will be
heirofhis/herparentinlaw. disallowed.
6. IndividualactAwillmustbeexecuted
Separationinfactwillnotdisqualifythesurviving only by one person. A joint will is not
spouse from getting his/her legitime, regardless allowedinthePhilippines.
ofhis/herguilt.
Note: Mutual wills Separate wills
Illegitimatechildren although containing reciprocal provisions
arenot prohibited, subjecttothe rule on
Note: Under the Family Code, there is no more disposicioncaptatoria.
distinction between acknowledged natural children
7. Solemn or formal act A will is
andillegitimatechildren.Theyareallconsideredas
executedinaccordancewithformalities
illegitimate.
prescribedbylaw.
Compulsoryheirsofapersonwhoisillegitimate:
(1)PERSONALACT;
1. Legitimatechildrenanddescendants; NONDELEGABILITYOFWILLMAKING
2. Illegitimatechildrenanddescendants;
3. In default of the foregoing, illegitimate Q:Whatismeantbystrictlypersonalact?
parentsonly;
4. Survivingspouse. A:UnderArt.784,itmeansthatinthemakingof
a will, preparation thereof cannot be wholly or
Q:Inwhatwaysmaycompulsoryheirsinherit? partially entrusted to a third person or made
A:Compulsoryheirsinheriteither: through an agent or attorney. It refers to the
1. intheirownright;or disposition of property. This is so because the
2. byrightofrepresentation essence of making a will is the disposition of
property, hence, it cannot be delegated to
II.TESTAMENTARYSUCCESSION another.

WILLS Q: Can the testator delegate to a third person
the power to determine whether or not a
1.INGENERAL testamentarydispositionistobeoperative?

A.DEFINITIONANDCHARACTERISTICS A:No.Itisnotonlythedelegationwhichisvoid;
the testamentary disposition whose effectivity
Q:Whatisawill? will depend upon the determination of the third
person is the one that cannot be made. Hence,
A:Awillisanactwherebyapersonispermitted, the disposition itself is void. (Art. 787; Tolentino,
withtheformalitiesprescribedbylaw,tocontrol p.33)
to a certain degree the disposition of his estate,
totakeeffectafterhisdeath.(Art.783) Q:Whatcannotbedelegatedtothediscretionof
athirdperson?
Q:Whatarethecharacteristicsofawill?
A: The following cannot be delegated to a third
A:Awillis: person because they comprise the disposing
1. StatutoryrightThemakingofawillis powerofthetestator:
only a statutory not a natural right. 1. Duration or efficacy of designation of
Hence,awillshouldbesubordinatedto heirs,legatees,ordevisees.
boththelawandpublicpolicy.
284 CIVILLAWTEAM:

SUCCESSION
2. Determination of the portions which b. It satisfactorily appears that he

the heirs are to receive when referred was unacquainted with such
tobyname. technicalsense.(Ibid.)
3. Determination as to whether or not a
dispositionistobeoperative.(Art.785) 3. The invalidity of one of several
dispositionscontainedinawilldoesnot
Q: What, on other hand, may be entrusted to result in the invalidity of the other
thirdpersons? dispositionsunlessitistobepresumed
A: that the testator would not have made
1. Distributionofspecificpropertyorsums such other dispositions if the first
ofmoneythatthetestatormayleavein invalid disposition had not been made.
generaltospecifiedclassesorcauses (Art.792)
2. Designation of the persons, institutions
or establishments to which such 4. Everydeviseorlegacyshallcoverallthe
property or sums are to be given or interest in the property disposed of
applied.(Art.786) unless it clearly appears from the will
that he intended to convey a less
Reason: Here, there is really no delegation interest.(Art.794)
because the testator has already set the
parametersrequiredbylaw,namely: Q:Whatarethekindsofambiguitiesinawill?
a. Thespecificationofpropertyorsumsof A:
money 1. Latent ambiguities Ambiguities which
b. Thespecificationofclassesorcauses. are not apparent on the face of a will
buttocircumstancesoutsidethewillat
Ineffect,thethirdpersonwillonlybecarryingout thetimethewillwasmade.
the will of the testator as determined by these E.g.
parameters. a. If it contains an imperfect
descriptionofpersonorproperty;
(2)RULESOFCONSTRUCTIONAND b. A description of which no person
INTERPRETATION/LAWGOVERNING orpropertyexactlyanswers
FORMALVALIDITY
2. Patent ambiguities Those which are
Q: How should the provisions of a will be apparentonthefaceofthewill.
construed? E.g.Uncertainty which arises upon the face
ofthewillastotheapplicationofanyofits
A:Asageneralrule,thelanguageofawillshould provisions.(Art.789)
be liberally construed and as much as possible,
the intention of the testator should be given Q: What are the steps in resolving the
effect. ambiguities?
A:
Incaseofdoubt,thatinterpretationbywhichthe 1. Examinethewillitself;
dispositionistobeoperativeshallbepreferred. 2. Refer to extrinsic evidence or the
Reason: Testacy is preferred over intestacy. (Art. surrounding circumstances, except oral
791) declarations of the testator as to his
intention.
Q: What are the rules in the construction of
Wills? Reason: Because the testator can no longer
A: refutewhateverisattributedtohim.
1. Words of the will are to be taken in
their ordinary and grammatical sense 2.TESTAMENTARYCAPACITYANDINTENT
unless there is a clear intention to use
theminanothersensecanbegathered, Q:Whocanmakeawill?
andthatcanbeascertained.(Art.790)
A: All persons who are not expressly prohibited
2. Technicalwordsaretobetakenintheir bylawmaymakeawill.(Art.796)
technicalsense,unless:
a. The context clearly indicates a Thelawpresumescapacitytomakeawill;hence,
contraryintentionor in order that a person may be disqualified to
285

make one, he must be expressly prohibited by A.AGEREQUIREMENT
law.
Q:Canapersonundereighteenyearsoldmakea
Note:Theabilityaswellasthepowertomakeawill will?
mustbepresentatthetimeoftheexecutionofthe
will. A:No.Personsofeithersexundereighteenyears
oldcannotmakeawill.(Art.797)
Supervening incapacity does not invalidate an
effectivewill,noristhewillbyanincapableperson Q:Whenissoundnessofthemindrequired?
validatedbythesuperveningofcapacity.(Art.801)
A:Itisessentialonlyatthetimeofthemaking(or
Q: What are the requisites of testamentary execution)ofthewill.(Art.798;AlsuaBettsv.CA,
capacity? 92SCRA332;Rabuya,CivilLawReviewer,p.527)

A: Q:Whatisthestatusofthewillifthetestatoris
1. Atleast18yearsofage;and notofsoundmindatthetimeofitsexecution?
2. Ofsoundmind
A: The will is invalid regardless of his state of
Note: It is not necessary that the testator be in full
mind before or after such execution. In other
possession of all his reasoning faculties, or that his
words,thewillofanincapableisnotvalidatedby
mind be wholly unbroken, unimpaired, or
thesuperveningofcapacity.(Art.801;id.)
unshatteredbydisease,injuryorothercause.

Note: Conversely, if the testator was of sound
Itshallbesufficientifthetestatorwasableatthe
mindatthetimeofthemakingofthewill,thewill
timeofmakingthewilltoknowthe:
is valid even if the testator should later on
a. natureoftheestatetobedisposedof;
becomeinsaneanddieinthatcondition.Inother
b. properobjectsofhisbounty;and
words,superveningincapacitydoesnotinvalidate
c. characterofthetestamentaryact.
aneffectivewill.(id.,pp.527528)

Q:Whoarethosepersonsexpresslyprohibited
Q:Ifthereisnoproofastothesoundnessofthe
bylawtomakeawill?
mindofthetestatoratthetimeheexecutedhis

will,whatisthestatusofhiswillassumingthat
A:
he complies with all other requisites for its
1. Personsofeithersexunder18yearsof
validity?
age(Art.797)

2. Persons who are not of sound mind
A:Thewillisvalid.Thisissobecausegenerally,in
(Art.798)
absence of proof to the contrary, the law

presumesthateverypersonisofsoundmind.
Q: Is a person suffering from civil interdiction

qualifiedtomakeawill?
Such presumption of soundness of mind,

however,doesnotariseifthetestatorwas:
A: Yes. He is deprived only of the power to
1. Publicly known to be insane, one
dispose of his properties through acts inter vivos
month,orless,beforemakinghiswill;
but not through acts mortis causa. (Art. 34,
2. Under guardianship at the time of the
Revised Penal Code; Rabuya, Civil Law Reviewer,
makingofthewill.
p.527)

Note: Mere weakness of mind or partial imbecility
Q: Is a married woman required to obtain the
from disease of body or from age does not
consentofthehusbandandtheauthorityofthe necessarily render a person incapable of making a
courtbeforeshecanmakeawill? will.

A: No. She can make a will even without the Q: Who has the burden of proving that the
consent of her husband and the authority of the testatoractedinlucidinterval?
court.(Art.802)
A: The person who maintains the validity of the
Note:Amarriedwomanmaydisposeofherseparate willbasedonthesaidground.(Rabuya,CivilLaw
property and her share in the conjugal or absolute
Reviewer,p.530)
communityproperty.

286 CIVILLAWTEAM:

SUCCESSION
Q: When Brenda was a baby, she was accordancewiththelawofthecountrywherehe

accidentally dropped by her mother when her isacitizenorsubject,andwhichmightbeproved
mother saw a cockroach. As a result, she and allowed by the law of his own country. (Art.
suffered from insanity. When she was in her 817)
thirties,sheexecutedawill.Aftersometime,her
brain damage was totally cured. What is the Q: Is a joint will executed by a Filipino in a
statusofthewill? foreigncountryvalid?

A: Still void. The will of an incapable cannot be A:No.Thesameholdstrueevenifitisauthorized
validated by supervening capacity. What is bythelawofthecountrywherethejointwillwas
importantisthattheability,aswellasthepower executed.(Art.819)
tomakeawillmustbepresentatthetimeofthe
executionofthewill. (1)LAWGOVERNINGSUBSTANTIVEVALIDITY

Q:Willyouranswerbethesameifthesituation Q:WhatarethemattersmentionedinArticle15
was the reverse Brenda developed insanity of the New Civil Code which are governed by
aftersheexecutedherwill? Philippinelaws?

A:No.Superveningincapacitydoesnotinvalidate A:1.familyrightsandduties
aneffectivewill,hencethewillisvalid. 2.status;
3.condition;and
Q:Mayanilliterateexecuteawill? 4.legalcapacityofpersons.(Art.15)

A: Q: What are the matterspertaining to intestate
GR:Yes,anilliteratecanmakeanordinaryor and testamentary successions which are
notarial will because a person who does not regulatedbythenationallawofthedeceased?
know how to read and write does not mean
hedoesnotunderstandthelanguage. A:1.Orderofsuccession
2.amountofsuccessionalrights
XPN:Theilliteratecannotmakeaholographic 3.intrinsicvalidityoftestamentaryprovisions
will. 4.capacitytosucceed.(Art.16;Art.1039)

3.FORM B.COMMONREQUIREMENTS

A.FORMALVALIDITYRULES Q: What are the formal requirements common
tobothnotarialandholographicwills?
Q:Whatlawgovernstheformsandsolemnities
ofwills? A:
1. Inwriting;
A:Itisthelawofthecountrywherethewillwas 2. In a language or dialect known to the
executed that governs the form and solemnities testator.
st
ofwills.(Art.17,1 paragraph;Art.815) 3.
Note:Theobjectofthesolemnitiessurroundingthe
Q:Whataretheeffectsofawillexecutedbyan execution of wills is to close the door against bad
alienabroad? faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and
A: The will of an alien who is abroad produces authenticity.
effect in the Philippines if made with the
formalities prescribed by the law of the place in (1)INWRITING
which he resides, or according to the formalities
observed in his country, or in conformity with Q:Istherulethateverywillmustbeinwriting
thosewhichtheCivilCodeprescribes.(Art.816) mandatory?

Q:Whataretheeffectsofawillexecutedbyan A:Yes.Ifthewillisnotinwriting,itisvoidand
alieninthePhilippines? cannotbeprobated.(Rabuya,CivilLawReviewer,
p.531)
A: It shall produce the same effect as if it was
Note:Philippinelawsdonotrecognizethevalidityof
executed in the Philippines if it is executed in
nuncupativewills,whichareoralwillsdeclaredor
287

dictated by the testator and dependent merely on Note: The fact that the testator knew the language
oraltestimony.(id.) need not appear on the face of the will. This fact
maybeprovenbyextrinsicevidence.
Q: In case of a holographic will, what is the
requirementforitsvalidity? Q:Doesthisruleapplytowitnessesinanotarial
orattestedwill?
A:Itmustbeentirelyhandwrittenbythetestator
himself.(Art.810) A: No. The rule only applies to the testator,
whether in notarial or holographic will. Further,
Q: What are the rules in relation to notarial or Art. 805 is clear that the attestation clause need
attestedwills? not be in the language known to the witnesses.
(SeeRabuya,CivilLawReviewer,supra)
A:Notarialorattestedwillmaybe:
1. entirely handwritten by a person other (1)ARTS.805806
thanthetestator;
2. partly handwritten by the testator Q:Whataretheformalitiesintheexecutionofa
himself and partly handwritten by notarialwill?
anotherperson;
3. entirely printed, engraved or A:WESAPNAN
lithographed;or 1. InWriting;
4. partlyhandwritten(whetherbytestator 2. Executedinalanguageordialectknown
or another person) and partly printed, tothetestator;
engravedorlithographed.(Rabuya,Civil 3. Subscribedbythetestatorhimselforby
LawReviewer,p.531) the testators name written by some
otherpersoninhispresenceandunder
(2)LANGUAGE/DIALECTREQUIREMENT hisexpressdirectionattheendthereof,
atthepresenceofwitnesses;
C.NOTARIALWILLS 4. Attestedtoandsubscribedbyatleast3
credible witnesses in the presence of
Q: Is the rule every will must be executed in a thetestatorandofoneanother;
languageknowntothetestatormandatory? 5. EachandeveryPagemustbesignedby
thetestatororbythepersonrequested
A: Yes, otherwise, the will is void. (Suroza v. by him to write his name, and by
Honrado,110SCRA388;id.) instrumental witnesses in the presence
ofeachother,ontheleftmargin;
Q: Is the fact that the will was executed in a 6. Eachandeverypageofthewillmustbe
language known to the testator required to be Numberedcorrelativelyinlettersplaced
statedintheattestationclause? ontheupperpartofeachpage;
7. Must contain an Attestation clause,
A: No. This fact can be established by extrinsic statingthefollowing:
evidenceorevidencealiunde.(Lopezv.Liboro,81 a. Thenumberofpagesofthewill,
Phil.429) b. Fact that the testator signed the
willandeverypageinthepresence
Note:Itwillbepresumedthatthewillwasexecuted ofwitnesses,orcausedsomeother
inalanguageordialectknowntothetestatorifthe persontowritehisnameunderhis
will was executed in a certain locality and that the expressdirection,
testatorwasaresidentofthatlocality.(Rabuya,Civil c. All witnesses signed the will and
LawReviewer,p.532) everypagethereofinthepresence
ofthetestatorandofoneanother;
Q: Is it presumed that the testator knows the 8. MustbeacknowledgedbeforeaNotary
dialectofthelocalitywhereheresides? public.

A:Ifthetestatorresidesinacertainlocality,itcan Q: What is the effect if one or some of the
be presumed that he knows the dialect or the requisitesarelacking?
language in the said locality. (Abangan v.
Abangan,G.R.No.13431,Nov.12,1919) A: Lack of one of the requisites is a fatal defect
whichwillrenderthewillnullandvoid

288 CIVILLAWTEAM:

SUCCESSION
Q: What is the rule in cases of omissions in the A:Ifthewillisexecutedinsubstantialcompliance

will? with all the requirements of Article 805, in the
absence of bad faith, forgery, fraud, undue and
A: Omissions which can be supplied by an improperpressureorinfluence.(SeeArt.809)
examinationofthewillitself,withouttheneedof
resorting to extrinsic evidence, will not be fatal (4)REQUISITES
and, correspondingly, would not obstruct the
allowancetoprobateofthewillbeingassailed. WITNESSES

However,evidencealiundearenotallowedtofill Q:Whatarethequalificationsofwitnesses?
a void in any part of the document or supply
missing details that should appear in the will A:Witnessestoawillmustbe:S18ABCD
itself. They only permit a probe into the will, an 1. OfSoundmind.
exploration into its confines, to ascertain its 2. Atleast18yearsofage.
meaning or to determine the existence or 3. Abletoreadandwrite
absence of the requisite formalities of law. 4. NotBlind,deafordumb
(Caedav.CA,G.R.No.103554,May28,1993) 5. Not have been Convicted by final
judgmentoffalsificationofadocument,
(2)SPECIALRULESFORHANDICAPPED perjuryorfalsetestimony.
TESTATORS 6. DomiciledinthePhilippines

Q: What are the special requirements if the Q: Will the beneficial interest of a witness in a
testatorisdeaformute? willdisqualifyhimassuch?

A: A: Beneficial interest in a notarial will does not
1. If the testator is able to read, he must disqualify one as a subscribing witness, but it
personallyreadthewill;or may,ormaynotnullifythedeviseorlegacygiven
2. If the testator is unable to read, he tothesaidwitness.
must designate two persons to read it
and communicate to him, in some Awitnesswhoatteststheexecutionofawill,and
practicable manner, the contents towhom,ortowhosespouse,parentorchild,or
thereof.(Art.807;seeRabuya,CivilLaw anyoneclaimingtherightofsaidwitness,spouse,
Reviewer,p.559) parentorchild,adeviseorlegacygiven,shallbe
void, unless there are 3 other competent
Note: The law does not require that the persons witnessestosuchwill.(Art.823NCC)
readingandcommunicatingthecontentsofthewill
betheinstrumentalwitnesses.(id.,p.560) Note: If the witness is instituted as heir, not as
devisee or legatee, the rule would still apply,
Q: What are the special requirements if the becauseundueinfluenceorpressureonthepartof
testatorisblind? theattestingwitnesswouldstillbepresent.

A:Thewillshallbereadtohimtwice,oncebyone Creditorsofthetestatorarenotdisqualifiedtobea
ofthesubscribingwitnesses,andanothertimeby witnesstothewill.
the notary public before whom the will is
acknowledged.(Art.808;id.) Q:Steviewasbornblind.Hewenttoschoolfor
the blind, and learned to read in Braille
Note:Art.808appliesnotonlytoblindtestatorsbut language.HespeaksEnglishfluently.Canhe:
alsotothosewho,foronereasonoranother,are
incapableofreadingtheirwills,eitherbecauseof 1.Makeawill?
poorordefectiveeyesightorbecauseofilliteracy.
(id.) A:Steviemaymakeanotarialwill.Ablindmanis
notexpresslyprohibitedfromexecutingawill.In
(3)SUBSTANTIALCOMPLIANCE fact, Art. 808 of NCC provides for additional
formality when the testator is blind. Stevie
Q:Whenisawillnotrenderedinvalidbyreason however, may not make a holographic will in
of defects or imperfections in the form of Braille because the writing in Braille is not a
attestationorinthelanguageusedtherein? handwriting. A holographic will to be valid must
be entirely written, signed and dated by the
testatorinhisownhandwriting.
289

2.Actasawitnesstoawill? Note:Whentheholographicwillhadonly
one substantial provision, which was
A: A blind man is disqualified by law to be a altered by substituting the original heir
witnesstoanotarialwill. with another, andthesame did not carry
therequisitefullsignatureofthetestator,
3. In either of the instances, must the will be the entirety of the will is voided or
readtohim? revoked.

Reason: What was cancelled here was
A:IncaseStevieexecutesanotarialwill,ithasto
the very essence of the will; it
be read to him twice. First by one of the
amountedtotherevocationofthewill.
instrumentalwitnesses,andsecondbythenotary
Therefore, neither the altered text nor
public before whom the will was acknowledged.
theoriginalunalteredtextcanbegiven
(2008BarQuestion)
effect. (Kalaw v. Relova, G.R. No. L

40207,Sept.28,1984)

D.HOLOGRAPHICWILLS
2. Wherethealterationaffectsthedateof

thewillorthesignatureofthetestator.
(1)REQUIREMENTS

rd
3. If the words written by a 3 person
Q:Whatisaholographicwill?
were contemporaneous with the

execution of the will, even though
A: A holographic will is one entirely written,
authenticated by the testator, the
dated, and signed by the hand of the testator
entire will is void for violation of the
himself.Itissubjecttonootherform,andmaybe
requisitethattheholographicwillmust
made in or out of the Philippines, and need not
be entirely in the testators
bewitnessed.(Art.810)
handwriting.

Q: What are the formalities required in the
Q: Natividads holographic will, which had only
executionofholographicwill?
one substantial provision, as first written,

named Rosa as her sole heir. However, when
A:SEED
Gregorio presented it for probate, it already
1. Signedbytestatorhimself
contained an alteration, naming Gregorio,
2. Executedinalanguageordialectknown
instead of Rosa, as sole heir, but without
tohim(Art.804)
authentication by Natividads signature. Rosa
3. Entirelywritten
opposestheprobateallegingsuchlackofproper
4. Dated;
authentication. She claims that the unaltered
5. Note: In case of any insertion,
form of the will should be given effect. Whose
cancellation, erasure or alteration in a
claimshouldbegranted?
holographic will, the testator must

authenticate the same by his full
A: None. Both their claims should be denied. As
signature.(Art.814)
to Gregorios claim, the absence of proper

authentication is fatal to his cause. As to Rosas
Q: What are the effects of insertions or
rd claim,tostatethatthewillasfirstwrittenshould
interpolationsmadebya3 person?
be given efficacy is to disregard the seeming

change of mind of the testatrix. But that change
A:
of mind can neither be given effect because she
GR:Whenanumberoferasures,corrections,
failed to authenticate it in the manner required
cancellation, or insertions are made by the
by law by affixing her full signature. (Kalaw v.
testator in the will but the same have not
Hon.Relova,etc.,etal.,G.R.No.L40207,Sept.28,
been noted or authenticated with his full
1984)
signature, only the particular words erased,

corrected,alteredwillbeinvalidated,notthe
DATE
entiretyofthewill.

Q: Why is the date in a holographic will
XPN:
important?
1. Where the change affects the essence

ofthewillofthetestator;
A:Toestablishiftherewastestamentarycapacity

at the time the will was executed. Also, should
290 CIVILLAWTEAM:

SUCCESSION
there be conflicting wills, it can establish which In a later case, however, the Court ruled that the
willwasexecutedlater. requirement of at least three witnesses in case the
will is contested is mandatory. The Court explained
Q:Isitrequiredthatthedateofthewillshould that the possibility of a false document being
include the day, month and year of its adjudged as the will of the testator cannot be
execution? eliminated, which is why if the holographic will is
contested, the law requires three witnesses to
declare that the will was in the handwriting of the
A:
deceased.(id,p.564)
GR: The "date" in a holographic will should

include the day, month, and year of its The execution and contents of a lost or destroyed
execution. holographic will may not be proved by the bare
testimonyofwitnesseswhohaveseenorreadsuch
XPN: When there is no appearance of fraud, will. The will itself mustbe presented; otherwise, it
bad faith, undue influence and pressure and shall produce no effect. (Gan v. Yap, 104 Phil. 509;
the authenticity of the will is established and id.) But a photostatic copy or Xerox copy of the
the only issue is whether or not the date holographic will may be allowed because
appearing on the holographic will is a valid comparisoncanbemadewiththestandardwritings
compliancewithArt.810,NCC,probateofthe ofthetestator.(Rodelasv.Aranza,119SCRA16;id.)
holographic will should be allowed under the
principleofsubstantialcompliance. ALTERATIONS,REQUIREMENTS

Note:Inthiscase,thedatewaswrittenas"FEB./61" Q: What are the rules in case of insertion,
(Roxas v. De Jesus G.R. No. L38338 January 28, cancellation,erasureoralteration?
1985).
A: In case of insertion, cancellation, erasure or
Theexactdatethoughindicatedonlybyimplication, alterationinaholographicwill,thetestatormust
mustbewithcertainty. authenticate the same by his full signature. (Art.
814)
(2)WITNESSESREQUIREDFORPROBATE
Note: Full signature refers to the testators
Q: What are the rules governing the probate of habitual,usualandcustomarysignature.(Rabuya,
holographicwills? CivilLawReviewer,p.565)

A: In the post mortem probate of holographic Q: What is the effect if the insertion,
wills,thefollowingrulesaretobeobservedasto cancellation, erasure or alteration is not
thenumberofwitnessestobepresented: authenticatedwiththetestatorsfullsignature?

1. If the will is not contested, it shall be A:Itisconsideredasnotmade,butthewillisnot
necessarythatatleastonewitnesswho invalidated.(id.)
knowsthehandwritingandsignatureof
the testator explicitly declares that the Note:Wherethetestatorhimselfcrossedoutthe
will and the signature are in the name of the heir named, and substituted the
handwritingofthetestator. name of another, without authentication, it was
2. Ifthewilliscontested,atleastthreeof heldthatthisdidnotresultinmakingtheperson
suchwitnessesshallberequired. whose name was crossed as heir. (Kalaw v.
3. In the absence of any competent Relova,132SCRA237;id.)
witness and if the court deems it
necessary, expert testimony may be E.JOINTWILLS
resortedto.(Art.811;Rabuya,CivilLaw
Reviewer,p.563) Q:ArejointwillsallowedinthePhilippines?

Note: In an earlier case, it was held that even if A: Two or more persons cannot make a will
thegenuinenessoftheholographicwilliscontested, jointly,orinthesameinstrument,eitherfortheir
Article 811 of the NCC cannot be interpreted as to reciprocal benefit or for the benefit of a third
require the compulsory presentation of three person.(Art.818)
witnessestoidentifythehandwritingofthetestator,

underpenaltyofhavingtheprobatedenied.(Codoy
Wills, prohibited by Article 818, executed by
v.Calugay,312SCRA333;id.,pp.563564)
Filipinosinaforeigncountryshallnotbevalidin
the Philippines, even though authorized by the
291

laws of the country where they may have been estate as long s they live. John and Paula died
executed.(Art.819) tragically in the London Subway terrorist attack
in 2005. Peter and Paul filed a petition for
Q:Whatarethekindsofjointwills? probate of their parents will before a Makati
RegionalTrialCourt.
A:
1. MutualWillsexecutedpursuanttoan Q:Shouldthewillbeadmittedtoprobate?
agreement between two or more
personstodisposeoftheirpropertyina A: No, the will cannot be admitted to probate.
particular manner, each in JointwillsarevoidundertheNewCivilCode.And
consideration of the other separate evenifthejointwillexecutedbyFilipinosabroad
wills of two persons, which are werevalidwhereitwasexecuted,thejointwillis
reciprocalintheirprovisions. stillnotvalidinthePhilippines.
2. Reciprocal Wills the testators name
each other as beneficiaries under Q:Arethetestamentarydispositionsvalid?
similartestamentaryplans.
A: If a will is void, all testamentary dispositions
Q: Manuel, a F ilipino, and his American wife contained in that will are also void. Hence, all
Eleanor, executed a Joint Will in Boston, testamentary provisions contained in the void
Massachusetts when they were residing in said jointwillarealsovoid.
city. The law of Massachusetts allows the
execution of joint wills. Shortly thereafter, Q: Is the testamentary prohibition against the
Eleanor died. Can the said will be probated in divisionoftheLondonestatevalid?
thePhilippinesforthesettlementofherestate?
A: The testamentary prohibition against the
A:Yes,thewillmaybeprobatedinthePhilippines division by Peter and Paul of the London estate
insofar as the estate of Eleanor is concerned. for as long as they live, is not valid. Art. 494 of
While the Civil Code prohibits the execution of NCC provides that a donor or testator may
joint wills here and abroad, such prohibition prohibit partition for a period which may not
applies only to Filipinos. Hence, the joint will exceedtwenty(20)years.(2008BarQuestion)
which is valid where executed is valid in the
Philippines but only with respect to Eleanor.
Under Article 819, it is void with respect to 4.CODICILS,DEFINITIONANDFORMAL
Manuel whose joint will remains void in the REQUIREMENTS
Philippinesdespitebeingvalidwhereexecuted.
Q:Whatisacodicil?
AlternativeAnswer:Thewillcannotbeprobated
in the Philippines, even though valid where A:Acodicilisa supplementoradditiontoawill,
executed, because it is prohibited under Article madeaftertheexecutionofawillandannexedto
818 of the Civil Code and declared void under betakenaspartthereof,bywhichanydisposition
Article819.Theprohibitionshouldapplyevento madeintheoriginalwillisexplained,addedto,or
the American wife because the Joint will is altered.(Art.825)
offensivetopublicpolicy.Moreover,itisasingle
juridical act which cannot be valid as to one Note: A codicil is executed after the execution of a
testator and void as to the other. (2000 Bar priorwill.
Question) It must be executed in accordance with all the
formalitiesrequiredinexecutingawill.
JohnandPaula.Britishcitizensatbirth,acquired
Philippine citizenship by naturalization after
theirmarriage.Duringtheirmarriagethecouple
acquiredsubstantiallandholdingsinLondonand
inMakati.PaulaboreJohnthreechildren,Peter,
Paul and Mary. In one of their trips to London,
thecoupleexecutedajointwillappointingeach
otherastheirheirsandprovidingthatuponthe
death of the survivor between them the entire
estate would go to Peter and Paul only but the
two could notdispose of nordivide the London
292 CIVILLAWTEAM:

SUCCESSION
Q:Whatarethedistinctionsbetweenacodicil 6.REVOCATION;KINDS
andasubsequentwill?
Q:Whatisrevocation?
A:
CODICIL SUBSEQUENTWILL A: An act of the mind terminating the potential
capacityofthewilltooperateatthedeathofthe
Formsapartofthe Itisaneworaseparate testator,manifestedbysomeoutwardandvisible
originalwill. will. actorsign,symbolicthereof.
Supplementsthe
Makesdispositions
originalwill, Q:Whenmaythetestatorrevokeawill?
withoutreferencetoand
explaining,addingto,
independentofthe
oralteringanyofits A:Awillmayberevokedbythetestatoratany
originalwill.
dispositions. timebeforehisdeath.Anywaiverorrestrictionof
Ifitprovidesforafull thisrightisvoid.(Art.828)
dispositionofthe
Doesnot,asarule, testatorsestate,may Q:Maytherightofthetestatortorevokethe
revokeentirelythe revokethewholeprior willbewaivedorrestricted?
priorwill. willbysubstitutinganew
andlastdispositionfor
A:No,thetestatorsrighttorevokeduringhis
thesame.
lifetimeisabsolute.Itcanneitherbewaivednor
Apriorwillanda restricted.
Awillandacodicil,
subsequentwill,being
beingregardedasa
twoseparatewills,may Reason:Becauseawillisambulatory.(Art.828)
singleinstrumentare
beconstrued
tobeconstrued
independentlyofeach
together. Q:Whatlawgovernsincaseofrevocation?
other.

A:
5.INCORPORATIONBYREFERENCE
1. If the revocation takes place in the
Philippines, whether the testator is

Q:Whatisincorporationbyreference?
domiciled in the Philippines or in some
othercountryPhilippinelaws
A:Incorporationbyreferenceistheincorporation

of an extrinsic document or paper into a will by
2. Iftherevocationtakesplaceoutsidethe
referencesoastobecomeapartthereof.
Philippines:
a. by a testator who is domiciled in

Note:Thedocumentsorpapersincorporatedwill
thePhilippinesPhilippinelaws
be considered part of the will even though the
b. byatestatorwhoisnotdomiciled
samearenotexecutedintheformofawill.
inthiscountry
Thedoctrineofincorporationbyreferenceisnot
i. Laws of the place where the
applicable in a holographic will unless the
willwasmade,or
documents or papers incorporated by reference
ii. Lawsoftheplaceinwhichthe
arealsointhehandwritingofthetestator.
testator had his domicile at
the time of revocation. (Art.

Q: What are the requisites of incorporation by
829)
reference?

Q:Whatarethemodesofrevokingawill?
A:EDIS

1. Document referred to in the will must
A:
be in Existence at the time of the
1. Byimplicationoflaw;
executionofthewill;
2. By the execution of a subsequent
2. The will must clearly Describe and
document;
identifythesame;
3. By physical destruction through
3. It must be Identified by clear and
burning, cancelation or obliteration.
satisfactory proof as the document or
(Art.830)
paperreferredtotherein;

4. It must be Signed by the testator and

the witnesses on each and every page,
except in case of voluminous books of
accountorinventories.(Art.827)
293

REVOCATIONBYIMPLICATIONOFLAW Q:Inwhatwaysmayrevocationbyasubsequent
willbedone?
Q:Discussrevocationbyimplicationoflaw.
A:Revocationmaybe:
A: Revocation is produced by implication of law a. Express by providing for a revocatory
whencertainactsoreventstakeplaceafterawill clause;
has been made, rendering void or useless either b. Implied provisions are completely
the whole will or certain testamentary inconsistentwithpreviouswill.
dispositionstherein.
Rationale:Thelawpresumesachangeofmindon Note:Thewillcontainingtherevocatoryclausemust
the part of the testator due to certain changed itself be valid, and admitted to probate, otherwise,
circumstancepertainingtothefamilyrelationsor thereisnorevocation.
inthestatusoftheproperty.
Q:WhatisthePrincipleofInstanter?
Q:Howarewillsrevokedbyoperationoflaw?
A: A:Theexpressrevocationofthe1stwillrendersit
nd
1. When after the testator has made a voidbecausetherevocatoryclauseofthe2 will,
will, he sells or donates the legacy or not being testamentary in character, operates to
devise; revokethe1stwillinstantlyupontheexecutionof
2. Provisions in awill in favor ofa spouse thewillcontainingit.
who has given cause for legal
separation; Q:Cantherebeaninstancewhereasubsequent
will, which is incompatible with the prior will,
Note: The revocation shall take place the andsuchpriorwillsubsistatthesametime?
moment the decree of legal separation is
granted. A: Yes. The fact that the subsequent will is
3. When an heir, legatee or devisee posteriorandincompatiblewiththefirstdoesnot
commitsanactofunworthiness; mean that the first is entirely revoked because
4. Whenacreditthathasbeengivenasa therevocationmaybetotalorpartial.
legacy is judicially demanded by the
testator; Note: The execution of a subsequent will does not
5. When one, some or all the compulsory ipsofactorevokeapriorwill.
heirshavebeenpreteritedoromitted
In case of inconsistent wills, the subsequent will
prevails over the prior will because it is the latest
Note:Theinstitutionofheirsisvoid.
expressionoftestamentaryintentofthetestator.

REVOCATIONBYEXECUTIONOFASUBSEQUENT
The subsequent will which do not revoke the
INSTRUMENT previous will in an express manner, only annulsthe
dispositions in the previous will which are
Q: What are the requisites of revocation by inconsistent with or contrary to those contained in
subsequentwillorcodicil? thesubsequentwill.(Art.831)

A: Q: What is the effect if the revoking will
1. The subsequent instrument must becomes inoperative by reason of incapacity or
complywiththeformalrequirementsof renunciation?
awill
2. Thetestatormustpossesstestamentary A: A revocation made in a subsequent will shall
capacity take effect even if the new will should become
3. Thesubsequentinstrumentmusteither inoperative by reason of the incapacity of the
contain a revocatory clause or be heirs,deviseesorlegateesdesignatedtherein,or
incompatible with the prior will (totally bytheirrenunciation.(Art.832)
orpartially)
4. The revoking will must be admitted to
probate.

Note: The testator must have the testamentary
capacityatthetimeofthemakingofthesubsequent
will.
294 CIVILLAWTEAM:

SUCCESSION
REVOCATIONBYPHYSICALDESTRUCTION possession in 1919, but it can no longer be

found.Isthewillrevoked?
Q: What are the requisites of revocation by A: Yes, the Doctrine of Presumed Revocation
physicalactofdestruction? applies, which provides that: where a will which
cannot be found, is shown to have been in the
A:OTAP possession of the testator when last seen, the
1. Overtactofphysicaldestruction; presumption is, in the absence of other
2. Testamentarycapacityofthetestatorat competentevidence,thatthesamewascancelled
the time of performing the act of or destroyed. The same presumption arises
revocation; where it is shown that the testator had ready
3. AnimusRevocandiintentiontorevoke; accesstothewillanditcannotbefoundafterhis
4. Performed by testator himself or other death.(Gagov.MamuyacG.R.No.26317,Jan.29,
person in the presence and express 1927)
directionofthetestator.
Note:Thepresumptionis,however,notconclusive
Note: The physical destruction may be done by the andanyonewhohasprooftothecontrarymayrebut
testatorpersonallyorbyanotherpersonactinginhis thepresumption.
presenceandbyhisexpressdirection.
Itisnotnecessarythatthewillbetotallydestroyed. Q:WhatistheDoctrineofDependentRelative
It is sufficient if on the face of the will, there is Revocation?
shown somesign of the physicalact of destruction.
(Malotov.CA,G.R.No.76464,Feb.29,1988) A: Where the testators act of destruction is
connectedwiththemakingofanotherwill,soas
Q: How can a will be revoked by physical fairly to raise the inference that the testator
destruction? meanttherevocationoftheoldtodependupon
theefficacyofthenewdispositionintendedtobe
A: The physical act of destruction of a will, like substituted, the revocation will be conditional
burning, does not per se constitute an effective and dependent upon the efficacy of the new
revocation,unlessthedestructioniscoupledwith disposition; and if, for any reason, the new will
animus revocandi on the part of the testator. intended to be made as a substitute is
(Malotov.CA,G.R.No.76464,Feb.29,1988) inoperative, the revocation fails and the original
willremainsinfullforce.(Molov.Molo,G.R.No.
Q: What is required for a revocation done by a L2538,Sept.21,1951)
person,otherthanthetestator,bevalid?
Simply put, for this doctrine to operate, the
A: testator must have intended that the revocation
1. Under the express direction of the ofhisfirstwillbedependentonthevalidityofhis
testator;and second will. In this case the intention of the
2. Doneinthepresenceofthetestator. testator is clear: He does not want to die
intestate.
Note: Elements for a valid revocation done by the
testator himself must be present even if the Note: Failure of the new testamentary disposition
revocationisdonebyanotherperson. upon whose validity the revocation depends is
Itgoeswithoutsayingthatthedocumentdestroyed equivalent to the nonfulfillment of a suspensive
mustbethewillitself. condition and thus prevents the revocation of the
originalwill.
Q: What is the effect if the person directed by
thetestatortorevokehiswillisincapacitatedto Revocationofawillbasedonafalsecauseoran
makeawillsuchaswhenheisbelow18yearsof illegalcauseisnullandvoid.
age?
Q:Mr.Reyesexecutedawillcompletelyvalidas
A:None.Inrevocationofwills,whatisessentialis to form. A week later, however, he executed
the capacity of the testator to revoke. The another will which expressly revoked his first
capacityofthepersondirectedbythetestatorto will, which he tore his first will to pieces. Upon
revokehiswillisimmaterial. the death of Mr. Reyes, his second will was
presented for probate by his heirs, but it was
Q: In 1919, Miguel executed a will. In the post denied due to formal defects. Assuming that a
mortem probate, there was a testimony to the copyofthefirstwillisavailable,mayitnowbe
effect that the will was in the testators admittedtoprobateandgiveneffect?Why?
295

A: Yes, the first will may be admitted to probate Nowillshallpasseitherrealorpersonalproperty
andgiveneffect.Whenthetestatortorethefirst unlessitisprovedandallowedinaccordancewith
will, he was under the mistaken belief that the theRulesofCourt.(Art.838)
secondwillwasperfectlyvalidandhewouldnot
have destroyed the first will had he known that Note: Probate does not deal with the intrinsic
the second will is not valid. The revocation by validityofthetestamentaryprovisions.
destructionthereforeisdependentonthevalidity
of the second will. Since it turned out that the Evenifonlyoneheirhasbeeninstituted,theremust
secondwillwasinvalid,thetearingofthefirstwill stillbeajudicialorderofadjudication.
did not produce the effect of revocation. This is
Evenifawillhasalreadybeenprobated,iflaterona
known as the doctrine of dependent relative
subsequentwillisdiscovered,thelattermaystillbe
revocation (Molo v. Molo, G.R. No. L2538, Sept.
presented for probate, as long as two wills can be
21,1951)(2003BarQuestion) reconciled.

Alternative Answer: No, the first will cannot be Q:Doesprescriptionapplytoprobateofwills?
admittedtoprobate.Whileitistruethatthefirst
will was successfully revoked by the second will A: The statute of limitations is not applicable to
becausethesecondwillwaslaterdeniedprobate, probateofwills(ImprescriptibilityofProbate)
thefirstwillwas,nevertheless,revokedwhenthe Rationale: Probate proceedings are not established
testator destroyed it after executing the second intheinterestofthesurvivingheirs,butprimarilyfor
invalidwill.(Diazv.DeLeon,G.R.No.17714,May the protection of the expressed wishes of the
31,1922). testator.

Q: What is the rule in case of revocation based Q: What are the characteristics of a probate
onfalseorillegalcause? proceeding?

A: Revocation based on a falseor illegal cause is A:
nullandvoid. 1. Specialproceeding;
Requisites: 2. Proceedinginrem;
1. Thecausemustbeconcrete,factualand 3. Notcontentiouslitigation;
notpurelysubjective 4. Mandatory;
2. Itmustbefalse 5. Imprescriptible;
3. Thetestatormustnotknowofitsfalsity
4. It must appear from the will that the Q:Whatarethedifferentkindsofprobate?
testator is revoking because of the A:
causewhichisfalse. 1. Antemortem testator himself
petitions the court for the probate of
Q: The will contains a statement whereby the hisownwill.
testatorrecognizeshisillegitimatechild.Thiswill 2. Postmortem another person applies
was revoked. May the revoked will be used as for probate of the will after the
basisforprovingthesaidrecognition? testatorsdeath.

A:Yes.Recognitioninawillofanillegitimatechild (1)ISSUESTOBERESOLVEDINPROBATE
does not lose its legal effect even if the will is PROCEEDINGS
revoked.
(A)EXCEPTIONSWHENPRACTICAL
7.ALLOWANCEANDDISALLOWANCEOFWILLS CONSIDERATIONS
DEMANDTHEINTRINSICVALIDITYOFTHEWILL
A.PROBATEREQUIREMENT BERESOLVED

Q:Whatisprobate? Q: What are the questions that can be
determinedbyaprobatecourt?
A:Itisaspecialproceedingmandatorilyrequired
for the purpose of establishing the validity of a A:
will. GR: Probate courts cannot inquire into the
intrinsicvalidityofwill
Theonlyquestionsthatcanbedeterminedby
aprobatecourtarethe:
296 CIVILLAWTEAM:

SUCCESSION
1. Dueexecution claim, she presented Vics will, not for its

2. Testamentarycapacity probate, but for proving that Vic acknowledged
3. Identityofthewill her. Is the procedure adopted by Rosario
allowed?
XPN:Practicalconsiderations(E.g.whenthe
willisvoidonitsface) A: No. It is in violation of procedural law and an
attempttocircumventanddisregardthelastwill
Q:Thetestatordevisedapartofhisestatetohis andtestamentofthedecedent.Thepresentation
concubine,whichfactofconcubinagewasstated ofawilltothecourtforprobateismandatoryand
in his will. On probate, the court ruled that the its allowance by the court is essential and
willwasvalidlyexecutedbutthedeviseinfavor indispensabletoitsefficacy.
of the concubine is null and void. Can the
probate court pass upon the intrinsic validity of Note: SC held that the case of Leao v. Leao (25
thetestamentaryprovisionstatedinthewill? Phil., 180), which sanctioned the extrajudicial
partition by the heirs of the properties left by a
A: Yes. While as a general rule, in probate decedent,butnotthenonpresentationofawillfor
proceedings,thecourtsareaofinquiryislimited probate, cannot be relied upon as an authority for
toanexaminationandresolutionoftheextrinsic the unprecedented and unheard of procedure
validity of the will, given exceptional adopted by Rosario in this case, in the face of
express mandatory provisions of the law requiring
circumstances,theprobatecourtisnotpowerless
her to present the will to the court for probate. It
to do what the situation constrains it to do and
doesnotaffirmativelyappearinthedecisioninthat
passuponcertainprovisionsofthewill,asinthis casethatthepartitionmadebytheheirswasnotin
case.(Nepomucenov.CA,G.R.No.62952,Oct.9, accordance with the will or that they in any way
1985) disregarded the will. No question of law was raised
and decided in that case. (Guevara v. Guevara G.R.
Note:TheSCheldasbasisitsfindingthatinthe No.48840,Dec.29,1943)
eventofprobateofthewill,orifthecourtrejects
thewill,probabilityexiststhatthecasewillcome Q: To put an end to the numerous litigations
up once again on the same issue of the intrinsic involving decedent Franciscos estate, his heirs
validity or nullity of the will, the same will result enteredintoacompromiseagreementwhereby
in waste of time, effort, expense plus added theyagreedtopayTasiana,Franciscossurviving
anxiety. spouse, P800,000 as her full share in the
hereditaryestate.
Q:Canaprobatecourtdecideonquestionsof
ownership? When submitted to the court for approval,
Tasiana attacked its validity on the ground that
A: the heirs cannot enter into a compromise
GR:Aprobatecourthasnojurisdictionto agreement without first probating Franciscos
decidequestionsofownership. will. Tasiana relied on Guevara v. Guevara (74
Phil. 479) where the court held that the
XPN: presentation of a will for probate is mandatory
1. When the parties voluntary submit the and that the settlement and distribution of an
issueofownershiptothecourt; estate on the basis of intestacy when the
2. When provisionally, the ownership is decedentleftawill,isagainstthelawandpublic
passed upon to determine whether or policy.Decide.
notthepropertyinvolvedispartofthe
estate. A:TheGuevararulingisnotapplicableinthiscase
3. The question of ownership is an because here, there was no attempt to settle or
extraneous matter which the probate distribute the estate among the heirs before the
courtcannotresolvewithfinality. probate of the will. The clear object of the
contractwasmerelyTasianasconveyanceofany
Q: When Vic died, he was survived by his andallherindividualshareandinterest,actualor
legitimate son, Ernesto, and natural daughter, eventual in the estate. There is no stipulation as
Rosario. Rosario, who had Vics will in her toanyotherclaimant,creditororlegatee.
custody, did not present the will for probate.
SheinstitutedanactionagainstErnestotoclaim As a hereditary share in a decedent's estate is
herlegitimeonthetheorythatVicdiedintestate transmitted or vested immediately from the
becausetheabsenceofprobate.Tosupporther moment of the death of such causante or
297

predecessorininterest,thereisnolegalbartoa 5. TheSignatureoftestatorwasprocured
successor (with requisite contracting capacity) byfraud.
disposing of her or his hereditary share 6. ThetestatoractedbyMistakeordidnot
immediately after such death, even if the actual intendthattheinstrumenthesigned
extent of such share is not determined until the shouldbehiswill(Art.839,NCC)
subsequentliquidationoftheestate.
Also,asFranciscossurvivingspouse,Tasianawas Note:Thelistisexclusive.
his compulsory heir. Wherefore, barring Awilliseithervalidorvoid.Thereisnosuchthingas
unworthiness or valid disinheritance, her avoidablewill.
successional interest existed independent of
Francisco's last will and testament and would Q:Whendothefollowingconstituteasgrounds
exist even if such will were not probated at all. fordisallowance?
Thus, the prerequisite of a previous probate of 1. Violence
the will, as established in the Guevara and A:wheninordertocompelthetestatorto
analogouscases,cannotapplytothecase. executeawill,seriousorirresistibleforceis
Note:Neitherthealeatorycharacterofthecontract employed
nor the coetaneous agreement that the numerous
litigationsbetweenthepartiesaretobeconsidered 2. Intimidation
settled and should be dismissed, although such A:whenthetestatoriscompelledbya
stipulation gives the contract the character of a reasonableandwellgroundedfearofan
compromise, affect the validity of the transaction. imminentandgraveeviluponhispersonor
(DeBorja,etal.v.Vda.deBorja,G.R.No.L28040, propertyofhisspouse,descendants,or
Aug.18,1972) ascendants,toexecutethewill
3. UndueInfluence
Q:Whenapersondiestestate,mayhisheirsopt A:whenapersontakesimproperadvantage
for an extrajudicial partition instead of having ofhispoweroverthewillofanother,
thewillprobated? deprivingthelatterofareasonablefreedom
ofchoice.
A: No. In the subsequent case of Riosa v. Rocha
(1926), 48 Phil. 737, the Court held that an 4. Mistake
extrajudicial partition is not proper in testate A:Pertainstothemistakeinexecution
succession. whichmayeitherbe:
1. mistake as to the identity or character
(2)EFFECTOFFINALDECREEOFPROBATE,RES oftheinstrumentwhichhesigned,or
JUDICATAONFORMALVALIDITY 2. mistake as to the contents of the will
itself.
Q: What is the scope of a final decree of
probate? Q: What other defects of the will, if any, can
causedenialofprobate?
A:Afinaldecreeofprobateisconclusiveastothe
due execution of the will, i.e., as to the extrinsic A:Therearenootherdefectsofthewillthatcan
orformalvalidityonly. causedenialofprobate.Art.805oftheCivilCode
provides that the will must be subscribed at the
B.GROUNDSFORDENYINGPROBATE end thereof by the testator, and subscribed by
threeormorecrediblewitnessesinthepresence
Q: What are the grounds for disallowance of a ofthetestatorandofoneanother.Thedriver,the
will? cook and the lawyer who prepared the will are
A:FIFUSM credible witnesses. The testator and the
1. TheFormalitiesrequiredbylawhave instrumentalwitnessesofthewill,shallalsosign,
notbeencompliedwith; eachandeverypageofthewillproper,exceptthe
2. ThetestatorwasInsaneormentally last,ontheleftmargin,andallthepagesshallbe
incapableofmakingwill; numbered correlatively in letters placed of the
3. ThewillwasexecutedthroughForceor upperpartofeachpage.
underduress,orinfluenceoffearor
threats; It has been held, however, that the testators
4. ThewillwasprocuredbyUndueand signature is not necessary in the attestation
improperpressureandinfluence,on clause, and that if a will consists of two sheets,
partofthebeneficiaryorsomeother the first of which contains the testamentary
person; dispositions, and is signed at the bottom by the
298 CIVILLAWTEAM:

SUCCESSION
testatorandthethreewitnesses,andthesecond legacies or where the will merely disinherits a

sheet contains the attestation clause, as in this compulsoryheir.
case, signed by 3 witnesses, marginal signatures
andpagingarenotnecessary.Afterall,theobject Q: What are the three principles in the
of the law is to avoid substitution of any of the institutionofheirs?
sheetsofthewill. (Abanganv. Abangan,40Phil.
476 [1919]; In Re: Will of Tan Diuco, 45 Phil 807 A:
[1924]). 1. Equality heirs who are instituted
without a designation of shares inherit
B.INSTITUTIONOFHEIRS inequalparts.

Q: How is institution of heir defined under Note: Applies only when the heirs are of
Article840? thesameclassorsamejuridicalcondition
andinvolvesonlythefreeportion.
A:Institutionofheirisanactbyvirtueofwhicha
testator designates in his will the person or As between a compulsory heir and a
voluntary heir and they are instituted
persons who are to succeed him in his property
without any designation of shares, the
andtransmissiblerightsandobligations(Art.840,
legitime must first be respected and the
NCC). free portion shall then be equally divided
betweenthem.
Note:Institutioncannotbeallowedtoaffectthe
legitime.
2. Individuality heirs collectively
instituted are deemed individually

Therecanbeaninstitutedheironlyintestamentary
succession.
instituted unless contrary intent is
proven.
Q:Whataretherequisitesofavalidinstitution?
3. Simultaneity when several heirs are
A instituted, they are instituted
1. Thewillmustbeextrinsicallyvalid; simultaneously and not successively,
unlessthecontraryisproved.
Note: The testator must have the
testamentary capacity to make the Q:Whatarethekindsofinstitutionofheirs?
institution.
2. The institution must be intrinsically A:Institutionofheirmaybe:
valid; 1. withacondition
2. withaterm
Note: The legitime must not be 3. for a certain purpose or cause (modal
impaired,thepersoninstitutedmustbe institution)
identifiedoridentifiable,andthereisno
preterition. Q: May a conceived child be instituted as an
3. Theinstitutionmustbeeffective. heir?

Note: No repudiation by the heir; A:Aconceivedchildmaybeinstituted,provided
testatorisnotpredeceasedbytheheir. theconditionsinArts.40and41arepresent
(Conceptuspronatohabetur).
Q:Whataretheeffectsifawilldoesnotcontain
aninstitutionofheir? Q: What is the effect if the institution of heir is
basedonafalsecause?
A:Thewillshallbevalideventhoughitdoesnot
contain an institution of heir, or such institution A:
should not comprise the entire estate, and even GR: The institution of heir is valid. The false
thoughthepersonsoinstitutedshouldnotaccept cause shall be considered simply as not
the inheritance or should be incapacitated to written.
succeed.(Art.841)
XPN:Iffromthewillitself,itappearsthatthe
Note:Institutionofheirsisnotindispensableandits testator would not have madethe institution
absencewillnotrenderthewillvoid,providedthere if he has known the falsity of the cause, the
areothertestamentarydispositions,likedevisesand institutionshallbevoid.
299

Note: In case of illegal cause, the cause shall be 3. The omitted compulsory heir must
consideredasnotwritten,unlesstheillegalcauseis survive the testator, or in case the
theprincipalreasonormotiveforthedisposition,in compulsory heir predeceased the
whichcasetheinstitutionshallbevoid. testator, there is a right of
representation;
Q: The testatrix devised a parcel of land to Dr. 4. Nothing must have been received by
Rabadilla.ItwasprovidedthatDr.Rabadillawill theheirbygratuitoustitle.
acquire the property subject to the obligation,
until he dies, to give Maria 100 piculs of sugar, 2.CONCEPT
andintheeventofnonfulfillment,theproperty
will pass to the nearest descendants of the Q:Whomaybepreterited?
testatrix.
A:Compulsoryheirsinthedirectline.
WhenDr.Rabadilladied,Mariafiledacomplaint
toreconveythelandallegingthattheheirsofDr. Q:Mayaspousebepreterited?
Rabadilla violated the condition. Is the
institutionofDr.Rabadilla,amodalinstitution? A: No. While a spouse is a compulsory heir,
he/she is not in the direct line (ascending or
A: Yes, because it imposes a charge upon the descending).
instituted heir without, however, affecting the
efficacyofsuchinstitution. Q:Maythedecedentsparentsbepreterited?

In a modal institution, the testator states the A: Yes, if there is an absence of legitimate
object of the institution, the purpose or compulsory heirs in the descending line. This is
applicationofthepropertyleftbythetestator,or the effect of the application of the rule on
thechargeimposedbythetestatorupontheheir. preferenceoflines.
A mode imposes an obligation upon the heir or
legatee but it does not affect the efficacy of his Q: When is there a total omission of a
rights to the succession. The condition suspends compulsoryheir?
butdoesnotobligate;andthemodeobligatesbut
does not suspend. (Rabadilla v. CA, G.R. No. A:Thereistotalomissionwhentheheir:
113725,June29,2000) 1. Receives nothing under the will
whetherasheir,legatee,ordevisee;
1.PRETERITION
Note: If a compulsory heir is given a
Q:Whatispreterition? shareintheinheritance,nomatterhow
small,thereisnopreterition.
A: Preterition is the omission in testators will of However,ifacompulsoryheirgetsless
one, some or all of the compulsory heirs in the thanhislegitime,whilethisisnotacase
directline,whetherlivingatthetimeofexecution ofpreterition.Inthiscase,heisentitled
ofthewillorbornafterthedeathofthetestator. to a completion of his legitime under
(Art.854) Art.906.

Q: What does born after the death of the 2. Has received nothing by way of
testatormean? donationintervivosorpropter nuptias;
and
A: It simply means that the omitted heir must
alreadybeconceivedatthetimeofdeathofthe Note: If a compulsory heir has already
testatorbutwasbornonlyafterthedeathofthe received a donation from the testator,
testator. thereisnopreterition.

Q:Whataretherequisitesofpreterition? Reason: A donation to a compulsory
heir is considered an advance of the
A: inheritance.
1. There is a total omission in the
inheritance; 3. Willreceivenothingbywayofintestate
2. Thepersonomittedisacompulsoryheir succession.
inthedirectline;
300 CIVILLAWTEAM:

SUCCESSION
Q:Whataretheeffectsofpreterition? 5.EFFECTSOFPRETERITION,DEVISEESONLY
ENTITLEDTOCOMPLETIONOFLEGITIME
A:
1. Preterition annuls the institution of Q: What is the effect of preterition on the will
heirs; itself?
2. Devicesandlegaciesarevalidinsofaras
theyarenotinofficious; A:
3. If the omitted compulsory heir dies GR: The effect of annulling the institution of
before testator, institution shall be heirs will be, necessarily, the opening of a
effectual, without prejudice to right of totalintestacyexceptthatproperlegaciesand
representation devises must be respected. Here, the will is
notabrogated.
3.COMPULSORYHEIRSINTHEDIRECTLINE
XPN:Ifthewillcontainsauniversalinstitution
Q: Who are the compulsory heirs in the direct of heirs to the entire inheritance of the
line? testator,thewillistotallyabrogated.
Reason: The nullification of such institution of
A: the universal heirs without any other
1. Legitimate children and descendants testamentarydispositioninthewillamountstoa
withrespecttotheirlegitimateparents declarationthatnothingatallwaswritten.
orascendants;
2. Legitimate parents ot ascendants, with Q:Whataretherightsofthepreteritedheirs?
respect to their legitimate children and
descendants; A:Theyareentitlednotonlytotheirsharesofthe
3. Illegitimatechildren legitime but also to those of the free portion
4. The father or mother of illegitimate which was not expressly disposed of by the
children testatorbywayofdevisesandlegacies.
Note:Thesurvivingspouseisnotincluded.
According to Justice Jurado, an adopted child is by Q:Whatistheeffectiftheheirpredeceasesthe
legal fiction considered a compulsory heir in the testator?
directline.
A: If the heir who predeceases the testator is a
voluntary heir, a devisee or a legatee, he shall
4.PRETERITIONVS.DISPOSITIONLESSTHAN transmitnorighttohisownheirs.
LEGITIME
Note: The rule is absolute with respect to a
Q: What are the distinctions and similarities voluntaryheirandadeviseeorlegatee.
between imperfect disinheritance and
preterition? Right of representation only applies to compulsory
A: heirs in the direct descending line, and in the
IMPERFECT PRETERITION collateral line, only in favor of children of brothers
DISINHERITANCE andsisters.
Distinctions
Thereisnorightofrepresentationintheascending
Theinstitutionremains Theinstitutionofheirs
line.
valid,butmustbe iscompletelyannulled.

reducedinsofarasthe
The representative inherits directly not from the
legitimehasbeen
person represented, but from the one whom the
impaired.
personwouldhavesucceeded.
Similarities

Inbothcases,theomittedheirandtheimperfectly The rule also applies in case the heir becomes
disinheritedheirgetatleasttheirlegitime incapacitatedtosucceed,orwasdisinherited.
Bothlegaciesanddevisesremainvalidinsofarasthe
legitimehasnotbeenimpaired. Q: What is the effect if the heir repudiated or
Bothlegaciesanddevisesrefertocompulsoryheirs. renouncedhisinheritance?

A: An heir who renounced his inheritance,
whetherascompulsoryorasvoluntaryheir,does
nottransmitanyrighttohisownheirs.
301

Note: An heir who repudiated his inheritance, may 3.FIDEICOMMISSARYSUBSTITUTION
represent the person whose inheritance he has
renounced.(Art976) Q:Whatisfideicommissarysubstitution?

Q: What can the compulsory heir do if the A: Also known as indirect substitution, it is a
testatorlefttitlelessthanthelegitimebelonging substitution by virtue of which the fiduciary or
totheformer? first heir instituted is entrusted with the
obligation to preserve and transmit to a second
A:Anycompulsoryheirtowhomthetestatorhas heirthewholeorpartoftheinheritance.
leftbyanytitlelessthanthelegitimebelongingto
himmaydemandthatthesamebefullysatisfied. Note: For its validity and effectivity, such
(Art.906) substitution does not go beyond one degree from
the heir originally substituted and provided further,
Note: Testamentary dispositions that impair or that the fiduciary or first heir and the second heir
diminish the legitime of the compulsory heirs shall arelivingatthetimeofdeathofthetestator.
bereducedonpetitionofthesame,insofarasthey
maybeinofficiousorexcessive.(Art.907) Q: Who are the parties to a fideicommissary
substitution and what are their respective
C.SUBSTITUTIONOFHEIRS obligations?

1.DEFINITION A:
PARTIES OBLIGATIONS
Q:Whatissubstitution? Hehastheobligationto
Firstheiror
preserveandtransmitthe
A:Substitutionistheappointmentofanotherheir fiduciary
inheritance.
so that he may enter into the inheritance in Secondheiror Heeventuallyreceivesthe
defaultoftheoriginalheir. fideicommissary propertyfromthefiduciary.
Testator None
2.KINDS

Q: What are the distinctions between direct
Q:Whatarethedifferentkindsofsubstitution?
substitutionandindirectsubstitution?

A:
A:
INDIRECT
1. Simple/commontakesplacewhenthe
DIRECT SUBSTITUTION
heirinstituted: SUBSTITUTION (Fideicommissary
a. predeceasestestator; Substitution)
b. repudiatestheinheritance;or Thesubstitutereceives
Thesubstitutereceives
c. isincapacitatedtosucceed thepropertyindefault
thepropertyafterthe
ofthefirstheir
heirfirstinstitutedhas
Note:Simplesubstitutionwithouta institutedwhodoesnot
enjoyedthesamefor
statementofthecauses,towhichit orcannotreceivethe
sometime.
refers,shallcomprisethe3above same.
mentionedsituations. Therearevarious
liberalities,onethatis
2. Brief/compendiouswhentwoormore immediateandthe
persons are substituted for one or for otherorothers Therearetwo
eventual,butwithonly liberalitieswhichare
twoormoreheirs.
oneofthemeffective botheffectivebut

(becauseultimately successivelyenjoyed.
3. Reciprocal one heir designated as eithertheinstituted
substituteforinstitutedheirwhilelatter heirsucceedsoritis
is simultaneously instituted as thesubstitute).
substituteforformer. Thefirstheirinstituted
Thetestatorsodirects isobligedtopreserve
Note:Thesubstituteentersintotheinheritancenot thetransmissionofhis thepropertyforthe
asanheirsucceedingthefirstheir,butasanheirof propertythatoneor benefitofoneormore
thetestator. moreheirsenjoyand succeedingheirsand
mayfreelydisposeof hispowerofalienation
thesame. iscurtailedoratleast
limited.
302 CIVILLAWTEAM:

SUCCESSION
Hasafurthersocial 1. FIDUCIARY
effectasitlimitsthe
Nootherpurposethan
freecirculationof Theremustbeafirstheirorfiduciary
topreventthe
propertyandforsuch
successionofthe
reasonmanylaws Note: The first heir receives property, either upon
intestateheirs.
prohibitthesameor the death of the testator or upon the fulfillment of
limitit. anysuspensiveconditionimposedbythewill.
Thereisonlyone
Thereare2transfers
transfer. Thefirstheirisalmostlikeausufructuarywithright
Noabsolutedisposition to enjoy the property. Thus, like a usufructuary, he
becauseitissubjectto cannotalienatetheproperty.Thefirstheirisobliged
theconditionthathe to make an inventory but he is not required to
willpreserveand furnishabond.
Hasthefreeand
transmitthesameto
absolutedisposition
thefideicommissary. Q:Whataretheobligationsofafiduciary?
andcontroloverthe
Andalso,thereis
property.
controlontheproperty A:
butthereisalimitto 1. Topreservetheinheritance;
thecirculationofthe
2. Todelivertheinheritance;
property.
3. To make an inventory of the
Thefideicommissaryis
inheritance.
Theidentityofthe limitedtorelatives
substitutedoesnot withinonedegreefrom

matter. thefirstheiror Q: What is the effect of alienation of the
fiduciary:parentchild. property subject to the fideicommissary
substitutionbythefirstheir?
Q: What are the conditions for a valid
fideicommissarysubstitution? A: The transfer is not valid. The fiduciary cannot
alienate the property either by an act inter vivos
A: or mortis causa. He is bound to preserve the
1. Thattheinstitutiondoesnotgobeyond property and transmit it to the second heir or
one degree from the heir originally fideicommissary.
instituted;
2. That the substitution be expressly Q:Whatistheperiodofthefiduciarystenure?
made;
3. That both the fiduciary and beneficiary A:
be living at the time of the testators 1. Primary rule the period indicated by
death; thetestator
4. That it should be imposed on the free 2. Secondary rule if the testator did not
portionandnotonthelegitime. indicate a period, then the fiduciarys
lifetime
Q: What are the elements/requisites of
fideicommissarysubstitution? Q: Is the fiduciary allowed to make deductions
totheinheritance?
A:
1. Theremustbeafirstheirorfiduciary; A:
2. Anabsoluteobligationisimposedupon GR:Thefiduciaryshoulddelivertheproperty
the fiduciary to preserve and to intact and undiminished to the
transmit to a second heir the property fideicommisaryheiruponarrivaloftheperiod
atagiventime;
3. Thereisasecondheirwhomustbeone XPN: The only deductions allowed, in the
degreefromthefirstheir; absenceofacontraryprovisioninthewillare:
4. The first andsecond heir mustboth be 1. Legitimateexpenses;
living and qualified at the time of the 2. Credits;
deathofthetestator. 3. Improvements

Note: The coverage of legitimate expenses and
improvements are limited to necessary and useful

expenses,butnottoornamentalexpenses.

303

2. ABSOLUTEOBLIGATION CAPACITYTOSUCCEEDOFFIDUCIARYAND
TOPRESERVEANDTRANSMITPROPERTY FIDEICOMMISSARY

Anabsoluteobligationisimposeduponthe Thefirstandsecondheirmustbothbelivingand
fiduciarytopreserveandtotransmittoasecond qualifiedatthetimeofthedeathofthetestator.
heirthepropertyatagiventime.
Q:Whymustboththefirstandsecondheirbe
Q: How should an absolute obligation to livingandqualifiedatthetimeofthedeathof
preserve and to transmit be imposed upon the thetestator?
fiduciary?
A:Thefideicommissaryinheritsnotfromthefirst
A: The obligation to preserve and transmit must heirbutfromthetestator,thus,therequirement
begivenclearlyandexpresslybygivingitaname that the fideicommissary be alive or at least
fideicommissary substitution or by imposing conceivedatthetimeofthetestatorsdeath.
upon the first heir the absolute obligation to
preserve and deliver the property to the second Note:Thefideicommissarysubstitutionmustnotbe
heir. imposedonthelegitime,onlyonthefreeportion.

Note:"Giventime"meansthetimeprovidedbythe Q:Dotheheirstoafideicommissarysubstitution
testator;ifnotprovided,thenitisunderstoodthat inheritsuccessively?
theperiodisthelifetimeofthefirstheir.
A:No.Boththefirstheirandthefideicommissary
st
Q:Ifthetestatorprovidedthatthe1 heirshall inheritthepropertysimultaneously,althoughthe
enjoythepropertyduringhislifeandthatupon enjoymentandpossessionaresuccessive.
his death it shall pass to another expressly Note:Fromthemomentofdeathofthetestator,the
designated by the testator, but without rightsofthefirstheirandthefiduciaryarevested.
imposing the obligation to preserve the
property, is there fideicommissary substitution Q: What is the effect if the fideicommissary
inthiscase? predeceasesthefiduciary?

A:None.Thereisnofideicommissarysubstitution A: If the fideicommissary predeceases the
but merely a legacy of the usufruct of the fiduciary,butsurvivesthetestator,hisrightspass
property. tohisownheirs.

3.FIDEICOMMISSARY Q:Whatistheremedyofthefideicommissaryto
protecthimselfagainstalienationtoaninnocent
Thereisasecondheirwhomustbeonedegree thirdperson?
fromthefirstheir.
A: If the first heir was able to register the
Q:Whatdoesonedegreemean? property in his name, fideicommissary should
annotate his claim on the land on the title to
A: "One degree" refers to the degree of protect himself against any alienation in favor of
relationship;itmeansonegeneration.Assuch, innocentthirdparties.
the fideicommissary can only be either a parent
orchildofthefirstheir. When the property passes to the
fideicommissary, there is no more prohibition to
Note: The relationship is always counted from the alienate.
first heir. However, fideicommissary substitutions
arealsolimitedtoonetransmission.Uponthelapse Q: What is the effect of the nullity of the
oftimeforthefirstheir,hetransmitsthepropertyto fideicommissarysubstitution?
the second heir. In other words, there can only be
onefideicommissarytransmissionsuchthatafterthe A:Thenullityofthefideicommissarysubstitution
first, there can be no second fideicommissary
does not prejudice the validity of the institution
substitution.
oftheheirsfirstdesignated;thefideicommissary

clauseshallsimplybeconsideredasnotwritten.

304 CIVILLAWTEAM:

SUCCESSION
Q: If the testator gives the usufruct to different In the problem, when Ruffa predeceased
personssuccessively,whatruleswillapply? Raymund, she did not qualify to receive the
inheritance to enjoy it usufruct, hence, the right
A:Theprovisionsonfideicommissarysubstitution of Scarlet to receive the inheritance upon the
alsoapplyinacasewherethetestatorgivesthe death of the testator will no longer be delayed.
usufructtovariouspersonssuccessively. However, Scarlet is not qualified to inherit from
RayondbecausesheisbarredbyArt.992ofNCC
Q:Raymond,single,namedhissisterRuffainhis being an illegitimate child of Raymonds
will as a devisee of a parcel of land which he illegitimate father. The devise will therefore be
owned. The will imposed upon Ruffa the ineffective and the property will be disposed of
obligation of preserving the land and byintestacy.(2008BarQuestion)
transferring it, upon her death, to her
illegitimatedaughterScarletwhowasthenonly
one year old. Raymond later died, leaving D.CONDITIONALTESTAMENTARYDISPOSITIONS
behindhiswidowedmother,RuffaandScarlet. ANDTESTAMENTARYDISPOSITIONSWITHA
IstheconditionimposeduponRuffatopreserve TERM
the property and to transmit it upon her death
toScarlet,valid? Q:Whatisaterm?

A: When an obligation to preserve and transmit A: It is any future and certain event upon the
thepropertytoScarletwasimposedonRuffa,the arrival of which the validity or efficacy of a
testator Raymond intended to create a testamentarydispositionsubjecttoitdepends.
fideicommissary substitution where Ruffa is the
fiduciary and Scarlet is the fideicommisary. Note:Adispositionwithasuspensivetermdoesnot
Having complied with the requirements of Art. prevent the instituted heir from acquiring his rights
863 and 869 (NCC), the fideicomissary and transmitting them to his heirs even before the
substitutionisvalid. arrivaloftheterm.
Reason: The right oftheheir institutedsubjecttoa
Q:IfScarletpredeceasesRuffa,whoinheritsthe termisvestedatthetimeofthetestator'sdeathhe
willjustwaitforthetermtoexpire.
property?
Iftheheirdiesafterthetestatorbutbeforetheterm
expires, he transmits his rights to his own heirs

A: If Scarlet predeceases Ruffa, the becauseofthevestedright.
fideicommissary substitution is rendered null or
ineffectiveunderArt.863(NCC).AndapplyingArt. Q: When the disposition is subject to a term,
868 (NCC), the fideicommissary clause is what should be done by the instituted heirs or
disregarded without prejudice to the validity of legal heirs so that they can enjoy possession of
theinstitutionofthefiduciary.InsuchcaseRuffa theproperty?
shallinheritthedevicefreefromthecondition.
A:Ifthedispositionissubjecttoa:
If Ruffa predeceases Raymond, can Scarlet 1. Suspensive term The legal heirs can
inheritthepropertydirectlyfromRaymond? enjoy possession of the property until
the expiration of the period but they
A:Inafideicommissarysubstitution,theintention must put up a bond (caucion muciana)
of the testator is to make the second heir his in order to protect the right of the
ultimate heir. The right of the second heir is institutedheir.
simply postponed by the delivery of the
inheritance to the first heir for him to enjoy the 2. Resolutory term The legal heirs can
usufruct over the inheritance. Hence, when the enjoy possession of the property but
first heir predeceased the testator, the first heir when the term arrives, he must give it
did not qualify to inherit and the right of the to the legal heirs. The instituted heir
second heir to receive the inheritance will no doesnothavetofileabond.
longer be delayed provided the second heir is
qualified to inherit at the time of the testators
death. In fideicommissary substitution, the first
andsecondheirsinheritfromthetestator,hence,
both should be qualified to inherit from the
testatoratthetimeofhisdeath.
305

E.LEGITIME Q: In relation to Articles 908 to 910, how shall
thereductionfromthelegitimebemade?
1.DEFINITION
A: After the legitime has been determined in
Q:Definelegitime. accordancewiththethreeprecedingarticles,the
reductionshallbemadeasfollows:
A:Legitimeisthatpartofthetestator'sproperty
which he cannot dispose of because the law has 1. Donationsshallberespectedaslongas
reserved it for certain heirs who are, therefore, thelegitimecanbecovered,reducingor
calledcompulsoryheirs.(Art.886) annulling, if necessary, the devises or
legaciesmadeinthewill;
Note:Thereiscompulsiononthepartofthetestator 2. Thereductionofthedevisesorlegacies
toreservethatpartoftheestatewhichcorresponds shall be pro rata, without any
tothelegitime. distinctionwhatever.
Q:Howislegitimedetermined? If the testator has directed that a

certain devise or legacy be paid in
A: To determine the legitime, the value of the preference to others, it shall not suffer
propertyleftatthedeathofthetestatorshallbe anyreductionuntilthelatterhavebeen
considered, deducting all debts and charges, applied in full to the payment of the
whichshallnotincludethoseimposedinthewill. legitime.
Tothenetvalueofthehereditaryestate,shallbe 3. If the devise or legacy consists of a

added the value of all donations by the testator usufruct or life annuity, whose value
thataresubjecttocollation,atthetimehemade maybeconsideredgreaterthanthatof
them.(Art.908) the disposable portion, the compulsory
heirs may choose between complying
Q: Cite the rules governing the donations made with the testamentary provision and
bythetestatorinfavorofhischildren,legitimate deliveringtothedeviseeorlegateethe
and illegitimate, and strangers and those which part of the inheritance of which the
areinofficious. testatorcouldfreelydispose.(Art.911)
4. Ifthedevisesubjecttoreductionshould
consist of real property, which cannot
A:
be conveniently divided, it shall go to
the devisee if the reduction does not
1. Donations given to children shall be
absorb onehalf of its value; and in a
chargedtotheirlegitime.
contrary case, to the compulsory heirs;
2. Donations made to strangers shall be
but the former and the latter shall
charged to that part of the estate of
reimburse each other in cash for what
whichthetestatorcouldhavedisposed
respectivelybelongstothem.(Art.912)
byhislastwill.
Thedeviseewhoisentitledtoalegitime
3. Insofar as they may be inofficious or
may retain the entire property,
may exceed the disposable portion,
provideditsvaluedoesnotexceedthat
they shall be reduced according to the
of the disposable portion and of the
rules established by this Code. (Art.
sharepertainingtohimaslegitime.(id.)
909)
4. Donations which an illegitimate child Note:Iftheheirsordeviseesdonotchooseto
may have received during the lifetime avail themselves of the right granted by the
ofhisfatherormother,shallbecharged preceding article, any heir or devisee who did
to his legitime. Should they exceed the nothavesuchrightmayexerciseit;shouldthe
portion that can be freely disposed of, latternotmakeuseofit,thepropertyshallbe
they shall be reduced in the manner soldatpublicauctionattheinstanceofanyone
prescribedbythisCode.(Art.910) oftheinterestedparties.(Art.913)
Thetestatormaydeviseandbequeaththefree
portionashemaydeemfit.(Art.914)

306 CIVILLAWTEAM:

SUCCESSION
RULESONLEGITIME 2. Ruleofproximity;
3. Right of representation, in case of
Q:Canthetestatordeprivethecompulsoryheirs predecease, incapacity and
theirlegitimes? disinheritance;
4. If all the legitimate children repudiate
A: No. The testator cannot deprive the their legitime, the next generation of
compulsory heirs of their legitimes, except legitimatedescendants,succeedintheir
throughdisinheritance. ownright.

Note:Onlythelegitimeisreserved.Thefreeportion Q: What are the rules governing succession in
maybedisposedofbywill. theascendingline?

Q:Mustcompulsoryheirsaccepttheirlegitimes? A:
1. Ruleofproximitynearerexcludesthe
A: No. There is no obligation on the compulsory moreremote;
heirstoaccept. 2. Divisionbyline;
3. Equaldivisionwithintheline.
Q:Whatarethekindsoflegitime?
Q: What is/are the remedy(ies) available to a
A: compulsory heir whose legitime has been
1. Fixed If the amount (fractional part) impaired?
does not vary or change regardless of
whether there are concurring A:
compulsoryheirsornot. 1. In case of preterition annulment of
a. legitimate children and institution of heir and reduction of
descendants (legitimate childrens devisesandlegacies
legitimeisalways) 2. In case of partial impairment
b. legitimateparentsandascendants completionoflegitime
3. In case of inofficious donation
2. Variable If the amount changes or collation
varies in accordance with whom the
compulsoryheirconcur. Q: Is the renunciation or compromise of future
a. survivingspouse legitimeallowed?
b. illegitimatechildren
c. parentsoftheillegitimatechild A: The renunciation or compromise is prohibited
andconsiderednullandvoid.
Note:Factorswhichaffectthelegitime:
1. Identity of the concurring compulsory Q:Whatisthescopeoftheprohibition?
heirsand;
2. Numberofconcurringcompulsoryheirs. A:
1. Any renunciation of future legitimes,
Q: What are the limitations imposed on the whetherforavaluableconsiderationor
testatorregardinghisrightsofownership? not;
2. Any waiver of the right to ask for the
A:Thetestatorcannotmakedonationsintervivos reductionofaninnoficiousdonation;
which impinge upon the legitime or which are 3. Compromise between the compulsory
inofficious. heirs themselves during the lifetime of
thetestator.
Note: The prohibition does not cover an onerous
disposition (sale) becausethis involves anexchange Note:Theprohibitionisnotapplicableincasesof:
ofvalues. 1. Renunciationsorcompromisesmadeafter
thedeathofthetestator;
Q: What are the rules governing succession in 2. Donations or remissions made by the
thedirectdescendingline? testator to the compulsory heirs as
advancesoftheirlegitime.
A:
1. Rule of preference between lines
descending line is preferred over the
ascendingline;
307

Q: What is the order of preference in reducing TABLESOFLEGITIMES.
testamentarydispositionsanddonations?

LegitimatechildrenorDescendants
A:
1. Legitimeofcompulsoryheirs Shareoflegitimate
2. Donationsintervivos childrenand ofthenetestate
3. Preferentiallegaciesordevises descendants
4. Allotherlegaciesordevisesprorata.
Freeportion ofthenetestate

Note: The order of preference is applicable
when:
1. Thereductionisnecessarytopreservethe LegitimateParentsandAscendants
legitime of compulsory heirs from
impairment whether there are donations Shareof legitimate
intervivosornot;or parentsand ofthenetestate
2. Although,thelegitimehasbeenpreserved ascendants
by the testator himself there are
donationsintervivos. Freeportion ofthenetestate

Q: What are the steps in the distribution of the
estateofthetestator? OneLegitimatechildordescendantand
A: SurvivingSpouse
1. Determinethevalueofthepropertyleft
Shareofalegitimate
at the death of the testator. (Gross ofthenetestate
child
estate)
2. Deduct all debt and charges, except Shareofthesurviving
thoseimposedinthewillfromthegross ofthenetestate
spouse
estate.(Netasset)
3. Add the value of all donations by the
Freeportion ofthenetestate
testatorthataresubjecttocollation.

(Nethereditaryestate=[Grossestate
Illegitimatechildrenandlegitimatechildren
DebtsandCharges]+donations)
4. Determine who are the compulsory Shareoflegitimate
heirs and their corresponding legitimes childrenand ofthenetestate
usingthetableoflegitimesbelow. descendants
5. Determinethefreeportion. ofthelegitimeof
Shareofeach
eachlegitimate
illegitimatechildren
Freeportion= nethereditaryestate childrenorascendant
Less: legitimes(totalamount) Freeportion Whateverremains

6. Imputationofdonations
7. Distributionoftheremainingportionto Twoormorelegitimatechildrenor
descendantandSurvivingSpouse
thelegateesanddevisees.
Shareofalegitimate
ofthenetestate
Q: What is the effect of donations to the child
inheritanceofanheir? Portionequaltothe
Shareofthesurviving legitimeofeachofthe
A:Donationsintervivosgiventochildrenshallbe spouse legitimatechildrenor
charged to their legitime, unless otherwise descendant
providedbythetestator. Freeportion Whateverremains

Reason: Donations to the compulsory heirs are
advancestothelegitime.

Note: Donations inter vivos to strangers shall be
chargedtothefreeportion.

308 CIVILLAWTEAM:

SUCCESSION
LegitimateParents;SurvivingSpouse;
LegitimateParentsorAscendantsand IllegitimateChildren
SurvivingSpouse
Sharesand
Shareof of
legitimate legitimate
ofthenetestate ofthenetestate
parentsor parents
ascendants and
Shareofthe ascendants
surviving ofthenetestate Surviving
spouse 1/8ofthenetestate
spouse
Freeportion ofthenetestate Illegitimate
ofthenetestate
children
Free
IllegitimatechildrenandSurvivingSpouse 1/8ofthenetestate
portion
Shareof
illegitimate 1/3ofthenetestate
children SurvivingSpouseAlone;Exception:Marriagein
Shareof ArticuloMortis
the Surviving
1/3ofthenetestate
surviving spouse ofthenetestate
spouse only
Free Free
1/3ofthenetestate ofthenetestate
portion portion
Surviving
LegitimateParentsorAscendantsand spouse
IllegitimateChildren only
Sharesand (marriage
of inarticulo 1/3ofthenetestate
legitimate mortis,
ofthenetestate testator
parents
and diedw/in3
ascendants months)
Illegitimate Free
ofthenetestate 2/3ofthenetestate
children portion
Free Surviving
ofthenetestate spouse
portion
only
(marriage
SurvivingSpouse;LegitimateChildrenor inarticulo
Ascendants;IllegitimateChildren mortis,
Shareof testator
ofthenetestate
legitimate diedw/in
ofthenetestate 3mos.but
childrenand
descendants havebeen
livingas
Surviving Equaltotheportionofthe
H&Wfor
spouse legitimeofeachlegitimatechild
notless
Illegitimate oftheshareofeachlegitimate than5yrs)
children child Free
ofthenetestate
portion
Freeportion Whateverremains

309

IllegitimateParentsAlone;orWith
IllegitimateChildrenAlone illegitimatechildrenorLegitimateChildrenor
Descendants;orWithSurvivingSpouse
Shareof
Shareof
illegitimate ofthenetestate
the
children
illegitimate ofthenetestate
Free parents
ofthenetestate
portion alone
Free
ofthenetestate
portion
Shareof ofthenetestate
illegitimate
parents
Shareof ofthenetestate
the
surviving
spouse
Free ofthenetestate
portion

TABLEOFINTESTATESHARES

LEGEND:
Legit.ChildrenorDescendants LCD Illegit.ChildrenorDescendants ILCD
Legit.ParentsorAscendants LPA Illegit.ParentsorAscendantsI LPA
SurvivingSpouse SS BrothersandSisters BS
NephewsandNieces NN

INTESTATEHEIRS SHAREINTHEFREEPORTION
AnyClassalone ofthefreeportion
LCDalone
SS (SS)
LCD Remainingportionofestateafterpayinglegitimes

LegitimestobedividedequallybetweentotalnumberofchildrenplustheSS
SS
LCD Remainingportionofestateafterpayinglegitimes

Legitimestobedividedbytheratioof2:1
ILCD
OneLCD Remainingportionofestateafterpayinglegitimestobedividedbytheratioof2:1

OnepartgoestotheILCD
OneILCD
Sameshareasalegitimatechild
SS
LCD Remainingportionofestateafterpayinglegitimestobedividedbytheratioof2:1
OnepartgoestotheILCD

ILCD Sameshareasalegitimatechild,providedlegitimesarenotimpaired

SS
LPA

ILCD (ILCD)
310 CIVILLAWTEAM:

SUCCESSION
LPA

SS (SS)
LPA

SS (SS)

ILCD
ILCD 1/6

SS 1/6
SS or
ILPA

SS
BS,NN
SS

BS,NN (BS,NN)
311

StepsinDeterminingtheLegitimeofCompulsoryHeirs
Step 1: INVENTORY Determination of the gross value of the estate at the time of
(Gross Value of Estate) the death of the testator
Step 2: DEDUCT Determination of all the debts and charges which are
OBLIGATIONS chargeable against the estate
Determination of the net valueof the estate by deducting all

the debts and charges from the gross value of the estate
Step 3: Net Value
Collation or addition of all the value of all donations inter

vivos to the net value of the estate
Step 4: Collation
Determination of the Net Hereditary Estate from the total

Net Hereditary Estate thus found
Imputation of all the value of donations inter vivos made to

compulsory heirs against their legitimes and of the value of
all donations inter vivos made to strangers against the
disposable free portion and restoration to the hereditary
estate if the donation is inofficious.
If the legitime is impaired, the following reductions shall be

made:
a. First, reduce pro rata non-preferred legacies and
devices, and the testamentary dispositions.
b. Second, reduce pro rata the preferred legacies and
devises
c. Third, reduce the donations inter vivos according to
the inverse order of their dates.
*** As to the remaining portion of the estate, it shall be

distributed to the devisees and legatees
312 CIVILLAWTEAM:

SUCCESSION
2.COMPULSORYHEIRSANDVARIOUS Legitimatechildrenanddescendants(LCD)
COMBINATIONS
Q:Isanadoptedchildacompulsoryheir?
Q:Whoarecompulsoryheirs?
A: Legitimate children includes adopted
A:Thefollowingarecompulsoryheirs: childrenandlegitimatedchildren.
1. Legitimate children and descendants,
withrespecttotheirlegitimateparents Under R.A. 8552 or the Domestic Adoption Law
andascendants; adoptedchildrenhavethesamerightsgrantedto
2. In default of the foregoing, legitimate the legitimate children. Adopted children, for all
parentsandascendants,withrespectto intentsandpurposesareconsideredaslegitimate
their legitimate children and children.
descendants;
3. Thewidoworwidower; Hence,theadoptedchildrencanalreadyexclude
4. Acknowledged natural children, and legitimateparents/ascendants.
naturalchildrenbylegalfiction;
5. Otherillegitimatechildrenreferredtoin Legitimateparentsandascendants(LPA)
article287.
Q: When do legitimate parents and ascendants
NOTE:CompulsoryheirsmentionedinNos.3,4,and inherit?
5arenotexcludedbythoseinNos.1and2;neither
dotheyexcludeoneanother. A: Legitimate parents and ascendants inherit in
default of legitimate children and descendants.
In all cases of illegitimate children, their filiation
Theyaresecondarycompulsoryheirs.
mustbedulyproved.

Q:Isthepresenceofillegitimatechildrenofthe
The father or mother of illegitimate children of the
three classes mentioned, shall inherit from them in decedentexcludetheLPA?
the manner and to the extent established by this
Code.(Art.887) A:No.Legitimateparentsandascendantsconcur
withtheillegitimatechildrenofthedecedent.
Q: What are the classifications of compulsory
heirs? However, if the decedent is himself illegitimate,
his illegitimate children exclude the illegitimate
A: parentsandascendants.
1. PrimarycompulsoryheirsTheyarenot
excluded by the presence of other Survivingspouse(SS)
compulsoryheirs. Q: Can a common law spouse be a compulsory
heir?
E.g. legitimate children, surviving
spouse A:No.Theremustbevalidmarriagebetweenthe
2. Secondary compulsory heirs Those decedent and the surviving spouse. If the
who succeed only in default of the marriage is null and void, the surviving spouse
primarycompulsoryheirs. cannotinherit.

E.g.legitimateascendants Q: How can the heirs of the decedent use the
3. Concurring compulsoryheirsTheyget nullity of marriage to prevent the surviving
their legitimes together with the spousefrominheriting?
primary or secondary heirs. Neither
excludes primary or secondary heirs, A: The heirs can raise the issue of nullity of the
noreachother. marriage in the same proceeding for the
settlementoftheestate.Thisisallowedbecause
E.g. Surviving spouse and illegitimate amarriagethatisnullandvoidcanbecollaterally
childrenanddescendants. attacked.

However, in case of voidable marriages, if the
marriage is not annulled before the decedent
died,thesurvivingspousecanstillinherit

313

Reason:Voidablemarriagescanonlybeattacked Q: What are the requisites that must exist in
inadirectproceeding,i.e.annulmentproceeding. order that a property may be impressed with a
reservablecharacter?
Note:Thesurvivingspouseisnotacompulsoryheir
ofhis/herparentinlaw. A:
1. That the property was acquired by a
Separationinfact will not disqualify the surviving descendant (called praepositus or
spouse from getting his/her legitime, regardless of propositus) from an ascendant or from
his/herguilt. a brother or sister by gratuitous title
when the recipient does not give
Illegitimatechildren anythinginreturn;

2. Thatsaiddescendant(praepositus)died
Note: Under the Family Code, there is no more
withoutanissue;
distinction between acknowledged natural children
andillegitimatechildren.Theyareallconsideredas
3. That the same property (called
illegitimate. reserva) is inherited by another
ascendant (called reservista) by
Compulsoryheirsofapersonwhoisillegitimate: operation of law (either through
1. Legitimatechildrenanddescendants; intestate or compulsory succession)
2. Illegitimatechildrenanddescendants; fromthepraepositus;and
3. In default of the foregoing, illegitimate 4. Thattherearelivingrelativeswithinthe
parentsonly; third degree counted from the
4. Survivingspouse. praepositus and belonging to the same
line from where the property originally
Q:Inwhatwaysmaycompulsoryheirsinherit? came(calledreservatarios).(Art.891;
Chua v. CFI of Negros Occidental,
A:Compulsoryheirsinheriteither: Branch V, 78 SCRA 412; Rabuya, Civil
1. intheirownright;or LawReviewer,pp.634635)
2. byrightofrepresentation
Q:Doesreservatroncalexistinanillegitimateor
3.RESERVATRONCAL adoptiverelationship?

Q:Whatisreservatroncal? A: No. It only exists in the legitimate family.
(Centenov.Centeno,52Phil.322;id,p.635)
A: Reserva troncal The ascendant who inherits
from his descendant any property which the Q: What are the causes for the extinguishment
lattermayhaveacquiredbygratuitoustitlefrom ofthereserva?
another ascendant, or a brother or sister, is
obligedtoreservesuchpropertyashemayhave A:DDLRRP
acquired by operation of law for the benefit of 1. Deathofthereservista
relativeswhoarewithinthethirddegreeandwho 2. Death of all the relatives within the
belongtothelinefromwhichsaidpropertycame. third degree prior to the death of the
(Art.891) reservista
3. Accidental Loss of all the reservable
Purpose: To prevent persons who are outsiders properties
to the family from acquiring, by chance or 4. Renunciation or waiver by the reserves
accident, property which otherwise would have orreservatarios
remained with the said family. In short, to put 5. Registration under Act 496 without the
back the property to the line from which it reservablecharacterbeingannotatedif
originallycame. itfallsintothehandsofabuyeringood
faithforvalue
Note:Othertermsusedtorefertoreservatroncal: 6. By Prescription reservista seeks to
1. Lineal acquire(30yearsimmovable;8years
2. Familiar movable)
3. Extraordinaria
4. Semitroncal
5. Pseudotroncal

314 CIVILLAWTEAM:

SUCCESSION
Q:Differentiatereservaminimaandreserva Note:Togiverisetoreservetroncal,thepropositus
maxima. must not have any legitimate children, otherwise,
the reservable property will be inherited by the
A: latter

RESERVAMINIMA RESERVAMAXIMA
The presence of illegitimate children of the
Allofthepropertieswhich proposituswillnotpreventhislegitimateparentsor
Alloftheproperties
thedescendanthad ascendantsfrominheritingthereservedproperty.
whichthedescendant
previouslyacquiredby Thepropositusisthedescendantwhosedeathgives
hadpreviouslyacquired
gratuitoustitlefrom risetothereservatroncal,andfromwhomtherefore
bygratuitoustitlefrom
anotherascendantorfrom thethirddegreeiscounted.
anotherascendantor
abrotherorsistermustbe
fromabrotherorsister
consideredaspassingto Q:Canthepropositusalienatetheproperty?
mustbeincludedinthe
theascendantreservista
ascendantslegitime
partlybyoperationoflaw
insofarassuchlegitime A: Yes. While propositus is still alive, there is no
andpartlybyforceofthe
cancontain. reserva yet, therefore, he is the absolute owner
descendantswill.
of the property, with full freedom to alienate or
Appliesintestate Alwaysfollowedin disposeorencumber.
succession. intestatesuccession
Inasmuch as the propositus is the full owner of
theproperty,hemayevendefeattheexistenceof
Q:Whoarethepartiesinreservatroncal?
any possible reserve by simply not giving the
A:
property involved to his ascendant, by way of
1. Origin
inheritancebyoperationoflaw.
2. Propositus

3. Reservista
Note:Thepropositusisreferredtoasthearbiterof
4. Reservatartios/Reservees
thereserva.

ORIGIN
RESERVISTA

Q:Whomustbetheorigininreservatroncal?
Q:Whoisthereservistainreservatroncal?

A: The origin of the property must be an
A: The reservista is the ascendant who inherits
ascendant,brotherorsisterofthepropositus.
from the propositus by operation of law. It is he
Note: The origin must be a legitimate relative
whohastheobligationtoreserve.
becausereservatroncalexistsonlyinthelegitimate

family.
Note: The relationship between the reservista and
thepropositusmustbelegitimate.
Q:Inorderforreservatroncaltotakeplace,how
should the property be transmitted from the Ifheinheritedthepropertyfromthepropositus,not
origintothepropositus? by legalsuccessionor by virtue of legitime, thereis
noobligationtoreserve.
A: The transmission from the origin to the
propositusmustbebygratuitoustitle. Q: Does the reservista own the reservable
property?
Q:Cantheoriginalienatetheproperty?
A:Yes.Whiletheoriginownstheproperty,there A: The reservista is an absolute or full owner,
is no reserva yet, and therefore, he has the subjecttoaresolutorycondition.Iftheresolutory
perfectrighttodisposeofit,inanywayhewants, conditionisfulfilled,thereservistasownershipof
subject, however to the rule on inofficious thepropertyisterminated.
donations.
Resolutory condition: If at the time of the
PROPOSITUS reservistasdeath,thereshouldstillexistrelatives
within the third degree (reservatarios) of the
Q:Whomustbethepropositus? propositus and belonging to the line from which
thepropertycame.
A: The propositus must be a legitimate
descendantorhalfbrother/sisteroftheoriginof Note:Thereservablepropertyisnotpartofthe
theproperty. estateofthereservista.

315

Q:Canthereservistaalienatetheproperty? 3. Fullandhalfbrothersandsisters;
4. Greatgrandparents,
A:Thereservistacanalienatethepropertybeing 5. Nephewsandnieces.
theownerthereofbutsubjecttothereservation.
Q:Whataretherequisitesforpassingoftitleto
Q:Isthereservistarequiredtofurnishabond? thereservatarios?

A: A:
GR:Heisrequiredtofurnishabond,security 1. deathofthereservista;and
or mortgage to guarantee the safe delivery 2. the fact that the reservatarios survived
laterontothereservatariosoftheproperties thereservista.
concerned,inthepropercases.
XPN: The bond, security or mortgage is not Note:Thereservatariosinheritthepropertyfrom
needed when the property has been thepropositus,notfromthereservista.
registered or annotated in the certificate of
titleassubjecttoreservatroncal. Thereservatariosmustbelegitimaterelativesofthe
originandthepropositus.
Note:Uponthereservistasdeaththeownershipof
thereservedpropertiesisautomaticallyvestedto Reservatroncalisgovernedbythefollowingruleson
thereservatarioswhoareexisting.Hence,the intestatesuccession:(Applicablewhenthereare
reservistacannotdisposethereservedpropertyby concurringrelativeswithinthethirddegree)
williftherearereservatariosexistingatthetimeof 1. Proximity The nearer excludes the
hisdeath. farther
2. The direct line is preferred over the
Q:Whataretheobligationsofthereservista? collateralline
3. Thedescendinglineispreferredoverthe
ascendingline
A:

1. Tomakeaninventoryofthereservable
Q:Whataretherightsofthereservatarios?
property;

2. Toannotatethereservablecharacterof
A:
the real property in the Register of
1. Toaskfortheinventoryofallreservable
Deedswithin90daysfromthetimehe
property
receivestheinheritance;
2. The appraisal of all reservable movable
3. Tofurnishabond,security,ormortgage
property
toanswerforthereturnofpropertyor
3. The annotationin the registry of deeds
itsvalue;
rd of the reservable character of all
4. To preserve the property for the 3
reservableimmovableproperty
degreerelatives.
4. Constitutionofthenecessarymortgage.

RESERVATARIOS
Q:Whendoesthereservatarioacquiretheright

overthereservableproperty?
Q:Whoarethereservatarios?

A: Upon the death of the reservista, the
A:Thereservatariosarerelativeswithinthethird
reservatario nearest the decedent propositus
degreeofthepropositus,whobelongtothesame
becomes, automatically and by operation of law,
linefromwhichthepropertyoriginallycame,who
the absolute owner of the reservable property.
will become the full owners of the property the
(Canov.DirectorofLands)
moment the reservista dies, because by such

death,thereservaisextinguished.
Q: Is there right of representation in reserva

troncal?
Q:Whoaretherelativeswithinthethirddegree

fromthepropositus?
A:Thereisrepresentationinreservatroncal,but

the representative must also be within the third
A:
degree from the propositus. (Florentino v.
1. Parents;
Florentino)
2. Grandparents;

316 CIVILLAWTEAM:

SUCCESSION
OPERATIONOFRESERVATRONCAL
Theoriginofthepropertyisthelegitimateascendant,brotherorsisterofthepropositus
UpondeathoftheORIGIN,hispropertyistransmittedtothePROPOSITUSeitherbydonationintervivos
ormortiscausa,aslongasitisbygratuitoustitle.
ORIGIN
ThePROPOSITUSisalegitimatedescendantorhalfbrother/sisteroftheORIGINoftheproperty.
Togiverisetoreservetroncal,thePROPOSITUSmustnot haveanylegitimate children,otherwise,the
reservablepropertywillbeinheritedbythelatter
ThePROPOSITUSisthedescendantwhosedeathgivesrisetothereservatroncal,andfromwhomthe
PROPOSITUS thirddegreeiscounted.
TheRESERVISTAistheascendantwhoinheritsfromthePROPOSITUSbyoperationoflaw.Itishewhohas
theobligationtoreserve.
TherelationshipbetweentheRESERVISTAandthePROPOSITUSmustbelegitimate.
TheRESERVISTAisanabsoluteorfullowner,subjecttoaresolutorycondition.
RESERVISTA Resolutorycondition: IfatthetimeoftheRESERVISTASsdeath,thereshouldstillexistrelativeswithinthe
thirddegree(reservatarios)ofthepropositusandbelongingtothelinefromwhichthepropertycame.
TheRESERVATARIO'sarerelativeswithinthethirddegreeofthepropositus,whobelongtothesameline
fromwhichthepropertyoriginallycame,whowillbecomethefullownersofthepropertythemomentthe
reservistadies.
RESERVATARIO ThereservatariosinheritthepropertyfromthePROPOSITUS,notfromtheRESERVISTA.
UponthedeathoftheRESERVISTA,theRESERVATARIOnearestthedecedentPROPOSITUSbecomes,
automaticallyandbyoperationoflaw,theabsoluteownerofthereservableproperty.

4.DISINHERITANCE Disinheritance,however,iswithoutprejudicetothe
right of representation of the children and
A.DISINHERITANCEFORCAUSE descendantsofthepersondisinherited.

Q:Whatisdisinheritance? But the disinherited parent shall not have the
usufruct or administration of the property which
A: Disinheritance is the process or act, thru a constitutesthelegitime.
testamentarydispositionofdeprivinginawillany
compulsoryheirofhislegitimefortrueandlawful Q: What are the requisites of a valid
cause. disinheritance?

Note: The onlywayin which a compulsory heir can A:Disinheritancemustbe:
be deprived of his legitime is through valid 1. Madeinavalidwill;
disinheritance. 2. Identity of the heir is clearly
established;
Disinheritance is not automatic. There must be 3. Foralegalcause;
evidence presented to substantiate the 4. Expresslymade;
disinheritance and must be for a valid and sound 5. Causestatedinthewill;
cause. 6. Absoluteorunconditional;
7. Total;
Effect of disinheritance: Total exclusion to the 8. Causemustbetrueandifchallengedby
inheritance, meaning, loss of legitime, right to theheir,itmustbeprovedtobetrue.
intestatesuccession,andofanydispositioninaprior
will. Note:Proponentofdisinheritancehastheburdenof
proof.

317

(1)RECONCILIATION Q:Whatarethegroundsfordisinheritance?

Q: What is the effect of subsequent A:
reconciliation between the offender and the 1. Common causes for disinheritance of
offendedpartyonthelattersrighttodisinherit? children or descendants, parents or
ascendants,andspouse:
A: A subsequent reconciliation between the
offender and the offended person deprives the a. When the heir has been found
latter of the right to disinherit, and renders guiltyofanattemptagainstthelife
ineffectualanydisinheritancethatmayhavebeen of the testator, his/her
made.(Art.922) descendants or ascendants, and
spouse, in case of children or
(2)RIGHTSOFDESCENDANTSOFPERSON parents.
DISINHERITED b. When the heir by fraud, violence,
intimidation, or undue influence
Q:Whatisreconciliation? causes the testator to make to
make a will or to change one
A:Thereisreconciliationwhentwopersonswho alreadymade.
are at odds decide to set aside their differences c. When the heir has accused the
andtoresumetheirrelations.Theyneednotgo testator of a crime for which the
backtotheiroldrelation. lawprescribesimprisonmentofsix
years or more, if the accusation
Note:Ahandshakeisnotreconciliation.Ithastobe hasbeenfoundgroundless.
somethingmore.Itmustbeclearanddeliberate. d. Refusalwithoutjustifiablecauseto
support the testator who
In order to be effective, the testator must pardon disinheritssuchheir.
thedisinheritedheir.Thepardonwhetherexpressor
tacit, must refer specifically to the heir disinherited 2. PeculiarCausesforDisinheritance
and to the acts he has committed, and must be
acceptedbysuchheir.
a. ChildrenandDescendants:

i. Conviction of a crime which
In disinheritance, reconciliation need not be in
writing.
carrieswithitapenaltyofcivil
interdiction
Q: What is the effect of reconciliation on a ii. Maltreatment of the testator
personsrighttodisinherit? b word or deed by the
childrenordescendant
A: iii. When the children or
1. Ifmadebeforedisinheritancerightto descendant has been
disinheritisextinguished. convicted of adultery or
2. If made after disinheritance concubinage with the spouse
disinheritanceissetaside. ofthetestator
iv. When the children or
B.DISINHERITANCEWITHOUTCAUSE descendant leads a
dishonorable or disgraceful
Q: What is the effect of disinheritance without life
cause?
b. ParentsorAscendants:
A: Disinheritance without a specification of the i. When the parent or
cause, or for a cause the truth of which, if ascendanthasbeenconvicted
contradicted,isnotproved,orwhichisnotoneof of adultery or concubinage
those set forth in this Code, shall annul the with the spouse of the
institutionofheirsinsofarasitmayprejudicethe testator
person disinherited; but the devises and legacies ii. When the parents have
andothertestamentarydispositionsshallbevalid abandoned their children or
tosuchextentaswillnotimpairthelegitime.(Art. induced their daughters to
918) live a corrupt or immoral life,
or attempted against their
virtue
318 CIVILLAWTEAM:

SUCCESSION
iii. Loss of parental authority for Q: What is the effect if the thing or property
causesspecifiedintheCode bequeathed or devised belonged to the legatee
iv. Attemptbyoneoftheparents ordeviseeatthetimethewillwasexecuted?
against the life of the other,
unless there has been A: The legacy or devise is ineffective even if the
reconciliationbetweenthem legatee or devisee alienates the thing after the
willismade.
c. Spouse:
i. When the spouse has given Q: Suppose the legatee or devisee acquired the
causeforlegalseparation property after the will has been executed?
ii. When the spouse has given Supposeheacquiredthethingbyoneroustitle?
grounds for the loss of Whatwouldbetheeffect?
parentalauthority
A:Ifatthetimethelegacyordeviseismade,the
5.LEGACIESANDDEVISES thingdidnotbelongtothelegateeordeviseebut
lateronheacquiresit,then:
Q:Whatcanbebequeathedordevised?
1. Ifheacquireditbygratuitoustitle,then
A: Anything within the commerce of man or thelegacyordeviseisvoid.
whichisalienable.
Reason: The purpose of the testator that
Q:Whomaybechargedwithlegaciesand the property would go to the devisee or
devices? legatee has already been accomplished
withnoexpensetothelegateeordevisee.
A:
1. Anycompulsoryheir 2. If he acquired it by onerous title, the
2. Anyvoluntaryheir legacy or devise is valid and the estate
3. Anylegateeordevisee may be required to reimburse the
4. Theestate,representedbytheexecutor amount.
oradministrator(Jurado,p.345)
Q:Supposethepropertybequeathedordevised
Q:Canthetestatorbequeathordeviseathingor has been pledged or mortgaged, who has the
propertybelongingtosomeoneelse? obligation to free the property from such
encumbrance?
A:Itdependsonwhether:
1. Thetestatorthoughtthatheownedit A:
GR:Thepledgeormortgagemustbepaidby
GR: A legacy or devise of a thing theestate.
belonging to someone else when the
testator thought that he owned it is a XPN: If the testator provides otherwise.
void legacy or devise because it is However,anyotherchargesuchaseasements
vitiatedbymistake. and usufruct, with which the thing
bequeathed is burdened, shall be respected
XPN: If the testator acquires it after bythelegateeordevisee.
makinghiswill.
Q:Whatisalegacyofcredit?
2. The testator knows that he does not
ownbutordereditsacquisition A:It takesplacewhenthetestatorbequeathsto
anotheracreditagainstathirdperson.Ineffect,
If the thing given as devise or legacy is itisanovationofthecreditbythesubrogationof
not owned by the testator at the time thelegateeintheplaceoftheoriginalcreditor.
he made the will but he orders his
estatetoacquireit,itisavalidlegacyor Q:Whatisalegacyofremission?
devise. The testator knew that he did
notownit.Thereisnomistake. A: It is a testamentary disposition of a debt in
favorofthedebtor.Thelegacyisvalidonlytothe
extentoftheamountofthecreditexistingatthe
timeofthetestator'sdeath.Ineffect,thedebtis
extinguished.
319

Note: Note: When the question of reduction is between
1. Legacy applies only to the amounts and among legatees and devisees themselves, Art.
outstanding at the time of the testator's 950 governs; but when there is a conflict between
death. compulsory heirs and legatees/devisees, Art. 911
2. The legacy is revoked if the testator files governs.
anaction(judicialsuit)againstthedebtor.
3. It applies only to credits existing at the Q: What are the grounds for the revocation of
time the will was made, and not to legacyordevise?
subsequentcredits. A:
1. Transformation of the thing in such a
Q:Isalegacyordeviseconsideredpaymentofa manner that it does not retain either
debt,ifthetestatorhasastandingindebtedness theformorthedenominationithad.
tothelegateeordevisee? 2. Alienationofthethingbequeathed.

A:No,legacyordeviseisnotconsideredpayment Note:
of a debt because if it is, then it would be a GR:Thealienationofthepropertyrevokes
uselesslegacyordevisesinceitwillreallybepaid. thelegacyordevisenotwithstandingthe
nullityofthetransaction.
Q:Whatistheorderofpaymentoflegaciesand However,whetherornotthelegacyor
devises? deviseisrevokedornotdependsonthe
basisforthenullityofthecontract:
A:
1. Remuneratorylegaciesordevises Ifthenullityisbasedonvitiatedconsent,
2. Legaciesordevisesdeclaredbytestator thelegacyordeviseisnotrevoked
tobepreferential becausetherewasnointentiontorevoke.
3. Legaciesforsupport
Forallothergrounds,thelegacyordevise
4. Legaciesforeducation
isrevoked.
5. Legacies or devises of a specific

determinate thing which forms part of XPN:Ifthesaleispactoderetroandthe
theestate testatorreacquireditduringhislifetime.
6. Allothersprorata
3. Totallossofthethingbequeathed.
Note:Theorderofpreferenceisapplicablewhen:
1. There are no compulsory heirs and the
Note:Thelossofthethingbequeathed
entireestateisdistributedbythetestator
mustnotbeattributedtotheheirs.There
aslegacy/devise;or
shouldbenofaultonthepartoftheheirs.
2. There are compulsory heirs but their
4. If the legacy is a credit against a third
legitimehasalreadybeenprovidedforby
person or the remission of a debt, and
the testator and there are no donations
intervivos.
the testator, subsequent to the making
of the will, brings an action against the
Q:WhatisthedistinctionbetweenArt.911and debtorforpayment.
Art.950?

A:
Orderofpreference Orderofpreference
underArt.911 underArt.950
LDPO:
1. RemuneratoryL/D;
1. Legitimeof
2. PreferentialL/D;
compulsoryheirs;
3. Legacyforsupport;
2. Donationsinter
4. Legacyforeducation;
vivos;
5. L/Dofaspecific,
3. Preferential
determinatething
legaciesor
whichformsapartof
devises;
theestate;
4. AllOtherlegacies
6. Allothersprorata
ordevisesprorata

320 CIVILLAWTEAM:

SUCCESSION
III.LEGALORINTESTATESUCCESSION Q: Can there be a valid will which does not

instituteanheir?
A.GENERALPROVISIONS
A: Yes, a will is valid even if it contains only a
1.RELATIONSHIP provisionfordisinheritanceorifonlylegaciesand
devisesarecontainedinthewill.
Q:Whatislegalorintestatesuccession?
Q:Whoareintestateheirs?
A: Legal or intestate succession is that which is
effectedbyoperationoflawindefaultofawill.It A:
islegalbecauseittakesplacebyoperationoflaw; 1. Legitimatechildrenordescendants
it is intestate because it takes place in the 2. Illegitimatechildrenordescendants
absence or in default of a last will of the 3. Legitimateparentsorascendants
decedent.(Jurado,p.377) 4. Illegitimateparents
5. Survivingspouse
Q: What is the formula for application of 6. Brothers and sisters, nephews and
inheritance? nieces
th
7. Other collateral relatives up to the 5
A:Thefollowingareappliedsuccessively:ISRAI degree
1. Institution of an heir (Bequest, in case 8. TheState.
oflegaciesordevises)
2. Substitution,ifproper 2.RIGHTOFREPRESENTATION
3. Representation,ifapplicable
4. Accretion,ifapplicable Q:Whatisrightofrepresentation?
5. Intestacy, if all of The above are not
applicable A: Right created by fiction of law where the
representative is raised to the place and degree
Q: When can legal or intestate succession take of the person represented, and acquires the
place? rights which the latter would have if he were
livingorcouldhaveinherited.
A:Intestatesuccessiontakesplacewhen:
1. there is no will; the will is void, or the Q:Whatistheeffectofrepresentation?
willisrevoked;
2. the will does not dispose all the A: Whenever there is succession by
property of the testator. (partial representation,thedivisionoftheestateshallbe
intestacy); made per stirpes, in such manner that the
3. the suspensive condition attached to representativeorrepresentativesshallnotinherit
theinheritanceisnotfulfilled; morethanwhatthepersontheyrepresentwould
4. The heir predeceased the testator or inherit, if he were living or could inherit. (Art.
repudiates the inheritance and no 974)
substitution and no right of accretion
takeplace. Note:Perstirpesmeansinheritancebygroup,all
5. The heir instituted is incapacitated to thosewithinthegroupinheritinginequalshares.
succeed. Representationissuperiortoaccretion.

Note: The enumeration is not exclusive; there are Q:Whendoesrightofrepresentationarise?
othercausesforintestacywhicharenotincludedin
theenumeration. A:Representationmayariseeitherbecauseof:
E.g. 1. death,
1. Preterition; 2. incapacity,or
2. Arrivaloftheresolutorytermorperiod; 3. disinheritance.
3. Fulfillment of a resolutory condition
attachedtotheinheritance; Q:Whenisrightorrepresentationnotavailable?
4. Noncompliance or impossibility of
complyingwiththewillofthetestator. A:
1. As to compulsory heirs: In case of
repudiation,theonewhorepudiateshis
inheritance cannot be represented.
321

Their own heirs inherit in their own represent their adopting parents to the
right. inheritanceofthelattersparents.
2. As to voluntary heirs: Voluntary heirs,
legateesanddeviseeswho: Reason:Thelawdoesnotcreateanyrelationship
a. Predeceasethetestator;or between the adopted child and the relatives of
b. Renouncetheinheritance the adopting parents, not even to the biological
cannotberepresentedbytheirown orlegitimatechildrenoftheadoptingparents.
heirs,withrespecttotheirsupposed
inheritance. Note: Under R.A. 8552 or the Domestic Adoption
Law, the adopted child and the adopting parents
Q: Does the representative inherit from the havereciprocalsuccessionalrights.
personrepresented?
Q:Whatistheruleonequaldivisionoflines?
A:No.Inrepresentation,therepresentativedoes
notinheritfromthepersonrepresentedbutfrom A:
thetestatorordecedent. GR: Intestate heirs equal in degree inherit in
equalshares.
Q: Where does right of representation take
place? XPN:
1. In the ascending line, the rule of
A: Representation takes place in the direct divisionbylineistothematernalline
descendingline,neverintheascending. and to the paternal line, and within
Note:Therepresentativehimselfmustbecapableof eachline,thedivisionispercapita.
succeedingthedecedent. 2. In the collateral line, the fullblood
An illegitimate child can represent his father, brothers/sisters will get double that of
providedthatthefatherwasalsoillegitimate. thehalfblood.
3. The division in representation, where
Q: Does right of representation apply in the division is per stirpes the
collateralline? representative divide only the share
pertainingtothepersonrepresented.
A: Right of representation takes place only in
favor of children of brothers or sisters, whether Note: The share of an illegitimate child is of the
full or half blood and only if they concur with at shareofalegitimateone.
leastoneuncleoraunt.
Fullbloodbrotherorsisterisentitledtodoublethe
Note:Thisruleappliesonlywhenthedecedentdoes shareofhalfbrotherorsister(Art.1006).
nothavedescendants.
Compulsoryheirsshall,innocase,inheritabintesto
Q:Whatistheeffectifthereisnouncleoraunt lessthantheirlegitimeasprovidedintestamentary
uponwhomthechildren,whoseektoinvokethe succession.
rightofrepresentation,canconcurwith?
IRONCURTAINRULE
A: There shall be no right of representation and
ultimately they shall not inherit following Art. Q:Whatistheironcurtainrule?
975.
A: Art. 992 of the Civil Code provides that
Q:Mayanillegitimatesiblingofthedecedentbe illegitimate children cannot inherit ab intestato
represented? from the legitimate children and relatives of his
mother or father. Legitimate children and
A: Yes. An illegitimate brother or sister of the relativescannotinheritinthesamewayfromthe
deceased can be represented by his children, illegitimatechild.
without prejudice to the application of the Iron
Note: The iron curtain rule only applies in intestate
CurtainRule.(Tolentino,p.451)
succession.

Q: Does the right of representation apply to
Thereisabarrierrecognizedbylawbetweenthe
adoptedchildren?
legitimate relatives and the illegitimate child so

that one cannot inherit from the other and vice
A: No. The right of representation cannot be
versa.
invokedbyadoptedchildrenbecausetheycannot
322 CIVILLAWTEAM:

SUCCESSION
Rationale:Thelawpresumestheexistenceof Appliesiftheonewho
Appliesiftheonewho
antagonismbetweentheillegitimatechildand diedfirstisthe
diedfirstisthe
thelegitimaterelativesofhisparents. legitimateparentor
illegitimatesparent.
childofthe

Q:Distinguishtheapplicationofironcurtainrule illegitimatesparent.
Reason:illegitimate
andrightofrepresentation.
willberepresentinghis
A: Reason:illegitimate
parentbecauseofthe
inheritsfromhis
RIGHTOF predecease,thebar
IRONCURTAINRULE parentsestatewhich
REPRESENTATION imposedbytheiron
includeshisparents
Prohibitsabsolutelya curtainruleis
inheritancefromsaid
successionabintestato Rightcreatedbyfiction renderedoperativeto
legitimaterelativeor
betweenthe oflawwherethe preventsuch.
childwhodied.
illegitimatechildand representativeisraised
thelegitimatechildren totheplaceand
andrelativesofthe degreeoftheperson
fatherormotherof represented,and
saidillegitimatechild. acquirestherights
whichthelatterwould
Note:Ironcurtainrule haveifhewereliving
imposesalimitationon orcouldhave
rightof inherited.
representation.
Appliestoboth
Appliesonlyin
intestateandtestate
intestatesuccession
succession
Determiningfactor:whodiedfirst?Isitthe
parentoftheillegitimatechildorisitthe
legitimaterelativeorchildofhisparent?

RightofRepresentationandIronCurtainRule
(D)
If the child to be represented is If the child to be represented is
LEGITIMATE only legitimate children/ ILLEGITIMATE both legit & illegit
descendants can represent him children/ descendants can represent him
Legit X Illegit Y
legit illegit legit illegit

(X1) (X2) (Y2) (Y1)
Iron Curtain Rule applies
Since X and Y both predeceased D, only X1 can represent X. X2 cannot by virtue of the iron curtain
rule. Both Y1 and Y2 can represent Y
323

B.ORDEROFINTESTATESUCCESSION theestatewhiletheillegitimateparents
gettheotherhalf.
Q:Whatistheorderofpreferencebetweenlines
inlegalorintestatesuccession? Note: In the ascending line, only the
illegitimateparents are entitledto inherit
A:Successiontakesplace: from the illegitimate child; the other
First,inthedirectdescendingline; illegitimate descendants are not so
Second,inthedirectascendingline; entitled.
Finally,inthecollateralline.
4. In default of children or descendants,
Q:Whatistheorderofintestatesuccessiontoa legitimate or illegitimate, and
legitimatechild? illegitimate parents, the surviving
spouse shall inherit the entire estate.
A: In general, and without prejudice to the But if the surviving spouse should
concurrent right of other heirs in proper cases, survive with brothers and sisters,
the order of intestate succession to a legitimate nephews and nieces, the surviving
childisasfollows: spouse shall inherit onehalf of the
1. legitimatechildrenanddescendants; estate,andthelattertheotherhalf.The
2. legitimateparentsandascendants; brothers and sisters must be by
3. illegitimatechildren; illegitimatefiliation,otherwise,theIron
4. thesurvivingspouse; CurtainRuleshallapply.
5. collateralsuptothefifthdegree;and
6. the State. (Rabuya, Civil Law Reviewer, 5. Although the law is silent, illegitimate
p.678) brothers and sisters who survive alone
shall get the entire inheritance. The
Q: What is the order of intestate succession to legitimate children of the illegitimate
anillegitimatechild? parentsarenotentitledtoinheritfrom
theillegitimatechildbyvirtueofArticle
A: 992oftheNCC.
1. The legitimate children and
descendants of a person who is an 6. TheState.(id.,pp.691692)
illegitimate child are preferred over
other intestateheirs, without prejudice
to the right of concurrence of IV.PROVISIONSCOMMONTOTESTATEAND
illegitimate children and the surviving INTESTATESUCCESSION
spouse.
A.RIGHTOFACCRETION
2. In the absence of legitimate children
and descendants, the illegitimate 1.DEFINITIONANDREQUISITES
children (of the illegitimate child) and
theirdescendantssucceedtotheentire Q:Whatisaccretion?
estate, without prejudice to the
concurrent right of the surviving A: Accretion is a right by virtue of which, when
spouse. two or more persons are called to the same
inheritance,deviseorlegacy,thepartassignedto
the one who renounces or cannot receive his
3. In the absence of children and
share, or who died before the testator, is added
descendants, whether legitimate or
orincorporatedtothatofhiscoheir,codevisees,
illegitimate, the third in the order of
orcolegatees.
succession to the estate of the

illegitimate child is his illegitimate
Basis:Accretionisarightbasedonthepresumed
parents.Ifbothparentssurviveandare
will of the deceased that he prefers to give
entitled to succeed, they divide the
certain properties to certain individuals rather
estate share and share alike. Although
thantohislegalheirs.Accretionispreferredover
thelawissilent,ifthesurvivingspouse
intestacy.
oftheillegitimatechildconcurswiththe

illegitimate parents, the surviving
spouse shall be entitled to onehalf of
324 CIVILLAWTEAM:

SUCCESSION
Q:Whataretherequisitesofaccretion? 2. Those who cannot be identified. (Art.

845)
A: 3. Thosewhoarenotpermittedbylawto
1. Two or more persons must have been inherit.(Art.1027)
called in the testators will to the same
inheritance, legacy or devise, or to the Q: Who are incapacitated to succeed based on
sameportionthereof,proindiviso moralityorpublicpolicy?
2. There must be a vacancy in the
inheritance,legacyordeviseasaresult A:ACO
ofpredecease,incapacityorrepudiation 1. Persons guilty of Adultery or
concubinage with the testator at the
Q:Intestamentarysuccession,inwhatinstances timeofthemakingofthewill;
mayaccretiontakeplace? 2. Persons guilty of the same Criminal
offense,inconsiderationthereof;
A: 3. Apublicofficerorhiswife,descendants
1. Predecease andascendants,byreasonofhisOffice.
2. Incapacity (Art.739)
3. Renunciation
4. Nonfulfillment of suspensive condition Q: Who are incapacitated to succeed by reason
imposeduponinstitutedheir ofunworthiness?
5. Ineffectivetestamentarydisposition
A:PCAVAFPF
Q:Inintestatesuccession,inwhatinstancesmay 1. Parents who have abandoned their
accretiontakeplace? children or induced their daughters to
lead a corrupt or immoral life, or
A: attemptedagainsttheirvirtues;
1. Predeceaseoflegalheir 2. Persons Convicted of an attempt
2. Incapacityoflegalheir against the life of the testator, his or
3. Repudiationbylegalheir herspouse,descendantsorascendants;
3. Persons who Accused the testator of a
Note: Accretion takes place only if there is no crime for which the law prescribes
representation. imprisonment for six years or more, if
Inrenunciation,thereisalwaysaccretion. the accusation has been found to be
groundless;
Reason:Norepresentationinrenunciation. 4. Heir of full age who, having knowledge
In intestacy, apply representation first. If there is of the Violent death of the testator,
none,thenaccretionwillapply. should fail to report it to an officer of
In testacy, apply substitution first. If there is no
the law within a month unless the
substitution, then accretion will apply. However, in
authoritieshavealreadytakenaction.
testamentary succession, the inheritance must not
havebeenearmarked.Accretioncannottakeplaceif

theinheritanceisearmarked. Note: This prohibition shall not apply to
cases wherein, according to law, there is
noobligationtomakeanaccusation.
B.CAPACITYTOSUCCEEDBYWILLORINTESTACY

5. Person convicted of Adultery or
1.PERSONSINCAPABLEOFSUCCEEDING
concubinage with the spouse of the

testator;
Q: What does absolute incapacity to succeed
6. Person who by Fraud, violence,
mean?
intimidation,orundueinfluenceshould
cause the testator to make a will or to

A:Itmeansthepersonisincapacitatedtosucceed
changeonealreadymade;
in any form, whether by testate or intestate
7. Person who by the same means
succession.
Preventsanotherfrommakingawill,or
from revoking one already made, or

Q:Whoareabsolutelyincapacitatedtosucceed?
who supplants, conceals, or alters the
latter'swill;
A:
8. Person who Falsifies or forges a
1. Thosenotlivingatthetimeofdeathof
supposed will of the decedent. (Art.
thetestator
1032)
325

Note:Grounds1,2,3,5and6arethesamegrounds 4. Any attesting Witness to the execution
asindisinheritance. of a will, the spouse, parents, or
Numbers6,7and8coversix(6)actswhichrelateto children, or any one claiming under
wills: such witness, spouse, parents, or
1. Causingthetestatortomakeawill children;
2. Causingthetestatortochangeanexisting
will Note:Numbers1to4donotapplytolegitimes.
3. Preventing the decedent from making a
will 5. Any Physician, surgeon, nurse, health
4. Preventing the testator from revoking his
officerordruggistwhotookcareofthe
will
testatorduringhislastillness;
5. Supplanting, concealing, or altering the

testator'swill.
Note:Number5isanabsolutedisqualification.
6. Falsifyingorforgingasupposedwillofthe

decedent.

6. Individuals, associations and
RELATIVEINCAPACITYTOSUCCEED corporations not permitted by law to
inherit.

Q:Whatisrelativeincapacitytosucceed?

PRIESTS
A:Itmeansthepersonisincapacitatedtosucceed

becauseofsomespecialrelationtothetestator.
Q:Whoarecoveredbythisdisqualificationto

inherit?
Q: What are the grounds for relative incapacity

tosucceed?
A:PMRC

1. Priest who heard the confession of the
A:UMA
testatorduringhislastillness;
1. Undueinfluenceorinterest(Art.1027)
2. Minister of the gospel who extended
2. Moralityorpublicpolicy(Art.739)
spiritual aid to him during the same
3. Actsofunworthiness(Art.1032)
period;

3. Relatives of such priest or minister of
Q: Who are incapacitated to succeed based on
thegospelwithinthefourthdegree;or
undueinfluenceorinterest?
4. TheChurch,order,chapter,community,

organization, or institution to which
A:PRGWPI
suchpriestorministermaybelong;
1. ThePriestwhoheardtheconfessionof

thetestatorduringhislastillness,orthe
Q: What are the requisites for this
minister of the gospel who extended
disqualificationtoapply?
spiritual aid to him during the same

period;
A:

1. Thewillwasmadeduringthelastillness
2. The Relatives of such priest or minister
ofthetestator;
of the gospel within the fourth degree,
2. The spiritual ministration must have
thechurch,order,chapter,community,
beenextendedduringthelastillness;
organization, or institution to which
3. The will was executed during or after
suchpriestorministermaybelong;
thespiritualministration.

3. A Guardian with respect to
Q: If the confession was made before the will
testamentary dispositions given by a
wasmade,canthepriestinherituponthedeath
ward in his favor before the final
ofthesickperson,if:
accountsoftheguardianshiphavebeen

approved, even if the testator should
1. Thepriestisthesonofthesickperson?
die after the approval thereof;
2. The priest was the sick persons
nevertheless, any provision made by
brother?
thewardinfavoroftheguardianwhen
A:
thelatterishisascendants,descendant,
1. Yes.Hecangetthelegitime.
brother,sister,orspouse,shallbevalid;

326 CIVILLAWTEAM:

SUCCESSION
Note:Apriestisincapacitatedtosucceed 3. Any one claiming under such witness,

when the confession is made prior to or spouse,parents,orchildren;
simultaneouslywiththemakingofawill.
Q:Willthedisqualificationstillapplyifthereare
The disqualification applies only to otherwitnessestothewill?
testamentarydispositions.
A:Itdependsuponcompliancewiththerequisite
2. Yes.Hecaninheritbyintestacy. number of witnesses. If, notwithstanding the
disqualified witness, the number of witnesses is
Note: Despite this apparent restriction to
sufficient,theformerisnotdisqualified.
Christian ministers, this applies to all

spiritualministers,e.g.,Buddhistmonks.

PHYSICIANS
Reason: It is conclusively presumed that
the spiritual minister used his moral Q:Uponwhomdoesthedisqualificationapply?
influence to induce or influence the sick
person to make a testamentary A:PSNHD
dispositioninhisfavor. 1. Physician;
2. Surgeon;
GUARDIANS 3. Nurse;
4. Healthofficer;or
Q:Whatisthecoverageofthisdisqualification? 5. Druggist

A: It applies to guardians, with respect to Note: For the disqualification to apply, the
testamentary dispositions given by a ward in his aforementioned must have taken care of the
favor before the final accounts of the testatorduringhislastillness.
guardianship have been approved, even if the
testatorshoulddieaftertheapprovalthereof. Q:Whatmustbepresentforthisdisqualification
toapply?
Q:Whendoesthedisqualificationapply?
A:
A: 1. Thewillwasmadeduringthelastillness
GR: The disqualification applies when the 2. The sick person must have been taken
disposition is made after the guardianship caredofduringhislastillness.Medical
beganorbeforeguardianshipisterminated attendancewasmade.
approval of final accounts or lifting of 3. Thewillwasexecutedduringorafterhe
guardianship. wasbeingtakencaredof.

XPN: It does not apply even when the PROHIBITEDBYLAWTOINHERIT
disposition is made after the guardianship
began or before it is terminated when the Individuals, associations and corporations not
guardianisan:ADBSS permittedbylawtoinherit.
1. Ascendant;
2. Descendant;
3. Brother;
4. Sister;or
5. Spouse.

ATTESTINGWITNESSES
Q:Whoarecoveredbythedisqualification?
A:
1. Attesting witness to the execution of a
will;
2. Theattestingwitness:
a. spouse,
b. parents,or
c. children,or
327

2.UNWORTHINESSVS.DISINHERITANCE ACCEPTANCE

Q: Distinguish Unworthiness from Q:Howmayinheritancebeaccepted?
Disinheritance.
A:
A: 1. Express acceptance through a public
DISINHERITANCE UNWORTHINESS orprivateinstrument
Effectsontheinheritance 2. Tacit acceptance through acts by
Exclusionfromthe which the intention to accept is
Deprivationofa entireinheritance. necessarilyimpliedorwhichonewould
compulsoryheirofhis However,donations have no right to do except in the
legitime. intervivosarenot capacityofanheir.
affected.
Effectsofpardonorreconciliation Q:Whenisinheritancedeemedaccepted?
Reconciliationbetween
theoffenderandthe A:
Ifthetestatorpardons
offendedpartydeprives 1. Whentheheirsells,donates,orassigns
theactofunworthiness,
thelatteroftherightto hisrights
thecauseof
disinherit,andrenders 2. When the heir renounces it for the
unworthinessshallbe
ineffectualany benefitofoneormoreheirs
withouteffect.
disinheritancethatmay 3. When renunciation is in favor of all
havebeenmade. heirsindiscriminatelyforconsideration
Mannerofreconciliationorpardon 4. Othertacitactsofacceptance:
Expressorimplied a. Heir demands partition of the
Grounds inheritance
b. Heir alienates some objects of the
Therearegroundsfordisinheritancewhicharealso
inheritance
causesforincapacitybyreasonofunworthiness.
c. Acts of preservation or
Effectofsubsequentreconciliationifdisinheritance administration if, through such
hasalreadybeenmadeonanyofthegrounds acts, the title or capacity of the
whicharealsocausesforunworthiness heirhasbeenassumed
Themomentthetestatorusesoneofthecausesfor d. Under Art. 1057, failure to signify
unworthinessasagroundfordisinheritance,he acceptance or repudiation within
therebysubmitsittotheruleondisinheritance. 30 days after an order of
(Rabuya,CivilLawReviewer,pp.644649;704708) distributionbytheprobatecourt.

REPUDIATION
C.ACCEPTANCEANDREPUDIATIONOFTHE
INHERITANCE Q:Whatarethewaysbywhichtherepudiation
of the inheritance, legacy or devise may be
Q:Whatarethethreeprincipalcharacteristicsof made?
acceptanceandrepudiation?
A:
A: 1. Bymeansofapublicinstrument
1. Itisvoluntaryandfree 2. Bymeansofanauthenticinstrument
2. Itisretroactive 3. Bymeansofapetitionpresentedtothe
3. Oncemade,itisirrevocable court having jurisdiction over the
testamentaryorintestateproceedings.
Q: What are the requisites of acceptance and
repudiation? Q:Whatistheeffectofrepudiationifanheiris
bothatestateandlegalheir?
A:
1. Certaintyofthedeathofthedecedent A: If an heir is both a testate and legal heir, the
2. Certaintyoftherightofinheritance repudiation of the inheritance as a testate heir,
he is understood to have repudiated in both
capacities. However, should he repudiate as a
legal heir, without knowledge of being a testate

328 CIVILLAWTEAM:

SUCCESSION
heir, he may still accept the inheritance as a Q: What are the properties not subject to
testateheir. collation?

Q:Whatistheremedyiftheheirrepudiatesthe A:
inheritancetotheprejudiceofhiscreditors? 1. Absolutely no collation expenses for
support, education (elementary and
A: If the heir repudiates the inheritance to the secondary only), medical attendance,
prejudice of his own creditors, the latter may even in extraordinary illness,
petition the court to authorize them to accept it apprenticeship, ordinary equipment or
inthenameoftheheir. customarygifts.

Requisites: 2. Generallynotimputedtolegitime:
1. Theheirwhorepudiatedhisinheritance a. Expenses incurred by parents in
must have been indebted at the time giving their children professional,
whentherepudiationismade vocational, or other career unless
2. The heirdebtor must have repudiated the parents so provide, or unless
his inheritance according to the theyimpairthelegitime.
formalitiesprescribedbylaw b. Wedding gifts by parents and
3. Such act of repudiation must be ascendants consisting of jewelry,
prejudicialtothecreditororcreditors. clothing and outfit except when
4. There must be judicial authorization they exceed 1/10 of the sum
(Art.1052) disposablebywill.

D.COLLATION Note: Only the value of the thing donated shall be
broughttocollation.Thisvaluemustbethevalueof
Q:Whatiscollation? thethingatthetimeofthedonation.

A: It is the process of adding the value of thing
donatedtothenetvalueofhereditaryestate. E.PARTITIONANDDISTRIBUTIONOFESTATE

To collate is to bring back or return to the 1.PARTITION
hereditarymass,infactorfiction,propertywhich
camefromtheestateofthedecedent,duringhis Q:Whatispartitionanddistribution?
lifetime, but which the law considers as an
advancefromtheinheritance. A:Itistheseparation,divisionandassignmentof
athingheldincommonamongthosetowhomit
Collation is applicable to both donations to maybelong.
compulsoryheirsanddonationstostrangers.
GR:Compulsoryheirsareobligedtocollate. Q:Whomayeffectpartition?
XPN:
1. Whentestatorshouldhavesoexpressly A:Thepartitionmaybeeffectedeither:
provided; 1. By the decedent himself during his
2. When compulsory heir repudiates his lifetimebyanactintervivosorbywill
inheritance 2. By a third person designated by the
decedentorbytheheirsthemselves
Q: What are the properties that are to be 3. By a competent court in accordance
collated? withtheNewRulesofCourt
A:
1. Any property/right received by Q:Whocandemandpartition?
gratuitoustitleduringtestatorslifetime
2. All that may have been received from A:Any:
decedentduringhislifetime 1. Compulsoryheir
3. All that their parents have brought to 2. Voluntaryheir
collationifalive 3. Legateeordevisee
4. Person who has acquired an interest in
theestate

329

Q:Whenpartitioncannotbedemanded? Q: What are the effects of the inclusion of an
intruderinpartition?
A:Partitioncannotbedemandedwhen:PAPU
1. Expressly Prohibited by testator for a A:
periodnotmorethan20years 1. Between a true heir and several
2. Coheirs Agreed that estate not be mistakenheirspartitionisvoid.
divided for period not more than 10 2. Between several true heirs and a
years,renewableforanother10yrs mistaken heir transmission to
3. Prohibitedbylaw mistakenheirisvoid.
4. To partition estate would render it 3. Through the error or mistake; share of
Unserviceable for use for which it was true heir is allotted to mistaken heir
intended partition shall not be rescinded unless
thereisbadfaithorfraudonthepartof
2.PARTITIONINTERVIVOS the other persons interested, but the
latter shall be proportionately obliged
Q:Cananestatebepartitionedintervivos? topaythetrueheirofhisshare.

A: Yes. Such partition shall be respected, insofar Q:Whenpartitioncannotbedemanded?
as it does not prejudice the legitime of
compulsoryheirs.(SeeArt.1080) A:Partitioncannotbedemandedwhen:PAPU
1. Expressly Prohibited by testator for a
3.EFFECTSOFPARTITION periodnotmorethan20years
2. Coheirs Agreed that estate not be
Q:Whataretheeffectsofpartition? divided for period not more than 10
years,renewableforanother10yrs
A: 3. Prohibitedbylaw
1. Confers upon each heir the exclusive 4. To partition estate would render it
ownershipofpropertyadjudicated. Unserviceable for use for which it was
intended
2. Afterthepartition,thecoheirsshallbe
reciprocally bound to warrant the title
to (warranty against eviction) and the
quality of (warranty against hidden
defects)eachpropertyadjudicated.

3. Theobligationofwarrantyshallceasein
thefollowingcases:
a. When the testator himself has
made the partition unless his
intention was otherwise, but the
legitime shall always remain
unimpaired.
b. When it has been expressly
stipulated in the agreement of
partition, unless there has been
badfaith.
c. When the eviction was due to a
cause subsequent to the partition,
orhasbeencausedbythefaultof
thedistributeeoftheproperty.

4. An action to enforce warranty among
coheirs must be brought within 10
years from the date the right of cause
ofactionaccrues.

330 CIVILLAWTEAM:

PARTNERSHIP
PARTNERSHIP 6. Principal its life does not depend on

theexistenceofanothercontract
I.CONTRACTOFPARTNERSHIP 7. Preparatorybecauseitisenteredinto
as a means to an end, i.e. to engage in
A.DEFINITION business
8. Fiduciary it is based on trust and
Q:Whatispartnership? confidence

A:Acontractwherebytwoormorepersonsbind Q: Jose entered into a verbal agreement with
themselves to contribute money, property, or Franciscotoformapartnershipforthepurchase
industrytoacommonfund,withtheintentionof ofcascoesforaproposedboatrentalbusiness.It
dividingtheprofitsamongthemselves. wasagreedthatFranciscowouldbuythecascoes
and each partner is to furnish such amount of
Note: Two or more persons may also form a money as he could, and that the profits will be
partnership for the exercise of a profession. (Art. divided proportionately. After Francisco
1767,NCC) purchasedacascowiththemoneyadvancedby
Jose, they undertook to draft the articles of
B.ELEMENTS partnership and embody the same in an
authentic document. However, they did not
Q: What are the essential elements of a come to an agreement. So, Francisco returned
partnership? the money advanced by Jose, which the latter
received with an express reservation of all his
A: rightsasapartner.
1. Agreement to contribute money, 1. Was there a partnership formed
propertyorindustrytoacommonfund betweenJoseandFrancisco?
(mutual contribution to a common 2. If such partnership existed, was it
stock);and terminated by the receipt of Jose of
2. Intention to divide the profits among themoneyheadvanced?
thecontractingparties(jointinterestin
the profits). (Evangelista v. Collector of A:
Internal Revenue, G.R. No. L9996, Oct. 1. Yes. Both elements in a contract of
15,1987). partnership exist: a) mutual
contributiontoacommonstock,andb)
Q:Whataretherequisitesofapartnership? a joint interest in the profits. If the
contractcontainsthesetwoelements,a
A:ICJ partnershiprelationresults,andthelaw
1. Intentiontocreateapartnership itself fixes the incidents of this relation
2. Common fund obtained from if the parties fail to do so. In this case,
contributions therewasmoneyfurnishedbyJoseand
3. Jointinterestindividingtheprofits(and received by Francisco for the purchase
losses) of the cascoes and there was also an
intention to divide the profits
Q:Whatarethecharacteristicsofapartnership? proportionately between them. Thus,
there is a partnership by virtue of the
A:BONCCPP verbal agreement between Jose and
1. Bilateral it is entered into by two or Francisco.
more persons and the rights and
obligations arising therefrom are 2. No. There was no clear intent on the
reciprocal partofJose,inacceptingthemoney,to
2. Onerouseachofthepartiesaspiresto relinquish his rights as a partner.
procure for himself a benefit through (Fernandez v. Dela Rosa, G.R. No. 413,
thegivingofsomething Feb.2,1903)
3. Nominate it has a special name or
designationinourlaw Q: Chim was the owner and manager of a
4. Consensual perfected by mere lumberyard.VicenteandTingparticipatedinthe
consent profitsandlosses.Acontractofsawinglumber
5. Commutativetheundertakingofeach was entered into by Chim, acting in his own
of the partners is considered as the name,with Frank. At the time thecontract was
equivalentofthatoftheothers
331

made, they were the joint proprietors and ofthepriceandthatanequaldivisionshouldbe
operatorsofthesaidlumberyardengagedinthe madebetweenthemofthelandthuspurchased.
purchase and sale of lumber under the name Despite Catalinosdemand foran equaldivision
and style of Chim. In an action to recover the between them, Ceferino refused to do so and
balanceunderthecontractfiledbyFrankagainst even profited from the fruits of the land. Are
Chim, Vicente and Ting, the latter two alleged theypartnersorcoowners?
that they are not Chims partners. Did Chim,
VicenteandTingformapartnership? A:Theyarecoownersbecauseitdoesnotappear
thattheyenteredintoanycontractofpartnership
A: No. A simple business was formed by Chim but only for the sole transaction of acquiring
exclusively in his own name and under his jointlyorbymutualagreementofthelandunder
personal management and he effected every theconditionthattheywouldpayoftheprice
transactioninhisnameandinthenamesofother ofthelandandthatitbedividedequallybetween
personsinterestedintheprofitsandlossesofthe them. (Gallemit v. Tabiliran, G.R. No. 5837, Sept.
business.Whathasbeenformedisanaccidental 15,1911)
partnershipofcuentasenparticipacion.
COMMONFUND
Note: Under the Code of Commerce, cuentas en
participacion means a sort of an accidental Q: May a partnership be formed even if the
partnership constituted in such a manner that its commonfundiscomprisedentirelyofborrowed
existence was only known to those who had an orloanedmoney?Whatwouldbetheliabilityof
interest in the same, there being no mutual thepartnersinsuchacase?
agreement between the partners, and without a
corporatenameindicatingtothepublicinsomeway A: Yes. A partnership may be deemed to exist
that there were other people besides the one who among parties who agree to borrow money to
ostensibly managed and conducted the business, pursue a business and to divide the profits or
governed under article 239 of the Code of losses that may arise therefrom, even if it is
Commerce.(Bournsv.Carman,G.R.No.L2880,Dec. shownthattheyhavenotcontributedanycapital
4,1906) of their own to a "common fund." Their
contribution may be in the form of credit or
INTENTTOCREATEAPARTNERSHIP industry, not necessarily cash or fixed assets.
Being partners, they are all liable for debts
Q: Henry and Lyons are engaged in real estate incurred by or on behalf of thepartnership. (Lim
business and are coowners of a parcel of land. Tong Lim v. Philippine Fishing Gear Industries,
Henry,withtheconsentofLyons,mortgagedthe Inc.,G.R.No.136448,Nov.3,1999)
propertytoraisethefundssufficienttobuyand
developtheSanJuanEstate.Lyonsexpressedhis SHAREINPROFITSANDLOSSES
desire not to be part of the development
project, but Henry, nevertheless, pursued the Q: Mariano and Isabelo entered into a
business alone. When the business prospered, partnership agreement wherein they are to
Lyons demanded for a share in the business. Is contribute P15,000 each for the purpose of
LyonsentitledtothesharesinSanJuanEstate? printing 95,000 posters. Isabelo was unable to
printenoughposterspursuanttotheagreement,
A:No.Lyonshimselfmanifestedhisdesirenotto thus he executed in favor of Mariano a
be part of the development project. Thus, no promissorynoteinanamountequivalenttothe
partnership was formed. The mortgage of the unrealizedprofitduetoinsufficientprinting.The
land was immaterial to the existence of the whole amount became due but Isabelo
partnership. It is clear that Henry, in buying the defaultedpayment.IsMarianoentitledtofilea
San Juan Estate, was not acting for any casefortherecoveryoftheunrealizedprofitof
partnership composed of himself and Lyons, and thepartnership?
the law cannot be distorted into a proposition
whichwouldmakeLyonsaparticipantinthisdeal A:No.Theessenceofapartnershipistosharein
contrary to his express determination. (Lyons v. the profits and losses, thus, Mariano should
Rosenstock,G.R.No.35469,Mar.17,1932) shoulderthelosseswithIsabelo.(MoranJr.,v.CA,
G.R.No.L59956,Oct.31,1984)
Q: Catalino and Ceferino acquired a joint
tenancy over a parcel of land under a verbal Q: To form a lending business, it was verbally
contract of partnership. It was stipulated that agreedthatNoynoywouldactasfinancierwhile
eachofthesaidpurchasersshouldpayonehalf CoryandKriswouldtakechargeofsolicitationof
332 CIVILLAWTEAM:

PARTNERSHIP
membersandcollectionofloanpayments.They is a partner, but not when received as

agreed that Noynoy would receive 70% of the paymentfor:
profitswhileCoryandKriswouldearn15%each. a. Debtasinstallment
Thepartiesexecutedthe'ArticlesofAgreement' b. Wages
whichformalizedtheirearlierverbalagreement. c. Annuity
Later,NoynoyfiledacomplaintagainstCoryand d. Interestinaloan
Kris for misappropriation of funds allegedly in e. Considerationforthesaleofa
their capacitiesas Noynoys employees. In their goodwill
answer, Cory and Kris asserted that they were
partners and not mere employees of Noynoy. Note: in subparagraphs a e, the profits in the
What kind of relationship existed between the business are not shared as profits of a partner as a
parties? partner, but in some other respects or for some
otherpurpose.
A: A partnership was formed among the parties.
The "Articles of Agreement" stipulated that the Q: Distinguish partnership from co
signatoriesshallsharetheprofitsofthebusiness ownership/copossession.
in a 701515 manner, with Noynoy getting the
lion's share. This stipulation clearly proved the A:
establishmentofapartnership.(Santosv.Spouses COOWNERSHIP/
PARTNERSHIP
Reyes,G.R.No.135813,Oct.25,2001) COPOSSESSION
Intenttoderiveprofits
Q:Joseconveyedhislotsinfavorofhisfoursons Theprofitsmustbe
in order for them to build their residences. His derivedfromthe
sons sold the lots since they found the lots operationofthe Thecoownerssharein
impractical for residential purposes because of businessorundertaking theprofitsderived
high costs of construction. They derived profits bythemembersofthe incidenttothejoint
associationandnot ownership.
from the sale and paid income tax. The sons
merelyfromproperty
were required to pay corporate income tax and
ownership.
income tax deficiency, on the theory that they
Existenceoffiduciaryrelationship
formed an unregistered partnership or joint
Thereisawelldefined
venturetaxableasacorporation.Didthesiblings Thereisnofiduciary
fiduciaryrelationship
formapartnership? relationshipbetween
betweenthemas
theparties.
partners.
A:No.Theoriginalpurposewastodividethelots Remedyfordispute
for residential purposes. If later, they found out Theremedyforadispute
thatitisnotfeasibletobuildtheirresidenceson Theremedywouldbe
ordifferencebetween
the lots, they can dissolve the coownership by anaction,asfor
themwouldbeanaction
reselling said lots. The division on the profit was instance,fornon
fordissolution,
merely incidental to the dissolution of the co performanceofa
termination,and
ownership which was in the nature of things a contract.
accounting.
temporary state. (Obillos, Jr. v. CIR, G.R. No. L Intent
68118,Oct.29,1985) Theremustbean
Thereisnointentto
unmistakableintention
formapartnership.
C.RULESTODETERMINEEXISTENCE toformapartnership.

Q:Whataretherulestodeterminetheexistence Q: A and B are coowners of an inherited
ofpartnership? properties.Theyagreedtousethesaidcommon
propertiesandtheincomederivedtherefromas
A: a common fund with the intention to produce
1. Personswhoarenotpartnersastoeach profitsfortheminproportiontotheirrespective
other are not partners as to third shares in the inheritance as determined in a
persons. project of partition. What is the effect of such
2. Coownership/copossession does not agreementontheexistingcoownership?
ofitselfestablishapartnership.
3. Sharing of gross returns does not of A: The coownership is automatically converted
itselfestablishapartnership. intoapartnership.Fromthemomentofpartition,
4. Receipt of a person of a share in the A and B, as heirs, are entitled already to their
profitsisaprimafacieevidencethathe respective definite shares of the estate and the
incomethereof,foreachofthemtomanageand
333

dispose of as exclusively his own without the c.In the absence of profit
intervention of the other heirs, and, accordingly, agreement, in proportion to his
hebecomesliableindividuallyforallthetaxesin capitalcontribution
connectiontherewith.
Q:Whatistheruleregardingastipulationwhich
If,aftersuchpartition,anheirallowshissharesto excludes a partner in the sharing of profits and
be held in common with his coheirs under a losses?
singlemanagementtobeusedwiththeintentof
making profit thereby in proportion to his share, A:
therecanbenodoubtthat,evenifnodocument GR:Stipulationisvoid.
orinstrumentwereexecutedforthepurpose,for
tax purposes, at least, an unregistered XPN:Industrialpartnerisnotliableforlosses
partnership is formed. (Ona v. Commissioner of [Art. 1797(2), NCC]. However, he is not
Internalrevenue,45SCRA74[1972]) exempted from liability insofar as third
personsareconcerned.
Q:Whatarethetypicalincidentsofpartnership?
Note:Lossisdifferentfromliability
A: If,besideshisservicestheindustrialpartnerhas
1. Thepartnersshareinprofitsandlosses. contributedcapital,heshallalsoreceiveashare
(Arts.1767,179798) intheprofitsinproportiontohiscapital.
2. They have equal rights in the
management and conduct of the
partnershipbusiness.(Art.1803) D.HOWPARTNERSHIPISFORMED
3. Every partner is an agent of
partnership, and entitled to bind the Q:Howarepartnershipsformed?
other partners by his acts, for the
purposeofitsbusiness.(Art.1818) A: It is created by agreement of the parties
4. Allpartnersarepersonallyliableforthe (consensual).
debts of the partnership with their
separateproperty(Arts.1816,182224) Note: There is no such thing as a partnership
exceptlimitedpartners. created by law or by operation or implication of
5. A fiduciary relationship exists between law alone. (De Leon, Comments and cases on
thepartners.(Art.1807) Partnership,AgencyandTrust,p.13,2005ed.
6. On dissolution, the partnership is not
terminated, but continues until the Q: What are the formalities needed for the
windingupofpartnershipiscompleted. creationofapartnership?
(Art1828)
A:
Q: What are the rules regarding distribution of GR:Nospecialformisrequiredforitsvalidity
profitsandlosses? orexistence.(Art.1771,NCC)

A: XPN: If property or real rights have been
1. Distributionofprofits contributedtothepartnership:
a. Thepartnersshareintheprofits 1. Personalproperty
accordingtotheiragreement a. LessthanP3,000maybeoral
b. Intheabsenceofsuch: b. P3,000ormoremustbe:
i. Capitalistpartnerin i. inapublicinstrument;and
proportiontohiscontribution ii. registered with SEC (Art.
ii. Industrialpartnerwhatis 1772,NCC)
justandequitableunderthe
circumstances Note: Even if the partnership
isnotregisteredwithSEC,the
2. Distributionoflosses partnership is still valid and
a. The partners share in the losses possesses a distinct
accordingtotheiragreement personality (Paras, Civil Code
b. In the absence of such, according of the Philippines Annotated,
th
totheiragreementastoprofits Volume5,p.412,19696 ed)
2. Realpropertyorrealrightsmustbe:
334 CIVILLAWTEAM:

PARTNERSHIP
a. in a public instrument (Art. 1771, mustregisterwithSEC.However,thisregistration

NCC) requirement is not mandatory. Article 1768 NCC
b. withaninventoryofsaidproperty explicitlyprovidesthatthepartnershipretainsits
i. signedbytheparties juridicalpersonalityevenifitfailstoregister.The
ii. attached to the public failure to register the contract of partnership
instrument(Art.1773,NCC) does not invalidate the same as among the
partners,solongasthecontracthastheessential
Note: Everything must be requisites, because the main purpose of
complied with; otherwise, registrationistogivenoticetothirdparties,andit
partnershipisvoidandhasno can be assumed that the members themselves
juridical personality even as knew of the contents of their contract. Non
between the parties (Art. compliance with this directory provision of the
1773,NCC) lawwillnotinvalidatethepartnership.
iii. registered in the Registry of
Property of the province, A partnership may be constituted in any form,
where the real property is except where immovable property of real rights
found to bind third persons are contributed thereto, in which case a public
(Paras,p.412) instrument shall be necessary. Hence, based on
the intention of the parties, a verbal contract of
3. Limited partnership must be partnershipmayarise.(SungaChanv.Chua,G.R.
registered as such with SEC, otherwise, No.143340,Aug.15,2001)
it is not valid as a limited partnership
but may still be considered a general Note: Registration is merely for administration and
partnership with juridical personality licensing purposes; hence, it shall not affect the
(Paras, Civil Code of the Philippines liabilityofthepartnershipandthemembersthereof
th tothirdpersons.[Art.1772,(2),NCC]
Annotated, Volume 5, p. 412, 1969 6
ed)
Q: A partnership was entered into between

Mauricio and Severino to operate a fishpond.
Q: If the requirements under Art. 1773, as
Neitherpartnercontributedafishpondorareal
regards contribution of real property to a
right over any fish pond. Their capital
partnership,hasnotbeencompliedwith,whatis
contributions were in cash in the amount of
thestatusofthepartnership?
P1,000each.Whilethepartnershipcontractwas
A: It is void. Nonetheless, a void partnership doneinapublicinstrument,noinventoryofthe
underArt.1773,inrelationtoArt.1771NCC,may fishpondtobeoperatedwasattachedinthesaid
still be considered by the courts as an ordinary instrument. Is there a valid contract of
contract as regards the parties thereto from partnership?
whichrightsandobligationstoeachothermaybe
A: Yes. There is a valid contract of partnership
inferred and enforced. (Torres v. CA, G.R. No.
despitethelackofinventory.Thepurposeofthe
134559,Dec.91999)
partnership was not to engage in the fishpond
Note:Torresv.CAdoesnotinvolvethirdpersons. business but to operate a fishpond. Neither said
fishpond nor a real right to any fish pond was
Q: What must be done in order that the contributedtothepartnershiporbecomepartof
partnership may be effective as against third the capital thereof. (Agad v. Mabato, G.R. No. L
persons whenever immovable property is 24193,June28,1968)
contributed?
E.PARTNERSHIPTERM
A:Tobeeffectiveagainst3rdparties,partnership
must be registered in the Registry of Property of Q:Whatisapartnershipwithafixedterm?
theprovincewheretherealpropertycontributed
islocated.(Art.1771,NCC) A:Itisoneinwhichthetermofitsexistencehas
beenagreeduponbythepartnerseither:
Q:Cantherebeapartnershipbasedonaverbal 1. Expresslythereisadefiniteperiod
agreement, and without such agreement being 2. Impliedly a particular enterprise or
registeredwithSEC? transactionisundertaken

A: Yes. Article 1772 NCC requires that Note:Themereexpectationthatthebusinesswould
partnerships with a capital of P3,000 or more besuccessfulandthatthepartnerswouldbeableto
335

recouptheirinvestmentisnotsufficienttocreatea CLASSIFICATIONSOFPARTNERSHIP
partnershipforaterm.
Q:Statetheclassificationsofpartnership.
Q: Can the partners fix any term in the A:Asto:
partnershipcontract? 1. Object
a. Universalpartnership
A: Yes. The partners shall be bound to remain i. of all present property (Art.
undersuchrelationforthedurationoftheterm. 1778, NCC) comprises the
following:
Q: What is the effect when the fixed term has propertywhichbelonged
expired? toeachofthepartnersat
the time of the
A: The expiration of the term fixed or the constitution of the
accomplishment of the particular undertaking partnership
specified will cause the automatic dissolution of profits which they may
thepartnership. acquirefromallproperty
contributed
Q:Whendoesapartnershipcommencetoexist? ii. ofallprofits(Art.1780,NCC)
comprises all that the
A: A partnership commences from the time of partnersmayacquirebytheir
execution of the contract if there is no contrary industry or work during the
stipulation as to the date of effectivity of the existenceofthepartnership
same. b. Particular partnership It is one
which has for its object,
NOTE: Registration to SEC is not essential to give it determinate things, their use and
juridicalpersonality. fruits, or a specific undertaking or
the exercise of a profession or a
There is no time limit prescribed by law for the vocation.(Art.1783,NCC)
lifeofapartnership.

2. Liabilityofpartners
Q:Whatisafuturepartnership?
a. General partnership One where
all partners are general partners
A: It is a kind of partnership where the partners
whoareliableevenwithrespectto
may stipulate some other date for the
their individual properties, after
commencementofthepartnership.Personswho
the assets of the partnership have
enter into a future partnership do not become
beenexhausted(Paras,p.411)
partners until or unless the agreed time has
b. Limited partnership One formed
arrivedorthecontingencyhashappened.
by 2 or more persons having as
NOTE: It is a partnership created by implied members one or more general
agreement, the continued existence of which will partners and one or more limited
depend upon the mutual desire and consent of the partners, the latter not being
partners. personallyliablefortheobligations
ofthepartnership.
Q:Whenisapartnershipatwillterminate?
3. Duration
A: It may be lawfully terminated at any time by a. Partnership at will Partnership
theexpresswillofallthepartnersoranyofthem. for a particular undertaking or
venture which may be terminated
Q:Howisapartnershipatwilldissolved? anytimebymutualagreement.
b. Partnership with a fixed period
A: Any one of the partners may dictate a Thetermforwhichthepartnership
dissolutionofapartnershipatwill. is to exist is fixed or agreed upon
or one formed for a particular
Note: The partner who wants the partnership
undertaking.
dissolved must do so in good faith, not that the

attendance of bad faith can prevent thedissolution
4. Legalityofexistence
of the partnership, but to avoid the liability for
damagestootherpartners. a. Dejurepartnership
b. Defactopartnership

336 CIVILLAWTEAM:

PARTNERSHIP
5. Representationtoothers cannot enter into a universal

a. Ordinaryorrealpartnership partnership.(Art.1782,NCC)
b. Ostensible or partnership by 2. Personssufferingfromcivilinterdiction
estoppel When two or more 3. Persons who cannot give consent to a
persons attempt to create a contract:
partnershipbutfailtocomplywith a. Minors
thelegalpersonalitiesessentialfor b. Insanepersons
juridical personality, the law c. Deafmuteswhodonotknowhow
considers them as partners, and towrite
the association is a partnership
insofar as it is favorable to third Q:Whatistheprincipleofdelectuspersonae?
persons,byreasonoftheequitable
principle of estoppel (MacDonald A:Thisreferstotherulethatisinherentinevery
et. al. v. Natl. City Bank of New partnership, that no one can become a member
York, G.R. No. L7991, May 21, of the partnership association without the
1956) consentofallthepartners.

6. Publicity Note:Evenifapartnerwillassociateanotherperson
a. Secret partnership Partnership in his share in the partnership, the associate shall
thatisnotknowntomanybutonly not be admitted into the partnership without the
astoitspartners. consent of all the partners, even if the partner
b. NotoriousoropenpartnershipIt havinganassociateshouldbeamanager(Art.1804,
is known not only to the partners, NCC).
buttothepublicaswell.
Q: May a corporation enter into a partnership
7. Purpose withanothercorporation?
a. Commercial or trading One
formed for the transaction of A: As a rule, it is illegal for two corporations to
business. enter into a partnership. Nevertheless, a
corporation may enter into a joint venture with
b. Professional or nontrading One anotherifthenatureoftheventureisinlinewith
formed for the exercise of a thebusinessauthorizedbyitscharter.(Tuasonv.
profession Bolaos,G.R.No.L4935,May28,1954)

Q:Whatarethedifferentkindsofpartnership Q:Whatarethedifferentkindsofpartners?
undertheSpanishCivilCode?
A:
A: 1. CapitalistContributesmoneyor
1. Sociedad Anonima similar to propertytothecommonfund
anonymouspartnership 2. Industrial Contributes only his
2. SociedadColectivawhichisgeneralor industryorpersonalservice
rd
collectivepartnership 3. General One whose liability to 3
3. Sociedad de Cuentas en Participacion persons extends to his separate or
jointaccountpartnership personalproperty
rd
4. SociedadMercantileRegularColectiva 4. Limited One whose liability to 3
mercantilepartnershipcompany persons is limited to his capital
5. SociedadLeonilapartnershipbywhich contribution
theentireprofitsshouldbelongtosome 5. Managing Manages the affairs or
ofthepartnersinexclusionoftherest businessofthepartnership
6. Liquidating Takes charge of the
Q:Whomaybepartners? winding up of partnership affairs upon
dissolution
A: 7. Partner by estoppel Is not really a
GR: Any person capacitated to contract may partnerbutisliableasapartnerforthe
rd
enterintoacontractofpartnership. protectionofinnocent3 persons
XPNs: 8. Continuing partner Continues the
1. Personswhoareprohibitedfromgiving business of a partnership after it has
each other any donation or advantage been dissolved by reason of the
admissionofanewpartner,retirement,
337

death or expulsion of one of the theusufruct ifthereisastipulationtosuch
partners contributed) effect
9. Surviving partner Remains after a Astopropertiessubsequently
partnership has been dissolved by acquired:
deathofanypartner GR: Propertiessubsequently
10. Subpartner Is not a member of the acquiredbyinheritance,legacy
partnership; contracts with a partner ordonation,cannotbeincluded
with reference to the latter's share in inthestipulation
thepartnership
XPN:Onlyfruitsthereofcanbe
11. Ostensible Takes active part and
includedinthestipulation(Art.
known to the public as partner in the
1779,NCC)
business

12. Secret Takes active part in the
Q:IftheArticlesofUniversalPartnershipfailto
business but is not known to be a
specifywhetheritisoneofallpresentproperty
partnerbyoutsideparties
orofprofits,whatshallbethenatureofsuch?
13. SilentDoesnottakeanyactivepartin

thebusinessalthoughhemaybeknown
A: Articles of Universal Partnership entered into
tobeapartner
without specification of its nature only
14. DormantDoesnottakeactivepartin
constitutesauniversalpartnershipofprofits(Art.
the business and is not known or held
1781,NCC),becauseitimposeslesserobligations
outasapartner
on the partners, since they preserve the

ownershipoftheirseparateproperty.
Q: What are the relations created by a contract

ofpartnership?
PARTICULARPARTNERSHIP

A:
Q:Whatisparticularpartnership?
1. PartnersPartners

2. PartnersPartnership
rd A: It is one which has for its object, determinate
3. Partnership3 persons with whom it
things, their use and fruits, or a specific
contracts
undertaking or the exercise of a profession or a
4. Partners3rd persons with whom
vocation.(Art.1783,NCC)
partnershipcontracts.

Q:J,PandBformedalimitedpartnershipcalled
F.UNIVERSALVS.PARTICULAR;
Suter Co., with P as the general partner and J
GENERALVS.LIMITED
and B as limited partners. J and B contributed

P18,000andP20,000respectively.Later,JandB
UNIVERSALPARTNERSHIP
got married and P sold his share of the

partnership to the spouses which was recorded
Q: Distinguish the classes of universal
in the SEC. Has the limited partnership been
partnership.
dissolvedbyreasonofthemarriagebetweenthe

limitedpartners?
A:

ALLPROFITS ALLPRESENTPROPERTY
A: No. The partnership is not a universal but a
Whatconstitutescommonproperty
particular one. As provided by law, a universal
Onlyusufructof Allpropertiesactually
thepropertiesof belongingtothepartnersare
partnershiprequireseitherthattheobjectofthe
thepartners contributedtheybecome association must be all present property of the
becomecommon commonproperty partners as contributed by them to a common
property (ownedbyallofthepartners fund,orallelsethatthepartnersmayacquireby
andthepartnership) their industry or work. Here, the contributions
Astoprofitsascommonproperty were fixed sums of money and neither one of
Allprofits Astoprofitsfromothersources: them were industrial partners. Thus, the firm is
acquiredbythe GR:Asidefromthecontributed not a partnership which the spouses are
industryofthe properties,theprofitsofsaid forbiddentoenterinto.Thesubsequentmarriage
partnersbecome propertybecomecommon cannotoperatetodissolveitbecauseitisnotone
commonproperty property of the causes provided by law. The capital
(whetherornot contributions were owned separately by them
theywere XPN:Profitsfromother before their marriage and shall remain to be
obtainedthrough sourcesmaybecomecommon separate under the Spanish Civil Code. Their
338 CIVILLAWTEAM:

PARTNERSHIP
individual interest did not become common Q:Whoisageneralpartner?

property after their marriage. (Commissioner of
Internal Revenue v. Suter, G.R. No. L25532, Feb. A:Onewhoseliabilitytothirdpersonsextendsto
28,1969) his separate property; he may be either a
capitalist or an industrial partner. (De Leon,
Q:Whendoesapartnerbindthepartnership? CommentsandCasesonPartnership,Agency,and
A: Trust,p.77,2005ed)
1. When he is expressly or impliedly
authorized Q:Whataretheobligationsofapartner?
2. Whenheactsinbehalfandinthename
ofthepartnership A:
1. Obligationsamongthemselves
GENERALPARTNERSHIP 2. Obligationstothirdpersons

Q:Whatisgeneralpartnership? Q:Whatisthebasisforsuchobligations?

A: One where all partners are general partners A: These obligations are based on trust and
who are liable even with respect to their confidence of the partners since partnership is
individual properties, after the assets of the grounded on the fiduciary relationship of the
partnership have been exhausted (Paras, Civil partnersandaswelltothirdpersons.
Code of the Philippines Annotated, Volume 5, p.
th
411,19696 ed)
Q:Whatarethedistinctionsbetweenageneralandalimitedpartner/partnership?
A:
GENERAL LIMITED
ExtentofLiability
Personallyliableforpartnershipobligations Liabilityextendsonly tohiscapitalcontributions
RightinManagement
Whenmannerofmanagementisnotagreedupon,
allgeneralpartnershaveanequalrightinthe Noparticipationinmanagement
managementofthebusiness
Contribution
Contributecash,propertyorindustry Contributecashorpropertyonly,notindustry
IfProperPartyto ProceedingsByorAgainstPartnership
Not proper party to proceedings by/against partnership,
unless:
Properpartytoproceedingsby/againstpartnership 1. Heisalsoageneralpartner;or
2. Where the object of the proceeding is to enforce a
limitedpartnersrightorliabilitytothepartnership
AssignmentofInterest
Interestisnotassignablewithoutconsentofother
Interestisfreelyassignable
partners
FirmName
GR: Namemustnot appearinfirmname

XPNs:
1. Itisalsothesurnameofageneralpartner;
Namemayappearinfirmname 2. Prior to the time when the limited partner became
such,thebusinesshadbeencarriedonunderaname
inwhichhissurnameappeared.
ProhibitiontoEngageinOtherBusiness
Prohibitedinengaginginbusiness Noprohibition againstengaginginbusiness
EffectofDeath,Insolvency,Retirement,Insanity
Retirement,death,insolvency,insanityofgeneral Doesnothavesameeffect;rightsaretransferredtolegal
partnerdissolvespartnership representative
Creation
Asarule,itmaybeconstitutedinanyform,by Createdbythemembersaftersubstantialcompliancein
339

contractorconductofthepartnership goodfaithoftherequirementssetforthbylaw
Composition/Membership
Composedofoneormoregeneralpartnersandoneor
Composedonlyofgeneralpartners
morelimitedpartners

G.PARTNERSHIPBYESTOPPEL H.PARTNERSHIPV.JOINTVENTURE

Q:Whoisapartnerbyestoppel? Q:Whatisajointventure?

A:Onewho,bywordsorconductdoesanyofthe A:Anassociationofpersonsorcompaniesjointly
following: undertaking some commercial enterprise;
1. Directlyrepresentshimselftoanyoneas generally,allcontributesassetsandsharerisks.It
apartnerinanexistingpartnershiporin requires a community of interest in the
anonexistingpartnership performance of the subject matter, a right to
2. Indirectly represents himself by direct and govern the policy in connection
consentingtoanotherrepresentinghim therewith, and a duty which may be altered by
as a partner in an existing partnership agreementtosharebothinprofitsandlosses.
orinanonexistingpartnership
Partnership JointVenture
Q: What are the elements before a partner can Transactionsenteredinto
beheldliableonthegroundofestoppel?
Thedurationofa
Limitedtotheperiodin
A: partnershipgenerally
whichthegoodsare
1. Defendant represented himself as relatestoacontinuing
soldortheprojectis
partner or is represented by others as businessofvarious
carriedonorasingle
such, and did not deny/refute such transactionsofacertain
transaction.
representation. kind.

2. Plaintiffreliedonsuchrepresentation.
Nature
3. Statementofdefendantisnotrefuted.
Permanent,partnersare

interestedincarryingon
Q:Whataretheliabilitiesincaseofestoppel?
togetherofageneraland
continuingbusinessofa
A: particularkind. Temporary,althoughit
WhenPartnershipisLiable maycontinuefora
Ifallactualpartnersconsentedtothe Note:Aparticular numberofyears.
representation,thentheliabilityofthepersonwho partnershiphasalimited
representedhimselftobeapartnerorwho andtemporaryoradhoc
consentedtosuchrepresentationandtheactual nature,beingconfinedto
partnerisconsideredapartnershipliability asingleundertaking.
FirmNameandLiablities
WhenLiabilityisPRORATA
Theremustbea
When there is no existing partnership and all those partnershiporfirmname
represented as partners consented to the Afirmnameisnot
underwhichthe
representation, then the liability of thepersonwho necessary,thusthe
partnershipshalloperate.
represented himself to be a partner and all who participatingpersons
Thenamesofthe
madeandconsentedtosuchrepresentation,isjoint cantransactbusiness
partnersmayappearin
orprorata undertheirownname
thefirmnameandthe
andcanbeindividually
WhenLiabilityisSEPARATE actofthepartnerswill
liabletherefore.
Whenthereisnoexistingpartnershipandnotallbut makethepartnership
only some of those represented as partners liable.
consented to the representation, or none of the Corporationaspartner
partnership in an existing partnership consented to Corporationcannotenter Corporationscan
such representation, then the liability will be intoapartnership engageinajoint
separate contract,thusitcannot venturewithothers
beapartnerbyreasonof throughacontractof

publicpolicy;otherwise agreementifthenature
peopleotherthanits oftheventureinline
officersmaybeableto withthebusinessofthe
bindit(Albano,CivilLaw corporationanditis

340 CIVILLAWTEAM:

PARTNERSHIP
Reviewer,1998,p.570) authorizedinits ofPetitionforAuthoritytoContinueUse

charter. of Firm Name Sycip, Salazar, etc. /
Ozeata Romulo, etc., 92 SCRA 1
LegalPersonality [1979], citing H.S. Drinker, Legal Ethics
A partnership acquires [1953],pp45.)
personality after
following the requisites Q: What is prohibited in the firm name of a
required by law. e.g. Art. partnershipforthepracticeoflaw?
17711773,NCC
Ajointventurehasno
A:Intheselectionanduseoffirmname,nofalse,
legalpersonality.
Note: SEC registration is misleading, assumed, or trade names should be
not required before a used.(CanonsofProfessionalEthics)
partnershipacquireslegal
personality. (Art. 1768, J.MANAGEMENTOFTHEPARTNERSHIP
NCC)
Q: What are the modes of appointment of a
manager?
I.PROFESSIONALPARTNERSHIP
A:
Q:Whatisaprofessionalpartnership? Appointmentthrough
AppointmentOther
theArticlesof
A: It is a partnership formed by persons for the ThanintheArticles
Partnership
sole purpose of exercising their common Powerisirrevocable
profession, no part of the income of which is withoutjustorlawful
derivedfromengaginginanytradeorbusiness. cause

Q:Inaprofessionalpartnership,whoisdeemed Note:Voterequiredfor
engagedinthepracticeofprofession? removalofmanager Powertoactisrevocable
1. For just cause anytime,withorwithout
A: It is the individual partners and not the Vote of the cause(shouldbedoneby
partnership. Thus, they are responsible for their controlling thecontrollinginterest)
ownacts. partners
(controlling
financialinterest)
Q: What is prohibited in the formation of a
2. Without cause or
professionalpartnership? for unjust cause
Unanimousvote
A:Partnershipbetweenlawyersandmembersof ExtentofPower
other profession or nonprofessional persons 1. If he acts in good
should not be formed or permitted where any faith,hemaydoall
partofthepartnershipsemploymentconsistsof acts of Aslongasheisa
the practice of law. (Canons of Professional administration manager,hecanperform
Ethics) (despite allactsofadministration
opposition of his (ifothersoppose,hecan
Q:Whatarethecharacteristicsofapartnership partners) beremoved)
forthepracticeoflaw? 2. If he acts in bad
faith,hecannot
A:
a. A duty of public service, of which the
emolumentisabyproduct
b. Arelationasanofficerofcourttothe
administrationofjustice
c. A relation to clients in the highest
fiduciarydegree
d. A relationship to colleagues at the bar
characterized by candor, fairness, and
unwillingness to resort to current
business methods of advertising and
encroachment on their practice, or
dealingwiththeirclients.(IntheMatter
341

Q:Whatistherulewheretherearetwoormore firm. (Tai Tong Chuache & Co. v. Insurance
managers? Commissioner,G.R.No.L55397,Feb.29,1988)
A:
Withoutspecificationoftheirrespectiveduties Note:Ifrefusalofpartnerismanifestlyprejudicialto
andwithoutstipulationrequiringunanimityof theinterestofpartnership,courtsinterventionmay
action besought.
GR: Each may separately execute all acts of
administration (unlimited power to Q: What are the remedies available to the
administer) creditorsofapartner?

XPN:Ifanyofthemanagersopposes,decision A:
ofthemajorityprevails 1. Separate or individual creditors should
first secure a judgment on their credit;
Note:IncaseoftieDecisionofthecontrolling and
interest(whoarealsomanagers)shallprevail 2. Applytothepropercourtforacharging
order subjecting the interest of the
Nature debtorpartner in the partnership for
GR:Unanimousconsentofallthemanaging thepaymentoftheunsatisfiedamount
partnersshallbenecessaryforthevalidityofthe of the judgment debt with interest
actsandabsenceorinabilityofanymanaging thereon.
partnercannotbealleged.

XPN:Wherethereisanimminentdangerofgrave
orirreparableinjurytothepartnership.

Q: What is the rule when the manner of

managementhasnotbeenagreedupon?

A:

1. All partners shall be considered

managersandagents

2. Unanimous consent is required for

alterationofimmovableproperty

Q:AzucenaandPedroacquiredaparcelofland

andabuilding.AzucenaobtainedaloanfromTai

Tong Co., secured by a mortgage which was

executed over the land and building. Arsenio,

representative of Tai Tong, insured it with

Travellers Multi Indemnity Corporation. The

buildingandthecontentsthereofwererazedby

fire. Travellers failed to pay the insurance.

Hence, Azucena and Pedro filed a case against

TravellerswhereinTaiTongintervenedclaiming

entitlement to the proceeds from Travellers.

Whoisentitledtotheproceedsofthepolicy?

A:TaiToingisentitledtotheinsuranceproceeds.

Arseniocontractedtheinsurancepolicyonbehalf

of Tai Tong. As the managing partner of the

partnership, he may execute all acts of

administration including the right to sue debtors

of the partnership in case of their failure to pay

their obligations when it became due and

demandable. Or at the very least, Arsenio is an

agent of the partnership. Being an agent, it is

understoodthatheactedforandinbehalfofthe

342 CIVILLAWTEAM:

PARTNERSHIP
Q:Whataretheeffectsoftheactsofpartners?
A:
ACTSOFAPARTNER EFFECT
Withbindingeffectexcept:

1. Whenthepartnersoactinghasinfactnoauthorityto

actforthepartnershipintheparticularmatter,and
Actsforapparentlycarryingonintheusualwaythe
2. Thepersonwithwhomheisdealinghasknowledgeof
businessofthepartnership
thefactthathehasnosuchauthority
Donotbind partnershipunlessauthorizedbyother
Actsnotintheordinarycourseofbusiness
partners(par.2,Art.1818,NCC)
Actsofstrictdominionorownership:
1. Assigning partnership property in trust for
GR:Oneormorebutlessthanallthepartnershaveno
creditors;
authority
2. Disposingofgoodwillofbusiness;

3. Doinganactwhichwouldmakeitimpossibleto
XPNs:
carryontheordinarybusinessofpartnership;
1. authorizedbytheotherpartners;or
4. Confessingajudgment;

5. Entering into a compromise concerning a
2. p
partnershipclaimorliability;
3. artners have abandoned the business (par. 2, Art.
6. Submitting partnership claim or liability to
1818,NCC)
arbitration;
7. Renouncingclaimofpartnership
Partnershipisnotliable to3rdpersonshavingactualor
Actsincontraventionofarestrictiononauthority
presumptiveknowledgeoftherestriction
Q:Whatistheeffectofconveyanceofarealproperty?
A:
TYPEOFCONVEYANCE EFFECT
Conveyancepassestitlebutpartnershipcanrecoverunless:

1.
a. Conveyancewasdoneintheusualwayofbusiness,and
Titleinthepartnershipsname; b. The partner so acting has the authority to act for the
Conveyanceinpartnershipname partnership;or
2. The property which has been conveyed by the grantee or a
person claiming through such grantee to a holder for value
without knowledge that the partner, in making the
conveyance,hasexceededhisauthority
Conveyancedoesnotpasstitlebutonlyequitableinterest,
provided:
Titleinthepartnershipsname;
1. Conveyancewasdoneintheusualwayofbusiness,or
Conveyanceinpartner'sname
2. The partner so acting has the authority to act for the
partnership
Conveyancepassestitlebutthepartnershipmayrecoversuch
propertyifthepartnersactdoesnotbindthepartnership:
Titleinthenameof1ormorepartners,and
1. The partner so acting has no authority to act for the
therecorddoesnotdisclosetherightofthe
partnership,and
partnership;Conveyanceinnameof
2. The person with whom he is dealing has knowledge of the
partner/sinwhosenametitlestands
fact unless the purchaser of his assignee, is a holder for
value,withoutknowledge
Titleinnameof1ormoreorallpartnersor
Conveyancewillonlypassequitableinterest,provided:
3rdpersonintrustforpartnership;
1. Theactisonewithintheauthorityofthepartner,and
Conveyanceexecutedinpartnershipname
2. Conveyancewasdoneintheusualwayofthebusiness
orinnameofpartners
Titleinthenamesofallthepartners;
Conveyancewillpassalltherightsinsuchproperty
Conveyanceexecutedbyallthepartners
343

II.RIGHTSANDOBLIGATIONSOFPARTNERSHIP shouldhavebeencontributeduptothe
timeofactualdelivery
Q:Whataretheresponsibilitiesofapartnership
topartners? 4. Preserve said property with the
diligence of a good father of a family,
A: pendingdeliverytothepartnership
1. Refund the amounts disbursed by
partnerinbehalfofthepartnershipplus 5. Indemnify the partnership for any
corresponding interest from the time damagecausedtoitbytheretentionof
the expenses are made (e.g. loans and the same or by the delay in its
advances made by a partner to the contribution
partnership aside from capital
contribution) Q: Who bears the risk of loss of things
2. Answer for obligations a partner may contributed?
have contracted in good faith in the
interestofthepartnershipbusiness A:
3. Answer for risks in consequence of its WHOBEARSTHE
KINDOFPROPERTY/THING
management(Art.1796) RISK?
Specificanddeterminatethings
III.RIGHTSANDOBLIGATIONSOFPARTNERS whicharenotfungiblewhere partners
AMONGTHEMSELVES onlytheuseiscontributed

Specificanddeterminatethings
Q: What are the obligations of partners among
theownershipofwhichis
themselves?
transferredtothepartnership

A: Fungiblethings(Consumable) partnership
1. Contributionofproperty(Art.1786)
2. Contribution of money and money Thingscontributedtobesold
convertedtopersonaluse(Art.1788) Thingsbroughtandappraisedin
3. Prohibition in engaging in business for theinventory
himself(Art.1789)
4. Contributeadditionalcapital(Art.1791) Q: What is the effect if a partner fails to
5. Managing partner who collects debt contribute the property which he promised to
(Art.1792) delivertothepartnership?
6. Partner who receives share of
partnershipcredit(Art.1793) A:
7. Damagestopartnership(Art.1794) 1. Partners become ipso jure a debtor of
8. Renderinformation(Art.1806) the partnership even in the absence of
9. Accountableasfiduciary(Art.1807) anydemand(Art.1786,NCC)
2. Remedy of the other partner is not
CONTRIBUTIONOFPROPERTY rescissionbutspecificperformancewith
damagesfromdefaultingpartner
Q: What are the obligations of partners with
respecttocontributionofproperty? CONTRIBUTIONOFMONEYANDMONEY
CONVERTEDTOPERSONALUSE
A:ToCAFPI
1. Contribute at the beginning of the Q:Whataretherulesregardingcontributionof
partnership, or at the stipulated time, moneytothepartnership?
the money, property or industry which
hemayhavepromisedtocontribute A:CRIP
1. To Contribute on the date fixed the
2. Answer for eviction in case the amount the partner has undertaken to
partnership is deprived of the contributetothepartnership
determinatepropertycontributed 2. To Reimburse any amount the partner
may have taken from the partnership
3. AnswertothepartnershipfortheFruits coffersandconvertedtohisownuse
of the property the contribution of 3. To Indemnify the partnership for the
which he delayed, from the date they damages caused to it by delay in the
344 CIVILLAWTEAM:

PARTNERSHIP
contribution or conversion of any sum 3. Partner who collects is authorized to

forthepartnerspersonalbenefits manage and actually manages the
4. To Pay for the agreed or legal interest, partnership
if the partner fails to pay his
contributionontimeorincasehetakes PARTNERWHORECEIVESSHAREOF
anyamountfromthecommonfundand PARTNERSHIPCREDIT
convertsittohisownuse
Q:Whatistheobligationofapartnerwho
CONTRIBUTEADDITIONALCAPITAL receivesshareofpartnershipcredit?

Q:Whataretherulesregardingobligationsto A:Tobringtothepartnershipcapitalwhathehas
contributetopartnershipcapital? received even though he may have given receipt
forhisshareonly.
A:
1. Partners must contribute equal shares Note:Requisites:
to the capital of the partnership unless 1. Apartnerhasreceivedinwholeorinpart,
thereisstipulationtocontrary hisshareofthepartnershipcredit
2. Capitalist partners must contribute 2. Other partners have not collected their
shares
additional capital in case of imminent
3. Partnershipdebtorhasbecomeinsolvent
loss to the business of the partnership

when there is no stipulation to the
Q:Mayapersonwhohasnotdirectlytransacted
contrary; Refusal to do so shall create
in behalf of an unincorporated association be
anobligationontherefusingpartnerto
held liable for a contract entered into by such
sellhisinteresttotheotherpartners
association?

Q: What are the requisites before capitalist
A:Yes.Theliabilityforacontractenteredintoon
partners are compelled to contribute additional
behalf of an unincorporated association or
capital?
ostensible corporation may lie in a person who
may not have directly transacted on its behalf,

A:
butreapedbenefitsfromthatcontract.(LimTong
1. Imminent loss of the business of the
Limv.PhilippineFishingGearIndustriesInc.,G.R.
partnership
No.136448,Nov.3,1999)
2. Majorityofthecapitalistpartnersareof

the opinion that an additional
PROHIBITIONINENGAGINGINBUSINESS
contribution to the common fund

wouldsavethebusiness
Q: What are the rules regarding the prohibition
3. Capitalistpartnerrefusesdeliberatelyto
toengageinanotherbusiness?
contribute (not due to financial

inability)
A:
4. Thereisnoagreementtothecontrary
INDUSTRIALPARTNER CAPITALISTPARTNER
Prohibition
MANAGINGPARTNERWHOCOLLECTSDEBT
Cannotengagein
Cannotengagein
business(withsame
Q: What are the obligations of managing businessforhimself
kindofbusinesswith
partners who collect his personal receivable unlessthepartnership
thepartnership)forhis
fromapersonwhoalsoowesthepartnership? expresslypermitshimto
ownaccount,unless
doso
thereisastipulationto
A:
thecontrary
1. Apply sum collected to 2 credits in Remedy
proportiontotheiramounts Capitalistpartnersmay:
Capitalist partner, who
2. If he received it for the account of 1. Exclude him from
violatedshall:
partnership, the whole sum shall be thefirm
1. Bring to the
appliedtopartnershipcredit 2. Avail themselves of
common fund any
the benefits which
profits accruing to
Note:Requisites: he may have
him from said
1. Atleast2debts,onewherethecollecting obtained
transaction;and
partner is creditor and the other, where 3. Damages, in either
2. Bears all losses
thepartnershipisthecreditor case (Art. 1789,
(Art.1808,NCC)
2. Bothdebtsaredemandable NCC)
345

Q:JoeandRudyformedapartnershiptooperate other partners from any transaction connected
a car repair shop in Quezon City. Joe provided withtheformation,conduct,orliquidationofthe
thecapitalwhileRudycontributedhislaborand partnership or from any use by him of its
industry. Onone side of their shop, Joe opened property.(Art.1807,NCC)
and operated a coffee shop, while on the other
side, Rudy put up a car accessories store. May RIGHTSOFGENERALPARTNERS
theyengageinsuchseparatebusinesses?Why?
Q:Whatarethepropertyrightsofapartner?
A: Joe, the capitalist partner, may engage in the A:SIM
restaurant business because it is not the same 1. RightinSpecificpartnershipproperty
kindofbusinessthepartnershipisengagedin.On 2. Interestinthepartnership(shareinthe
the other hand, Rudy may not engage in any profitsandsurplus)
other business unless their partnership expressly 3. RighttoparticipateintheManagement
permits him to do so because as an industrial
partner he has to devote his full time to the Q: What is the nature of a partner's right in
business of the partnership (Art. 1789, NCC). specificpartnershipproperty?
(2001BarQuestion)
A:
DAMAGESTOPARTNERSHIP 1. Equal right to possession for
partnershippurposes
Q:Whatistherulewithregardtotheobligation 2. Right is not assignable, except in
of a partner as to damages suffered by the connectionwithassignmentofrightsof
partnershipthroughhisfault? allpartnersinthesameproperty
3. Right is limited to his share of what
A: remains after partnership debts have
GR: Every partner is responsible to the beenpaid
partnership for damages suffered by it 4. Right is not subject to attachment or
throughhisownfault.Thesedamagescannot executionexceptonaclaimagainstthe
be offset by the profits or benefits which he partnership
may have earned for the partnership by his 5. Rightisnotsubjecttolegalsupport
industry.
Q: What are the effects of assignment of
XPN:Ifunusualprofitsarerealizedthrough partnerswholeinterestinthepartnership?
extraordinaryeffortsoftheguiltypartner,the
courtsmayequitablymitigateorlessenhis A:
liabilityfordamages.(Art.1794,NCC) 1. Rightswithheldfromtheassignee:
Such assignment does not grant the
DUTYTORENDERINFORMATION assigneetherightto:
a. Tointerfereinthemanagement
Q:Whatisthedutyofthepartnerswithrespect b. To require any information or
toinformationaffectingthepartnership? account
c. Toinspectpartnershipbooks
A: They shall render on demand true and full
informationofallthingsaffectingthepartnership 2. Rightsofassigneeonpartnersinterest:
to: a. To receive in accordance with his
1. thepartner;or contracttheprofitsaccruingtothe
2. legalrepresentativeofanydeceasedor assigningpartner
legally disabled partner. (Art. 1806, b. To avail himself of the usual
NCC) remedies provided by law in the
eventoffraudinthemanagement
ACCOUNTABLEASFIDUCIARY c. Toreceivetheassignorsinterestin
caseofdissolution
Q: How are partners accountable to each other d. To require an account of
asfiduciary? partnershipaffairs,butonlyincase
the partnership is dissolved, and
A:Everypartnermustaccounttothepartnership suchaccountshallcovertheperiod
for any benefit, and hold as trustee for it any from the date only of the last
profitsderivedbyhimwithouttheconsentofthe
346 CIVILLAWTEAM:

PARTNERSHIP
account agreed to by all the IV.OBLIGATIONSOFPARTNERSHIP/PARTNERS

partners TOTHIRDPERSONS

Q:Whataretheeffectsofconveyanceofa Q: What are the obligations of partners with
partnerofhisinterestinthepartnership? regardto3rdpersons?

A: A:
1. Conveyance of his whole interest 1. Everypartnershipshalloperateundera
partnership may either remain or be firm name. Persons who include their
dissolved names in the partnership name even if
2. Assigneedoesnotnecessarilybecomea theyarenotmembersshallbeliableas
partner;hecannot: apartner
a. interfere in the management or 2. All partners shall be liable for
administration;or contractual obligations of the
b. demand information, accounting partnershipwiththeirproperty,afterall
and inspection of the partnership partnership assets have been
books. exhausted:
a. Prorata
Note:Buttheassigneehasthefollowingrights: b. Subsidiary
1. receive in accordance with his contract 3. Admission or representation made by
the profits which the assigning partner any partner concerning partnership
wouldotherwisebeentitled affairswithinthescopeofhisauthority
2. avail himself of the usual remedies isevidenceagainstthepartnership
provided by law in event of fraud in 4. Noticetopartnerofanymatterrelating
management
topartnershipaffairsoperatesasnotice
3. receive assignors interest in case of
topartnershipexceptincaseoffraud:
dissolution
a. Knowledgeofpartneractinginthe
4. requireandaccountofpartnershipaffairs
but only in case the partnership is
particular matter acquired while a
dissolved, and such account shall cover partner
the period from the date only of the last b. Knowledgeofthepartneractingin
accountagreedtobyalltheparties the particular matter then present
tohismind
c. Knowledge of any other partner
CRIMINALLIABILITYFORMISAPPROPRIATION:
who reasonably could and should
ESTAFA
have communicated it to the
actingpartner
Q: Rosa received from Jois money, with the
5. Partners and the partnership are
express obligation to act as Jois agent in rd
solidarily liable to 3 persons for the
purchasing local cigarettes, to resell them to
partner'stortorbreachoftrust
several stores, and to give Jois the commission
6. Liability of incoming partner is limited
correspondingtotheprofitsreceived.However,
to:
Rosa misappropriated and converted the said
a. His share in the partnership
amount due to Jois to her personal use and
propertyforexistingobligations
benefit. Jois filed a case of estafa against Rosa.
b. His separate property for
Can Rosa deny liability on the ground that a
subsequentobligations
partnershipwasformedbetweenherandRosa?
7. Creditorsofpartnershiparepreferredin
partnership property & may attach

A: No. Even assuming that a contract of
partner'sshareinpartnershipassets
partnership was indeed entered into by and

betweentheparties,whenapartnerreceivesany
Note: On solidary liability. Art. 1816 should be
moneyorpropertyforaspecificpurpose(suchas
construed together with Art. 1824 (in connection
that obtaining in the instant case) and he later withArts.1822and1823).Whiletheliabilityofthe
misappropriates the same, is guilty of estafa. partnersismerelyjointintransactionsenteredinto
(Liwanagv.CA,G.R.No.114398,Oct.24,1997) by the partnership, a third person who transacted
with said partnership may hold the partners
solidarilyliableforthewholeobligationifthecaseof
thethirdpersonfallsunderArticles1822and1823.
(Munasquev.CA,G.R.No.L39780,Nov.11,1985)

347

V.DISSOLUTION c. a partner has been guilty of such
conduct as tends to affect
Q: Distinguish dissolution, winding up and prejudiciallythecarryingonofthe
termination. business
d. a partner willfully or persistently
Dissolution Windingup Termination commits a breach of the
Achangeinthe partnershipagreement
Pointintime
relationofthe e. thebusinessofthepartnershipcan
whenall
partners Settlingthe onlybecarriedonataloss
partnership
causedbyany partnership f. other circumstances render a
affairsare
partnerceasing businessor dissolutionequitable
woundupor
tobe affairsafter
completed;the
associatedin dissolution Q:Whataretheeffectsofdissolution?
endofthe
carryingonthe
partnershiplife
business.
A:

1. Partnershipisnotterminated
Q:Whatarethecausesofdissolution?
2. Partnership continues for a limited

purpose
A:
3. Transaction of new business is
1. Withoutviolatingtheagreement:
prohibited (De Leon, Comments and
a. Terminationofthedefinitetermor
Cases on Partnership, Agency, and
specificundertaking
Trust,p.229,2005ed)
b. Expresswillofanypartneringood

faith, when there is no definite Note: The dissolution of a partnership must not be
termandnospecifiedundertaking understood in the absolute and strict sense so that
c. Express will of all partners (except at the termination of the object for which it was
those who have assigned their createdthepartnershipisextinguished,pendingthe
interests or suffered them to be windingupofsomeincidentsandobligationsofthe
charged for their separate debts) partnership,butinsuchcase,thepartnershipwillbe
either before or after the reputedasexistinguntilthejuridicalrelationsarising
termination of any specified term outofthecontractaredissolved.(TestateofMotta
orparticularundertaking v.Serra,G.R.No.L22825,Feb.14,1925)
d. Expulsion of any partner in good
faithofamember Dissolution does not automatically result in the
2. Violatingtheagreement termination of the legal personality of the
3. Unlawfulnessofthebusiness partnership,northerelationsofthepartnersamong
4. Loss themselves who remain as copartners until the
partnershipis terminated. (De Leon, Comments and
a. Specific thing promised as
CasesonPartnership,Agency,andTrust,p.29,2005
contribution is lost or perished
ed)
beforedelivery

b. Lossofaspecificthingcontributed
Q: What is the effect of dissolution on the
beforeorafterdelivery,ifonlythe
authorityofapartner?
useofsuchiscontributed

A:
Note: The partnership shall not be
GR: The partnership ceases to be a going
dissolvedbythelossofthethingwhenit
occurs after the partnership has acquired concern
theownershipthereof.
XPN:Thepartnerspowerofrepresentationis
5. Deathofanyofthepartners confinedonlytoactsincidenttowindingupor
6. Insolvency of any partner or of the completing transactions begun but not then
partnership finished.(Art.1832,NCC)
7. Civilinterdictionofanypartner
8. BydecreeofcourtunderArt.1831,NCC Note: Subject to the qualifications set forth in
Articles 1833 and 1834 in relation to Article
a. apartnerhasbeendeclaredinsane
1832,NCC:
orofunsoundmind
1. In so far as the partners themselves are
b. a partner becomes in any other
concerned The authority of any partner
way incapable of performing his tobindthepartnershipbyanewcontract
partofthepartnershipcontract is immediately terminated when the
348 CIVILLAWTEAM:

PARTNERSHIP
dissolution is not by the Act, Insolvency, Q: After the dissolution of a partnership, can a
orDeathofapartner(AID). partnerstillbindthepartnership?
2. When the dissolution is by the act,
insolvency, or death, the termination of A:
authority depends upon whether or not GR: Yes. A partner continues to bind
the partner had knowledge or notice of partnership even after dissolution in the
dissolution(Art.1833,NCC). followingcases:
1. Transactions to wind up partnership

Q:Thearticlesofcopartnershipprovidethatin
affairs/complete transactions
case of death of one partner, the partnership
unfinishedatdissolution;
shallnotbedissolvedbutshallbecontinuedby
2. Transactions which would bind
thedeceasedpartnersheirs.WhenH,apartner,
partnership if not dissolved dissolution
died,hiswife,W,tookoverthemanagementof
hadnottakenplace,providedtheother
some of the real properties with permission of
party/obligee:
the surviving partner, X, but her name was not
a.
included in the partnership name. She
i. Had extended credit to partnership
eventuallysoldtheserealpropertiesafterafew priortodissolution;and
years. X now claims that W did not have the ii. Had no knowledge/notice of
authoritytomanageandsellthosepropertiesas dissolution;or
shewasnotapartner.Isthesalevalid? b.
i. Didnotextendcredittopartnership;
A:Yes.Thewidowwasnotamereagent,because ii. Had known partnership prior to
she had become a partner upon her husband's dissolution;and
death,asexpresslyprovidedbythearticlesofco iii. Had no knowledge/notice of
partnership, and by authorizing the widow to dissolution/fact of dissolution not
managepartnershippropertyXrecognizedheras advertisedinanewspaperofgeneral
a general partner with authority to administer circulation in the place where
andalienatepartnershipproperty.Itisimmaterial partnershipisregularlycarriedon.
thatW'snamewasnotincludedinthefirmname,
sincenoconversionofstatusisinvolved,andthe XPNs: Partner cannot bind the partnership
articlesofcopartnershipexpresslycontemplated anymoreafterdissolutionwheredissolutionis
the admission of the partner's heirs into the duetounlawfulnesstocarryonbusiness
partnership.(Goquiolayv.Sycip,G.R.No.L11840,
Dec.16,1963) XPNtoXPN:Windingupofpartnershipaffairs
1. Partnerhasbecomeinsolvent
Q: What is the liability of a partner where the 2. Actisnotappropriateforwindingupor
dissolution is caused by the act, death or forcompletingunfinishedtransactions
insolvencyofapartner? 3. Completely new transactions which
would bind the partnership if
A: dissolution had not taken place with
GR: Each partner is liable to his copartners thirdpersonsinbadfaith.
for his share, of any liability created by any 4. Partner is unauthorized to wind up
partner for the partnership, as if the partnership affairs, except by
partnershiphadnotbeendissolved. transactionwithonewho:
a.
XPNs:Partnersshallnotbeliablewhen: i. Had extended credit to partnership
1. the dissolution, being by act of any priortodissolution;
partner, the partner acting for the ii. Had no knowledge or notice of
dissolution;or
partnership had knowledge of the
b.
dissolution;or
i. Did not extend credit to partnership
2. the dissolution, being by the death or
priortodissolution;
insolvency of a partner, the partner
ii. Had known partnership prior to
acting for the partnership had dissolution;and
knowledge or notice of the death or iii. Had no knowledge/notice of
insolvency(Art.1833,NCC) dissolution/fact of dissolution not
advertisedinanewspaperofgeneral
circulation in the place where
partnershipisregularlycarriedon.

349

Q: Does the dissolution of a partnership Engaging in new business necessary for winding up
dischargeexistingliabilityofapartner? such as contracting with a demolition company for
the demolition of the garage used in a used car
A: partnership (Paras, Civil Code of the Philippines
GR:No. Annotated,Volume5,p.485,19696thed)

XPN:Saidliabilityisdischargedwhenthereis Q:Whoarethepersonsauthorizedtowindup?
anagreementbetween:
1. Partnerhimself; A:
2. Person/scontinuingthebusiness;and 1. Partnersdesignatedbytheagreement
3. Partnershipcreditors 2. Intheabsenceofsuch,allpartnerswho
have not wrongfully dissolved the
Q: What is the order of priority in the partnership
distributionofassetsduringthedissolutionofa 3. Legal representative of last surviving
limitedpartnership? partnerwhoisnotinsolvent

A: In setting accounts after dissolution, the Q:Whatarepartnershipassets?
liabilities of the partnership shall be entitled to
paymentinthefollowingorder: A:
1. Those to creditors, in the order of 1. Partnershipproperty
priority as provided by law, except 2. Contributionsofthepartnersnecessary
thosetolimitedpartnersonaccountof for the payment of all liabilities [Art.
their contributions, and to general 1839(2),NCC]
partners
2. Those to limited partners in respect to Q:Whatistheorderofpaymentinwindingup?
their share of the profits and other
compensation by way of income on A:
theircontributions 1. Those owing to creditors other than
3. Those to limited partners in respect to partners
thecapitaloftheircontributions 2. Thoseowingtopartnersotherthanfor
4. Those to general partners other than capitalorprofits
forcapitalandprofits 3. Those owing to partners in respect of
5. Those to general partners in respect to capital
profits 4. Those owing to partners in respect to
6. Those to general partners in respect to profits[Art.1839(2),NCC]
capital(Art.1863,NCC)
Q:Whatisthedoctrineofmarshallingofassets?
Note: Subject to any statement in the certificate or
to subsequent agreement, limited partners share in A:
the partnership assets in respect to their claims for 1. Partnership creditors have preference
capital, and in respect to their claims for profits or inpartnershipassets
for compensation by way of income on their 2. Separate or individual creditors have
contribution respectively, in proportion to the preference in separate or individual
respectiveamountsofsuchclaims. properties
3. Anything left from either goes to the
WINDINGUP other.

Q: What takes place during the winding up of Q: What are the rights of a partner where
thepartnership? dissolution is not in contravention of the
agreement?
A: It is during this time after dissolution that
partnership business or affairs are being settled. A: Unless otherwise agreed, the rights of each
(De Leon, Comments and Cases on Partnership, partnerareasfollows:
Agency,andTrust,p.229,2005ed) 1. To have the partnership property
applied to discharge the liabilities of
Note:Examplesofwindingup: partnership;and
1. Payingpreviousobligations 2. To have the surplus, if any, applied, to
2. Collectingassetspreviouslydemandable pay in cash the net amount owing to
therespectivepartners.
350 CIVILLAWTEAM:

PARTNERSHIP
Q: What are the rights of a partner where 3. Right of indemnification by the guilty
dissolution is in contravention of the partner against all debts and liabilities
agreement? ofthepartnership.

A: The rights of a partner vary depending upon Q: How are the accounts settled between
whetherheistheinnocentorguiltypartner. partners?

1. Rights of partner who has not caused A:
thedissolutionwrongfully: 1. Assetsofthepartnershipinclude:
a. To have partnership property a. Partnership property (including
applied for the payment of its goodwill)
liabilitiesandtoreceiveincashhis b. Contributionsofthepartners
shareofthesurplus 2. Orderofapplicationoftheassets:
b. Tobeindemnifiedforthedamages a. First, those owing to partnership
caused by the partner guilty of creditors
wrongfuldissolution b. Second, those owing to partners
c. To continue the business in the other than for capital and profits
samenameduringtheagreedterm suchasloansgivenbythepartners
of the partnership, by themselves oradvancesforbusinessexpenses
orjointlywithothers c. Third,thoseowingforthereturnof
d. To possess partnership property the capital contributed by the
shouldtheydecidetocontinuethe partners
business d. Fourth, the share of the profits, if
any,duetoeachpartner
2. Rights of partner who has wrongfully
causedthedissolution: Q: A partnership was formed with Magdusa as
a. If the business is not continued by the manager. During the existence of the
the other partners, to have the partnership,twopartnersexpressedtheirdesire
partnership property applied to towithdrawfromthefirm.Magdusadetermined
discharge its liabilities and to the value of the partners share which were
receive in cash his share of the embodied in the document drawn in the
surpluslessdamagescausedbyhis handwriting of Magdusa but was not signed by
wrongfuldissolution all of the partners. Later, the withdrawing
b. Ifthebusinessiscontinued: partners demanded for payment but were
i. To have the value of his refused. Considering that not all partners
interest in the partnership at intervenedinthedistributionofallorpartofthe
the time of the dissolution, partnershipassets,shouldtheactionprosper?
less any damage caused by
the dissolution to his co A: No. A partners share cannot be returned
partners,ascertainedandpaid without first dissolving and liquidating the
in cash, or secured by bond partnership, for the return is dependent on the
approvedbythecourt;and discharge of creditors, whose claims enjoy
ii. To be released from all preference over those of the partner, and it is
existing and future liabilities selfevident that all members of the partnership
ofthepartnership areinterestedinitsassetsandbusiness,andare
entitled to be heard in the matter of the firms
Q:Whataretherightsofinjuredpartnerwhere liquidation and distribution of its property. The
partnershipcontractisrescinded? liquidation prepared by Magdusa not signed by
the other partners is not binding on them.
A: (Magdusa v. Albaran, G.R. No. L17526, June 30,
1. Right of a lien on, or retention of, the 1962)
surplus of partnership property after
satisfying partnership liabilities for any Q:Whatispartnerslien?
sum of money paid or contributed by
him; A: The right of every partner to have the
2. Right of subrogation in place of partnership property applied, to discharge
partnership creditors after payment of partnership liabilities and surplus assets, if any,
partnershipliabilities;and distributed in cash to the respective partners,
351

after deducting what may be due to the Q:Whoarethepersonsrequiredtorenderan
partnershipfromthemaspartners. account?

Q:Canapartnerdemandforhisshareduringthe A:
existenceofapartnership? 1. Windinguppartner;
2. Survivingpartner;and
A: No. A share in a partnership can be returned 3. Person or partnership continuing the
only after the completion of the latter's business
dissolution, liquidation and winding up of the
business. Q: Emnace and Tabanao decided to dissolve
their partnership in 1986. Emnace failed to
Since the capital was contributed to the submit the statement of assets andliabilitiesof
partnership,nottopartners,itisthepartnership thepartnership,andtorenderanaccountingof
that must refund the equity of the retiring the partnership's finances. Tabanaos heirs filed
partners.Sinceitisthepartnership,asaseparate against Emnace an action for accounting, etc.
anddistinctentitythatmustrefundthesharesof Emnace counters, contending that prescription
the partners, the amount to be refunded is hassetin.Decide.
necessarilylimitedtoitstotalresources.Inother
words, it can only pay out what it has in its A: Prescription has not yet set in. Prescription of
coffers,whichconsistsofallitsassets.(Villarealv. the said right starts to run only upon the
Ramirez,G.R.No.144214,July14,2003) dissolution of the partnership when the final
accounting is done. Contrary to Emnaces
Q:Whataretheeffectswhenthebusinessofa protestations,prescriptionhadnotevenbegunto
dissolvedpartnershipiscontinued? runintheabsenceofafinalaccounting.Theright
to demand an accounting accrues at the date of
A: dissolution in the absence of any agreement to
1. Creditors of old partnership are also thecontrary.Whenafinalaccountingismade,it
creditors of the new partnership who is only then that prescription begins to run.
continues the business of the old one (Emnacev.CA,G.R.No.126334,Nov.23,2001)
without liquidation of the partnership
affairs. Q: Pauline, Patricia and Priscilla formed a
2. Creditors have an equitable lien on the businesspartnershipforthepurposeofengaging
consideration paid to the in neon advertising for a term of five (5) years.
retiring/deceased partner by the Pauline subsequently assigned to Philip her
purchaser when retiring/deceased interest in the partnership. When Patricia and
partner sold his interest without final Priscillalearnedoftheassignment,theydecided
settlementwithcreditors. todissolvethepartnershipbeforetheexpiration
3. Rights of retiring/estate of deceased ofitstermastheyhadanunproductivebusiness
partner: relationshipwithPhilipinthepast.Ontheother
a. To have the value of his interest hand, unaware of the move of Patricia and
ascertained as of the date of Priscillabutsensingtheirnegativereactiontohis
dissolution;and acquisition of Paulines interest, Philip
b. Toreceiveasordinarycreditorthe simultaneously petitioned for the dissolution of
value of his share in the dissolved thepartnership.
partnershipwithinterestorprofits Is the dissolution done by Patricia and Priscilla
attributable to use of his right, at without the consent of Pauline or Philip valid?
hisoption. Explain.

Note: The right to demand on accounting of the A: Under Art 1830(1)(c), NCC, the dissolution by
value of his interest accrues to any partner or his Patricia and Priscilla is valid and did not violate
legalrepresentativeafterdissolutionintheabsence the contract of partnership even though Pauline
ofanagreementtothecontrary. andPhilipdidnotconsentthereto.Theconsentof
Paulineisnotnecessarybecauseshehadalready
Prescriptionbeginstorunonlyuponthedissolution assigned her interest to Philip. The consent of
of the partnership, when the final accounting is Philip is also not necessary because the
done.
assignment to him of Paulines interest did not

makehimapartner,underArt.1813,NCC.

352 CIVILLAWTEAM:

PARTNERSHIP
Does Philip have any right to petition for the compliance in good faith (Jo Chun v. Pacific
dissolution of the partnership before the CommercialCo.,G.R.No.19892,Sept.6,1923).
expirationofitsspecifiedterm?Explain.
Q:Doesalimitedpartnershiphaveapersonality
A: No, Philip has no right to petition for separateanddistinctfromthatofthepartners?
dissolution because he does not have the Whataretheconsequencesofsuch?
standingofapartner.(Art.1813,NCC)(1995Bar
Question) A: Yes. The personality of a limited partnership
beingdifferentfromthatofitsmembers,itmust,
VI.LIMITEDPARTNERSHIP on general principle, answer for, and suffer, the
consequenceofitsactsassuchanentitycapable
A.DEFINITION of being the subject of rights and obligations. If
the limited partnership failed to pay its
Q:Whatislimitedpartnership? obligations, this partnership must suffer the
consequences of such a failure, and must be
A:Oneformedbytwoormorepersonshavingas adjudged insolvent. (Campos Rueda & Co. v.
members one or more general partners and one Pacific Commercial Co., et. al, G.R. No. L 18703,
or more limited partners, the latter not being Aug.28,1922)
personallyliableforpartnershipdebts(Art.1843)
Q: When is the certificate or articles of limited
Q:Whatarethecharacteristicsoflimited partnershipcancelled?
partnership?
A:
A: 1. Whenthepartnershipisdissolved
1. It is formed by compliance with the 2. Whenallthelimitedpartnersceasedto
statutoryrequirements besuch
2. One or more general partners control
thebusinessandarepersonallyliableto Q: When may a certificate or articles of limited
creditors partnershipbeamended?
3. One or more limited partners
contribute to the capital and share in A:
theprofitsbutdonotparticipateinthe 1. Itmustfallunderthefollowingchanges
management of the business and are andconditions:
not personally liable for partnership a. There is a change in the name of
obligations beyond their capital the partnership or in the amount
contributions orcharacterofthecontributionof
4. The limited partners may ask for the anylimitedpartner
return of their capital contributions b. Apersonissubstitutedasalimited
underconditionsprescribedbylaw partner
5. Partnership debts are paid out of c. An additional limited partner is
common fund and the individual admitted
propertiesofgeneralpartners d. A person is admitted as a general
partner
B.HOWLIMITEDPARTNERSHIPIS e. A general partner retires, dies,
FORMED/AMENDED becomes insolvent or insane, or is
sentenced to civil interdiction and
Q: What are the essential requirements for the the business is continued under
formationoflimitedpartnership? Article1860
f. There is a change in the character
A: ofthebusinessofthepartnership
1. Certificate of articles of limited g. There is a false or erroneous
partnership which states the matters statementinthecertificate
enumeratedinArt.1844,NCC,mustbe h. There is a change in the time as
signedandsworn;and stated in the certificate for the
2. Certificate must be filed for record in dissolution of the partnership or
theofficeoftheSEC. forthereturnofacontribution
i. A time is fixed for the dissolution
Note: Strict compliance with legal requirements is ofthepartnership,orthereturnof
notnecessary.Itissufficientthatthereissubstantial
353

a contribution, no time having Q:Whendoesageneralpartnerneedconsentor
beenspecifiedinthecertificate ratificationofallthelimitedpartners?
j. The members desire to make a
change in any other statement in A:Whenhe:
thecertificateinorderthatitshall 1. does any act in contravention of the
accurately represent the certificate;
agreement among them (Art. 2. does any act which would make it
1864,NCC) impossible to carry on the ordinary
businessofthepartnership;
2. Must be signed and sworn to by all of 3. confesses judgment against
the members including the new partnership;
members if some added; in case of 4. possesses partnership property /
substitution, the assigning limited assigns rights in specific partnership
partnermustalsosign property other than for partnership
purposes;
3. MustberecordedintheSEC 5. admitspersonasgeneralpartner;
6. admits person as limited partner
LIMITEDPARTNER unlessauthorizedincertificate;or
7. continues business with partnership
Q:Whataretheliabilitiesofalimitedpartner? property on death, retirement, civil
interdiction, insanity or insolvency of
A: generalpartnerunlessauthorizedinthe
ASCREDITOR ASTRUSTEE certificate.
Specificpropertystatedas
Deficiencyin
contributedbutnotyet PARTNERSHIPTORT
contribution
contributed/wrongfullyreturned Q:Whenisthereapartnershiptort?
Money/otherproperty
Unpaid
wrongfullypaid/conveyedtohim A:Where:
contribution
onaccountofhiscontribution 1. by any wrongful act or omission of any
partner,actingintheordinarycourseof
Q: What transactions are allowed or prohibited business of the partnership or with
inalimitedpartnership? authority of his copartners, loss or
injuryiscausedtoanyperson,notbeing
A: apartnerinthepartnership;
1. Allowed 2. one partner, acting within the scope of
a. Grantingloanstopartnership his apparent authority, receives money
b. Transacting business with or property from a third person, and
partnership misappliesit;or
c. Receiving pro rata share of 3. the partnership, in the course of its
partnership assets with general business, receives money or property,
creditorsifheisnotalsoageneral anditismisappliedbyanypartnerwhile
partner itisinthecustodyofthepartnership.

2. Prohibited Note: Partners are solidarily liable with the
a. Receiving/holding partnership partnershipforanypenaltyordamagearisingfroma
propertyascollateralsecurity partnershiptort.
b. Receiving any payment,
conveyance,releasefromliabilityif C.RIGHTSANDOBLIGATIONSOFALIMITED
rd
itwillprejudicerightof3 persons PARTNER

Note:Violationoftheprohibitionwillgiverisetothe Q: What are the specific rights of a limited
presumption that it has been made to defraud partner?
partnershipcreditors.
A:To:
The prohibition is not absolute because there is no 1. havepartnershipbookskeptatprincipal
prohibitionifthepartnershipassetsaresufficientto placeofbusiness;
discharge partnership liabilities to persons not 2. inspect/copy books at reasonable
claimingasgeneralorlimitedpartners.
hours;

354 CIVILLAWTEAM:

PARTNERSHIP
3. have on demand true and full

information of all things affecting Note: In the absence of such statement in the
partnership; certificate,evenifthereisanagreement,alllimited
4. have formal account of partnership partners shall stand on equal footing in respect of
affairs whenever circumstances render thesematters.
itjustandreasonable;
5. ask for dissolution and winding up by Q: What are the requisites for return of
decreeofcourt; contributionofalimitedpartner?
6. receive share of profits/other
compensationbywayofincome;and A:
7. receive return of contributions, 1. All liabilities of the partnership have
provided the partnership assets are in been paid or if they have not yet been
excessofallitsliabilities. paid, the assets of the partnership are
sufficienttopaysuchliabilities;
Q:Whoisasubstitutedlimitedpartner? 2. The consent of all the members
(generalandlimitedpartners)hasbeen
A:Apersonadmittedtoalltherightsofalimited obtained except when the return may
partner who has died or assigned his interest in berightfullydemanded;and
thepartnership 3. The certificate of limited partnership is
cancelledoramended
Q: What are the rights and liabilities of a
substitutedlimitedpartner? Q: When is the return of contribution of a
limitedpartneramatterofright?
A:
GR: He has all the rights and powers and is A: When all liabilities of the partnership, except
subjecttoalltherestrictionsandliabilitiesof liabilities to general partners and to limited
hisassignor. partners on account of their contributions, have
been paid or there remains property of the
XPN: Those liabilities which he was ignorant partnership sufficient to pay them and the
of at the time that he became a limited certificate is cancelled or so amended as to set
partner and which could not be ascertained forththewithdrawalorreduction:
fromthecertificate 1. onthedissolutionofthepartnership;
2. uponthearrivalofthedatespecifiedin
Q:Whataretherequirementsfortheadmission thecertificateforthereturn;or
ofasubstitutedlimitedpartner? 3. aftertheexpirationof6monthnoticein
writing given by him to the other
A: partners if no time is fixed in the
1. All the members must consent to the certificate for the return of the
assigneebecomingasubstitutedlimited contribution or for the dissolution of
partner or the limited partner, being thepartnership.
empoweredbythecertificatemustgive
the assignee the right to become a Note: Even if a limited partner has contributed
limitedpartner; property, he has only the right to demand and
2. The certificate must be amended in receivecashforhiscontribution.Theexceptionsare:
1. When there is stipulation to the contrary
accordancewithArt.1865,NCC;and
inthecertificate;or
3. The certificate as amended must be
2. Whenallthepartners(generalandlimited
registeredintheSEC. partners)consenttothereturnotherthan
intheformofcash
Q: What is the basis of preference given to
limitedpartnersoverotherlimitedpartners? Q:Whataretheliabilitiesofalimitedpartner?

A: Priority or preference may be given to some 1. Tothepartnership
limitedpartnersoverotherlimitedpartnersasto
the: A:Sincelimitedpartnersarenotprincipalsinthe
1. returnoftheircontributions; transaction of a partnership, their liability as a
2. their compensation by way of income; rule,istothepartnership,nottothecreditorsof
or the partnership. The general partners cannot,
3. anyothermatter.
355

however waive any liability of the limited the interest in the partnership of the debtor
partnerstotheprejudiceofsuchcreditors. partner for the payment of his obligation. (De
Leon, Comments and cases on Partnership,
2. To the partnership creditors and other AgencyandTrust,p.13,2005ed)
partners
2. A limited partner is liable for Q: What are the requisites for waiver or
partnership obligations when he compromiseofliabilities?
contributed services instead of only
moneyorpropertytothepartnership A:Thewaiverorcompromise:
3. Whenheallowshissurnametoappear 1. ismadewiththeconsentofallpartners;
inthefirmname and
4. Whenhefailstohaveafalsestatement 2. does not prejudice partnership
in the certificate corrected, knowing it creditorswhoextendedcreditorwhose
tobefalse claims arose before the cancellation or
5. Whenhetakespartinthecontrolofthe amendmentofthecertificate.
business
6. When he receives partnership property Q: When may a limited partner have the
as collateral security, payment, partnershipdissolved?
conveyance, or release in fraud of
partnershipcreditors A:
7. When there is failure to substantially 1. When his demand for the return of his
comply with the legal requirements contributionisdeniedalthoughhehasa
governing the formation of limited righttosuchreturn;or
partnerships 2. When his contribution is not paid
although he is entitled to its return
3. Toseparatecreditors because the other liabilities of the
partnership have not been paid or the
A: As in a general partnership, the creditor of a partnership property is insufficient for
limited partner may, in addition to other theirpayment.
remedies allowed under existing laws, apply to
the proper court for a charging order subjecting

SUMMARYOFRIGHTSANDOBLIGATIONSOFPARTNERS

GENERALPARTNER LIMITEDPARTNER
Rights
1. To have partnership books kept at
principalplaceofbusiness
1. Rightinspecificpartnershipproperty
2. To inspect/copy books at reasonable
2. Interestinthepartnership(shareintheprofitsandsurplus)
hours
3. Righttoparticipateinthemanagement
3. To have on demand true and full
4. Righttoassociateanotherpersonwithhiminhissharewithout
information of all things affecting
theconsentofotherpartners(subpartnership)
partnership
5. Right to inspect and copy partnership books at any reasonable
4. Tohaveformalaccountofpartnership
hour.
affairs whenever circumstances
6. Right to a formal account as to partnership affairs (even during
renderitjustandreasonable
existenceofpartnership)
5. Toaskfordissolutionandwindingup
a. if he is wrongfully excluded from partnership business or
bydecreeofcourt
possessionofitspropertybyhiscopartners.
6. To receive share of profits/other
b. ifrightexistsunderthetermsofanyagreement.
compensationbywayofincome
c. asprovidedinArt.1807,NCC
7. To receive return of contributions,
d. wheneverthecircumstancesrenderitjustandreasonable.
providedthepartnershipassetsarein
excessofallitsliabilities
Obligations
Obligationsof partnersamongthemselves Tothepartnership

1. Contributionofproperty Sincelimitedpartnersarenotprincipalsin
2. Contributionofmoneyandmoneyconvertedtopersonaluse thetransactionofapartnership,their
3. Prohibitioninengaginginbusinessforhimself liabilityasarule,istothepartnership,not
4. Contributeadditionalcapital tothecreditorsofthepartnership.The
356 CIVILLAWTEAM:

PARTNERSHIP
5. Managingpartnerwhocollectsdebt generalpartnerscannot,howeverwaive
6. Partnerwhoreceivesshareofpartnershipcredit anyliabilityofthelimitedpartnerstothe
7. Damagestopartnership prejudiceofsuchcreditors.
8. Renderinformation
9. Accountableasfiduciary
Obligationsofpartnersto3rd persons
1. Everypartnership shall operateunder a firm name. Persons who

includetheirnamesinthepartnershipnameeveniftheyarenot Tothepartnershipcreditorsandother
membersshallbeliableasapartner partners
2. All partners shall be liable for contractual obligations of the
partnership with their property, after all partnership assets have 1. A limited partner is liable for
beenexhausted: partnership obligations when he
a. Prorata contributed services instead of only
b. Subsidiary moneyorpropertytothepartnership
3. Admission or representation made by any partner concerning 2. When he allows his surname to
partnership affairs within the scope of his authority is evidence appearinthefirmname
againstthepartnership 3. When he fails to have a false
4. Notice to partner of any matter relating to partnership affairs statementinthecertificatecorrected,
operatesasnoticetopartnershipexceptincaseoffraud: knowingittobefalse
a. Knowledgeofpartneractingintheparticularmatteracquired 4. When he takes part in the control of
whileapartner thebusiness
b. Knowledgeofthepartneractingintheparticularmatterthen 5. When he receives partnership
presenttohismind property as collateral security,
c. Knowledge of any other partner who reasonably could and payment, conveyance, or release in
shouldhavecommunicatedittotheactingpartner fraudofpartnershipcreditors
5. Partnersandthepartnershiparesolidarilyliableto3rdpersonsfor 6. When there is failure to substantially
thepartner'stortorbreachoftrust comply with the legal requirements
6. Liabilityofincomingpartnerislimitedto: governing the formation of limited
a. Hisshareinthepartnershippropertyforexistingobligations partnerships
b. Hisseparatepropertyforsubsequentobligations
7.Creditorsofpartnershiparepreferredinpartnershipproperty&may
attachpartner'sshareinpartnershipassets
Toseparatecreditors

Otherobligations
Asinageneralpartnership,thecreditorof

alimitedpartnermay,inadditiontoother
5. Duty to render on demand true and full information affecting
remediesallowedunderexistinglaws,
partnership to any partner or legal representative of any
applytothepropercourtforacharging
deceasedpartnerorofanypartnerunderlegaldisability.
ordersubjectingtheinterestinthe
6. Dutytoaccounttothepartnershipasfiduciary.
partnershipofthedebtorpartnerforthe
paymentofhisobligation.
357

AGENCY the name and representation of
theprincipal
Q:Whatiscontractofagency? b. Simple or commission agent acts
in his own name but for the
A:Bycontractofagencyapersonbindshimselfto accountoftheprincipal
render some service or to do something in
representation or on behalf of another, with the Q: What are the essential elements of an
consentorauthorityofthelatter.(Art.1868NCC) agency?

Q: What are the characteristics of a contract of A:CORS
agency? 1. Consent (express or implied) of the
partiestoestablishtherelationship;
A:BUNCPP 2. TheObjectistheexecutionofajuridical
1. Bilateral If it is for compensation actinrelationtothirdpersons;
becauseitgivesrisetoreciprocalrights 3. TheagentactsasaRepresentativeand
andobligations notforhimself;and
2. Unilateral If gratuitous, because it 4. The agent acts within the Scope of his
creates obligations for only one of the authority.
parties
3. Nominate Q: Are there any formal requirements in the
4. Consensual It is perfected by mere appointmentofanagent?
consent
5. Principal A:
6. Preparatory It is entered into as a GR: There are no formal requirements
meanstoanend governingtheappointmentofanagent.

Q:Whataretheclassificationsofagency? XPN:Whenthelawrequiresaspecificform.

A: i.e.whensaleoflandoranyinteresttherein
1. Astomannerofcreation isthroughanagent,theauthorityofthelatter
a. Express agent has been actually must be in writing; otherwise, the sale shall
authorized by the principal, either bevoid(Art.1874,NCC)
orallyorinwriting
b. Implied agency is implied from Q:Whoarethepartiestoacontractofagency?
the acts of the principal, from his Distinguish.
silence or lack of action or his
failure to repudiate the agency, A:
knowing that another person is 1. Principal One whom the agent
acting on his behalf without represents and from whom he derives
authority authority; he is the one primarily
concernedinthecontract.
2. Astocharacter 2. Agent One who represents the
a. Gratuitous agent receives no principalinatransactionorbusiness.
compensationforhisservices
b. Onerous agent receives Note:Fromthetimetheagentactsortransactsthe
compensationforhisservices business for which he has been employed in
representationofanother,athirdpartyisaddedto
3. Astoextentofbusinessoftheprincipal the agency relationship the party with whom the
a. Generalagencycomprisesallthe business is transacted. (De Leon, Comments and
businessoftheprincipal Cases on Partnership, Agency, and Trust, p. 352,
b. Special agency comprises one or 2005ed)
morespecifictransactions
Q: What is the nature of the relationship
4. Astoauthorityconferred betweenprincipalandagent?
a. Couchedingeneraltermsagency
is created in general terms and is A: It is fiduciary in nature that is based on trust
deemed to comprise only acts in andconfidence.

358 CIVILLAWTEAM:

AGENCY
Q:Whatarethequalificationsofaprincipal? Q:Whataretherequisitesfortheexistenceof
agencybynecessity?
A:
1. Naturalorjuridicalperson A:
2. Hemusthavecapacitytoact 1. Realexistenceofemergency
2. Inability of the agent to communicate
Note:Ifapersoniscapacitatedtoactforhimselfor withtheprincipal
hisownright,hecanactthroughanagent. 3. Exercise of additional authority is for
theprincipalsprotection
Insofarasthirdpersonsareconcerned,itisenough 4. Adoption of fairly reasonable means,
that the principal is capacitated. But insofar as his premisesdulyconsidered
obligationstohisprincipalareconcerned,theagent
mustbeabletobindhimself. Q:Whatistheruleregardingdoubleagency?

Q:Whatisthetermjointprincipals? A:
GR:Itisdisapprovedbylawforbeingagainst
A: Two or more persons appoint an agent for a publicpolicyandsoundmorality.
common transaction or undertaking. (Art. 1915,
NCC) XPN:Wheretheagentactedwithfull
knowledgeandconsentoftheprincipals.
Q:Whataretherequisitesforsolidaryliabilityof
jointprincipals? Q: A granted B the exclusive right to sell his
brandofMaongpantsinIsabela,thepriceforhis
A: merchandise payable within 60 days from
1. Therearetwoormoreprincipals; delivery, and promising B a commission of 20%
2. They have all concurred in the on all sales. After the delivery of the
appointmentofthesameagent;and merchandisetoBbutbeforehecouldsellanyof
3. Agent is appointed for a common them,BsstoreinIsabelawascompletelyburned
transactionorundertaking.(DeLeon,p. withouthis fault, together with all of A'spants.
604,2005ed) MustBpayAforthelostpants?Why?

Q:Whatarethekindsofagents? A:ThecontractbetweenAandBisasalenotan
agency to sell because the price is payable by B
A: upon60daysfromdeliveryevenifBisunableto
1. Universal agent one employed to do resell it. If B were an agent, he is not bound to
all acts which the principal may pay the price if he is unable to resell it. As a
personally do, and which he can buyer,ownershippassedtoBupondeliveryand,
lawfully delegate to another the power under Art. 1504, NCC, the thing perishes for the
ofdoing owner. Hence, B must still pay the price. (1999
2. General agent one employed to BarQuestion)
transactallbusinessoftheprincipal,or
allthebusinessofaparticularkindorin Q: Is mere representation of an alleged agent
aparticularplace,doallactsconnected sufficient to prove the existence of a principal
with a particular trade, business or agentrelationship?
employment
3. Special or particular agent one A: No. The declarations of the agent alone are
authorized to do act in one or more generally insufficient to establish the fact or
specific transactions or to do one or extent of agency. It is a settled rule that the
more specific acts or to act upon a persons dealing with the assumed agent are
particularoccasion bound at their peril, if they would hold the
principals liable, to ascertain not only the fact of
Q:Canagencybecreatedbynecessity? agency but also the nature and extent of
authority, and in case either is controverted, the
A:No.Whatiscreatedisadditionalauthorityin burden of proof is upon them to establish it.
anagentappointedandauthorizedbeforethe (SpousesYuv.PanAmericanWorldAirways,Inc.,
emergencyarose. G.R.No.123560,Mar.27,2000)

359

Q: A foreign manufacturer of computers and a A: The making of customary gifts for charity, or
Philippine distributor entered into a contract those made to employees in the business
whereby the distributor agreed to order 1,000 managed by the agent are considered acts of
units of the manufacturer's computers every administration.
month and to resell them in the Philippines at
the manufacturer's suggested prices plus 10%. Q: P granted to A a special power to mortgage
All unsold units at the end of the year shall be theformersrealestate.Byvirtueofsaidpower,
bought back by the manufacturer at the same A secured a loan from C secured by a mortgage
pricetheywereordered.Themanufacturershall onsaidrealestate.IsPpersonallyliableforsaid
holdthedistributorfreeandharmlessfromany loan?
claim for defects in the units. Is the agreement
oneforsaleoragency? A: No. A special power to mortgage property is
limited to such authority to mortgage and does
A: The contract is one of agency not sale. The not bind the grantor personally to other
notionofsaleisnegatedbythefollowingindicia: obligations contracted by the grantee in the
(1)thepriceisfixedbythemanufacturerwiththe absence of any ratification or other similar act
10%markupconstitutingthecommission;(2)the thatwouldestopthegrantorfromquestioningor
manufacturer reacquires the unsold units at disowning such other obligations contracted by
exactly the same price; and (3) warranty for the thegrantee.
units was borne by the manufacturer. The
foregoing indicia negate sale because they A.TOBINDPRINCIPAL
indicatethatownershipovertheunitswasnever
intendedtotransfertothedistributor.(2000Bar Q: When is the act of an agent binding to the
Question) principal?

II.POWERS A:
1. When the agent acts as such without
Q:Whatarethekindsofagencyastoextentof expressly binding himself or does not
powersconferred? exceed the limits of his authority. (Art.
1897)
A:Anagencymaybecouchedingeneraltermsor 2. If principal ratifies the act of the agent
couchedinspecificterms. which exceeded his authority. (Art.
1898)
Q:Whatisanagencycouchedingeneralterms? 3. Circumstances where the principal
himself was, or ought to have been
A: One which is created in general terms and is aware.(Art.1899)
deemed to comprise only acts of administration 4. If such act is within the terms of the
(Art.1877,NCC). powerofattorney,aswritten.(Art.1900
&1902)
Q:Whenisanexpresspowernecessary? 5. Principalhasratified,orhassignifiedhis
willingnesstoratifytheagentsact.(Art
A: It is necessary to perform any act of strict 1901)
ownership.
Q: Does knowledge of a fact by an agent bind
Q:Whatismeantbyactsofadministration? theprincipal?

A: Those which do not imply the authority to A:
alienate for the exercise of which an express GR: Knowledge of agent is knowledge of
powerisnecessary. principal.

Q:Whenispaymentanactofadministration? XPNs:
1. Agents interests are adverse to those
A:Whenpaymentismadeintheordinarycourse oftheprincipal;
ofmanagement. 2. Agents duty is not to disclose the
information (confidential information);
Q: When are making gifts an act of or
administration? 3. Where the person claiming the benefit
of the rule colludes with the agent to
360 CIVILLAWTEAM:

AGENCY
defraud the principal. (De Leon, Q:Whatisdoctrineofapparentauthority?

Comments and Cases on Partnership,
Agency,andTrust,p.367,2005ed) A: The principal is liable only as to third persons
who have been led reasonably to believe by the
Q:Whataretheeffectsoftheactsofanagent? conductoftheprincipalthatsuchactualauthority
exists,althoughnonehasbeengiven.
A:
1. Withauthority Q: What are the distinctions between apparent
a. Inprincipalsnamevalid authorityandauthoritybyestoppel?
b. In his own name not binding on
the principal; agent and stranger A:
are the only parties, except ApparentAuthority AuthoritybyEstoppel
regarding things belonging to the Ariseswhentheprincipal,
principal or when the principal Thatwhichisthough byhisculpablenegligence,
ratifies the contract or derives notactuallygranted, permitshisagentto
benefittherefrom theprincipal exercisepowersnot
knowinglypermitsthe grantedtohim,even
2. Withoutauthority agenttoexerciseor thoughtheprincipalmay
a. Inprincipalsnameunauthorized holdshimoutas havenonoticeor
possessing knowledgeoftheagents
and unenforceable but may be
conduct
ratified, in which case, may be
Foundedinconscious Foundedontheprincipals
validated retroactively from the
permissionofacts negligenceinfailing
beginning
beyondthepowers properlytosupervisethe
b. In his own name valid on the granted affairsoftheagent
agent,butnotontheprincipal
Q: Can an agent maintain an action against
Q: What are the distinctions between authority personswithwhomtheycontractedonbehalfof
andtheprincipalsinstructions? hisprincipal?

A: A:No.Agentsarenotapartywithrespecttothat
AUTHORITY INSTRUCTIONS
contractbetweenhisprincipalandthirdpersons.
Contemplatesonlya
As agents, they only render some service or do
Sumtotalofthepowers privateruleofguidance
somethinginrepresentationoronbehalfoftheir
committedtotheagent totheagent;
principals.Therenderingofsuchservicedidnot
bytheprincipal independentand
distinctincharacter make them parties to the contracts of sale
Relatestothe executedinbehalfofthelatter.
subject/businesswith
whichtheagentis Referstothemanneror The fact that an agent who makes a contract for
empoweredtodealor modeofagentsaction his principal will gain or suffer loss by the
act performance or nonperformance of the contract
Limitationsofauthority Withoutsignificanceas by the principal or by the other party thereto
areoperativeasagainst againstthosewith doesnotentitlehimtomaintainanactiononhis
thosewhohave/charged neitherknowledgenor ownbehalfagainsttheotherpartyforitsbreach.
withknowledgeofthem noticeofthem An agent entitled to receive a commission from
Contemplatedtobe Notexpectedtobe his principal upon the performance of a contract
madeknowntothird madeknowntothose which he has made on his principal's account
personsdealingwiththe withwhomtheagent does not, from this fact alone, have any claim
agent deals againsttheotherpartyforbreachofthecontract,
either in an action on the contract or otherwise.
Q:Whenistheprincipalboundbytheactualor Anagentwhoisnotapromiseecannotmaintain
apparentauthorityoftheagent? an action at law against a purchaser merely
because he is entitled to have his compensation
A:Theprincipalisboundbytheactsoftheagent oradvancespaidoutofthepurchasepricebefore
on his behalf, whether or not the third person payment to the principal. (Uy v. CA, G.R. No.
dealingwiththeagentbelievesthattheagenthas 120465,Sept.9,1999)
actual authority, so long as the agent has actual
authority,expressorimplied.

361

SUMMARYOFRULES;ACTSOFANAGENT

Inbehalfoftheprincipal,withinthescopeofauthority
1. Bindsprincipal;
2. Agentnotpersonallyliable

Withoutorbeyondscopeofauthority
Contractisunenforceableasagainsttheprincipalbutbindstheagenttothethirdperson

Bindingontheprincipalwhen:
1. Ratifiedor
2. Theprincipalallowedtheagenttoactasthoughhehadfullpowers

Withinthescopeofauthoritybutintheagentsname
1. Notbindingontheprincipal;
2. Principalhasnocauseofactionagainstthe3rdpartiesandviceversa

Note:Whenthetransactioninvolvesthingsbelongingtotheprincipal:
Remedyoftheprincipaldamagesforagentsfailuretocomplywiththeagency

Withinthescopeofthewrittenpowerofattorneybutagenthasactuallyexceededhisauthorityaccording
toanunderstandingbetweenhimandtheprincipal
1. Insofaras3rdpersonsareconcerned(notrequiredtoinquirefurtherthanthetermsofthewritten
power,agentactedwithinscopeofhisauthority;
2. Principalestopped

Withimpropermotives
Motiveisimmaterial;aslongaswithinthescopeofauthority,valid

Withmisrepresentationsbytheagent
1. Authorizedprincipalstillliable
2. Beyondthescopeoftheagentsauthority
GR:Principalnotliable

XPN:Principaltakesadvantageofacontractorreceivesbenefitsmadeunderfalserepresentationofhis
agent

Mismanagementofthebusinessbytheagent
1. Principalstillresponsiblefortheactscontractedbytheagentwithrespectto3rd persons;
2. Principal,however,mayseekrecoursefromtheagent

Tortcommittedbytheagent
Principalcivillyliablesolongasthetortiscommittedbytheagentwhileperforminghisdutiesinfurtherance
oftheprincipalsbusiness

Agentingoodfaithbutprejudices3rd parties
Principalisliablefordamages

B.EXCEPTION

Q:Whenistheactofanagentnotbindingtothe
principal?

A:Ifanagentactsinhisownname.Insuchcase,
theagentistheonedirectlyboundinfavorofthe
person with whom he has contracted, as if the
transactionwerehisown.(Art.1883,NCC)

362 CIVILLAWTEAM:

AGENCY
III.EXPRESSVS.IMPLIEDAGENCY Q:Distinguishagencyfromleaseofservices.

Q:Distinguishexpressandimpliedagency. A:
AGENCY LEASEOFSERVICES
A: Agentrepresentsthe Workerorlessorof
principal servicesdoesnot
EXPRESSAGENCY IMPLIEDAGENCY representhisemployer
Astodefinition Relationshipcanbe
Onewheretheagent Generally,relationship
terminatedatthewill
hasbeenactually canbeterminatedonly
Onewhichisimpliedfrom ofeitherprincipalor
authorizedbythe atthewillofboth
theactsoftheprincipal, agent
principal,eitherorally
Agentexercises Employeehasministerial
orinwriting
discretionarypowers functions
Astoauthority

Whenitisincidentaltothe
transactionorreasonably
Q:Distinguishagencyfromtrust.
necessarytoaccomplishthe
Whenitisdirectly purposeoftheagency,and A:
conferredbywords therefore,theprincipalis AGENCY TRUST
deemedtohaveactually Agentusuallyholds Trusteemayholdlegal
intendedtheagentto notitleatall titletotheproperty
possess Agentusuallyactsin
Trusteemayactinhis
thenameofthe
ownname
Q:Distinguishagencyfromguardianship. principal
Trustusuallyendsbythe
Agencyusuallymay
A: accomplishmentofthe
beterminatedor
AGENCY GUARDIANSHIP purposesforwhichitwas
revokedanytime
Agentrepresentsa Guardianrepresentsan formed
capacitatedperson incapacitatedperson Agencymaynotbe
Agentderives Trustinvolvescontrol
Guardianderivesauthority connectedatallwith
authorityfromthe overproperty
fromthecourt property
principal Trusteedoesnot
Agentisappointedby Agenthasauthority
Guardianisappointedby necessarilyoreven
theprincipalandcan tomakecontracts
thecourt,andstandsin possesssuchauthorityto
beremovedbythe whichwillbebinding
locoparentis bindthetrustororthe
latter onhisprincipal
cestuiquetrust
Agentissubjectto Guardianisnot subjectto
directionsofthe thedirectionsoftheward, Agencyisreallya Trustmaybetheresultof
principal butmustactforthewards contractualrelation acontract,itmayalsobe
benefit createdbylaw
Agentcanmakethe Guardianhasnopowerto
principalpersonally imposepersonalliability
liable ontheward IV.AGENCYBYESTOPPEL

Q: Distinguish agency from judicial Q:Whenisthereanagencybyestoppel?
administration.
A: When one leads another to believe that a
A: certain person is his agent, when as a matter of
AGENCY JUDICIALADMINISTRATION fact such is not true, and the latter acts on such
Agentisappointed JudicialAdministratoris misrepresentation, the former cannot disclaim
bytheprincipal appointedbythecourt liability,forhehascreatedanagencybyestoppel.
Representsnotonlythe (Paras, Civil Code of the Philippines Annotated,
Representsthe th
Vol.V,p.558,6 ed)
courtbutalsotheheirsand
principal
creditorsoftheestate
Agentdoesnotfile JudicialAdministratorfilesa Q:Whataretherulesregardingestoppelin
abond bond agency?
Agentiscontrolled Hisactsaresubjectto
bytheprincipal specificordersfromthe A:
thrutheagreement court 1. Estoppel of agent One professing to
act as agent for another may be
363

estopped to deny his agency both as liable
against his asserted principal and the
third persons interested in the
transactioninwhichheengaged. V.GENERALvs.SPECIALAGENCY

2. Estoppelofprincipal Q:Distinguishageneralagentfromaspecial
a. AstoagentOnewhoknowsthat agent?
another is acting as his agent and
fails to repudiate his acts, or A:
accepts the benefits, will be GeneralAgent SpecialAgent
estopped to deny the agency as ScopeofAuthority
againsttheother. Specificactsin
b. As to subagent To estop the Allactsconnectedwith pursuanceofparticular
principal from denying his liability thebusinessor instructionsorwith
to a third person, he must have employmentinwhichhe restrictionsnecessarily
known or be charged with isengaged impliedfromtheactto
knowledge of the fact of the bedone
transaction and the terms of the NatureofServiceAuthorized
agreementbetweentheagentand Involvescontinuityof
Nocontinuityofservice
subagent. service
c. As to third persons One who ExtenttowhichtheAgentmayBindthePrincipal
knowsthatanotherisactingashis Maybindhisprincipalby
Cannotbindhisprincipal
anactwithinthescope
agent or permitted another to inamannerbeyondor
ofhisauthorityalthough
appearashisagent,totheinjuryof outsidethespecificacts
itmaybecontrarytothe
third persons who have dealt with whichheisauthorizedto
lattersspecial
theapparentagentassuchingood perform
instructions
faith and in the exercise of TerminationofAuthority
reasonable prudence, is estopped Apparentauthoritydoes Dutyimposeduponthe
todenytheagency. notterminatebymere thirdpartytoinquire
revocationofhis makesterminationofthe
3. Estoppel of third persons A third authoritywithoutnotice relationshipeffective
person, having dealt with one as agent tothethirdparty uponrevocation
maybeestoppedtodenytheagencyas ConstructionofPrincipalsInstruction
against the principal, agent, or third Strictlyconstruedasthey
Merelyadvisoryin
personsininterest. limittheagents
nature
authority
4. Estoppel of the government The
government is neither estopped by the Q:Whoisafactor/commissionagent?
mistake or error on the part of its
agents. A: It is one engaged in the purchase and sale of
personal property for a principal, which, for this
Q:Distinguishimpliedagencyfromagencyby purpose,hastobeplacedinhispossessionandat
estoppel. hisdisposal.

A: Q:Whoisabroker?
IMPLIEDAGENCY AGENCYBYESTOPPEL
Astoliabilitybetweenprincipalandagent A: He is a middleman or intermediary who in
Ifcausedbytheagent,he behalf of others and for a commission or fee
Agentisatrueagent,
isnotconsideredatrue negotiates contracts/transactions relating to real
withrightsandduties
agent,hence,hehasno orpersonalproperty.
ofanagent
rightsassuch
Astoliabilitytothirdpersons Q:Whatisfactorage?
1. If caused by the
principal, he is liable, A: It is the compensation of a factor or
1. The principal is
but only if the 3rd commissionagent.
alwaysliable
person acted on the
2. Theagentisnever
misrepresentation;
personallyliable
2. If caused by the agent
alone,onlytheagentis
364 CIVILLAWTEAM:

AGENCY
Q:Whatisordinarycommission? cannotbeadmittedinevidenceunlessitiscertified
as such in accordance with the foregoing provision
A: It is the compensation for the sale of goods of the rules by a secretary of embassy or legation,
which are placed in the agents possession or at consulgeneral,consul,viceconsul,orconsularagent
hisdisposal or by any officer in the foreign service of the
Philippinesstationedintheforeigncountryinwhich
Q:Whatisguarantycommission? the record is kept of said public document and
authenticated by the seal of his office. (Medina v.
Natividad,G.R.No.177505,Nov.27,2008)
A:Itisthefeewhichisgiveninreturnfortherisk

that the agent has to bear in the collection of The failure to have the special power of attorney
credits. (executedinaforeigncountry)authenticatedisnot
merelyatechnicalityitisaquestionofjurisdiction.
VI.AGENCYCOUCHEDINGENERALTERMS Jurisdiction over the person of the real partyin
interestwasneveracquiredbythecourts.(Ibid.)
Q:Whatisanagencycouchedingeneralterms?
Q:Whenisaspecialpowernecessary?
A:Onewhichiscreatedingeneraltermsandis
deemedtocompriseonlyactsofadministration A:CALLMOSPRINGCOW
(Art.1877,NCC).
1. to Create or convey real rights over
VII.AGENCYREQUIRINGSPECIALPOWEROF immovableproperty;
ATTORNEY 2. ConveyorAcquireimmovable
3. to Loan or borrow money, unless the
Q:Whatisspecialpowerofattorney(SPA)? latter act be urgent and indispensable
forthepreservationofthethingswhich
A: It is an instrument in writing by which one areunderadministration;
person,asprincipal,appointsanotherashisagent 4. to Lease any real property to another
and confers upon him the authority to perform personformorethanoneyear;
certainspecifiedactsorkindsofactsonbehalfof 5. to Make such Payments as are not
the principal; primary purpose is to evidence usually considered as acts of
agents authority to third parties within whom administration;
theagentdeals. 6. to Obligate principal as guarantor or
surety
Q: Should SPA be in writing and notarized in 7. to bind the principal to render some
ordertobevalid? Servicewithoutcompensation;
8. to bind the principal in a contract of
A:No.SPAisnotrequiredtobeinwritingand Partnership;
neednotbenotarizedinordertobevalid.(De 9. to Ratify obligations contracted before
Leon,CommentsandCasesonPartnership, theagency
Agency,andTrust,p.443,2005ed) 10. toAcceptorrepudiateanInheritance
11. EffectNovation
Q:Istheinterventionofanotarypublicrequired 12. to make Gifts, except customary ones
forthevalidityofanSPA? forcharityorthosemadetoemployees
inthebusinessmanagedbytheagent
A: 13. Compromise, Arbitration and
GR: A power of attorney is valid although no ConfessionofJudgment
notary public intervened in its execution. 14. anyOtheractofstrictdominion
(Barrettov.Tuason,G.R.Nos.L36811,36827, 15. Waiveanobligationgratuitously
36840, 36872, Mar. 31, 1934) (De Leon, p.
443,2005ed) Q:Whatarethelimitationstoaspecialpowerof
attorney?
XPN: When SPA is executed in a foreign
country, it must be certified and A:
authenticatedaccordingtotheRulesofCourt, 1. A special power to sell excludes the
particularlySec.25,Rule132. powertomortgage
2. A special power to mortgage does not
Note: When the special power of attorney is include the power to sell (Art. 1879,
executed and acknowledged before a notary public NCC)
or other competent official in a foreign country, it
365

3. A special power to compromise does 3. When the agent incurred them with
not authorize submission to arbitration knowledge that an unfavorable result
(Art.1880,NCC) would ensue, if the principal was not
awarethereof;or
VIII.AGENCYBYOPERATIONOFLAW 4. When it was stipulated that the
expenseswouldbebornebytheagent,
Q: When is an agency created by operation of orthatthelatterwouldbeallowedonly
law? acertainsum.

A: When the agent withdraws from the agency Q:Whatistheliabilityoftheprincipalregarding
for a valid reason, he must continue to act until contractsenteredintobytheagent?
theprincipalhashadareasonableopportunityto
takethenecessarystepsliketheappointmentof A:
a new agent to remedy the situation caused by GR: The principal must comply with all the
thewithdrawal.(Art.1929,NCC) obligations which the agent may have
contractedwithinthescopeofhisauthority.
IX.RIGHTSANDOBLIGATIONSOFPRINCIPAL
XPN:Wheretheagentexceededhisauthority.
Q: What are the obligations of the principal to
theagent? XPNtotheXPN:Whentheprincipalratifiesit.

A:To: Note: Even if the agent has exceeded his authority,
1. comply with all obligations which the theprincipalissolidarilyliablewiththeagentifthe
agent may have contracted within the formerallowedthelattertoactasthoughhehadfull
scopeofhisauthority(Art.1910,NCC); powers(Art.1911,NCC)
2. advancetotheagent,shouldthelatter
so request, the sums necessary for the Q: CX executed a special power of attorney
execution of the agency (Art. 1912, authorizing DY to secure a loan from any bank
NCC); and to mortgage his property covered by the
3. reimburse the agent for all advance owners certificate of title. In securing a loan
madebyhim,providedtheagentisfree from M Bank, DY did not specify that he was
fromfault(Ibid.); actingforCXinthetransactionwiththebank.Is
4. indemnify the agent for all damages CXliableforthebankloan?
whichtheexecutionoftheagencymay
have caused the latter without fault or A: While as a general rule the principal is not
negligenceonhispart(Art.1913,NCC); liableforthecontractenteredintobyhisagentin
and case the agent acted in his own name without
5. paytheagentthecompensationagreed disclosinghisprincipal,suchruledoesnotapplyif
upon, or if no compensation was the contract involves a thing belonging to the
specified, the reasonable value of the principal.Insuchcase,theprincipalisliableunder
agents services. (De Leon, Comments Art. 1883, NCC. The contract is deemed made in
and Cases on Partnership, Agency, and his behalf. (SyJuco v. SyJuco, G.R. No. L13471,
Trust,pp.545555,2005ed) Jan.12,1920)(2004BarQuestion)

Q: Is the principal liable for the expenses Q: What is the liability of the principal for tort
incurredbytheagent? committedbytheagent?

A: A:
GR:Yes. GR: Where the fault or crime committed by
the agent is not in the performance of an
XPNs: obligation of the principal, the latter is not
1. If the agent acted in contravention of boundbytheillicitactsoftheagent,evenifit
the principal's instructions, unless isdoneinconnectionwiththeagency.
principal derives benefits from the
contract; XPNs:
2. When the expenses were due to the 1. Where the tort was committed by the
faultoftheagent; agent because of defective instructions
from the principal or due to lack of
366 CIVILLAWTEAM:

AGENCY
necessaryvigilanceorsupervisiononhis preservationofthegoodsforwardedto
part;or himbytheownerincasehedeclinesan
2. When the tort consists in the agency,untilanagentisappointed(Art.
performance of an act which is within 1885,NCC)
the powers of an agent but becomes 5. advance the necessary Funds should
criminal only because of themanner in there be a stipulation to do so (Art.
which the agent has performed it; the 1886,NCC)
principal is civilly liable to 3rd persons 6. Act in accordance with the instructions
whoactedingoodfaith. of the principal, and in default thereof,
to do all that a good father of a family
Q:Whenistheprincipalnotboundbytheactof woulddo(Art.1887,NCC)
theagent? 7. Not to carry out the agency of its
execution would manifestly result in
A: loss or damage to the principal (Art.
1. GR:Whentheactiswithoutorbeyond 1888,NCC)
the scope of his authority in the 8. Answer for damages if there being a
principalsname. conflictbetweenhisinterestsandthose
of the principal, he should prefer his
XPNs: own(Art.1889,NCC)
a. Where the acts of the principal 9. not to Loan to himself if he has been
have contributed to deceive a 3rd authorized to lend money at interest
personingoodfaith (Art.1890,NCC)
b. Where the limitation upon the 10. render an Account of his transactions
power created by the principal andtodelivertotheprincipalwhatever
couldnothavebeenknownbythe he may have received by virtue of the
rd
3 person agency(Art.1891,NCC)
c. Where the principal has placed in 11. Distinguish goods by countermarks and
thehandsoftheagentinstruments designate the merchandise respectively
signedbyhiminblank belonging toeach principal, in the case
d. Where the principal has ratified of a commission agent who handles
theactsoftheagent goodsofthesamekindandmark,which
belong to different owners (Art. 1904,
2. Whentheactiswithinthescopeofthe NCC)
agents authority but in his own name, 12. be Responsible in certain cases for the
except when the transaction involves actsofthesubstituteappointedbyhim
thingsbelongingtotheprincipal. (Art.1890,NCC)
13. Payinterestonfundshehasappliedto
Note:Thelimitsoftheagentsauthorityshallnotbe hisownuse(Art.1896,NCC)
consideredexceededshouldithavebeenperformed 14. Inform the principal, where an
in a manner more advantageous to the principal authorized sale of credit has been
thanthatspecifiedbyhim. made,ofsuchsale(Art.1906,NCC)
15. Bear the risk of collection and pay the
RESPONSIBILITIESANDOBLIGATIONSOFAN principaltheproceedsofthesaleonthe
AGENT same terms agreed upon with the
purchaser, should he receive also on
Q:Whatarethespecificobligationsofanagent sale, a guarantee commission (Art.
totheprincipal? 1907,NCC)
16. Indemnifytheprincipalfordamagesfor
A:CAFOFANALADRIPBIR his failure to collect the credits of his
1. Carry out the agency which he has principal at the time that they become
accepted due(Art.1908,NCC)
2. Answer for damages which through his 17. be Responsible for fraud or negligence
nonperformance the principal may (Art. 1909, NCC; De Leon, Comments
suffer and Cases on Partnership, Agency, and
3. Finish the business already begun on Trust,pp.478479,2005ed)
the death of the principal should delay
entailanydanger Note: Every stipulation exempting the agent from
4. Observe the diligence of a good father the obligation to render an account shall be void
of a family in the custody and (par.2,Art.1891,NCC)
367

Q: In case of breach of loyalty, is the agent still XPN:Ifitsexecutioncouldmanifestlyresultin
entitledtocommission? lossordamagetotheprincipal

A:No,Theforfeitureofthecommissionwilltake Q: What are the instances when the agent may
place regardless of whether the principal suffers incurpersonalliability?
any injury by reason of such breach of loyalty. It
does not even matter if the agency is for a A:
gratuitous one, or that the principal obtained 1. Agentexpresslyboundhimself;
betterresults,orthatusageandcustomsallowa 2. Agentexceedshisauthority;
receiptofsuchabonus. 3. Acts of the agent prevent the
performance on the part of the
Note:Anagenthasanabsolutedutytomakeafull principal;
disclosure or accounting to his principal of all 4. When a person acts as agent without
transactionsandmaterialfactsthatmayhavesome authorityorwithoutaprincipal;or
relevance with the agency. (Domingo v. Domingo, 5. A person who acts as an agent of an
G.R.No.L30573,Oct.29,1971) incapacitated principal unless the third
person was aware of the incapacity at
Q: When is the obligation to account not thetimeofthemakingofthecontract.
applicable?
Q:Whatisthescopeoftheagentsauthorityas
A: tothirdpersons?
1. Iftheagentactedonlyasamiddleman
with the task of merely bringing A: It includes not only the actual authorization
togetherthevendorandvendees; conferredupontheagentbyhisprincipalbutalso
2. If the agent informed the principal of that which is apparent or impliedly delegated to
the gift/bonus/profit he received from him.
the purchaser and his principal did not
objectthereto;or Q: Is the third person required to inquire into
3. Where a right of lien exists in favor of theauthorityoftheagent?
theagent.
A:
Q: What is the responsibility of two or more 1. WhereauthorityisnotinwritingEvery
agentsappointedsimultaneously? person dealing with an assumed agent
must discover upon his peril, if he
A: wouldholdtheprincipalliable,notonly
GR:Jointlyliable. the fact of the agency but the nature
and extent of the authority of the
XPN:Solidarityhasbeenexpresslystipulated. agent.
Each of the agents becomes solidarily liable 2. Where authority is in writing 3rd
for: personisnotrequiredtoinquirefurther
1. thenonfulfillmentoftheagency;or thanthetermsofthewrittenpowerof
2. faultornegligenceofhisfellowagent. attorney.

XPN to the XPN: When one of the other Note:Athirdpersonwithwhomtheagentwishesto
agentsactsbeyondthescopeofhisauthority contract on behalf of the principal may require the
innocentagentisnotliable. presentation of the power of attorney or the
instructionsasregardstheagency.
Note: An innocent agent has a right later on to
recoverfromtheguiltyornegligentagent.
Q: What is the rule with regard to the
Q:Whatistherulewithregardtotheexecution advancementoffundsbytheagent?
oftheagency?
A:
A: GR: There must be a stipulation in the
GR: The agent is bound by his acceptance to contract that the agent shall advance the
carryouttheagency,andisliablefordamages necessaryfunds
which, through his nonperformance, the
principalmaysuffer. XPN:Whentheprincipalisinsolvent.

368 CIVILLAWTEAM:

AGENCY
RIGHTSOFAGENTS commission of a crime, he cannot escape

punishment on the ground that he simply acted
Q:Whataretheinstanceswhentheagentmay asanagentofanotherparty.(Ongv.CA,G.R.No.
retaininpledgetheobjectoftheagency? 119858,Apr.29,2003)

A:
1. If principal fails to reimburse the agent X.IRREVOCABLEAGENCY
the necessary sums, including interest,
which the latter advanced for the Q:Whenisagencyirrevocable?
execution of the agency (Art. 1912,
NCC);or A:
2. If principal fails to indemnify the agent 1. Ifabilateralcontractdependsuponit
for all damages which the execution of 2. if it is the means of fulfilling an
theagencymayhavecausedthelatter, obligationalreadycontracted
without fault or negligence onhis part. 3. ifpartnerisappointedmanagerandhis
(Art.1913,NCC) removal from the management is
unjustifiable.(Art1927)
Q: What is the rule where two persons deal 4. if it has been constituted in the
separatelywiththeagentandtheprincipal? common interest of the principal and
theagent(Art.1930)
A:Ifthetwocontractsareincompatiblewitheach 5. Stipulationpouratrui
other, the one of prior date shall be preferred.
Thisissubjecthowevertotheruleondoublesale Q: How may the agent withdraw from the
underArt.1544,NCC. agency?

Note:Rulesofpreferenceindoublesale A: The agent may withdraw from the agency by
1. Personal property possessor in good giving due notice to the principal. If the latter
faith should suffer any damage by reason of the
2. Realproperty withdrawal, the agent must indemnify him
a. Registrantingoodfaith therefor, unless the agent should base his
b. Possessoringoodfaith withdrawal upon the impossibility of continuing
c. Person with the oldest title in good the performance of the agency without grave
faith(Art.1544,NCC)
detrimenttohimself.(1736a)
If agent acted in good faith, the principal shall be

liable for damages to the third person whose NOTE: The agent, even if he should withdraw from
contractmustberejected.Ifagentisinbadfaith,he the agency for a valid reason, must continue to act
aloneshallbeliable.(Art.1917,NCC) untiltheprincipalhashadreasonableopportunityto
takethenecessarystepstomeetthesituation.
PROHIBITEDACTSOFANAGENT

Q:Whataretheprohibitedactsofanagent? XI.MODESOFEXTINGUISHMENT

A: Q: What is presumption of continuance of
1. Personalacts agency?
2. Criminalorillegalacts
A: It means that when once shown to have
Note:e.g.: existed, an agency relation will be presumed to
1. Righttovote havecontinued,intheabsenceofanythingwhich
2. Makingofawill showsitstermination.
3. Underoathstatements
4. Attendingboardmeetingsofcorporations.
(DeLeon,p.358,2005ed)

Q: Can a person acting as an agent escape
criminal liability by virtue of the contract of
agency?
A: No. The law on agency has no application in

criminalcases.Whenapersonparticipatesinthe
369

Q: What are the essential elements for 3. a partner is appointed manager of a
continuanceofagency? partnership and his termination is
unjustifiable
A:Bothprincipalandagentmustbe: 4. itiscreatednotonlyfortheinterestof
1. Present theprincipalbutalsofortheinterestof
2. Capacitated thirdpersons
3. Solvent (De Leon, Comments and Cases
on Partnership, Agency, and Trust, p. XPN to the XPN: When the agent acts to
610,2005ed) defraudtheprincipal.

Q:Cantheheirscontinuetheagency? Q:Whatarethekindsofrevocation?

A: A: Revocation may either be express or implied.
GR:No. (De Leon, Comments and Cases on Partnership,
Agency,andTrust,p.625,2005ed)
Ratio: The agency calls for personal services
onthepartoftheagentsinceitisfoundedon Q:Howisagencyimpliedlyrevoked?
afiduciaryrelationship;rightsandobligations
intransmissible. A:Principal:
1. appoints a new agent for the same
XPNs: business or transaction (Art. 1923,
1. Agency by operation of law, or a NCC);
presumedortacitagency 2. directly manages the business
2. Agency is coupled with an interest in entrustedtotheagent(Art.1924,NCC);
the subject matter of the agency (e.g. or
powerofsaleinamortgage) 3. after granting general power of
attorney, grants a special one to
Q: What are the modes of extinguishing an another agent which results in the
agency? revocationoftheformerasregardsthe
special matter involved in the latter.
A:EDWARD (Art.1926,NCC)
1. Expirationoftheperiod
2. Death, civil interdiction, insanity or Q: How is agency revoked when the agent has
insolvencyofprincipaloroftheagent beenappointedbytwoormoreprincipals?
3. Withdrawalbytheagent
4. Accomplishment of the object or the A:Anyoneoftheprincipalsisgrantedtherightto
purposeoftheagency revoke the power of attorney without the
5. Revocation consentoftheothers.
6. Dissolution of the firm or corporation
which entrusted or accepted the Q:Isnoticeofrevocationnecessary?
agency.
A:
Note: The list is not exclusive; May also be 1. As to the agent Express notice is not
extinguished by the modes of extinguishment of necessary; sufficient notice if the party
obligationsingeneralwhenevertheyareapplicable, to be notified actually knows, or has
likelossofthethingandnovation. reason to know, a fact indicating that
his authority has been
REVOCATION terminated/suspended; revocation
without notice to the agent will not
Q:Isacontractofagencyrevocable? renderinvalidanactdoneinpursuance
oftheauthority
rd
A: 2. As to 3 persons Express notice is
GR: Yes. Agency is revocable at will by the necessary
principal. a. As to former customers Actual
notice must be given to them
XPNs:Itcannotberevokedif: because they always assume the
1. abilateralcontractdependsuponit continuance of the agency
2. itisthemeansoffulfillinganobligation relationship
alreadycontracted
370 CIVILLAWTEAM:

AGENCY
b. As to other persons Notice by A: No.Eduardo and Zenaida entered into a

publicationisenough partnership with regard to the NIA project. Also,
Eduardo was present when Zenaida contracted
Note: There is implied revocation of the previous withManuel.UnderArt.1818,NCC,everypartner
agencywhentheprincipalappointsanewagentfor isanagentofthepartnershipforthepurposeof
the same business or transaction, provided there is itsbusinessandeachonemayseparatelyexecute
incompatibility.Buttherevocationdoesnotbecome allactsofadministration,unless,underArt.1801,
effective as between the principal and the agent NCC,aspecificationoftheirrespectivedutieshas
untilitisinsomewaycommunicatedtothelatter. beenagreedupon,orelseitisstipulatedthatany
oneofthemshallnotactwithouttheconsentof
Q:Whatistheeffectofthedirectmanagement all the others. (Mendoza v. Paule, G.R. No.
bytheprincipal? 175885,Feb.13,2009)

A: DEATH
GR:Theagencyisrevokedfortherewouldno
longer be any basis for the representation Q: What is the effect of death of a party to the
previously conferred. But the principal must contractofagency?
act in good faith and not merely to avoid his
obligationtotheagent. A:
GR:Theagencyisterminatedbythedeathof
XPN: The only desire of the principal is for the principal even if the agency is for a
him and the agent to manage the business definiteperiod.
together.
XPNs:
Q:RichardsoldalargeparceloflandinCebuto 1. If it has been constituted in common
Leo for P100 million payable in annual interest of the principal and the agent
installmentsoveraperiodoftenyears,buttitle or in the interest of the third person
willremainwithRicharduntilthepurchaseprice who accepted the stipulation in his
is fully paid. To enable Leo to pay the price, favor;or
Richard gave him a powerofattorney 2. Anythingdonebytheagentwithoutthe
authorizing him to subdivide the land, sell the knowledgeofthedeathoftheprincipal
individual lots, and deliver the proceeds to or on any other cause which
Richard,tobeappliedtothepurchaseprice.Five extinguishes the agency is valid and
years later, Richard revoked the power of shall be effective on third persons who
attorney and took over the sale of the may have contracted with him in good
subdivision lots himself. Is the revocation valid faith.
ornot?Why?
Q:Isthesaleofthelandbytheagentafterthe
A: The revocation is not valid. The power of deathoftheprincipalvalid?
attorneygiventothebuyerisirrevocablebecause
it is coupled with an interest the agency is the A:Article1931,NCCprovidesthatanactdoneby
means of fulfilling the obligation of the buyer to theagentafterthedeathoftheprincipalisvalid
paythepriceoftheland(Art.1927,NCC).Inother andeffectiveifthesetworequisitesconcur:
words, a bilateral contract (contract to buy and 1. that the agent acted without the
sell the land) is dependent on the agency. (2001 knowledgeofthedeathoftheprincipal;
BarQuestion) and
2. that the third person who contracted
Q: Eduardo executed a SPA authorizing Zenaida with the agent himself acted in good
to participate in the prequalification and faith.
biddingofaNIAprojectandtorepresenthimin
all transactions related thereto. It was granted Goodfaithheremeansthatthethirdpersonwas
to them. Zenaida leased Manuels heavy not aware of the death of the principal at the
equipment to be used for the NIA project. timethathecontractedwithsaidagent.(Rallosv.
Manuel interposed no objection to Zenaidas FelixGoChan,G.R.No.L24332,Jan.31,1978)
actuations. Eduardo later revoked the SPA
allegingthatZenaidaactedbeyondherauthority
in contracting with Manuel under the SPA.
Decide.
371

CHANGEOFCIRCUMSTANCESSURROUNDING
TRANSACTION

Q:Whatistheeffectofachangeofcircumstance
surroundingthetransaction?

A:
GR:Theauthorityoftheagentisterminated.

XPNs:
1. If the original circumstances are
restored within a reasonable period of
time, the agent's authority may be
revived;
2. Wheretheagenthasreasonabledoubts
as to whether the principal would
desire him to act, his authority will not
beterminatedifheactsreasonably;or
3. Where the principal and agent are in
close daily contact, the agent's
authoritytoactwillnotterminateupon
a change of circumstances if the agent
knows the principal is aware of the
change and does not give him new
instructions. (De Leon, pp. 616617,
2005ed)

WITHDRAWALBYTHEAGENT

Q:Cantheagentwithdrawfromtheagency?

A: Yes. The agent may renounce or withdraw
fromtheagencyatanytime,withouttheconsent
of the principal, even in violation of the latters
contractualrights;subjecttoliabilityforbreachof
contractorfortort.

Q: What are the kinds of withdrawal by the
agent?

A:
3. Without just cause The law imposes
upon the agent the duty to give due
noticetotheprincipalandtoindemnify
the principal should the latter suffer
damagebyreasonofsuchwithdrawal.
4. With just cause The agent cannot be
heldliable.
372 CIVILLAWTEAM:

COMPROMISE
COMPROMISE Q:XisindebtedtoYintheamountofP50,000
with the stipulation that the same shall earn
I.DEFINITION interest at 40% per annum. When X failed to
pay,Ysuedhim.Inanefforttosettlethecase,X
Q:Whatisacompromise? offered to pay the principal but begged for the
reduction of the interest. Y refused,hence, trial
A: A compromise is a contract whereby the wasconducted.Canthejudgereducetherateof
parties, by making reciprocal concessions, avoid interest?
litigation or put an end to one already
commenced.(Art.2028,NCC) A:Yes.Thecourtsmaymitigatethedamagetobe
paidbythelosingpartywhohasshownasincere
Q: What are the characteristics of a desireforacompromise.(Art.2031,NCC)
compromise?
Q: Can there be a compromise on the criminal
A: aspectofacrime?
1. Consensual
2. Reciprocal A: None. There may be a compromise upon the
3. Nominate civil liability arising from an offense; but such
4. Onerous compromiseshallnotextinguishthepublicaction
5. Accessory (in the sense that a prior fortheimpositionofthelegalpenalty.(Art.2034,
conflictispresupposed) NCC)
6. Once accepted, it is Binding on the
parties, provided there is no vitiated II.VOIDCOMPROMISE
consent(McCarthyv.BarberSteamship
Lines,45Phil.488). Q:Whenisacompromisevoid?
7. It is the Settlement of a controversy
principally, and is but merely A:
incidentally, the settlement of a claim. 1. Civilstatus
(Ibid) 2. Validity of a marrieage or a legal
separation
Q:Whatarethekindsofcompromise? 3. Anygroundforlegalseparation
4. Futuresupport
A: 5. Jurisdictionofcourts
1. Judicialtoendapendinglitigation 6. Futurelegitime
2. Extrajudicial to prevent a litigation
fromarising III.EFFECT

Q:Whatisthebasicdutyofacourtwhenevera Q: What is theeffect if two parties enterintoa
suitisfiled? compromise?

A: The court shall endeavor to persuade the A:Ithastheeffectofresjudicata.Acompromise
litigants in a civil case to agree upon some fair has upon the parties the effect and authority of
compromise.(Art.2029,NCC) resjudicata.(Art.2037,NCC)

Q: What circumstances may a proceeding in a Q:Whatrequirementisnecessaryinorderthata
civilactionbesuspended? compromisebeexecuted?

A: A:Inorderthatacompromisemaybeexecuted,
1. If willingness to discuss a possible there must be approval of the court. (Art 2037,
compromise is expressed by one or NCC)
bothparties;or
2. if it appears that one of the parties, Q: A and B entered into a compromise
before the commencement of the agreement.Aweekthereafter,Bfiledanaction
actionorproceeding,offeredtodiscuss in court seeking to annul the compromise
a possible compromise but the other agreementcontendingthatitisonesided.Isthe
partyrefusedtheoffer. actionproper?

373

A: No, because where the compromise is therefore, that a compromise agreement, not
instituted and carried through in good faith, the tainted with infirmity, irregularity, fraud or
factthattherewasamistakeastothelaworas illegalityisthebetweenthepartieswhoareduty
to the facts, except in certain cases where the boundtoabidebyitandobservestrictlyitsterms
mistake was mutual and correctible as such in and conditions. (Esguerra v. CA, GR 119310,
equity, cannot afford a basis for setting aside a February3,1997)
compromise. Compromises are favored without
regard to the nature of the controversial
compromise, and they cannot be set aside
becausetheeventshowsallthegainshavebeen
on one side. (Asong v. Intermediate Appellate
Court,May12,1989)

Q: X and Y entered into a compromise
agreement whereby X respected the ownership
of Y over a part of a creek (now a fishpond). Is
theagreementvalid?

A: No, because that is contrary to public policy
andthelaw.Thecreekisapropertybelongingto
theState;hence,itispartofpublicdomainwhich
is not susceptible to private appropriation and
acquisition. (Maneclang v Intermediate Appellate
Court,161SCRA469)

Q: X and Y entered into a compromise
agreement, terminating a suit between them. X
failed to comply with the terms and conditions
of the same. What are the remedies of the
aggrievedparty?

A:Ifoneofthepartiesfailsorrefusestoabideby
the compromise, the other party may either
enforcethecompromise,orregarditasrescinded
and insist upon his original demand. (Art 2041,
NCC).

Q: What is the effect of a contract or a
compromiseevenifitisdisadvantageoustoone
oftheparties?

A: It is still a valid one. It is a long established
doctrine that the law does not relieve a party
from the effects of an unwise, foolish, or
disastrous contract, entered into with all the
required formalities and with full awareness of
whatheisdoing.Courtshavenopowertorelieve
parties from obligations voluntarily assumed,
simply because their contracts turned out to be
disastrousdealsorunwiseinvestments.(Tandav.
Aldaya, 89 Phil. 497; Villacorte v. Mariano, 89
Phil.341)

It is a truism that a compromise agreement
enteredintobypartylitigants,whennotcontrary
tolaw,publicorder,publicpolicy,morals,orgood
customs is a valid contract which is the law
between the parties themselves. It follows,
374 CIVILLAWTEAM:

CREDIT TRANSACTIONS
CREDITTRANSACTIONS depend on the existence of another

contract. (e.g. commodatum and
Q:Whatiscredit? mutuum)
b. Accessory contracts They have to
A: It is a persons ability to borrow money by depend on another contract. These
virtue of confidence or trust reposed in him by accessory contracts depend on the
thelenderthathewillpaywhathemaypromise. existence of a principal contract of
loan. (e.g. guaranty proper,
suretyship, pledge, mortgage and
Q:Whatiscredittransaction?
antichresis)

A:Itreferstoagreementbasedontrustorbelief
3. Astotheirconsideration
of someone on the ability of another person to
a. Onerous This is a contract where
complywithhisobligations.
there is consideration or burden
imposedlikeinterest.
Q:Whatdocredittransactionsinclude? b. GratuitousThisisacontractwhere
there is no consideration or burden
A:Theyincludealltransactionsinvolvingloansof: imposed.(e.g.commodatum)
1. goods
2. servicew Q:Whatisbailment?
3. money extended to another either
gratuitously or onerously with a A: It is the delivery of a personal property for
promisetopayordeliverinthefuture. some particular use, or on mere deposit, upon a
contract, express or implied, that after the
Q:Whatissecurity? purposehasbeenfulfilled,itshallberedelivered
tothepersonwhodeliveredit,orotherwisedealt
A:Itissomethinggiven,deposited,orservingasa with according to his directions, or kept until he
means to ensure the fulfillment or enforcement reclaimsit,asthecasemaybe.
ofanobligationorofprotectingsomeinterestin
theproperty. Note: Generally, no fiduciaryrelationship is created
by bailment. No trusteebeneficiary relationship is
Q:Whatarethetypesofsecurity? created.

A: Q: What are the contractual bailments with
Personal: whenan individual become asurety referencetocompensation?
oraguarantor.
Real or property: when an encumbrance is A:
madeonproperty. 1. For the sole benefit of the bailor
(gratuitous)
Q:Whatarethekindsofcredittransactions? e.g.gratuitousdeposit,commodatum

A: 2. For the sole benefit of the bailee
1. Ascontractsofsecurity (gratuitous)
a. Contracts of real security These e.g.commodatum,mutuum
are contracts supported by
collateral/s or burdened by an 3. Forthebenefitofbothparties(mutual
encumbrance on property such as benefitbailments)
mortgageandpledge.
a. e.g.depositforcompensaton,
b. Contracts of personal security
involuntary deposit, pledge
These are contracts where
andbailmentsforhire:
performance by the principal debtor
is not supported by collateral/s but

only by a promise to pay or by the b. hireofthingstemporaryuse
personal undertaking or c. hire of service for work or
commitmentofanotherpersonsuch labor
asinsuretyorguaranty. d. hireofcarriageofgoodsfor
carriage
2. Astotheirexistence e. hireofcustodyforstorage
a. Principal contracts They can exist
alone. Their existence does not
375

I.LOAN Astowhetheritisfungibleornot,itdependsupon
theintentionoftheparties.
Q:Whatisloan?
Fungiblesareusuallydeterminedbynumber,weight
A: It is a contract where one of the parties ormeasure.
delivers to another, either something not
consumable so that the latter may use the same Q:Arenonfungiblethingsirreplaceable?
for a certain time and return it, in which case is
called a commodatum; or money or other A:
consumable things, upon the condition that the GR: Nonfungible things are irreplaceable.
same amount of the same kind and quality shall Theymustbereturnedtothelenderafterthe
be paid, in which case the contract is simply purposeoftheloanhadbeenaccomplished.
calledaloanormutuum(Art.1933,NCC)
XPN:Nonfungiblethingsmaybereplacedby
Q:Whatarethekindsofloan? agreement of the parties. In such case, the
contractisbarterandnotloan.
A:
1. Commodatum where the bailor Q:Distinguishloanfrom:
(lender) delivers to the bailee Credit;
(borrower) a nonconsumable thing so Discount;
that the latter may use it for a given Rentorlease;and
timeandreturnthesamething Barter.
2. Mutuum where the bailor (lender)
deliverstothebailee(borrower)money A:
or other consumable thing upon the CREDIT LOAN
conditionthatthelattershallpaysame Abilitytoborrowmoney Deliverybyonepartyandthe
amountofthesamekindandquality byvirtueofthe receiptbytheotherpartyofa
confidencereposedby givensumofmoney,uponan

thelenderuntohimthat agreement,expressedorimplied,
Q:Whatmaybetheobjectofacontractofloan?
hewillpaywhathehas torepaythesumloaned,withor

promised withoutinterest
A:Itdependsuponthekindofloan.
DISCOUNT LOAN
1. Commodatum the object is generally Interestisdeductedin Interestistakenattheexpiration
notconsumable; advance ofacredit
2. Mutuumtheobjectisconsumable. Alwaysondoublename
Generallyonasinglenamepaper
paper
Q: Distinguish consumable from non RENT LOAN
consumablethings. Theownerofproperty
doesnotlosethe
A:Athingisconsumablewhenitcannotbeused ownership;heloseshis Thethingloanedbecomesthe
in a manner appropriate to its nature without controlovertheproperty propertyoftheobligor
being consumed. (Art. 418) (e.g. food, firewood, rentedduringtheperiod
gasoline) ofcontract
Landlordtenant
Obligorobligeerelationship
On the other hand, a nonconsumable thing is a relationship
movable thing which can be used in a manner BARTER LOAN
appropriate to its nature without it being Subjectmatterarenon Subjectmatterismoneyorother
consumed.(Art.418)(e.g.car,television,radio) fungiblethings fungiblethings
Alwaysonerous Maybegratuitousoronerous
Q:Distinguishfungiblefromnonfungiblethings. Thereisamutualsale
resultinginthetransfer inmutuum,thereistransferof
A: Fungible thing is one where the parties have ofownershiponboth ownership,thereisnosale
agreedtoallowthesubstitutionofthethinggiven sides
ordeliveredwithanequivalentthing(3Manresa incommodatum,thebailee
Thepartiesdonotreturn
returnsthethingafterthe
58). Nonfungible thing is one where the parties thethingssubjectofthe
expirationoftheperiodagreed
have the intention of having the same identical exchange
upon
thingreturnedaftertheintendeduse(Ibid).

Note:Astowhetherathingisconsumableornot,it
dependsuponthenatureofthething.
376 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q:Whatisbarter? 2. thebaileeacquirestheuseofthething
3. itmustbegratuitous
A: It is a contract whereby one of the parties
bindshimselftogiveonethinginconsiderationof Q:Whatcouldbethesubjectofcommodatum?
the others promise to give another thing. (Art.
1638,NCC) A:
GR: Under Art. 1933, the subject matter of
Q: What is the legal effect of an accepted commodatum must be nonconsumable
promisetodeliversomethingbywayofmutuum becausethethingmustbereturned.
orsimpleloan?
XPN:Consumablegoodsmaybetheobjectof
A:Itisbindingupontheparties,butthemutuum commodatum if the purpose is not to
or simple loan itself shall not be perfected until consume them such as when they were
the delivery of the object of the contract (Art. loaned merely for ad ostentationem or
1934,NCC). exhibitionpurposes.Aftertheaffair,thesame
and identical goods shall be returned to the
Q: What is the effect if the loan is for an lenderorbailor(Art.1936,NCC).
unlawfulpurpose?
Q:Whatmaybetheobjectofcommodatum?
A:Iftheloanisexecutedforillegalorimmoralor
unlawfulpurposeoruse,thecontractisvoid.The A:Bothmovableandimmovablepropertymaybe
bailor may immediately recover the thing before theobjectofcommodatum.(Art.1937,NCC)
any illegal act is committed and provided he is
innocent or in good faith (Arts. 1411 and 1412, Q:Whatarethekindsofcommodatum?
NCC).
A:
A.COMMODATUMANDMUTUUM 1. Ordinary commodatum bailor cannot
just demand the return of the thing at
COMMODATUM will, because there is a period agreed
uponbytheparties.
Q:Whatiscommodatum?
2. Precarium one whereby the bailor
A:Itisacontractwhereoneoftheparties(bailor) maydemandthethingloanedatwillin
delivers to another (bailee) something not thefollowingcases:
consumable so that the latter may use the same a. ifthedurationofthecontract
foracertaintimeandthereafterreturnsit. hadnotbeenstipulated;
b. if the use to which the thing
Q: What are the characteristics of a contract of loanedshouldbedevotedhad
commodatum? notbeenstipulated;or
c. if the use of the thing is
A: merely by tolerance of the
1. Real contract delivery of the thing owner
loanedisnecessaryfortheperfectionof
thecontract Note: The word owner in Art. 1947 (2) is not proper
2. Unilateral contract once subject becausethebailorneednotbetheownerofthething.
matter is delivered, creates obligations (Pineda,CreditTransactionsandQuasicontracts,p.26,
2006ed)
on the part of only one of the parties

(theborrower)
Q: What are the consequences of the purely
3. Essentiallygratuitous
personalcharacterofcommodatum?
4. Purpose is to transfer the temporary

useofthethingloaned
A:
5. Principalcontract
GR: Commodatum is purely personal in
6. Purelypersonalcontract
character hence death of either bailor
orbaileeextinguishesthecontract(Art.
Q:Whataretheelementsofcommodatum?
1939,NCC)

A:Theremustbe:
1. abaileeandbailor
377

XPN: By stipulation, the commodatum Iffungiblethingwasloaned,theborroweris
is transmitted to the heirs of either or obligedtopaythelenderanotherthing
bothparty. ofthesamekind,qualityandquantity.

In case of lease of the thing subject of Note:Mereissuanceofchecksdoesnotperfectthe
commodatum: contractofloan.Itisonlyafterthecheckshavebeen
encashed that the contact may be deemed
GR: The bailee can neither lend nor perfected. Further, when the movable thing
lease the object of the contract to a deliveredinloanisnottobereturnedtothebailor,
thirdperson. but may be substituted or replaced with another
equivalentthing,itisafungiblething.
XPN: Members of the bailees
household may make use of the thing Q:Distinguishcommodatumfrommutuum.
loaned.
A:
Note:Membersofthebaileeshousehold COMMODATUM MUTUUM
arenotconsideredasthirdpersons. Object
Nonconsumable(Non
Consumable
XPNtotheXPN: fungible)
Contrarystipulation;or Cause
Natureofthethingforbidssuchuse. Gratuitous,otherwiseitisa Mayormaynotbe
lease gratuitous

Note:Householdmembersarethosewhopermanently Purpose
living or residing within the same residence including Useortemporarypossession
thehouseholdhelpers. ofthethingloanedbut

Q:Distinguishcommodatumfromlease. GR: not its fruit because the
bailorremainstheowner

A:
XPNs: Consumption
COMMODATUM LEASE
use of the fruits is
Realcontract Consensual
stipulated;
Objectisanon
Objectmayevenbe enjoyment of the fruits
consumable(non
workorservice isstipulated;or
fungible)thing
enjoyment of the fruits
Essentiallygratuitous Onerous isincidentaltoitsuse
SubjectMatter
Real orpersonalproperty
MUTUUM
Generallynonconsumable
Q:Whatismutuum? Onlypersonal
thingsbutmaycover
property
consumablesifthepurpose
A: It is a contract whereby one of the parties ofthecontractisfor
calledthelenderdeliverstoanothercalledthe exhibition.
borrower, money or other consumable thing Ownershipofthething
subjecttotheconditionthatthesameamountof Retainedbythebailor Passestothedebtor
thesamekindandquantityshallbepaid. Thingtobereturned
Equalamountofthe
Exactthingloaned
Q: What are the characteristics of a contract of samekindandquality
mutuum? Whobearsriskofloss
Bailor Debtor
A: Whentoreturn
Borroweracquiresownershipofthething. Incaseofurgentneedeven
If the thing loaned is money, payment must beforetheexpirationof Onlyafterthe
be made in the currency which is legal term(thecontractisinthe expirationoftheterm
tenderinthePhilippinesandincaseof meantimesuspended)
extraordinary deflation or inflation, the Contract
basis of payment shall be the value of Contractof
Contractofuse
consumption
thecurrencyatthetimeofthecreation
oftheobligation.
378 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q:Distinguishmutuumfrom: contract which cannot be perfected until the

Lease;and deliveryoftheobject.
Barter.(seeArticle1954)
Q: What are the governing rules on paymentof
A: loan?
MUTUUM LEASE
Objectmaybeanything, A: It depends on the object of the contract of
Objectismoneyorany
whethermovableor loan.
consumable(fungible)
immovable,fungibleor Money governed by Arts. 1249 and 1250,
thing
nonfungible NCC
Thereistransferof
Notransferofownership
ownership GR: Payment shall be made in the
Creditordebtor currencystipulated.
Lessorlesseerelationship
relationship
Unilateral Bilateral XPN:Ifnot,thatcurrencywhichislegal
tenderinthePhilippines.
MUTUUM BARTER
Subjectmatterismoney Subjectmatterarenon Note: In case of extraordinary inflation
orotherfungiblethings fungiblethings value of the currency at the time of the
Maybegratuitousor creationoftheobligation.
Alwaysonerous
onerous
Thereisamutualsale Consumable or fungible thing debtor or
Whileinmutuum,there
resultinginthetransfer borrowershallpayanotherthingofthe
istransferofownership,
ofownershiponboth same kind, quality and quantity even if
thereisnosale
sides it should change in value. If cannot be
Themoneyor done,thevalueofthethingatthetime
consumablething of its perfection (delivery) shall be the
Thepartiesdonotreturn
loanedisnotreturned basisofthepaymentoftheloan.
thethingssubjectofthe
butthesameamount
exchange
ofthesamekindand Q:Mayapersonbeimprisonedfornonpayment
quantityshallbepaid. ofdebt?

Q:Whatisthecauseinasimpleloan? A: No. This is because of the constitutional
provision under Article III, Section 3 of the 1987
A: Constitution which expressly provides that no
1. As to the borrower the acquisition of personshallbeimprisonedfornonpaymentofa
thething debtorpolltax.
2. As to the lender the right to demand
the return of the thing loaned or its Q: Can estafa be committed by a person who
equivalent (Monte de Piedad v. Javier, refusestopayhisdebtordeniesitsexistence?
CA,36Off.Gaz.2176).
A: No, because the debtor in mutuum becomes
Q:Whatmaybetheobjectofmutuum? the owner of the thing delivered to him. If he
consumedordisposedofthething,theactwhich
A:Moneyorfungibleandconsumablethings. is an act of ownership is not misappropriation.
Hence, there is no basis for a criminal
Q:Canloanofmoneybepayableinkind? prosecution.

A: Yes, if there is an agreement between the Q: Does destruction of the thing loaned
parties(Art.1958,NCC). extinguishonesobligationinasimpleloan?

Q:Whenisacontractofsimpleloanperfected? A: The destruction of the thing loaned does not
extinguish ones obligation to pay because his
A: Real contracts, such as deposit, pledge and obligationisnottoreturnthethingloanedbutto
commodatum, are not perfected until the payagenericthing.
deliveryoftheobjectoftheobligation.(Art.1316,
NCC) While mutuum or simple loan is not
mentioned, it has the same character as
commodatum. Hence, mutuum is also a real
379

Q: Who are the parties to a commodatum? 3. thebailorisawarethereof;
Distinguish. 4. he does not advise the bailee of the
same;and
A: 5. thebaileesuffersdamagesbyreasonof
1. Bailor/Comodatario/Commodans the saidflawordefect.
giver/ lender the party who delivers
the possession or custody of the thing Q:Whatisthecauseofactionagainstthebailor
bailed. whodidnotdisclosetheflawordefect?

2. Bailee/Comodante/Commodatarius A:Actionforrecoveryofdamagesontheground
therecipient/borrowerthepartywho ofquasidelictbecauseofnegligenceorbadfaith.
receives the possession or custody of
thethingthusdelivered. RIGHTSOFABAILOR

B.OBLIGATIONSOFTHEBAILORANDBAILEE Q: Can the bailor demand the return of thing
loanedanytimehepleases?
BAILOR
A:
OBLIGATIONSOFTHEBAILOR GR:No

Q:Whataretheobligationsofthebailor? XPNs:
1. Incaseofurgentneedbythebailor
A: 2. Incaseofprecarium
Allowthebaileetheuseofthethingloaned 3. If the bailee commits an act of
forthedurationoftheperiodstipulated ingratitudetothebailor(Art.1948,NCC),
or until the accomplishment of the towit:
purpose.
a. If the bailee should commit
Refund the extraordinary expenses the some offenses against the
bailee incurred for the preservation of person,honorortheproperty
thething. of the bailor, or his wife or
children under his parental
GR: The bailee must bring to the authority;
knowledge of the bailor such expenses b. If the bailee imputes to the
beforeincurringthesame. bailoranycriminialoffense,or
any act involving moral
XPN:Incasethereisurgencyanddelay turpitude, even though he
wouldcauseimminentdanger. should prove it, unless the
crime or the act has been
Note: If the extraordinary expenses arise committedagainstthebailee,
on the occasion of the actual use of the his wife or children under his
thing loaned by the bailee, the expenses authority;or
shall be borne by the bailor and bailee c. If the bailee unduly refuses
equally,eventhoughthebaileeiswithout the bailor support when the
fault.(Art.1949,NCC) bailee is legally or morally
bound to give support to the
To be liable for damages for known hidden bailor.
defects.
Note: The rationale for the application of Art. 765
Cannot exempt himself from payment of which refers to donations is the fact that
expenses or damages by abandonment commodatum,likedonation,isgratuitousinnature.
ofthethingtobailee.
Q: If the contract of commodatum is a
Q:Whenisthebailorliableforhiddendefects? precarium,willArt.1942(1)and(2)stillapply?

A:Whenthefollowingrequisitesarepresent: A:Itdepends.Iftherehasbeenademandonthe
1. there was a flaw or defect in the thing part of the bailor before the loss of the thing
loaned; underthecircumstancessetforthunderArt.1942
2. theflawordefectishidden; (1)and(2)andthebaileedidnotreturnthething,
380 CIVILLAWTEAM:

CREDIT TRANSACTIONS
then the latter is liable. However, if there has under Articles 1207 and 1208. Solidarity is
beennodemandonthepartofthebailorandthe providedtosafeguardeffectivelytherightsofthe
thingwaslost,thebailorisestoppedandcannot bailoroverthethingloaned.
hold the bailee liable for under a contract of
precarium, the use of the thing by the bailee Note: The concurrence of two or more creditors or
depends on the pleasure of the bailor and no twoormoredebtorsinoneandthesameobligation
timeisfixedforsuchuse.Hence,demandonthe does not imply that each one of the former has a
partofthebailorisneededforthereturnofthe right to demand, or that each one of the latter is
thing. Without such, loss of the thing on the bound to render, entire compliance with the
handsofthebaileewillnotmakehimliable. prestation. There is solidary liability only when the
obligation expressly so states, or when the law or
thenatureoftheobligationrequiressolidarity.(Art.
Note:Article1942.Thebaileeisliableforthelossof
1207)
the thing, even if it should be through a fortuitous

event:
Iffromthelaw,orthenatureorthewordingofthe
Ifhedevotesthethingtoanypurposedifferent
obligationstowhichtheprecedingarticlerefersthe
fromthatforwhichithasbeenloaned;
contrarydoesnotappear,thecreditordebtshallbe
Ifhekeepsitlongerthantheperiodstipulated,
presumedtobedividedintoasmanyequalsharesas
or after the accomplishment of the use for
there are creditors or debtors, the credits or debts
whichthecommodatumhasbeenconstituted;
beingconsidereddistinctfromoneanother,subject
xxx
to the Rules of Court governing the multiplicity of
suits.(Art.1208)
Q:Mustthebailorbetheownerofthething

loaned?
OBLIGATIONSOFTHEBAILEE

A: No. The bailor in commodatum need not be
Q:Whataretheobligationsofabailee?
theownerofthethingloaned.Itissufficientthat

he has possessory interest over subject matter
A:
(Art.1938,NCC).
Payfortheordinaryexpensesfor
Astoordinary
theuseandpreservationofthe
Note: A mere lessee or usufructuary may expenses
thing
gratuitously give the use of the thing leased or in
Liableforlosseventhrough
usufruct, provided there is no prohibition against
fortuitouseventwhen
such.
[askdl]:
when being able to save

BAILEE either of the thing
borrowedorhisownthing,
Q:Iftherearetwoormorebaileestoacontract hechosetosavethelatter
of commodatum, what is the nature of their hekeepsitlongerthanthe
liability? Astothelossof
period stipulated, or after
thethingin
the accomplishment of its
caseof
A: When thereare 2 or more bailees to whoma use(indefault);
fortuitous
thing is loaned in the same contract, they are the thing loaned has been
event
liablesolidarily.(Art.1945,NCC) deliveredwithappraisalof
itsvalue
Note:Theirliabilityissolidaryinordertoprotectthe when he lends or leases it
bailorsrightsoverthethingloaned. to third persons who are
not members of his
Q: Following the principle of autonomy of household
contracts, may the parties to a contract of thereisdeviationfromthe
commodatum validly stipulate that the liability purpose
ofthebaileesshallbejoint? Notliableforthedeteriorationof
thethingloanedcausedbythe
Astothe
ordinarywearandtearofthething
A: No. Article 1245 expressly provides that in a deterioration
loaned.(Art.1943)
contractofcommodatum,whentherearetwoor ofthething

more bailees to whom a thing is loaned in the loaned
Note:Whentherearetwoormore
same contract, they are liable solidarily. It bailees,theirliabilityissolidary.
constitutesasanexceptiontothegeneralruleof
joint obligations where there are two or more
debtors, who concur in one and same obligation
381

RIGHTSOFABAILEE Q:Incommodatum,doesthebaileeacquirethe
useofthefruitsofthething?
Q:Whataretherightsofabailee?
A: No. The bailee in commodatum acquires only
A:FRUD theuseofthethingloanedbutnotitsfruits(Art.
Useofthething; 1935,NCC).
Make use of the fruits of the thing when
suchrightisstipulatedinthecontract; Q:Isastipulationthatthebaileemaymakeuse
Not answerable for the deterioration of the ofthefruitsofthethingloanedvalid?
thingloanedduetotheusethereofand
withouthisfault;and A:Yes.Itisunderstoodthattheenjoymentofthe
Right of retention for damages due to fruits must only be incidental to the use of the
hidden defects or flaws of the thing of thing.Itshouldnotbethemaincause;otherwise,
whichhewasnotadvisedbythebailor. thecontractisnotacommodatumbutausufruct
(Art.1940,NCC).
Q: Art. 1178 of the NCC provides that all rights
acquired by virtue of an obligation are Q:Willthestipulationthatthebaileemaymake
transmissible. Is the right to use the thing by use of the fruits of the thing loaned impair the
virtue of a contract of commodatum essenceofcommodatum?
transmissible?
A: No. It will not impair the essence of
A:No,itisnottransmissiblefor2reasons: commodatum because the actual cause or
Art.1178providesthatthetransmissibilityof considerationthereforeisstilltheliberalityofthe
saidacquiredrightsareeithersubjectto bailororlender.
thelawsortoacontrarysipulation;and Q:Isthererightofretentionincommodatum?
Art. 1939 provides that a contract of
commodatum is purely personal in A:
character. GR:Thebaileecannotretainthethingloaned
onthegroundthatthebailorowesthebailee.
Note:Toruleotherwisewouldbetoruncounterto
the purely personal character of the commodatum XPN:Thebaileehastherightofretentionfor
and to the proviso that transmissibility issubject to claims of damages which the bailee incurred
thelawgoverningsuchobligations. orsufferedbyreasonofthehiddendefectsor
flawsofthethingloaned,ofwhichhewasnot
Q:Canthebaileelendorleasetheobjectofthe informedoradvisedbythebailor.
contracttoathirdperson?
Note: The reason for the general rule that there is
A: norightofretentionisthatbailmentimpliesatrust
GR:Thebaileecanneitherlendnorleasethe thatassoonasthetimehasexpiredorthepurpose
objectofthecontracttoathirdperson. accomplished,thebailedpropertymustbereturned
to the bailor. Also, Art. 1287 provides that
XPN: Members of the bailees household compensation shall not be proper when one of the
maymakeuseofthethingloaned. debts arises from the obligations of a bailee in
commodatum.(Art.1287,reworded)
Note: Members of the bailees household are
notconsideredasthirdpersons. Q: Suppose during the said retention of the
bailee,thethingislostduetoafortuitousevent.
XPNtotheXPN: Canthebailorholdthebaileeliableforsaidloss
Contrarystipulation;or basedonArt.1942(2)?
Nature of the thing forbids such
use. A: No, the bailee cannot be held liable for the
loss. Art. 1942 (2) contemplates wrongful
Q:Whatisthelegaleffectifthebaileepaysfor retention or a situation where the bailee is not
theuseofthething? entitledtoretainthethingloaned.

A: The contract ceases to be commodatum; it Note: Article 1942 (2) provides that the bailee is
becomeslease. liable for the loss of the thing, even if it should be
throughafortuitouseventifhekeepsitlongerthan

the period stipulated, or after the accomplishment
382 CIVILLAWTEAM:

CREDIT TRANSACTIONS
of the use for which the commodatum has been Who shall bear the costs for the van's fuel, oil
constituted. and other materials while it was with Tito?
Explain.
Q: What if the bailee is entitled to payment or
reimbursementofexpensesincurredordamages A: The costs for the fuel and other materials are
sufferedandthebailoroffersthethingloanedas considered ordinary expenses, and consequently
payment for said expenses or damages, would Tito, the bailee, shall shoulder them (Art. 1941,
such offer be valid or not, in view of the NCC)
prohibitionunderArt.1952whichstatesthatthe
bailorcannotexempthimselffromthepayment Does Pedro have the right to retrieve the van
ofexpensesordamagesbyabandoningthething evenbeforethelapseofoneyear?Explain.
tothebailee?
A: No, Pedro cannot demand the return of the
A:Theofferisnotvalid.Itmaybeconsideredas van until after the expiration of the oneyear
dationinpayment.Inthiscase,theabandonment periodstipulated.However,ifinthemeantimehe
done by the bailor was made in favor of the should have urgent need of the van, he may
bailee for the payment of the expenses incurred demanditsreturnortemporaryuse.
by the latter, hence, a violation of what the law
hasexpresslyprohibitedunderArticle1952. Who shall bear the expenses for the accidental
damagecausedbythecargotruck,grantingthat
Q: When is the bailee not entitled to the truck driver and truck owner are insolvent?
reimbursementfortheexpensesheincurred? Explain.

A: If, for the purpose of making use and A: Both Tito and Pedro shall bear equally the
preservation of the thing, the bailee incurs costsoftheextraordinaryexpenses,havingbeen
expenses other than those ordinary and incurredontheoccasionofactualuseofthevan
extraordinaryexpenses. byTito,thebailee,eventhoughheactedwithout
fault.[Art.1949(2),NCC](2005BarQuestion)
Q: Before he left for Riyadh to work as a
mechanic, Pedro lefthis van with Tito, with the C.INTERESTANDTHESUSPENSIONOFTHE
understandingthatthelattercoulduseitforone USURYLAW
year for his personal or family use while Pedro
works in Riyadh. He did not tell Tito that the Q:Whatisinterest?
brakes of the van were faulty. Tito had the van
tuned up and the brakes repaired. He spent a A:Itisnothingmorethanthecompensationtobe
total amount of P15,000.00. After using the paid by the borrower for the use of the money
vehicle for two weeks, Tito discovered that it lenttohimbythelender.
consumed too much fuel. To make up for the
expenses,heleasedittoAnnabelle.Twomonths Q:Whatistheruleoninterests?
later, Pedro returned to the Philippines and
askedTitotoreturnthevan. A:
GR: No interest shall be due unless it is
Unfortunately, while being driven by Tito, the stipulatedinwriting.(Art.1956,NCC)
van was accidentally damaged by a cargo truck
withouthisfault. XPN: In case of interest on damages or
indemnity for damages, it need not be in
Who shall bear the P15,000.00 spent for the writing.
repairofthevan?Explain.
Q:Whatisthebasisoftherighttointerest?
A:ThecontractbetweenPedroandTitoisoneof
commodatum. Of the P15, 000.00 spent, Pedro, A: It only arises by reason of the contract
the bailor, shall bear the expenses for the repair (stipulation in writing) or by reason of delay or
of the faulty brakes, they being extraordinary failure to pay principal on which interest is
expenses incurred due to the nondisclosure by demanded (Baretto v. Santa Marina, No. 11908,
thebailorofthedefectorfault;Tito,ontheother feb.4,1918).
hand,shallshoulder"thatpartoftheP15,000.00
spent for the tuneup, said expense being Iftheobligationconsistsofthepaymentofasum
ordinaryfortheuseandpreservationofthevan. of money, and the debtor incurs delay, the

383

indemnity for damages shall be the payment of Q: In case the interest may be adjudged on
legal interest (Philrock, Inc. v. Construction unliquidatedclaimbutthepleadingsincourtdid
Industry Arbitration Commission, G.R. Nos. not spell out said amount with certitude, when
13284849,June25,2001) shalllegalinterestthereonrun?

Q:Cantherebeinterestinequitablemortgage? A: The legal interest thereon shall run only from
the promulgation of judgment of said court, it
A: No. Interest could not be collected on being at that stage that the quantification of
equitable mortgage because the same is not damages may be deemed to have been
stipulatedinwriting(Tanv.Valdehueza,G.R.No. reasonablyascertained.(Ibid)
L38745,Aug.6,1975).
Q: What is the actual base for computing such
Note: One which, although it lacks the proper legalinterest?
formalities or other requisites of a mortgage
required by law, nevertheless reveals the intention A: It shall be the amount as finally adjudged by
of the parties to burden real property as a security theSupremeCourt.(Ibid)
for a debt, and contains nothing impossible or
contrarytolaw. Q: What is the basis for computation for
indemnityfordamages?
Q:Canpaidunstipulatedinterestberecovered?
A: It shall be the interest agreed upon by the
A:Ifpaidbymistakethedebtormayrecoverasin partiesandintheabsenceofstipulation,thelegal
the case of solutio indebiti or undue payment. interestwhichis6%perannum(Art.2208,NCC).
However if payment is made voluntarily, no
recovery can be made as in the case of natural Note:6%becauseitisbasedondamagesandithas
obligation. been said that judgments other than loans,
forbearance,etc.isbasedon6%.
Q: Sabugo granted a loan to Samilin. The loan
agreement was not reduced in writing. Q:Whataretheclassesofinterest?
Thereafter, Sabugo demanded additional
interest which was paid by Samilin in cash and A:
checks. Upon advice of her lawyer, Samilin 1. Simple interest which is paid for the
demanded for the return of the amount of use of the money, at a certain rate
interestpaid.Isthepaymentofinterestvalid? stipulatedinwritingbytheparties.
2. Compound interest which is imposed
A: No. Payment of monetary interest is allowed upon accrued interest, that is, the
onlyif: interestdueandunpaid.
1. therewasanexpressstipulationforthe 3. Legal that interest which the law
paymentofinterest;and directstobepaidintheabsenceofany
2. the agreement for the payment of agreementastotherate.
interestwasreducedinwriting.
Q:Whencantherebe:
Theconcurrenceofthetwoconditionsisrequired 1. Monetaryinterest;
for the payment of monetary interest. Thus, 2. Compensatoryinterest?
collection of interest without any stipulation
thereforinwritingisprohibitedbylaw.(Sigaanv. A:
Villanueva,G.R.No.173227,Jan.20,2009.) 1. Monetary interest must be expressly
stipulated in writing and it must be
Q: May interest be adjudged on unliquidated lawful.(Art.1956,NCC)Itispayableon
claims? thedelayoftheuseofthemoney.
2. Indemnity for damages (compensatory
A: interest) the debtor in delay is liable
GR:No. to pay legal interest (6% or 12%) as
indemnity for damages even in the
XPN:Unlessthesamecanbeestablishedwith absence of stipulation for the payment
reasonablecertainty.(AtlanticGulfandPacific interest. Such interest as indemnity for
Company of Manila, Inc. v. CA, G.R. Nos. damages is payable only in case of
11484142,Aug.23,1995) defaultornonperformanceofcontract.

384 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Note: If the obligation consists in the payment of a A: Back rentals being equivalent to a loan or
sum of money and the debtor incurs in delay, the forbearance of money, the interest rate due
debtorisliablefordamages.(Art.2209,NCC) thereonis12%perannumfromthetimeofextra
judicial demand (Catungal v. Hao, G.R. No.
Q: What is the basis for the interest rate for 134972,Mar.22,2001).
compensatoryinterest?
Note: Back rental is the full extended value of land
A: letbylease,payablebytenantforlifeoryears.
1. Central Bank Circular 416 12% per annum
incasesof: Q:Whatistheruleoncompoundingofinterest?
a. Loans
b. Forbearance of money, goods and A:
credits GR: Accrued interest (interest due and
c. Judgement involving such loan or unpaid)shallnotearninterest.
forbearance, in the absence of
expressagreementastosuchrate XPN:When:
ofinterest 1. judiciallydemanded;or
2. thereisexpressstipulationmadebythe
Note:Duringtheinterimperiodfrom parties that the interest due and
the date of judgment until actual unpaid shall be added to the principal
payment. obligation and the resulting total
amountshallearninterest.
d. Pursuant to P.D. No. 116 amending
Act No. 2655 (Usury Law), the Note:Compoundingofinterestmaybeavailedonly
Central Bank of the Philippines when there is a written stipulation in the contract
issued Circular No. 416 raising the forthepaymentofinterest.
legalrateofinterestfrom6%to12%
perannum. Q:Whatisfloatinginterest?

e. In the absence of a stipulation as to
A: It is the interest stipulated by banks which is
interest, the loan due will now earn
interest at the legal rate of 12% per
not fixed and made to depend upon the
annum.(Sulitv.CA,G.R.No.119247, prevailing market conditions, considering the
Feb.17,1997). fluctuatingeconomicconditions.

2. Art.2209,NCC6%perannumincasesof: Q:Isastipulationforfloatinginterestvalid?
a. Othersources(i.e.sale)
b. Damages arising from injury from A: No. While it may be acceptable for practical
person. reasonsgiventhefluctuatingeconomicconditions
c. Loss of property which does not forbankstostipulatethatinterestratesonaloan
involvealoan. not be fixed and instead be made dependent on
prevailing market conditions, there should be a
3. Interest accruing from unpaid interest reference rate upon which to peg such variable
interest due shall earn interest from the interestrates[ConsolidatedBankandTrustCorp.
time it is judicially demanded although the (Solid Bank) v. CA, G.R. No. 114672, Apr. 19,
obligationmaybesilentuponthispoint. 2001].

Q:Whatisforbearance? Q:Whatisinterestondamages?

A: It signifies the contractual obligation of the A: Interest that which is imposed in a judgment
creditor to forbear during a given period of time asindemnityfordamages.
torequirethedebtorpaymentofanexistingdebt
thendueandpayable.Suchforbearanceofgiving Note:Itneednotbeinwritingandcomputedfrom
timeforthepaymentofadebtis,insubstance,a thetimeofthefinalityofdecision.
loan(91C.J.S.598).
Q: A judgment was rendered ordering the
Q: What is the interest rate imposable for back defendant Maybel to pay Vanessa with legal
rentals? interest of 12% from the filing of the complaint
until paid. The decision became final and
executory. Maybel argues that the rate of 12%
385

underCentralBankCircular416wasmisapplied. hemorraghing of their assets (Almeda v. CA, G.R.
How much by way of legal interest should a No.113412,Apr.17,1996)
judgmentdebtorpaythejudgmentcreditor?
InthecaseofMedelv.CA(G.R.No.131622,Nov.
A: The judgments spoken of and referred to 27, 1998), the court ruled that while stipulated
underCentralBankCircular416arejudgmentsin interest of 5.5% per month on a loan is usurious
litigations involving loans or forbearances of pursuant to CBC No. 905, the same must be
money, goods or credits. Any other kind of equitably reduced for being iniquitous,
monetary judgments which has nothing to do unconscionable and exorbitant. It is contrary to
with, nor involving loans or forbearance of any morals. It was reduced to 12% per annum in
money goods or credits does not fall within the consonantwithjusticeandfairplay.
coverage of said law. Coming to the case at bar,
thedecisionhereinsoughttobeexecutedisone Q: Samuel borrowed P300,000.00 housing loan
rendered in an Action for Damages for injury to from the bank at 18% per annum interest.
personsandlossofpropertyanddoesnotinvolve However, the promissory note contained a
any loan, much less forbearances of any money, proviso that the bank "reserves the right to
goodsorcredits. increase interest within the limits allowed by
law." By virtue of such proviso, over the
Q: Carlos sues Dino for (a) collection on a objections of Samuel, the bank increased the
promissory note for a loan, with no agreement interestrateperiodicallyuntilitreached48%per
on interest, on which Dino defaulted, and (b) annum. Finally, Samuel filed an action
damages caused by Dino on his (Carlos') questioningtherightofthebanktoincreasethe
priceless Michaelangelo painting on which Dino interest rate up to 48%. The bank raised the
accidentally spilled acid while transporting.it. defensethattheCentralBankofthePhilippines
The court finds Dino liable on the promissory had already suspended the Usury Law. Will the
note and awards damages to Carlos for the actionprosperornot?Why?
damaged painting, with interests for both
awards. What rates of interest may the court A:Theactionwillprosper.Whileitistruethatthe
imposewithrespecttobothawards?Explain. interest ceilings set by the Usury Law are no
longerinforce,ithasbeenheldthatPDNo.1684
A: With respect to the collection of money or andCBCircularNo.905merelyallowcontracting
promissorynote,itbeingaforbearanceofmoney, parties to stipulate freely on any adjustment in
the legal rate of interest for having defaulted on the interest rate on a loan or forbearance of
the payment of 12% will apply. With respect to moneybutdonotauthorizeaunilateralincrease
the damages to the painting, it is 6% from the of the interest rate by one party without the
timeofthefinaldemanduptothetimeoffinality other'sconsent(PNBv.CA,G.R.No.107569,Nov.
ofthedecisionand12%ofthetotalamountfrom 8, 1994). To say otherwise will violate the
finality of judgment until judgment credit is fully principle of mutuality of contracts under Article
paid. The court considers the latter as a 1308oftheCivilCode.Tobevalid,therefore,any
forbearance of money. (Eastern Shipping Lines, changeofinterestmustbemutuallyagreedupon
Inc. v. CA, G.R. No. 97412, July 12, 1994; Arts. by the parties (Dizon v. Magsaysay, G.R. No. L
2210and2211,NCC)(2002BarQuestion) 23399, May 31, 1974). In the present problem,
the debtor not having given his consent to the
Q:Musttheprincipaldebtstillbepaidin increase in interest, the increase is void. (2001
usurioustransactions? BarQuestion)

A: Yes. Under the Usury Law, notwithstanding
stipulationsofusuriousinterest,thedebtormust II.DEPOSIT
still pay the principal debt (Lopez v. El Hogar
Filipino,No.22678,Jan.12,1925). Q:Whatisdeposit?

Q: What is the rationale behind the validity of A: It is a contract whereby a person (depositor)
unconscionableInterestrateinaloan? delivers a thing to another (depositary), for the
principal purpose of safekeeping it, with the
A:TheSupremeCourtsaidnothinginsaidcircular obligationofreturningitwhendemanded.
(Circular905)suspendingUsuryLawgrantslender
authority to raise interest rates to levels which Q:Whenisacontractofdepositconstituted?
will either enslave their borrowers or lead to a
386 CIVILLAWTEAM:

CREDIT TRANSACTIONS
A: From the moment a person receives a thing borrower

belongingtoanother,withtheobligationofsafely SubjectMatter
keepingitandreturningthesameupondemand. Movable(extrajudicial)or
Moneyorotherfungible
maybeimmovable
thing
Q: What are the characteristics of contract of (judicial)
deposit? Relationship
Depositordepositary Lenderborrower
A: Compensation
1. Real contract because it can only be Nocompensationof
perfectedbythedeliveryoftheobjectofthe thingsdepositedwith Therecanbe
contract. eachother(exceptby compensationofcredits
However, an agreement to mutualagreement)
constitute a future deposit is a
2.
consensual contract and is
thereforebinding. DEPOSIT COMMODATUM
PrincipalPurpose
Note: There is no consensual Safekeeping Transferofuse
contract of deposit; there is only a Nature
consensual promise to deliver which Maybegratuitousor
Alwaysgratuitous
isbindingifsuchisaccepted. onerous

2. Object of the contract must be a movable 3.
property. However, in cases of judicial DEPOSIT AGENCY
deposit, the subject matter may be a real Purpose
property. Representationofthe
Safekeeping
principalbytheagent
3. Purpose is for the safekeeping of the thing Reasonforcustodyofthething

deposited. This must be the principal Thecustodyofthething
purposeandnotonlysecondary. istheprincipaland Itismerelyanincidental
essentialreasonforthe obligationoftheagent
deposit
4. Itisgratuitous,unlessthereisa:
Nature
a. Contraryagreement;or
Itisgenerallyonerousor
b. The depositary is engaged in the Essentiallygratuitous
forcompensation
business of storing goods, like a
warehouseman. 4.

DEPOSIT LEASE
5. The depositary cannot use the thing
PrincipalPurpose
deposited,unless:
a. Permittedbythedepositor;or Safekeeping Useofthething
b. Preservation of the thing requires Whentoreturn
itsuse,butonlyforsaidpurpose. Upondemandofthe Uponterminationofthe
depositor leasecontract.

Maybemadeorallyorinwriting.
5.

DEPOSIT SALE
Q:Distinguishdepositfrom:
1. Mutuum; Ownership
2. Commodatum; Retainedbydepositor. Transferredtobuyer.
3. Agency;
4. Lease;and Q:Whatarethekindsofdeposit?
5. Sale.
A: A:
1. 1. Judicial(sequestration)
DEPOSIT MUTUUM 2. Extrajudicial
Purpose a. Voluntarythedeliveryismadeby
Safekeeping/custody Consumption thewillofthedepositor.
Whentoreturn b. Necessary made in compliance
Upondemandofthe Uponexpirationofthe with a legal obligation, or on the
depositor termgrantedtothe occasion of any calamity, or by
387

travelers in hotels and inns, or by A: The depositor need not be the owner of the
travelerswithcommoncarriers. thing deposited because the purpose of the
contract is safekeeping and not transfer of
Q: Distinguish judicial from extrajudicial ownership.
deposit?
Note: A deposit may also be made by two or more
A: persons each of whom believes himself entitled to
JUDICIAL EXTRAJUDICIAL the thing deposited with a third person, who shall
Creation deliver it in a proper case to the one to whom it
Willofthecontracting belongs.
Willofthecourt
parties
Purpose Q: What is the nature of advance payment in a
Securityortoensurethe contractofsale?
rightofapartyto
propertyortorecoverin Custodyandsafekeeping A: A so called deposit of an advance payment in
caseoffavorable thecaseofasaleisnotthedepositcontemplated
judgment underArt.1962.Itisthatadvancepaymentupon
SubjectMatter whichownershipistransferredtotheselleronce
Movablesor it is given subject to the completion of payment
immovablesbut Movablesonly by the buyer under an agreement. (Cruz v.
generallyimmovables AuditorGeneral,No.L12233,May30,1959).
Cause
Generallygratuitousbut
Alwaysonerous
maybecompensated A.VOLUNTARYDEPOSIT
Whenmustthethingbereturned
Uponorderofthecourt Q: What are the obligations of depositary in
Upondemandof
orwhenlitigationis voluntarydeposit?
depositor
ended
Inwhosebehalfitisheld
A:
Depositororthird
Personwhohasaright 1. Tokeepthethingsafelyandreturnit
persondesignated
2. Exercisesamediligenceashewouldexercise
overhisownproperty
Q: What is the nature of the rent of safety rd
3. Not to deposit the thing with a 3 person
depositboxes? unlessexpresslyauthorizedbystipulation

A:Therentofsafetydepositboxesisanordinary Note:Depositaryisliablefortheloss
contractofleaseofthingsandnotaspecialkind if:
of deposit because the General Banking Act as a. Hedepositsthethingtoa3rdperson
revised has deleted the part where banks are without authority, even though the
expressly authorized to accept documents or lossisduetofortuitousevents
papersforsafekeeping. b. Deposits the thing to a 3rd person
who is manifestly careless or unfit
The case of Sia v. CA, G.R. No. 102970, May 13, althoughthereisauthority.
1993 enunciating that a rent of a safety deposit
box is a special kind of deposit, was decided 4. Ifthethingshouldearninterest:
undertheformerGeneralBankingAct.However, a. collectinterestasitfallsdue
SC has not yet decided a case abandoning the b. take steps to preserve the value
ruling in Sia v. CA, making it conform with the andrightscorrespondingtoit
newGeneralBankingAct.
5. Nottocomminglethingsifsostipulated
Fixed, savings and current deposits in banks and
othersimilarinstitutionsarenottruedepositsbut 6. GR:Nottomakeuseofthethingdeposited
are considered simple loans because they earn
interest.(Art.1980,NCC) XPNs:
a. When preservation of thing
Q: Is ownership necessary in a contract of depositedrequiresitsuse
deposit? b. Whenauthorizedbydepositor

388 CIVILLAWTEAM:

CREDIT TRANSACTIONS
c. GR: In such case it is no longer a PARTIES

deposit but a contract of loan or
commodatum,asthecasemaybe. Q:Whoarethepartiestoacontractofdeposit?

d. XPN: Principal reason for the A:
contract is still safekeeping, it is 1. Depositary to whom the thing is
stilldeposit. deposited
2. Depositor the one who deposits the
7. Whenthethingdepositedisdeliveredsealed thing
andclosed:
a. return the thing in the same DEPOSITARY
condition
b. pay damages if seal be broken Q:Whoisadepositary?
throughhisfault
c. keep the secret of the deposit A:Thedepositaryistheonetowhomthethingis
when seal is broken w/ or w/o his deposited.
fault
Q:Maythedepositarychangethemannerofthe
d. However, the depositary is deposit?
authorizedtoopenthesealorlock
when: A: Yes, if he may reasonably presume that the
a. there is presumed depositorwouldconsenttothechangeifheknew
authority ofthefactsofthesituation.However,beforethe
b. outofnecessity depositarymaymakesuchchange,heshallnotify
the depositor thereof and wait for his decision,
8. GR: Pay for any loss or damage that may unlessdelaywouldcausedanger(Art.1974,NCC).
ariseduetohisfault
Q: Is a guardian a depositary of the wards
XPN:Liabilityoflossthroughfortuitousevent property?

XPNs to XPN: Even in case of loss through A: The guardian is not holding the funds of the
fortuitousevent,stillliableif(USAD): ward merely for safekeeping exclusively but also
a. Stipulated intended for the latters maintenance and
b. he Uses thing w/o depositors support. Losses, if any without the fault of the
permission guardianshallbedeductedfromthefundsofthe
c. heDelaysitsreturn ward (Phil. Trust Co. v. Ballesteros, No. L8261,
d. he Allows others to use it (even if April20,1956).
hehimselfisauthorizedtouseit)
Q: What is the effect when the depositary has
9. Returnthethingdepositedwithallitsfruits, permissiontousethethingdeposited?
accessions,andaccessories
10. Pay interest on sums converted to personal A:
useifthedepositconsistsofmoney GR: The contract loses the concept of a
deposit and becomes a loan or
Q:Whenisavoluntarydepositextinguished? commodatum.

A: XPN:Wheresafekeepingisstilltheprincipal
1. Lossordestructionofthingdeposited; purposeofthecontract(Art.1978,NCC).
2. In gratuitous deposit, upon death of
eitherdepositorordepositary;or Note:Thepermissionshallnotbepresumed,andits
3. Other causes (e.g. return of thing, existencemustbeproved.
novation, expiration of the term,
fulfillmentofresolutorycondition) Q: What is the rule with respect to the
determinationofthevalueofthething?

A:
GR: The statement of the depositor shall be
acceptedasprimafacieevidenceofthevalue
389

iftheforcibleopeningoftheboxorreceptacle Q:Whatisthedutyofthedepositarysheirifhe
isimputabletothedepositary. sold the thing which he did not know was
deposited?
XPN:Ifthereisaclear,strongandconvincing
evidencetothecontrary. A: He shall be bound to return the price he may
have received or to assign his right of action
It is significant to know the value of the thing against the buyer in case the price has not been
depositedincasewhenthereisacontroversyon paidbyhim(Art.1991,NCC).
the value of the thing deposited which is
deliveredclosedandsealed. Note: The provision applies only when the
depositary has died and left heir/s who took
Q:UnderArt.1983,whatisincludedintheterm possession of the thing in the concept of an owner
products,accessoriesandaccessions? andsolditingoodfaithtoathirdperson.

A: The depositors ownership over the thing Q: What is the right of the depositary if he has
carries with it the right to the fruits and all notbeenpaidtheamountduetohim?
accessionstheretoincluding:
A: The depositary may retain the thing in pledge
until full payment of what may be due him by
1. Naturalfruits
reasonofthedeposit(Art.1994,NCC).
2. Industrialfruits

3. Civilfruits(Art.441,NCC)
Q:Maythedepositarysellthethingretainedin

pledge?
Q: When the deposit consists of money, what

must be returned upon the extinguishment of
A: Yes, Article 2108 provides that if, without the
contract?
faultofthepledgee,thereisdanger,destruction,

impairment, or diminution in value of the thing
A: The provision of Article 1896 shall apply
pledged, he may cause the same to be sold at
wherein the money deposited must be returned
public auction. The proceeds of the auction shall
together with interest for the use thereof. The
be a security for the principal obligation in the
impositionofinterestisintheformofpenaltyfor
same manner as the thing originally pledged.
the use of money there being no agreement to
(Pineda,p.93,2006ed)
pay the interest at the outset, otherwise, the

contractwillbeamutuum.
Q:ManejaassignedandconveyedtoSerranoher

time deposit. Notwithstanding series of
Q: Can the depositary demand that the
demandsforencashmentoftheaforementioned
depositor should prove his ownership of the
time deposits, OBM refused to honor the time
thingdeposited?
deposits. Is OBM liable to Serrano despite the

fact the Central Bank declared that OBM could
A:
no longer operate due to its chronic reserve
GR:No.
deficiencies?

XPN: Should he discover that the thing has
A: Yes. Bank deposits are in the nature of
been stolen and who its true owner is, he
irregular deposits. They are really loans because
mustadvisethelatterofthedeposit.
they earn interest. All kinds of bank deposits,

whether fixed, savings or current, are to be
Note: If the depositary has reasonable grounds to
believethatthethinghasnotbeenlawfullyacquired
treatedasloansandaretobecoveredbythelaw
bythedepositor,theformermayreturnthesame. on loans. Current and savings deposits are loans
toabankbecauseitcanusethesame.Serrano,in
Q:Whatshouldthedepositarydoifhelosesthe makingtimedepositsthatearninterestwithOBM
thing through force majeure or government was in reality a creditor of the respondent bank,
orderandreceivesmoneyoranotherthinginits and not a depositor. The bank was in turn a
place? debtor of Serrano. Failure of OBM to honor the
time deposits is failure to pay its obligation as a
A: He shall deliver the sum or other thing to the debtor and not a breach of trust arising from a
depositor. depositarys failure to return the subject matter
ofthedeposit.(Serranov.CentralBank,G.R.No.
30511,Feb.14,1980)

390 CIVILLAWTEAM:

CREDIT TRANSACTIONS
DEPOSITOR 2. If the depositor was incapacitated at

the time of making the deposit, to his
Q:Whoisadepositor? guardian or administrator or to the
depositor himself should he acquire
A: The depositor is the one who deposited the capacity(Art.1970,NCC).
thing. 3. Evenifthedepositorhadcapacityatthe
time of making the deposit but he
Q:Whatistherulewhentherearetwoormore subsequently loses his capacity during
depositors? thedeposit,thethingmustbereturned
to his legal representative (Art.1988,
A:Iftheyarenotsolidary,andthethingadmitsof NCC).
division,eachonecannotdemandmorethanhis Q: Where should the thing deposited be
share. returned?

When there is solidarity or the thing does not A:
admitofdivision,theprovisionsofArt.1212and GR:Attheplaceagreedupon.
1214 shall govern. However, if there is a
stipulation that the thing should be returned to XPN: In the absence of stipulation, at the
oneofthedepositors,thedepositaryshallreturn place where the thing deposited might be,
itonlytothepersondesignated(Art.1985,NCC). evenifitshouldnotbethesameplacewhere
the original deposit was made provided the
Q:Whataretheobligationsofdepositor? transferwasaccomplishedwithoutmaliceon
thepartofthedepositary.
A:
1. Payment for necessary expenses for Q: When should the thing deposited be
preservation returned?
a. If the deposit is gratuitous
reimbursedepositary A:
b. With compensation no need for GR:Upondemandoratwill,whetherornota
reimbursement; expenses borne periodhasbeenstipulated.
bydepositary
XPNs:
2. GR:Paylossesincurredbydepositarydueto 1. Thing is judicially attached while in the
thecharacterofthethingdeposited. depositaryspossession.
2. Depositary was notified of the
XPNs: opposition of a third person to the
a. When at the time of deposit, the return or the removal of the thing
depositor was not aware of the deposited(Art.1986,NCC).
dangerous character of the thing 3. Whenthethingisstolenandtheperiod
orwasnotexpectedtoknowit; of 30 days from notice to the true
b. When the depositor notified the owner for him to claim it had not yet
depositary;or lapsed, the depositary cannot return
c. Whenthedepositarywasawareof the thing deposited to the depositor.
it without advice from the This is intended to protect the true
depositor. owner.
4. In case of gratuitous deposit, if the
3. In case of an onerous deposit, to pay the depositary has a justifiable reason for
compensationagreeduponasconsideration not keeping the deposit. If the
forthedeposit. depositor refuses, the depositary may
secure its consignation from the court
Q: To whom should the thing deposited be (Art.1989,NCC).
returned?
A:
1. To the depositor, to his heirs and
successors, or to the person who may
have been designated in the contract
(Art.1972,NCC).
391

B.NECESSARYDEPOSIT Q:Whatistheextentoftheliabilityofthehotel
keepersincaseofloss?
Q:Whenisdepositconsideredasnecessary?
A:
A: 1. It covers liability in hotel rooms which
1. When it is in compliance with a legal come under the term baggage or
obligation; articlessuchasclothingasareordinarily
2. It takes place on the occasion of any usedbytravelers.
calamity, such as fire, storm, flood, 2. It includes lost or damages in hotels
pillage, shipwreck, or other similar annexes such as vehicles in the hotels
events; garage.
3. Made by passengers with common
carriers;or Q:Canthekeepersofthehotelsorinnsexercise
4. Madebytravelersinhotelsorinns. therightofretention?

Q: When can the keepers of hotels or inns be A:Yes,assecurityforcreditsincidenttothestay
held responsible for loss of thing in case of atthehotel(inthenatureofapledgecreatedby
deposit? operationoflaw).

A:Whenbotharepresent: C.JUDICIALDEPOSIT
1. they have been previously informed by
guest about the effects the latter Q:Whendoesjudicialdeposit(sequestration)
broughtin;and takeplace?
2. the guest has taken precautions
prescribedfortheirsafekeeping. A:Whenanattachmentorseizureofpropertyin
litigationisorderedbyacourt.(Art.2005,NCC)
Note: They are liable regardless of the
degreeofcareexercisedwhen: Note: It is auxiliary to a case pending in court. The
a. loss or injury is caused by his purpose is to maintain the status quo during the
employees or even by pendency of the litigation or to insure the right of
strangers;or the parties to the property in case of a favorable
b. lossiscausedby act ofthief or judgment.(DeLeon,Commentsandcasesoncredit
robberwhenthereisnouseof transaction,p.154,2010)
armsorirresistibleforce.
Q: What may be the object of Judicial
Q: What are the instances when the keepers of sequestration?
hotels or inns are not liable for loss of thing in
caseofdeposit? A:Movablesandimmovables(Art.2006,NCC)

A:Theyarenotliablewhen: Q: When will the properties sequestered cease
1. loss or injury is caused by force tobeincustodialegis?
majeure;
2. lossduetotheactsofguests,hisfamily, A: When the insolvency proceedings of a
hisemployees,orvisitors;and partnership terminated because the assignee in
3. loss arises from the character of the insolvency has returned the remaining assets to
goods. the firm, said properties cease to be in custodia
legis(NgChoCio,etal.v.NgDiong&Hodges,L
Q:Arehotelorinnkeepersstillliableregardless 14832,Jan.28,1961)
of the posting of notices exempting themselves
fromanyliability? III.GUARANTYANDSURETYSHIP

A: Yes. Hotel/Innkeepers cannot escape or limit A.NATUREANDEXTENTOFGUARANTY
liability by stipulation or the posting of notices.
Anystipulationbetweenthehotelkeeperandthe Q:Whatisguaranty?
guest whereby the responsibility of the former
(Arts. 19982001) is suppressed or diminished A: It is a contract where a person called the
shallbevoid. guarantor binds himself to the creditor to fulfill
the obligation of the principal debtor in case the
lattershouldfailtodoso.
392 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q:Whatissuretyship? Q:Whatarethekindsofguaranty?

A: It is a contract where a person binds himself A:
solidarilywithprincipaldebtor. 1. Generalclassification
a. Personal guaranty where an
Q:Distinguishguarantyfromsuretyship. individual personally assumes
the fulfillment of the principal
A: obligation;
GUARANTY SURETYSHIP b. Real guaranty is property,
Suretyisanoriginal movable,orimmovable.
Collateralundertaking 2. Astoitsorigin
promissory
Guarantorsecondarily a. Conventional constituted by
Suretyprimarilyliable agreementoftheparties
liable
Guarantorbindshimself Suretyundertakestopay b. Legal imposed by virtue of a
topayiftheprincipal ifprincipal provisionoflaw
cannotpay doesnotpay c. Judicialrequiredbyacourtto
Insurerofsolvencyof guarantee theeventual right of
Insurerofthedebt thepartiesinacase.
debtor
Guarantorcanavailof 3. Astoconsideration
thebenefitofexcussion Suretycannotavailof a. Gratuitous guarantor does
anddivisionincase thebenefitofexcussion not receive any price or
creditorproceedsagainst anddivision remuneration for acting as
him such.
b. Onerous one where the
Q: What is the similarity between guaranty and guarantor receives valuable
considerationforhisguaranty
suretyship?
4. Astoperson
a. Single constituted solely to

A: Both guarantor and surety promise or
guarantee or secure
undertake to answer for the debt, default or
performance by the debtor of
miscarriageofanotherperson.
theprincipalobligation.
b. Double or subguaranty
Q: What are the characteristics of guaranty and constituted to secure the
suretyship? fulfillmentoftheobligationofa
guarantorbyasubguarantor
A:ACCUNCS 5. Astoscopeandextent
1. Accessory a. Definite where the guaranty
2. Consensual is limited to the principal
3. Conditional obligation only, or to a specific
4. Unilateral portionthereof.
5. Nominate b. Indefinite or simple where
6. Cannotbepresumed the guaranty included all the
7. CoveredbytheStatuteofFrauds accessory obligations of the
principal, e.g. costs, including
Q:Distinguishguarantyfromwarranty. judicialcosts.

A: B.EFFECTSOFGUARANTY
GUARANTY WARRANTY
anundertakingthatthe Q:Whataretheobligationsthatmaybesecured
acontractbywhicha title,qualityorquantityof inacontractofguaranty?
personisboundto thesubjectmatterofa
anotherforthe contractiswhatitis A:
fulfillmentofa representedtobe,and 1. Validobligations
promiseor relatestosome 2. Voidableobligations
undertakingofathird agreementmade 3. Unenforceableobligations
person ordinarilybytheparty 4. Natural obligations When the debtor
whomakesthewarranty himself offers a guaranty for his natural
obligation, he impliedly recognizes his
liability, thereby transforming the
obligationfromanaturalintoacivilone.
393

5. Conditional obligations only in case of Q:Statethegeneralcharacterofguaranty.
suspensive condition because it gives rise
totheprincipalandhence,givesrisealso A:
totheaccessoryobligation. GR:Generallygratuitous(Art.2048,NCC)

Note: Voidable contract is one which has all the XPN:Stipulationtothecontrary.
essential elements of a valid contract, except that
the element of consent is vitiated. It is valid and Q: Who are the parties to a contract of
obligatorybetweenthepartiesbeforeitsannulment. guaranty?
Unenforceable contact, on the other hand, is one

whichcannotbeenforcedbyactionorcomplaintin
A:
court, unless they have been ratified by the party
whodidnotgivehisconsentthereto.Sincebothare
1. Guarantor
considered valid obligations between the parties 2. Creditor
until their annulment, and subject to ratification,
theycanbesecuredinacontractofguaranty. GUARANTOR

Q: Is a valid principal obligation necessary in Q:Whoisaguarantor?
contractofguaranty?
A: The guarantor is the person who is bound to
A:Sinceguarantyisanaccessorycontract,itisan another for the fulfillment of a promise or
indispensable condition for its existence that undertakingofathirdperson.
theremustbeaprincipalobligation.Hence,ifthe
principalobligationisvoid,itisalsovoid. Q:Whatarethequalificationsofaguarantor?

Q:Inwhatformshouldacontractofguarantybe A:
made? 1. Possessesintegrity;
2. Capacitytobindhimself;and
A:Itmustbeexpressedandinwriting(par.2,Art. 3. Has sufficient property to answer for
1403,NCC);otherwise,itisunenforceableunless theobligationwhichheguarantees.
ratified.Itneednotbeinapublicinstrument.
Note:Thequalificationsneedonlybepresentatthe
Note: Guaranty, as a contract, requires the timeoftheperfectionofthecontract.
expressionoftheconsentoftheguarantorinorder
tobebound.Itcannotbepresumedbecauseofthe Q: What is the effect of subsequent loss of
existenceofacontractorprincipalobligation. requiredqualifications?

Q: Is acceptance necessary in a contract of A: The subsequent loss of integrity, property or
guaranty? supervening incapacity of the guarantor would
not operate to exonerate the guarantor or the
A: eventual liability he has contracted, and the
GR: The acceptance of the creditor is not contractofguarantycontinues.
essentialinsuchcontracts.
However, the creditor may demand another
XPN: When there is a mere offer of a guarantor with the proper qualifications. But he
guaranty or a conditional guaranty wherein maywaiveitifhechoosesandholdtheguarantor
theobligationdoesnotbecomebindinguntil tohisbargain.
it is accepted by the creditor and notice of
suchacceptanceisgiventotheguarantor. Q: When is the qualification of the guarantor
lost?
Q: In case of doubt, in whose favor should a
contractofguarantyorsuretyberesolved? A:
Convictionofacrimeinvolvingdishonesty
A: Insolvency
GR: Strict construction against the creditor
andliberalinfavoroftheguarantororsurety; Q: What is the effect of absence of direct
termscannotbeextendedbeyonditsterms. considerationorbenefittoguarantor?

XPN:Incasesofcompensatedsureties. A:Guarantyorsuretyagreementisregardedvalid
despite the absence of any direct consideration
394 CIVILLAWTEAM:

CREDIT TRANSACTIONS
received by the guarantor or surety, such Q: What are the situations when a guarantor
consideration need not pass directly to the may lawfully be required to pay more than the
guarantor or surety; a consideration moving to originalobligationoftheprincipaldebtor?
theprincipalwillsuffice.
A:
Q:Whatistherulewhenamarriedwomanisa 1. Ifupondemand,aguarantorfailstopay
guarantor? theobligation,hecanbeheldliablefor
interest, even if in thus paying, the
A: liability becomes more than that in the
GR:Bindsonlyherseparateproperty. principal obligation. The increased
liability is not because of the contract
XPNs: but because of the default and the
1. If with her husbands consent, it binds necessity for judicial collection. It
the community or conjugal partnership should be noted, however, that the
property. interest runs from the time the
2. Without husbands consent, in cases complaintisfiled,notfromthetimethe
provided for by law, such as when the debt becomes due and demandable
guaranty has redounded to the benefit (Tagawa v. Aldanese, No.18636, sept.
ofthefamily. 28,1922).

Q: What are the rights of a third person who 2. Creditors suing on a surety bond may
paysforthedebtguaranteedorsecured? recoverfromthesurety,aspartoftheir
damages, interest at the legal rate,
A: judicial cost and attorneys fees when
1. If payment is made without the appropriate even if the surety would
knowledge or against the will of the therebybecomeliabletopaymorethan
debtor: thetotalamountstipulatedinthebond
a. Guarantorcanrecoveronlyinsofar (Dino v. CA, G.R. No. 89775, Nov. 26,
asthepaymenthasbeenbeneficial 1995).
tothedebtor
b. Guarantor cannot compel the 3. A penalty clause may also increase the
creditor to subrogate him in his liabilityofthesurety(GeneralInsurance
rights. SuretyCo.v.Republic,G.R.No.L13873,
Jan.31,1963)
2. Ifpaymentismadewiththeknowledge
or consent of the debtor Subrogated Q:Whatistheeffectofguarantorsdeath?
to all the rights which creditor had
againstthedebtor. A: His heirs are still liable to the extent of the
valueoftheinheritancebecausetheobligationis
Q:Whatistheextentofguarantorsliability? not purely personal and is therefore
transmissible.
A:
1. Where the guaranty is definite It is Q:Whatistheeffectofthedebtorsdeath?
limited in whole or in part to the
principal debt to the exclusion of A: His obligation will survive. His estate will be
accessories. answerable.Iftheestatehasnosufficientassets,
theguarantorshallbeliable.
2. Where the guaranty is indefinite or
simple It shall comprise not only the Q:Whatistherulewithrespecttojurisdictionin
principal obligation but also all its anactionbasedonacontractofguaranty?
accessories, including the judicial costs
provided that the guarantor shall only A: The guarantor shall be subject to the
beliableforthosecostincurredafterhe jurisdiction of the court of the place where the
hasbeenjudiciallyrequiredtopay. obligationistobecompliedwith.

395

BENEFITOFEXCUSSION 1. Guarantorhasexpresslyrenouncedit.
2. Guarantor has bound himself solidarily
Q:Whatisthebenefitofexcussion? withtheDebtor.
3. Debtorisinsolvent.
A: It is a right by which the guarantor cannot be 4. Guarantorhasabsconded,orcannotbe
compelledtopaythecreditorunlessthelatterhas sued within the Philippines unless he
exhausted all the properties of the principal leftamanagerorrepresentative.
debtor and has resorted to all legal remedies 5. Ifitmaybepresumedthatanexecution
againstsuchdebtor. on the property of the Debtor cannot
satisfytheobligation.
Q: What are the requisites of benefit of 6. Guarantor does not invoke the benefit
exhaustionorexcussion? against Creditor upon demand to him
forpaymentandhedoesnotpointout
A: available property of the Debtor within
The guarantor must set up the right of the Philippines sufficient to cover the
excussionagainstthecreditoruponthe obligation(Art.2060,NCC).
lattersdemandforpaymentfromhim; 7. Guarantor is a judicial bondsman or
and subsurety.
8. A pledge or mortgage of his own
He must point out to the creditor the property has been given by Guarantor
available property of the debtor (not asspecialsecurity.
exempted from execution) found 9. Guarantor fails to interpose it as a
within the Philippine territory (Art. defensebeforejudgmentisrendered.
2060,NCC).
BENEFITOFDIVISION
Q: May a complaint be filed against the debtor
andguarantorsimultaneouslyinonecasebefore Q:Whatistheprincipleofbenefitofdivision?
the exhaustion of all the properties of the
debtor? A:Shouldtherebeseveralguarantorsofonlyone
debtor for the same debt, the obligation to
A: Yes. There is nothing procedurally answer for the same is divided among all. (Joint
objectionable in impleading the guarantor as a liability)
codefendant. As a matter of fact, the Rules of
Court on permissive joinder of parties explicitly Note:
allow it. If the creditor obtained a favorable GR: Creditor can claim from the guarantors
judgment against the debtor and guarantor, the only up to the extent they are respectively
boundtopay.
latterisentitledtoadefermentoftheexecution

of the said judgment against him until all
XPN:Whensolidarityhasbeenstipulated.
properties of the debtor shall have been
exhausted to satisfy the latters obligation Should any of the guarantors become insolvent, his
involvedinthecase. share shall be borne by the other guarantors
including the paying guarantor in the same joint
Q:Whatistheeffectofdeclarationofinsolvency proportion in accordance with the rule in solidary
withrespecttotherightofexcussion? obligations.

A: Just because the debtor has been declared Therighttobereimbursedfromhiscoguarantorsis
insolvent in insolvency proceeding does not acquiredipsojurebyvirtueofsaidpayment.
necessarily mean that he cannot pay, for part of
the debtors assets may still be available to the Q:Distinguishbenefitofdivisionfrombenefitof
creditor.Onegoodproofofthedebtorsinability contribution.
to pay is an unsatisfied writ of execution which
has been returned by the implementing sheriff A:
(Machetti v. Hospicio de San Jose, 43 Phil. 297, BENEFITOF
BENEFITOFDIVISION
Feb.7,1920) CONTRIBUTION
Controversyisbetween Controversybetween
Q:Whenistherenobenefitofexcussion? thecoguarantorsand andamongtheseveral
thecreditor coguarantors
A:RJSAIRFEDS Thereisnopayment Thereisalready
396 CIVILLAWTEAM:

CREDIT TRANSACTIONS
yet,butthereismerely paymentofdebt;the Q: What is the effect of compromise between

aclaimpressedagainst payingcoguarantoris the creditor and the guarantor to the principal
oneormoreco seekingthecontribution debtor?
guarantors ofthecoguarantors
A: If compromise is beneficial to the principal
Q:Whatistheeffectofthecreditorsnegligence debtor, it is valid; otherwise, it is not binding
inexhaustingthepropertiesofthedebtor? upon him (2nd sentence, Art. 2063, NCC). To be
binding, it must benefit both the guarantor and
A: He shall suffer the loss to the extent of the thedebtor.
value of the pointed property which was not
exhaustedbythecreditor(Art.2061,NCC). Q:Whatistheruleontherightofindemnityand
reimbursement of the guarantor who paid the
Note: The article applies when the guarantor has debt?
compliedwiththeconditionsofArt.2060(requisites
ofbenefitofexcussion). A:
GR:Guarantorisentitledtobereimbursedby
Q:Whatistherulewithregardtoactionofthe Debtorfor:
creditoragainstthedebtor? 1. totalamountofthedebtpaid;
2. legal interest from the time payment
A: wasmadeknowntothedebtor;
GR:Onlytheprincipaldebtorshouldbesued 3. expenses incurred after notifying
alone. debtor that demand to pay was made
uponhim;and
XPN: If the benefit of excussion is not 4. damagesinaccordancewithlaw.
available, the guarantor can be sued jointly
withthedebtor. XPNs:
1. Guaranty is constituted without the
Q:Istheguarantorentitledtobenotifiedofthe knowledge or against the will of the
complaintagainstthedebtor? debtor.
Effect: Guarantor may only recover only
A:Yes.Iftheguarantordesirestosetupdefenses somuchaswasbeneficialtothedebtor.
as are granted him by law, he may have the
opportunitytodoso. 2. Payment by 3rd persons who does not
intendtobereimbursed.
Q: What are the consequences of the Effect: deemed a donation and as such
guarantors appearance or nonappearance in requirestheconsentofdebtor.
thecaseagainstthedebtor?
Q: What is the right of the guarantor after the
A: paymentofthedebtismadetothecreditor?
1. If he does not appear and judgment is
renderedagainstthedebtor,hecannot A: Right of subrogation. The guarantor is
setupdefenseswhichhecouldhaveset subrogated to all the rights which the creditor
st
up had he appeared; moreover, he hadagainstthedebtor(1 par.,Art.2067)
cannotquestionthedecisionanymore;
Q: What happens when guarantor pays without
2. Ifheappearssuchasbyfilingananswer noticetothedebtor?
inintervention,hemayloseormaywin
thecase.Ifhelosses,heisstillentitled A: The debtor may interpose against the
tothebenefitofexcussion.Thereisno guarantor defenses available to the debtor as
waiverofhisbenefitofexcussionbyhis against the creditor at the time payment was
appearanceinthecase. made.

Q: What is the effect of compromise between Note:
thecreditorandthedebtortotheguarantor? GR: Guarantormust1stnotifythedebtorbefore
paying, otherwise, if the debtor pays again, the
A: If the compromise is beneficial to the guarantorcanonlycollectfromthecreditorand
guarantor, it is valid; otherwise, it is not binding guarantor will have no cause of action against
st the debtor even if the creditor becomes
uponhim(1 sentence,Art.2063,NCC).
insolvent.
397

XPN:Guarantormaystillrecoverfromdebtor SUBGUARANTY
ifthefollowingcircumstancesconcur:
Q:Whatisdoubleorsubguaranty?
1. Guarantyisgratuitous;
2. Guarantor was prevented by fortuitous A: It is one constituted to guarantee the
eventfromnotifyingthedebtor;and obligationoftheguarantor.
3. Creditorwasinsolvent.
Note: In case of insolvency of the guarantor for
Q: Can the guarantor proceed against the whomheboundhimself,heisresponsibletotheco
principal debtor even before having paid the guarantorsinthesametermsastheguarantors(Art.
creditor? 2075,NCC).

A: Q: Is a subguarantor entitled to the right of
GR:No. excussion?

XPNs: A:Yes,bothwithrespecttotheguarantorandto
theprincipaldebtor(Art.2064,NCC).
1. Whenheissuedforpayment;
2. In case of insolvency of the principal CONTINUINGGUARANTY
debtor;
3. When the debtor has bound himself to Q:Whatiscontinuingguarantyorsuretyship?
relieve him from the guaranty within a
specified period, and this period has A:
expired. GR:Itisnotlimitedtoasingletransactionbut
4. Whenthedebthasbecomedemandable contemplates a future course of dealings,
byreasonoftheexpirationoftheperiod coveringaseriesoftransactionsgenerallyfor
ofpayment; anindefinitetimeoruntilrevoked.
5. After the lapse of ten years, when the
principal obligation has no fixed period XPN: A chattel mortgage can only cover
for its maturity, unless it be of such obligations existing at the time the mortgage
nature that it cannot be extinguished is constituted and not to obligations
except within a period longer than ten subsequenttotheexecutionofthemortgage.
years;
6. If there are reasonable grounds to fear XPN to the XPN: In case of stocks in
that the principal debtor intends to departmentstores,drugstoresetc.
abscond;or
7. If the principal debtor is in imminent Q:Whatisthetestofcontinuingguaranty?
dangerofbecominginsolvent.
A: A guaranty shall be construed as continuing
when by the terms thereof it is evident that the
Note: In all these cases, the cause of action of the objectistogiveastandingcredittotheprincipal
guarantor is either to obtain release from the debtor to be used from time to time either
guaranty,ortodemandasecuritythatshallprotect indefinitely or until a certain period, especially if
himfromanyproceedingsbythecreditorandfrom the right to recall the guaranty is expressly
the danger of insolvency of the debtor (Art. 2071, reserved (Dino v. CA, G.R. No. 89775, Nov. 26,
NCC). 1995)

Q:Whatistheremedyofapersonwhobecomes Q:Mayguarantysecurefuturedebts?
a guarantor at the request of another for the
debtofathirdpersonwhoisnotpresent? A: Yes. A guaranty may be given to secure even
future debts, the amount of which may not be
A:Hehastheoptionofsuingeithertheprincipal knownatthetimetheguarantyisexecuted.This
debtorortherequestingparty(Art.2072,NCC). is the basis for contracts denominated as
continuingguarantyorsuretyship.Itisonewhich
Note:Theprovisionapplieswhentheguarantorhas covers all transactions, including those arising in
actuallypaidthedebt. the future, which are within the description or
contemplation of the contract of guaranty, until
theexpirationorterminationthereof.(Dinov.CA,
G.R.No.89775,Nov.26,1995)
398 CIVILLAWTEAM:

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Q: PAGRICO submitted a Surety Bond issued by

R&BSuretytosecureanincreaseinitscreditline D.LEGALANDJUDICIALBONDS
withPNB.ForconsiderationoftheSuretyBond,
Cochingyan and Villanueva entered into an Q:WhatisaBond?
Indemnity Agreement with R&B Surety and
bound themselves jointly and severally to the A: A bond, when required by law, is commonly
termsandconditionsoftheSuretyBond.When understood to mean an undertaking that is
PAGRICOdefaulted,PNBdemandedpaymentto sufficiently secured, and not cash or currency.
R&B Surety; R&B Surety, in turn, demanded Whateversuretybondsaresubmittedaresubject
payment to Cochingyan and Villanueva. R&B to any objections as to their sufficiency or as to
suedthem.Villanuevaarguedthatthecomplaint thesolvencyofthebondsman.
was premature because PNB had not yet
proceeded against R&B Surety to enforce the Q:WhatisaBondsman?
latter's liability under the Surety Bond. Is the
contentioncorrect? A:Abondsmanisasuretyofferedinvirtueofa
provisionoflaworajudicialorder.Hemusthave
A: No. Indemnity Agreements are contracts of thequalificationsrequiredofaguarantorandin
indemnification not only against actual loss but speciallawsliketheRulesofCourt.
against liability as well. While in a contract of
indemnity against loss an indemnitor will not be Q:Whatarethequalificationstoaproperty
liable until the person to be indemnified makes bond?
payment or sustains loss, in a contract of
indemnity against liability, as in this case, the A: The necessary qualifications of sureties to a
indemnitor'sliabilityarisesassoonastheliability propertybondshallbeasfollows:
ofthepersontobeindemnifiedhasarisenwithout 1. Eachofthemmustbearesidentowner
regard to whether or not he has suffered actual ofrealestatewithinthePhilippines;
loss. Accordingly, R & B Surety was entitled to 2. Wherethereisonlyonesurety,hisreal
proceed against petitioners not only for the estate must be worth at least the
partial payments already made but for the full amountoftheundertaking;
amount owed by PAGRICO to the PNB. 3. Incasetherearetwoormoresureties,
(Cochingyan, Jr. v. R&B Surety and Ins. they may justify severally in amounts
Co.,GR.No.L47369,June30,1987) lass than that expressed in the
undertaking, if the entire sum justified
toisequivalenttothewholeamountof
C.EXTINGUISHMENTOFGUARANTY bail demanded. (Sec. 12, Rule 114,
RulesofCourt)
Q: What are the grounds for extinguishing a
contractofguaranty? Q:Whatisthenatureofabond?

A: A: All bonds including judicial bonds are
1. Principalobligationisextinguished contractualinnature.
2. Samecausesasallotherobligations
3. If creditor voluntarily accepts
immovable or other properties in
payment of the debt (even if he should Q:WhatisaJudicialBond?
afterwardslosethesamethrougheviction
orconveyanceofproperty) A: Judicial bonds constitute merely as a special
4. Release in favor of one of the class of contracts of guaranty, characterized by
guarantors, w/o consent of the others, thefactthattheyaregiveninvirtueofajudicial
benefitsalltotheextentoftheshareof order.
the guarantor to whom it has been
granted Q: Is the right of excussion available to a
5. Extensiongrantedtodebtorbycreditor bondsman?
withoutconsentofguarantor
6. When by some act of the creditor, the A:No.Ajudicialbondsmanandthesubsuretyare
guarantors even though they are not entitled to the benefit of excussion because
solidarilyliablecannotbesubrogatedto theyarenotmereguarantors,butsuretieswhose
the rights, mortgages, and preferences liabilitiesisprimaryandsolidary.(ART2084,NCC)
oftheformer
399

Q: What is the liability of the surety if the Q:Whatistheeffectofasuretybondfiledforan
creditorwasnegligentincollectingthedebt? alienstayinginthecountrywhichisforfeitedfor
violatingitsterms?
A: A surety is still liable even if the creditor was
negligent in collecting from the debtor. The A: The effect of the violation is that its
contract of suretyship is not that the oblige will subsequent unauthorized cancellation thru
seethattheprincipalpaysthedebtorfulfillsthe mistake or fraud does not relieve the surety. A
contract, but that the surety will see that the bond surrendered thru mistake or fraud may,
principalpayorperform(PNBv.ManilaSurety& therefore,beconsideredasavalidandsubsisting
FidelityCo.,Inc.,14SCRA776,1965) instrument.(FarEasternSuretyandIns.Co.,v.CA,
GRNo.L12019,Oct16,1958)
Q:Whatistheeffectofviolationbythecreditor
ofthetermsofthesuretyagreement? Q: What is the rule when the performance of a
bondisrenderedimpossible?
A:Aviolationbythecreditorofthetermsofthe
surety entitles the surety to be released A:Itisthesuretysdutytoinformthecourtofthe
therefrom. (Associated Ins. & Surety Co. v. happeningoftheeventsothatitmaytakeaction
BacolodMurciaMillingCo.,GR.No.L12334,May ordecreeinthedischargeofthesuretywhenthe
22,1959) performance of the bond is rendered impossible
by an act of God, or the obligee, or the law.
(Peoplev.OtiakOmal&LuzonCo.,Inc.,GR.No.L
14457,June30,1961)

PLEDGE,MORTGAGE,ANDANTICHRESIS

Q:Whatispledge,mortgageandantichresis?Distinguish.

A:
PLEDGE MORTGAGE(Real) ANTICHRESIS
Definition
Anaccessorycontractwherebyadebtor
Itisacontractwherebythedebtor
deliverstothecreditororathirdperson AcontractwherebytheCR
securestothecreditorthe
amovableorpersonalproperty,or acquirestherighttoreceivethe
fulfillmentofaprincipalobligation,
documentevidencingincorporealrights, fruitsofanimmovableofthe
speciallysubjectingtosuch
tosecurethefulfillmentofaprincipal dedtor,withtheobligationto
security,immovablepropertyor
obligationwiththeconditionthatwhen applythemtothepaymentof
realrightsoverimmovable
theobligationissatisfied,thething interest,ifowing,andthereafter
property,incasetheprincipal
deliveredshallbereturnedtothe totheprincipalofhiscredit.
obligationisnotpaidorcomplied
pledgorwithallitsfruitsandaccessions,
withatthetimestipulated.
ifany.
Objectofthecontract
movableorpersonalproperty,or immovablepropertyorrealrights
fruitsofanimmovable
documentevidencingincorporealrights overimmovableproperty

Q: What are the similarities of pledge and Q: Are the contracts of pledge, mortgage or
mortgage? antichresisindivisible?

A: A:
1. Bothareaccessorycontracts; GR: A pledge, mortgage or antichresis is
2. Both pledgor and mortgagor must be indivisible.
theabsoluteowneroftheproperty;
3. Bothpledgorandmortgagormusthave Note: Indivisibility may be waived. Indivisibility
thefreedisposaloftheirpropertyorbe onlyappliestothecontractingparties.
authorizedtodoso;and
4. In both, the thing proffered as security XPNs:
maybesoldatpublicauction,whenthe 1. Where each one of several things
principal obligation becomes due and guarantees determinate portion of the
nopaymentismadebythedebtor. credit
400 CIVILLAWTEAM:

CREDIT TRANSACTIONS
2. Where only a portion of the loan was GR:No.

released
3. Where there was failure of XPN: If the third party pledgor or mortgagor
consideration expressly agreed to be bound solidarily with
theprincipaldebtor.
Q:Whataretheobligationsthatcanbesecured
bypledge,mortgageandantichresis? Q: What is the right of an owner of personal
propertypledgedwithoutauthority?
A:
1. Validobligations A:HemayinvokeArt.559,NCC.Thedefensethat
2. Voidableobligations pawnshopowneracquiredownershipofthething
3. Unenforceableobligations ingoodfaithisnotavailable.
4. Naturalobligations
5. Conditionalobligations Note:Art.559Thepossessionofmovableproperty
acquired in good faith is equivalent to a title.
Q: What rules are common to pledge and Nevertheless,onewhohaslostanymovableorhas
mortgage? been unlawfully deprived thereof, may recover it
fromthepersoninpossessionofthesame.
A:
Constituted to secure the fulfillment of a If the possessor of a movable lost or of which the
ownerhasbeenunlawfullydeprived,hasacquiredit
validprincipalobligation.
in good faith at a public sale, the owner cannot
Pledgor or mortgagor must be the absolute
obtainitsreturnwithoutreimbursingthepricepaid
owner of the thing pledged or therefore.
mortgaged.
They must have the free disposal of their Q:Whatisthenatureofanassignmentofrights
property, and in the absence thereof, toguaranteeanobligationofadebtor?
thattheybelegallyauthorizedforsuch
purpose. A: It is in effect a mortgage and not an absolute
Debtor retains ownership of the thing given conveyance of title which confers ownership on
asasecurity. the assignee (Manila Banking Corp. v. Teodoro,
Jr.,G.R.No.53955,Jan.13,1989)
Q: May property acquirable in the future be
mortgaged? ACCOMMODATIONMORTGAGE

A: No. Where the mortgagor mortgaged a Q:Whoisanaccommodationmortgagor?
property and in the contract he agreed to
mortgage additional properties which he may A: He is a third person who is not a party to a
acquire in the future, there was no valid principal obligation and secures the latter by
mortgageastothelatterbecausehewasnotyet mortgagingorpledginghisownproperty.
the owner of the properties at the time of the
mortgage (Dilag v. Heirs of Ressurrecion, No. Q: What is the extent of the liability of an
48941,May6,1946). accommodationmortgagor?

Q: Is mortgage constituted to secure future A: It extends up to the loan value of their
advancesvalid? mortgaged property and not to the entire loan
itself.
A: Yes. It is a continuing security and not
dischargedbyrepaymentoftheamountnamedin
the mortgage, until the full amount of the PACTUMCOMMISSORIUM
advances is paid. A chattel mortgage can only
cover obligations existing at the time the Q:Whatispactumcommisorium?
mortgage is constituted and not to obligations
subsequenttotheexecutionofthemortgage. A:Itisastipulationwherebythethingpledgedor
mortgaged or subject of antichresis shall
Q:Isathirdpersonwhopledgedandmortgaged automatically become the property of the
hispropertyliableforanydeficiency? creditorintheeventofnonpaymentofthedebt
withinthetermfixed.Suchstipulationisnulland
A: void.
401

Q: What are the elements of pactum grant of authority to the bank to sell the
commissorium? leaseholdrightsincaseofdefaultisproofthatno
suchownershipwastransferredandthatamere
A: encumbrancewasconstituted.Therewouldhave
1. There is a pledge, mortgage or beennoneedforsuchauthorityhadtherebeena
antichresis of a property by way of cession.
security;and
2. There is an express stipulation for the No, the clause in question is not a pactum
automaticappropriationbythecreditor commissorium.Itispactum commissoriumwhen
ofthepropertyincaseofnonpayment default in the payment of the loan automatically
vests ownership of the encumbered property in
Note: What are prohibited are those stipulations thebank.Intheproblemgiven,thebankdoesnot
executed or made simultaneously with the original automatically become owner of the property
contract,andnotthosesubsequentlyenteredinto. upon default of the mortgagor. The bank has to
sell the property and apply the proceeds to the
Q: ABC loaned to MNO P40,000 for which the indebtedness.(2001BarQuestion)
latterpledged400sharesofstockinXYZInc.It
was agreed that if the pledgorfailed to pay the Q:XborrowedmoneyfromYandgaveapieceof
loan with 10% yearly interestwithin four years, land as security by way of mortgage. It was
the pledgee is authorized to foreclose on the expressly agreed between the parties in the
shares of stock. As required, MNO delivered mortgagecontractthatuponnonpaymentofthe
possession of the shares to ABC with the debt on time by X, the mortgaged land would
understanding that the shares would be already belong to Y. If X defaulted in paying,
returnedtoMNOuponthepaymentoftheloan. would Y now become the owner of the
However, the loan was not paid on time. A mortgagedland?Why?
month after 4 years, may the shares of stock
pledged be deemed owned by ABC or not? A: No, Y would not become the owner of the
Reason. land. The stipulation is in the nature of pactum
commissorium which is prohibited by law. The
A:Thesharesofstockcannotbedeemedowned propertyshouldbesoldatpublicauctionandthe
by ABC upon default of MNO. They have to be proceeds thereof applied to the indebtedness.
foreclosed.UnderArticle2088,NCC,thecreditor Anyexcessshallbegiventothemortgagor.
cannot appropriate the things given by way of
pledge. And even if the parties have stipulated Q: Suppose in the preceding question, the
thatABCbecomestheownerofthesharesincase agreementbetweenXandYwasthatifXfailed
MNOdefaultsontheloan,suchstipulationisvoid topaythemortgagedebtontime,thedebtshall
for being a pactum commissorium. (2004 Bar be paid with the land mortgaged by X to Y.
Question) Would your answer be the same as in the
precedingquestion?Explain.
Q:Tosecurealoanobtainedfromaruralbank,
Purita assigned her leasehold rights over a stall A:No,theanswerwouldnotbethesame.Thisis
in the public market in favor of the bank. The avalidstipulationanddoesnotconstitutepactum
deed of assignment provides that in case of commissorium. In pactum commissorium, the
default in the payment of the loan, the bank acquisition is automatic without need of any
shallhavetherighttosellPurita'srightsoverthe furtheraction.Intheinstantproblemanotheract
marketstallasherattorneyinfact,andtoapply is required to be performed, namely, the
theproceedstothepaymentoftheloan. conveyance of the property as payment (dacion
enpago).(1999BarQuestion)
Was the assignment of leasehold rights a
mortgageoracession?Why? Q: In order to secure a bank loan, XYZ
Assumingtheassignmenttobeamortgage,does Corporation surrendered its deposit certificate,
the provision giving the bank the power to sell withamaturitydateofSeptember1,1997tothe
Purita's rights constitute pactum commissorium bank. The corporation defaulted on the due
ornot?Why? repayment of the loan, prompting the bank to
encash the deposit certificate. XYZ Corporation
A: questioned the above action taken by the bank
Theassignmentwasamortgage,notacession,of as being a case of pactum commissorium. The
the leasehold rights. A cession would have bankdisagrees.Whatisyouropinion?
transferredownershiptothebank.However,the
402 CIVILLAWTEAM:

CREDIT TRANSACTIONS
A:Isubmitthatthereisnopactumcommissorium
here. Deposits of money in banks and similar Note: A thing lawfully pledged to one creditor,
institutions are governed by the provisions of cannot be pledged to another as long as the 1st
simple loans (Art. 1980, NCC). The relationship pledgesubsists.
between the depositor and a bank is one of
creditor and debtor. Basically, this is a matter of C.ESSENTIALREQUISITES
compensation as all the elements of
compensationarepresentinthiscase.(BPIv.CA, Q: What are the essential requisites for a
G.R. No. 104612, May 10, 1994) (1997 Bar contractofpledge?
Question)
A:
Q: Spouses Uy Tong purchased seven motor 1. Constitutedtosecurethefulfillmentof
vehicles from Bayanihan Investment payable in aprincipalobligation;
installments. It was agreed that if the spouses 2. Pledgor is the absolute owner of the
shouldfailtopaytheirobligation,Bayanihanwill thingpledged;
automatically be the owner of the apartment 3. Persons constituting the pledge have
which the spouses has a leasehold right. The the free disposal of their property, and
spousesafterpayingthedownpayment,failedto in the absence thereof, that they be
pay the balance, hence, Bayanihan filed an legallyauthorizedforthepurpose.(Art.
action for specific performance against the 2085,NCC)
spouses.Thejudgmentprovidedthatincasethe
spouses failed to pay the obligation within 30 Note:Acontractofpledgenotappearinginapublic
daysfromnotice,theyaretoexecuteaDeedof instrument does not affect its validity. It is valid
Absolute Sale over the apartment and/or betweentheparties.
leasehold rights. Is the stipulation a pactum
commissorium? Q: What kind of possession is required in
pledge?
A: No. The questioned agreement evinces no
basis for the application of pactum A:Themeretakingofthepropertyisnotenough.
commissorium. There is no contract of pledge or There must be continuous possession of the
mortgage entered into by the parties. Bayanihan thing. However, the pledgee is allowed to
sought the intervention of the court by filing an temporarilyentrustthephysicalpossessionofthe
actionforspecificperformance.Hencetherewas thingpledgedtothepledgorwithoutinvalidating
no automatic appropriation of the property. (Uy the contract. But here, the pledgor would be in
Tongv.CA,G.R.No.77465,May21,1988) possessionasameretrusteeandhispossessionis
subjecttotheorderofthepledgee.

IV.PLEDGE Q: Pablo owns a tractor which he left with his
sonMikeforsafekeeping.Mikethenofferedthe
A.DEFINITION saidtractortoCaliboassecurityforthepayment
ofhisdebt.WhenPablocamebackandlearned
Q:Whatispledge? thatthetractorwasinthecustodyofCalibo,he
demanded its return. Calibo, however, refused.
A:Acontractwheredebtordeliverstocreditoror Calibo alleged that the tractor was pledged to
rd
3 person a movable or document evidencing him, and in the alternative, the tractor was left
incorporeal right for the purpose of securing with him in the concept of deposit and he may
fulfillment of a principal obligation with the validly hold on to it until Mike pays his
understanding that when the obligation is obligation.IsCalibocorrect?
fulfilled,thethingdeliveredshallbereturnedw/
allitsfruitsandaccessions. A: No. There is no valid pledge because Mike is
nottheabsoluteownerofthe propertypledged.
B.KINDSOFPLEDGE He who is not the owner or proprietor of the
propertypledgedormortgagedtoguaranteethe
Q:Whatarethekindsofpledge? fulfillmentofaprincipalobligation,cannotlegally
constitutesuchaguarantyasmayvalidlybindthe
A: propertyinfavorofhiscreditor,andthepledgee
1. Conventionalbyagreementofparties or mortgagee in such a case acquires no right
2. Legalbyoperationoflaw whatsoever in the property pledged or
mortgaged. There is likewise no valid deposit, in
403

this case, where the principal purpose for D.OBLIGATIONSOFPLEDGORANDPLEDGEE
receivingtheobjectisnotsafekeeping.(CaliboJr.
v.CA,G.R.No.120528,Jan.29,2001) Q:Whoarethepartiesinacontractofpledge?

Q: Is constructive or symbolic delivery of the A:
thingsufficienttoconstitutepledge? 1. Pledgor the debtor; the one who
delivers the thing pledged to the
A: creditor
GR:No. 2. Pledgee the creditor; the one who
receivesthethingpledged
XPN:Ifthepledgeconsistsofgoodsstoredin
a warehouse for purposes, of showing the Q:Whataretherightsofapledgee?
pledgeescontroloverthegoods,thedelivery
to him of the keys to the warehouse is A:
sufficient delivery of possession 1. Retainthethinguntildebtispaid.(Art.
(constructive/symbolicdelivery). 2018,NCC)
2. To be reimbursed for the expenses
The type of delivery will depend upon the made for the preservation of the thing
nature and peculiar circumstances of each pledged.(Art.2099,NCC)
case(Yuliongsiuv.PNB,G.R.No.L19227,Feb. 3. Creditor may bring any action
17,1968) pertaining to the pledgor in order to
rd
recoveritfromordefenditagainsta3
Note: Constructive or symbolic delivery does not person.
confer physical possession of the thing, but by
construction of law, is equivalent to acts of real Q:Whataretheobligationsofapledgee?
delivery.
A:
Q:Whatistherationalebehindtherequirement 1. Takecareofthethingpledgedwiththe
that the pledge cannot take effect against third diligence of a good father of a family.
personsifthethingisnotdescribedandthedate (Art.2099,NCC)
doesnotappearinapublicinstrument?
Note: Pledgee is liable for the loss or
A: To forestall fraud because a debtor may deterioration of the thing by reason of
attempttoconcealhispropertyfromhiscreditors fraud, negligence, delay, or violation of
when he sees it in danger of execution by thetermsofthecontract.
simulating a pledge thereof with an accomplice
(TecBi&Co.v.CharteredBankofIndia,No.9802, 2. GR: Pledgee cannot deposit the thing
Feb.5,1916/March31,1917). pledgedtoa3rdperson.

Q:Whatisadoublepledge? XPN: Unless there is stipulation to the
contract(Art.2100,NCC)
A: A double pledge is when the same thing or
property subject of a first pledge will be the Note: Pledgee is liable for the loss or
subjectofanotherpledge. deteriorationofthethingpledgedcaused
bytheactsornegligenceoftheagentsor
Q:Cantherebeavaliddoublepledge? employeesofthepledgee.

A: No. A property already pledged cannot be 3. Apply the fruits, income, dividends, or
pledged while the first pledge is subsisting interests produced or earned by the
(Mission de San Vicente v. Reyes, No. 5508, Aug. property, to interests or expenses first,
14,1911). thentotheprincipal.(Art.2102,NCC)

Q: Can incorporeal rights evidenced by proper 4. GR: Cannot use the thing pledged
documentbepledged? withoutauthority.

A: Yes (Art. 2095, NCC). It is, however, required XPNs:
that the actual instrument be delivered to the a. If the pledgor had given him
pledge. More, if the instrument is a negotiable authorityorpermissiontouse
document,itmustbeindorsed. it;
404 CIVILLAWTEAM:

CREDIT TRANSACTIONS
b. If the use of the thing is Note: The remedies are alternative and not
necessary for its preservation cumulative. Only one may be chosen. The law used
butonlyforthatpurpose. theconjunctiveor.Eitheroneismoreconvenient
thanannulment.
5. Returnthethingpledgedtothepledgor
whentheprincipalobligationisfulfilled Q: What is the effect of the return of the thing
orsatisfiedit. pledgedtothepledgorbythepledgee?

Q:Doesthedebtorcontinuetobetheownerof A: The pledge shall be extinguished. Any
thethingincasethesameisexpropriatedbythe stipulation to the contrary shall be void (Art.
State? 2110,NCC).

A: No. Ownership is transferred to the Q: What is the presumption when the thing is
expropriatingauthority. found in the possession of the pledgor
subsequenttotheperfectionofthepledge?
Note: The creditor may bring actions pertaining to
theownerofthethingpledgedinordertorecoverit A:Thereisprimafaciepresumptionthatthething
from,ordefenditagainstathirdperson(Art.2103, pledgedhasbeenreturnedbythepledgeetothe
NCC). pledgor or owner, in any of the following
circumstances:
Q:Canthedebtoraskforthereturnofthething
pledgedagainstthewillofthecreditor? 1. Ifthethingisfoundinthepossessionof
the pledgor or owner after the pledge
A: hadbeenperfected;or
GR:No. 2. Ifthethingisfoundinthepossessionof
athirdpersonwhoreceiveditfromthe
XPNs: pledgororowneraftertheperfectionof
nd
1. If the debtor has paid the debt and its thepledge(2 par.,Art.2110,NCC).
interest,withexpensesinapropercase
(Art.2105,NCC). Note:Itispresumedthattheaccessoryobligationof
2. If the thing is in danger of destruction pledge has been remitted when the thing pledged,
or impairment provided, the pledgor after its delivery to the creditor, is found in the
offers an acceptable substitute for it possession of the debtor, or of a third person who
which is of the same kind and not of ownsthething(Art.1274,NCC).
inferiorqualityandwithoutprejudiceto
the application of Art. 2108 whenever Q:Whatistherequisitefortherenunciationor
warranted. abandonmentofthepledgebythepledgee?

Q: Can the pledgee cause the sale of the thing A: There must be a statement in writing to that
st
pledgedinpublicauctionwheretheobligationis effect(1 sentence,Art.2111,NCC).
notyetdue?
Note:Therenunciationofthepledgeisnotcontrary
A:Yes,ifwithoutthefaultofthepledge,thereis to law, public order, public policy, morals or good
danger of destruction, impairment or diminution customs.Further,Art.1356oftheNCC,whichspeaks
oftheformofcontracts,mustbecompliedwith.
invalueofthethingpledged.Theproceedsofthe

auction shall be security for the principal
Q:Isacceptanceorreturnofthethingnecessary
obligation in the same manner as the thing
for the validity of the renunciation under Art.
originallypledged(Art.2108,NCC).
2111?

Q: What are the rights of the creditor who is
A: No. it is not a case of donation where
deceivedonthesubstanceorqualityofthething
acceptance is necessary to make the donation
pledged?
valid.

A:Todemand:
Q:Supposethethingwasnotreturned,isthere
1. from the pledgor an acceptable
extinctionofthepledge?
substituteofthething;or

2. theimmediatepaymentoftheprincipal
A:Yes.Evenifthethingwasnotreturned,aslong
obligation(Art.2109,NCC).
as there is an effective renunciation,
405

abandonment or waiver, the pledge is already Note:Thesameruleappliestopromissorynotes,bill
extinguished. of exchange and other negotiable instruments
because they produce the effect of payment only
The pledgor is considered a depositor and the whentheyhavebeenencashed.
pledgee shall become a depositary of the thing.
Accordingly,thelawondepositwillapply. Paymentincashmustbemadeatonce.

Q: What is the right of the pledgee when the Q:Mayathirdpersonpaythepledgorsdebt?
debthasnotbeensatisfiedinduetime?
A:Yes,ifhehasanyinterestinthefulfillmentof
A:Thepledgeehastherighttoproceedwiththe theprincipalobligation(Art.2117,NCC).
saleofthethingatapublicauctiontoraisefunds
forpaymentoftheobligation(Art.2112,NCC). Q:Whatistherulewhenwhathasbeenpledged
isacredit?
Q:Whataretherequisitesofpublicsale?
A: The pledgee may collect and receive the
A: amount due. He shall apply the same to the
1. Theobligationmustbedueandunpaid; payment of his claim, and deliver the surplus,
2. Thesaleofthethingmustbeatapublic should there be any, to the pledgor (Art. 2118,
auction; NCC).
3. There must be notice to the pledgor
and owner stating the amount for Q: Santos made time deposits with OBM. IRC,
whichthesaleistobeheld;and through its president Santos, applied for a loan
4. ThesalemustbeconductedbyaNotary withPNB.Tosecuretheloan,Santosexecuteda
Public. DeedofAssignmentofthetimedepositsinfavor
of PNB. When PNB tried to collect from OBM,
Q:Whatisdeedofacquittance? the latter did not pay the CTDs. PNB then
demanded payment from Santos and IRC, but
A:Itisadocumentofthereleaseordischargeof the latter refused payment alleging that the
the pledgor from the entire obligation including obligationwasdeemedpaidwiththeirrevocable
interestsandexpenses.Thisshallbeexecutedby assignmentoftheCTDs.
thepledgeeafterappropriatingthethingincasea
nosalewasmadeinasecondauction. IstheliabilityofIRCdeemedpaidbyvirtue
ofthedeedofassignment?
Q: May the pledgor participate in the public IsOBMliablefordamages
auction? A:
1. No. For all intents and purposes, the
A:Yes.Moreover,heshallhaveabetterrightifhe deed of assignment in this case is
offersthesametermsasthehighestbidder[Art. actually a pledge. Where a CTD in a
2113(1),NCC]. bank, payable at a future time, was
handedoverbyadebtortohiscreditor,
Q:Whocanbidinthepublicauction? itwasnotpayment,unlesstherewasan
express agreement on the part of the
A: creditortoreceiveitassuch.
1. Thepublic 2. Yes. While it is true that no interest
2. Pledgor/owner/debtor shall be shallbedueunlessithasbeenexpressly
preferred if same terms as the highest stipulatedinwriting,thisappliesonlyto
bidderisoffered interest for the use of money. It does
3. Pledgee/creditor he must not be the not comprehend interest paid as
only one bidder, otherwise, his bid is damages. Santos has the right to
invalidandvoid recover damages resulting from the
default of OBM and the measure of
Q: Can checks be accepted as payment as such damages is interest at the legal
purchasepriceinapublicsale? rate of 6% per annum on the amounts
dueandunpaidattheexpirationofthe
A:No,theyarenotlegaltenders.(CFIv.CA,No.L periods respectively provided in the
4191,April30,1952). contracts. (Integrated Realty Corp. v.
PNB,G.R.No.60705,June28,1989)

406 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q:Whatistherulewhentwoormorethingsare 2. Nofaultonthepartofthepledge
pledged? 3. Pledgorisofferinginplaceofthething,
another thing in pledge which is of the
A:Thepledgeemaychoosewhichhewillcauseto same kind and quality as the former;
be sold, unless there is a stipulation to the and
st
contrary(1 sentence,Art.2119,NCC). 4. Pledgeedoesnotchoosetoexercisehis
right to cause the thing pledged to be
Q: What is the restriction on the right of the soldatpublicauction(Art.2107,NCC)
pledgeeunderthe1stsentenceofArt.2119?
F.PERFECTION
A:Hemayonlydemandthesaleofonlyasmany
ofthethingsasarenecessaryforthepaymentof Q:Howisacontractofpledgeperfected?
nd
thedebt(2 sentence,Art.2119,NCC).
A: A contract of pledge is perfected when the
E.RIGHTSOFPLEDGOR thingpledgedisplacedintheactualpossessionof
or delivered to the pledgee or a third person
Q:Whataretherightsofthepledgor? designated by the parties by common consent.
(Art.2093,NCC)
A:
1. Right to dispose the thing pledged, Note:IfArt.2093isnotcompliedwith,thepledge
provided there is consent of the isvoid.
pledgee(Art.2097,NCC)
2. Right to ask that the thing pledged be Q:FourcarabaoswerepledgedbyTtoE.Tisthe
deposited (Art. 2104 and Art. 2106, registered owner of the carabaos. The carabaos
NCC) wereactuallyinthepossessionofJ.Enevertook
3. Right to substitute thing pledged (Art. possession of the carabaos. There is nothing in
2107,NCC) thecontractwhichstatedthatJwasbycommon
consentmadethedepositaryofthecarabaosin
Q: When may the owner ask that the thing Esbehalf.Istherealawfullyconstitutedpledge?
pledged be deposited judicially or
extrajudicially? A: None. The delivery of possession of the
property pledged requires actual possession and
A: ameresymbolicdeliveryisnotsufficient.(Betita
1. If the creditor uses the thing without vGanzon,49Phil.87)
authority
2. Ifhemisusesthethethinginanyother Q: What is the effect when possession or
way;or deliveryofthethingpledgedwasnotmade?
3. Ifthethingisindangerofbeinglostor
impaired because of the negligence or A:Anagreementtoconstituteapledgeonlygives
willfulactofthepledge(Art.2106,NCC) risetoapersonalactionbetweenthecontracting
parties.Unlessthemovablegivenasasecurityby
Q: Does the pledgor have the right to demand way of pledge be delivered to and placed in the
the return of the thing pledged against the will possession of the creditor or of a third person
ofthecreditor? designated by common agreement, the creditor
acquiresnorighttothepropertybecausepledge
A: No. He cannot ask for its return until the ismerelyalienandpossessionisindispensableto
obligation is fully paid including interest due therightofalien.
thereon and expenses incurred for its
preservation(Art.2105,NCC) Q:Whatistheeffectifthepledgeefailstotake
thepropertypledgedintohispossession?
Q: What are the requisites before the pledgor
may substitute the thing pledged with another A: If a pledgee fails or neglects to take the
thing? property pledged into his possession, he is
presumed to have waived the right granted him
A: bythecontract.(U.S.v.Terrel,2Phil.222)
1. Pledgorhasreasonablegroundstofear
the destruction or impairment of the
thingpledged;
407

Q:Whataretherequisitestobindthirdpersons A:Whenthereisnopaymentofthedebtontime,
inacontractofpledge? theobjectofthepledgemaybealienatedforthe
purposeofsatisfyingtheclaimsofthepledgee.
A: To bind third persons, the pledge must be
embodied in a public instrument where the Q:Whatistheprocedureforthepublicsaleofa
followingentriesmustappear thingpledged?
Adescriptionofthethingpledged;and
Statement of date when the pledge was A:
executed.(Art.2096,NCC) 1. Theobligationmustbedueandunpaid
2. Thesaleofthethingpledgedmustbeat
Q:AisindebtedtoB.Apledgeshisdiamondring publicauction
toB.TheringisdeliveredtoB,butinthepublic 3. Theremustbenoticetothepledgor
instrument executed, there is no description of andowner,statingtheamountfor
the ring, and the date of the pledge does not whichthesaleistobeheld
appear. If A sells the ring to C, does C have to 4. ThesalemustbeconductedbyNotary
respectthepledgeinfavorofB? Public.

A: No. C does not have to respect the pledge H.PLEDGEBYOPERATIONOFLAW
since as to him, the pledge is not effective and
valid. Q:Whatisapledgecreatedbyoperationoflaw?

Q:Whatisthereasonbehindtherequisites? A:PledgebyoperationoflaworLegalPledgesare
thoseconstitutedorcreatedbyoperationoflaw.
A:Thepurposeoftherequirementsistoforestall Thisreferstotherightofretention.
fraud, because a debtor may attempt to conceal
hispropertyfromhiscreditorswhenheseesitin Q:Whatrulesapplytolegalpledge?
danger of execution by simulating a pledge
thereof with an accomplice. (Tec Bi & Co. v. A:
CharteredBankofIndia,41Phil.576) 1. The rules governing conventional
pledgeapplies.
Q: What is the effect if no public instrument is 2. There is no definite period for the
made? paymentoftheprincipalobligation.The
pledgemust,therefore,makeademand
A:Whenthecontractofpledgeisnotrecordedin for the payment of the amount due
a public instrument, it is void as against third him. Without such demand, he cannot
persons;thebuyerofthethingpledgedisathird exercise the right of sale at public
person. The fact that the person claiming as auction.(DeLeon)
pledgee has taken actual physical possession of
the thing sold will not prevent the pledge from Q:Whataretheinstancesoflegalpledgeswhere
being declared void insofar as the innocent thereisrightofretention?
stranger is concerned. (Tec Bi & Co. v. Chartered
Bank of India, Australia and China, 16 O.G. 908; A:
Ocejo, Perez and Co. v. International Bank, 37 1. Art. 546 Right of the possessor in
Phil.631) good faith to retain the thing until
refundedofnecessaryexpenses.
Q: What is the effect of an undated contract of 2. Art. 1707 Lien on the goods
pledge? manufactured or work done by a
laboreruntilhiswageshadbeenpaid.
A:Anundatedinstrumentofpledgecannotripen 3. Art. 1731 Right to retain of a worker
intoavalidpledge.(Betitav.Ganzon,49Phil.87) who executed work upon a movable
untilheispaid.
G.FORECLOSURE 4. Art. 1914 Right of an agent to retain
the thing subject of the agency until
Q: When may a pledgee foreclose the thing reimbursed of his advances and
pledged? damages(Arts.1912and1913,NCC).
5. Art. 1994 Right of retention of a
depositaryuntilfullpaymentofwhatis
duehimbyreasonofthedeposit.
408 CIVILLAWTEAM:

CREDIT TRANSACTIONS
6. Art.2004Rightofthehotelkeeperto evenifthereisastipulationthathebe
retain things of the guest which are soliable.Suchstipulationisvoid.
brought into the hotel, until his hotel
billshadbeenpaid. Q: What is the meaning of the right of the
mortgageeorpledgeetoforeclose?
Q: What must the pledgee do before he may
causesaleofthethingpledged? A: If the debtor failed to pay on maturity date,
the thing pledged or mortgaged may be sold at
A:Thepledgeemustfirstmakeademandofthe public auction as provided by law so that the
amountforwhichthethingisretained.Afterthe proceeds may be used for payment of the
demand,thepledgeemustproceedwiththesale obligation.
of the thing within thirty (30) days. Otherwise,
the pledgor can require of him the return of the
I.PLEDGEDISTINGUISHEDFROMMORTGAGE
thingretained.

Note: there is only one public auction here. Q: Distinguish contract of pledge from chattel
(Paras) mortgage.

Q: To whom will the remainder of the price A:
pertain? CHATTELMORTGAGE PLEDGE
Delivery
A: The remainder of the price of sale shall be Deliveryisnotnecessary Deliveryisnecessary
deliveredtotheobligor.(Art.2121) Registration
Registrationinthe
Registrationinthe
ChattelMortgageregister
Q:Whataretheinstanceswhenthepledgormay RegistryPropertyisnot
isnecessaryforits
demand that the thing pledged be deposited necessary.
validity
judiciallyorextrajudicially?
Lawgoverningthesale
Procedureforthesaleof
A: thethinggivenas
1. Creditor uses the thing without Art.2112,NCC
securityisgovernedby
authority Sec.14,ActNo.1508
2. Creditormisusesthething
3. The thing is in danger of being lost or
impaired due to the negligence or Excess
willfulactsofthepledgee. Ifthepropertyissold,the
Ifthepropertyis
debtorisnotentitledto
foreclosed,theexcess
Q: What are the effects of sale of the thing theexcessunless
goestothedebtor
pledged? otherwiseagreed.
Recoveryofdeficiency
A: Thecreditorisentitledto
Thecreditorisnot
1. Extinguish the principal obligation even recoverthedeficiency
entitledtorecoverthe
iftheproceedsofthesaledonotsatisfy fromthedebtorexceptif
deficiency
thewholeamountoftheobligation. thechattelmortgageisa
notwithstandingany
2. If proceeds from the sale exceed the securityforthepurchase
stipulationtothe
amount due, the debtor is not entitled ofpropertyin
contrary.
to the excess, the excess goes to the installments
Possession
pledgee. This is to compensate him for
Possessionremains with Possessionisvested in
the eventuality where the purchase
thedebtor thecreditor
price is lesser than the amount of the
Contract
debt, wherein he cannot receive any
Formalcontract Realcontract
deficiency unless there is a contrary
Recordinginapublicinstrument
agreement or in case of legal pledge,
Mustbeinapublic
thepledgorisentitledtotheexcess
instrumentcontaining
3. If the proceeds of the sale is less than Mustberecordedina
descriptionofthething
the amount due, the creditor has no publicinstrumenttobind
pledgedandthedate
right to recover the deficiency and the thirdpersons
thereoftobindthird
pledgor is not liable for the deficiency persons

409

Q: Distinguish contract of pledge from real 1. It covers only immovable property and
estatemortgage. alienable real rights imposed upon
immovables
A: 2. Itmustappearinapublicinstrument
REALESTATE 3. Registration in the registry of property
PLEDGE rd
MORTGAGE isnecessarytobind3 persons
Realcontract Consensualcontract
Subjectmatteris Subjectmatterisreal Q:Whatarethekindsofrealmortgages?
personalproperty property
Possessionofthething Possessionofthething A:
pledgedisvestedinthe mortgagedremainswith 1. Conventional mortgages constituted
creditor thedebtor voluntarilybythecontractingparties.
Pledgeehastherightto 2. Legalmortgagerequiredbylaw.
receivethefruitsofthe 3. Equitable mortgage intention of the
thingpledged,withthe parties is to make the immovable as a
obligationofapplyingthe Mortgageedoesnot
security for the performance of the
sametotheinterestof possesssuchright
obligation but the formalities of a real
thedebt,ifowing,and
thebalance,ifany,tothe
mortgagearenotcompliedwith.
principal
Saleatpublicauctionof Q: Distinguish contract of real estate mortgage
Salemaybejudicialor fromcontractofsalewithrightofrepurchase.
thethingpledgedis
extrajudicial
alwaysextrajudicial
Descriptionofthething A:
Mustberegistered, REALESTATE SALEWITHRIGHTOF
andthedateofpledge
otherwise,itisnotvalid MORTGAGE REPURCHASE
mustappearinapublic
againstthirdpersons Principaland
instrumentotherwise,it Accessorycontract
althoughbinding independentcontract
isnotvalidastothird
betweentheparties
person Thereistransferoftitle
Thereisnotransferof
Realrightandreal andpossessionofthe
Notarealright titleandpossessionof
propertybyitself property,although
theproperty
conditional
Creditorhasnorightto Thevendeearetrois
thefruitsoftheproperty entitledtothefruitseven
V.REALMORTGAGE duringthependencyof duringtheperiodof
themortgage redemption
A.DEFINITIONANDCHARACTERISTICS Ifthedebtorfailstopay Assoonasthereisa
hisdebt,thecreditor consolidationoftitlein
Q:Whatisrealestatemortgage(REM)? cannotappropriatethe thevendeearetro,he
propertymortgagednor maydisposeofitasan
A:Itisacontractwherebythedebtorsecuresto disposeofit absoluteowner
the creditor the fulfillment of the principal
obligation, specially subjecting to such security Q:Isregistrationofmortgageamatterofright?
immovable property or real rights over
immovable property in case the principal A:Yes.Byexecutingthemortgage,themortgagor
obligationisnotfulfilledatthetimestipulated is understood to have given his consent to its
registration, and he cannot be permitted to
Note:Registrationisnecessarytobindthirdpersons revokeitunilaterally.
butnotforthevalidityofthecontract.
Q: What is the meaning of mortgage as a real
Beinganaccessorycontract,itsconsiderationisone andinseparableright?
andthesameasthatoftheprincipalobligation.
A: The mortgage directly and immediately
B.ESSENTIALREQUISITES subjects the property upon which it is imposed,
whoeverthepossessormaybe,tothefulfillment
Q:Whataretherequisitesforvalidconstitution of the obligation for whose security it was
ofarealmortgage? constituted(Art.2126,NCC).

A:
410 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q:Whatarethethingsthataredeemedincluded instrumenttheintenttosecurefutureandother
inthemortgage? indebtednesscanbegathered.Amortgagegiven
to secure advancement is a continuing security
A: and is not discharged by repayment of the
1. Naturalaccessions amount named in the mortgage, until the full
2. Improvements amount of the advancements is paid (Mojica v.
3. Growingfruits CA,G.R.No.94247,Sept.11,1991).
4. Rents
5. Income Q: May a mortgage credit be alienated or
6. Insuranceproceeds assignedtoathirdperson?
7. Expropriationprice(Art.2127,NCC)
A: Yes, in whole or in part, with the formalities
Q: When does the mortgage lien attach in case requiredbylaw(Art.2128,NCC).
ofneworfutureimprovements?
Q: What are the requisites to be followed for
A:Onthedateoftheregistrationofthemortgage assignmentofcredit?
(Luzon Lumber and Hardware Co., Inc, v.
Quiambao,G.R.No.L5638,Mar.20,1954). A:Anassignmentofacredit,rightoractionshall
producenoeffectasagainstthirdpersons,unless
Q:Whatisdragnetclause? it appears in a public instrument, or the
instrumentisrecordedintheRegistryofProperty
A: It is a mortgage provision which is specifically incasetheassignmentinvolvesrealproperty(Art.
phrased to subsume all debts of past or future 1625,NCC).
origin.Suchclausesarecarefullyscrutinizedand
strictlyconstrued.Themortgagecontractisalso Q:Maythecreditorclaimfromthethirdperson
one of adhesion (Philippine Bank of in possession of the property payment of the
Communications v. CA, G.R. No. 118552, Feb. 5, credit?
1996).
A:Yes,uptotheextentsecuredbytheproperty
Q: Is the amount stated in the contract which the third party possesses, in terms and
controlling in case of mortgage securing future with the formalities which the law establishes
advancements? (Art.2129,NCC).

A: No. The amount named in the contract does Q: Is a stipulation forbidding the owner from
not limit the amount for which the mortgage alienatingtheimmovablemortgagedvalid?
standasasecurity,if,fromthefourcornersofthe
instrumenttheintenttosecurefutureandother A: No. The prohibition to alienate is contrary to
indebtednesscanbegathered. public good inasmuch as the transmission of
property should not be unduly impeded (Report,
Q: Petitioner obtained a loan of P20K from CodeCommission,p.58).
defendant Rural Bank of Kawit. The loan was
secured by a REM over a parcel of land. The Q: What are the laws that govern contract of
mortgagecontractstatesthatthemortgagewill realmortgage?
coverthepaymentoftheloanofP20Kandsuch
other loans or other advances already obtained A:
or to be obtained by the mortgagors from the 1. NewCivilCode
bank.TheloanofP20kwasfullypaid.Thereafter 2. MortgageLaw
they again obtained a loan of P18K, secured by 3. PropertyRegistrationDecree(PD1529)
thesamemortgage.Thespousesdefaulted.The 4. Sec.194,asamendedbyActNo.3344,
bank extra judicially foreclosed the mortgage. RevisedAdministrativeCode(Phil.Bank
Wastheforeclosuresalevalid? of Commerce v. De Vera, G.R. No. L
18816,Dec.29,1962)
A: Yes. It has long been settled that mortgages 5. R.A. 4882 law governing aliens who
given to secure future advancements are valid becomemortgagees.
and legal contracts; that the amounts named as
consideration in said contract do not limit the
amount for which the mortgage may stand as
security, if from the four corners of the
411

C.FORECLOSURE (Maglaque v. Planters Development
Bank,GRNo.109472,May18,1999).
Q:Whatisforeclosure?
Q: When is judicial foreclosure considered
A: It is a remedy available to the mortgagee in completed?
whichhesubjectsthemortgagedpropertytothe
satisfactionoftheobligation. A: A foreclosure sale is not complete until it is
confirmed and before such confirmation, the
Q:Whatarethekindsofforeclosure? court retains control of the proceedings by
exercising sound discretion in regard to it either
A: grantingorwithholdingconfirmationastherights
Judicial governed by Rule 68, Rules of and interests of the parties and the ends of
Court justice may require (Rural Bank of Oroquieta v.
Extrajudicial mortgagee is given a SPA to CA,No.53466,Nov.10,1980).
sell the mortgaged property (Act No.
3135) Q: What is the significance of confirmation in
judicialforeclosure?
Q:Whatisthenatureofjudicialforeclosure?
A: Confirmation cuts off all the rights and
A: It is an action quasi in rem (Ocampo v. interestsofthemortgagorandofthemortgagee
Domalanta,20SCRA1136). and persons holding under him, and with them
the equity of redemption in the property and
Q: Does an action for foreclosure of mortgage vests them in the purchaser. Confirmation
survivethedeathofmortgagor? retroactstothedateofthesale.Itisafinalorder,
not interlocutory (Ocampo v. Domalanta, No. L
A:Yes,becausetheclaimisnotpuremoneyclaim 21011,Aug.30,1967).
but an action to enforce a mortgage lien. Being
so, the judgment rendered therein may be Note:Ifthepropertyhasbeenmortgagedinfavorof
enforced by a writ of execution. The action may thePhilippineNationalBank,redemptionisallowed
be prosecuted by the interested person against within one year from the confirmation of the sale
the executor or administrator independently of (Gonzalesv.PNB,No.24850,March1,1926).
the testate or intestate proceedings of the
settlement of the mortgagors estate for the Theredemptionmustbemadewithinoneyearafter
reason that such claims cannot in any just sense thesale,ifthemortgageeisabank,bankingorcredit
institutions(Sec.78,R.A.337).
be considered claims against the estate, but the

right to subject specific property to the claim
Q:Whataretheeffectsofconfirmationofsale?
arises from the contract of the debtor whereby

hehasduringlifesetasidecertainpropertyforits
A: There can be no redemption of the property.
payment, and such property does not, except in
Such confirmation retroacts to the date of the
sofarasitsvaluemayexceedthedebt,belongto
auctionsale.Aftertheconfirmation,theprevious
the estate (Testamentaria de Don Amadeo
ownersloseanyrighttheymayhavehadoverthe
Matute Olave v. Canlas, No. L12709, Feb. 28,
property, which rights in turn vested on the
1962).
Purchaser of the property (Lonzame v. Amores,
Q: What are the options or remedies of the
No.L53620,Jan.31,1985).
mortgageeincaseofdeathofthedebtor?

Q:Whatisthebasisofextrajudicialforeclosure?
A:

1. To waive the mortgage and claim the
A: An extrajudicial foreclosure may only be
entire debt from the estate of the
effected if in the mortgage contract covering a
mortgagorasanordinaryclaim;
realestate,aclauseisincorporatedthereingiving
2. Toforeclosethemortgagejudiciallyand
the mortgagee the power, upon default of the
prove any deficiency as an ordinary
debtor, to foreclose the mortgage by an
claim;or
extrajudicial sale of the mortgage property (Sec.
3. To rely on the mortgage exclusively,
1,ActNo.3135,asamendedbyActNo.4148).
foreclosingthesameatanytimebefore

it is barred by prescription, without
The authority to sell may be done in a separate
right to file claim for any deficiency
document but annexed to the contract of
mortgage. The authority is not extinguished by
412 CIVILLAWTEAM:

CREDIT TRANSACTIONS
thedeathofthemortgagorormortgageeasitis availabletothepublicingeneral,andnotjusttoa
an essential and inseparable part of a bilateral select few chosen by the publisher. Otherwise,
agreement (Perez v. PNB, No. L21813, July 30, the precise objective of publishing the notice of
1966). sale in the newspaper will not be realized.
(Metropolitan Bank and Trust Company, Inc. v.
Q:Howisextrajudicialforeclosureinitiated? EugenioPeafiel,G.R.No.173976,Feb.27,2009)

A:Byfilingapetitionwiththeofficeofthesheriff. Q: May a mortgagor enjoin the implementation
It may also be initiated through a Notary Public ofawritofpossessiononthegroundthatthere
commissionedintheplacewherethepropertyis is a pending case for annulment of the
situated. extrajudicialforeclosureoftheREM?

Note: Notice containing the place and date is A: No. As a rule, any question regarding the
required before an auction sale is made in validityofthemortgageoritsforeclosurecannot
extrajudicialforeclosure.(Sec.3,ActNo.3135) be a legal ground for refusing the issuance of a
writ of possession. Regardless of whether or not
Q: What governs extrajudicial foreclosure by there is a pending suit for annulment of the
PNB? mortgage or the foreclosure itself, the purchaser
is entitled to a writ of possession, without
A:ThesameshallbegovernedbySections29,30 prejudice to the outcome of the case. Hence, an
and 34 of Act No. 3135 and not by the PNB injunction to prohibit the issuance of writ of
Charter(PNBv.CA,G.R.No.60208,December5, possession is entirely out of place. Prohibition
1985). does not lie to enjoin the implementation of a
writ of possession. Once the writ of possession
Q: What are the requisites of notice of sheriffs hasbeenissued,thetrialcourthasnoalternative
sale? buttoenforcethewritwithoutdelay.(Sps.Ongv.
CA,G.R.No.121494,June8,2000)
A: It must contain the correct number of the Q:Canthemortgageerecoverthedeficiency?
certificate of title and the correct technical
description of the real property to be sold (San A: If there be a balance due to the mortgagee
Josev.CA,GRNo.106953,Aug.19,1993). after applying the proceeds of the sale, the
mortgagee is entitled to recover the deficiency
Q:Whatisthepurposeofnoticeofsale? (DBPv.Mirang,G.R.No.L29130,Aug.8,1975).

A: To inform the public of the nature and Note: In judicial foreclosure, the Rules of Court
condition of the property sold, and of the time, specificallygivesthemortgageetherighttoclaimfor
placeandtermsofthesale. deficiencyincaseadeficiencyexists(Sec.6,Rule70).

Q: MBTC granted a loan to spouses Peafiel, While Act No. 3135 governing extrajudicial
who mortgaged their two (2) parcels of land in foreclosuresofmortgagedoesnotgiveamortgagee
Mandaluyong. The spouses defaulted in the the right to recover deficiency after the public
payment. MBTC instituted an extrajudicial auction sale, neither does it expressly or impliedly
foreclosureproceedingunderActNo.3135.The prohibitsuchrecovery.
Notice of Sale was published in Maharlika
This right to recover deficiency had been
Pilipinas, which has no business permit in
categoricallyresolvedinStateInvestmentv.CA(G.R.
Mandaluyong and its list of subscribers shows
No.101163,January11,1993).Thus,themortgagee
that there were no subscribers from isentitledtorecoverthedeficiencyincasethesale
Mandaluyong. Did MBTC comply with the proceeds are not sufficient to cover the debt in
publication requirement under Section 3, Act extrajudicialforeclosures.
No.3135?
The action to recover a deficiency after foreclosure
A: No. Maharlika Pilipinas is not a newspaper of prescribes after ten (10) years from the time the
general circulation in Mandaluyong where the rightofactionaccruesasprovidedinArticle1144(2),
propertyislocated.Tobeanewspaperofgeneral NCC (DBP v. Tomeldan, G.R. No. 51269, Nov. 17,
circulation,itisenoughthatitispublishedforthe 1980).
dissemination of local news and general
information, that it has a bona fide subscription
listofpayingsubscribers,andthatitispublished
at regular intervals. The newspaper must be
413

Q:Whatisstipulationofupsetprice? Registration may be granted in the name of the
mortgagee but subject to the subordinate lien
A: It is a stipulation of minimum price at which holders equity of redemption, which should be
thepropertyshallbesoldtobecomeoperativein exercised within ninety (90) days from the date
theeventofaforeclosuresaleatpublicauction.It the decision becomes final. This registration is
isnullandvoid. merelyanecessaryconsequenceoftheexecution
of the final deed of sale in the foreclosure
REDEMPTION proceedings. (Looyuko v. CA, G.R. No. 102696,
July12,2001)
Q:Whatisredemption?
Q: What are the requisites for valid right of
A:Transactionbywhichthemortgagorreacquires redemption?
orbuysbackthepropertywhichmayhavepassed
underthemortgageordiveststhepropertyofthe A:
lienwhichthemortgagemayhavecreated. 1. Mustbemadewithinoneyearfromthe
timeoftheregistrationofthesale.
Q:Whatarethekindsofredemption? 2. Payment of the purchase price of the
property plus 1% interest per month
A: togetherwiththetaxesthereon,ifany,
1. Equity of redemption right of paid by the purchaser with the same
mortgagor to redeem the mortgaged rateofinterestcomputedfromthedate
property after his default in the ofregistrationofthesale;and
performance of the conditions of the 3. Written notice of the redemption must
mortgage but before the sale of the beservedontheofficerwhomadethe
mortgaged property or confirmation of sale and a duplicate filed with the
sale. It applies in case of judicial proper Register of Deeds (Rosales v.
foreclosure. Yboa,G.R.No.L42282,Feb.28,1983).
2. Right of redemption right of the
mortgagor to redeem the mortgaged Note: The redemptioner should make an actual
propertywithinoneyearfromthedate tender in good faith of the full amount of the
of registration of the certificate of sale. purchase price as provided above, i.e., the amount
It applies in case of extrajudicial fixed by the court in the order of execution or the
foreclosure. amount due under the mortgage deed, as the case
maybe,withinterestthereonattheratespecifiedin
Q: X and Y, judgment creditors of A, obtained the mortgage, and all the costs, and judicial and
other expenses incurred by the bank or institution
the transfer of the title of the mortgaged
concerned by reason of the execution and sale and
property in their names. Earlier, A executed a
as a result of the custody of said property less the
mortgage over the same property in favor of income received from the property. (Heirs of
FGU Insurance.The latter mortgage was Quisimbingv.PNB,G.R.No.178242,Jan.20,2009)
registered. When A defaulted, FGU foreclosed
theproperty.Acertificateofsalewasthereafter Q: Is the period of redemption a prescriptive
issued in FGUs favor, which was confirmed by period?
theRTC.However,beforethenewTCTcouldbe
issued,XandYfiledtheirrespectivemotionfor A: No. The period of redemption is not a
intervention and to set aside the judgment prescriptive period but a condition precedent
alleging that they are the new owners of the providedbylawtorestricttherightoftheperson
propertyandthefailureofFGUtoimpleadXand exercisingredemption.
Yintheactionforforeclosuredeprivedthelatter
of due process. Is the contention of X and Y Ifapersonexercisingtherightofredemptionhas
correct? offeredtoredeemthepropertywithintheperiod
fixed,heisconsideredtohavecompliedwiththe
A:No.Subordinatelienholdersacquireonlyalien condition precedent prescribed by law and may
upon the equity of redemption vested in the thereafter bring an action to enforce
mortgagor, and their rights are strictly redemption.
subordinate to the superior lien of the
mortgagee. Such equity of redemption does not If, on the other hand, the period is allowed to
constitute a bar to the registration of the lapsebeforetherightofredemptionisexercised,
property in the name of the mortgagee. then the action to enforce redemption will not
414 CIVILLAWTEAM:

CREDIT TRANSACTIONS
prosper, even if the action is brought within the A:Inforeclosureproceedings,thebuyerbecomes

ordinaryprescriptiveperiod. theabsoluteownerofthepropertypurchasedifit
is not redeemed during the prescribed period of
Q: D obtained a loan from C secured by a REM redemption, which is one year from the date of
over a parcel of land. When D defaulted, C registrationofthesale.TheSheriffscertificateof
extrajudicially foreclosed the property. C was sale was annotated in the certificate of titles on
declared the highest bidder in the auction. On April 30, 1976. DBP became the absolute owner
October 29, 1993, C caused the registration of of the properties on May 1, 1977. Thus, the
the certificate of sale. On November 9, 1994 D period to be considered in determining the
filed a complaint for annulment of the amount of collection should start from May 1,
extrajudicialforeclosureandauctionsale.CanD 1997 up to the time when the possession of the
redeem the property beyond the one year properties are actually and completely
redemptionperiod? surrendered to DBP. (La Campana Development
Corporation v. DBP, G.R. No. 146157, Feb. 13,
A:No.Dlostanyrightorinterestoverthesubject 2009)
property primarily because of his failure to
redeem the same in the manner and within the
period prescribed by law. His belated attempt to
question the legality and validity of the
foreclosure proceedings and public auction must
accordingly fail. (Sps. Landrito v. CA G.R. No.
133079,Aug.9,2005)
Q: Can a mortgagor, whose property has been
extrajudicially foreclosed and sold, validly
execute a mortgage contract over the same
property in favor of a third party during the
periodofredemption?
A: Yes. The purchaser at the foreclosure sale

merelyacquiredaninchoaterighttotheproperty
which could ripen into ownership only upon the
lapseoftheredemptionperiodwithouthiscredit
havingbeendischarged,itisillogicaltoholdthat
during that same period of twelve months the
mortgagorwas"divested"ofhisownership,since
the absurd result would be that the land will
consequently be without an owner although it
remainsregisteredinthenameofthemortgagor.
Such mortgage does not involve a transfer,
cession or conveyance of the property but only
constitutesalienthereon(Medidav.CA,G.R.No.
98334,May8,1992).
Q: DBP guaranteed LCDs loan. When LCD

defaulted, DBP paid it and sought
reimbursement. LCD failed to reimburse DBP,
hence DBP extrajudicially foreclosed the REM,
where it was the highest bidder. The Sheriffs
certificate of sale was annotated in the
certificateoftitlesonApril30,1976.LaCampana
failed to redeem the properties. The court,
amongothers,orderedLCDtopaysuchsumsof
money unlawfully collected or received by way
of rentals and/or fruits from the subject
properties to DBP. When should the period for
the remittance of collected/received
rentals/fruitsfromtheproperties,ofLCDtoDBP
start?
415

Flowchart of Extra-judicial
Foreclosure of Real Estate Mortgage
Executionofloan+REMagreement(REM
withbuiltinSPAtosellincaseofdefault)
Defaultofmortgagorfornonpaymentor
violationofthetermsoftheloanorREM
agreement
Filingofpetitionforsalewith
Clerk of Court
Publication/postingofnotice/
Onceaweekfor3consecutiveweeksina
jurisdictionalrequirements
newspaperofgeneralcirculation
Foreclosuresale
Registrationofthesale Note:Theredemptionprice:
withRegistryofDeeds
Ifthemortgageeisabank:
Oneyearredemptionperiod outstandingobligation
+intereststipulatedintheagreement
Consolidationoftitlebyfilingaffidavit
withRegistryofDeeds(operative
document)
Cancellationoftitleofthemortgagor
andissuanceofnewtitleinfavorof
mortgagee
Note:
if after the expiration of the redemption period,

Petitionforwritofpossession
thepetitionforwritofpossessionismandatoryor
ministerial
416 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Flowchart for Judicial Foreclosure of Real Estate Mortgage

Complaint with the court. Include

subsequent lien holders, otherwise
Entry of
equity of redemption will not be Hearing Judgment
judgment
divested. (Lampin v. IAC, No. L-
70987, Sept. 29, 1988))
90 days 120 days

Upon failure to pay,
Mortgagee to from entry of
mortgagee to file
file motion for Execution sale judgment for
motion for execution
confirmation of mortgagor to pay his
foreclosing
sale debt, as determined
mortgage
by court
Issuance of order confirming

the sale (order is appealable)
(Ocampo v. Dimalanta, No. L- Cancellation of the title of
Registration of the order
21011, Aug. 30, 1967) the mortgagor/issuance of
confirming the sale
new title to the mortgagee
Wait for finality of order
* If mortgagee/bidder is bank or credit Secure a writ of
institution, mortgagor has one more year possession, by motion,
from registration of order confirming the from the same court that
sale + certificate of sale to redeem the ordered the foreclosure

property.
Note:
GR: In judicial foreclosure, there is only equity of redemption.
XPN: If the mortgagee is a bank or credit institution, there is one year right of redemption.
417

VI.CHATTELMORTGAGE Q: What are the laws that govern chattel
mortgages?
A.DEFINITIONANDCHARACTERISTICS
A:
Q:Whatischattelmortgage? 1. ChattelMortgageLaw(ActNo.1508)
2. ProvisionsoftheCivilCodeonpledge
A: It is a contract by virtue of which personal
property is recorded in the Chattel Mortgage Note:Incaseofconflictbetweennos.1and
Register as a security for the performance of an 2,theformershallprevail.
obligation.
3. RevisedAdministrativeCode
Q: What are the characteristics of chattel 4. RevisedPenalCode(Art.319)
mortgage? 5. Other special laws (i.e. Motor vehicle
law)
A: 6. ShipMortgageDecreeof1978(P.D.No.
1. It is a formal contract because it must 1521)
beembodiedinapublicinstrumentand Q: What may be the subject matter of chattel
recorded in the Chattel Mortgage mortgage?
Register;
A:
2. It is an accessory contract because its 1. Sharesofstockinacorporation;
existence depends upon an existing 2. Interestinbusiness;
validprincipalobligation; 3. Machinery and house of mixed
materialstreatedbypartiesaspersonal
3. It is a unilateral contract because the property and no innocent third person
obligation is only on the part of the will be prejudiced thereby (Makati
creditor to free the chattel from Leasing and Finance Corp. v. Weaver
encumbranceuponthepaymentofthe TextileMills,Inc.,No.L58469,May,16,
principalobligation; 1983);
4. Vessels, the mortgage of which have
beenrecordedwiththePhilippineCoast
4. Itdoesnotconveydominionbutisonly
Guard in order to be effective as to
a security (In re: Du Tec Chuan, No.
thirdpersons;
11156,March28,1916);
5. Motor vehicles, the mortgage of which
hadbeenregisteredbothwiththeLand
5. It creates a real right or a lien which is Transportation Commission and the
being recorded and follows the chattel Chattel Mortgage Registry in order to
whereveritgoes(NorthernMotors,Inc. affectthirdpersons;
v.Coquia,No.L40018,Dec.15,1975). 6. House which is intended to be
demolished;or
Q: What are the requisites in a chattel 7. Growing crops and large cattle (pars. 2
mortgage? and3,Sec.7,ActNo.1508).

A: Note: Section 7 of the Chattel Mortgage Law does
1. GR:Itcoversonlymovableproperty not demand specific description of every chattel
mortgaged in the deed of mortgage, but only
XPN: When the parties treat as requires that the description of the mortgaged
personaltythatwhichisaccordingtoits property be such as to enable the parties to the
naturerealty. mortgage or any other person to identify the same
afterareasonableinvestigationandinquiry(Saldana
2. Registration with the Chattel Mortgage v. Phil. Guaranty Co., Inc., No. L13194, Jan. 29,
Register. 1960);otherwise,themortgageisinvalid.
3. Descriptionoftheproperty.
4. Accompanied by an affidavit of good Q:Whatisaffidavitofgoodfaith?
rd
faithtobind3 persons.
A:Itisanoathinacontractof chattelmortgage
Note:Theabsenceofanaffidavitofgoodfaithdoes wherein the parties severally swear that the
notaffectthevalidityofthecontract. mortgageismadeforthepurposeofsecuringthe
obligationspecifiedintheconditionsthereofand
418 CIVILLAWTEAM:

CREDIT TRANSACTIONS
fornootherpurposesandthatthesameisajust Q: Should the foreclosure sale in chattel

andvalidobligationandonenotenteredintofor mortgagebedoneinpublicauction?
thepurposeoffraud.
A:ActNo.1508providesfortheforeclosuresale
Note: The absence of the affidavit vitiates the in chattel mortgage be done by public auction.
mortgage only as against third persons without However,thepartiesarefreetostipulatethatthe
noticelikecreditorsandsubsequentencumbrances. foreclosurebedonebyprivatesale.

Q:Distinguishcontractofchattelmortgagefrom Q: In case of foreclosure sale in chattel
contractofrealestatemortgage. mortgage,maythecreditorrecoverdeficiencyif
the redemption price is less than the debt
A: secured?
REALESTATE
CHATTELMORTGAGE
MORTGAGE A:
Subjectmatter GR:CRmayrecoverdeficiency.
Personalproperty Realproperty
Requirementofregistration XPN: when the chattel mortgage is used to
Essentialforthevalidity Merelyforthepurpose secure the purchase of personal property in
ofthiscontract ofbindingthirdpersons installments(RectoLaw).
Procedurefortheforeclosureofachattelmortgage
isdifferentfromtheprocedureofforeclosurefor Q:Whatistheeffectofanincreaseinmortgage
realestatemortgage credit?

B.REGISTRATION A: If the parties to a chattel mortgage take an
oaththatthedebt,honestlydueandowingfrom
Q:Whatisthelegalsignificanceofregistration? the mortgagor to the mortgagee, it is obvious
thatavalidmortgagecannotbemadetosecurea
A:Itistantamounttothesymbolicdeliveryofthe debt to be thereafter contracted (11 C.J. 448). A
mortgage to the mortgagee, which is equivalent mortgage that contains astipulation in regardto
toactualdelivery(Meyersv.Thein,No.5577,Feb. futureadvancesinthecreditwilltakeeffectonly
21,1910). from the date of the mortgage. The increase in
the mortgage credit becomes a new mortgage
Q: What is the difference in registration of real (Belgian Catholic Missionaries v. Magallanes
mortgageandchattelmortgage? Press,No.25729,Nov.24,1926).
A: A deed of real estate mortgage is considered
registered once recorded in the entry book. Q: What is the effect of obtaining a personal
However, chattel mortgage must be registered judgmentonthemortgagelien?
notonlyintheentrybookbutalsointheChattel
Mortgage Register. (Associated Insurance and A:Itisdeemedabandoned.
SuretyCo.v.LimAng,(CA)52Off.Gaz.5218)
Q: What are the offenses involving chattel
Q: What is the effect if the chattel mortgage is mortgage?
notregisteredinthechattelmortgageregister?
A:
A:Itisstillbindingbetweenthepartiesbutitwill 1. Knowingly removing any personal
notbebindingtoinnocentthirdparties. property mortgaged under the Chattel
Mortgage Law to any province or city
Q: When should the registration of the chattel other than the one in which it was
mortgagebemade? located at the time of the execution of
the mortgage without the written
A: The law is silent on the time or period when consentofthemortgagee;or
registration should be made. The Court of 2. Selling or pledging personal property
Appeals has held though that the law is alreadymortgaged,oranypartthereof,
substantiallyandsufficientlycompliedwithwhere under the terms of the Chattel
theregistrationismadebythemortgageebefore Mortgage Law without the consent of
the mortgagor has complied with his principal the mortgagee written on the back of
obligationandnorightofinnocentthirdpersons the mortgage and duly recorded in the
isprejudiced(Ledesmav.Perez,2C.A.Rep.126).
419

Chattel Mortgage Register (Art. 319, A:IfitwasthelandwhichVinichattelmortgaged,
RPC). such mortgage would be void, or at least
unenforceable,sincehewasnottheownerofthe
C.FORECLOSURE land.

Q:Howischattelmortgageforeclosed? Ifwhatwasmortgagedasachattelisthebuilding,
the chattel mortgage is valid as between the
A: partiesonly,ongroundsofestoppelwhichwould
Publicsale preclude the mortgagor from assailing the
Privatesale contract on the ground that its subjectmatter is
GR: If there is an express stipulation in an immovable. Therefore Vinis defense is
thecontract. untenable,andFeliciacanforeclosethemortgage
over the building, observing, however, the
XPN:Fraudorduress procedureprescribedfortheexecutionofsaleof
a judgment debtors immovable under Rule 39,
Q: What is the procedure in foreclosure of a Rules of Court, specifically, that the notice of
chattelmortgage? auction sale should be published in a newspaper
ofgeneralcirculation.(1994BarQuestion)
A:Themortgageemay,afterthirty(30)daysfrom
the time of the default or from the time the
condition is violated, cause the mortgaged VII.ANTICHRESIS
property to be sold at public auction by a public
officer(Sec.14,ActNo.1508) A.DEFINITIONANDCHARACTERISTICS
Q:Whatisantichresis?
The30dayperiodtoforecloseachattelmortgage
is the minimum period after violation of the A: It is a contract whereby the CR acquires the
mortgageconditionforthemortgage righttoreceivethefruitsofanimmovableofthe
The creditor has at least ten (10) days notice debtor, with the obligation to apply them to the
servedtothemortgagor payment of interest, if owing, and thereafter to
theprincipalofhiscredit.
The notice of time, place and purpose of such
sale,isposted Q:Whatarethecharacteristicsofantichresis?

Afterthesaleofthechattelatpublicauction,the A:
right of redemption is no longer available to the 1. Accessorycontract.
mortgagor. (Cabral v. Evangelista, 28 L26860, 2. Formal contract the amount of the
July30,1969) principalandoftheinterestmustbothbe
in writing; otherwise the contract of
Q: What are the legal consequences of antichresisisvoid.
establishing a chattel mortgage over a building 3. Itdealsonlywithimmovableproperty.
erectednotbytheowneroftheland? 4. Itisarealright.
5. Thecreditorhastherighttoreceivethe
A: A building is immovable or real property fruitsoftheimmovable.
whetheritiserectedbytheowneroftheland,by 6. Itisarealcontract.
a usufructuary, or by a lessee. It may be treated 7. It can guarantee all kinds of valid
asamovablebythepartiestoachattelmortgage obligations.
butsuchisbindingonlybetweenthemandnoton
third parties. As far as third parties are Note: It is not essential that the loan should earn
concerned,thechattelmortgagedoesnotexist. interest in order that it can be guaranteed with a
contract of antichresis. Antichresis is susceptible of
Q:Viniconstructedabuildingonaparcelofland guaranteeing all kinds of obligations, pure or
conditional. [Javier v. Valliser, (CA) N. 2648R, Apr.
he leased from Andrea. He chattel mortgaged
29,1950;Sta.Rosav.Noble,35O.G.27241]
the land to Felicia. When he could not pay

Felicia, Felicia initiated foreclosure proceedings, A stipulation authorizing the antichretic creditor to
Vini claimed that the building he had appropriate the property upon the nonpayment of
constructedontheleasedlandcannotbevalidly thedebtwithintheperiodagreeduponisvoid(Art.
foreclosedbecausethebuildingwas,bylaw,an 2038,NCC).
immovable.IsVinicorrect?
420 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q: What is the form of a contract of antichresis 2.

anditscontents? ANTICHRESIS PLEDGE
Referstorealproperty Personalproperty
A:FDAPa Formal Real
1. CoversonlytheFruitsofrealproperty Principalandinterest Neednotbeinwriting,
mustbespecifiedin oralevidencemaybe
2. Delivery of the property necessary so writing,otherwise allowedtoprovethe
that CR may receive the fruits contractisvoid same.
therefrom
3.
Note: Delivery of the property to the creditor is ANTICHRESIS PACTODERETROSALE
requiredonlyinorderthatthecreditormayreceive Creditorisgiventheright
thefruitsandnotforthevalidityofthecontract. toenjoythefruitsand
applythemtothe Creditordoesnothave
3. Amount of principal and interest must paymentoftheinterest suchright
be specified in writing, otherwise, the andtotheprincipalof
contractshallbevoid. theloan

4. Expressagreementthatdebtorwillgive Q: Is prescription as a mode of acquiring
Possession to the CR and that CR will ownership available to the creditor in
applythefruitstotheinterestandthen antichresis?
totheprincipal.
A:No.Hispossessionofthepropertyisnotinthe
Note: The fruits of the immovable which is the concept of an owner but that of a mere holder
object of the antichresis mustbeappraised at their during the existence of the contract (Ramirez v.
actual market value at the time of the application CA,G.R.No.L38185,September24,1986).
(Art. 2138).The property delivered stands as a
security for the payment of the obligation of the Q: How should the amount of payment in
debtor in antichresis. Hence, the debtor cannot antichresisbedetermined?
demanditsreturnuntilthedebtistotallypaid.
A: The actual market value of the fruits at the
Q:Distinguishantichresisfrom: timeoftheapplicationthereoftotheinterestand
1. Realestatemortgage; the principal shall be the measure of such
2. Pledge;and application(Art.2133,NCC).
3. Pactoderetrosale.
Q: What is the effect if the amount of the
A: principal and of the interest is not specified in
REALESTATE writing?
ANTICHRESIS
MORTGAGE

Debtorusuallyretains
Propertyisdeliveredto A:Thecontractisvoid(Art.2134,NCC).
possessionofthe
creditor
property
Q: Who are the parties to a contract of
Creditoracquiresonly
therighttoreceivethe Creditorhasnorightto
antichresis?
fruitsoftheproperty; receivefruits,but
doesnotproduceareal mortgagecreatesreal A:
rightunlessregisteredin rightagainsttheproperty 1. Antichretic creditor one who receives
theRegistryProperty thefruitsontheimmovablepropertyof
Creditorobligedtopay thedebtor.
thetaxesandcharges Creditorhasnosuch 2. Antichretic debtor one who pays his
upontheestateunless obligation debt through the application of the
stipulatedotherwise fruitsofhisimmovableproperty.

Thereisanexpress
stipulationthatthe
creditorshallapplythe Thereisnosuch
fruitstothepaymentof obligationonthepartof
theinterest,ifowing,and themortgage
thereaftertothe
principalofthedebt.
421

B.OBLIGATIONSOFANTICHRETICCREDITOR reimburse or compensate another in accordance
with the principle that no one shall be unjustly
Q: What are the obligations of an antichretic enriched at the expense of another. (Art. 2142,
creditor? NCC)

A:To: Q:Whatarethebasesforquasicontracts?
paythetaxesandchargesassessableagainst
the property like real estate taxes and A:
others; 1. No one must unjustly enrich himself at
bear the necessary expenses for the anothersexpense
preservationoftheproperty; 2. ifonebenefits,hemustreimburse
beartheexpensesnecessaryfortherepairof 3. justiceandequity
theproperty;and
applythefruitsreceivedforpaymentofthe Q:Whatareexamplesofquasicontracts?
outstanding interests, if any, and
thereafteroftheprincipal. A:
NegotiorumGestio
Q: When can the antichretic debtor reacquire SolutioIndebiti
thepossessionofhisproperty?
A.NEGOTIORUMGESTIO
A:Thedebtorcanonlydemandthereturnofthe
propertyafterhavingfullypaidhisobligationsto Q:WhatisNegotiorumGestio?
thecreditor.Itisnotfairforthedebtortoregain
thepossessionofthepropertywhenhisdebthas A:Thisisakindofquasicontractwheresomeone
notbeenfullypaid.Untilthereisfullpaymentof called the gestor takes the management of the
theobligation,thepropertyshallstandassecurity businessorpropertyofanotherpersonknownas
therefor (Macapinlac v. Gutierrez Repide, No. owner without the consent or authority of the
18574,Sept.20,1922). latter.

Q: How can the creditor be exempted from the Q: What are the essential requisites for
obligationsimposedbyArt.2135? negostiorumgestio?

A: The creditor may compel the debtor to re A:
enterintotheproperty. 1. Nomeetingoftheminds
2. Taking charge of anothers business or
Note: Article 2135. The creditor, unless, there is a property
stipulation to the contrary, is obliged to pay the 3. The property or business must have
taxesandchargesupontheestate. beenabandonedorneglected
He is also bound to bear the expenses 4. Theofficiousmanager(gestor)mustnot
necessaryforitspreservationandrepair. have been expressly or implicitly
Thesumsspentforthepurposesstatedin authorized
thisarticleshallbedeductedfromthefruits. 5. The officious manager (gestor) must
havevoluntarilytakencharge
Q:Whatistheremedyofthecreditorincaseof
nonpaymentofhiscredit? Q:Whatareexamplesofnegotiorumgestio?

A:File: A:
1. anactionforcollection;or 1. If an attorneyinfact continues to
2. a petition for the public sale of the manage the principals estate after the
property (Barretto v. Barretto, No. principals death, the former agent
11933,Dec.1,1917). becomes a gestor (Julian, et al. v. De
Antonio, [CA] 2 O.G.966, October 14,
VIII.QUASICONTRACTS 1943).
2. Ifacoownershipisillegallypartitioned,
Q:WhatisaQuasiContract? thepossessorsbecomegestorswiththe
dutytorendertheaccounting(DeGala
A: Quasicontracts are lawful, voluntary, and v.DeGala&Albatros,60Phil311).
unilateralactswhichgenerallyrequireapersonto
422 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q:Whatistherequireddiligencefromagestor? Q:Whatareexamplesofsolutioindebiti?

A: Diligence of a good father of a family (Art. A:
2145, NCC). Hence, a gestor is liable for the acts 1. Erroneous payment of interest not due
or negligence of his employees (MRR Co. v. (Velezv.Balzarza,73Phil.630)
CompaniaTransatlantica,38Phil.875). 2. Erroneouspaymentofrentalnotcalled
forinviewoftheexpirationofthelease
Note:Theliabilityfordamages,whichhowever,in contract(Yansonv.Sing,C.A.382438)
certaincases,maybemitigated. 3. Taxes erroneously given (Aquinena and
Co.v.Muertequi,32Phil.261)
Q:Whatistheeffectofratificationoftheowner
ofthebusiness? Q: Can solutio indebiti be applied because of
doubtfulordifficultquestionoflaw?
A: Ratification produces the effect of an express
agency;andthisistrueevenifthebusinessisnot A: Yes, there can be payment because of
successful(Art2149,NCC). doubtfulordifficultquestionoflawmayleadto
solutio indebiti because of the mistake
Q: What are the liabilities of the owner even if committed.(Art.2155,NCC)
thereisnoratification?
Q: GMC Corp. used to compute and pay its
A: monthly cost of living allowance (COLA) on the
1. Liability for the obligation incurred in basis of 30days a month ever since law
hisinterest. mandatedthepaymentofCOLA.WageOrder6
2. Liability for necessary and useful was implemented, increasing the COLA by P3 a
expenses and for damages. (Art 2150, day. GMC however multiplied the P3 additional
NCC) COLA by 22days. The Union objected arguing
that the managements unilateral act was
Q:Whatistheruleiftheownerisaminor? tantamounttowithdrawalofbenefits.Istherea
mistakeintheapplicationoflaw?
A: Even if the owner is a minor, he is still liable
under the article for he should not be unjustly A: GMC cannot be faulted for the erroneous
enrichedatanothersexpense.(Roteav.Delupio, applicationoflaw.Paymentmaybesaidtohave
67Phil.330) been made by reason of a mistake in the
construction or application of doubtful or
B.SOLUTIOINDEBITI difficult question of law. Since it is a past error
that is being corrected, no vested right may be
Q:WhatisSolutioIndebiti? saidtohavearisennoranydiminutionofbenefit
underArt.100oftheLaborCode,maybesaidto
A:Solutioindebitiisthequasicontractthatarises have resulted by virtue of the correction. (Globe
whenapersonisobligedtoreturnwhateverwas Mackay Cable and Radio Corp. v. NLRC, GR no.
received by him through error or mistake or 74156,June29,1988)
received by him although there was no right to
demandit. Q:Whatistheliabilityofapayeeingoodfaith?

Q:Whataretherequisitesforsolutionindebiti? A:
1. Incaseofimpairmentorloss,liabilityis
A: onlytotheextentofbenefit.
1. Receiptofsomething. 2. In case of alienation, the price is to be
2. Therewasnorighttodemandit reimbursed, or in case of credit, the
3. Unduedeliverywasbecauseofmistake. sameshouldbeassigned.

Note: When the payment was not by mistake or

voluntary, but was made because if the coercive
process of the writ of execution, solutio indebiti
does not apply (Manila Surety & Fidelity Co., Inc. v.
Lim,GRno.L0343,December29,1959)
423

IX.CONCURRENCEANDPREFERENCEOFCREDITS duties,onthemovables,moneyorsecurities
obtainedbythem;
A.MEANINGOFCONCURRENCEAND 3. Claimsfortheunpaidpriceofmovablesold,
PREFERENCE onsaidmovables,solongastheyareinthe
possessionofthedebtor,uptothevalueof
Q:Whatisconcurrenceofcredits? the same, and if the movable has been
resold by the debtor and the price is still
A: Concurrence of credit implies the possession unpaid, the lien may be enforced on the
by two or more creditors of equal rights or price; this right is not lost by the
privileges over the same property or all the immobilization of the thing by destination,
propertyofadebtor. provided it has not lost its form, substance
and identity; neither is the right lost by the
Q:Whatispreferenceofcredit? sale of the thing together with other
property for a lump sum, when the price
A:Preferenceofcreditisarightheldbyacreditor thereofcanbedeterminedproportionally;
tobepreferredinthepaymentofhisclaimabove 4. Credits guaranteed with a pledge so long as
othersoutofthedebtorsassets. the things pledged are in the hands of the
creditor, or those guaranteed by a chattel
Note: The rules apply when two or more creditors mortgageuponthethingsmortgaged,upto
have separate and distinct claims against the same thevaluethereof;
debtorwhohasinsufficientproperty. 5. Credits for making repairs or preservation or
personal property on the movable thus
B.CLASSIFICATIONOFCREDITS made,repaired,keptorpossessed;
6. Claims for laborers wages, on the goods
Q:Whatarethegeneralcategoriesofcredit? manufacturedortheworkdone;
7. For expenses of salvage, upon the goods
A: salvaged;
1. Specialpreferredcredits thoselistedin 8. Creditsbetweenthelandlordandthetenant
Arts. 22412242, NCC shall be considered arising from the contract of tenancy on
mortgages and pledges of real and shares, on the share of each in the fruits or
personal property or liens (Art. 2243). harvest;
Hence, they are not included in the 9. Credits for transportation, upon the goods
insolventdebtorsassets. carried, for the price of the contract and
2. Ordinary preferred credits those listed incidental expenses, until their delivery and
in Art 2244,NCC as amendedbyArt. 110 forthirtydaysthereafter;
oftheLaborCode
10. Credits for lodging and supplies usually
3. Commoncredits thoselistedunderArt.
furnished to travelers by hotelkeepers, on
2245, NCC, which shall be paid pro rata
themovablesbelongingtotheguestaslong
regardlessofdates.
as such movables are in the hotel, but not
Q:Whatistheextentofliabilityofadebtorfor
formoneyloanedtotheguests;
hisobligations?
11. Credits for seeds and expenses for
cultivation and harvest advanced to the
A: The debtor is liable with all his property, debtor,uponthefruitsharvested;
present and future, for the fulfillment of his 12. Credits for rent for one year, upon the
obligations, subject to the exemptions provided personal property of the lessee existing on
bylaw. the immovable leased on the fruits of the
same, but not on money or instruments of
C.PREFERREDCREDITSONSPECIFICMOVABLES credit;
13. Claims in favor of the depositor if the
Q:Whatarethepreferredcreditswithrespectto depository has wrongfully sold the thing
thespecificmovableproperty? deposited,uponthepriceofthesale.

A: Note: In the foregoing cases, if the movables to
1. Duties, taxes and fees due thereon to the which the lien or preference attaches have been
stateoranysubdivisionthereof; wrongfully taken, the creditor may demand them
2. Claimsarisingfrommisappropriation,breach fromanypossessorwithinthirty(30)daysfromthe
of trust, or malfeasance by public officials unlawfulseizures.
committed in the performance of their

424 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Summary: 10. Credits of insurers, upon the property

1. taxes insured, for the insurance premium for
2. malversationbypublicofficials twoyears.
3. vendorslien
4. pledge,chattelmortgage Summary:
5. mechanicslien 1. taxes
6. laborerswages 2. vendorslien
7. salvage 3. contractorslien
8. tenancy 4. lienofmaterialmen
9. carrierslien 5. mortgage
10. hotelslien 6. expensesofpreservation
11. croploan 7. recordedattachments
12. rentalsoneyear 8. warrantyinpartition
13. deposit 9. conditionaldonations
10. premiumsfor2yearinsurers

D.PREFERREDCREDITSONSPECIFIC E.EXEMPTPROPERTIES
IMMOVABLES
Q: What are the exempt properties from
Q:Whatarethepreferredcreditswithrespectto executionandsale?
specificimmovableproperty?
A:FSTBCFPLBELMCL
A: 1. GR: Family home constituted jointly by
1. Taxesdueuponthelandorbuilding; husbandandwifeorbyunmarriedhead
2. For the unpaid price of real property ofafamily(Art.152,FC).
soldupontheimmovablesold;
3. Claims of laborers. Masons, mechanics XPNs:For:
and other workmen, as well as of a. nonpaymentoftaxes;
architects, engineers and contractors, b. debts incurred prior to the
engaged in the construction, constitution of the family
reconstruction or repair of buildings, home;
canals or other works, upon said c. debts secured by mortgages
buildings,canalsorotherworks; on the premises before or
4. Claimsoffurnishersofmaterialsusedin aftersuchconstitution;and
the construction, reconstruction, or d. debts due to laborers,
repair of buildings, canals, and other mechanics, architects,
works, upon said buildings, canals or builders, material men and
otherworks; others who have rendered
5. Mortgage credits recorded in the service or furnished material
Registry of Property, upon the real for the construction of the
estatemortgage; building
6. Expenses for the preservation or
improvementofrealpropertywhenthe 2. Right to receive Support as well as any
law authorizes reimbursement, upon money or property obtained as such
theimmovablepreservedorimproved; support.(Art.205,FC)
7. Credits annotated in the Registry of 3. Tools and implements necessarily used
Property,byvirtueofajudicialorder,by byhiminhistradeoremployment;
attachments or executions, upon the 4. Two horses, or two cows, or two
property affected, and only as to later carabaos or other Beasts of burden,
credits; such as the debtor may select, not
8. Claims of coheirs for warranty in the exceeding one thousand pesos in value
partitionofanimmovableamongthem, and necessarily used by him in his
upontherealpropertythusdivided; ordinaryoccupation;
9. Claims of donors or real property for 5. HisnecessaryClothingandthatofallhis
pecuniary charges or other conditions family.
imposed upon the donee, upon the 6. Household Furniture and utensils
immovabledonated; necessary for housekeeping and used
forthatpurposebythedebtor,suchas
425

for indemnity for damages in cases of
labor accident or illness resulting from
7. Provisions for individual or family use thenatureoftheemployment;
insufficientforthreemonths; 5. Creditsandadvancementsmadetothe
8. TheprofessionalLibrariesofattorneys, debtorforsupportofhimselforherself,
judges,physicians,pharmacists,dentist, and family, during the last preceding
engineers, surveyors, clergymen, insolvency;
teachers and other professionals, not 6. Support during the insolvency
exceeding three thousand pesos in proceedings, and for three months
value; thereafter;
9. OnefishingBoatandnet,notexceeding 7. Fines and civil indemnification arising
the total value of one thousand pesos, fromacriminaloffense;
the property of any fisherman, by the 8. Legal expenses, and expenses incurred
lawful use of which he earns a in the administration of the insolvents
livelihood; estate for the common interest of the
10. So much of the Earnings of the debtor creditors, when properly authorized
for his personal services within the andapprovedbythecourt;
month preceding the levy as are 9. Taxesandassessmentsduethenational
necessaryforthesupportofhisfamily; government, other those mentioned in
11. Letteredgravestones; Articles2241,No.1,and2242,No.1;
12. All Moneys, benefits, privileges or 10. Taxes and assessments due any
annuities accruing or in any manner province, other than those mentioned
growingoutofanylifeinsurance,ifthe inArticles2241,No.1and2242,No.1;
annual premiums paid do not exceed 11. Taxes and assessments due any city or
five hundred pesos, and if they exceed municipality other than those
the sum, a like exemption shall exist mentioned in Articles 2241, No.1 and
whichshallbearthesameproportionto 2242,No.1;
the moneys, benefits privileges and 12. Damages for death or personal injuries
annuitiessoaccruingorgrowingoutof causedbyaquasidelict;
such insurance that said five hundred 13. Gifts due to public and private
pesos bears to the whole premiums institutionsofcharityorbeneficence;
paid; 14. Credits which without special privilege,
13. Copyrights and other properties appearin(a)apublicinstrument;or(b)
especially exempted by law (Sec. 12, inthefinaljudgment,iftheyhavebeen
Rule39) the subject of litigation. These credits
14. PropertyunderLegalcustodyandofthe shall have preference among
publicdominion. themselves in the order of priority of
thedatesoftheinstrumentsandofthe
Q:Whatistheorderofpreferencewithrespect judgments,respectively(Art.2244).
tootherpropertiesofthedebtor?
Summary:
A: 1. funeralexpenses
1. Properfuneralexpensesforthedebtor, 2. wagesofemployeesoneyear
or children under his or her parental 3. expensesoflastillness
authoritywhohavenopropertyoftheir 4. workmenscompensation
own,whenapprovedbythecourt; 5. supportforoneyear
2. Credits for services rendered the 6. supportduringinsolvency
insolvent by employees, laborers, or 7. finesincrimes
household helpers for one year 8. legalexpensesadministration
preceding the commencement of the 9. taxes
proceedingsininsolvency; 10. tort
3. Expenses during the last illness of the 11. donations
debtor or of his or her spouse and 12. appearing in public instrument or final
children under his or her parental judgment
authority, if they have no property of
theirown;
4. Compensation due to the laborers of
their dependents under laws providing
426 CIVILLAWTEAM:

CREDIT TRANSACTIONS
F.ORDEROFPREFERENCEOFCREDIT Q:Whataretheteststodetermineinsolvency?

Q:Whatistheorderofpreferenceofcredits? A:
1. Equity test A state of inability of a
A: persontopayhisdebtsatmaturity.
1. Those credits which enjoy preference with 2. Balance sheet test The assets, if all
respect to specific movable, excluded all madeimmediatelyavailable,wouldnot
others to the extent of the value of the besufficienttodischargethebalance.
personal property to which the preference
refers(Article2246). Q: What are the remedies of an insolvent
2. Iftherearetwoormorecreditswithrespect debtor?
to the same specific movable property, they
shallbesatisfiedprorata,afterthepayment A:
of duties, taxes, and fees due the State or 1. Petitionthecourttosuspendpayments
anysubdivisionthereof(Art.2247,NCC). ofhisdebts;or
3. Those credits which enjoy preference in 2. To be discharged from his debts and
relation to specific real property or real liabilities by voluntary or involuntary
rights,excludeallotherstotheextentofthe insolvencyproceedings.(Sec.1)
valueoftheimmovableorrealrighttowhich
thepreferencerefers(Art.8). Q: What is the effect of insolvency proceedings
4. Iftherearetwoormorecreditswithrespect filedbyindividualdebtors?
to the same specific real property or real
rights, they shall be satisfied pro rata, after A:
the payment of the taxes and assessments 1. Suitspendingincourt
upon the immovable property or real right a. securedobligations
(Art.2249,NCC). suspendeduntilassignee
5. The excess, if any, after the payment of the appointed
credits which enjoy preference with respect b. unsecuredobligations
tospecificproperty,realorpersonal,shallbe terminatedexcepttofix
addedtothefreepropertywhichthedebtor amountofobligation
may have, for the payment of the other c. foreclosuresuitspending
credits(Art.2250,NCC). continue
6. Those credits which do not enjoy any 2. Suitsnotyetfiledcannotbefiled
preference with respect to specific property anymorebutclaimsmaybepresented
and those which enjoy preference, as to the toassignee.
amountnotpaid,shallbesatisfiedaccording
tothefollowingrules: Note: The result is different if the petitioner is a
a. In the order established in Article corporation because under the Revised Rules on
2244; Corporate Recovery, all claims whether secured or
b. Common credits referred to in unsecuredarestayed.
Article 2245 shall enjoy no
preference and shall be paid pro Q: If A is declared an insolvent by the court,
rataregardlessofdated(Art.2251, what would be the effect, if any, of such
NCC). declarationonhiscreditors?Explain.

A:
X.INSOLVENCYLAW
1. The sheriff shall take possession of all
assets of the debtor until the
A.DEFINITIONOFINSOLVENCY appointmentofareceiverorassignee;
2. Paymenttothedebtorofanydebtsdue
Q:Whatisinsolvency? tohimandthedeliverytothedebtorof
anypropertybelongingtohim,andthe
A:Thestateofapersonwhoseliabilitiesaremore transfer of any property by him are
than his assets. The term is frequently used in forbidden;
themorerestrictedsensetoexpressinabilityofa 3. Allcivilproceedingspendingagainstthe
person to pay his debts as they become due in insolventshallbestayed;and
theordinarycourseofhisbusiness. 4. Mortgagesandpledgesarenotaffected
by the order declaring a person
insolvent.(Sec.59,InsolvencyLaw)
427

Q:AssumingthatAhasguarantorsforhisdebts, dischargeofthefundsofthejudgmentdebtor.A
are the guarantors released from their recorded mortgage is a special preferred credit
obligationsonceAisdischargedfromhisdebts? while the preference given to workers under
Article 110 of the Labor Code is an ordinary
A: The guarantors are not discharged, because preferred credit. (DBP v. NLRC, G.R. No. 86227,
the discharge is limited to A only (Sec. 68). Jan.19,1994)
Precisely under the principle of excussion, the
liability of the guarantors arises only after the Q: Is the power to petition for the adjudication
exhaustion of the assets of the principal obligor. ofbankruptcygrantedtojuridicalpersons?
The effect of discharge merely confirms
exhaustion of the assets of the obligor available A:Thelawgrantstoajuridicalperson,aswellto
tohiscreditors. natural persons, the power to petition for the
adjudication of bankruptcy of any natural or
Q. What remedies are available to the juridical person provided that with respect to
guarantors in case they are made to pay the juridical persons, it is a resident corporation and
creditors?Explain. adjoinsatleasttwootherresidentsinpresenting
the petition to the Bankruptcy Court. When a
A: Their remedy is to prove in the insolvency foreign bank alleged in its petition that it is
proceedingthattheypaidthedebtandthatthey licensed to do business in the Philippines and
substitutedforthecreditors,ifthecreditorshave actually doing business in the country, it is in
notproventheirclaims(Sec.56). effect stating that it is a resident foreign
corporation in the Philippines. (State Investment
Under Article 2081 of the Civil Code, the House v. Citibank, N.A., G.R. Nos. 7992627, Oct.
guarantormaysetupagainstthecreditorall the 17,1991)
defensesthatpertaintotheprincipaldebtor.The
dischargeobtainedbythedebtorontheprincipal B.SUSPENSIONOFPAYMENTS
obligation can now be used as a defense by the
guarantors against the creditors. The guarantors
Q:Whatissuspensionofpayments?
arealsoentitledtoindemnityunderArticle2066

oftheCivilCode.
A:Itisthepostponement,bycourtorder,ofthe

payment of debts of one who, while possessing
Q: X and Y were employees of ATLAS which
sufficient property to cover his debts, foresees
hypothecated its certain assets to DBP. When
the impossibility of meeting them when they
ATLAS defaulted in its obligations, DBP
respectivelyfalldue.
foreclosedandacquiredthemortgagedassetsby

virtueoftheforeclosuresale.Meanwhile,Xand
Q: When is the remedy of suspension of
YfiledanactionagainstbothATLASandDBPfor
paymentsavailable?
unpaidwages.TheLaborArbiterruledinfavorof

XandY.IstheLAcorrectinconsideringworkers
A:Thedebtorwho,possessingsufficientproperty
preference under Article 110 of the Labor Code
tocoverallhisdebts,foreseestheimpossibilityof
overthatofDBPsmortgagelien?
meeting them when they respectively fall due,

may petition that he be declared in the state of
A: Declaration of bankruptcy or a judicial
suspension of payments by the court of the
liquidation must be present before the workers
province or city in which he has resided for six
preferencemaybeenforced.Adistinctionshould
months next preceding the filing of his petition
be made between a preference of credit and a
(Sec.2[1]).
lien.Apreferenceappliesonlytoclaimswhichdo

notattachtospecificproperties.Aliencreatesa
Q:Whendoessuspensiontakeeffect?
chargeonaparticularproperty.Therightoffirst

preference as regards unpaid wages recognized
A:Uponthefilingofthepetition.
by Article 110 does not constitute a lien on the

property of the insolvent debtor in favor of
Q: What are the steps in suspension of
workers. It is but a preference of credit in their
payments?
favor, a preference in application. It is a method

adopted to determine and specify the order in
A:
which credits should be paid in the final
1. Filingofthepetitionbythedebtor(Sec.
distribution of the proceeds of the insolvent's
2);
assets. It is a right to a first preference in the
428 CIVILLAWTEAM:

CREDIT TRANSACTIONS
2. Issuancebythecourtofanordercalling Q:Whataretheeffectsoffilingofthepetition?
ameetingofcreditors(Sec.3);
3. Publication of the order and service of A:
summons(Sec.4); 1. No disposition in any manner of his
4. Meetings of creditors for the propertymaybemadebythepetitioner
consideration of the debtors exceptinsofarasconcernstheordinary
proposition(Sec.8); operations of commerce or of industry
inwhichheisengaged;(Sec.3[2])
Note: To hold a valid meeting, the
creditorsrepresentingatleast3/5of 2. No payments may be made by the
the liabilities of the debtor must be petitionerexceptintheordinarycourse
present. ofhisbusinessorindustry(Ibid.);and;

5. Approval by the creditors of the 3. Upon the request to the court, all
debtorsproposition(Sec.8,[20]); pending executions against the debtor
6. The Double Majority Rule applies. To shall be suspended except execution
obtain a majority vote, it is necessary against property especially mortgaged.
that: (Sec.6)
a. At least 2/3 of the creditors
must vote on the same Q:Whoarethecreditorsaffectedbythefilingof
proposition,and thepetition?
b. Said2/3representatleast3/5
of the total liabilities of the A: Only creditors included in the schedules filed
debtor. bythedebtorshallbecitedtoappearandtotake
partinthemeeting.(Sec.5)Hence,thosewhodid
7. Objections, ifany,to thedecisionmust not appear because they were not informed of
be made within 10 days following the theproceedingsareunaffectedbythesame.
meeting.(Sec.11);
8. Issuanceoforderbythecourtdirecting Q: Who are the creditors not affected by order
that the agreement be carried out in ofsuspensionofpayments?
case the decision is declared valid, or
when no objection to said decision has A:
beenpresented. 1. Those having claims for personal labor,
maintenance, expenses of the last
Q: What are the documents that should illness and funeral of wife or child of
accompanythepetition? debtor, incurred during the 60 days
immediately preceding the filing of the
A: petition;and
1. Averifiedschedulecontainingafulland
true statement of the debts and 2. Those having legal or contractual
liabilitiesofthepetitionertogetherwith mortgages.(Sec.9)
alistofcreditors;(Secs.15,2)
2. A verified inventory containing a list of Q: When is a petition for suspension of
creditors, an accurate description of all paymentsdeemedrejected?
thepropertyofthepetitionerincluding
property exempt from execution and a A:
statement as to the value of each item 1. When the number of creditors
of property, its location, and representing at least 3/5 of the
encumbrances thereon, if any; (Secs. liabilitiesnotattend;(Secs.8,10)or
16,2) 2. When the two majorities required are
3. Astatementofhisassetsandliabilities; notinfavoroftheproposedagreement
(Sec.2)and (Sec.10).
4. The proposed agreements he requests
ofhiscreditors.(Ibid.) Q:Whatistheeffectofdisapprovalofpetition?

A: If the decision of the meeting be negative as
regardstheproposedagreementorifnodecision
is had in default of such number or of such
429

majorities, the proceeding shall be terminated 2. Verified petition for rehabilitation
without recourse. In such case, the parties under the Interim Rules of Procedure
concernedshallbeatlibertytoenforcetherights for Corporate Rehabilitation which
whichcorrespondtothem.(Sec.11) includessuspensionofpayments.

PETITION PETITIONFORCORPORATE C.VOLUNTARYINSOLVENCY
FOR REHABILITATION
ORDINARY Q:Whatisavoluntaryinsolvency?
SUSPENSION

OF
A: This is availed of a debtor who, having debts
PAYMENTS
exceedingP1,000.00,cannotdischargeallofthem
Purpose
with all of his existing assets and who, as a
Toobtain
Torehabilitatethepetitioning consequence, voluntarily goes to court to have
defermentin
company. himselfdeclaredasaninsolventsothathisassets
thepayment
maybeequitablydistributedamonghiscreditors.
ofdebts.
Law (Sec.14)
Insolvency InterimRulesonCorporate
Law. Rehabilitation Q: What is the procedure for voluntary
Creditors insolvency?
Doesnot
Coversallcreditors,whether A:
coversecured
securedornot. 1. Filing of the petition by the debtor
creditors.
Duration prayingforthedeclarationofinsolvency
Suspensionvaliduntil: (Sec.2);
Dismissalofthepetitionor 2. Issuance of an order of adjudication
180daysor3
Terminationofthe declaring the petitioner insolvent
months
rehabilitation (Sec.18);
proceedings. 3. Publication and service of the order
Filedby (Sec.19);
Corporation,partnershipor 4. Meeting of the creditors to elect the
Thedebtor,
association,or assigneeininsolvency(Sec.30);
naturalor
Thecreditorsholdingatleast 5. Conveyanceofthedebtorspropertyby
juridical
20%ofthedebtorstotal the clerk of court to the assignee (Sec.
person
liabilities. 32);
Effect
6. Liquidation of the debtors assets and
Nomore
Thecourt,still,hastoissueastay paymentofhisdebts(Sec.33);
needforthe
ordernotlaterthan5daysfrom 7. Composition,ifagreedupon(Sec.63);
courttoissue
thefilingofthepetition. 8. Discharge of the debtor on his
astayorder.
application (Sec. 64), except a
Effectsoffilingthepetition
Allactionsor Allclaimsagainstthedebtorare
corporation;
claimsagainst stayedupontheissuanceofstay 9. Objection, ifany,to thedischarge(Sec.
the order. 66);
corporation 10. AppealtotheSCincertiorari.
pending Thecreditorsmayproceedto
beforethe enforcetheirclaimagainstthe Q: X, a wellknown architect, is suffering from
court, suretyevenifduringthependency financial reverses. He has four creditors with a
tribunal, oftherehabilitationproceedings total claim of P26 Million. Despite his intention
board,or involvingthecorporatedebtor. to pay these obligations, his current assets are
bodyshallbe (Phil.BloomingMills,Inc.and insufficienttocoverallofthem.Hiscreditorsare
suspended. AlfredoChingv.CA,G.R.No. about to sue him. Consequently, he was
142381,Oct.5,2003) constrained to file a petition for insolvency.
Since X was merely forced by circumstances to
Q: What are the modes or forms of suspension petition the court to declare him insolvent, can
ofpayment? the judge properly treat the petition as one for
involuntaryinsolvency?Explain.
A:
1. Petition for ordinary suspension of A: The petition cannot be treated as one of
paymentsunderAct1956 involuntary insolvency, because it was filed by X
430 CIVILLAWTEAM:

CREDIT TRANSACTIONS
himself,thedebtor,andnotbyhiscreditors(Sec. Q:Whomaypetitionforvoluntaryinsolvency?
20). To treat it as one of involuntary insolvency
would unduly benefit X as a debtor, because he A: The petition may be filed by any officer duly
would not be subject to the limitation of time authorized by the vote of the board of directors
withinwhichheissubjectinthecaseofvoluntary ortrusteesatameetingespeciallycalledforthat
insolvencyforpurposesofdischarge(Sec.65). purpose,orbyassentinwritingofthemajorityof
thedirectorsortrustees,asthecasemaybe.(Sec.
Q: What are the requisites of petition for 52)
voluntaryinsolvency?
Q:Whatistheeffectoffilingpetition?
A:Thepetitionwhichmustbeverified(Sec.17)is
tobefiled: A: Once the petition is filed, it ipso facto takes
away and deprives the debtor petitioner of the
1. Byaninsolventdebtor righttodoorcommitanyactofpreferenceasto
2. Owing debts exceeding in amount the sum creditors, pending the final adjudication.
ofP1,000.00 (PhilippineTrustCo.v.NationalBank,42Phil413)
3. IntheRTCoftheprovinceorcityinwhichhe
hasresidedfor6monthsnextprecedingthe Q:Whataretheeffectsofcourtorderdeclaring
filingofsuchpetition,and debtorinsolvent?
4. Settingforthinhispetitionthefollowing:
a. Hisplaceofresidence; A:
b. The period of residence therein 1. Alltheassetsofthedebtornotexempt
immediately prior to filing said fromexecutionaretakenpossessionof
petition; bythesheriffuntiltheappointmentofa
c. His inability to pay all his debts in receiverorassignee;
full; 2. Thepaymenttothedebtorofanydebts
d. His willingness to surrender all his due to him and the delivery to the
property, estate, and effects not debtor or to any person for him of any
exempt from execution for the property belonging to him, and the
benefitofhiscreditors;and transfer of any property by him are
e. An application to be adjudged an forbidden;
insolvent.(Sec.14) 3. Allcivilproceedingspendingagainstthe
insolventdebtorshallbestayed;and
Q: What are the documents to accompany the 4. Mortgages or pledges, attachments, or
petition? executions on property of the debtor
dulyrecordedandnotdissolvedarenot
A: affectedbytheorder.(Sec.59)
1. Averifiedschedulemustcontain:
a. A full and true statement of all
debts and liabilities of the
D.INVOLUNTARYINSOLVENCY
insolventdebtor;and
b. Anoutlineofthefactsgivingriseor
whichmightgiverisetoacauseof Q:Whatisaninvoluntaryinsolvency?
action against such insolvent
debtor;(Sec.15) A: This is availed of by the petition of 3 or more
creditors, none of whom became a creditor by
2. Averifiedinventory,whichmustcontain: assignment within 30 days prior to filing of
a. An accurate description of all the petition and whose aggregate credit is not less
personal and real property of the thanP1,000.00,becauseofcommissionofoneor
insolvent exempt or not from moreactsofinsolvency.(Sec.20)
executionincludingastatementas
to its value, location and Q:Whataretheactsofinsolvency?
encumbrancesthereon;and
b. Anoutlineofthefactsgivingriseor A:
which might give rise to a right of 1. Such person is about to depart or has
action in favor of the insolvent departedfromthePhilippines,withintentto
debtor.(Sec.16) defraudhiscreditors;
431

2. Being absent from the Philippines, with 4. Filing of answer or motion to dismiss
intent to defraud his creditors, he remains (Sec.23);
absent; 5. Hearingofthecase(Sec.24);
3. He conceals himself to avoid the service of 6. Issuance of order or decision adjudging
legal process for purpose of hindering or debtorinsolvent(Ibid.)
delayingordefraudinghiscreditors;
4. He conceals, or is removing, any of his 7. Publication and service of order (Sec.
propertytoavoiditsbeingattachedortaken 25);
onlegalprocess; 8. Meetingsofcreditorsforelectionofan
5. Hehassufferedhispropertytoremainunder assigneeininsolvency(Sec.30);
attachment or legal process for 3 days for 9. Conveyance of debtors property by
the purpose of hindering or delaying or clerkofcourttotheassignee(Sec.32);
defraudinghiscreditors; 10. Liquidation of the debtors assets and
6. He has confessed or offered to allow paymentofdebts(Sec.33);
judgmentinfavorofanycreditororclaimant
for the purpose of hindering or delaying or Note:Assetsoftheinsolventwhicharenotexempt
defraudinganycreditororclaimant; from execution will then be distributed among his
7. He has willfully suffered judgment to be creditors in accordance with the rules of
takenagainsthimbydefaultforthepurpose concurrence and preference of credits in the Civil
of hindering or delaying or defrauding his Code.
creditors;
8. He has suffered or procured his property to 11. Composition,ifagreedupon(Sec.63);
betakenonlegalprocesswithintenttogive 12. Discharge of the debtor on his
apreferencetooneormoreofhiscreditors application, except a corporation (Sec.
and thereby hinder, delay, or defraud any 52);
oneofhiscreditors; 13. Objection, ifany,to thedischarge(Sec.
9. He has made any assignment, gift, sale, 66);and
conveyance, or transfer of his estate, 14. AppealtotheSupremeCourtincertain
property, rights, or credits with intent to cases(Sec.62)
delay,defraud,orhinderhiscreditors;
10. He has, in contemplation of insolvency, Q:Whataretherequisitesforfilingapetitionfor
made any payment, gift, grant, sale, InvoluntaryInsolvency?
conveyance, or transfer of his estate,
property,rights,orcredits; A:Thepetitionisfiledby:
11. Being a merchant or tradesman he has
generally defaulted in the payment of his 1. Threeormorecreditors;
currentobligationsforaperiodof30days; 2. None of whom has become such a
12. For a period of 30 days he has failed after creditor by assignment, within 30 days
demand, to pay any moneys deposited with priortothefilingofsaidpetition;
him or received by him in a fiduciary 3. Whose credits accrued in the
capacity;and Philippines;
13. Anexecutionhavingbeenissuedagainsthim 4. Thetotalamountofwhichcreditsisnot
on final judgment for money, he shall have lessthanP1,000.00;and
beenfoundtobewithoutsufficientproperty 5. In the RTC of the province or city in
subjecttoexecutiontosatisfythejudgment. which the debtor resides or has his
(Sec.20) principalplaceobusiness.
6. Thepetitionmust:
Q: What is the procedure in involuntary 7. be verified by at least 3 of the
insolvency? petitioningcreditors;
8. setforthoneormoreactsofinsolvency
A: mentionedinthelaw;and
1. Filing of the petition by three or more 9. be accompanied by a bond, approved
creditors(Sec.20); by the court with at least 2 sureties, in
2. Issuance of order requiring the debtor suchpenalsumasthecourtshalldirect.
to show cause why he should not be
adjudgedinsolvent(Sec.21);
3. Serviceofordertoshowcause(Sec.22);
432 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q: Can a surety institute involuntary Q:Whoarethecreditorsnotentitledtovotein

proceedings? theelectionofassignee?

A: No, a surety for the debtor is not a creditor. A:
Hence, he cannot institute involuntary 1. Those who did not file their claims at
proceedings.Allhecandoistoprovehisclaim. least2dayspriortothetimeappointed
forsuchelection;(Sec.29)
Q: Distinguish voluntary insolvency from 2. Those whose claims are barred by the
involuntaryinsolvency. statuteoflimitations;(Ibid.)
3. Securedcreditorsunlesstheysurrender
A: their security or lien to the sheriff or
VOLUNTARY receiver or unless they shall first have
INVOLUNTARYINSOLVENCY
INSOLVENCY the value of such security fixed as
Filedbythedebtor. Filedby3ormorecreditors. providedinSec.59;and
Only1creditoris 3ormorecreditorsare 4. Holders of claims for unliquidated
required. required. damagesarisingoutofpuretort.
Requirementsforcreditors:
Q:Istheassigneerequiredtogiveabond?
1. Residents of the
Philippines; A: After his election, the assignee is required to
2. Their credits or demands give a bond for the faithful performance of his
Norequirementfor
must have accrued in the
creditors. duties.(Secs.30,31)
Philippines;and

3. Must not have been a
Note:Courtshavethepowertoappointreceiversto
creditor by assignment
hold the property of individuals or corporations
within 30 days prior to the
although no insolvency proceedings are involved. A
filingofthepetition.
receiverappointedbyacourtbeforetheinstitution
Venue:wherehe
Wherethedebtorhas oftheinsolvencyproceedingsmaybeappointedthe
hasresided6
residenceorhashisprincipal permanentassigneeinsuchproceedings.
monthspriortothe
placeofbusiness.
filingofpetition.
Q:Whatisthedateofcleavage?
Noneedforthe
Debtormusthave
commissionofany
committedanyoftheactsof A:Thedatewhenthepetitionisfiled,fromwhich
oftheactsof
insolvency. is counted backward or forward, in determining
insolvency.
Amountofdebts the effects provided for under the Insolvency
Amountofdebtsmustnot Law.
mustexceed
belessthanP1,000.00.
P1,000.00.
Debtordeemed Illustrations:
insolventthrough Debtorisconsidered 1. Acreditorbyassignmentofcreditmade
anorderof insolventupontheissuance within 30 days from date of cleavage
adjudicationafter bythecourtofanorderafter shall be disqualified as petitioning
filingofthepetition; duehearingdeclaringhim creditor(Sec.20);
adjudicationmaybe insolvent;adjudication 2. Attachmentlevieduponwithinaperiod
grantedexparte. grantedonlyafterhearing. of 30 days before the date of cleavage
may be set aside by the assignee (Sec.
Bondisnot 32);
Bondisrequired.
required. 3. Judgment on cases filed and decided
within 30 days prior to the date of
Q:Whoisanassigneeininsolvency? cleavage may be set aside by the
assignee(Sec.32);
A:Apersonelectedbythecreditorsorappointed 4. Judgmentsoncasesfiledbefore30days
bythecourttowhomaninsolventdebtormakes from the date of cleavage but decided
an assignment of all his property for the benefit within30daysbecauseofconfessionof
ofhiscreditors. judgment or declaration of default by
debtor may be set aside by action of
Note: The assignee must be a person elected by assignee;
the majority of the creditors who have proven 5. Properties acquired after date of
their claims, such majority being in number and cleavage, after discharge of debtor in
amount.
433

good faith shall not be liable for debts
incurredpriortothedateofcleavage; Q:Whataretheeffectsoffilingofpetition?
6. Fraudulentpreferencesmadewithin30
days prior to the date of cleavage may A:
be set aside in action brought by 1. The proceedings are deemed to
assignee. commence against the partners at the
sametime;
Q:Whatisadividendininsolvency? 2. Upon order of the court, all the
properties of the partnership and also
A:Aparcelofthefundarisingfromtheassetsof all the separate property of each
theestate,rightfullyallottedtoacreditorentitled partner, if they are liable, shall be
to share in the fund whether in the same taken;(Sec.51)
proportion with other creditors or in a different 3. Allcreditorsofthepartnershipandthe
proportion. It is paid by the assignee only upon separatecreditorsofeachpartnershall
orderofthecourt(Secs.43,44). be allowed to prove their respective
claims;(Ibid.)
Q: When may a partnership be declared 4. The assignee shall be chosen by the
insolvent? creditorsofthepartnership;and(Ibid.)
5. Pending insolvency proceedings by or
A: A partnership may be declared insolvent by a against any partnership, person or
petitionofthe partnersandmaybedoneduring corporation no statute of limitations
the continuation of the partnership business or shallrunuponaclaimoforagainstthe
after its dissolution and before the final estateofthedebtor.(Sec.73)
settlementthereof.
Q: What is the effect of insolvency of
A partnership may be declared insolvent partnershiporanypartner?
notwithstanding the solvency of the partners
constituting the same. (Campos Rueda & Co. v. A:
Pacific Commercial Co., G.R. No. L18703 Aug. 1. A partnership may be declared
28,1922) insolvent notwithstanding the solvency
ofthepartnersconstitutingthesame.
Q: Who may petition for declaration of 2. A partnership is not necessarily
insolvencyofapartnership? insolventbecauseoneofitsmembersis
insolvent. The solvent members are
A: bound to wind up the partnership
1. Voluntary insolvency By all the affairs.
partnersoranyofthem; 3. Under the law, a partnership is
2. InvoluntaryinsolvencyByoneormore automatically dissolved by the
of the partners or three or more insolvency of any partner or of the
creditorsofthepartnership. partnership

Q:Whatistheeffectwhencorporationdeclared
Q: What are the properties included in the insolvent?
insolvencyproceedings?
A: Its property and assets shall be distributed to
A: thecreditorsbutnodischargeshallbegrantedto
Allthepropertyofthepartnership;and anycorporation.(Sec.52)
All the separate of each of the partners
except: Q:Isinsolvencylawapplicabletocorporations?
Separate properties of limited partners
(Art.1843,NCC) A:TheInsolvencyLawexpresslyprovidesthatitis
Properties which are exempt by law notapplicabletocorporations:
(Sec.51) 1. Engaged principally in the banking
business
2. Anyothercorporationastowhichthere
is a special provision of law for its
liquidationincaseofinsolvency.(Ibid)

434 CIVILLAWTEAM:

CREDIT TRANSACTIONS
Q:Inthefilingofclaimsinaninsolvencyproceeding,whatdebtsmayandmaynotbeproved?
A:
DEBTSTHATMAYBEPROVED DEBTSTHATMAYNOTBEPROVED
Thedebtswhichmaybeprovedagainsttheestateofthe
debtorininsolvencyproceedingsarethefollowing: The following debts are not provable or allowed in
insolvencyproceedings:
1. All debts due and payable from the debtor at the
timeofadjudicationofinsolvency;(Sec.53) 1. Claims barred by the statute of limitations; (Sec.
2. All debts existing at the time of the adjudication of 29,73)
insolvency but not payable until a future time, a 2. Claims of secured creditors with a mortgage or
discountbeingmadeifnointerestispayablebythe pledge in their favour unless they surrender the
termsofthecontract; security;(Sec.59)
3. Anydebtoftheinsolventarisingfromhisliabilityas 3. Claims of creditors who hold an attachment or
indorser, surety, bail or guarantor, where such execution on the property of the debtor duly
liability became absolute after the adjudication of recordedandnotdissolved;(Sec.32)
insolvency but before the final dividend shall have 4. Claims on account of which a fraudulent
beendeclare;(Sec.54) preferencewasmadeorgiven;(Sec.61)
4. Other contingent debts and contingent liabilities 5. Support, as it does not arise from any business
contracted by the insolvent if the contingency shall transactionbutfromtherelationofmarriage;and
happenbeforetheorderoffinaldividend;(Sec.55); 6. Aclaimforunliquidateddamagesarisingoutofa
and pure tort, which neither constitutes a breach of
5. Anydebtoftheinsolventarisingfromhisliabilityto an express contract nor results in any unjust
any person liable as bail, surety, or guarantor or enrichment of the tortfeasor that may form the
otherwise, for the insolvent, ho shall have paid the basisofanimpliedcontract.
debtinfull,orinpart.(Sec.56)
Q:Whatisacontingentclaim? Q: What are the alternative rights of a secured

creditor?
A: A claim in which liability depends on some
future event that may or may not happen and A:
which makes it uncertain whether there will be 1. Tomaintainhisrightsunderhissecurity
anyliability. or lien and ignore the insolvency
proceedings,inwhichcase,itistheduty
Note: After the close of the insolvency proceedings oftheassigneetosurrendertohimthe
and the happening of the contingency, the creditor propertyencumbered;
may pursue any available remedy for the collection
ofhisclaim. 2. Towaivehisrightunderthesecurityor
lien and thereby share in the
Q: How are claims arising or acquired after distributionoftheassetsofthedebtor;
insolvencytreated? or

A: 3. To have the value of the encumbered
1. Claim arose after commencement of property appraised and then share in
proceedings An obligation coming in the distribution of the assets of the
force after the initiation of the debtor with respect to the balance of
proceedings is not generally a proper hiscredit.
claimtobeproved.
Q:Whatiscomposition?
2. Claim owned by insolvent purchased
after insolvency One indebted to an A: It is an agreement, made upon a sufficient
insolvent will not be permitted to consideration, between an insolvent or
interposeasanoffset,aclaimownedby embarrassed debtor and his creditors, whereby
the insolvent which he has purchased the latter for the sake of immediate or sooner
aftertheinsolvency. payment,agreetoacceptadividendlessthanthe
whole amount of their claims, to be distributed
pro rata, in discharge and satisfaction of the
wholedebt.

435

Q:Distinguishcompositionfromaccord. 4. Theinsolventshallbereleasedfromhis
debts
A: Accord properly denotes an agreement
between a debtor and a single creditor for a Q:Whenmayconfirmationbesetaside?
discharge of the obligation by a part payment or
ondifferentterms. A: The court may, upon application of a party in
interest within 6 months after the composition
Composition, on the other hand, designates an has been confirmed, set the same aside and
arrangement between a debtor and the whole reinstate the case if it shall be made to appear
body of his creditors (or at least a considerable uponatrial:
portionofthem)fortheliquidationoftheirclaims 1. That fraud was practiced in the
bythedividendoffered. procuringofsuchcomposition;and
2. Theknowledgethereofhascometothe
Q:Whataretherequirementsforavalidofferof petitioner since the confirmation of
composition? suchcomposition.(Sec.63)

A: Q:Whatisdischarge?
1. The offer of the terms of composition
must be made after the filing of the A: Discharge, under the Insolvency Law, is the
schedule of the debtors property and formalandjudicialreleaseofaninsolventdebtor
the submission of the list of his from his debts with the exception of those
creditors; expresslyreservedbylaw.
2. The offer must be accepted in writing
by a majority of the creditors Note: Only natural persons may ask for discharge;
representing a majority of the claims corporations cannot ask for discharge. (Sec. 52)
whichhavebeenallowed; When granted, takes effect not from its date, but
3. Itmustbemadeafterthedepositingin from the commencement of the proceedings in
suchplacedesignatedbythecourt,the insolvency.
consideration to be paid and the costs
oftheproceedings;and Q: When insolvent debtor may apply for
4. The terms of the composition must be discharge?
approved or confirmed by the court.
(Sec.63) A:AdebtormayapplytotheRTCforadischarge
atanytimeaftertheexpirationof3monthsfrom
Q:Whenmaythecourtconfirmacomposition? theadjudicationofinsolvency,butnotlaterthan
1 year from such adjudication of insolvency,
A:When: unlessthepropertyoftheinsolventhasnotbeen
1. It is for the best interest of the convertedintomoney(Sec.64)withouthisfault,
creditors; thereby delaying the distribution of dividends
2. Thedebtorhasnotbeenguiltyofanyof amongthecreditorsinwhichcasethecourtmay
the acts, or of a failure to perform any extendtheperiod
of the duties which would create a bar
tohisdischarge;and Any creditor may oppose the discharge by filing
3. Theofferanditsacceptanceareingood his objections thereto, specifying the grounds of
faith and have not been made or his opposition. After the debtor has filed and
procuredinamannerforbiddenbythe servedhisverifiedanswer,thecourtshalltrythe
Act. issueorissuesraised.(Sec.66)

Q: What are the effects of confirmation of Q:Whataretherequisitesfordischarge?
composition?
A:
A: 1. Compliance with statutory
1. The consideration shall be distributed requirementsregardingsurrenderofhis
asthejudgeshalldirect; assets for the benefit of the creditors
2. The insolvency proceedings shall be and regarding the rendition of an
dismissed; accountofhisassetsandliabilities;
3. The title to the insolvents estate shall
a. Note: A discharge ininsolvency
revertinhim;
is a matter of legislative grace
436 CIVILLAWTEAM:

CREDIT TRANSACTIONS
or favour to the debtor, to be 1. It releases the debtor from all claims,

obtained only by a strict debts,liabilitiesanddemandsetforthin
compliance with the conditions the schedule or which were or might
prescribedbythestatute. have been proved against his estate in
insolvency. (Sec. 69). Hence, non
2. Applicationfordischargeshouldbefiled provable debts are not affected
after the expiration of 3 months from whether or not they were properly
theadjudicationofinsolvency,butnot scheduled;
laterthan1year;(Sec.64);and 2. It operates as a discharge of the
insolvent and future acquisitions, but
3. Insolvent debtor must not have pemits mortgagees and other lien
committedanyoftheactsofinsolvency creditors to have their satisfaction out
preventingdischarge. ofthemortgageorsubjectofthelien;
3. It is a special defense which may be
Q:Whataretheactsofdebtororgroundswhich pledged and be a complete bar to all
willpreventdischarge? suitsbroughtonanysuchdebts,claims,
liabilitiesordemands.(Ibid.)
A: No discharge shall be granted, or if granted, 4. It does not operate to release any
shallbevalid,tothefollowingcases: person liable for the same debt, for or
1. Falseswearing; withthedebtor,eitheraspartner,joint
2. Concealmentofanypartofhisestateor contractor, indorser, surety or
effects; otherwise;(Sec.68)
3. Fraudorwillfulneglectinthecareofhis 5. The certificate of discharge is prima
property or in the delivery thereof to facie evidence of the fact of release,
theassignee; andtheregularityofsuchdischarge.
4. Procuring his properties to be attached
or seized on execution within 1 month Note: Where a debtor is judicially declared
before the commencement of insolvent, the remedy of the guarantor or
insolvencyproceedings; suretywouldbetofileacontingentclaiminthe
5. Destruction, mutilation, alteration or insolvency proceeding, if his rights as such
falsification of his books, documents, guarantor or sureties are not to be barred by
andpapers; the subsequent discharge of the insolvent
6. Giving fraudulent preference to a debtorfromallhisliabilities.
creditor;
7. Nondisclosure of the assignee of a Q: What are the debts and obligations not
proven false or fictitious debt within 1 affectedbydischargeofinsolvent?
monthafteracquiringknowledge;
8. Being a merchant, failure to keep A:
properbooksoraccounts; 1. Taxes or assessments due the
9. Influencingtheactionofanycreditor,at Government,whethernationalorlocal;
any state of the proceedings, by 2. Any debt created by the fraud or
pecuniaryconsideration; embezzlementofthedebtor;
10. Effecting any transfer, conveyance or 3. Any debt created by the defalcation of
mortgage in contemplation of the debtor as a public officer or while
insolvency; actinginafiduciarycapacity;
11. Conviction of any misdemeanor under 4. Debt of any person liable for the same
theInsolvencyLaw: debt, for or with the insolvent debtor,
12. In case of voluntary insolvency, he has either as partner, joint contractor,
received the benefit of insolvency inorser,suretyorotherwise;(Sec.68)
within 6 years next preceding his 5. Debtsofacorporation(Sec.52);
applicationfordischarge;and 6. Claimforsupport;
13. If insolvency proceeding in which he 7. Discharged debt but revived by a
could have applied are pending by or subsequentnewpromisetopay;
against him in the RTC of any other 8. Debts which have not been duly
provinceorcity.(Sec.65) scheduled in time for proof and
allowance, unless the creditors had
Q:Whataretheeffectsofdischarge? notice or actual knowledge of the
insolvency proceedings, are not
A: dischargedastosuchcreditors;
437

9. Claimsforunliquidateddamagesarising
outofapuretort;
10. Claimsofsecuredcreditors;(Sec.59)
11. Claimsnotinexistenceornotmatureat
thetimeofthedischarge;
12. Claims that are contingent at the time
ofdischarge.

Q:Whendischargemayberevoked?

A:Adischargemayberevokedbythecourtwhich
granteditonpetitionofanycreditor:

1. Whose debt was proved or provable
against the estate in insolvency on the
ground that the discharge was
fraudulentlyobtained;

2. Who has discovered facts constituting
the fraud subsequent to the discharge
andfraudulenttransfer;andprovided,

3. The petition is filed within 1 year after
thedateofthedischarge.(Sec.69)

438 CIVILLAWTEAM:

LEASE
LEASE witnessontheissue.(Pineda,Obligations
andContracts,pgs.577,579,580)
Q:Whatiscontractoflease?
2. Lease of work (contract for a piece of
A: A contract by which one of the partiesagrees work)Oneofthepartiesbindshimself
to give the other for a fixed time and price the to produce a result out of his work or
useorprofitofathingorofhisservicetoanother laborforacertainprice.
whoundertakestopaysomerent,compensation
orprice. Note:Dutiesofacontractorwhofurnishes
workandmaterials:
Q: What are the characteristics of a contract of 1. todeliver;
lease? 2. totransferownership;and
3. to warrant eviction and hidden
defects.
A:

1. Consensual;
Remedyofemployerincaseofdefects:
2. Bilateral; 1. Ask contractor to remove the
3. Commutative; defect or to execute another
4. Principalcontract; work;
5. Nominate; 2. If contractor fails or refuses,
6. Subject matter must be within the employer can ask another at
commerceofman; thecontractorsexpense.
7. Purposeistoallowenjoymentoruseof
athing; 3. Lease of service One party binds
8. Purpose to which the thing will be himself to render to the other some
devotedshouldnotbeimmoral; serviceforapricecertain.
9. Onerous;
10. Periodistemporary; Q:Whenisleaseconsideredacontractofsale?
11. Period may be definite or indefinite;
and A: A lease of personal property with option to
12. Lessorneednotbetheowner. buy, where title is transferred at the end of the
contractprovidedrentshavebeenfullypaid.
Q:Whatarethekindsoflease?
Q:Distinguishleasefromsale.
A:
1. Leaseofthings(immovable/movable) A:
Oneofthepartiesbindshimselftogive LEASE SALE
to another the enjoyment or use of a Onlytheuseor
Ownershipistransferred
thingforapricecertain. enjoymentistransferred
Transferistemporary Transferispermanent
Period: definite or indefinite but not Lessorneednottobethe Sellermustbetheowner
morethan99years.(Art.1634) owner atthetimeofdelivery
Thepriceoftheobject
Note: It may be made orally but if the (distinguishedfromthe Usually,thesellingprice
leaseofrealpropertyisformorethanone rent)isusuallynot ismentioned
year,it must beinthewriting (Statute of mentioned
Frauds).
Q:Distinguishleasefromusufruct.
Statute of Frauds requires certain
agreements to be in writing before they
A:
can be proved and enforced in a judicial
LEASE USUFRUCT
action. However, noncompliance does
Ownershiponthepartof Ownershipofthething
notmaketheoralcontractvoid.Theonly
thelessorisnot onthepartofthegrantor
effect is that no action for the
necessary isnecessary
enforcement of the contract can be
proved.Moreover,therighttoinvokethe GR: Personalright
StatuteofFraudsmaybewaivedbyfailure Realright
to object to the presentation of oral XPN:Realright
evidence, or by cross examining the Includesallpossibleuses
Limitedtotheuse
andenjoymentofthe
specifiedinthecontract
thing
439

Lessorplacesand 1. By Filipinos public domain with an
Ownerallowsthe
maintainsthelesseein area of 500 hectares and may acquire
usufructuarytouseand
thepeacefulenjoyment notmorethan12hectares
enjoytheproperty
ofthething 2. Bycorporations
Maybeforanindefinite a. Ifatleast60%Filipinosowned
Definiteperiod
period public domain for a period
Createdbycontractasa Createdbylaw,contract, of 25 years, renewable for
generalrule lastwillorprescription another25years;theareanot
Lesseehasnodutyto Usufructuaryhasdutyto to exceed more than 1,000
makerepairs makerepairs hectares
Lesseehasnodutytopay Usufructuaryhasaduty
taxes topaytaxes
Q: What are the rules on lease of things when
Lesseecannotconstitute
Usufructuarymay lesseeisanalien?
ausufructoftheproperty
constituteasublease
leased
A:

Personalproperty99yearlimitapplies.
I.LEASEOFTHINGS
Alienscannotleasepubliclands,andcannot

acquire private lands except through
Q:Isleaseofrealpropertyarealright?
succession

If lease of real property (private lands),
A:
maximum of 25 years renewable for
GR:Leaseofarealpropertyisapersonalright
another25years(P.D.713)

UndertheInvestorsLeaseActof1995,the
XPNs:Itisarealright:
25 year period was extended to 50
1. Ifitisformorethanoneyearandtobe
yearsprovidedthefollowingconditions
enforceablemustbewriting
aremet:
2. If it is registered with Registry of
Lesseemustmakeinvestments
Propertyregardlessofitsperiod
LeaseisapprovedbyDTI

If terms are violated, DTI can
Q: What are the effects if the lease of real
terminateit
propertyisnotregistered?

Note:TheILAdidnotdoawaywithP.D.713,under
A: ILAtheconsentofDTIisrequired,whileinP.D.713
1. Itisnotbindingonthirdpersons; noconsentisrequired.
2. Such third person is allowed to
terminatetheleaseincasehebuysthe Q:Whatisrent?
propertyfromtheownerlessor;
3. Actual knowledge of existence and A:Thecompensationeitherinmoney,provisions,
duration of lease is equivalent to chattelsorlabor,receivedbythelessorfromthe
registration;or lessee.
4. A stranger who knows of the existence
ofthelease,butwasledtobelievethat Q:Whataretherequisitesofrent?
the lease would expire soon or before
the new lease in favor of him begins, A:
the stranger can still be considered 1. Notfictitiousornominal,otherwisethe
innocent. contractbecomesgratuitous;
2. Capableofdetermination;and
Q:Whatcanbethesubjectmatterofalease? 3. May be in the form of products, fruits,
orconstruction,aslongasithasvalue.
A:Thingswithinthecommerceofman.
Note:Ownerhastherighttofixtherentbecausethe
Note: Lease of properties belonging to the public contractisconsensualandnotimposedbylaw.
domainisvoid.
Increasing the rent is not an absolute right of the
Q:Whatarethepropertiesthatmaybeleased? lessor. The new rate must be reasonable and in no
case shall the lessor be allowed to increase the
A: rentalwhenthetermhasnotyetexpired,unless,the
tenantconsents.(Paras,p.262)

440 CIVILLAWTEAM:

LEASE
If the rent is fixed for the first time, courts cannot Q:Doesthelesseehavetherighttosubleasethe
interfere,butifitisarenewal,thecourtscansettle property?
thedisagreements.
A:Yes,unlessexpresslystipulated.
Q: What is the right of a purchaser of a leased
property? Note: If the prohibition to sublease is not express
but only implied, the sublease will still be allowed.
A: (Art.1650)
GR: Purchaser of thing leased can terminate
thelease. Q:Whatistheremedyofthelessorifthelessee
violatestheprohibitionastosublease?
XPNs:
1. Lease is recorded in Registry of A: Rescission and damages or only damages
Property; allowing the contract to remain in force. The
2. There is a stipulation in the contract of sublessee is subsidiarily liable for any rent due.
salethatthepurchasershallrespectthe The lessor has an accion directa against the
lease; sublesseeforunpaidrentalsandimproperuseof
3. Purchaser knows the existence of the theobject.
lease;
4. Saleisfictitious;or Q: Can rights under a contract of lease be
5. Saleismadewitharightofrepurchase. assigned?

SUBLEASE A:
GR: Lessee cannot assign the lease without
Q:Whatissublease? consentoflessor(Art.1649,NCC)

A: It is an agreement between a sublessor and XPN:Stipulationtothecontrary
sublesseewherebytheformergrantstemporarily
the enjoyment or use of the same thing, service Q: When does an assignment of lease take
orworksubjectoftheoriginalcontractofleaseto place?
thelatterinexchangeforcompensationorprice,
respecting the terms and conditions of original A: It exists when the lessee made an absolute
contractofleasebetweenthelessorandlessee. transferofhisleaseholdrightsinacontract,and
he has disassociated himself from the original
Q:Whatisthenatureofsublease? contractoflease.(Pineda,p.451)

A: It is a separate and distinct contract of lease Note: The assignment has the effect of novation
wherein the original lessee becomes a sublessor consisting in the substitution. There being a
toasublessee. novation,theconsentoflessorisnecessarytoeffect
assignment unless the contract of lease allows the
Q:Whataretherequisitesofavalidsublease? lesseetoassign.(Pineda,p.452)

A: There must be no express prohibition for Q:Whatistheeffectofassignmentoflease?
subleaseinacontractoflease.Also,theduration
of sublease cannot be longer than that of the A: The personality of the original lessee
leasetowhichitisdependent disappears and there only remain in the juridical
relation of two persons: the lessor and the
Q:Whoarethepartiestoasublease? assignee,whoisconvertedintoalessee.(Pineda,
p.451)
A:
1. Lessor
2. Sublessor(originallesseeinthecontract
oflease)
3. Sublessee

441

proves that it took place without his fault. (1999
BarQuestion)

Q: Distinguish sublease from assignment of Q:Whatistheresponsibilityofthelesseetothe
lease. lessorincasehesubleasestheproperty?

A: A: By express provision of Article 1650, NCC, the
lessee is still responsible for the performance of
SUBLEASE ASSIGNMENTOFLEASE
hisobligationstowardthelessor.
Thereare2leasesand2 Thereisonlyonejuridical
distinctjuridical relationship,thatofthe Q:Whataretheresponsibilitiesofasublesseeto
relationshipsalthough lessorandtheassignee, thelessor?
immediatelyconnected whoisconvertedintoa
andrelatedtoeachother lease A:
Personalityofthelessee Personalityofthelessee GR: No juridical relationship between lessor
doesnotdisappear disappears andsublessee.
Lesseedoesnottransmit
Lesseetransmits
absolutelyhisrightsand XPNs:
absolutelyhisrightsto
obligationstothe All acts which affect the use and
theassignee
sublessee preservationofthethingleased
Sublessee,generally, For any rent due to the lessor from the
Assigneehasadirect
doesnothaveanydirect lesseewhichthelatterfailedtopay
actionagainstthelessor
actionagainstthelessor the lessor must collect first from
thelessee
Q: May a lessee sublease a leased property if the lessee is insolvent, the
withouttheconsentofthelessor? sublessee becomes liable
(subsidiaryliability)
A: Yes, provided that there is no express
prohibition against subleasing. Under the law, Q:Whenisasublesseeliabletothelessor?
wheninthecontractofleaseofthings,thereisno
express prohibition, the lessee may sublet the A:
thing leased without prejudice to his 1. All acts which refer to the use and
responsibilityfortheperformanceofthecontract preservation of the thing leased in the
towardthelessor.(Art.1650,NCC) manner stipulated between the lessor
andthelessee
Incasethereisasubleaseofthepremisesbeing 2. Thesublesseeissubsidiaryliabletothe
leased,thesublesseeisboundtothelessorforall lessorforanyrentduefromthelessee
the acts which refer to the use and preservation
of the thing leased in the manner stipulated REMEDIESINSUBLEASE
between the lessor and the lessee. (Art. 1651,
NCC) Q:Whatisacciondirecta?

The sublessee is subsidiarily liable to the lessor A: A direct action which the lessor may bring
for any rent due from the lessee. However, the against a sublessee who misuses the subleased
sublessee shall not be responsible beyond the property.
amountoftherentdueformhim.
Q:Whataretheremedieswheneitherthelessor
As to the lessee, the latter shall still be or the lessee did not comply with his
responsible to the lessor for the rents; bring to obligations?
the knowledge of the lessor every usurpation or
untoward act which any third person may have A:RED
committed or may be openly preparing to carry 1. Rescissionanddamages;
out upon the thing leased; advise the owner the 2. Damagesonly(contractwillbeallowed
need for all repairs; to return the thing leased toremaininforce);or
upon the termination of the lease just as he 3. Ejectment
received it, save what has been lost or impaired
bythelapseoftimeorbyordinarywearandtear
or from an inevitable cause; responsible for the
deteriorationorlossofthethingleased,unlesshe
442 CIVILLAWTEAM:

LEASE
IMPLIEDNEWLEASE DURATIONOFSUBLEASE

Q: What is tacita reconducion (implied new Q:Whatisthedurationofthelease?
lease)?
A:
A:Aleasethatarisesifattheendofthecontract 1. WithdeterminateorfixedperiodLeasewill
the lessee should continue enjoying the thing beforthesaidperiodanditendsontheday
leased for 15 days with the acquiescence of the fixedwithoutneedofademand
lessor, unless a notice to the contrary had 2. Nofixedperiod
previouslybeengivenbytheeitherparty. a. For rural lands (Art. 1682,
NCC) It shall be all time
Q: What are the requisites for tacita necessaryforthegatheringof
reconducion? fruits which the whole estate
mayyieldin1year,orwhichit
A: mayyieldonce
Thetermoftheoriginalcontracthasexpired b. Forurbanlands
The lessor has not given the lessee a notice 3. Ifrentispaiddaily, leaseisfromthedayto
tovacate day
The lessee continued enjoying the thing 4. If rent is paid weekly, lease is from week to
leased for at least 15 days with the week
acquiescenceofthelessor 5. Ifrentpaidmonthly,leaseisfrommonthto
month
Q:Whenistherenoimpliednewlease? 6. If rent is paid yearly, lease is from year to
year
A:
1. Before or after the expiration of the Q:Whenisthelesseeentitledtoareductionof
term, there is a notice to vacate given rent?
byeitherparty;
2. There is no definite fixed period in the A:
original lease contract as in thecase of GR:Incaseofthelossofmorethanonehalf
successiverenewals. of the fruits through extraordinary and
unforeseenfortuitousevents.
Q:Whataretheeffectsofanimpliednewlease?
XPN:Stipulationtothecontrary.
A:
1. Theperiodofthenewleaseisnotthat Note:Itisapplicableonlytoleaseofrurallands.
stated in the original contract; but for
thenlegalperiodsestablishedbylawin Q: What are the rules on the extension of the
Art. 1682, if the lease is rural lease, or leaseperiod?
Art.1687,iftheleaseisurbanlease.
2. Accessory obligations contracted by a A:
third person are extinguished (Art. 1. If a lease contract for a definite terms
1672,NCC) allowslesseetodulynotifylessorofhis
3. Othertermsoftheoriginalcontractare desiretosoextendtheterm,unlessthe
revived contraryisstipulated
2. May be extended as stipulation
Note:Thetermsthatarerevivedareonly lessee can extend without lessors
those which are germane to the consentbutlesseemustnotifylessor
enjoyment of possession, but not those 3. May be extended for 6 years agreed
with respect to special agreementswhich upon by both parties as stipulation
are by nature foreign to the right of thismustbeinterpretedinfavorofthe
occupancy or enjoyment inherent in a lessee. Hence, oridinarily the lessee, at
contractoflease. the end of the original period, may

either:

a. leavethepremises;or

b. remaininpossession
4. In coownership, assent of coowner is
needed, otherwise, it is void or
443

ineffective as against nonconsenting 4. Lossofthething
coowners 5. Rescission due to the performance of
5. Where according to the terms of the the obligations of one of the parties
contract, the lease can be extended statedunderArt.1654and1657.
only by the written consent of the 6. Thedwellingplaceoranyotherbuilding
parties thereto, no right of extension is unfit for human habitation and is
canrisewithoutsuchwrittenconsent dangeroustolifeorhealth.
6. If the option is given to the lessor, the
lessee cannot renew the lease against Q: Will the death of the lessee extinguish the
theformersrefusal leaseagreement?
7. The lessor may impose additional
conditions after the expiration of the A:No.Thedeathofthelesseewillnotextinguish
originalperiod the lease agreement, since lease is not personal
8. Par. 2, Art. 1687, NCC provides that in in character and the right is transmissible to the
the event that the lessee has occupied heirs. (Heirs of Dimaculangan v. IAC, G.R. No.
the leased premises for over a year, 68021,Feb.20,1989)(1997BarQuestion)
courtsmayfixalongertermoflease
Q:Whataretheremediesoftheaggrievedparty
Note:Thepowerofthecourtstoestablish in case of noncompliance of the other partys
a grace period is potestative or obligations under Arts. 1654 (obligations of
discretionary,dependingontheparticular lessor)and1657(obligationsoflessee)?
circumstancesofthecase.

Q:Whatisperpetuallease? A:
1. Rescissionwithdamages
A: A lease contract providing that the lessee can 2. Damages only allowing the lease to
stay in the premises for as long as he wants and subsists
for as long as he can pay the rentals and its
increase. Q: What are the restrictions in exercising the
righttorescind?
Note:Itisnotpermissible.Itisapurelypotestative
condition because it leaves the effectivity and A:JAS
enjoyment of leasehold rights to the sole and 1. Breach must be Substantial and
exclusivewillofthelessee.
fundamental(deminimisnoncuratlex

thelawisnotconcernedwithtrifles).
TERMINATIONOFLEASE
2. ItrequiresJudicialaction.

3. It can be filed only by the Aggrieved
Q: When does immediate termination of lease
party.
apply?

Q: In case of action to rescind, may the other
A:
party validly request for time within which to
1. Only to dwelling places or any other
complywithhisduties?
buildingintendedforhumanhabitation

2. Even if at the time the contract was
A:No.Theaggrievedpartyseekingrescissionwill
perfected, the lessee knew of the
prevail.UnderArticle1659,NCC,thecourthasno
dangerousconditionorwaivedtheright
discretion to refuse rescission, unlike the
to rescind the contract on account of
situation covered by Art. 1191, NCC, in the
thiscondition
generalrulesonobligations[Bacallav.Rodriguez,

et.al.,C.A.40O.G.(supp.),Aug.30,1941]
Q: What are the grounds for termination of

lease?
Q:Howistheamountofdamagesmeasured?

A:WiReLExRun
A:Differencebetweentherentsactuallyreceived
1. Expirationoftheperiod
and that amount stipulated in the contract
2. Resolution of the right of lessor (i.e.:
representing the true rental value of the
when the lessor is a usufructuary and
premises. (A. Maluenda and Co. vs. Enriquez, 49
theusufructisterminated)
Phil.916)
3. By the will of the purchaser or

transfereeofthething
444 CIVILLAWTEAM:

LEASE
Q: Under a written contract dated December 1, Ernie can file a crossclaim against Joel
1989, Victor leased his land to Joel for a period for damages on account of the
offive(5)yearsatamonthlyrentalofP1,000.00, rescissionofthecontractofassignment.
to be increased to P1,200.00 and P1,500.00 on Conrad can file a counterclaim against
thethirdandfifthyear,respectively.OnJanuary Victorfordamagesforlackofcausesof
1,1991,JoelsubleasedthelandtoConradfora action at the time of the filing of the
period of 2 years at a monthly rental of suit.(2005BarQuestion)
P1,500.00.OnDecember31,1992,Joelassigned
the lease to his compadre, Ernie, who acted on Q: A is the owner of a lot on which he
the belief that Joel was the rightful owner and constructed a building in the total cost of
possessorofthesaidlot.Joelhasbeenfaithfully P10,000,000. Of that amount B contributed
paying the stipulated rentals to Victor. When P5,000,000providedthatthebuildingasawhole
Victor learned on May 15, 1992 about the would be leased to him (B) for a period of ten
sublease and assignment, he sued Joel, Conrad years from January 1, 1985 to December 31,
and Ernie for rescission of the contract of lease 1995 at a rental of P100,000 a year. To such
andfordamages. condition,Aagreed.OnDecember20,1990,the
1. Will the action prosper? If so, buildingwastotallyburned.Soonthereafter,As
againstwhom?Explain. workers cleared the debris and started
2. In case of rescission, discuss the construction of a new building. B then served
rights and obligations of the noticeuponAthathewouldoccupythebuilding
parties. being constructed upon completion, for the
unexpired portion of the lease term, explaining
A: that he had spent partly for the constructionof
1. Yes, the action for rescission of the the building that was burned. A rejected Bs
lease will prosper because Joel cannot demand.DidAdorightinrejectingBsdemand?
assign the lease to Ernie without the
consent of Victor (Art. 1649, NCC). But A: Yes, A was correct in rejecting the demandof
Joel may sublet to Conrad because B. As a result of the total destruction of the
there is no express prohibition (Art. building by fortuitous event, the lease was
1650, NCC; Alipio v. CA, G.R. No. extinguished. (Art. 1655, NCC) (1993 Bar
134100,Sept.29,2000). Question)

Victorcanrescindthecontract oflease II.LEASEOFWORKORSERVICES
with Joel, and the assignment of the
lease to Ernie, on the ground of Q:Whatisacontractforapieceofwork?
violation of law and of contract. The
sublease to Conrad remained valid for A: A contract whereby one of the parties binds
2 years from January 1, 1991, and had himself to produce a result out of his work or
not yet lapsed when the action was labor and the other party binds himself to pay
filedonMay15,1992. remunerationtherefor.

2. In case of rescission, the rights and Q:Whatisacontractforleaseofservices?
obligations of the parties should be as
follows:AtthetimethatVictorfiledsuit A:Acontractwherebyonepartybindshimselfto
on May 15, 1992, the assignment had rendersomeservicetotheotherpartyconsisting
not yet lapsed. It would lapse on his own free activity of labor, and not its result
December 1, 1994, the very same date and the other party binds himself to pay a
that the 5year basic lease would remunerationtherefor.(PinedaSales,p.440441,
expire. Since the assignment is void, 2002ed)
Victor can get the property back
because of the violation of the lease. Q:Distinguishleaseofservicesfromagency.
Both Joel and Ernie have to surrender
possession and are liable for damages. A:
But Conrad has not yet incurred any LEASEOFSERVICES AGENCY
liability on the sublease which still Basedonemployment
Basedonrepresentation
subsistedatthetimeofthefilingofthe thelessorofservices
agentrepresenthis
actiononMay15,1992. doesnotrepresenthis
principalandenterinto
employernordoeshe
juridicalacts
executejuridicalacts
445

Principalcontract Preparatorycontract (Paterno v. Jao Yan, GR. No. L12218, February 28,
1961)
Q: Distinguish contract of piece of work and
contractofleaseservices. Q:Whatisthepurposeinrecordingalease?

A: A: A lease does not have to be recorded in the
PIECEOFWORK LEASEOFSERVICES Registry of Property to be binding between the
Objectofcontractisthe Objectofcontractisthe parties;registrationisusefulonlyforthepurpose
resultofthework serviceitselfandnotthe of notifying strangers to the transaction. (Art
withoutconsideringthe resultwhichitgenerates 1648,NCC)
laborthatproducedit
Iftheresultpromisedis Eveniftheresult Q:Whatismeantbyproperauthority?
notaccomplished,the intendedisnotattained,
lessororpromissoryis theservicesofthe A:Properauthoritymeansapowerofattorneyto
notentitledto lessormuststillbepaid constitutethelease.
compensation
Q:Whenisaproperauthorityrequired?
Q: What if the value has not been agreed upon
inacontractofleaseofservice? A:
1. Husband with respect to the
A:Whennoratehasbeenfixed,thesameshallbe paraphernalrealestateofthewife;
determined by the courts according to the uses 2. FatherorGuardianwithrespecttothe
and customs of the place and the evidence, propertyoftheminorortheward;
unless the services by agreement were to be 3. Managerwithrespecttotheproperty
rendered gratuitously. (Pineda Sales, p. 444, underadministration.
20002ed)
Q:Whoisamanager?
III.LEASEOFRURALANDURBANLANDS
A:
Q: What is a rural land (ProductProducing 1. administratorofaconjugalproperty
Lands)? 2. administratorofacoownership
3. administrator of state patrimonial
A:Regardlessofsite,iftheprincipalpurposeisto property
obtainproductsfromthesoil,theleaseisofrural
lands.Hence,asusedhere,rurallandsarethose Q: Is the husband the administrator of the
where the lessee principally is interested in soil paraphernalrealproperty?
products.
A: No, unless such administrator has been
Q: What is an urban land (NonProduct transferredtohimbyvirtueofapublicdocument.
ProducingLands)? (Art.110,FC)

A: Lands leased principally for purposes of Q: A husband was properly given his wife
residencearecalledurbanlands. authority to administer the paraphernal real
property. Does this necessarily mean that just
Q: What is the form required of a contract of because the husband is now the administrator,
leaseofthings? he can lease said property without any further
authority?
A: Lease may be made orally, but if the lease of
realpropertyisformorethanayear,itmustbein A:Itdepends.
writingsunderthestatuteoffrauds. 1. Iftheleasewillbeforoneyearorless,
nootherauthorityisrequired.
Note:Wherethewrittencontractofleasecalledfor 2. Iftheleaseontherealpropertywillbe
the erection by the tenant, of a building of strong for more than a year, then a special
wooden materials, but what he actually did power of attorney (aside from the
constructontheleasedpremiseswassemiconcrete public instrument transferring
edifice at a much higher cost, in accordance with a administration) is required. (Art.1878,
subsequent oral agreement with the lessor, oral
NCC)
evidence is admissible to prove the verbal
3. Furthermore, whether it be a) or b), if
modification of the original terms of the lease.
theleaseistoberecorded,theremust
446 CIVILLAWTEAM:

LEASE
be a special power of attorney. (Art boundbythelease.(Quimsonvs.Suarez,45Phil.

1647,NCC). 901)

Note: If it is the wife who is administering her Q: When is proper authority required for the
paraphernal real estate, the husband has no recordingofcontractoflease?
authority whatever, to lease, in any way, or
administertheproperty. A:
1. Spouse with respect to the separate or
Q: If a father, who is administering the real exclusivepropertiesoftheother,unless
estate of his minor son, wants to record the the administration of such properties
lease,shouldheaskforjudicialpermission? has been transferred to said spouse
done in a public instrument duly
A: Yes (Art. 1647, NCC). But even if no judicial recorded.(Art.110,FamilyCode)
authorization is asked, such defect cannot be

invoked by a lessee who has dealt with him.
Note:Conjugalpropertycannotbeleased
(Summers v. Mahinay, [CA] 40 O.G. [11th S] No. withoutthejointconsentofthespouses
18, p.40). Only the son or his own heirs may
questionthevalidityofthetransaction. 2. Father or guardian with respect to the
realpropertyofaminorchildorward
Q: How can leases of personal property be 3. Administrator or manager of a realty
bindingonthirdpersons? with respect to the property under his
administration
A: By executing a public instrument (by analogy, a. (Art.1647)
Art.1625,NCC).
Note: the proper authority is a special power of
A.QUALIFIEDPERSONS attorneydulyexecutediftheleaseisformorethan
oneyear(Art.1878(8))
Q: Who are persons disqualified to become
lessees? Q:Whenisleaseofrealpropertyarealright?

A: Persons disqualified to buy referred to in A:Generally,aleaseofrealpropertyisapersonal
article 1490 and 1491, are also disqualified to right. However, it is considered real under the
becomelesseesofthethingsmentionedtherein. followingconditions:
(Article1646) 1. Ifitisformorethanoneyearandtobe
enforceable,itmustbeinwriting
Q: Are foreigners disqualified to lease lands in 2. If it is registered with the Registry of
thePhilippines? Property, regardless of its period.
(PinedaSales,p.449,2002ed)
A:
GR:Yes C.PROHIBITIONS

XPN: lease of lands for residential Q:Whatistheruleregardingsubleaseofruralor
purposes (Smith, Bell and Co. vs. urbanlands?
RegisterofDeeds,96Phil53)
A:Thelesseemaysubletthepropertyinabsence
B.REGISTRATION ofanexpressprohibition.

Q:What istheeffectofrecordingofcontractof Note:thesubleasemaybeofthewholeorpart
lease? onlyofthethingleased.

A: Even if not recorded with the Registry of This right to sublease is without prejudice to the
Property, the lease is binding between the sublessors responsibility in the performance of
parties. However, if third persons have to be thecontracttowardsthelessor.(Art.1650,NCC)
bound,thecontractmustberecorded.

Note: However, if a purchaser has actual
knowledge of the existence of the lease, which
knowledge is equivalent to registration, he is
447

IV.RIGHTSANDOBLIGATIONS 2. If repairs last for 40 days or more,
OFLESSORSANDLESSEES lesseecanaskforreductionoftherent
inproportiontothetimeincludingthe
st
Q: Who are the persons disqualified to become 1 40 days and the part of the
lessees? propertyofwhichheisdeprived

A: Note: In either case, rescission may be availed of if
GR: Husband and wife with respect to their the main purpose of the lease is to provide a
dwelling place and the property becomes
separateproperties.
uninhabitable.

XPN: Separation of property agreed
Q:Whataretheeffectsifthelessorfailstomake
uponorjudicialseparationofproperty.
urgentrepairs?

Those disqualified due to fiduciary
A:Thelesseemay:
relationship.
1. orderrepairsatthelessorscost;
2. suefordamages;
Q:Whataretheobligationsofthelessor? 3. suspendthepaymentoftherent;or
4. ask for rescission, in the case of
A:ReDCaP substantialdamagetohim.
1. To Deliver the things in such condition
as to render it fit for the use intended Q:Whatarethekindsoftrespassinlease?
(cannotbewaived)
2. GR: To make, during the lease all the A:
necessary Repairs in order to keep it 1. Trespass in the fact (perturbation de
suitablefortheusetowhichithasbeen mere hecho) physical enjoyment is
devoted reduced.Lessorwillnotbeliable.
2. Trespass in the law (perturbation de
XPN:Stipulationtothecontrary. derecho) a 3rd person claims legal
right to enjoy the premises. Lessor will
3. To maintain the lessee in the Peaceful beheldliable.
and adequate enjoyment of the lease
fortheentiredurationofthecontract Q:Whataretheobligationsofthelessee?

4. Cannot alter the form of the thing A:TRUEPRU
leased 1. Pay the price of the lease according to
thetermsstipulated
Q: What are the rules on changing the form of 2. Usethethingleasedasadiligentfather
thingleased? of a family devoting it to the use
stipulated, and in the absence of
A: stipulation, to that which may be
1. Lessor can alter the thing leased inferred from nature of thing leased,
providedthereisnoimpairmentofthe accordingtothecustomoftheplace
use to which the things are devoted 3. PaytheExpensesofthedeedoflease
underthetermsofthelease 4. Notify the lessor of Usurpation or
2. Alteration can be made by lessee untowardacts
provided the value of property is not 5. TonotifythelessorofneedforRepairs
substantiallyimpaired 6. To Return the property leased upon
termination of the lease in the same
Q: What are the rules if urgent repairs are condition as he receive it except when
necessary? whathasbeenlostorimpairedbylapse
of time, ordinary wear and tear or
A: inevitablecause/fortuitousevent
1. Lesseeisobligatedtotoleratethework, 7. Tolerance of urgent repairs which
althoughitmaybeannoyingtohimand cannot be deferred until the end of
although during the same time he may lease(par.1,Art.1662,NCC)
bedeprivedofapartofthepremises,if
repairslastfornotmorethan40days
448 CIVILLAWTEAM:

LEASE
Q: What is the effect of the destruction of the 1. Ordinary fortuitous event no

thingleased? reduction. The lessee being the owner
of crops must bear the loss. Res perit
A: domino
1. Total destruction by fortuitous event 2. Extraordinaryfortuitousevent
Leaseisextinguished. a. More than onehalf of the
2. Partialdestruction fruits were lost, there is a
a. Proportional reduction of reduction (XPN: specific
rent;or stipulationtothecontrary)
b. Rescissionofthelease. b. Less than onehalf, or if the
loss is exactly onehalf, there
Q:Whenmaylesseesuspendpaymentofrent? isnoreduction

A:Whenthelessorfailsto: Note:Therentmustbereducedproportionately.
1. undertakeurgentrepairs;or
2. maintain the lessee in peaceful and Q: X leased his land to Y for the purpose of
adequate enjoyment of the property growingcropsthereon.Duetoanextraordinary
leased. fortuitous event, more than onehalf of the
crops were. In the lease contract, the rent was
Note:Fortheinterveningperiod,thelesseedoesnot fixed at an aliquot (proportional) part of the
havetopaytherent. crops.IsYentitledtoareductioninrents?

A:No,becauseheretherentisalreadyfixedatan
Q:Whendoesthesuspensionbecomeeffective? aliquot part of the crops. Thus, every time the
crops decrease in number, the rent is reduced
A:Therightbegins: automatically. If therefore, the tenant here
1. Inthecaseofrepairsfromthetimeof refusestogivethestipulatedpercentage,hecan
thedemandanditwentunheeded beevicted.(HijosdeI.delaRamav.Benedicto,1
2. In case of eviction from the time the Phil.495)
final judgment for eviction becomes
effective Q:Whatistheruleforreductionofrent?

Q: What are the alternative remedies of the A:Thereductiononrentcanbeavailedofonlyif
aggrieved party in case of nonfulfillment of the loss occurs before the crops are separated
duties? from their stalk, root, or trunk. If the loss is
afterwards,thereisnoreductionofrent.
A:
1. Rescissionanddamages Q: What is the duration of rural lease with an
2. Damages only, allowing the contract to unspecifiedduration?
remaininforce(specificperformance)
A: The lease of a piece of rural land, when its
V.SPECIALRULESFORLEASEOFRURALAND duration has not been fixed, is understood to
URBANLANDS have been for all the time necessary for the
gathering of the fruits which the whole estate
RURALLANDS leased may yield in one year, or which it may
yield once, although two or more years have to
elapseforthepurpose. (Art.1682,NCC)
Q:Whatistheeffectofsterilityoflandincaseof
rurallease? Q: A rural lease was agreed upon to last for a
certain definite period. But the tenant planted
A:Thereisnoreduction.Thefertilityorsterilityof fruittreeswhichwouldrequirealongperiodof
thelandhasalreadybeenconsideredinthefixing time to bear fruit, as well as introduce certain
oftherent. more or less valuable improvements. Has this
act of the tenant changed the duration of the
Q: What is the effect of damage caused by a contract?
fortuitouseventontherurallease?
A: No, the duration of the lease has not been
A: changed. There was a fixed period for the lease
and therefore the nature of the fruit trees or
449

valuableimprovementsisimmaterial.(Iturraldev. or thru the employment of farm
Garduno,9Phil.605) machineries
3. tenant violates or fails to comply with
Q: If at the end of the lease, there are still the terms and conditions of the
pendingcrops,whowillownthem? contractortheRA1199
4. failure to pay the agreed rental or
A:Thelessee.However,acontrarystipulationwill deliverthelandholdersshare
prevail. 5. tenant uses the land for different
purpose
Q:Whatistheruleforlandtenancyonshares? 6. sharetenant fails to follow farm
practices which will contribute towards
A: This refers to the contracts of aparceria. Land the proper care and increased
tenancy on shares are primarily governed by production
special laws (ex: Agricultural Tenancy Act, RA 7. negligence permits serious injury to
1199),andsuppletorily,bythestipulationsofthe land which will impair its productive
parties, the provisions on partnership, and the capacity
customsoftheplace. 8. conviction by a competent court of a
tenantoranymemberofhisimmediate
Q:Whoisatenant? family or farm household of a crime
against the landholder or a member of
A: A tenant is a person, who, himself, and with hisimmediatefamily.
the aid of available from within his immediate
farmhousehold,cultivatesthelandbelongingto, Q:Willthesaleofthelandextinguishthefarm
orpossessedbyanother,withthelattersconsent tenancyrelationship?
for the purpose of production, sharing the
produce with the landholder under the share A: No. The purchaser or the transferee shall
tenancysystem,orpayingtothelandlordaprice assume the rights and obligations of the former
certain or ascertainable in produce, or in money landholderinrelationtothetenant.
or both, under the leasehold tenancy system.
(Pangilinan v. Alvendia, GR no. 10690, June 28, Q: Does death extinguish the tenancy
1957) relationship?

Q: What is included in an immediate farm A:Itdepends.
household? 1. Death of tenant extinguishes
relationship but heirs and members of
A:Thisincludesthemembersofthefamilyofthe his immediate farm household may
tenant,andsuchotherperson/s,whetherrelated continue to work on the land until the
to the tenant or not, who are dependent upon closeoftheagriculturalyear.
him for support, and who usually help him 2. Death of landholder does not
operatethefarmenterprise. extinguish the relationship because his
heirs shall assume his rights and
Q:Canatenantworkfordifferentlandowners? obligation.

A:Itisprohibitedforatenant,whoseholdingis5 Q: Does the expiration of the period of the
hectares or more, to contract work at the same contract of tenancy fixed by the parties
timeontwoormoreseparateholdingsbelonging extinguishtherelationship?
to different landholders without the knowledge
andconsentofthelandholderwithwhomhehad A: No. The landlord is required by law, if the
first entered into the tenancy relationship. (Sec. tenant does not voluntarily abandon the land or
24,RA1199) turnitovertohim,toaskthecourtforanorder
ofdispossessionofthetenant.(Sec.49,RA1199,
Q: What are the grounds for ejectment of the asamendedbyRA2263)
tenantonshares?

A:
1. voluntarysurrenderoftheland
2. bona fide intention of the landholders
to cultivate the land himself personally
450 CIVILLAWTEAM:

LEASE
URBANLANDS Q: What is the effect if the contract for

householdserviceismorethan2years?
Q:Whataretherulesapplicabletorepairswhich
anurbanlessorisliable? A: The contract is void insofar as the excess is
concerned.
A:
1. Specialstipulation Q: Is there a form of contract required for
2. Ifnone,customoftheplace. householdservice?

Q:Whataretheruleswhenthedurationoflease A:Noformalitiesarerequiredforthecontractof
isnotfixed? household service, and even if the term of
employmentshouldexceedoneyear,theStatute
A: of Frauds will not apply because in the contract,
1. If there is a fixed period the lease performance is supposed to commence right
wouldbeforthesaidperiod. away.
2. Iftherearenofixedperiodapplythe
following: Q:Canhousehelpersworkmorethantenhours
a. rentpaiddailyleaseisfrom aday?
daytoday
b. rentpaidweeklyleaseis A: Yes because the law says shall not be
fromweektoweek required. Hence, if the helper agrees to work
c. rentpaidmonthlylease overtime, this is clearly permissible. (Baloloy v.
frommonthtomonth Uy,[CA]62O.G.5661)
d. rentpaidyearlyleasefrom
yeartoyear Q: When can additional compensation be
demanded?
VI.HOUSEHOLDSERVICE
A:
Q:Whatisthescopeofhouseholdservice? 1. ifthevoluntaryovertimeworkisagreed
upon;
A: It includes the work of family servants and 2. if the nature of the work so demands
driverbutnotthatoflaborersinacommercialor suchovertimeservice.
industrialenterprise.
Q: What are included in the computation of
Q:Isworkingtoreduceindebtednessallowed? periodforhoursofwork?

A:Yes.Whatisprohibitedistoworkasaservant A: The hours of work include not only those of
forfree. actual work but also the time during which the
services of the helper are available to the
Q:Whenismedicalattendancegivenfree? employer,eveniftheservicesarenotavailedof.

A: Medical attendance shall be given free only if Q:Whatistheruleforyayas?
theinjuryorillnessaroseoutofandinthecourse
ofemployment. A: A yaya or nursemaid for small children, by
thenatureofherwork,mayrendermorethan10
Q: What is the duration of the contract for hours work, but she is evidently entitled to a
householdservice? higherrateofcompensation.

A: 2 years. Any period agreed upon in excess of Q:Whatistheruleonvacationforhelpers?
twoyearsisvoid.
A:Thelawsaysfourdaysvacationeachmonth,
Note: Upon expiration, however, it is subject to a with pay. If the helper insists on this, the
renewalforsuchperiodsasmaybeagreeduponby employermustgrantthevacation,andhecannot
the parties. (Pineda Sales, p. 551, 2002 ed, Article insistonmerelygivingthemonetaryvalue.
142,LaborCode)
451

VII.CONTRACTOFLABOR VIII.CONTRACTFORPIECEOFWORK

Q:Whatisacontractoflabor? Q: Distinguish contract for piece of work from
leaseofservices.
A: It is a consensual, nominate, principal, and
commutative contract whereby one person, CONTRACTFORPIECE
LEASEOFSERVICES
calledtheemployer,compensatesanother,called OFWORK
thelaborer,worker,oremployee,forthelatters The object is the
service. It is relationship impressed with public Theobjectisservices.
resultantworkorobject.
interest in keeping with our constitutional policy
ofsocialjustice. The risk is generally
borne by the Er, not by
The risk is borne by the
the worker unless the
Q: What are the essential characteristics of a workerbeforedelivery.
latterisguiltyoffaultor
contractoflabor?
negligence.

A:
Q: What are the elements of the contract of
1. Employer(Er) freely enters into a
work?
contractwiththeemployee(Ee);

2. EmployercanselectwhohisEewillbe
A:
3. Employer can dismiss the Ee; the
1. Consent
workerinturncanquithisjob;
2. Objectexecutionofpieceofwork
4. Employermustgiveremuneration;and
3. Causecertainpriceorcompensation
5. Employercancontrolandsupervisethe

conductoftheEe.
Q:Whoisacontractor?

A.OBLIGATIONINCASEOF
A: The worker is also called a contractor. He in
DEATHORINJURYOFLABORERS
turn may obtain the services of others, who will

workunderhim.
Q: What are the rules regarding Ers liability in

caseofdeathorinjury?
Q:WhatisthetesttodetermineifoneisanEe

oranindependentcontractor?
A:

1. If the cause of the death or personal
A:Therightofcontroltestisused.Iftheperson
injuryaroseoutofandinthecourseof
for whom services are to be performed controls
employment,theErisliable.
only the end to be achieved, the worker is a
2. If the cause was due to the Ees own
contractor; if the former controls not only the
notorious negligence, or voluntary act
end but also the manner and means to be used,
ordrunkenness,theemployershallnot
thelatterisanemployee.
beliable.

3. If the cause was partly due to the Ees
Q:Whatcanthecontractorfurnish?
lackofsuecare,thecompensationshall

beinequitablyreduced.
A:Thecontractormayfurnish:
4. If the cause was due to the negligence
1. Bothmaterialandthelabor,
of a fellow Ee, the Er and the guilty Ee
2. Oronlythelabor.
shallbeliablesolidarily.

5. If the cause was due to the intentional
Q: What are the duties of a contractor who
ormaliciousactoffellowEe,thefelloe
furnishesbothworkandthematerial?
Ee is liable; also the Er unless he

exercisedduediligenceinselectingand
A:Thisisequivalenttosale;therefore,theseare
supervisingsaidEe.
theduties:

1. Todeliver

2. Totransferownership

3. To warrant against eviction and hidden

defects

452 CIVILLAWTEAM:

LEASE
Q: What are the remedies of the Er in case of 2. If the acceptance is made without
defects? objection, the Er may still sue for
hiddendefects.
A:
1. Askthecontractortoremovethedefect Q:Whereistheplaceofpayment?
ortoexecuteanotherwork.
2. If the contractor fails or refuses, the Er A:
can ask another at the contractors 1. Wherestipulated
expense. If a building is involved, 2. Ifnostipulation,thenattimeandplace
expensesforcorrectionandcompletion ofdelivery.
mayberecovered.
Q:Whataretherulesonliabilityforcollapseofa
Q: What is the rule on agreements waiving or building?
limitingthecontractorsliability?
A:
A: 1. The collapse of the building must be
1. Intheabsenceoffraud,theagreement within15yearsfromthecompletionof
wouldordinarilybevalid. thestructure.
2. In the absence of prohibitory statute, 2. The prescriptive period is 10 years
the validity of a limitation is generally followingthecollapse.
upheld, with a view of obtaining 3. If the engineer or architect supervises
compensation commensurate to the the construction, he shall be solidarily
riskassumed. liablewiththecontractor.
4. The liability does applies to collapse or
Q: A asked B to make a radio cabinet. B bound ruin,nottominordefects.
himselftofurnishthematerial.Beforetheradio 5. Even if payment has been made, an
cabinetcouldbedelivered,itwasdestroyedbya actionisstillpossible.(Art.1723,NCC)
fortuitous event. A) Who suffers the loss? B) Is
thecontractextinguished? Q:Whoisliablewhenabuildingcollapsesduring
anearthquake?
A:
B suffers the loss of both the materials and A:Itdepends.
the work, unless there was mora 1. Iftheproximatecauseofthecollapseof
accipiendi.Iftherewasmoraaccipiendi, the building is an earthquake, no one
itisevidentthatAsufferstheloss. can be held liable in view of the
No, and therefore B may be required to do fortuitousevent.
the work all over again, unless there 2. If the proximate cause is, however,
had been a prior stipulation to the defective designing or construction, or
contrary or unless a remaking is directly attributable to the use of
possible.(Art.1717,NCC) inferior or unsafe material, it is clear
thatliabilityexists.
Note: The law merely refers to the burden of the
loss,andnottotheextinguishmentofthecontract. Q:Canthecontractorwithdrawordemandfora
higher price when the work is already
Q: Who suffers the loss in case of a fortuitous stipulated?
eventoranunavoidableaccident?
A:
A: As a general principle, in the absence of an GR: the contractor cannot withdraw or
express agreement to the contrary, the demandahigherpriceeveniftherebe
contractor must bear the loss from the ahighercostoflaborormaterials.
destructionofworkunderway,evenincaseofan
unavoidableaccident. XPNs:
1. if there was a written authorized
Q: What is the effect when the Er accepts the changeofplansandspecifications;
work? 2. if the additional price is also in
writing, agreed upon by both
A: parties.
1. The contractor is generally relieved of
liability.
453

LANDTITLESANDDEEDS B.CERTIFICATEOFTITLE

I.TORRENSSYSTEM Q:WhatisaCertificateofTitle?

A.CONCEPTANDBACKGROUND A: Certificate of title is the transcript of the
decree of registration made by the Register of
Q:WhatisTorrensSystem? Deeds in the registry. It accumulates in one
documentapreciseandcorrectstatementofthe
A: It is a system for registration of land under exact status of the fee simple title which an
which, upon the landowners application, the ownerpossesses.(AgcaoiliReviewer,p.245,2008
court may, after appropriate proceedings, direct ed)
the register of deeds for the issuance of a
certificateoftitle. Q:Whatarethetwotypesofcertificatesoftitle?

Q: What are the purposes in adopting the A:
TorrensSystemoflandregistration? 1. Original Certificate of Title (OCT) the
first title issued in the name of the
A:To: registered owner by the Register of
1. avoid possible conflicts of title Deeds covering a parcel of land which
regardingrealproperty;and had been registered under the Torrens
2. facilitate transactions relative thereto system by virtue of a judicial or
bygivingthepublictherighttorelyon administrativeproceeding.
the face of the Torrens certificate of
title and to dispense with the need of It consists of one original copy filed in
inquiringfurther. the Register of Deeds, and the owners
duplicate certificate delivered to the
Q:Whatisthenatureoftheproceedingforland owner.
registrationundertheTorrensSystem?
2. Transfer Certificate of Title (TCT) the
A:TheTorrenssystemisjudicialincharacterand title issued by the Register of Deeds in
not merely administrative. Under the Torrens favor of a transferee to whom the
system, the proceeding is in rem, which means ownershipofaregisteredlandhasbeen
thatitisbindinguponthewholeworld. transferred by any legal mode of
conveyance(e.g.sale,donation).
Note:Inaregistrationproceedinginstitutedforthe
registration of a private land, with or without It also consists of an original and an
opposition, the judgment of the court confirming ownersduplicatecertificate.
the title of the applicant or oppositor, as the case
may be, and ordering its registration in his name, Q: Differentiate title over land, land title,
constitutes, when final, res judicata against the certificateoftitle,anddeed.
wholeworld.
A: Title is a juridical act or a deed which is not
Q: What bodies implement land registration sufficient by itself to transfer ownership but
undertheTorrenssystem? provides only for a juridical justification for the
effectuation of a mode to acquire or transfer
A: ownership.
1. Courts
2. Department of Environment and Land title is the evidence of the owners right or
NaturalResources(DENR) extent of interest, by which he can maintain
3. Department of Justice (DOJ) through control, and as a rule, assert right to exclusive
the Land Registration Authority (LRA) possessionandenjoymentofproperty.
anditsRegisterofDeeds
4. DepartmentofLandReform(DLR) Certificateoftitleisthetranscriptofthedecreeof
5. DepartmentofAgriculture(DAR) registrationmadebytheRegisterofDeedsinthe
registry. It accumulates in one document a
preciseandcorrectstatementoftheexactstatus
ofthefeesimpletitlewhichanownerpossesses.
(AgcaoiliReviewer,p.245,2008ed)

454 CIVILLAWTEAM:

LAND TITLES AND DEEDS
Adeedistheinstrumentinwriting,bywhichany Q: What are the modes of acquiring ownership

real estate or interest therein is created, overland?
alienated, mortgaged or assigned, or by which
titletoanyrealestatemaybeaffectedinlawor A:OLDTIPS
equity. 1. Occupation
2. Law
Q: Is title over land synonymous with 3. Donation
ownership? 4. Tradition
5. Intellectualcreation
A:No.Titleisajuridicalactoradeedwhichisnot 6. Prescription
sufficient by itself to transfer ownership but 7. Succession
provides only for a juridical justification for the
effectuation of a mode to acquire or transfer Q:Differentiatepossessionfromoccupation.
ownership. It provides the cause for the
acquisitionofownership.(i.e.sale=title;delivery A:
= mode of acquisition of ownership) (Pineda, OCCUPATION POSSESSION
Property,p.485,1999ed) Itappliesonlyto Itappliestoproperties
propertywithout whetherwithor
Ownership,ontheotherhand,isanindependent owner. withoutowner.
right of exclusive enjoyment and control of the Byitselfdoesnot
thing for the purpose of deriving therefrom all Itconfersownership.
conferownership.
advantages required by the reasonable needs of Therecanbeno Therecanbe
the owner and the promotion of the general occupationwithout possessionwithout
welfarebutsubjecttotherestrictionsimposedby ownership. ownership.
lawandtherightsofothers.(Art.427,NCC)
Q:Howarelandtitlesacquired?
ACQUISITIONOFTITLE
A:PERAPAID
Q: What are the modes of acquiring title over 1. Publicgrant
land? 2. Emancipationpatentorgrant
3. Reclamation
A:IASDO 4. Adverse possession / acquisitive
1. By possession of land since time prescription
Immemorial 5. Privategrantorvoluntarytransfer
2. By possession of Alienable and 6. Accretion
disposablepublicland 7. Involuntaryalienation
8. Descentordevise
Note:UnderthePublicLandAct(CA
No. 141), citizens of the Philippines,
who by themselves or through their
TORRENSTITLE
predecessorsininterest have been

in open, continuous, exclusive and
Q:WhatisTorrenstitle?
notoriouspossessionandoccupation
of alienable and disposable

agriculturallandofthepublicdomain A:Itisacertificateofownershipissuedunderthe
underabonafideclaimofownership Torrens system of registration by the
since June 12, 1945, or earlier, government, through the Register of Deeds (RD)
(except when prevented by war or naminganddeclaringtheownerinfeesimple of
force majeure), shall be conclusively therealpropertydescribedtherein,freefromall
presumedtohave performed all the liens&encumbrances,exceptasmaybeexpressly
conditionsessentialtoagovernment notedthereorotherwisereservedbylaw.
grant and shall be entitled to a
certificateoftitle. Note: It is conclusive against the whole world
(including the government and to a holder in good
3. By Sale, Donation, and Other modes of faith),guaranteedtobeindefeasible,unassailable&
acquiringownership imprescriptible.

Q: Filomena allegedly bought a parcel of
unregistered land from Hipolito. When she had
455

the property titled and declared for tax INDEFEASIBILITYANDINCONTROVERTIBILITY
purposes, she sold it. The Mapilis question the OFCERTIFICATESOFTITLE
transfer, saying that Filomena falsely stated in
her Affidavit of Transfer of Real Property that Q: What is meant by indefeasibility and
Hipolitosoldittoherin1949,sincebythattime, incontrovertibilityofcertificatesoftitle?
heisalreadydead.Filomenamaintainsthatshe
is the lawful owner of such by virtue of the A: The certificate, once issued, becomes a
issuance of the Torrens certificate and tax conclusiveevidenceofthetitleownershipofthe
declarationsinhername.IsFilomenathelawful land referred to therein. What appears on the
ownerofsuchproperty? face of the title is controlling on questions of
ownershipofthepropertyinfavoroftheperson
A: No. Torrens certificate pertaining to the whosenameappearsthereinandsuchcannotbe
disputed property does not create or vest title, defeated by adverse, open, and notorious
but is merely an evidence of anindefeasible and possession; neither can it be defeated by
incontrovertible title to the property in favor of prescription.(AgcaoiliReviewer,p.246,2008)
the person whose name appears therein. Land
registration under the Torrens system was never
intendedtobeameansofacquiringownership. Q: What are the rules as regards indefeasibility
andincontrovertibility?
Neither does the existence of tax declarations
createorvesttitle.Itisnotaconclusiveevidence A:
of ownership, but a proof that the holder has a 1. The certificate of title serves as
claimoftitleovertheproperty.(Larenav.Mapili, evidence of an indefeasible title to the
et.al.,G.R.No.146341,Aug.7,2003) property in favor of the person whose
nameappearstherein.
Q: What are the effects of the issuance of a
Torrenstitle? 2. Aftertheexpirationoftheone(1)year
period from the issuance of the decree
A:TRINC ofregistrationuponwhichitisbased,it
1. The land is placed under the operation becomesincontrovertible.
ofTorrensSystem;
2. Land is Relieved from all claims except 3. Decree of registration and the
those noted thereon and provided by certificate of title issued pursuant
law; theretomaybeattackedontheground
3. The land becomes Incontrovertible and ofactualfraudwithinone(1)yearfrom
indefeasible; thedateofitsentryandsuchanattack
4. Title to the land becomes Non must be direct and not by a collateral
prescriptible;and proceeding. The validity of the
5. The certificate of title is not subject to certificate of title in this regard can be
Collateralattack. threshedoutonlyinanactionexpressly
filedforthepurpose.
Q:WhatistheprobativevalueofaTorrenstitle?
Q: There is no specific provision in the Public
A:Torrenstitlemaybereceivedinevidenceinall LandLaw(CANo.141,asamended)ortheLand
courts of the Philippines and shall be conclusive Registration Act (Act 496), now PD 1529, fixing
astoallmatterscontainedtherein,principallyas the one (1) year period within which the public
totheidentityofthelandownerexceptsofaras land patent is open to review on the ground of
providedintheLandRegistrationAct(LRA) actual fraud as in Section 38 of the Land
RegistrationAct,nowSection32ofPD1529,and
A Torrens certificate is an evidence of clothing a public land patent certificate of title
indefeasible title of property in favor of the with indefeasibility. What is the effect of such
person in whose name appears therein such absence?
holder is entitled to the possession of the
propertyuntilhistitleisnullified. A:None.Theruleonindefeasibilityofcertificates
of title was applied by the Court in Public Land
Patents because, according to the Court, such
application is in consonance with the spirit and
intentofhomesteadlaws.
456 CIVILLAWTEAM:

The Court held that the pertinent A:No.Althoughitisarecognizedprinciplethata

pronouncements in cases clearly reveal that Sec. person dealing on a registered land need not go
38oftheLandRegistrationAct,nowSec.32ofPD beyond it certificate of title, it is also a firmly
1529 was applied by implication by this Court to settled rule that where there are circumstances
the patent issued by the Director of Lands duly which would put a party on guard and prompt
approved by the Secretary of Natural Resources, him to investigate or inspect the property being
under the signature of the President of the sold to him, such as the presence of
Philippinesinaccordancewithlaw. occupants/tenants thereon, it is of course,
expected from the purchaser of valued piece of
The date of issuance of the patent, therefore, land to inquire first into the status or nature of
corresponds to the date of the issuance of the the possessionof the occupants, i.e., whetheror
decreeinordinaryregistrationcasesbecausethe not the occupants possess the land en concepto
decree finally awards the land applied for dedueno,inconceptofanowner.
registration to the party entitled to it, and the
patentissuedbytheDirectorofLandsequallyand As is the common practice in the real estate
finally grants, awards, and conveys the land industry, an ocular inspection of the premises
applied for to the applicant. (Aquino, p. 148; involved is a safeguard that a cautious and
AgcaoiliReviewerp.409) prudent purchaser usually takes. Should he find
outthatthelandheintendstobuyisoccupiedby
Note: A certificate of title issued under an anybodyelseotherthanthesellerwho,asinthis
administrativeproceedingpursuanttoahomestead case,isnotinactualpossession,itwouldthenbe
patent is as indefeasible as a certificate of title incumbentuponthepurchasertoverifytheextent
issued under a judicial registration proceeding, oftheoccupantspossessoryrights.Thefailureof
provided the land covered by said certificate is a theprospectivebuyertotakesuchprecautionary
disposable public land within the contemplation of steps would mean negligence on his part and
thePublicLandLaw. would thereby preclude him from claiming or
invokingtherightsofapurchaseringoodfaith.
MIRRORDOCTRINE (Mathayv.CA,G.R.No.115788,Sept.17,1988)

Q:Whatisthemirrordoctrine? Q: Spouses X and Y mortgaged a piece of
registered land to A, delivering as well the OCT
A: All persons dealing with a property covered tothelatter,buttheycontinuedtopossessand
byTorrenscertificateoftitlearenotrequiredto cultivatetheland,giving1/2ofeachharvesttoA
gobeyondwhatappearsonthefaceofthetitle. in partial payment of their loan to the latter. A
Wherethereisnothingonthecertificateoftitle however, without the knowledge of X and Y,
toindicateanycloudorviceintheownershipof forged a deed of sale of the aforesaid land in
the property, or any encumbrance thereon, the favorofhimself,gotaTCTinhisname,andthen
purchaserisnotrequiredtoexplorefurtherthan soldthelandtoB.
what the Torrens title upon its face indicates in
quest for any hidden defect or inchoate right B bought the land relying on A's title, and
thatmaydefeathisrightthereto. thereafter got a TCT in his name. It was only
thenthatthespousesXandYlearnedthattheir
Note: Stated differently, an innocent purchaser for
land had been titled in B's name. May said
valuerelyingontheTorrenstitleissuedisprotected.
spouses file an action for reconveyance of the
Q:Whendoesthemirrordoctrineapply?
landinquestionagainstB?Reason.

A:Whenatitleoveralandisregisteredunderthe
A: The action of X and Y against B for
Torrens system (Agcaoili Reviewer, p. 246, 1999
reconveyance of the land will not prosper
ed)
because B has acquired a clean title to the
propertybeinganinnocentpurchaserforvalue.
Q:BeeboughtaparceloflandwithacleanTCT.

However, when he found some persons
A forged deed is an absolute nullity and conveys
occupying it, he fenced the property over the
no title. The fact that the forged deed was
occupants objection. May Bee invoke the
registered and a certificate of title was issued in
principlethatapersondealingwitharegistered
his name, did not operate to vest upon A
landneednotgobeyonditscertificateoftitlein
ownership over the property of X and Y. The
thiscase?
registration of the forged deed will not cure the
infirmity. However, once the title to the land is
457

registered in the name of the forger and title to with an area of 30 hectares, located in General
the land thereafter falls into the hands of an SantosCity.HepresentedtheFreePatenttothe
innocentpurchaserforvalue,thelatteracquiresa Register of Deeds, and he was issued a
cleantitlethereto.Abuyerofaregisteredlandis corresponding Original Certificate of Title (OCT)
not required to explore beyond what the record No. 375. Subsequently, Nestor sold the land to
in the registry indicates on its face in quest for Eddie. The deed of sale was submitted to the
any hidden defect or inchoate right which may RegisterofDeedsandonthebasisthereof,OCT
subsequently defeat his right thereto. This is the No.375wascancelledandTransferCertificateof
"mirror principle" of the Torrens system which Title (TCT) No. 4576 was issued in the name of
makesitpossibleforaforgeddeedtobetheroot Eddie. In 1986, the Director of Lands filed a
ofagoodtitle. complaintforannulmentofOCTNo.375andTCT
No.4576onthegroundthatNestorobtainedthe
Besides,itappearsthatspousesXandYareguilty Free Patent through fraud. Eddie filed a motion
of contributory negligence when they delivered to dismiss on the ground that he was an
theOCTtothemortgageewithoutannotatingthe innocent purchaser for value and in good faith
mortgage thereon. Between them and the and as such, he has acquired a title to the
innocent purchaser for value, they should bear property which is valid, unassailable and
theloss.(1999BarQuestion) indefeasible.Decidethemotion.

Q: Who is a purchaser in good faith and for A: Nestors motion to dismiss the complaint for
value? annulment of OCT No. 375 and TCT No. 4576
shouldbedeniedforthefollowingreasons:
A:Apurchaseringoodfaithandforvalueisone
who buys property of another, without notice 1. Eddie cannot claim protection as an
thatsomeotherpersonhasarightto,orinterest innocentpurchaserforvaluenorcanhe
insuchpropertyandpaysafullandfairpricefor interpose the defense of indefeasibility
thesameatthetimeofsuchpurchase,orbefore ofhistitle,becausehisTCTisrootedon
he has notice of the claim or interest of some avoidtitle.UnderSec.91,CANo.141,
other person in the property. (San Roque Realty as amended, otherwise known as the
and Development Corp. v. Republic, G.R. No. PublicLandAct,statementsofmaterial
163130,Sept.7,2007) facts in the applications for public land
must be under oath. Sec. 91 of the
Note: An innocent purchaser for value includes a sameactprovidesthatsuchstatements
lessee,mortgagee,orotherencumbrancesforvalue. shall be considered as essential
conditions and parts of the concession,
Purchaseringoodfaithandforvalueisthesameas title, or permit issued, any false
aninnocentpurchaserforvalue. statement therein, or omission of facts
shallipsofactoproducethecancellation
Goodfaithconsistsinanhonestintentiontoabstain
oftheconcession.Thepatentissuedto
fromtakinganyunconsciousadvantageofanother.
Nestor in this case is void ab initio not

only because it was obtained by fraud
Q: If the land subject of the dispute was not
but also because it covers 30 hectares
brought under the operation of the Torrens
whichisfarbeyondthemaximumof24
system, will the concept of an innocent
hectares provided by the free patent
purchaserforvalueapply?
law.

A:Ifthelandinquestionwasnotbroughtunder
2. Thegovernmentcanseekannulmentof
the operation of Torrens system because the
the original and transfer certificates of
originalcertificateoftitleisnullandvoidabinitio,
titleandthereversionofthelandtothe
the concept of an innocent purchaser for value
State.Eddie'sdefenseisuntenable.The
doesnotapply.
protection afforded by the Torrens

System to an innocent purchaser for
Note:Goodfaithandbadfaithisimmaterialincase
of unregistered land. One who purchases an
value can be availed of only if the land
unregistered land does so at his peril (Agcaoili hasbeentitledthrujudicialproceedings
Reviewer,p.10,1999ed) where the issue of fraud becomes
academicafterthelapseofone(1)year
Q:In1979,Nestorappliedforandwasgranteda from the issuance of the decree of
Free Patent over a parcel of agricultural land registration. In public land grants, the
458 CIVILLAWTEAM:

action of the government to annul a prosper, or will the title of Catalino and the
title fraudulently obtained does not mortgagetoDesideriobesustained?
prescribe such action and will not be
barredbythetransferofthetitletoan A: The complaint for the annulment of Catalino's
innocentpurchaserforvalue.(2000Bar title will prosper. In the first place, the second
Question) owner'scopyofthetitlesecuredbyhimfromthe
Land Registration Court is void ab initio, the
Q:Istherightofthepublictorelyonthefaceof owner's copy thereof having never been lost, let
acertificateoftitleabsolute? alone the fact that said second owner's copy of
the title was fraudulently procured and
A: No. This is unavailing when the party improvidently issued by the court. In the second
concerned has actual knowledge of facts and place,theTransferCertificateofTitleprocuredby
circumstances that should imply a reasonably Catalino is equally null and void, it having been
cautiousmantomakesuchfurtherinquiry. issuedonthebasisofasimulatedorforgedDeed
of Sale. A forged deed is an absolute nullity and
Q:Whataretheexceptionstotheapplicationof conveysnotitle.
themirrordoctrine?
ThemortgageinfavorofDesiderioislikewisenull
A:BOBLIKA andvoidbecausethemortgagorisnottheowner
1. Wherethepurchaserormortgageeisa of the mortgaged property. While it may be true
Bank/financinginstitution; that under the "mirror rinciple of the Torrens
2. WheretheOwnerstillholdsavalidand systemoflandregistration,abuyerormortgagee
existing certificate of title covering the has the right to rely on what appears on the
samepropertybecausethelawprotects certificateoftitle,andintheabsenceofanything
the lawful holder of a registered title toexcitesuspicion, isunderno obligationto look
over the transfer of a vendor bereft of beyond the certificate and investigate the
anytransmissibleright; mortgagor's title, this rule does not find
3. PurchaserinBadfaith; application in the case at hand because here,
4. Purchaseslandwithacertificateoftitle Catalino's title suffers from two fatal infirmities,
containinganoticeofLispendens; namely:
5. Sufficiently strong indications to impel 1. Thefactthatitemanatedfromaforged
closer Inquiry into the location, deedofasimulatedsale;and
boundariesandconditionofthelot; 2. The fact that it was derived from a
6. Purchaser had full Knowledge of flaws fraudulently procured or improvidently
anddefectsinthetitle;or issued second owner's copy, the real
7. Whereapersonbuyslandnotfromthe owner'scopybeingstillintactandinthe
registeredownerbutfromwhoserights possessionofthetrueowner,Bruce.
tothelandhasbeenmerelyAnnotated
onthecertificateoftitle. The mortgage to Desiderio should be cancelled
withoutprejudicetohisrightto goafterCatalino
Q: Bruce is the registered owner, of a parcel of and/or the government for compensation from
land with a building thereon and is in peaceful theassurancefund.(1991BarQuestion)
possessionthereof.Hepaystherealestatetaxes
and collects the rentals therefrom. Later, Q:Duranownedtwoparcelsoflandwhichwere
Catalino, the only brother of Bruce, filed a madesubjectofadeedofsaleinfavorofFe,her
petition where he, misrepresenting to be the mother. After obtaining title in her name, Fe
attorneyinfactofBruceandfalselyallegingthat mortgaged the property to Erlinda. With Fes
the certificate of title was lost, succeeded in failuretoredeem,Erlindaacquiredtheproperty
obtainingasecondowner'sduplicatecopyofthe atpublicauction.Duran,claimingthatthedeed
title and then had the same transferred in his of sale is a forgery, sought to recover the
name through a simulated deed of sale in his property.Erlindainvokesthedefenseofbeinga
favor. Catalino then mortgaged the property to purchaseringoodfaith.IsErlindaapurchaserin
Desiderio who had the mortgage annotated on goodfaith?
the title. Upon learning of the fraudulent
transaction, Bruce filed a complaint against A: Yes. Erlinda, in good faith, relied on the
Catalino and Desiderio to have the title of certificateoftitleinthenameofFe.Afraudulent
Catalino and the mortgage in favor of Desiderio orforgeddocumentofsalemaybecometheroot
declared null and void. Will the complaint ofavalidtitleifthecertificateoftitlehasalready
459

beentransferredfromthenameofthetrueowner who then sold the property to Guaranteed
to the name of the forger or the name indicated Homes. Pablos other descendants seek
by the forger. (Duran v. IAC, G.R. No. L64159, reconveyance of the property sold to the
Sept.10,1985) spouses alleging that the extrajudicial
settlement was forged. Who is the rightful
Q: When may a forged document become the owneroftheproperty?
rootofavalidtitle?
A:GuaranteedHomesistherightfulowner,even
A: When the seller thru insidious means obtains assuming that the extrajudicial settlement was a
theownersduplicatecertificateoftitle,converts forgery.Generallyaforgedorfraudulentdeedisa
it in his name, and subsequently sells or nullity and conveys no title. There are, however,
otherwiseencumbersittoaninnocentpurchaser instanceswhensuchafraudulentdocumentmay
forvalue. become the root of a valid title. One such
instance is where the certificate of title was
Q: X, who did not know how to read and write already transferred from the name of the true
was, made to sign by her adopted son a paper owner to the forger, and while it remained that
which turned out to be a deed of sale of her way, the land was subsequently sold to an
houseandlot.Shenowquestionsthesaleofthe innocentpurchaser.Forthen,thevendeehadthe
properties in favor of the vendee. Who has a right to rely upon what appeared in the
betterright? certificate.

A: The vendee has a better right. This is so Also,theextrajudicialsettlementwasrecordedin
because, although generally a forged fraudulent the Register of Deeds. Registration in the public
deed is nullity and conveys no title, there are registryisnoticetothewholeworld.(Guaranteed
instances when such a fraudulent document may Homes, Inc. v. Heirs of Valdez, Heirs of Tugade,
becometherootofavalidtitle.Onesuchinstance Heirs of Gatmin, Hilaria Cobero and Alfredo and
is where the certificate of title was already SionyTepol,G.R.No.171531,Jan.30,2009)
transferred from the name of the owner to the
forger, and while it remained that way, the land
was subsequently sold to an innocent purchaser. II.REGALIANDOCTRINE
For then, the vendee had the right to rely upon
what appeared in the certificate. (Fule v. Legare, A.CONCEPT
G.R.No.L17951,Feb.28,1963)
Q:WhatisRegaliandoctrine(juraregalia)?
Q: The Solivels were the registered owners of
parcels of land. Juan, claiming to be their A:Atimehonoredconstitutionalpreceptthatall
attorneyinfact passed the title to the real lands of the public domain belong to the State,
propertytoaninnocentpurchaserusingaforged and that the State is the source of any asserted
deed of sale. Was the buyer an innocent right to ownership in land, and charged with the
purchaserforvalueprotectedbylaw? conservationofsuchpatrimony.

A: No. The innocent purchaser for value B.EFFECTS
protected by law is one who purchases a titled
land by virtue of a deed executed by the Q: Discuss the application of the Regalian
registered owner himself, not on a forged deed. doctrine.
In order that the holder of a certificate for value
issuedbyvirtueoftheregistrationofavoluntary A:Alllandsnototherwiseappearingtobeclearly
instrument may be considered a holder in good withinprivateownershiparepresumedtobelong
faith for value, the instrument registered should to the State. Incontrovertible evidence must be
not be forged. (Solivel v. Francisco, G.R. No. shown that the land is alienable or disposable in
51450,Feb.10,1989) ordertoovercomesuchpresumption.

Q: Cipriano, one of Pablos heirs, executed an Note:Itdoesnotnegatenativetitletolandsheldin
extrajudicial settlement of a sole heir and private ownership since time immemorial. (Cruz v.
confirmationsales,declaringhimselfastheonly Secretary of Environment and Natural Resources,
heir and confirmed the sales made in favor of G.R.No.135385,Dec.6,2000)
thespousesRodolfo.Consequently,acertificate
of title was issued in the name of the spouses,
460 CIVILLAWTEAM:

C.CONCEPTOFNATIVETITLE, bypurchasewhilestillcitizensofthePhilippines,
TIMEIMMEMORIALPOSSESSION. from a vendor who has complied with the
requirements for registration under the Public
Q:Whatisanativetitle? Land Act. (Republic v. CA and Lapina, G.R. No.
108998,Aug.24,1994)
A:itreferstoapreconquestrightstolandsand
domains which, as far back as memory reaches, Q: Joe, an alien, invalidly acquired a parcel of
have been held under a claim of private land in the Philippines. He subsequently
ownershipbyIndigenousCulturalCommunitiesof transferred it to Jose, a Filipino citizen. What is
IndigenousPeoples,haveneverbeenpubliclands thestatusofthetransfer?
andarethusindisputablypresumedtohavebeen
heldthatwaybeforeSpanishconquest.(Agcaoili, A:Ifalandisinvalidlytransferredtoanalienwho
p.124,2008ed) subsequently becomes a Filipino citizen or
transfers it to a Filipino, the flaw in the original
Q:Whatistimeimmemorialpossession? transaction is considered cured and the title of
thetransfereeisrenderedvalid.Sincethebanon
A: It refers to a period of time as far back as aliens is intended to preserve the nations land
memory can go, certain Indigenous Cultural for future generations of Filipinos, that aim is
CommunitiesofIndigenousPeoplesareknownto achievedbymakinglawfultheacquisitionofreal
have occupied, possessed in the concept of estate by aliens who became Filipino citizens by
owner, and utilized a defined territory devolved naturalization or those transfers made by aliens
to them, by operation of customary law or to Filipino citizens. As the property in dispute is
inheritedfromtheirancestors,inaccordancewith already in the hands of a qualified person, a
their customs and tradition. (Agcaoili, p. 124, Filipino citizen, there would be no more public
2008ed) policy to be protected. The objective of the
constitutional provision to keep our lands in
III.CITIZENSHIPREQUIREMENT Filipino hands has been achieved. (Borromeo v.
Descallar,G.R.No.159310,Feb.24,2009)
Q: Can an alien acquire a private land in the
Philippines? Q: If Joe had not transferred it to Jose but he,
himself, was later naturalized as a Filipino
A: citizen, will his acquisition thereof remain
GR:Analiencannotacquireprivatelands. invalid?

XPN:Acquisitionbyaliensisallowedwhen: A:No.Ifalandisinvalidlytransferredtoanalien
Itisthruhereditarysuccession. who subsequently becomes a Filipino citizen or
transfers it to a Filipino, the flaw in the original
Note:Successionislimitedonlyto transaction is considered cured and the title of
intestatesuccession the transferee is rendered valid. (Borromeo v.
Descallar,G.R.No.159310,Feb.24,2009)
The alien is a former naturalborn citizen of
the Philippines, provided he only Q: Who may not file an application for
acquires: registration?
1,000squaremetersurbanland;or
1hectareruralland A:PAMP
1. A Public land sales applicant insofar as
Note:Saidlandshouldbeforhisresidence. thelandcoveredbyhissalesapplication
isconcerned
Q: Spouses Pinoy and Pinay, both naturalborn
Filipino citizens, purchased property in the Reason: He acknowledged that he
Philippines. However, they sought its is not the owner of the land and
registrationwhentheywerealreadynaturalized thatthesameisapublicland.
as Canadian citizens. Should the registration de
denied on the ground that they cannot do so, 2. An Antichretic creditor cannot acquire
theybeingforeignnationals? byprescriptionthelandsurrenderedto
himbythedebtor.
A:No.Foreignnationalscanapplyforregistration
oftitleoveraparceloflandwhichtheyacquired
461

Reason:Hispossessionisnotinthe Iftheyarealreadyprivatelands,theconstitutional
conceptofanowner. prohibitionagainstacquisitionsbyaprivate
corporationwouldnotapply.
3. AMortgageeorhissuccessorininterest
to the mortgage, notwithstanding the
lapseoftheperiodforthemortgagorto IV.ORIGINALREGISTRATION
paytheloansecuredtoredeemit
Q:Whatlawsgovernlandregistration?
Reason:Suchactwouldamountto
a pactum commissorium, which is A:
against good morals and public 1. Property Registration Decree (PD 1529,
policy. asamended)
Note: Amended and superseded C.A. No.
4. A person or entity whose claim of 496.
ownership to land had been Previously 2. CadastralAct(Act2259,asamended)
deniedinareinvindicatoryaction. 3. Public Land Act (CA No. 141,as
amended)
Q:Mayacorporationownlands? 4. Emancipation Decree (PD 27, as
amended)
A:Itdepends. 5. ComprehensiveAgrarianReformLawof
Corporation sole can acquire by purchase a 1988(R.A.6657)
parcel of private agricultural land 6. Indigenous Peoples Rights Act (R.A.
without violating the constitutional 8371)
prohibitionsinceithasnonationality.
Q:Whatarethepurposesoflandregistration?
Corporation
PrivateLands A:To:QUIPCC
1. At least 60% Filipino (Sec. 7, 1. Quiet title to the land and to stop
Art.XII,1987Constitution) forever any question as to the legality
2. Restricted as to extent ofsaidtitle;
reasonably necessary to 2. relievelandofUnknownclaims;
enableittocarryoutpurpose 3. guarantee the Integrity of land titles
forwhichitwascreated andtoprotecttheirindefeasibilityonce
3. If engaged in agriculture, it is the claim of ownership is established
restrictedto1,024hectares. andrecognized;
4. give every registered owner complete
Patrimonial property of the State (Sec. Peaceofmind;
3,Art.XII,1987Constitution) 5. issue a Certificate of title to the owner
1. Lease(cannotownlandofthe which shall be the best evidence of his
public domain) for 25 years ownershipoftheland;and
renewable for another 25 6. avoidConflictsoftitleinrealestateand
years tofacilitatetransactions.
2. Limitedto1,000hectares
3. Applies to both Filipinos and Q:Whatisoriginalregistration?
foreigncorporations.
A: It is a proceeding brought before the MTC
Q:Mayacorporationapplyforregistrationofa where there is no controversy or opposition, or
parcelofland? contested lots where the value of which does
notexceedP100,000.00(Sec.4,R.A.7691)orin
A: Yes, through lease not exceeding 1,000 the RTC (as a land registration court) when the
hectares.Suchleaseshallnotexceedtwentyfive value exceeds P100,000 to determine title or
(25) years and renewable for not more than ownershipoflandonthebasisofanapplication
twenty five (25) years. (Sec. 3, Art. XII, 1987 for registration or answer/opposition by a
Constitution) claimantinacadastralregistration.

Note:Determinativeofthisissueisthecharacterof
the parcels of land whether they were still public
or already private when the registration
proceedingswerecommenced.
462 CIVILLAWTEAM:

Q: What are the kinds of original registration? 3. Thosewhohaveacquiredownershipof

Distinguish. private lands or abandoned river beds
byrightofaccessionoraccretion;or
A:
JUDICIAL/ ADMINISTRATIVE/ 4. Thosewhohaveacquiredownershipof
VOLUNTARY/ INVOLUNTARY/ land by any other manner provided by
ORDINARY CADASTRAL law.

Filing with the proper Compulsory 5. Where the land is owned in common,
courtanapplicationby registrationinitiatedby all the coowners shall file the
the private individual the government, to applicationjointly.(Sec.14,PD1529)
himself adjudicate ownership
oflandandinvoluntary Q:Mayprivatecorporationsholdalienablelands
under PD 1529 on the part of the ofpublicdomain?
(Property Registration claimants,buttheyare
Decree) compelled to A: No. The word persons refers to natural
substantiatetheirclaim persons who are citizens of the Philippines.
under Sec. 48 of CA or interest through an Juridicalorartificialpersonsareexcluded. Sec.3,
141(PublicLandAct) answer. Art.XIIofthe1987Constitution prohibits private
corporations or associations from holding
alienable lands of the public domain except by
A.WHOMAYAPPLY lease.

1.UNDERPD1529 Q:Noynoy,Erap,MannyandGiboarecoowners
ofaparcelofland.MayMannyseekregistration
Q:Whenisordinaryregistrationproper? inhisnameofthelandinitsentirety?

A:Whenpropertyisacquiredby: A:Sinceacoownercannotbeconsideredatrue
1. open, continuous, exclusive, and owner of a specific portion until division or
notorious possession and partitioniseffected,hecannotfileanapplication
occupation of alienable and forregistrationofthewholeareawithoutjoining
disposable lands of public domain thecoownersasapplicants.(Agcaoilireviewer,p.
under a bona fide claim of 19,2008ed)
ownership since June 12,1945 or
earlier(OCENCO); Q:Whomayapplyforregistrationofaland
2. prescription; subjecttoa:
3. accessionoraccretion;or
4. anyothermannerprovidedbylaw. 1.Pactoderetrosale?

GR: Vendor a retro may apply for
Q: Who may apply for registration in ordinary registration.
registrationproceedings?
XPN:Vendeearetro,shouldtheperiod
A: forredemptionexpireduringpendency
1. Those who by themselves or through of registration proceedings and
their predecessorsininterest have ownership to property is consolidated
beeninopen,continuous,exclusive,and invendeearetro.
notorious (OCEN) possession and
occupation of alienable and disposable Note: Pacto de retro sale refers to a sale
lands of public domain under a bona withrighttorepurchase.
fide claim of ownership since June
12,1945orearlier; 2.Trust?

2. Thosewhohaveacquiredownershipof GR:Trusteemayapplyforregistration.
private lands by prescription under
provisionsofexistinglaws; XPN: Unless prohibited by the
instrumentcreatingthetrust.

463

Note: Trusteeship or trust is a fiduciary Q: When is a person deemed to possess an
relationship with respect to property imperfecttitleoverproperty?
which involves the existence of equitable
duties imposed upon the holder of the A: When the applicant for confirmation of
titletothepropertytodealwithitforthe imperfect title has shown possession and
benefitofanother occupationthatis:(OCENI)
1. open,
3.Reservatroncal? 2. continuous,
3. exclusiveand
Reservor has the right to apply for 4. notorious
registration but the reservable 5. intheconceptofanowner
character of the property will be
annotatedinthetitle. Q: What is the effect of possession of an
imperfecttitle?
Note: In reserva troncal the ascendant
who inherits from his descendant any
A: When the conditions set by law are complied
property which the latter may have
with, the possessor of the land, by operation of
acquired by gratuitous title from another
ascendant, or a brother or sister, is
law, acquires a right to government grant,
obliged to reserve such property as he without the necessity of a certificate of the title
mayhaveacquiredbyoperationoflawfor beingissued.
thebenefitofrelativeswhoarewithinthe
third degree and who belong to the line Q: In 1913, Gov. Gen. Forbes reserved for
fromwhichsaidpropertycame. provincialparkpurposesaparceloflandwhich,
sometime thereafter, the court ordered
registeredinPalomosname.In1954,thenPres.
2.UNDERCA141 MagsaysayconvertedthelandintotheTiwiHot
SpringNationalPark,underthemanagementof
Q: Who may apply for registration under the theBureauofForestDevelopment.Theareawas
PublicLandActorCANo.141? never released as alienable or disposable. The
Palomos, however, continued to possess the
A: Those who by themselves or through their said property, had introduced improvements
predecessorsininterest have been in open, therein as well as paid real estate taxes. The
continuous, exclusive and notorious possession Republicnowseeksthecancellationofthetitles
and occupation of alienable and disposable overthesubjectland.Shouldthecancellationbe
agricultural lands of the public domain, under a granted?
bonafideclaimofacquisitionorownership,since
June12,1945,exceptwhenpreventedbywarsor A:Yes.Theadversepossessionwhichmaybethe
forcemajeure. basis of a grant of title in confirmation of
imperfect title cases applies only to alienable
Note:Thefollowingconditionsmustconcurinorder lands of the public domain. There is no question
that the benefits of the Public Land Act on the that the lands in the case at bar were not
confirmationofimperfectorincompletetitlemaybe alienablelandsofthepublicdomain.Therecords
availedof: showthatsuchwereneverdeclaredasalienable
and disposable and subject to private alienation
1. theapplicantmustbeaFilipinocitizen; priorto1913uptothepresent.(Sps.Palomo,et.
2. he must have, by himself or through his al.,v.CA,et.al.,G.R.No.95608,Jan.21,1997)
predecessorsininterest, possessed and

occupied an alienable and disposable
Q:Bracewellassertsthathehasarightoftitleto
agriculturalportionofthepublicdomain;
3. such possession and occupation must
a parcel of land having been, by himself and
have been open, continuous, exclusive, through his predecessorsininterest, in xxx
notorious and in the concept of owner, occupation xxx under a bona fide claim of
sinceJune,12,1945;and ownership since 1908. The land has been
4. the application must be filed with the classifiedasalienableordisposableonlyonMay
propercourt. 27, 1972. May his application for confirmation
ofimperfecttitlebegranted?

A:No.Thelandwasonlyclassifiedasalienableor
disposable on May 27, 1972. Prior to said date,
464 CIVILLAWTEAM:

when the subject parcels of land were classified A different rule obtains for forest lands, such as
as inalienable or not disposable, the same could thosewhichformpartofareservationforprovincial
not be the subject of confirmation of imperfect parkpurposes thepossessionofwhichcannotripen
title. There can be no imperfect title to be intoownership.Itiselementaryinthelawgoverning
confirmed over lands not yet classified as naturalresourcesthatforestlandcannotbeowned
disposable or alienable. In the absence of such by private persons. As held in Palomo v. CA, forest
classification,thelandremainsunclassifiedpublic land is not registrable and possession thereof, no
matter how lengthy, cannot convert it into private
land until released and opened to disposition.
property, unless such lands are reclassified and
Indeed, it has been held that the rules on the
considered disposable and alienable. Inthe caseat
confirmation of imperfect title do not apply bar, the property in question was undisputedly
unless and until the land classified as forest land classified as disposable and alienable; hence, the
is released in an official proclamation to that rulinginPalomoisinapplicable.
effect so that it may form part of the disposable
agriculturallandsofthepublicdomain.(Bracewell Q:Whomayapplyforjudicialconfirmation?
v.CA,G.R.No.107427,Jan.25,2000)
A:
Q: In an application for judicial confirmation of 1. Filipino citizens who by themselves or
imperfect title filed by Naguit, the OSG argues through their predecessorsininterest
that the property xxx must first be alienable. have been in open, continuous,
Since the subject land was declared alienable exclusive and notorious possession and
onlyon1980,Naguitcouldnothavemaintained occupation of alienable and disposable
a bona fide claim of ownership since June 12, lands of public domain under a bona
1945, as required by Section 14 of the Property fide claim of acquisition since June 12,
RegistrationDecree,sincepriorto1980,theland 1945 or prior thereto or since time
was not alienable or disposable. Is it necessary immemorial;
underSection14(1)ofthePropertyRegistration
Decree (now Sec. 48 (b) of the Public Land Act) 2. Filipino citizens who by themselves or
that the subject land be first classified as their predecessorsininterest have
alienable and disposable before the applicants been,priortotheeffectivityofPD1073
possessionunderabonafideclaimofownership on January 25, 1977, in open,
couldstart? continuous, exclusive and notorious
possession and occupation of
A:No.Section14(1)merelyrequirestheproperty agricultural lands of the public domain
sought to be registered as already alienable and underabonafideclaimofacquisitionor
disposable at the time the application for ownership for at least 30 years, or at
registration of title is filed. If the State, at the leastsinceJanuary24,1947;
timetheapplicationismade,hasnotyetdeemed
itpropertoreleasethepropertyforalienationor 3. Private domestic corporations or
disposition, the presumption is that the associations which had acquired lands
government is still reserving the right to utilize from Filipino citizens who had
the property; hence, the need to preserve its possessedthesameinthemannerand
ownership in the State irrespective of the length for the length of time indicated in
of adverse possession even if in good faith. paragraphs1&2above;or
However, if the property has already been
classified as alienable and disposable, as it is in 4. Naturalborn citizens of the Philippines
this case, then there is already an intention on whohavelosttheircitizenshipandwho
the part of the State to abdicate its exclusive has the legal capacity to enter into a
prerogative over the property. (Republic v. CA contractunderPhilippinelawsmaybea
andNaguit,G.R.No.144057,Jan.17,2005) transferee of private land up to a
maximumareof5,000sq.m.,incaseof
Note: This case is distinguishable from Bracewell v. urban land, or 3 hectares in case of
CA, where the claimant had been in possession of rural land to be used by him for
the land since 1908 and had filed his application in
businessorotherpurposes.
1963, or nine (9) years before the property was

declared alienable and disposable in 1972. Hence,
registrationwasdenied.TheBracewellrulingwillnot

applyinthiscasebecausehere,theapplicationwas
madeyearsafterthepropertyhadbeencertifiedas
alienableanddisposable.
465

Q: What must an applicant for judicial 3.UNDERRA8371
confirmationprove?
Q: What law governs the ownership and
A: disposition of ancestral lands and ancestral
1. That the land is alienable and domains?
disposablelandofpublicdomain;and
A: RA 8371 of the Indigenous Peoples Rights Act
2. That they have been in open, of 1997 (IPRA) which was enacted October 29,
continuous, exclusive, and notorious 1997. The IPRA is a law dealing with a specific
possession and occupation of the land group of peoples, ie., the Indigenous cultural
for the length of time and in the communitiesortheindigenouspeoples.Thelaw
mannerandconceptprovidedbylaw. allows indigenous peoples to obtain recognition
of their right of ownership over ancestral lands
Note:ExtendedperiodforfilingofapplicationSec. andancestraldomainsbyvirtueofnativetitle.
1, R.A. 9176 provides in part that, The time to be
fixed in the entire archipelago for the filing of B.REGISTRATIONPROCESSANDREQUIREMENTS
applications shall not extend beyond December 31,
2020. Provided that the area applied for does not Q:Whatarethemodesofregisteringlandtitles?
exceed12hectares.
A:Therearetwomodes:
Q: Doldol occupied a portion of land for 32 1. Original registration proceedings
years, since 1959, which was reserved by Pres. under the Property Registration
Aquinoasaschoolsite.Inviewofhisrefusalto Decree(PD1529),and
vacate, the school filed a complaint for accion
possessoria. Who has a better right over the
2. Confirmation of imperfect or
incomplete title under Section
landindispute?
48(b) of the Public Land Act, as

amended.
A: The school has a better right. Doldol has no

imperfecttitleoverthelandbecausehefailedto
Q: What are the steps or requisites in ordinary
meet the requirements provided for under Sec.
registration proceedings and judicial
48(b)ofCANo.141,asamendedbyPD1073,viz:
confirmationofimperfecttitle?

Those who by themselves or through their
predecessorsininteresthavebeeninopen, A:SASTPSAHPIEST
continuous, exclusive and notorious 1. Survey of land by Bureau of Lands
possession and occupation of agricultural or any duly licensed private
lands of the public domain, under a bona surveyor
fideclaimofacquisitionorownership,since 2. Filing of Application for
June 12, 1945, or earlier, immediately registrationbyapplicant
preceding the filing of the application for 3. Settingofdateforinitialhearingby
confirmation of title, except when thecourt
preventedbywarsorforcemajeure. 4. Transmittalofapplicationanddate
of initial hearing together w/ all
While the land is classified as an alienable and documents or other pieces of
disposable tract of public land, thus meeting the evidenceattachedtheretobyclerk
firstrequirement,Doldolcouldnothaveacquired ofcourttoNationalLandTitlesand
an imperfect title to the disputed lot since his Deeds Registration Administration
occupationstartedonlyin1959,muchlaterthan (NALTDRA)
June 12, 1945. Not having complied with the 5. Publication of notice of filing of
conditions set by law, Doldol cannot be said to application and date and place of
haveacquiredarighttothelandinquestionasto hearing
segregate the same from the public domain. 6. Service of notice by sheriff upon
Doldol cannot, therefore, assert a right superior contiguous owners, occupants and
to the school. (Republic v. Doldol, G.R. No. those known to have interest in
132963,Sept.10,1998) theproperty
7. Filing of Answer or opposition to
the application by any person
whether named in the notice or
not
466 CIVILLAWTEAM:

8. Hearingofcasebycourt Q:Whatarethecontentsoftheapplication?
9. Promulgationofjudgmentbycourt
10. Issuance of a decree by court A:DCAMEFARN
declaring the decision final, and 1. Description of the land applied for
instructingtheNALDTRAtoissuea together with the buildings and
decree of confirmation and improvements; the plan approved by
registration Director of Lands and the technical
11. Entry of decree of registration in descriptionsmustbeattached
NALDTRA
12. Sending of copy of the decree of 2. Citizenship and civil status of the
registrationtocorrespondingRD applicant
13. Transcription of decree of a. Ifmarried,nameofspouse
registration in the registration b. If the marriage has been
book and issuance of owners legally dissolved, when and
duplicateoriginalcertificateoftitle how the marriage relation
(OCT) of applicant by RD, upon wasterminated
paymentofprescribedfees
3. Assessed value of the land and the
Note: After judgment has become final and buildings and other improvements
executory, the issuance of decree and OCT is based on the last assessment for
ministerial on the part of LRA and RD. (Aquino, p. taxationpurposes
1415; Agcaoili, Registration Decree and Related
Laws,p.182183) 4. Mannerofacquisitionofland

Q: Are the Rules of Court applicable in land 5. MortgageorEncumbranceaffectingthe
registrationproceedings? land or names of other persons who
may have an interest therein, legal or
A: The Rules of Court could be applied in land equitable
registrationproceedingsinasuppletorycharacter
orwheneverpracticableorconvenient. 6. The court may require Facts to be
stated in the application in addition to
Note:Motiontointerveneinalandregistrationcase those prescribed by the Decree not
isnotallowed. inconsistenttherewithandmayrequire
thefilingofadditionalpapers
1.APPLICATION
7. Full names and addresses of All
FORMANDCONTENTS occupants of the land and those of the
adjoining owners, if known, and if not
Q: What is the form of the application for known, the applicant shall state the
registrationorjudicialconfirmation? extentofthesearchmadetofindthem

A: 8. If the application describes the land as
Inwriting; bounded by a public or private way or
1. Signed by the applicant or person Road, it shall state whether or not the
dulyauthorizedinhisbehalf; applicantclaimsanyportionoftheland
withinthelimitsofthewayorroad,and
2. Sworn to before an officer whether the applicant desires to have
authorized to administer an oath thelineofwayorroaddetermined
for the province or city where the
application was actually signed; 9. IftheapplicantisaNonresidentofthe
and Philippines, he shall file an instrument
appointing an agent residing in the
3. If there is more than 1 applicant, Philippines and shall agree that service
they shall be signed and sworn to ofanylegalprocessshallbeofthesame
byandinbehalfofeach. legal effect as if made upon the
applicantwithinthePhilippines(Sec.16,
PD1529)

467

Q: What documents must accompany the IncasesofdelegatedjurisdictiontotheMTC,appeal
application? isdirectedtothe CA. (Sec. 34, BP 129, as amended
bySec.4,R.A.7691)
A:Allmunimentsoftitlesandcopiesthereofwith
survey plan approved by Bureau of Lands must Q: Does the RTC acting as a land registration
accompanytheapplication. courthavegeneralorlimitedjurisdiction?

Q:Whataremunimentsoftitle? A: Sec. 2 of P.D. No. 1529 has eliminated the
distinction between the general and the limited
A: They are instruments or written evidence jurisdiction of the registration court. All
which the applicant holds/possesses to enable conflictingclaimsofownershipandinterestinthe
himtosubstantiateandprovetitletohisestate. land, and related issues submitted to the court
withorwithouttheunanimityoftheparties,may
Q: If whatis sought tobe registered are twoor now be heard and resolved by the court. The
more parcels of land, must the applicant file court is now authorized to hear and decide not
separateapplicationsforeach? only noncontroversial cases but even
contentious issues which used to be beyond its
A: Generally, yes. However, an application may competence.(AgcaoiliReviewer,p.157158)
include two or more parcels of land as long as
they are situated within the same province or
city. AMENDMENTOFTHEAPPLICATION

WHEREFILED Q:Whenmayanamendmentoftheapplication
behad?
Q:Whereshalltheapplicationbefiled?
A: Amendments to the application including
A:Iftheapplicationcoversasingleparcelofland joinder, substitution, or discontinuance as to the
situatedwithin: partiesmaybeallowedbythecourtatanystage
1. onlyonecityorprovince: of the proceedings upon just and reasonable
RTCorMTC,asthecasemaybe,ofthe terms.(Sec.19,PD1529)
province or city where the land is
situated. Q:Whomayorderthatanamendmentbedone?

2. twoormoreprovincesorcities: A:Thecourtmayatanytime,orderanapplication
a. Whenboundariesarenotdefined to be amended by striking out one or more
in the RTC or MTC of the place parcelsoflandorbyseveranceoftheapplication.
where it is declared for taxation (Sec.18,PD1529)
purposes.
b. When boundaries are defined Q: What are the requirements in amending the
separate plan for each portion application?
mustbemadebyasurveyoranda
separate application for each lot A:
mustbefiledwiththeappropriate Publication
RTCorMTC.
1. Mailing of notice Within 7 days after
Note: MeTC, MCTC, and MTC has jurisdiction to publicationofsaidnoticeintheOGto:
decide cadastral and land registration cases, a. Personsnamedinthenotice
provided: b. Secretary of Public Highways,
1. There is no controversy or opposition Provincial Governor, and Mayor, if
(uncontestedlots);or theapplicantrequeststohavethe
2. Value of contested lots does not exceed line of a public way or road
P100,000(Sec.4,R.A.7691) determined
c. Secretary of Agrarian Reform,
Inothercases,theRTChasjurisdiction. Solicitor General, Director of
Lands, Director of Fisheries, and
JurisdictionoftheMTCswasdelegatedthroughthe
Director of Mines, if the land
JudiciaryReorganizationActof1980(R.A.7691).
borders on a river, navigable

stream, or shore, or on an arm of
theseawhereariverorharborlies
468 CIVILLAWTEAM:

d. Other persons as the court may b. Substitution means the replacement

deemproper of one of the parties in a lawsuit
because of events that prevent the
Note: Service of notice upon partyfromcontinuingwiththetrial.
contiguous owners is indispensable
and lack of service constitutes c. Discontinuance means the voluntary
extrinsicfraud. terminationoflitigationbyaplaintiff
who has elected not to pursue it or
Posting In conspicuous place on by both parties pursuant to a
subject land and on bulletin board of settlement.
the municipal building for at least
fourteen (14) days before the initial Note: This may be allowed by the
courtatanystageoftheproceedings
hearing.
uponjustandequitableterms.

Q:Ispublicationandnoticenecessaryincasethe
3. Anamendmentduetochangeofname
applicationisamended?
oftheapplicant.

A:Publicationandnoticearenecessarywherethe
2.PUBLICATIONOFNOTICEOFFILINGOF
amendmenttotheapplicationconsistsin:SIA
APPLICATIONANDDATEANDPLACEOF
HEARING
1. Substantialchangeintheboundaries

2. Increaseintheareaofthelandapplied
Q: What are the purposes of the publication
for
requirement for notice of the filing of the
3. TheinclusionofAdditionalland
applicationandthedateandplaceofhearing?

Note: If amendment includes a parcel of
land not previously included in the
A:To:
application as published, a new 1. chargethewholeworldwithknowledge
publication of the amended application of the application of the land involved,
mustbemade(Inclusion). andinvitethemtotakepartinthecase
and assert and prove their rights over
Withoutsuchpublication,theregistration thesubjectland;and
court cannot acquirejurisdictionover the 2. conferjurisdictionoverthelandapplied
areathatisadded. foruponthecourt.

Q:Whenispublicationnotnecessaryincasethe Note: The settled rule is that once the registration
applicationisamended? courthadacquiredjurisdictionoveracertainparcel,
orparcelsoflandintheregistrationproceedingsby
A: virtue of the publication of the application, that
1. If the amendment consists in the jurisdictionattachestothelandorlandsmentioned
exclusion of a portion of the area anddescribedintheapplication.
covered by the original application and
the original plan as previously Q: May publication of the notice of filing of
published, a new publication is not application and date and place of hearing be
necessary(Exclusion). dispensedwith?

Note: In this case, the jurisdiction of the A: No. Publication of the notice of filing of
courtisnotaffectedbythefailureoffiling application and date and place of hearing is
anewapplication. mandatory.

2. Amendments to the application Q:Wheremustthesaidnoticebepublished?
including joinder, substitution or
discontinuanceastotheparties. A:
1. Once in the Official Gazette (OG) this
a. Joindermeansjoiningoftwoormore confersjurisdictionuponthecourt;and
defendantsorplaintiffsinvolvedina 2. Once in a newspaper of general
single claim, or where two or more circulation
claims or remedies can be disposed
ofinthesamelegalproceedings.
469

Note:PublicationintheOfficialGazetteissufficient land, failure to publish the bigger area
to confer jurisdiction upon the court. (Sec. 23, P.D. (insubstantial inclusion) does not perforce
1529) affectthecourtsjurisdiction.

DEFECTIVEPUBLICATION 3.OPPOSITION

Q:Whenispublicationdefective? Q: What are the requisites for a valid
opposition?
A:Thereisadefectivepublicationinthefollowing
instances: A:
1. Where what was published in the 1. Setforthobjectionstotheapplication;
Official Gazette is the description of a 2. Stateinterestclaimedbyoppositor;
bigger lot which includes the lands 3. Applyfortheremedydesired;and
subjectofregistration. 4. Signedandsworntobyhimorbysome
otherdulyauthorizedperson.
Reasons:
a. Sec. 15, PD 1529 requires thatthe Note: The opposition partakes of the nature of an
application for registration should answerwithacounterclaim.
containthedescriptionoftheland
subject of registration and this is Q: Who may be an oppositor to the application
thedescriptiontobepublished; forregistrationorjudicialconfirmation?
b. It is the publication of specific
boundaries of lands to be A: Any person whether named in the notice or
registered that would actually put not,provided,hisclaimofinterestintheproperty
the interested parties on notice of applied for is based on a right of dominion or
the registration proceedings and some other real right independent of, and not
enable them, if they have rights subordinateto,therightsofthegovernment.
and interests in the property, to
show why the application for Q: Who may be proper oppositors in specific
registrationshouldnotbegranted; cases?
c. Theadjoiningownersofthebigger
lotwouldnotbethesameowners A:Thefollowingmaybeproperoppositors:
of the smaller lots subject of 1. A homesteader who has not yet been
registration. Hence, notice to issued his title but who had fulfilled all
adjoining owners of the bigger lot theconditionsrequiredbylawtoentitle
is not notice to those of the himtoapatent.
smallerlots. 2. A purchaser of friar land before the
issuanceofthepatenttohim.
2. Where the actual publication of the 3. Persons who claim to be in possession
notice of initial hearing was after the of a tract of public land and have
hearingitself. appliedwiththeBureauofLandsforits
purchase.
Q:Whatistheeffectofadefectivepublication? 4. TheGovernmentrelativetotherightof
foreshore lessees of public land as the
A:Itdeprivesthecourtofjurisdiction. lattersrightsisnotbasedondominion
orrealrightindependentoftherightof
GR: If it is later shown that the decree of thegovernment.
registration had included land or lands not
included in the publication, then the Q: May a private person oppose registration on
registration proceedings and the decree of thegroundthatthelandsoughttoberegistered
registration must be declared null and void isownedbythegovernment?
but only insofar as the land not included in
the publication concerned. But the A: No. A private person may not oppose an
proceedings and the decree of registration, applicationforregistrationonthegroundthatthe
relatingtothelandsthatwereincludedinthe landappliedforisapropertyofthegovernment.
publication,arevalid. (Agcaoili,p.172,2006)

XPN: However, if the difference is not as
substantialaswouldaffecttheidentityofthe
470 CIVILLAWTEAM:

Q: Should an oppositor have title over the A:Whenthereisnoopposition,allallegationsin

disputedland? theapplicationaredeemedconfessedonthepart
oftheopponent.
A: No. The oppositor need not show title in
himself; he should however appear to have Q: What if a certificate of title was issued
interestintheproperty.(Agcaoili,p.171,2006) covering nonregistrable lands without the
government opposing such, is the government
Q: Should an oppositors interest over the land estoppedfromquestioningthesame?
belegalormayitbemerelyequitable?
A: The government cannot be estopped from
A: It is immaterial whether his interest is in the questioning the validity of the certificates of
character of legal owner or is of a purely title, which were granted without opposition
equitablenatureaswhereheisabeneficiaryofa from the government. The principle of estoppel
trust. doesnotoperateagainstthegovernmentforthe
actsofitsagents.
ABSENCEOFOPPOSITIONORFAILURETO
OPPOSEDEFAULT Q: If an order of general default is issued, may
thecourtautomaticallygranttheapplication?
Q:Whenmayapersonbedeclaredindefaultin
landregistrationproceedings? A: No. Even in the absence of an adverse claim,
theapplicantstillhastoprovethathepossesses
A:Apersonmaybedeclaredindefaultifhefails all the qualifications and none of the
tofileanopposition. disqualifications to obtain the title. If he fails to
do so, his application will not be granted.
Q:Whatistheeffectoffailuretooppose? (AgcaoiliReviewer,p.174,2008)

A:OrderofdefaultThecourtshall,uponmotion Q: What is the remedy of a person who was
of the applicant, no reason to the contrary declaredindefaultbythecourt?
appearing, order a default to be recorded and
requireapplicanttopresentevidence. A:
1. Motion to set aside default order A
Q:Ajudgedeclaredindefaultanoppositorwho defaulted interested person may gain
had already filed with the court an opposition standing in court by filing such motion
based on substantial grounds for his failure to at any time after notice thereof and
appear at the initial hearing of the application beforejudgment,uponpropershowing
for registration. Is the default order proper? If that:
not,whatishisremedy? a. hisfailuretoanswer(orfilean
oppositionasinordinaryland
A:No,itisnot.Failureoftheoppositortoappear registration case) was due to:
attheinitialhearingisnotagroundfordefault.In FAME:
whichcase,hisproperremedyistofileapetition i. Fraud
for certiorari to contest the illegal declaration or ii. Accident
orderofdefault,notanappeal.(Agcaoili,p.175, iii. Mistake
2006) iv. ExcusableNeglect
b. andthathehasameritorious
Q: What is the effect of an order of default in defense.(Sec.3,Rule9,Rules
landregistrationproceedings? ofCourt)

A:Adefaultorderinlandregistrationproceedings 2. Petition for Certiorari Failure of the
is entered against the whole world, so that all oppositor to appear at the initial
persons, except only the parties who had hearing is not a ground for default. In
appeared and filed pleadings in the case, are whichcase,hisproperremedyistofile
boundbysaidorder. a petition for certiorari not later than
sixty(60)daysfromnoticeofjudgment,
Q: What is the effect of the absence of an orderorresolutiontocontesttheillegal
opposition as regards allegations in the declaration or order of default, not an
application? appeal.(Sec.4,Rule65,RulesofCourt)

471

Note: The petition shall be filed not later publicland,otherwise,publiclands,regardlessof
than 60days from noticeof theorder. In their classification, can be subject of registration
caseamotionforreconsiderationornew of private titles, as long as the applicant shows
trialistimelyfiled,whethersuchmotionis that he meets the required years of possession.
requiredornot,thepetitionshallbefiled The applicant must establish the existence of a
not later than 60 days counted from the positive act of the government, such as a
noticeofthedenialofthemotion.(Sec.4, presidential proclamation or an executive order;
Rule65,RulesofCourt)
administrativeaction;reportsofBureauofLands

investigators and a legislative act or a statute.
4.EVIDENCE
(Republic v. Ceniza, G.R. No. 127060, Nov. 19,

2002)
Q:Whatmusttheapplicantforlandregistration

prove?
EVIDENCEOFIDENTITYOFTHELAND

A:Theapplicantmustprove:DIP
Q: What may be presented as proof of the
1. Declassification That the land applied
identityofthelandsoughttoberegistered?
forhasbeendeclassifiedandisapublic

agricultural land, alienable and 2
A:ST D
disposable or otherwise capable of
1. Surveyplaningeneral
registration;
2. Tracingclothplanandblueprintcopies
2. Identityoftheland;and
ofplan
3. Possession and occupation of the land
3. Technicaldescriptionoftheland
for the length of time and in the
4. TaxDeclarations
mannerrequiredbylaw.

Q: In an application for judicial confirmation of
EVIDENCEOFDECLASSIFICATION
imperfect title, is submission of the original

tracingclothplanmandatory?
Q: What may constitute sufficient proof to

establish declassification of land from forest to
A: Yes. The Supreme Court declared that the
alienableordisposable,oragricultural?
submissionofthetracingclothplanisastatutory

requirementofmandatorycharacter.Theplanof
A:POEMCIL
thelandmustbedulyapprovedbytheDirectorof
1. Presidentialproclamation
Lands, otherwise the same have no probative
2. Administrative Order issued by the
value. (Director of Lands v. Reyes, G.R. No. L
Secretary of Environment and Natural
27594,Nov.28,1975)
Resources

3. Executiveorder Note: However, under LRA Circular 052000, only a
4. Bureau of Forest Development (BFD) certifiedcopyoftheoriginaltracingclothplanneed
LandClassificationMap be forwarded to the LRA (Agcaoili, Reviewer in
5. CertificationbytheDirectorofForestry, propertyregistrationandrelatedproceedings,p.52,
andreportsofDistrictForester 2008ed)
6. InvestigationreportsofBureauofLands
investigator Although mere blue print copies were presented in
7. Legislativeact,orbystatute(Aquino,p. courtasevidence,theoriginaltracingclothplanwas
63,2007ed) attachedtotheapplicationforregistrationandwas
available to the court for comparison. Hence, the
Q: The Cenizas applied for registration of their approvalofregistrationwasproper(Republicv.IAC,
title over a parcel of public land which they G.R.No.L70594,Oct.10,1986)
inherited. Without presenting proof that the
land in question is classified as alienable or Q: In case of conflict between areas and
disposable, the court granted the application, boundaries,whichprevails?
holding that mere possession for a period as
provided for by law would automaticallyentitle A:
thepossessortherighttoregisterpubliclandin GR:Boundariesprevailoverarea.
hisname.Wasthecourtrulingcorrect?
XPNs:
A: No. Mere possession for a period required by Boundaries relied upon do not identify land
lawisnotenough.Theapplicanthastoestablish beyonddoubt.
firstthedisposableandalienablecharacterofthe
472 CIVILLAWTEAM:

Boundaries given in the registration plan do applicant but in the name of the
not coincide with outer boundaries of deceasedparentsofanoppositor.
the land covered and described in the
munimentsoftitle. Reason: Possession of applicant is not
completely adverse or open, nor is it
EVIDENCEOFPOSSESSIONANDOCCUPATION trulyintheconceptofanowner.

Q:Whatmayconstituteproofofpossession? 5. Holding of property by mere Tolerance
oftheowner.
A:Toprovepossession,itisnotenoughtosimply
declare ones possession and that of the Reason:Holder isnotintheconceptof
applicantspredecessorsininteresttohavebeen owner and possessory acts no matter
adverse, continuous, open, public, peaceful and howlongdonotstarttherunningofthe
inconceptofownerfortherequirednumberof periodofprescription.
years.Theapplicantshouldpresentspecificfacts
to show such nature of possession because bare 5. Where applicants Tacked their
allegations, without more, do not amount to possessiontothatoftheirpredecessor
preponderant evidence that would shift the ininterestbuttheydidnotpresenthim
burden to the oppositor. (Diaz v. Republic, G.R. as witness or when no proofs of what
No.141031,Aug.31,2004) acts of ownership and cultivation were
performedbythepredecessor.
Q: What are some specific overt acts of
possession which may substantiate a claim of Q:MauricioandCarmencitatestifiedtoestablish
ownership? their claim over the subject lots. When the
application was granted, the OSG appealed,
A: arguing that weight should not be given to the
1. Introducing valuable improvements on selfservingtestimoniesofthetwo;thattheirtax
thepropertylikefruitbearingtrees; declaration is not sufficient proof that they and
2. Fencingthearea; their parents have been in possession of the
3. Constructing a residential house property for at least thirty years, said tax
thereon;or declarationbeingonlyfortheyear1994andthe
4. Declaring the same for taxation propertytaxreceiptspresentedbythemwereall
purposes. of recent dates. Are the said pieces of evidence
sufficient to establish actual possession of land
Note: Evidence to beadmissiblemust, however,be for the period required by law thus warranting
credible, substantial and satisfactory (Agcaoili thegrantoftheapplication?
Reviewer,p.147,1999ed)
A: No. Their bare assertions of possession and
Q:Whatareinsufficientproofsofpossession? occupation by their predecessorsininterest are
hardly "the wellnigh incontrovertible" evidence
A:COF3T required in cases of this nature. Proof of specific
1. Mere Casual cultivation of portions of acts of ownership must be presented to
thelandbyclaimant. substantiate their claim. They cannot just offer
general statements which are mere conclusions
Reason:Possessionisnotexclusiveand oflawthanfactualevidenceofpossession.
notorious so as to give rise to a
presumptivegrantfromtheState. The law speaks of possession and occupation.
Possessionisbroaderthanoccupationbecauseit
2. PossessionofOtherpersonsintheland includes constructive possession. When,
applied for impugns the exclusive therefore, the law adds the word occupation, it
qualityoftheapplicantspossession. seeks to delimit the all encompassing effect of
constructivepossession.Takentogetherwiththe
3. Mere failure of Fiscal representing the wordsopen,continuous,exclusiveandnotorious,
Statetocrossexaminetheapplicanton the word occupation serves to highlight the fact
theclaimedpossession. that for an applicant to qualify, his possession
mustnotbeamerefiction.
4. Tax declaration of land sought to be
registered which is not in the name of
473

Actual possession of a land consists in the conclusion that there was abandonment
manifestationofactsofdominionoveritofsuch ofhisrighttotheproperty.
anatureasapartywouldnaturallyexerciseover
hisownproperty.(Republicv.Alconaba,G.R.No. 3. Otherkindsofproof.
155012,Apr.14,2004)
E.g.Testimonialevidence(i.e.accretion
Note: Wellnigh incontrovertible evidence refers isonalandadjacenttoariver).
tothedegreeofproofofregistrablerightsrequired
bylawinregistrationproceedings. Note: Any evidence that accretion was
formed through human intervention
Q: Are tax declarations presented by them negatestheclaim.
sufficientproofofpossessionandoccupationfor
therequisitenumberofyears? 4. Presidential issuances and legislative
acts.
A: No. The records reveal that the subject
property was declared for taxation purposes by Note: It is constitutive of a fee simple
the respondents only for the year 1994. While title or absolute title in favor of the
belated declaration of a property for taxation grantee.
purposes does not necessarily negate the fact of
possession, tax declarations or realty tax Q:Aretaxdeclarationsorpaymentofrealtytax
payments of property are, nevertheless, good conclusiveevidenceofownership?
indicia of possession in the concept of an owner,
fornooneinhisrightmindwouldbepayingtaxes A: No. Tax declarations or realty tax payment of
forapropertythatisnotinhisactualor,atleast, property are not conclusive evidence of
constructive possession. (Republic v. Alconaba, ownership. However, they are good indicia of
G.R.No.155012,Apr.14,2004) possessionintheconceptofanowner,fornoone
in his right mind would be paying taxes for a
EVIDENCEOFPRIVATEOWNERSHIP property that is not in his actual or at least
constructive possession. They constitute at least
Q: What are the proofs of private ownership of proofthattheholderhasaclaimoftitleoverthe
land? property.

A:STOP Note: The voluntary declaration of a piece of
1. Spanishtitle,impendingcases. property for taxation purposes manifests not only
onessincereandhonestdesiretoobtaintitletothe
property and announces his adverse claim against
Note: However, Spanish titles are now
the State and all other interested parties, but also
inadmissible and ineffective as proof of
the intention to contribute needed revenues to the
ownership in land registration
Government. Such an act strengthens ones bona
proceedingsfiledafterAug.16,1976.Itis
fide claim of acquisition of ownership. (Agcaoili,
mere indicia of a claimof ownership that
Reviewer in property registration and related
the holder has a claim of title over the
property. proceedings,p.155,2008ed;Aquino,p.7576)

2. Taxdeclarationandtaxpayments. Q: Agustin executed an Affidavit of Transfer of
RealPropertywhereDucatistoperformallthe
Note: While tax declarations and real necessary procedures for the registration and
estate tax receipts are not conclusive acquisition of title over several parcels of land
evidence of ownership, if presented as possessed and occupied by Agustin. Before
documentaryevidencecoupledwithproof Ducat was able to accomplish his task, Agustin
actual possession for the period required died and Bernardo administered theproperties.
bylawoftheland,theyaregoodevidence Ducat then filed an Application for Free Patent
ofownership. overtheland,whichwasgranted.Theparcelsof
landwereregisteredinthenamesofDucatand
Even if belatedly declared for taxation Kiong. The heirs of Bernardo sought the
purposes, it does not negate possession reconveyanceof theland withdamagesbut did
especially if there is no other claimant of notquestiontheauthenticityoftheagreement.
theland. Whoistherightfulowneroftheproperty?

Mere failure of the owner of the land to
pay the realty tax does not warrant a
474 CIVILLAWTEAM:

A:ThespousesDucatandKiong.TheAffidavitof 29, P.D. 1529, Agcaoili, Reviewer in property

Transfer of Real Property proved Ducats registrationandrelatedproceedings,p.158,2008
ownership of the property. It stated that Ducat ed; Agcaoili, Registration Decree and Related
bought the subject property from Cecilio and Laws,p.1516)
Bernardo. The heirs did not question the
authenticityanddueexecutionofsaiddocument. 5.JUDGMENTANDDECREE
Itconstitutesanadmissionagainstinterestmade OFREGISTRATION
byBernardo,petitioners'predecessorininterest.
Q: What must a judgment in land registration
Bernardo's admission against his own interest is proceedingscontain?
binding on his heirs. The heirs' predecessorin
interest recognized Ducat and Kiong as the legal A: When judgment is rendered in favor of the
ownerofthelotindispute. plaintiff,thecourtshallordertheentryofanew
certificate of title and the cancellation of the
Thus, there is no proof that the titling of the original certificate and owners duplicate of the
subject property was fraudulently obtained by formerregisteredowner.
Ducat and Kiong in their names. (Heirs of
Bernardo Ulep v. Sps. Cristobal Ducat and Flora Q:Whatisdecreeofregistration?
Kiong,G.R.No.159284,Jan.27,2009)
A: It is a document prepared in the prescribed
Q: What proofs are insufficient to establish form by the LRA Administrator, signed by him in
privateownershiporrightoverland? the name of the court, embodying the final
disposition of the land by the court and such
A: other data found in the record, including the
1. Compromise agreement among parties name and other personal circumstances of the
to a land registration case where they adjudicate, the technical description of the
have rights and interest over the land property, liens and encumbrances affecting it,
and allocated portions thereof to each and such other matters as determined by the
ofthem. court in its judgment (Agcaoili Reviewer, p. 169.
2008; Agcaoili, Registration Decree and Related
Note: Assent of Director of Lands and Laws,p.508)
Director of Forest Management to
compromiseagreementdidnotandcould Q: In a registration case, the court rendered a
notsupplytheabsenceofevidenceoftitle decision granting Reyes application, hence the
requiredoftheapplicant. DirectorofLandsappealed.Reyesmovedforthe
issuance of a decree of registration pending
2. Decision in an estate proceeding of a appeal.Mayhismotionbegranted?
predecessorininterest of an applicant
which involves a property over which A: No. Innocent purchasers may be misled into
the decedent has no transmissible purchasing real properties upon reliance on a
rights,andinothercaseswhereissueof judgment which may be reversed on appeal. A
ownership was not definitely passed Torrens title issued on the basis of a judgment
upon. that is not final is a nullity as it violates the
explicitprovisionsoftheLRA,whichrequiresthat
3. Surveyplanofaninalienableland. a decree shall be issued only after the decision
adjudicating the title becomes final and
Note: Such plan does not convert such executory. (Dir. of Lands v. Reyes, G.R. No. L
landintoalienableland,muchlessprivate 27594,Nov.28,1975)
property.

Q: After final adjudication in a land registration

Q: After due hearing for registration, what will
proceeding, Pepito and his family took
thecourtdo?
possessionofthelandsubjectoftheregistration
proceedings. Don Ramon moved for their

A:Ifthecourt,afterconsideringtheevidenceand
summary ouster from the land. Rule on his
reportoftheLRA,findsthattheapplicantorthe
motion.
oppositor has sufficient title proper for

registration, it shall render judgment confirming
A: It should be denied. Persons who are not
thetitleoftheapplicant,ortheoppositor,tothe
parties to registration proceedings who took
landorportionsthereof,asthecasemaybe.(Sec.
475

possession of the land after final adjudication of in1965XsoldittoY,newtitlesweresuccessively
thesamecannotbesummarilyoustedbyamere issuedinthenamesofthesaidpurchasers.
motion. The remedy is to resort to the courts of
justice and institute a separate action for In 1977, C filed an action to annul the deeds of
unlawful entry or detainer or for reinvidicatory saletoF,XandYandtheirtitles,ontheground
action,asthecasemaybe.Regardlessofanytitle thathe(C)hadbeeninactualphysicalpossession
orlackoftitleofsaidperson,hecannotbeousted of the land, and that the sale to F and the
without giving him a day in court in a proper subsequent sales should be set aside on the
independent proceeding. (Agcaoili, Reviewer in groundoffraud.Uponmotionofdefendants,the
property registration and related proceedings, p. trial court dismissed the complaint, upholding
167,2008ed) theirdefensesoftheirbeinginnocentpurchasers
for value, prescription and laches. Plaintiff
Q:Whatdoesadecreeofregistrationcover? appealed.

A:Onlyclaimedpropertyoraportionthereofcan Is the said appeal meritorious? Explain your
be adjudicated. A land registration court has no answer
jurisdictiontoadjudgealandtoapersonwhohas
neverassertedanyrightofownershipthereof. Theappealisnotmeritorious.Thetrialcourtruled
correctlyingrantingdefendant'smotiontodismiss
Q: May the court render a partial judgment in forthefollowingreasons:
landregistrationproceedings?
1. While there is the possibility that F, a
A: Partial judgment is allowed in a land former lessee of the land was aware of
registration proceeding, where only a portion of the fact that C was the bona fide
theland,subjectofregistrationiscontested,the occupantthereofandforthisreasonhis
court may render partial judgment provided that transfer certificate of title may be
a subdivision plan showing the contested land vulnerable,thetransferofthesameland
and uncontested portions approved by the andtheissuanceofnewTCTstoXandY
Director of Lands is previously submitted to said who are innocent purchasers for value
court. render the latter's titles indefeasible. A
persondealingwithregisteredlandmay
Q:Whatistheeffectofadecreeofregistration? safely rely on the correctness of the
certificateoftitleandthelawwillnotin
A: The decree of registration binds the land, any way oblige him to go behind the
quiets title, subject only to such exceptions or certificatetodeterminetheconditionof
liensasmaybeprovidedbylaw. the property in search for any hidden
defectorinchoaterightwhichmaylater
It is conclusive upon all persons including the invalidate or diminish the right to the
national government and all branches thereof. land. This is the mirror principle of the
And such conclusiveness does not cease to exist TorrensSystemoflandregistration.
whenthetitleistransferredtoasuccessor.
2. The action to annul the sale was
Note: Title once registered cannot be impugned, instituted in 1977 or more than (10)
altered, changed, modified, enlarged or diminished, yearsfromthedateofexecutionthereof
exceptinadirectproceedingpermittedbylaw. in1957,hence,ithaslongprescribed.

Q: In 1950s, the Government acquired a big UnderSec.45,Act496,theentryofacertificate
landed estate in Central Luzon from the oftitleshallberegardedasanagreementrunning
registeredownerforsubdivisionintosmallfarms withtheland,andbindingupontheapplicantand
andredistributionofbonafideoccupants.Fwasa allhissuccessorsintitlethatthelandshallbeand
formerlesseeofaparcelofland,fivehectaresin always remain registered land. A title under Act
area. After completion of the resurvey and 496isindefeasibleandtopreservethatcharacter,
subdivision, F applied to buy the said land in the title is cleansed anew with every transfer for
accordance with the guidelines of the value(DeJesusv.CityofManila,G.R.No.L26816,
implementing agency. Upon full payment of the Feb.28,1967;Laperalv.CityofManila,G.R.No.L
pricein1957,thecorrespondingdeedofabsolute 16991,Mar.31,1964;Penullarv.PNB,G.R.No.L
sale was executed in his favor and was 32762Jan.27,1983)
registered,andin1961,anewtitlewasissuedin
hisname.In1963,FsoldthesaidlandtoX;and
476 CIVILLAWTEAM:

Suppose the government agency concerned Q: How may possession of property be

joined C in filing the said action against the obtained?
defendants, would that change the result of the
litigation?Explain. A:Possessionofthepropertymaybeobtainedby
filinganexpartemotionwiththeRTCcourtofthe
Even if the government joins C, this will not alter provinceorplacewherethepropertyissituated.
the outcome of the case so much because of Uponfilingofthemotionandtherequiredbond,
estoppel as an express provision in Sec. 45, Act itbecomesaministerialdutyofthecourttoorder
496 and Sec. 31, PD 1529 that a decree of theissuanceofawritofpossessioninfavorofthe
registration and the certificate of title issued in purchaser. After the expiration of the oneyear
pursuance thereof shall be conclusive upon and periodwithoutredemptionbeingeffectedbythe
against all persons, including the national propertyowner,therightofthepurchasertothe
government and all branches thereof, whether possession of the foreclosed property becomes
mentioned by name in the application or not. absolute. (PNB v. Sanao Marketing Corporation,
(1990BarQuestion) G.R.No.153951,July29,2005)

Q:Maythecourtreopenthejudgmentordecree Q: PNCB purchased a parcel of land in a
ofregistration? foreclosure sale and applied for a writ of
possession after the lapse of more than 1 year.
A: The court has no jurisdiction or authority to Onappeal,however,itwasheldthatthewritof
reopen the judgment or decree of registration, possession cannot be issued because the
nor impair the title or other interest of a foreclosure sale, upon which it is based, was
purchaser holding a certificate for value and in infirm.Issaidrulingcorrect?
goodfaith,orhisheirsandassigns,withouthisor
theirwrittenconsent. A: No. Any question regarding the regularity and
validity of the sale, as well as the consequent
ENTRYOFDECREEOFREGISTRATION cancellationofthewrit,istobedeterminedin a
subsequent proceeding as outlined in Sec. 8, Act
Q: What are the effects of the entry of the 3135, as amended by Act 4118. Such question is
decreeofregistrationintheNationalLandTitles nottoberaisedasajustificationforopposingthe
andDeedsRegistrationAuthority(NALDTRA)? issuanceofthewritofpossession,since,underthe
Act,theproceedingisexparte.
A:
1. This serves as the reckoning date As the purchaser of the properties in the extra
to determine the 1year period judicialforeclosuresale,thePNCBisentitledtoa
from which one can impugn the writ of possession therefore. The basis of this
validityoftheregistration. right to possession is the purchasers ownership
2. 1 year after the date of entry, it oftheproperty.Merefilingofanexpartemotion
becomes incontrovertible, and for the issuance of the writ of possession would
amendments will not be allowed suffice,andnobondisrequired.(Sulitv.CA,G.R.
exceptclericalerrors.Itisdeemed No.119247,Feb.17,1997)(Agcaoili,Registration
conclusiveastothewholeworld. DecreeandRelatedLaws,p.508509)
3. Putsanendtolitigation.
Q: Against whom may a writ of possession be
WRITOFPOSSESSION issued?

Q:Whatiswritofpossession? A:Inaregistrationcase,awritofpossessionmay
beissuedagainst:
A:Itisawritemployedtoenforceajudgmentto 1. Thepersonwhohasbeendefeatedina
recover the possession of land, commanding the registrationcase;and
sheriff to enter into the land and give the 2. Any person adversely occupying the
possession thereof to the person entitled under land or any portion thereof during the
thejudgment.(Pineda,Property,p.45,1999ed) land registration proceedings up to the
issuance of the final decree (Agcaoili
Note:Itmaybeissuedonlypursuanttoadecreeof Reviewer,p.167,2008ed)
registration in an original land registration
proceeding.
477

Q: Yano filed an application for registration Q: Does petition for the issuance of a writ of
which was granted. Consequently, a writ of possessionprescribe?
possession was issued. Vencelao, who occupies
theland,contendsthathewasnotthedefeated A:
oppositorinthecase,henceawritofpossession GR:No.
may not be issued against him. May a writ of
possessionbeissuedagainstVencelao? XPN: If a party has once made use of the
benefit of a writ of possession, he cannot
A: Yes. In a registration case, the judgment again ask for it, if afterwards he loses
confirmingthetitleoftheapplicantandordering possessionofthepropertyobtainedbyvirtue
the registration in his name necessarily carried oftheoriginalwrit.
with it the delivery of possession which is an
inherentelementoftherightofownership. 6.DECREEOFCONFIRMATIONAND
REGISTRATION
A writ of possession may be issued not only
against the person who has been defeated in a Q: What is decree of confirmation and
registration case but also against anyone registration?
unlawfully and adversely occupying the land or
any portion thereof during the land registration A: It is issued by LRA after finality of judgment,
proceedingsuptotheissuanceofthefinaldecree. and contains technical description of land. It is
(Vencelaov.Yano,G.R.No.25660,Feb.20,1993) subjectonlytoanappeal.

Q:Ifthecourtgrantedtheregistration,mustthe It is conclusive evidence of the ownership of the
applicant move for the issuance of a writ of land referred to therein and becomes
possession in case he is deprived of possession indefeasible and incontrovertible after one year
over the land subject of the registration from the issuance of the decree. (Agcaoili
proceedings? Reviewer,p.169)

A: Q: Differentiate decree of confirmation and
Yes,ifitisagainst: registrationfromdecreeofregistration.
1. thepersonwhohasbeendefeatedina
registrationcase;and A:Decreeofregistrationisissuedpursuanttothe
2. any person adversely occupying the Property Registration Decree, where there
land or any portion thereof during the already exists a title which is confirmed by the
land registration proceedings up to the court.
issuanceofthefinaldecree.
Decreeofconfirmationandregistrationoftitleis
No,ifitisagainstpersonswhotookpossessionof issuedpursuanttothePublicLandAct,wherethe
the land after final adjudication of the same ina presumption always is that the land applied for
registration proceeding. In which case, the pertainstotheState,andthattheoccupantsand
remedyisfileaseparateactionfor: possessors only claim an interest in the same by
virtueoftheirimperfecttitleorcontinuous,open,
1. unlawfulentry; and notorious possession. (Limcoma Multi
2. unlawfuldetainer;or PurposeCooperativev.Republic,G.R.No.167652,
3. reinvindicatory action, as the case may July10,2007)
be,andonlyafterafavorablejudgment
cantheprevailingpartysecureawritof Q: What is the doctrine of noncollateral attack
possession. (Agcaoili Reviewer, p. 168, ofadecreeortitle?
2008 ed, citing Bernas v. Nuevo, G.R.
No.L58438,Jan.31,1984) A: A decree of registration and registered title
cannotbeimpugned,enlarged,altered,modified,
or diminished either in collateral or direct
proceeding, after the lapse of one year from the
dateofitsentry.

478 CIVILLAWTEAM:

Q:Differentiatedirectfromcollateralattack. Q: If an attack is made thru a counterclaim,

should it be disregarded for being a collateral
A: attack?
DIRECTATTACK COLLATERALATTACK
Itismadewhen,inanother A: No. A counterclaim is also considered an
actiontoobtainadifferent originalcomplaint,andassuch,theattackonthe
Theissuesare
relief,anattackonthe title is direct and not collateral. (Agcaoili
raisedinadirect
judgmentismadeasan Reviewer,p.264.2008)
proceedinginan
incidentinsaidaction.
actioninstituted
C.REMEDIESIN.REGISTRATIONPROCEEDINGS
forthat
e.g.Torrenstitleisquestioned
purpose.
intheordinarycivilactionfor Q:Whataretheremediesofanaggrievedparty
recoveryofpossession inregistrationproceedings?

Q: Valentins homestead application was A:RADARCANQP
approved. After 19 years of possession, his 1. Relieffromjudgment
occupation was interrupted when Arcidio 2. Appeal
forcibly entered the land. He filed an action for 3. ActionforDamages
recoveryofpossessionwhichwasgranted. 4. Action for Compensation from the
AssuranceFund
In his appeal, may Arcidio seek the nullity of 5. ActionforReconveyance
Valentinstitle,invokingasdefensetherulingof 6. Cancellationofsuits
the Director of Lands in an administrative case 7. Annulmentofjudgment
thatValentinhasneverresidedinsaidlandand 8. Newtrial
declared that the homestead patent was 9. Quietingoftitle
improperlyissuedtohim? 10. PetitionforReview(ofaDecree)

A: No, a collateral attack is not allowed. It was APPEAL
erroneousforArcidiotoquestiontheTorrensOCT
issued to Valentin in an ordinary civil action for Q:Inlandregistrationcases,withinwhatperiod
recovery of possession filed by the registered mayanappealbefiled?
ownerValentinofthesaidlot,byinvokingas
affirmativedefenseinhisanswertheOrderofthe A:Itmustbefiledwithin15daysfromreceiptof
Bureau of Lands issued pursuant to the thejudgmentorfinalorderappealedfrom.
investigatory power of the Director of Lands
underSection91ofPublicLandLaw(CANo.141 Q:Whichcourtshaveappellatejurisdictionover
as amended). Such a defense partakes of the landregistrationcases?
nature of a collateral attack against a certificate
oftitlebroughtundertheoperationoftheTorrens A:UnderPD1529,judgmentsandordersinland
systemofregistrationpursuanttoSec.122,Land registration cases are appealable to the CA or to
RegistrationAct,nowSec.103,PD1259.(Ybanez theSCinthesamemannerasordinaryactions.
v.IAC,G.R.No.68291,Mar.6,1991)
Q: Who may file an appeal in land registration
Q:Inacaseforrecoveryofpossessionbasedon cases?
ownership, is a thirdparty complaint to nullify
thetitleofthethirdpartydefendantconsidered A:Onlythosewhoparticipatedintheproceedings
adirectattackonthetitle? caninterposeanappeal.

A:Iftheobjectofthethirdpartycomplaintisto Q:Inlandregistrationcases,mayapartyvalidly
nullify the title of the thirdparty defendant, the moveforexecutionpendingappeal?
thirdparty complaint constitutes a directattack
onthetitlebecausethesameisinthenature of A: No. A motion for execution pending appeal is
an original complaint for cancellation of title. not applicable to land registration proceedings.
(AgcaoiliReviewer,p.264.2008) Thereasonistoprotectinnocentpurchasers.

479

PETITIONFORREVIEW Q: What is the purpose of an action for
reconveyance?
Q: What are the requisites of a petition for
reviewofthedecree? A: An action for reconveyance does not aim or
purport to reopen the registration proceedings
A: and set aside the decree of registration but only
Petitionerhasarealright; to show that the person who secured the
Hehasbeendeprivedthereof; registrationofthequestionedpropertyisnotthe
The deprivation is through fraud real owner thereof. The action, while respecting
(actual/extrinsic); the decree as incontrovertible, seeks to transfer
Petition is filed within 1 year from issuance or reconvey the land from the registered owner
ofthedecree;and totherightfulowner.
The property has not yet passed to an
innocentpurchaserforvalue. Note:Thisactionmaybefiledevenafterthelapseof
1 year from entry of the decree of registration as
Q: In land registration cases, when may a long as the property has not been transferred or
petitionforreviewbefiled? conveyedtoaninnocentpurchaserforvalue.

A:Anypersonmayfileapetitionforreviewtoset Q: What are the grounds and their
aside the decree of registration on the ground corresponding period for filing an action for
that he was deprived of their opportunity to be reconveyance?
heard in the original registration case not later
than1yearaftertheentryofthedecree. A:
GROUNDS PRESCRIPTIVEPERIOD
Q:Onwhatgroundsmayapetitionforreviewbe 4yearsfromthediscoveryofthe
filed? fraud(deemedtohavetaken
placefromtheissuanceofthe
A: originalcertificateoftitle)
1. That a land belonging to a person
Fraud Note:TheStatehasan
hasbeenregisteredinthenameof
another or that an interest has imprescriptiblerighttocausethe
reversionofapieceofproperty
beenomittedintheapplication;
belongingtothepublicdomainif
2. Registration has been procured titlehasbeenacquiredthrough
thruactualfraud; fraudulentmeans.
3. Petitioner is the owner of thesaid 10yearsfromthedateofthe
propertyorinteresttherein; issuanceoftheOCTorTCT.
4. Property has not been transferred Itdoesnotapplywherethe
toaninnocentpurchaserforvalue; Impliedor
personenforcingthetrustisin
5. Actionisfiledwithinoneyearfrom Constructive
actualpossessionoftheproperty
the issuance and entry of the Trust
becauseheisineffectseekingto
decreeofregistration;or quiettitletothesamewhichis
6. Actualfraudmustbeutilizedinthe imprescriptible.
procurementofthedecreeandnot ExpressTrust Notbarredbyprescription
thereafter VoidContract Imprescriptible

Note:Whatiscontemplatedbylawis
Q: In 1987, an Emancipation Patent OCT was
extrinsicfraud.(Garinganv.Garingan,G.R.
issuedinRemysfavor.In1998,Madarietafileda
No.144095,Apr.12,2005)
Complaint for Annulment and Cancellation of

the OCT against Remy before the DARAB,
RECONVEYANCE
allegingthattheDepartmentofAgrarianReform

(DAR) mistakenly included her husbands lot as
Q:Whatisactionforreconveyance?
part of Luspos property where Remys house

was constructed and that it was only on 1997
A: It is an action seeking to transfer or reconvey
thatshediscoveredsuchmistake.IsMadarietas
thelandfromtheregisteredownertotherightful
actionbarredbyprescription?
owner.

A: Yes. Considering that there appears to be a

mistake in the issuance of the subject
480 CIVILLAWTEAM:

emancipation patent, the registration of the title in behalf of the Republic of the Philippines a
tothesubjectpropertyinRemysnameislikewise complaintforcancellationofthefreepatentand
erroneous, and consequently, Remy holds the the OCT issued in the name of Melvin and the
property as a mere trustee. An action for reversion of the land to public domain on the
reconveyance based on an implied or ground of fraud and misrepresentation in
constructivetrustprescribesin10yearsfromthe obtaining the free patent. On the same date,
issuance of the Torrens title over the property. PercivalsuedMartinforthereconveyanceofLot
The title over the subject land was registered in B.
Remys name in 1987 while Madarieta filed the
complainttorecoverthesubjectlotonlyin1998. Melvin filed his answers interposing the sole
Morethan11yearshadlapsedbeforeMadarieta defenseinbothcasesthattheCertificateofTitle
institutedtheactionforannulmentofthepatent issued in his name became incontrovertible and
OCT, which in essence is an action for indefeasibleuponthelapseofoneyearfromthe
reconveyancetheremedyoftherightfulowner issuanceofthefreepatent.
of the erroneously registered property. It is thus
barred by prescription. (Rementizo v. Heirs of Given the circumstances, can the action of the
Vda. De Madarieta, G.R. No. 170318, Jan. 15, Solicitor General and the case for reconveyance
2009) filedbyPercivalpossiblyprosper?

Note: In an action for reconveyance, the decree of A:Iffraudbediscoveredintheapplicationwhich
registration is respected as incontrovertible but ledtotheissuanceofthepatentandCertificateof
whatissoughtinsteadisthetransferoftheproperty Title, this Title becomes ipso facto null and void.
wrongfully or erroneously registered in anothers Thus, in a case where a person who obtained a
name to its rightful owner or to one with a better freepatent,knowinglymadeafalsestatementof
right. The person in whose name the land is material and essential facts in his application for
registeredholdsitasameretrustee. the same, by stating therein that the lot in
question was part of the public domain not
Q: If the ground relied upon for an action for occupiedorclaimedbyanyotherperson,histitle
reconveyance is fraud, what is the period for becomes ipso facto canceled and consequently
filingthesame? renderednullandvoid.

A: If ground relied upon is fraud, action may be It is to the public interest that one who succeeds
filed within 4 years from discovery thereof. Infraudulentlyacquiringtitletopubliclandshould
Discovery is deemed to have taken place when notbeallowedtobenefittherefromandtheState,
said instrument was registered. It is because through the Solicitor General, may file the
registrationconstitutesconstructivenoticetothe correspondingactionforannulmentofthepatent
wholeworld. and the reversion of the land involved to the
public domain (Dinero v. Director of Lands;
Q: On September 10, 1965, Melvin applied for a Kayaban v. Republic L33307, Aug. 20, 1973;
freepatentcoveringtwolotsLotAandLotB Director of Lands vs. Animas, L37682, Mar. 29,
situated in Santiago, Isabela. Upon certification 1974).
by the Public Land Inspector that Melvin had
been in actual, continuous, open, notorious, Thisactiondoesnotprescribe.
exclusiveandadversepossessionofthelotssince
1925, the Director of Land approved Melvin's WithrespecttoPercival'sactionforreconveyance,
application on 04 June 1967. On December 26, it would have prescribed, having been filed more
1967, Original Certificate of Title (OCT) No. P thanten(10)yearsafterregistrationandissuance
2277wasissuedinthenameofMelvln. of an OCT in the name of Melvin, were it not for
the inherent infirmity of the latter's title. Under
On September 7, 1971, Percival filed a protest the facts, the statute of limitations will not apply
allegingthatLotBwhichhehadbeenoccupying toPercivalbecauseMelvinknewthatapartofthe
and cultivating since 1947 was included in the land covered by his title actually belonged to
Free Patent issued in the name of Melvin. The Percival.So,insteadofnullifyingintotothetitleof
Director of Lands ordered the investigation of Melvin, the court, in the exercise of equity and
Percival's protest. The Special Investigator who jurisdiction, may grant prayer for the
conducted the investigation found that Percival reconveyanceofLotBtoPercivalwhohasactually
hadbeeninactualcultivationofLotBsince1947. possessed the land under a claim of ownership
since 1947. After all, if Melvin's title is declared
OnNovember28,1986,theSolicitorGeneralfiled
481

voidabinitioandthelandisrevertedtothepublic reconveythetitletoherasthelegitimateowner
domain, Percival would just the same be entitled oftheland.
to preference right to acquire the land from the
government. Besides, well settled is the rule that May the court cancel the notice of lis pendens
once public land has been in open, continuous, evenbeforefinaljudgmentisrendered?Explain.
exclusive and notorious possession under a
bonafideclaimofacquisitionofownershipforthe A:Anoticeoflispendensmaybecancelledeven
periodprescribedbySec.48,PublicLandAct,the before final judgment upon proper showing that
same ipso jure ceases to be public and in the notice is for the purpose of molesting or
contemplation of law acquired the character of harassing the adverse party orthat the noticeof
privateland.Thus,reconveyanceofthelandfrom lispendensisnotnecessarytoprotecttherightof
MelvintoPercivalwouldbethebetterprocedure. thepartywhocauseittoberegistered.(Sec.77,
(Vital v. Anore, G.R. No. L4136, Feb. 29, 1952; PD1529)
Pena, Land Titles and Deeds, p. 427, 1982 ed)
(1997BarQuestion) In this case, it is given that Rachelle is the
legitimateownerofthelandinquestion.Itcanbe
Q:Rommelwasissuedacertificateoftitleovera said,therefore,thatwhenshefiledhernoticeof
parcel of land in Quezon City. One year later, lis pendens her purpose was to protect her
Rachelle, the legitimate owner of the land, interest in the land and not just to molest
discovered the fraudulent registration obtained Rommel.Itisnecessarytorecordthelispendens
by Rommel. She filed a complaint against to protect her interest because if she did not do
Rommel for reconveyance and caused the it,thereisapossibilitythatthelandwillfallinto
annotation of a notice of lis pendens on the thehandsofaninnocentpurchaserforvalueand
certificate of title issued to Rommel. Rommel in that event, the court loses control over the
now invokes the indefeasibility of his title land making any favorable judgment thereon
considering that one year has already elapsed mootandacademic.Forthesereasons,thenotice
fromitsissuance.Healsoseeksthecancellation of lis pendens may not be cancelled. (1995 Bar
ofthenoticeoflispendens. Question)

Will Rachelles suit for reconveyance prosper? Q:Juan, et. al. seek reconveyance of the
Explain. property, imputing fraud to Ines, without
adducingevidence,sayingthatsheusedaforged
A:Yes,Rachellessuitwillprosperbecauseallthe affidavittoobtaintitleoverthepropertydespite
elements of an action for reconveyance are fullknowledgethatsheownedonly1/5portion
present,namely: thereof.Note that when Ines applied for a free
1. Rachelle is claiming dominical rights patentovertheproperty,Juan,et.al.filedtheir
overtheproperty; claims, but when the Bureau of Lands denied
2. Rommel procured his title to the land theirclaims,theydidnotcontestsuchdenialany
byfraud; further.Shouldthereconveyancebegranted?
3. The action was brought within the
statutory period of four years from A:No.ItappearsthattheywerenotifiedofInes
discovery of the fraud and not later application for free patent and were duly
than 10 years from the date of afforded the opportunity to object to the
registrationofRommelstitle;and registration and to substantiate their claims,
4. Titletothelandhasnotyetpassedinto whichtheyfailedtodoandtheynevercontested
thehandsofaninnocentpurchaserfor the order of the Bureau of Lands disregarding
value. theirclaims.Thiscouldonlymeanthattheyeither
agreed with the order or decided to abandon
Rommelcaninvoketheindefeasibility ofhistitle theirclaims.
if Rachelle had filed a petition to reopen or
review the decree of registration. But Rachelle Also, they failed to prove fraud in the execution
instead filed an ordinary action in personam for oftheaffidavitusedbyInestoobtaintitletothe
reconveyance. In the latter action, indefeasibility disputed property. No evidence was adduced by
is not a valid defense, because in filing such them to substantiate their allegation that their
action, Rachelle is not seeking to nullify nor to signatures therein were forged. It is not for
impugn the indefeasibility of Rommels title. She private respondents to deny forgery. The burden
is only asking the court to compel Rommel to of proof that the affidavit of waiver is indeed
spurious restson petitioners. Yet, even as they
482 CIVILLAWTEAM:

insist on forgery, they never really took serious Q:Whataretherulesasregardscancellationof

efforts in establishing such allegation by certificatesoftitlebelongingtodifferentpersons
preponderant evidence. Mere allegations of overthesameland?
fraudarenotenough.Intentionalactstodeceive
and deprive another of his right or in some A: Where two certificates are issued to different
manner injure him, must be specifically alleged personscoveringthesameland,thetitleearlierin
andproved.(Brusasv.CA,G.R.No.126875,Aug. date must prevail. The latter title should be
26,1999) declarednullandvoidandorderedcancelled.

DAMAGES Q: What is meant by prior est temporae, prior
estinjura?
Q:Whenmayanactionfordamagesberesorted
toinlandregistrationcases? A:Itisaprinciplewhichmeanshewhoisfirstin
time is preferred in right. (Agcaoili Reviewer, p.
A: It may be resorted to when a petition for 189,1999ed)
review and an action for reconveyance is no
longer possible because the property has passed Q:Pablooccupiedaparceloflandsince1800.In
to an innocent purchaser for value and in good 1820,hewasissuedacertificateoftitleoversaid
faith. land.In1830,however,thelandwasreclassified
asalienableanddisposable,asitwasoriginallya
Q: When will an action for damages in land forestland.In1850,Pedrowasabletoobtaina
registrationcasesprescribe? certificate of title over the same land. Upon
learning of such, Pablo sought to have Pedros
A: An ordinary action for damages prescribes in titledeclarednullandvoid.Decide.
ten (10) years after the issuance of the Torrens
titleovertheproperty. A: As a general rule, the earlier in date must
prevail. However, this principle cannot apply if it
CANCELLATIONSUIT is established that the earlier title was procured
through fraud or is otherwise jurisdictionally
Q:Whatiscancellationsuit? flawed.(Republicv.CAandGuido,et.al.,G.R.No.
84966, Nov. 21, 1991). The rule is valid only
A: It is an action for cancellation of title brought absent any anomaly or irregularity tainting the
byaprivateindividual,allegingownershipaswell process of registration. Where the inclusion of
as the defendants fraud or mistake, as the case land in the certificate of title of prior date is a
may be, in successfully obtaining title over a mistake, the mistake may be rectified by holding
disputedlandclaimedbytheplaintiff.(Aquino,p. thelatterofthetwocertificatestobeconclusive.
155,2007ed) (Legarda v. Saleeby, G.R. No. 8936, Oct. 2, 1915)
Since the earlier title was issued when the
Q:Whenisresorttoacancellationsuitproper? disputedlandwasstillanonregistrableproperty,
the same may be challenged through a
A: cancellationsuitandmaybedeclaredasnulland
1. Whentwocertificatesoftitleareissued void.Pedrostitlemustprevail.
to different persons covering the same
parceloflandinwholeorinpart; QUIETINGOFTITLE

2. When certificate of title is issued Q:Whatisactionforquietingoftitle?
coveringanonregistrableproperty;or
A:Itisanactionthatisbroughttoremoveclouds
3. Other causes such as when the on the title to real property or any interest
certificateoftitleisissuedpursuanttoa therein, by reason of any instrument, record,
judgment that is not final or when it is claim, encumbrance, or proceeding which is
issued to a person who did not claim apparentlyvalidoreffectivebutisintruthandin
and applied for the registration of the fact invalid, ineffective, voidable or
landcovered.(Aquino,p.141,2007ed) unenforceable, and may be prejudicial to said
title.

483

Q:Whomayfileanactiontoquiettitle? A: A reconstituted title, by itself, does not
determine or resolve the ownership of the land
A: covered by the lost or destroyed title. The
Registeredowner; reconstitution of a title is simply the reissuance
A person who has an equitable right or ofalostduplicatecertificateoftitleinitsoriginal
interestintheproperty;or form and condition. It does not determine or
TheState. resolvetheownershipofthelandcoveredbythe
lost or destroyed title. A reconstituted title, like
Note: the original certificate of title, by itself does not
CriminalactionStatemaycriminallyprosecutefor vest ownership of the land or estate covered
perjury the party who obtains registration through thereby.(Alonso,et.al.v.CebuCountryClubInc.,
fraud,suchasbystatingfalseassertionsinthesworn G.R.No.130876,Dec.5,2003)
answer required of applicants in cadastral
proceedings. Q: May a writ of possession be issued in a
petitionforreconstitution?
ActionfordamagesFiledinanordinaryactionfor

damagesifthepropertyhaspasseduntothehands
A: No, because, reconstitution does not
ofaninnocentpurchaserforvalue.
adjudicateownershipovertheproperty.Awritof

possessionisissuedtoplacetheapplicantowner
REMEDYINCASEOFLOSSOR
inpossession.
DESRUCTIONOFCERTIFICATEOFTITLE:

Q: What are the elements of reconstitution of
Q: What is theremedy in casea person losthis
certificatesoftitle?
certificateoftitle?

A:
A:Itdepends.
1. Certificatehasbeenlostordestroyed;
1. If what is lost is the OCT or TCT
2. Petitioner is the registered owner or
Reconstitutionofcertificateoftitle;
hasaninteresttherein;and
2. If, however, it is the duplicate of the
3. Certificate was in force at the time it
OCT or TCT Replacement of lost
waslostordestroyed.
duplicatecertificateoftitle.

Q: What are the jurisdictional requirements in
RECONSTITUTIONOFCERTIFICATEOFTITLE
petitionsforreconstitutionoftitle?

Q: What is the remedy in case a certificate of
A:Noticethereofshallbe:
titleislostordestroyed?
1. Published twice in successive issues of

theOfficialGazette;
A: Remedy is reconstitution of lost or destroyed
2. Posted on the main entrance of the
certificate of title in the office of Register of
provincialbuildingandofthemunicipal
DeedsinaccordancewithR.A.26.(Aquino,p.454,
building of the municipality or city,
2007ed)
wherethelandissituated;and

3. Sentbyregisteredmailtoeveryperson
Q:Whatisreconstitutionofcertificateoftitle?
namedinsaidnotice

A: The restoration of the instrument which is
Note: The above requirements are mandatory and
supposed to have been lost or destroyed in its
jurisdictional.
originalformandcondition,underthecustodyof

RegisterofDeeds.
Q:Whatarethekindsofreconstitutionoftitle?

Q:Whatisthepurposeofreconstitutionoftitle?
A:

1. Judicial partakes the nature of a land
A: To have the same reproduced, after proper
registration proceeding in rem. The
proceedings, in the same form they were when
registered owners, assigns, or any
thelossordestructionoccurred.
person having an interest in the

property may file a petition for that
Q: Does reconstitution determine ownership of
purpose with RTC where property is
landcoveredbyalostordestroyedcertificateof
located. RD is not the proper party to
title?
filethepetition.

484 CIVILLAWTEAM:

2. Administrativemaybeavailedofonly 3. Certified copy of such certificate,

incaseof: previously issued by the Register of
a. Substantial loss or destruction of Deeds
the original land titles due to fire, 4. Deed of transfer of other document
flood, or other force majeure as containing description of property
determined by the Administrator covered by thetransfer certificate of
oftheLandRegistrationAuthority title and on file with the Registry of
b. The number of certificates of title Deeds, or an authenticated copy
lostordamagedshouldbeatleast thereof
10% of the total number in the 5. Deed or mortgage, lease or
possession of the Office of the encumbrance containing description
RegisterofDeeds ofpropertycoveredbythecertificate
c. In no case shall the number of oftitleandonfilewiththeRegistryof
certificatesoftitlelostordamaged Deeds, or an authenticated copy
belessthanP500 thereof
d. Petitionermusthavetheduplicate 6. Any other document which, in the
copyofthecertificateoftitle(R.A. judgment of the court, is sufficient
6732) andproperbasisforreconstitution

Note: The law provides for retroactive application Administrativereconstitution
thereof to cases 15 years immediately preceding 1. Owners duplicate of the certificate of
1989. title
2. Coowners, mortgagees or lessees
Q: From what sources may a certificate of title duplicateofsaidcertificate
bereconstituted?
REPLACEMENTOF
A: (Agcaoili, Registration Decree and Related LOSTDUPLICATECERTIFICATEOFTITLE
Laws,p.757758)
Q: If what is lost or destroyed is the duplicate
Judicialreconstitution title,isreconstitutiontheproperremedy?
ForOCT(inthefollowingorder):
1. Owners duplicate of the certificate A:No.Whentheduplicatetitleofthelandowner
oftitle islost,theproperpetitionisnotreconstitutionof
2. Coowners, mortgagees or lessees title, but one filed with the court for issuance of
duplicateofsaidcertificate newtitleinlieuofthelostcopy.
3. Certified copy of such certificate,
previously issued by the Register of Q: Who are the persons entitled to a Duplicate
Deeds CertificateofTitle?
4. Authenticated copy of the decree of
registration or patent, as the case A:
may be, which was the basis of the 1. Registeredowner
certificateoftitle 2. Eachcoowner
5. Deed or mortgage, lease or
encumbrance containing description Q: What are the requirements for the
ofpropertycoveredbythecertificate replacementoflostduplicatecertificateoftitle?
oftitleandonfilewiththeRegistryof
Deeds, or an authenticated copy A:
thereof 1. Due notice under oath shall be sent by
6. Any other document which, in the the owner or by someone in his behalf
judgment of the court, is sufficient totheRegisterofDeedsoftheprovince
andproperbasisforreconstitution or city where the land lies as soon as
thelossortheftisdiscovered.
ForTCT(inthefollowingorder): 2. Petitionforreplacementshouldbefiled
1. Owners duplicate of the certificate with the RTC of the province or city
oftitle wherethelandlies.
2. Coowners, mortgagees or lessees 3. NoticetoSolicitorGeneralbypetitioner
duplicateofsaidcertificate is not imposed by law but it is the
Register of Deeds who should request
485

for representation by the Solicitor 2. Title is replaced by one issued under a
General. cadastralproceeding;or
4. A proceeding where the certificate of 3. When condition for its issuance has
titlewasnotinfactlostordestroyedis beenviolatedbytheregisteredowner.
nullandvoidforlackofjurisdictionand
the newly issued duplicate is null and SURRENDEROF
void. WITHHELDDUPLICATECERTIFICATEOFTITLE

AMENDMENTORCORRECTIONOFTITLE Q: What are the grounds for surrender of
withheldduplicatecertificateoftitle?
Q: What are the grounds for amendment or
correctionofcertificateoftitle? A:
1. When it is necessary to issue a new
A:When: certificate of title pursuant to any
1. registered interests of any description, involuntary instrument which divests
whethervested,contingentorinchoate thetitleoftheregisteredowneragainst
haveterminatedandceased; hisconsent;
2. new interests have arisen or been 2. Where a voluntary instrument cannot
created which do not appear upon the beregisteredbyreasonoftherefusalor
certificate; failure of the holder to surrender the
3. any error, omission or mistake was ownersduplicatecertificateoftitle;or
made in entering a certificate or any 3. Wheretheownersduplicatecertificate
memorandum thereon or on any is not presented for amendment or
duplicatecertificate; alterationpursuanttoacourtorder.
4. the name of any person on the
certificatehasbeenchanged; REVERSION
5. theregisteredownerhasbeenmarried,
or registered as married, the marriage Q:Whatismeantbyreversion?
hasterminatedandnorightorinterest
of heirs or creditors will thereby be A: It is an action instituted by the government,
affected; through the Solicitor General, for cancellation of
6. a corporation, which owned registered certificateoftitleandtheconsequentialreversion
land and has been dissolved, has not ofthelandcoveredtherebytotheState.(Aquino,
conveyedthesamewithin3yearsafter p.154,2007ed)
itsdissolution;or
7. there is a reasonable ground for the Note: The difference between reversion suit and
amendmentoralterationoftitle. actionfordeclarationofnullityoftitleisthatinthe
former,theallegationsinthecomplaintwouldadmit
Q: What are the requisites for the amendment State ownershipof thedisputedland. On the other
orcorrectionoftitle? hand,actionfordeclarationofnullityoftitlerequires
allegation of the plaintiffs ownership of the
A:FREONU contestedlotpriortotheissuanceoffreepatentand
certificateoftitle.(Aquino,p.155,2007ed)
1. ItmustbeFiledintheoriginalcase;

2. BytheRegisteredownerorapersonin
Q:Whendoesreversionapply?
interest;

3. OngroundsEnumerated;
A:Generally,reversionappliesinallcaseswhere
4. AllpartiesmustbeNotified;
lands of public domain and the improvements
5. ThereisUnanimityamongthem;and
thereon and all lands are held in violation of the
6. OriginaldecreemustnotbeOpened.
Constitution.(AgcaoiliReviewer,p.221,1999ed)

CANCELLATIONOFTITLE
Q: What are the grounds for reversion of lands

coveredbyapatent?
Q: What are the grounds for cancellation of

title?
A:

1. Violation of Sec.s 118, 120, 121 and
A:
122, Public Land Act (e.g. alienation or
1. Whentitleisvoid;
sale of homestead executed within the
5yearprohibitoryperiod
486 CIVILLAWTEAM:

2. When land patented and titled is not Q: What is the procedure in cadastral
capableofregistration registration?
3. Failure of the grantee to comply with
theconditionsimposedbylawtoentitle A:
himtoapatentgrant 1. Cadastralsurvey
4. Whentheareaisanexpandedarea 2. Filingofpetition
5. When the land is acquired in violation 3. Publicationofnoticeofinitialhearing
of the Constitution (e.g. land acquired 4. Filingofanswer
by an alien may be reverted to the 5. Hearingofcase
State) 6. Decision
7. Issuanceofdecree&certificateoftitle
Q: Luis filed a complaint for annulment of title
involvingaforeshorelandwhichwasgrantedin Q: What is the extent of authority of cadastral
Flores favor, alleging that his application courts?
thereforwasgrantedbythegovernment.IsLuis
therealpartyininterestwithauthoritytofilea A: The cadastral court is not limited to merely
complaint for annulment of title of foreshore adjudicationofownershipinfavorofoneormore
land? claimants. If there are no successful claimants,
thepropertyisdeclaredpublicland.
A: No. In all actions for the reversion to the
Government of lands of the public domain or Cadastral courts do not have the power to
improvements thereon, the Republic of the determine and adjudicate title to a lot already
Philippinesistherealpartyininterest.Theaction covered by homestead patent to a person other
shallbeinstitutedbytheSolicitorGeneralorthe thanapatentee.
officer acting in his stead, in behalf of the
Republic of thePhilippines. Petitioners must first Cadastral court possesses no authority to award
lodgetheircomplaintwiththeBureauofLandsin damages.
orderthatanadministrativeinvestigationmaybe
conducted under Sec. 91, Public Land Act. Note: A parcel of forestland is within the exclusive
(Manesev.Sps.Velasco,G.R.No.164024,Jan.29, jurisdictionoftheBureauofForestryandbeyondthe
2009) power and jurisdiction of the cadastral court to
registerundertheTorrenssystem.
Note:Indefeasibilityoftitle,prescription,lachesand
estoppeldonotbarreversionsuits. V.SUBSEQUENTREGISTRATION

Q:Whatissubsequentregistration?
D.CADASTRALLANDREGISTRATION
A: It is where incidental matters after original
Q:Whatiscadastralregistration? registration may be brought before the land
registration court by way of motion or petition
A:Itisaproceedinginrem,initiatedbythefiling filed by the registered owner or a party in
of a petition for registration by the government, interest.
notbythepersonsclaimingownershipoftheland
subjectthereof,andthelatterare,onthepainof Q: What are the rules as to the necessity and
losing their claim thereto, in effect compelled to effectsofsubsequentregistration?
gotocourttomakeknowntheirclaimorinterest
therein, and to substantiate such claim or A:
interest. GR: The mere execution of deeds of sale,
mortgages, leases or other voluntary
Q:Whatisthepurposeofcadastralregistration? documentsservesonly2purposes:
1. as a contract between the
A: Here, the government does not seek the partiesthereto
registration of land in its name. The objective of 2. as evidence of authority to
the proceeding is the adjudication of title to the the RD to register such
landsorlotsinvolvedinsaidproceeding. documents(Sec.51,PD1529)

XPN: Wills that purport to convey or
affectaregisteredland.
487

Note:Itisonlytheactofregisteringtheinstrument Reason: Such is the willful act of the owner. It is
intheRDoftheprovinceorthecitywheretheland presumed that he is interested in registering the
lies which is the operative act that conveys instrument.
ownership or affects the land insofar as third
personsareconcerned(Sec.51,PD1529). Yes,incaseofinvoluntarytransfer.

Theact ofregistrationcreates aconstructivenotice Reason: Such registration is contrary to the
tothewholeworldofsuchvoluntaryorinvoluntary
interestsoftheowner.Mereentryisenough.
instrument or court writ or process. (Sec. 52, PD

1529)
Note:Thefactthatnotransfercertificateoftitlehas

as yet been issued by the RD in the name of the
Q:Ismereregistrationintheentryordaybook vendor, cannot detract from the rights of a
of the deed of sale without the presentation of purchaserforvalueandingoodfaithentitledtothe
the duplicate certificate enough to effect protection of law, once the deed of sale has been
conveyance? recordedinthedaybook.Whatremainstobedone
liesnotwithinhispowertoperform.
A:Itdepends.
When a land subject of a sale is registered in the
No,incaseofvoluntarytransfer. name of the purchaser, registration takes effect
retroactively as of the date the deed was noted in
theentrybookbytheRD.

Q:Differentiatevoluntaryfrominvoluntarydealingsinland?

A:
VOLUNTARYDEALINGS INVOLUNTARYDEALINGS
Concept
Refertosuchwrit,orderorprocessissuedbyacourtof
recordaffectingregisteredlandwhichbylawshouldbe
Refertodeeds,instrumentsordocumentswhicharethe registeredtobeeffective,andalsotosuchinstruments
resultsoffreeandvoluntaryactsofthepartiesthereto which are not the willful acts of the registered owner
and which may have been executed even without his
knowledgeoragainsthisconsent
Kinds
1. Sale
2. Realpropertymortgage
1. Attachment
3. Lease
2. Saleonexecutionofjudgmentorsalesfor
4. Pactoderetrosale
taxes
5. Extrajudicialsettlement
3. Adverseclaims
6. Freepatent/homestead
4. Noticeoflispendens
7. Powersofattorney
8. Trusts
EffectsofRegistration
An innocent purchaser for value of registered land
becomestheregisteredownerthemomenthepresents
andfilesadulynotarizedandvaliddeedofsaleandthe Entry thereof in the day book of the RD is sufficient
same is enteredin the day book and at the sametime notice to all persons even if the owners duplicate
he surrenders or presents the owners duplicate certificateoftitleisnotpresentedtotheRD
certificate of title covering the land sold and pays the
registrationfees
Requirementtopresenttitle
Needtopresenttitletorecordthedeedinregistryand No presentation required; annotation in entry book is
tomakememorandumontitle sufficient

488 CIVILLAWTEAM:

VOLUNTARYDEALINGS SALEONEXECUTION

Q:Mustvoluntarydealingsberegistered? Q:Whatissaleonexecution?

A: No. Registration is not a requirement for A: A sale of property by the sheriff under
validity of the contract as between the parties. authority of a court's writ of execution in order
However, the act of registration shall be the satisfyanunpaidobligation.
operativeacttoconveyoraffectthelandinsofar
asthirdpartiesareconcerned.(AgcaoiliReviewer, ADVERSECLAIM
p.276,1999ed)
Q:Whatisadverseclaim?
Q: What are the requirements for registrability
of deeds and other voluntary acts of A:Itisanotice tothirdpersonsthatsomeoneis
conveyance? claiming an interest on the property or has a
better right than the registered owner thereof,
A:PIPE and that any transaction regarding the disputed
1. Presentation of owners duplicate landissubjecttotheoutcomeofthedispute.
certificate whenever any duly executed
voluntary instrument is filed for Q:Whenisaclaimofinterestadverse?
registration;
2. Inclusion of one extra copy of any A:
document of transfer or alienation of 1. Claimantsrightorinterestinregistered
realproperty,tobefurnishedtothecity landisadversetotheregisteredowner;
orprovincialassessor; 2. Suchrightarosesubsequenttothedate
3. Paymentofprescribedregistrationfees oforiginalregistration;or
andrequisitedocstamps;and 3. No other provision is made in the
4. Evidence of full payment of real estate decreefortheregistrationofsuchright
taxasmaybedue. orclaim.

Q: What is the effect of registration of such Q:Whataretheformalrequisitesofanadverse
voluntarydealings? claimforpurposesofregistration?

A:It: A:WNR
1. creates a lien that attaches to the 1. Adverse claimant must state the
propertyinfavorofthemortgagee;and followinginWriting:
2. constitutes constructive notice of his a. hisallegedrightorinterest;
interest in the property to the whole b. how and under whom such alleged
world. rightofinterestisacquired;
c. descriptionofthelandinwhichthe
B.INVOLUNTARYDEALINGS rightorinterestisclaimed;and
d. certificateoftitlenumber
Q:Mustinvoluntarydealingsberegistered?
2. Such statement must be signed and
A:Yes.Itistheactofregistrationwhichcreatesa sworntobeforeaNotarypublic;and
constructive notice to the whole world of such 3. Claimant shall state his Residence or
instrument or court writ or process and is the placetowhichallnoticesmaybeserved
operative act that conveys ownership or affects uponhim.
the land insofar as third persons are concerned.
(Aquino,p.185,2007ed) Q:Howareadverseclaimsregistered?

ATTACHMENT A:ByfilingaswornstatementwiththeRegisterof
Deeds of the province where the property is
Q:Whatisattachment? located, setting forth the basis of the claimed
right together with other data pertinent thereto.
A: It is a writ issued at the institution or during (Agcaoili,p.538,2006)
progress of an action commanding the sheriff to
attach the property, rights, credits, or effects of Note: Entry of the adverse claim filed on the day
thedefendanttosatisfydemandsoftheplaintiff. bookissufficientwithoutthesamebeingannotated
at the back of the corresponding certificate of title
489

(Director of Lands v. Reyes, G.R. No. L27594, Feb. A: The adverse claim shall be effective for a
27,1976) period of thirty (30) days from the date of
registration and it may be cancelled. (Agcaoili
Q: What claims may be registered as adverse Reviewer,p.341.2008)
claims?
Q: What is the effect of the expiration of the
A:Anyclaimofpartorinterestinregisteredland periodofeffectivityofanadverseclaim?
that are adverse to the registered owner, arising
subsequenttothedateoftheoriginalregistration A: The expiration does not ipso facto terminate
(Sec.70,PD1529) theclaim.Thecancellationoftheadverseclaimis
still necessary to render it ineffective, otherwise,
Note: A mere money claim cannot be registered as the inscription will remain annotated and shall
anadverseclaim.(Aquino,p.216,2007ed) continue as a lien to the property. (Agcaoili
Reviewer,p.341,2008)
Q: What is the effect of the registration of an
adverseclaim? Q:MaytheRDcancelanadverseclaim?

A:Itrenderstheadverseclaimeffectiveandany A: The RD cannot, on its own, automatically
transaction regarding the disputed land shall be canceltheadverseclaim.
subjecttotheoutcomeofthedispute(Aquino,p.
217,2007ed) Note: Before the lapse of 30day period, the
claimant may file a sworn petition withdrawing his
Q: What is the effect of nonregistration of an adverse claim, or a petition for cancellation of
adverseclaim? adverse claim may be filed in the proper Regional
TrialCourt(Aquino,p.219,2007ed).
A: The effect of nonregistration or invalid
registration of an adverse claim renders it Q:Whatmustaninterestedpartydoifheseeks
ineffective for the purpose of protecting the thecancellationofaregisteredadverseclaim?
claimants right or interest on the disputed land,
and could not thus prejudice any right that may A:Theinterestedpartymustfilewiththeproper
have arisen thereafter in favor of third parties courtapetitionforcancellationofadverseclaim,
(Aquino,p.217,2007ed) andahearingmustalsofirstbeconducted.

Q:Whatarethelimitationstotheregistrationof NOTICEOFLISPENDENS
anadverseclaim?
Q:Whatisnoticeoflispendens?
A:Yes.
1. No second adverse claim based on the A:Lispendensliterallymeansapendingsuit.The
same ground may be registered by the doctrine of lis pendens refers to the jurisdiction,
sameclaimant. power or control which a court acquires over
2. A mere money claim cannot be property involved in a suit, pending the
registeredasanadverseclaim. continuance of the action, and until final
judgment.(AgcaoiliReviewer,p.343,2008ed)
Q:Mayanadverseclaimexistconcurrentlywith
a subsequent annotation of a notice of lis Itmerelycreatesacontingencyandnotalien.It
pendens? doesnotproduceanyrightorinterestwhichmay
beexercisedoverthepropertyofanother.Itonly
A: Yes, an adverse claim may exist concurrently protects the applicants rights which will be
with a subsequent annotation of a notice of lis determinedduringtrial.(Aquino,p.221,2007ed;
pendens. When an adverse claim exists AgcaoiliReviewer,p.255,1999ed)
concurrently with a notice of lis pendens, the
notice of adverse claim may be validly cancelled Q: What are the purposes of a notice of lis
after the registration of such notice, since the pendens?
notice of lis pendens also serves the purpose of
the adverse claim. (Agcaoili, Registration Decree A:To:
andRelatedLaws,p.539,2006) 1. protect the rights of the party causing
Q: What is the lifespan of a registered adverse theregistrationofthelispendens;and
claim? 2. advise third persons who purchase or
contract on the subject property that
490 CIVILLAWTEAM:

they do so at their peril and subject to 2. Unpaid real estate taxes levied and
the result of the pending litigation. assessed within two (2) years
(AgcaoiliReviewer,p.344,2008) immediately preceding the acquisition
of any right over the land by an
Note: A notice of lis pendens is intended to innocent purchaser for value without
constructively advise, or warn all people who deal prejudicetorightofthegovernmentto
with the property that they so deal with it at their collecttaxespayablebeforethatperiod
own risk, and whatever rights they may acquire in fromthedelinquenttaxpayeralone;
the property in any voluntary transaction, are
subjecttotheresultsoftheaction,andmaywellbe 3. Public highway or private way
inferior and subordinate to those which may be establishedorrecognizedbylaworany
finallydeterminedandlaiddowntherein.
government irrigation canal or lateral
thereof;and
Q:Whenmayanoticeoflispendensbehadand

whenmayitnotberesortedto?
4. Any Disposition of the property or
limitation on the use thereof by virtue

A:
of laws or regulations on agrarian
NOTICEOFLISPENDENS reform(Sec.44,PD1529).
Whenapplicable WhenInapplicable
1. Recover possession Q: When may a notice of lis pendens be
ofrealestate 1. Attachments cancelled?
2. Quietingoftitle 2. Levyorexecution
3. Remove clouds upon 3. Proceedings on A:Anoticeoflispendensmaybecancelledinthe
title probateorwills followingcasesbeforefinaljudgmentuponorder
4. ForPartition 4. Administration of ofthecourt:MENDPC
5. Anyotherproceeding the real estate of
of any kind in court deceasedperson 1. When it is shown that the notice is for
directly affecting title 5. Proceedings for the the purpose of Molesting the adverse
to the land or its use recovery of money party;
or occupation or the judgments
buildingthereon 2. WheretheEvidencesofarpresentedby
theplaintiffdoesnotbearoutthemain
Q: What are the effects of the annotation of allegationsofthecomplaint;
noticeoflispendens?
3. When it is shown that it is Not
A:Thefilingofnoticeoflispendenshas2effects: necessary to protect the right of the
1. Itkeepsthesubjectmatterof litigation party who caused the registration
within the power of the court until the thereof;
entry of the final judgment to prevent
the defeat of the final judgment by 4. Wherethecontinuancesofthetrialare
successivealienation;and unnecessarily Delaying the
determination of the case to the
2. Itbindsapurchaser,bonafideornot,of prejudiceofthedefendant;
the land subject of the litigation to the
judgment or decree that the court will 5. UponverifiedPetitionofthepartywho
promulgate subsequently (Agcaoili causedtheregistrationthereof;or
Reviewer,p.344,1999ed)
6. It is deemed Cancelled after final
Q: What statutory liens affecting title are not judgment in favor of defendant, or
barredeventhoughnotnotedinthetitle? other disposition of the action, such as
toterminateallrightsoftheplaintiffto
A:LUPD thepropertyinvolved.
1. Liens,claimsorrightsarisingorexisting
under the laws and the Constitution, Q: May a notice of lis pendens be cancelled
notrequiredbylawtoappearofrecord despitethependencyofthecase?
intheRD;
A: Yes. Though ordinarily a notice of lis pendens
cannot be cancelled while the action is still
491

pendingandundetermined,thepropercourthas effectoftheactofGov.GenForbesinreserving
discretionary power to cancel it under peculiar thelandforprovincialparkpurposes?
circumstances, as for instance, where the
evidence so far presented by the plaintiffs does A: As part of the reservation for provincial park
not bear out the main allegations of his purposes, they form part of the forest zone. It is
complaint, and where the continuances of the elementary in the law governing natural
trial, for which the plaintiffs is responsible are resources that forest land cannot be owned by
unnecessarily delaying the determination of the private persons. It is not registrable and
casetotheprejudiceofthedefendants.(Baranda possession thereof, no matter how lengthy,
v.Gustillo,G.R.No.L81163,Sept.26,1988) cannot convert it into private property, unless
such lands are reclassified and considered
disposable and alienable. (Sps. Palomo, et. al. v.
VI.NONREGISTRABLEPROPERTIES CA,et.al.,G.R.No.95608,Jan.21,1997)

Q:Whatarenonregistrablelands? FORESHORELAND

A:Thesearepropertiesofpublicdominionwhich, Q:Whatisforeshoreland?
under existing legislation, are not the subject of
private ownership and are reserved for public A: A strip of land that lies between thehigh and
purposes.(Aquino,p.38,2007ed) lowwatermarksandisalternativelywetanddry
accordingtotheflowoftide.Itisthatpartofthe
Q: What is the reason behind their non land adjacent to the sea, which is alternately
registrability? coveredandleftdrybytheordinaryflowoftides.

A:Theyareintendedforpublicuse,publicservice Note: Foreshore land forms part of the alienable
or development of thenational wealth. They are land of the public domain and may be disposed of
outsidethecommerceofmenand,therefore,not only by lease and not otherwise. Foreshore land
subjecttoprivateappropriation. remainspartofthepublicdomainandisoutsidethe
commerce of man. It is not capable of private
Q:Whichlandsarenonregistrable? appropriation.

A: MANGROVESWAMPS
1. Property of public domain or those
intended for public use, public service Q:Whataremangroveswamps?
ordevelopmentofthenationalwealth.
2. Forestortimberlands A: These are mud flats, alternately washed and
3. Watersheds exposed by the tide, in which grows various
4. Mangroveswamps kindred plants which will not live except when
5. Minerallands watered by the sea, extending their roots deep
6. Parksandplazas into the mud and casting their seeds, which also
7. Militaryornavalreservations germinate there. These constitute the mangrove
8. Foreshorelands flats of the tropics, which exist naturally, but
9. Reclaimedlands whicharealso,tosomeextentcultivatedbyman
10. Submergedareas for the sake of the combustible wood of the
11. Riverbanks mangroveandliketreesaswellasfortheuseful
12. Lakes nipa palm propagated thereon. (Montano v.
13. Reservations for public and semipublic InsularGovernment,G.R.No.3714,Jan.26,1909)
purposes
14. Others of similar character (Agcaoili MINERALLANDS
Reviewer,p.82,2008)
Q:Whatareminerallands?
FORESTLAND
A: Mineral land means any land where mineral
Q:In1913,Gov.Gen.Forbesreservedaparcelof resourcesarefound.
land for provincial park purposes. Sometime
thereafter, the court ordered said land to be Mineralresources,ontheotherhand,meansany
registeredinIgnacioPalomosname.Whatisthe concentration of mineral/rocks with potential
economicvalue.

492 CIVILLAWTEAM:

WATERSHED of by public or the people in the neighborhood.

(Aquino,p.33,2007ed)
Q:Whatiswatershed?
Q: Is adverse possession similar with the
A: It is a land area drained by a stream or fixed possessionrequiredinacquisitiveprescription?
body of water and its tributaries having a
commonoutletforsurfacerunoff. A: Yes. Possession, to constitute the foundation
ofaprescriptiveright,mustbepossessionunder
Q:Whatiswatershedreservation? aclaimoftitleoritmustbeadverse.(Cuaycongv.
Benedicto,G.R.No.9989,Mar.13,1918)
A: It is a forest land reservation established to
protect or improve the conditions of the water Q: What are the requisites in order to acquire
yieldthereoforreducesedimentation. landtitlethruadversepossession?

A:
VII.DEALINGSWITHUNREGISTEREDLANDS 1. Possessionmustbe:OCENCU
a. Open;
Q:Whichlandsareregistrable? b. Continuous;
c. Exclusive;
A: d. Notorious;
1. Alienable and disposable public e. IntheConceptofanowner;and
agriculturallands;and f. Uninterruptedpossessionfor:
2. Privatelands. i. 10 Years If possession is in
goodfaithandwithjusttitle
Q: What are the general incidents of registered ii. 30 Years If possession is in
land? badfaithandwithoutjusttitle

A:Registeredlandortheownersarenotrelieved 2. Landpossessedmustbeanalienableor
fromthefollowing: disposablepublicland
1. any rights incident to the relation of
husbandandwife,landlordandtenant; Q: An Emancipation Patent OCT was issued in
2. liability to attachment or levy on Remys favor. However, Madarieta filed a
execution; complaintforannulmentandcancellationofthe
3. liability to any lien of any description OCT against Remy before the DARAB, alleging
established by law on the land and that the Department of Agrarian Reform
buildings thereon, or in the interest of mistakenlyincludedherhusbandslotaspartof
theownerinsuchlandorbuilding; Luspos property where Remys house was
4. any right or liability that may arise due constructed. From the facts of thecase, what is
tochangeofthelawofdescent; the nature of Remys possession of the subject
5. the rights of partition between co land?
owners;
6. the right of government to take the A: Remy possessed the subject land in the
landbyeminentdomain; conceptofanowner.Noobjectionwasinterposed
7. liability to be recovered by an assignee against his possession of the subject land and
in insolvency or trustee or bankruptcy Remydidnotemployfraudintheissuanceofthe
under the laws relative to preferences; emancipation patent and title. In fact, Madarieta
and faulted the DAR, not him. (Rementizo v. Heirs of
8. anyotherrightsorliabilitiescreatedby Vda. De Madarieta, G.R. No. 170318, Jan. 15,
lawandapplicabletounregisteredland. 2009)

A.ADVERSEPOSSESSION Q: RP opposed the application for registration
filed by Manna Properties under Sec. 48(b), CA
Q:Whenispossessionadverse? No.141arguingthat,asaprivatecorporation,it
is disqualified from holding alienable lands of
A: Possession of land is adverse when it is open thepublicdomain,exceptbylease,citingSec.3,
andnotorious.Itisopenwhenitispatent,visible, Art. XII, 1987 Constitution. On the other hand,
and apparent and it is notorious when it is so Manna Properties claims that the land in
conspicuousthatitisgenerallyknownandtalked question has been in the open and exclusive
493

possession of its predecessorsininterest since
the 1940s, thus, the land was already private Note:Sec.48(b),CA141orPublicLandActgoverns
landwhenMannaPropertiesacquireditfromits theconfirmationofimperfectorincompletetitlesto
predecessorsininterest.Decide. landsofthepublicdomain.

A: Lands that fall under Sec. 48, CA No. 141 are Q: Against whom can acquisition of ownership
effectivelysegregatedfromthepublicdomainby byprescriptionnotbeused?
virtue of acquisitive prescription. Open, exclusive
and undisputed possession of alienable public A: Acquisition of ownership by prescription is
landfortheperiodprescribedbyCANo.141ipso unavailing against the registered owner and his
jureconvertssuchlandintoprivateland.Judicial hereditary successors because under Section 47
confirmationinsuchcasesisonlyaformalitythat of the Property Registration Decree, registered
merelyconfirmstheearlierconversionoftheland lands are not subject to prescription. No title to
intoprivateland,theconversionhavingoccurred registered land in derogation of the title of the
in law from the moment the required period of registered owner shall be acquired by
possessionbecamecomplete. prescription or adverse possession. (Agcaoili,
Reviewer in property registration and related
UnderCANo.141,thereckoningpointisJune12, proceedings,p.341,2008ed)
1945. If the predecessorsininterest of Manna
Propertieshavebeeninpossessionofthelandin B.ACQUISITIONOFTITLEBYLAW
question since this date, or earlier, Manna
Properties may rightfully apply for confirmation Q:Howmaylandtitlesbeacquiredbylaw?
of title to the land.Manna Properties, a private
corporation, may apply for judicial confirmation A:
of the land without need of a separate 1. FreePatentsbasedonPublicLandAct;
confirmation proceeding for its predecessorsin 2. TitletoAccretioninriverbanks;
interest first. (Republic v. Manna Properties Inc., 3. Reclamation;or
G.R.No.146527,Jan.31,2005) 4. TitlebyEscheat(Rule91,RulesofCourt)

PATENTSUNDERTHEPUBLICLANDACT

Q:WhatarethedifferentkindsofpatentsunderthePublicLandAct?Towhomaretheygrantedandwhat
aretherequirementsforacquisitionofsuch?

A:
TOWHOMGRANTED REQUIREMENTS
HomesteadPatent
Doesnotownmorethan24hectaresoflandinthePhilippinesorhasnothadthe
benefitofanygratuitousallotmentofmorethan24hectares
ToanyFilipinocitizenovertheageof
Musthaveresidedcontinuouslyforatleast1yearinthemunicipalitywherethe
18yearsorheadofafamily
landissituated
Musthavecultivatedatleast1/5ofthelandappliedfor
FreePatent
Doesnotownmorethan12hectaresofland
Toanynaturalborncitizenofthe
Hascontinuouslyoccupiedandcultivated,eitherbyhimselforhispredecessorsin
Philippines
interesttract/sofagriculturalpubliclandsubjecttodisposition
SalesPatent
CitizensofthePhilippinesoflawful
Tohaveatleast1/5ofthelandbrokenandcultivatedwithin5yearsfromthedate
ageorsuchcitizensnotoflawfulage
oftheaward
whoisheadofafamilymaypurchase
Shallhaveestablishedactualoccupancy,cultivationandimprovementofatleast
publicagriculturallandofnotmore
1/5ofthelanduntilthedateofsuchfinalpayment
than12hectares
SpecialPatents
TononChristianFilipinosunderSec. Sec.oftheDILGshallcertifythatthemajorityofthenonChristianinhabitantsof
84ofthePublicLandAct anygivenreservationhaveadvancedsufficientlyincivilization

494 CIVILLAWTEAM:

Q:Howarepatentsacquired? 2. Noalienation,transferorconveyanceof
any homestead after five (5) years and
A:By: before twentyfive (25) years after the
1. Succession(testateorintestate) issuance of title shall be valid without
a. Bydescenttitleisacquiredwhen the approval of the Secretary of DENR.
an heir succeeds the deceased (C.A. No. 141 as amended by C.A. No.
owner whether by testate or 458)
intestate. 3. It cannot be alienated within five (5)
b. By devise person acquires land years after approval of such patent
fromonewhomayormaynotbea application.
relative, if he is named in the 4. Itcannotbeliableforthesatisfactionof
deceasedswillasdeviseeforsuch debt within five (5) years after the
property. approvalofsuchpatentapplication.
5. It is subject to repurchase of the heirs
2. Prescription Possession of land for within five (5) years after alienation
requirednumberofyearsandassertion whensuchisalreadyallowed.
ofownershipthroughanuninterrupted 6. No private corporation, partnership or
actualpossessionofpropertywithinthe association may lease such land unless
periodoftimeprescribedbylaw.(Arts. it is solely for commercial, industrial,
712,1134,1137,NCC) educational, religious or charitable
purposes,orrightofway(subjecttothe
LANDPATENTS consentofthegranteeandtheapproval
of the Secretary of the DENR). [The
Q:Howarepubliclandssuitableforagricultural PublicLandAct(C.A.No.141)].
purposesdisposedof?
Q: What are the exceptions to the rule on
A: Public Lands suitable for agricultural purposes restrictions on alienation or encumbrance of
aredisposedasfollows: landstitledpursuanttopatents?
1. homesteadsettlement;
2. sale; A:
3. lease; 1. Actions for partition because it is not a
4. confirmation of imperfect title or conveyance,
incomplete titles either by judicial or 2. Alienations or encumbrances made in
administrativelegalization;or favorofthegovernment.
5. freetitle.
Q: What is the proper action in cases of
Note: When a free patent title is issued to an improperorillegalissuanceofpatents?
applicant and the sea water moves toward the
estate of the title holder, the invaded property A: Reversion suits, the objective of which is the
becomespartoftheforeshoreland.Thelandunder cancellation of the certificate of title and the
theTorrenssystemrevertstothepublicdomainand consequent reversions of the land covered
thetitleisannulled. therebytotheState.

After a free patent application is granted and the
ACCRETION
corresponding certificate of title is issued, the land

ceasedtobepartofthepublicdomainandbecomes
private property over which the Director of Lands
Q:Differentiateaccretionfromalluvium.
hadneithercontrolnorjurisdiction.
A:Alluviumisthesoilimperceptiblyandgradually
Q: What are the restrictions on alienation or deposited on lands adjoining the banks of rivers
encumbrance of lands titled pursuant to causedbythecurrentofthewater.
patents?
Accretion is the process whereby the soil is so
A: deposited.(Pineda,Property,p.124,1999ed)
1. Lands acquired under free patent or
homestead patent is prohibited from
beingalienated,exceptifinfavorofthe
government,5yearsfromandafterthe
issuanceofthepatentorgrant.
495

Q:Whataretherequisitesofaccretion? affected by the Land Registration Act (now
PropertyRegistrationDecree).(Republicv.CAand
A: Tancinco,G.R.No.L61647,Oct.12,1984).
1. The deposit of soil or sediment be
gradualandimperceptible; The properties of Jessica and Jenny, who are
2. It is the result of the current of the neighbors, lie along the banks of the Marikina
waters(river/sea);and River. At certain times of the year, the river
3. Thelandwhereaccretiontakesplaceis would swell and as the water recedes, soils,
adjacent to the banks of rivers or the rocks and other materials are deposited on
seacoast. Jessicas and Jennys properties. This pattern of
the river swelling, receding and depositing soil
Note:Alluvionmustbetheexclusiveworkofnature. and other materials being deposited on the
neighbors properties have gone on for many
Q:Towhomdoesaccretionbelong? years. Knowing this pattern, Jessica constructed
a concrete barrier about 2 meters from her
A:Itdepends. propertylineandextendingtowardstheriver,so
1. Accretions on the bank of a lake that when the water recedes, soil and other
belong to the owners of the estate to materials are trapped within this barrier. After
whichtheyhavebeenadded. several years, the area between Jessicas
2. Accretion on the sea bank still of property line to the concrete barrier was
public domain, and is not available for completelyfilledwithsoil,effectivelyincreasing
private ownership until formally Jessicaspropertyby2meters.Jennysproperty,
declared by the government to be no where no barrier was constructed, also
longer needed for public use (Republic increased by one meter along the side of the
v. Amanda Vda. De Castillo, G.R. No. L river.
69002June30,1988).
Can Jessica and Jenny legally claim ownership
Note:Thelandadjoiningthebankoftheriveristhe over the additional 2 meters and one meter,
principalandthealluvialdepositsalongsuchriparian respectively, of land deposited along their
land constitute the accessory. (Rabuya, Property, p. properties?
262,2007)Accessoryfollowstheprincipal.
A:Jennycanlegallyclaimownershipofthelands
Q: If the area of a nonregistrable land is byrightofaccession(accretion)underArticle457
increased due to accretion, may the alluvial oftheCivilCode.Thelandscameintobeingover
depositsbesubjectedtoprivateownership? the years through the gradual deposition of soil
andsiltbythenaturalactionofthewatersofthe
A: No. Nonregistrable lands (property of public river.
dominion) are outside the commerce of man,
they are not subject to private appropriation. Jessica cannot claim the two meterwide strip of
(AgcaoiliReviewer,p.83,2008ed) land added to her land. Jessica constructed the
cement barrier two meters in front of her
Q:Iftheland,theareaofwhichisincreasedby propertytowardstherivernottoprotectherland
accretion, has already been registered, is there from the destructive forces of the water but to
stillaneedtoregisterthealluvion? trap the alluvium. In order that the riparian
owner may be entitled to the alluvium the
A:Yes.Accretiondoesnotautomaticallybecome deposition must occur naturally without the
registered.Itneedsanewregistration. interventionoftheriparianowner(Republicv.CA
132SCRA514[1984]).
Q: If the land area has been diminished due to
accretion, may the riparian owner claim IfJessicasandJennyspropertiesareregistered,
protectionagainstsuchdiminutionbasedonthe will the benefit of such registration extend to
factofregistrationofhisland? theincreasedareaoftheirproperties?

A: Registration does not protect the riparian A: No, the registration of Jessicas and Jennys
owner against diminution of land through adjoiningpropertydoesnotautomaticallyextend
accretion.Accretionsbecomethepropertyofthe to the accretions. They have to bring their lands
ownersofthebanksandarenaturalincidentsto undertheoperationoftheTorrenssystemofland
land bordering on running streams and the
provisions of the Civil Code thereon are not
496 CIVILLAWTEAM:

registrationfollowingtheprocedureprescribedin REGISTEROFDEEDS
P.D.No.1529.
Q:WhatistheOfficeoftheRegisterofDeeds?
Assume the two properties are on a cliff
adjoining the shore of Laguna Lake. Jessica and A:Itconstitutesapublicrepositoryofrecordsor
Jenny had a hotel built on the properties. They instruments affecting registered or unregistered
had the earth and rocks excavated from the lands and chattel mortgages in the province or
properties dumped on the adjoining shore, citywheresuchofficeissituated.
givingrisetoanewpatchofdryland.Canthey
validlylayclaimtothepatchofland? Note:
Register:bookcontainingalist,record,etc.
A: Jessica and Jenny cannot validly lay claim to Registrar:personwhosedutyistokeeparegister.
the price of dry land that resulted from the Registry:officeorplacewhereregistersarekept.
dumping of rocks and earth materials excavated
from their properties because it is a reclamation Q:WhatisthenatureofthefunctionsoftheRD?
without authority. The land is part of the
lakeshore,ifnotthelakebed,whichisinalienable A:
landofthepublicdomain.(2008BarQuestion) GR:ThefunctionoftheRDwithreferenceto
registration of deeds, encumbrances,
RECLAMATION instruments, and the like is ministerial in
nature.
Q:Whatisreclamation?
XPN: Instances when RD may deny
A: Reclamation is the act of filling up of parts of registration:
theseaforconversiontoland.
1. When there are several copies of the
Note:Itmustbeinitiallyownedbythegovernment. title(coownerstitle)butisonlyoneis
It may be subsequently transferred to private presented with the instrument to be
owners. registered.
2. When the property is presumed to be
Q:Whomayundertakereclamationprojects? conjugal but the instrument of
conveyance bears the signature of only
A: Only the National Government may engage in oneperson.
reclamationprojects. 3. When there is a pending case on court
where the character of the land and
Q:Towhomdoesareclaimedareabelong? validity of the conveyance are in issue.
(Agcaoili, Registration Decree and
A:UndertheRegaliandoctrine,theStateownsall Related Laws, p. 56. 2006; Aquino, p.
waters and lands of the public domain, including 11)
those physically reclaimed. (Agcaoili Reviewer, p. 4. When the instrument is not notarized
110,2008ed) (AgcaoiliReviewer,p.16,2008)

ESCHEAT Note:Adeedofsaleexecutedinaplaceotherthan
where the property is located does not affect
Q: Differentiate action for reversion from extrinsic validity of the instrument as long as the
escheatproceeding. notary public concerned has authority to
acknowledge the document executed within his
territorialjurisdiction.
A:Anactionforreversionisslightlydifferentfrom

escheatproceeding,butinitseffectstheyarethe
Notarial acknowledgment attaches full faith and
same. They only differ in procedure. Escheat credit to the document and vests upon it the
proceedings may be instituted as a consequence presumptionofregularity.
of a violation of the Constitution which prohibits
transfers of private agricultural lands to aliens, Q: Is registration of an instrument by the RD
whereas an action for reversion is expressly ministerial?
authorizedbythePublicLandAct.(Rellosav.Gaw
CheeHun,G.R.No.L1411,Sept.29,1953) A: Yes, it is enough that in the RDs opinion an
instrument is registerable, for him to register it.
The act, being administrative in character, does
497

not contemplate notice to and hearing of LANDREGISTRATIONAUTHORITY
interestedparties.
Q:WhatisLRA?
Q: Will mandamus lie to compel the RD to
register an instrument where a party opposes A:Itisanagencyofthegovernmentchargedwith
suchregistration? the execution of laws relative to the registration
of lands and under the executive supervision of
A:No.MandamusdoesnotlietocompeltheRD DOJ.
to register the deed of sale. Where any party in
interestdoesnotagreewiththeRD,thequestion Note: The authority is headed by an Administrator
shall be submitted to the Commissioner of Land and is assistedby two Deputy Administrators, allof
Registration, where decision on the matter shall whom are appointed by the President of the
be binding upon all RDs. (Almirol v. Register of Philippines upon recommendation of the Secretary
Deeds of Agusan, G.R. No. L22486, Mar. 20, of Justice. (Aquino, Land Registration and Related
1968) Proceedings,p.8,2007)

Q: Is it required that before the RD registers an Q: What are the functions of the LRA
instrument, its validity should first be Administrator?
determined?
A:DRVICES
A: The law on registration does not require that 1. Issues Decrees of registration pursuant
only valid instruments shall be registered. If the tofinaljudgmentsofthecourtsinland
purpose of registration is merely to give notice, registration proceedings and cause the
then questions regarding the effect or invalidity issuance by the Registers of Deeds of
of instrumentsare expected to be decided after, thecorrespondingcertificatesoftitle;
not before registration. It must follow as a
necessary consequence, that registration must 2. Resolves cases elevated en consulta by
first be allowed, and validity or effect, litigated or on appeal from the decision of the
afterwards. RegisterofDeeds;

Q:Almirolpurchasedaparceloflandcoveredby 3. Verify and approve subdivision,
anOCTinthenameofArcenioAbalo,marriedto consolidation and survey plans of
Nicolasa Abalo (deceased). When Almirol went properties titled under Act 496 and PD
to the Registerof Deeds to register thedeedof 1529exceptthosecoveredbyPD957;
sale and to secure in his name a TCT, the RD
refusedsuch,sayingthatitisaconjugalproperty 4. Implements all orders, decisions, and
andthatitisnecessarythatthepropertybefirst decrees promulgated relative to the
liquidated and transferred in the name of the registration of lands, and issue, subject
surviving spouse and heirs by means of to the approval of the Secretary of
extrajudicial settlement of partition. Was the Justice, all needful rules and
RDcorrect? regulations;

A:No.Whetheradocumentisvalidornot,isnot 5. Acts as Clerk of court in land
for the RD to determine, this function belongs registrationproceedings;
properly to a court of competent jurisdiction.
(Almirol v. Register of Deeds of Agusan, G.R. No. 6. Exercises Executive supervision over all
L22486,Mar.20,1968) clerks of court and personnel of the
courts with respect to the discharge of
Q:WhatactionshouldtheRDtakeincaseheis theirdutiesandfunctionsinrelationto
indoubtastowhethertheinstrumentshouldbe theregistrationoflands;and
registeredornot?
7. Exercises Supervision and control over
A: When the RD is in doubt as to the proper all Registers of Deeds and other
action to take on an instrument or deed personneloftheCommission.
presented to him for registration, he should
submit the question to the Administrator of LRA
enconsulta(Sec.117,PD1529).

498 CIVILLAWTEAM:

Q:Whatisappealenconsulta? ruling, he may, without withdrawing the

documentsfromtheRegistry,elevatethematter
A: Where the instrument is denied registration, by consulta within five (5) days from receipt of
the Register of Deeds shall notify the interested notice of the denial of registration to the
party in writing, setting forth the defects of the CommissionerofLandRegistration.(Sec.117,PD
instrument or legal grounds relied upon, and 1529)
advising him that if he is not agreeable to such
Q:WhatarethefunctionsoftheRD,LRAandthecourtsinlandregistration?
A:
RD LRA COURTS
1. Registrationofaninstrument 1. Assistancetothe Jurisdictionover:
presentedforregistration Departmentof
dealingwithrealorpersonal AgrarianReform,the 1. Applicationsfororiginal
propertywhichcomplieswith LandBank,andother registrationoftitleto
therequisitesforregistration agenciesinthe lands,including
implementationofthe improvementsand
2. Seetoitthatsaidinstrument landreformprogram intereststherein
bearstheproperdocumentary ofthegovernment
andstampsandthatthesame 2. Petitionsfiledafteroriginal
areproperlycancelled 2. Assistancetocourtsin registration,withpowerto
ordinaryandcadastral hearanddetermineall
3. Iftheinstrumentisnot landregistration questionsarisinguponsuch
registerable: proceedings applicationorpetitions.

4. denytheregistrationthereof 3. Centralrepositoryof
andinformthepresentorof recordsrelativetothe
suchdenialinwriting,stating originalregistrationof
thegroundorreasontherefore, landstitledunderthe
and Torrenssystem,
includingthe
5. advisinghimofhisrightto subdivisionand
appealbyconsultain consolidationplansof
accordancewithSec.117ofPD titledlands.
1529
4. Adjudicateappealen
6. Prepareandkeepanindex consultacases
systemwhichcontainsthe
namesofallregisteredowners
andlandsregistered
499

TORTSANDDAMAGES ProtectionofHumanDignityEverypersonshall
respect the dignity, personality, privacy and
BOOKITORTS peaceofmindofhisneighborsandotherpersons.
I.PRINCIPLES
Q: What are the requisites for accion in rem
A.ABUSEOFRIGHT;ELEMENTS verso?

Q:Whatistheprincipleofabuseofrights? A:
1. Thatthedefendanthasbeenenriched;
A:Everypersonmust,intheexerciseofhisrights 2. Thattheplaintiffhassufferedaloss;
and in the performance of his duties, act with 3. Thattheenrichmentofthedefendantis
justice, give everyone his due, and observe withoutjustorlegalground
honestyandgoodfaith.(Art.19,NCC) 4. That the plaintiff has no other action
based on contract, quasicontract,
NOTE: This principle is based upon the famous crimeorquasidelict.
maximsuumjussummainjuria(theabuseofaright
is the greatest possible wrong). (Arlegui v. CA G.R. Q:Whenmayaccioninremversobeavailedof?
No.126437,Mar.6,2002)
A: It can only be availed of if there is no other
Q: What are the elements of the principle of remedy to enforce it based on contract, quasi
abuseofrights? contract,crimeorquasidelict.

A: Q: Distinguish accion in rem verso from solutio
1. Legalrightorduty indebiti.
2. The right or duty is exercised in bad
faith,and A:
3. For the sole intent of prejudicing or ACCIONINREMVERSO SOLUTIOINDEBITI
injuringanother Itisnotnecessarythat Paymentbymistakeis
paymentbemadeby anessentialelement
B.UNJUSTENRICHMENT mistake

Q: What is the principle behind the prohibition Q: Is rendition of services included under Art.
againstunjustenrichment? 22?

A: Nemo cum alteris detrimento locupletari A: No. If services were rendered by someone
potestornooneshallunjustlyenrichhimselfat benefiting another, it does not mean that the
theexpenseofanother. latterisexemptedfromindemnifyingtheformer.
TheliabilitywilllieonquasicontractunderArticle
Coverage:thearticleappliesonlyif: 2146.
i. Someone acquires or comes into
possessionofsomethingwhichmeans C.LIABILITYWITHOUTFAULT
deliveryoracquisitionofthings;and
ii. Acquisitionisundueandattheexpense Q: Is Liability Without Fault different with
of another which means without any DamnumAbsqueInjuria?
justorlegalground.
A:Yes.LiabilitywithoutFaultincludes:
NOTE:Thegovernmentisnotexemptedfromthe
a. Strict Liability there is strict liability if
principleofunjustenrichment.
one is made independent of fault,

negligence or intent after establishing
Q:Whatistheremedyforunjustenrichment?
certainfactsspecifiedbylaw.Itincludes

liability for conversion and for injuries
A:AccionInRemVerso.Itisanactionforrecovery
caused by animals, ultrahazardous
ofwhathasbeenpaidwithoutjustcause.
activitiesandnuisance.

b. Product Liability is the law which
NOTE:Thisisonlyasubsidiaryaction.
governs the liability of manufacturers

NOTE: Mistake is not an essential element, as and sellers for damages resulting from
opposed to solutio indebiti where mistake is an defective products. (Aquino, T., Torts
essentialelement. andDamages,2005,SecondEd.)
500
CIVILLAWTEAM:

TORTS AND DAMAGES
Q: What is the concept of Damnum Absque Q: In view of the general sanction provided for
Injuria? under Art. 20, may a person have an absolute
righttobeindemnified?
A: A person who only exercises his legal rights
does no injury. If damages result from such A: No. It is essential that some right of his be
exerciseoflegalrights,theconsequencesmustbe impaired. Without such, he is not entitled to
borne by the injured person alone. The law indemnification.(Pineda,2004)
affordsnoremedyfordamagesresultingfroman
act which does not amount to a legal injury or E.ACTSCONTRARYTOMORALS
wrong.
Q:DifferentiateArticle20fromArticle21ofthe
Q: Is the owner of a property obliged to take CivilCode.
reasonable care towards a trespasser for his
protectionorfromconcealeddanger? A:Article20speaksofthegeneralsanctionforall
other provisions of law which do not especially
A: provide for their own sanction. Article 21 on the
GR:No. other hand, speaks of act which is legal but is
contrarytomorals,goodcustom,publicorderor
XPN: publicpolicyandisdonewithintenttoinjure.
1. Visitors Owners of buildings or
premisesoweadutyofcaretovisitors. NOTE:Anypersonwhowillfullycauseslossorinjury
to another in a manner that is contrary to morals,
2. ToleratedPosessionTheownerisstill goodcustomsorpublicpolicyshallcompensatethe
liable if the plaintiff is inside his latterforthedamage.(Art.21,NCC)
property by tolerance or by implied
permission. Q: What are the elements of acts contra bonus
moresunderArt.21,NCC?
Commoncarriersmaybeheldliablefor
negligencetopersonswhostayintheir A:
premises even if they are not 1. Thereisanactwhichislegal;
passengers. 2. but which is contrary to morals, good
custom, public order, or public policy;
3. DoctrineofAttractiveNuisance and
3. itisdonewithintenttoinjure.
4. State of Necessity (Art. 432) A
situation of present danger to legally Q: When is breach of promise to marry an
protectedinterests,inwhichthereisno actionablewrong?
other remedy than the injuring of
anothers also legally protected A: It becomes actionable if there are additional
interest. circumstancessuchas:
1. therewasfinancialdamage;
D.ACTSCONTRARYTOLAW 2. socialhumiliationwascausedbytoone
oftheparties;and,
Every person who, contrary to law, willfully or 3. where there was moral seduction.
negligently causes damage to another, shall (Aquino,T.,TortsandDamages,Second
indemnifythelatterforthesame.(Art.20,NCC) Ed.,p351)

Q:Doestheabovestatedruleapplytoallcases
violationoflaw?
A: No. Generally, laws provide for their own

sanctions and methods of enforcement thereof.
Article 20 applies only in cases where the law
doesnotprovideforitsownsanction.Saidarticle
provides for a general sanction indemnification
fordamages.(Pineda,2004)
501

II.CLASSIFICATIONOFTORTS b. unjustenrichment(arts.22,23,
2142&2143)
A.ACCORDINGTOMANNEROFCOMMISSION c. violationofrightofprivacyand
familyrelations
Q: What are the classes of torts according to d. derelictionofofficialdutyofpublic
mannerofcommission? officers
e. unfaircompetition
A: f. maliciousprosecution
1. Negligent torts It involves voluntary g. violationofrightsandlibertiesof
acts or omissions which results in injury anotherperson
toothers,withoutintendingtocausethe h. nuisance
same.
III.THETORTFEASOR
2. Intentional torts The actor desires to
cause the consequences of his act or A.THEDIRECTTORTFEASOR
believes the consequences are
substantiallycertaintoresulttherefrom. Q:Whoarethepersonsliableforaquasidelict?

3. StrictliabilityThepersonismadeliable A:Defendantsintortcasescaneitherbenatural
independent of fault or negligence upon orartificialbeings.
submissionofproofofcertainfacts.
Q:Canacorporationbeheldliablefortorts?
4. Constitutional torts The violation of a
persons rights under Article III (Bill of A: Yes. A corporation is civilly liable in the same
Rights) of the 1987 Constitution as manner as natural persons. (PNB v. CA, 83 SCRA
contemplated in Article 32 constitutes 237)
constitutionaltort.
5. NOTE: With respect to close corporations, the
B.ACCORDINGTOSCOPE:GENERALOR stockholders who are personally involved in the
SPECIFIC operation of the corporation may be personally
6. liable for corporate torts under Section 100 of the
1. General the catchall provisions on CorporationCode.
torts provided for in the civil code i.e.
Articles19,20and21.Theeffectisthat RE: Corporation by Estoppel: all persons who
there is a general duty owed to every assume to act as a corporation knowing it to be
person not to cause harm either without authority to do so shall be liable as
willfully or negligently. Articles 19, 20, general partners for all debts, liabilities and
and 21 are provisions on human damagesincurredorarisingasaresultthereof.
relationsthatwereintendedtoexpand
the concept of torts in this jurisdiction With respect to partnerships, the partnership is
by granting adequate legal remedy for solidarily liable with the partner if the latter
the untold number of moral wrongs commit tortuous acts while acting in the pursuit
whichisimpossibleforhumanforesight of partnership business. This principle is
to specifically provide for in the consistent with the mutual agency rule in
statutes. (Aquino, 2005, citing PNB v. partnership.
CA,etal.83SCRA237)
Subject to rules regarding waiver of immunity
2. Specific torts It includes trespass, from suits, defendants may include the State, its
assault and battery, negligence, political subdivisions, and governmentowned
products liability, and intentional andcontrolledcorporations.
infliction of emotional distress. As
defined, torts fall into three different
categories: intentional, negligent and
liability (manufacturing and selling
defective products), product liability
tort.

a. art19,20,21(catchallprovisions)
502
CIVILLAWTEAM:

TORTS AND DAMAGES
B.PERSONSMADERESPONSIBLEFOROTHERS Q: Is the mother liable simultaneously with the

father?
1.INGENERAL
A: No. The law does not make the father and
Q:Whoarethepersonsmaderesponsiblefor mothersimultaneouslyliable.Itisonlyinthecase
others? of death or incapacity of the father, that the
mothermaybeheldliable.
A:
1. Father/motherfortheirminorchildren. NOTE: Consequently, the wife as a codefendant
2. Guardiansareliablefortheminorsand with the husband or if impleaded alone while the
incapacitated persons under their husband isaliveand well, may movetodismissthe
authority. casefiledagainstherforbeingpremature.(Romano
3. Owners/managers of establishment or v.Parinas,101Phil.141)
enterprisefortheiremployees
4. Employers for their employees and Q:Aredefactoguardiansvicariouslyliable?
householdhelpers.
5. Statefortheirspecialagents A: Yes. It is but just that if the children commit
6. Teachers/Heads of establishment of tortuous acts while living with them and are
arts and trades for their below21yearsofage,thelawshouldbeapplied
pupils/students/apprentices (Art. 2180, byanalogy.
NCC).
Note:Defactoguardiansarerelativesandneighbors
Q:Whatisthedifferencebetweenaminorchild who take unto themselves the duty to care and
support orphaned children without passing through
and an incapacitated person in the preceding
judicialproceedings.
number?

Q: What is the rule in vicarious liability of

A: Minors here refer to those who are below
ownersandmanagers?
twentyoneyears(21)andnottothosebelow18

years. While incapacitated persons refer to
A:
personsbeyondtwentyone(21)yearsofagebut
GR:Ameremanager,whodoesnotownthe
areincapacitatedsuchasthosewhoareinsaneor
business, is not to be considered an
imbecile. (Pineda, Torsts and Damages, 2009,
employerbecauseasamanager,heisjusta
p.81)
highclassemployee.

Q:Whataretherequisitesofvicariousliabilityof
XPN: A manager who is not an owner but
parents?
who assumes the responsibility of
supervision over the employees of the

A:
ownermaybeheldliablefortheactsofthe
1. The child is below twentyone (21)
employees.
yearsofage

2. The child committed a tortuous act to
NOTE: To be liable, the manager must be acting as
the damage and prejudice of another an employer of with the same authority as the
person owner.
3. The child lives in the company of the
parent concerned whether single or Q:Whenistheemployerliableforthetortuous
married. actoftheemployee?

Q:Whoisresponsibleforanillegitimatechild? A:TomaketheemployerliableunderArt2180(5
and6),itmustbeestablishedthattheinjuriousor
A:Ifthechildisillegitimateandacknowledgedby tortuous act was committed at the time the
the father and lives with the latter, the father is employeewasperforminghisfunctions.
responsible.However,anillegitimatechildwhois
notrecognizedbytheputativefatherbutisunder Note: If there is deviation from the scope of
the custody and supervision of the mother, it is employment, the employer is not liable, no
thelatterwhoistheonevicariouslyliable. matter how short in time is the deviation.
(Pineda,TorstsandDamages,2009,p.97)

503

Q:Whatistheruleonindependentcontractors? 2. Filing a criminal case: (offender found
guilty)thecivil liabilityoftheemployer
A: issubsidiary.
GR: An independent contractor is not an
employee of the person who engaged his Q: What is the defense for the persons liable
services. The independent contractor is free underArt.2180?
toexecutetheworkwithoutbeingsubjectto
theordersoftheemployeronthedetailsof A: The persons liable shall be exempted from
work. liabilityiftheycanprovethattheyhaveexercised
all the diligence of a good father of a family to
XPN:Iftheemployerretainsthecontroland preventdamage.
supervision over the person engaged with
respect to the work to be done, there is Q: What is the basis of quasidelicts under Art.
between them an employeremployee 2180?
relationship.
A: Pater Familias. The reason for the masters
A.QUASIDELICTSUNDERARTICLE2180, liabilityisthenegligenceinthesupervisionofhis
HOWINTERPRETED subordinates.

Q: How is quasidelict under Art. 2180 Note: The master, however, in pater familias
interpreted? underArt.2180willbefreedfromliabilityifhecan
prove that he had observed all the diligence of a
A: A person or juridical entity is made liable goodfatherofafamily.
solidarilywithatortfeasorsimplybyreasonofhis
relationshipwiththelatter.Therelationshipmay Q: What is the nature of responsibility if the
eitherbeaparentandchild;guardianandward; vicariousobligor?
employerandemployee;schoolandstudent.
A: The liability of the vicarious obligor is primary
NOTE:Art.2176,NCCWhoeverbyactoromission and direct and not subsidiary. He is solidarily
causes damage to another, there being no fault or liablewiththetortfeasor.Hisresponsibilityisnot
negligence is obliged to pay for the damage done. conditioned upon the insolvency of or prior
Such fault or negligence, if there is no preexisting recourseagainstthenegligenttortfeasor.
contractualrelationbetweentheparties,is calleda
quasidelictandisgovernedbytheprovisionsofthis
Chapter. FAMILYCODE

Q: When is the actual tortfeasor not exempted Q: Who is a minor under Art 221 of the Family
fromliability? Code?

A: The minor, ward, employee, special agent, A:ThetermunemancipatedminorfoundinArt
pupil, students and apprentices who actually 221(FC) means children below 18 years of age.
committedthedelictualactsarenotexemptedby Thisisincontrastwiththeminorchildrenfound
thelawfrompersonalresponsibility.Theymaybe in Art 2180(2)(NCC) which refers to children
sued and made liable alone as when the person below21years.Toavoidtheoverlappinginages,
responsible for them or vicarious obligor proves the better option to settle the conflict is to
thatheexercisedthediligenceofagoodfatherof consider Art 221 as totally superseded by Art
afamilyorwhentheminororinsanepersonhas 236(FC)asamendedbyR.A.6809.Thus:
no parents or guardians. In the latter instance,
theyareanswerablewiththeirownproperty. GR: 18 years of age parental authority
ceases(emancipation)
Q:Whataretheremediesofaninjuredpartyfor
thetortuousactofanemployee? XPNS:21yearsofageinthefollowingcases
1. marriage
A: 2. Art.2180(2)NCC
1. Filing a civil action for damages based
on quasidelict under Art. 2180 Note: Art 221. Family Code provides that parents
liability of the employer is primary, andotherpersonsexercisingparentalauthorityshall
directandsolidary becivillyliablefortheinjuriesanddamagescaused
by the act or omission or their unemancipated
504
CIVILLAWTEAM:

TORTS AND DAMAGES
children living in their company and under parental Q: A 15yearold high school student stabs his
authority subject to the appropriate defenses classmate who is his rival for a girl, while they
providedbylaw. were going out of the classroom after their last
class.Whomaybeheldliable?
Q: Distinguish between Articles 218 of the
FamilyCodeand2180oftheNewCivilCode. A: Under Section 218 of the Family Code, the
school, its administrators and teachers, or the
A: individual, entity or institution engaged in child
ARTICLE218 ARTICLE2180 care shall have special parental authority and
School,its responsibility over the minor child while under
Teachers,headof
administrators, their supervision, instruction or custody.
establishmentinarts
teachersengagedin Authority and responsibility shall apply to all
andtradesaremade
childcarearemade authorized activities whether inside or outside
expresslyliable
expresslyliable thepremisesoftheschool,entityorinstitution.
Liabilityofschool,its
administrators, Nosuchexpress Q:Whatdefense,ifany,isavailabletothem?
teachersissolidary solidarynorsubsidiary
andparentsaremade liabilityisstated A: These persons identified by law to be liable
subsidiaryliable mayraisethedefensethattheyexercisedproper
Studentsinvolved Studentsinvolvedare diligencerequiredunderthecircumstances.Their
mustbeaminor notnecessarilyminors responsibility will cease when they prove that
theyobservedallthediligenceofagoodfatherof
Q: Is the application of Article 2180 limited to a family to prevent damage. As regards the
schoolofartsandtrades? employer, if he shows to the satisfaction of the
courtthatintheselectionandinthesupervision
A: No. It applies to all, including academic of his employees he has exercised the care and
institutions. diligence of a good father of a family, the
presumptionisovercomeandheisrelievedfrom
Q:Cantheliabilitybeimputedtotheteacherin liability. (Layugan v. IAC, G.R. No. L49542, Sept.
charge even if the student has already reached 12,1980).(2005BarQuestion)
theageofmajority?

A:Yes.UnderArticle2180,agedoesnotmatter. (1)ELEMENTS;DEFINITION

Q:Isitrequiredthatthestudentbeonlywithin Q:Whataretheelementsofaquasidelict?
the school premises in order for the liability to
ariseunderthisarticle? A:
1. Negligentorwrongfulactoromission;
A: No. Authority and responsibility shall apply to 2. Damageorinjurycausedtoanother;
allauthorizedactivitieswhetherinsideoroutside 3. Causal relation between such
thepremisesoftheschool,entityorinstitution. negligenceorfaultanddamage;
4. Nopreexistingcontractualrelationship
Q: What is the nature of the liability of the between the parties (some authorities
personsenumeratedunderArt.218? believethiselementnotessential).(Art.
2176)
A:Thosegivenauthorityandresponsibilityunder
theprecedingArticle(Art.218)shallbeprincipally Note: Liability for tort may arise even under a
and solidarily liable for damages caused by the contract where tort is that which breaches the
acts or omissions of the unemancipated minor. contract. (Light Rail Transit Authority et al. v.
The parents, judicial guardians or the persons Navidad,etal.,GRNo.145804,Feb.6,2003)
exercising substitute parental authority over said
If there is preexisting contractual relation between
minorshallbesubsidiarilyliable.
the parties and the same is violated, the proper
cause of action is not anchored on quasidelict but

The respective liabilities shall not apply if it is
breachofcontractorculpacontractual.
proved that they exercised proper diligence
required under the particular circumstances (Art However, there may be cases of contractual
219). relations where quasidelict may arise when the
contractwasgrosslyviolated.Thetortliabilityisnot
505

basedonthecontractofcarriagebutonsomeother 1. When there was a preexisting
bases like deliberate and malicious violation of the contractual relation. Otherwise, what
contract(AirFrancev.Carroscoso,G.R.No.L21438, resultsisabreachofcontract.
Sept.28,1966).
Note: However, if the act that breaches
Q:Whenisapersonliableforaquasidelict? the contract is tortuous, the preexisting
contractual relation will not bar the
A: He is liable for such when, by his act or recovery ofdamages (Singson v.BPI, G.R.
omission, he causes damage to another, there No.L24837,June27,1968)
being fault or negligence, and there is no pre
existing contractual relationship between them. 2. When the fault or negligence is
(Art.2176,NCC) punishedbylawasacrime.Art.100of
RPCshallbeapplicable
NOTE:Asingleactoromissionmaygiverisetotwo
or more causes of action. Thus, an act or omission 3. Iftheactionforquasidelictisinstituted
may give rise to an action based on delict, quasi after four (4) years, it is deemed
delictorcontract. prescribed.

In negligence cases, prior conduct should be 4. Whentheinjurysufferedbyapersonis
examined, that is, conduct prior to the injury that theresultofafortuitouseventwithout
resulted,orinpropercase,theaggravationthereof. humanintervention.

Q: When is Art. 2176 (on quasidelict) 5. Ifthereisnodamageorinjurycausedto
inapplicable? another.

A:

(2)DISTINGUISHEDFROMCULPACONTRACTUALANDCULPACRIMINAL

Q:Distinguishquasidelictfromculpacontractualandculpacriminal.

A:
CULPACONTRACTUAL CULPAAQUILIANA CULPACRIMINAL
CivilNegligence,QuasiDelict,
ContractualNegligence CriminalNegligence
Tort,orCulpaExtraContractual
ProofNeeded
Proofofguiltbeyond
Preponderanceofevidence Preponderanceofevidence
reasonabledoubt
OnusProbandi
Victimmustprove:
Contractingpartymustprove:
1. Thedamagesuffered; Prosecutionmustprovethe
1. Theexistenceofthe
2. Thenegligenceofthedefendant; guiltoftheaccusedbeyond
contract;
3. Thecausalconnectionbetweenthe reasonabledoubt.
2. Thebreachthereof.
damageandthenegligence.
DefenseAvailable
Exerciseofextraordinary Exerciseofdiligenceofagoodfatherof
Defensesprovidedforunder
diligence(incontractsof afamilyintheselectionand
theRevisedPenalCode.
carriage),Forcemajeure supervisionofemployees
ExistenceofContractbetweentheParties
Thereispreexistingcontract Nopreexistingcontract Nopreexistingcontract

Note:Theresultinthecriminalcase,whetheracquittal,orconvictionisirrelevantintheindependentcivilaction
undertheCivilCode(DionisiovsAlyendia,102Phil443,57,citedinMckeevsIAC,211SCRA536)unlessacquittalis
basedonthecourtsdeclarationthatthefactfromwhichthecivilactionarosedidnotexist,hencethedismissalof
criminalactioncarrieswiththeextinctionofthecivilliability.(AndamovsIAC,191SCRA204,90J.Fernan)

506
CIVILLAWTEAM:

TORTS AND DAMAGES
B.INDIRECTLIABILITYFORINTENTIONALACTS a. fortheiremployees
b. in the service of the branches in
SeeVicariousLiability. whichtheyareemployed,or;
c. ontheoccasionoftheirfunctions
C.PRESUMPTIONOFNEGLIGENCEONPERSONS 4. Employers:
INDIRECTLYRESPONSIBLE a. damages caused by employees
andhouseholdhelpers
Q:Whatisthepresumptionofnegligenceon b. acting within the scope of their
personsindirectlyresponsible? assignedtasks
c. even if the employer is not
A: The presumption of law is that there was engaged in any business or
negligenceonthepartofthemasteroremployer industry
eitherintheselectionoftheservantoremployee 5. State acting through a special agent
(culpaineligiendo)orinthesupervisionoverhim and not when the damage has been
aftertheselection(culpavigilando),orboth. causedbytheofficialtowhomthetask
doneproperlypertains.
Note:Thepresumptionisjuristantumandnotjuris 6. Teachersorheadsofestablishments:
et de jure; subsequently, it may be rebutted. a. ofartsandtrades
Accordingly, if the employer shows to the b. fordamagescausedbytheirpupils
satisfaction of the court that in the selection and andstudentsorapprentices
supervision of his employee he has exercised the c. so long as they remain in their
care and diligence of a good father of a family, the custody(Art.2180,NCC)
presumption is overcome and he is relieved of the
liability.
Q:Givethedistinctionsontheemployers

liabilityunderArt2180NCCandRevisedPenal
D.NATUREOFLIABILITY;JOINTORSOLIDARY
Code.

Q:Whatistheprincipleofvicariousliabilityor
A:
lawonimputednegligence?
a. Under the Civil Code: the liability is
direct and primary (solidary),the

A:UnderArt.2180,apersonisnotonlyliablefor
employer may be sued even without
tortscommittedbyhim,butalsofortorts
suingtheemployee
committedbyotherswithwhomhehasacertain

relationorforwhomheisresponsible. NOTE: Diligence of a good father is a
defense.
Q: What is the nature of the responsibility of a Employer is liable even if not engaged in
vicariousobligor? business. Proof of negligence is by mere
preponderanceofevidence
A: His liability is primary and direct, not
subsidiary. He is solidarily liable with the b. Under the Revised Penal Code: the
tortfeasor. His responsibility is not conditioned liabilityissubsidiary
upon the insolvency of or prior recourse against
thenegligenttortfeasor(DeLeonBrokeragev.CA, NOTE: Diligence of a good father is not a
G.R.15247,Feb.28,1962) defense.
Must prove employer is engaged in
Q:Whoarethepersonsvicariouslyliable? business.
Proof beyond reasonable doubt is
A:FGOEST required.
1. Father,orincaseofdeathorincapacity,
mother: 2.INPARTICULAR
a. damagecausedbyminorchildren
b. livingintheircompany A.PARENTS
2. Guardians:
a. for minors or incapacitated Q: What is the basis of the parents vicarious
persons liability?
b. undertheirauthority
c. livingintheircompany A: This liability is made natural as logical
3. Owners and managers of consequencesofthedutiesandresponsibilitiesof
establishments: parents exercising parental authority which
507

includes controlling, disciplining and instructing C.OWNERSANDMANAGERSOF
their children. In this jurisdiction the parents ESTABLISHMENTSANDENTERPRISES
liability is vested by law (NCC and FC) which
assumes that when a minor or unemancipated Q: In what sense do the terms owners and
childlivingwiththeirparent,commitsatortuous managersused?
act, the parents are presumed negligent in the
performance of their duty to supervise the A:Theyareusedinthesenseofemployerand
children under their custody. A presumption donotincludethemanagerofacorporationwho
which juris tantum, not juris es de jure, himselfisjustanemployee(Phil.RabbitBusLines
rebuttableovercome by proof having exercised v. Phil. American Forwarders, Inc., G.R. No. L
andobservedallthediligenceofagoodfatherof 25142,Mar.25,1975).
a family (diligentissimi patris familias). (Tamagro
vsCA,209SCRA519) Q: What is the extent of liability for damage of
ownersandmanagersofestablishments?
Q: In the event of death or incapacity of the
parents, who are liable for acts or omissions of A: They are liable for damage caused by their
minors? employeesintheserviceofthebranchesinwhich
they are employed, or on the occasion of their
A: In default of the parents or a judicially functions.
appointed guardian, parental authority shall be
exercised by the following persons in the order D.EMPLOYERS
indicated:
1. Survivinggrandparents; (1)MEANINGOFEMPLOYERS
2. Oldest sibling, over 21 years old unless
unfitorunqualified; Q:Whoisanemployer?
3. Childs actual custodian, over 21 years
oldunlessunfitordisqualified. A:Employerincludesanypersonactingdirectlyor
indirectly in the interest of an employer in
Note: Judicially adopted children are considered relation to an employee and shall include the
legitimate children of their adopting parents. Thus, governmentandallitsbranches,subdivisionsand
adoptersarecivillyliablefortheirtortuous/criminal instrumentalities, all governmentowned or
actsifthechildrenlivewiththemandareminors. controlled corporations and institutions, as well
as nonprofit private institutions, or
Asforanillegitimatechild,ifheisacknowledgedby organizations.(Art.97,P.D.442)
thefatherandlivewiththelatter,thefathershallbe
responsible.However,ifheisnotrecognizedbythe
(2)REQUISITES
putative father but is under the custody and

supervisionofthemother,itisthelatterwhoisthe
onevicariouslyliable(Pineda,p.87,2009ed).
Q:Whenisanemployerliable?

B.GUARDIAN A:Theemployerisliableonlyiftheemployeewas
performing his assigned task at the time the
Q:Whoisaminorunderthisarticle? injury was caused. This includes any act done by
theemployeeinthefurtheranceoftheinterestof
A: Minors here refer to those who are below the employer at the time of the infliction of the
twentyone(21)yearsandnottothosebelow18 injuryordamage.(Aquino,T.,TortsandDamages,
years.Thelawreducingthemajorityagefrom21 2005,SecondEd.,p697)
to18yearsdidnotamendtheseparagraphs.(Art.
236 Family Code as amended by RA No. 6809) (A)EMPLOYEECHOSENBYEMPLOYEROR
(Pineda,pp.8182,2009ed.) THROUGHANOTHER

Q:AredefactoguardianscoveredbyArt.2180? Q:Whatisrequiredbeforeanemployermaybe
heldliablefortheactofitsemployees?
A:Yes,thelawshouldbeappliedbyanalogy.De
facto guardians are relatives and neighbors who A:
take upon themselves the duty to care and 1. The employee was chosen by the
support orphaned children without passing employer personally or through
through judicial proceedings. (Pineda, p.88, 2009 another;
ed.)
508
CIVILLAWTEAM:

TORTS AND DAMAGES
2. The service is to be rendered in employees.(LRTAv.Navidad,G.R.145804,Feb.6,

accordance with orders which the 2003)
employer has the authority to give all
times; (3)EMPLOYERNEEDNOTBEENGAGEDIN
3. Thattheelicitactoftheemployeewas BUSINESSORINDUSTRY
on the occasion or by reason of the
functionsentrustedtohim. Q:Isitrequiredthattheemployerisengagedin
somekindofindustryorwork?
Note: Before the employers subsidiary liability is
exacted,theremustbeproofthat: A: No. Negligent acts of employees, whether or
1. they are indeed the employers of not the employer is engaged in a business or
theconvictedemployee industry,arecoveredsolongastheywereacting
2. theformerareengagedinsomekind within the scope of their assigned task. For,
ofindustry admittedly,employeesoftentimesweardifferent
3. the crime was committed by the hats.Theyperformfunctionsbeyondtheiroffice,
employees in the discharge of their
title or designation but which, nevertheless, are
duties
still within the call of duty. ( Castilex Industrial
4. that the execution against the latter
has not been satisfied due to
Corporationv.Vasquez.,etal.)
insolvency.
(4)DEFENSEOFDILIGENCEINSELECTIONAND
(B)SERVICESRENDEREDINACCORDANCEWITH SUPERVISION
ORDERSWHICHEMPLOYERHASAUTHORITYTO
GIVE Q: What are the defenses available to an
employer?
Seediscussionbelow.
A:
(C)ILLICITACTOFEMPLOYEEWASONTHE 1. Exercise of due diligence in the
OCCASIONORBYREASONOFTHEFUNCTIONS selection and supervision of its
ENTRUSTEDTOHIM employees(exceptincriminalaction);
2. The act or omission was made outside
Q:Isitrequiredthattheemployeemustbe working hours and in violation of
performinghisassignedtaskatthetimethatthe companysrulesandregulations.
injuryiscaused?
Q:Whataretheremediesoftheinjuredpartyin
A: Yes. The vicarious liability of employers pursuingthecivilliabilityoftheemployerforthe
attaches only when the tortuous conduct of the actsofhisemployees?
employee relates to, or is in the course of his
employment.(Valenzuelav.CA) A:
1. If he chooses to file a civil action for
Itisnotnecessarythatthetaskperformedbythe damages based on quasidelict under
employee is his regular job or that which was Article 2180 and succeeds in proving
expressly given to him by the employer. It is the negligence of the employee, the
enough that the task is indispensable to the liability of the employer is primary,
business or beneficial to the employer. (Filamer directandsolidary.Itisnotconditioned
ChristianInstitutev.IAC,212SCRA637) on the insolvency of the employee
(Metro Manila Transit Corp. v. CA, G.R.
(D)PRESUMPTIONOFNEGLIGENCE No.118069,Nov.16,1998).

Q:Whatisthepresumptiononthenegligenceof 2. If he chooses to file a criminal case
theemployer? against the offender and was found
guilty beyond reasonable doubt, the
A:Theemployerispresumedtobenegligentand civil liability of the employer is
thepresumptionflowsfromthenegligenceofthe subsidiary.Theemployercannotuseas
employee. Once the employees fault is a defense the exercise of the diligence
established, the employer can then be made ofagoodfatherofafamily.
liable on the basis of the presumption that the
employer failed to exercise diligentissimi patris Once there is a conviction for a felony,
families in the selection and supervision of its final in character, the employer under
509

Article 103 of the RPC, is subsidiary Q:WhataretheaspectsofliabilityoftheState?
liable, if it be shown that the
commission thereof was in the A:
discharge of the duties of the 1. Public/GovernmentalwheretheState
employee. A previous dismissal of an isliableonlyforthetortuousactspfits
action based on culpa aquiliana could specialagents.
notbeabartotheenforcementofthe 2. Private/Nongovernmental when the
subsidiary liability required by Art. 103 State is engaged in private business or
RPC. (Jocson, et al. v. Glorioso, G.R. L enterprise, it becomes liable as an
22686, Jan. 30, 1968) (Pineda, pp. 101 ordinaryemployer.
102,2009ed.)
Note:Ifthespecialagentisnotapublicofficialand
Q: Would the defense of due diligence in the is commissioned to perform nongovernmental
selection and supervision of the employee functions, then the State assumes the role of an
availabletotheemployerinbothinstances? ordinaryemployerandwillbeheldliableassuchfor
the tortuous acts of said agent. If the State
A: The defense of diligence in the selection and commissioned a private individual to perform a
supervisionoftheemployeeunderArticle2180of special governmental task, it is acting through a
specialagentwithinthemeaningoftheprovision.
theCivilCodeisavailableonlytothoseprimarily

liable thereunder, but not to those subsidiary
F.TEACHERSANDHEADSOFESTABLISHMENTS
liable under Article 103 of the Revised Penal
OFARTSANDTRADES
Code.(Yumulv.Juliano,G.R.No.47690,Apr.,28,

1941)(1997BarQuestion)
Q: What is the basis of the teachers vicarious

liability?
(5)NATUREOFEMPLOYERSLIABILITY

A: The basis of the teachers vicarious liability is,
Q: What is the nature of the employers
as such, they acting in Loco Parentis (in place of
vicariousliability?
parents). However teachers are not expected to

have the same measure of responsibility as that
A:IfbasedonculpaaquilianaunderArt.2176and
imposed on parent for their influence over the
2180 of the Civil Code, the liability is primary,
childisnotequalindegree.Theparentcaninstill
while that under Art. 103 of the Revised Penal
more lasting discipline more lasting disciple on
Codeissubsidiary.
thechildthantheteacherandsoshouldbeheld

to a greater accountability than the teacher or
E.STATE
theheadforthetortcommittedbythechild.

Q: When is the State liable for the acts of
Q: When are teachers and heads of schools
others?
liable?

A:TheStateisonlyliableforthenegligentactsof
A:
itsofficers,agentsandemployeeswhentheyare
GR: The teacherincharge is liable for
actingasspecialagents.TheStatehasvoluntarily
theactsofhisstudents.
assumed liability for acts done through special

agents.
XPN: In the case of establishments of

NOTE: The State assumes the role of an ordinary
arts and trades, it is the head thereof,
employer and will be held liable for the special and only he, who shall be liable.
agentstorts(FontanillavsMalianan) (AmadoravCA,160SCRA315)

Q:Whoisaspecialagent? Note: There is really no substantial difference
distinctionbetweentheacademicandnonacademic
schoolsinsofarastortscommittedbytheirstudents
A: A special agent is one who receives a definite
areconcerned.Thesamevigilanceisexpectedfrom
and fixed order or commission, foreign to the
theteacheroverthestudentundertheircontroland
exerciseofthedutiesofhisoffice. supervision, whatever the nature of the school
whereheisteaching.
An employee who on his own responsibility
performs functions inherent in his office and
naturallypertainingtheretoisnotaspecialagent

510
CIVILLAWTEAM:

TORTS AND DAMAGES
Q: When is a student considered in the custody V.PROXIMATECAUSE

oftheschoolauthorities?
A.CONCEPT
A: The student is in the custody of the school
authoritiesaslongasheisunderthecontroland 1.DEFINITION
influence of the school and within its premises,
whether the semester has not ended, or has Q:Whatisproximatecause?
endedorhasnotyetbegun.Thetermcustody
signifiesthatthestudentiswithinthecontroland A: An act from which an injury results as a
influenceoftheschoolauthorities.Theteacherin natural, direct, uninterrupted consequence and
charge is the one designated by the dean, without which the injury would not have
principal, or other administrative superior to occurred.
exercisesupervisionoverthepupilsorstudentsin
the specific classes or sections to which they are 2.TEST
assigned. It is not necessary that at the time of
theinjury,theteacherisphysicallypresentandin Q: What are the tests to determine whether a
apositiontopreventit. causeisproximate?

A:
C.JOINTTORTFEASORS 1. CauseInFactTestItisnecessarythat
thereisproofthatdefendantsconduct
Q:Whoarejointtortfeasors? isafactorincausingplaintiffsdamage.
Determines whether the defendants
A: All the persons who command, instigate, act or omission is a causally relevant
promote, encourage, advice, countenance, factor
cooperate in, aid, or abet the commission of a
tort,orwhoapproveitafteritisdone,ifdonefor a. ButForTest/SineQuaNonTest
theirbenefit;theyareeachliableasaprincipal,to b. SubstantialFactorTest
the same extent and in same manner as if they c. Necessary and Sufficient Test
haveperformedthewrongfulactthemselves. (NESS) The act or omission is a
causeinfact if it is a necessary
elementofasufficientset.
IV.ACTOROMISSIONANDITSMODALITIES
2. Policy test The law limits the liability
A.CONCEPTOFACT of the defendant to certain
consequences of his action; if the
Q:Whatisanact? damage or injury to the plaintiff is
beyondthelimitoftheliabilityfixedby
A: Any bodily movement tending to produce law,thedefendantsconductcannotbe
some effect in the external world, it being considered the proximate cause of the
unnecessarythatthesamebeactuallyproduced, damage.
as the possibility of its production is sufficient.
(Peoplev.Gonzales,183SCRA309,324) NOTE:Suchlimitofliabilityisdetermined
by applying these subtests of the policy
test:
a. ForeseeabilityTest;
b. Natural and Probable Consequence
Test;
c. Natural and Ordinary or Direct
ConsequencesTest;
d. HindsightTest;
e. OrbitofRiskTest;
f. SubstantialFactorTest.

511

3.DISTINGUISHEDFROMIMMEDIATECAUSE,INTERVENINGCAUSE,REMOTEANDCONCURRENT
Q:Distinguishproximate,immediateinterveningremoteandconcurrentcauses.

A:
PROXIMATECAUSE INTERVENINGCAUSE REMOTECAUSE CONCURRENTCAUSE
Itisthecausewhich,in Onethatdestroysthe
causalconnectionbetween Causesbroughtaboutby
naturalandcontinuous
Thatcausewhichsome theactsandomissionsof
sequence,unbrokenby thenegligentactandinjury
andtherebynegatives independentforcemerely thirdpersonswhichmakes
anyefficientintervening
liability. tookadvantageofto thedefendantstillliable.
cause,producesthe
accomplishsomethingnot Here,theproximatecause
injury,andwithoutwhich
Note:ForeseeableIntervening thenaturaleffectthereof. isnotnecessarilythesole
theresultwouldnothave
causescannotbeconsidered causeoftheaccident
occurred. sufficientinterveningcauses

B.CAUSEINFACT C.LEGALCAUSE

1.BUTFOR 1.NATURALANDPROBABLECONSEQUENCES

Q:Whatisthebutfortest? Q:Explainnaturalandforeseeabletest.

A:Itconsiderswhethertheinjurywouldnothave A: Where the defendants liability is recognized
occurred but for the defendant's negligent act. only if the harm or injury suffered is the natural
Defendants conduct is the cause in fact of the andprobableconsequenceofhisactoromission
injuryifthedamagewouldnothaveresultedhad complainedof.(Banzonv.CA,175SCRA297)
there been no negligence on the part of the
defendant. 2.FORESEEABILITY

2.SUBSTANTIALFACTORTEST Q:Explaintheforeseeabilitytest.

Q:Whatisthesubstantialfactortest? A: Where the particular harm was reasonably
foreseeable at the time of the defendants
A:It makes the negligent conduct the causein misconduct,hisactoromissionisthelegalcause
factofthedamageifitwasasubstantialfactorin thereof. To be negligent, the defendant must
producing the injuries. It is important in cases haveactedorfailedtoactinsuchawaythatan
wherethereareconcurrentcauses ordinary reasonable man would have realized
that certain interests of certain persons were
3.CONCURRENTCAUSES unreasonably subjected to a general but definite
class of risk which made the actors conduct
Q:Whatistheprincipleofconcurrentcauses? negligent,itisobviouslytheconsequenceforthe
actormustbeheldlegallyresponsible.
A: Where the concurrent or successive negligent
acts or omissions of two or more persons, D.EFFICIENTINTERVENINGCAUSE
although acting independently, are in
combinationwiththedirectandproximatecause Q:Whatisanefficientinterveningcause?
rd
of a single injury to a 3 person, and it is
impossible to determine what proportion each A:Itisonewhichdestroysthecausalconnection
contributed to the injury, either of them is between the negligent act and the injury and
responsibleforthewholeinjury,eventhoughhis thereby negatives liability (novus actus
actalonemightnothavecausedtheentireinjury. interviens).

Q:Whenistherenoefficientinterveningcause?

A: If the force created by the negligent act or
omissionhaveeither:
1. remainedactiveitself;

512
CIVILLAWTEAM:

TORTS AND DAMAGES
2. created another force which remained Note:Thereisadifferentruleincaseofcollisionof

activeuntilitdirectlycausedtheresult; vessels.
or
3. createdanewactiveriskofbeingacted Q:Whataretheinstanceswhenthedoctrineof
upon by the active force that caused lastclearchanceisinapplicable?
theresult
A:
E.CAUSEVS.CONDITION 1. The party charged is required to act
instantaneously, and the injury cannot
Q:Distinguishcauseandcondition. be avoided by the application of all
means at hand after the peril is or
A:Causeistheactiveforcewhileconditionisthe should have been discovered;
passivesituation.Theformeristheactivecause (Pantranco North Expressway v. Baesa,
of the harm and the latter is the existing G.R.Nos.7905051,Nov.14,1989)
conditionsuponwhichthecauseoperated.
2. If the defendants negligence is a
Note:Ifthedefendanthascreatedonlyapassive concurrentcauseandwhichwasstillin
staticconditionwhichmadethedamagepossible, operationuptothetimetheinjurywas
thedefendantissaidnottobeliable. inflicted;

F.LASTCLEARCHANCE 3. Where the plaintiff, a passenger, filed
an action against a carrier based on
Q:Whatisthedoctrineoflastclearchance? contract; (Bustamante v. CA, G.R. No.
89880,Feb.6,1991)
A: The contributory negligence of the party
injuredwillnotdefeattheclaimfordamagesifit 4. If the actor, though negligent, was not
is shown that the defendant could, by the aware of the danger or risk brought
exercise of reasonable care and prudence, have about by the prior fraud or negligent
avoided the consequences of the negligence of act;
theinjuredparty.
5. In case of a collapse of a building or
Q:Whataretherequisitesofthedoctrineoflast structure. (De Roy v. CA, G.R. No. L
clearchance? 41154, Jan. 29, 1988) (Pineda, p.60,
2009ed.)
A:
1. Both plaintiff and defendant were Q:Whatarethealternativeviewsregardingthe
negligent. (This is an exception to doctrineoflastclearchance?
concurrentnegligencerule);
2. Plaintiff was in a position of danger by A:
hisownnegligence; 1. Prevailing view: The law is that the
3. Defendantknewofsuchpositionofthe person who has the last fair chance to
plaintiff; avoid the impending harm and fails to
4. Defendant had the last clear chance to do so is chargeable with the
avoid the accident by exercise of consequences,withoutreferencetothe
ordinarycarebutfailedtoexercisesuch priornegligenceoftheotherparty.
lastclearchance;
5. Accident occurred as proximate cause 2. Minority view: The last clear chance
ofsuchfailure. doctrine is inapplicable in Philippine
jurisdiction in determining the
Q:Isthedoctrineoflastclearchanceapplicable proximatecauseoftheaccident.
incaseofcollision?
3. Third view: That the doctrine of
A: Yes. In case of collision, it applies in a suit comparative negligence and the last
between the owners and drivers of colliding clear chance doctrine are not
vehicles and not where a passenger demands inconsistentwitheachother.
responsibility from the carrier to enforce its
contractualobligations.
513

VI.LEGALINJURY C.VIOLATIONOFRIGHTORLEGALINJURY

A.CONCEPT Q:Whataretheavailableremediesforaperson
whoserightshavebeenviolated?
Q:Whatisinjuryasdistinguishedfromdamage?
A: Legal remedies are either preventive or
A:Injuryistheillegalinvasionofalegalright compensatory.Everyremedyinacertainsenseis
whiledamageistheloss,hurtorharm.Injury preventive because it threatens certain
referstoanyindeterminaterightorproperty,but undesirable consequences to those who violate
alsotohonorandcredit. therightsofothers.

B.ELEMENTSOFRIGHT Theprimarypurposeofatortactionistoprovide
compensationtoapersonwhowasinjuredbythe
Q:Whatisaright? tortuous conduct of the defendant. The remedy
of the injured person is therefore primarily an
A: It is a legally enforceable claim of one person action for damages against the defendant.
against another, that the other shall do a given (Aquino,p.20,2005ed.)
act,orshallnotdoagivenact(Pineda,Persons,p.
23)
D.CLASSESOFINJURY
Q:Whatarethekindsofrights?Distinguish.
1.INJURYTOPERSONS
A:
1. Natural Rights Those which grow out Q:Whatarethetortscommittedagainst
ofthenatureofmananddependupon persons?
personality.
A:
E.g. right to life, liberty, privacy, and 1. assault,
goodreputation. 2. battery,
3. falseimprisonment,
2. PoliticalRightsConsistinthepowerto 4. intentional infliction of emotional
participate, directly or indirectly, in the distress,and
establishment or administration of 5. fraud
government.
2.INJURYTOPROPERTY
E.g. right of suffrage, right to hold
publicoffice,rightofpetition. Q:Whatarethetortscommittedagainst
property?
3. Civil Rights Those that pertain to a
person by virtue of his citizenship in a A:
stateorcommunity. 1. trespasstoland,
2. trespasstochattels,and
E.g. 3. conversion.
1. propertyrights,
2. marriage, 3.INJURYTORELATIONS
3. equalprotectionoflaws,
4. freedom of contract, trial by Q:Whatarethetortsthatcauseinjuryto
jury.(Pineda,Persons,p.24) relations?
5. Rights of personalty or human
rights; A:
6. Familyrights;and 1. Familyrelations
7. Patrimonialrights: a. Alienationofaffection
i.Realrights b. Lossofconsortium
ii. Personal rights. (Rabuya c. Criminalconversation(adultery)
Persons,p.19) 2. Socialrelations
a. Meddlingwithordisturbingfamily
relations

514
CIVILLAWTEAM:

TORTS AND DAMAGES
b. Intriguingtocauseanothertobe a. Appropriation
alienatedfromhisfriends b. Intrusion
3. Economicrelations c. publicdisclosureofprivatefacts
a. Interferencewithcontractual d. falselightinthepubliceye
relations 4. Disturbanceofpeaceofmind
b. Unfaircompetition 5. Maliciousprosecution
4. Politicalrelations 6. Defamation
a. Violationofrighttosuffrage
b. Violationofotherpoliticalrights B.INTERFERENCEWITHRELATIONS
(freedomofspeech,press,
assemblyandpetition,etc.) SeeInjurytoRelations.

B.INTERFERENCEWITHRIGHTSTOPERSONS
VII.INTENTIONALTORTS ANDPROPERTY

A.GENERAL 1.INTENTIONALPHYSICALHARMS

1.CONCEPT A.GENERAL

Q:Whatisintentionaltort? (1)CONCEPT

A:Tortorwrongperpetratedbyonewhointends (2)KINDS
to do that which the law has declared wrong as
contrastedwithnegligenceinwhichthetorfeasor B.VIOLATIONOFPERSONSSECURITY,PHYSICAL
failstoexercisethatdegreeofcareindoingwhat INJURIES
is otherwise permissible (Blacks Law Dictionary,
th
6 edition,p.1489). (1)BATTERY(PHYSICALINJURY)

Note: Intentional torts are those which involve Q:Whatisbatteryasabasisfortortliability?
maliceorbadfaith.
A: It is the intentional, unprivileged, and either
2.CLASSES harmful or offensive contact with the person of
another.
A.INTERFERENCEWITHPERSONSAND
PROPERTY NOTE: Atcommon law,batteryis thetortof
intentionally and voluntarily bringing about an
(1)PHYSICALHARMS unconsented harmful or offensive contact with a
person or to something closely associated with
Q:Whatthekindsofphysicalharms? them.

A: Q: When is a person liable for tort based on
1. Violation of persons security, physical battery?
injuries
a. battery(physicalinjury) A: An actor is subject to liability to another for
b. assault(gravethreat) batteryif:
2. Falseimprisonment(illegaldetention) 1. heactsintendingtocauseaharmfulor
3. Trespasstoland offensivecontactwiththepersonofthe
4. Interferencewithpersonalproperty otherorathirdperson,oranimminent
a. trespasstochattels apprehensionofsuchacontact,and
b. conversion 2. a harmful/offensive contract with the
personoftheotherdirectlyorindirectly
(2)NONPHYSICALHARMS results

Q:Whatthekindsofnonphysicalharms? Q:Whataretheelementsofbattery?

A: A:
1. Violationofpersonaldignity 1. Intent
2. Inflictionofemotionaldistress 2. Harmfuloroffensiveconduct
3. Violationofprivacy 3. Absenceofprivilege
515

Q:Isactualcontactnecessaryinbattery? (2)ASSAULT(GRAVETHREAT)

A: No. Unlikeassault, battery involves an actual Q:Whatisassaultinthecontextoftorts?
contact. The contact can be by one person
(thetortfeasor) of another (the victim), or the A: Itis thetortof acting intentionally and
contactmaybebyanobjectbroughtaboutbythe voluntarily causing the reasonable apprehension
tortfeasor. For example, the intentional contact ofanimmediateharmfuloroffensivecontact.
byacarisabattery.
Q: What are the elements of assault as a basis
NOTE:Unlikecriminallaw,whichrecognizesdegrees fortortliability?
ofvariouscrimesinvolvingphysicalcontact,thereis
butasingletortofbattery.Lightlyflickingaperson's A:
earisbattery,asisseverelybeatingsomeonewitha 1. An act by defendant creating a
tire iron. Neither is there a separate tort for a reasonableapprehensioninplaintiff
batteryofasexualnature. 2. of immediate harmful or offensive
contacttoplaintiff'sperson
Q: What are some rules in determining liability 3. Intent
fortortbasedonbattery? 4. Causation

A: Q: When is an actor liable for tort based on
1. The victim of a battery need not be assault?
awareoftheactatthetimeforthetort
tohaveoccurred. A:Anactorisliableforassaultif:
2. Battery is a form oftrespassto the 1. Heactsintendingtocauseaharmfulor
person and as such no actual damage offensivecontactwiththepersonofthe
(e.g. injury) needs to be proved. Only other, or an imminent apprehension of
proof of contact (with the appropriate suchacontact,and
level of intention or negligence) needs 2. The other is thereby put in such
tobemade. imminentapprehension.
3. Ifthereisanattemptedbattery,butno
actual contact, that may constitute a Note:Assaultrequiresintent.
tortofassault.
4. Battery need not require bodytobody Actual ability to carry out the apprehended contact
contact. Touching an object "intimately isnotnecessary.
connected" to a person (such as an
objectheorsheisholding)canalsobe Q:Whenisanactnotconsideredanassault?
battery.
5. Acontactmayconstituteabatteryeven A:Anactintendedasasteptowardtheinfliction
if there is a delay between the ofafuturecontact,whichissorecognizedbythe
defendant's act and the contact to the other, does not make the actor liable for an
plaintiff'sinjury. assaultundertherule.

Q: What are the defenses in trespass to the Q:Isactualcontactnecessaryinassault?
personwhichareapplicabletobattery?
A:No.Asdistinguishedfrombattery,assaultneed
A: The standard defenses to trespass to the nottoinvolveactualcontactitonlyneedsintent
personare: andtheresultingapprehension.However,assault
1. necessity, requires more than words alone. For example,
2. consent, wielding a knife while shouting threats could be
3. selfdefense,and construed as assault if an apprehension was
4. defenseofothers. created.

Note: Self defense as to battery can consist only of Note: A battery can occur without a preceding
engaginginphysicalcontactwithanotherpersonin assault, such as if a person is struck in the back of
order toprevent theotherperson from themselves the head. Fear is not required, only anticipation of
engaginginaphysicalattack. subsequentbattery.

Privilegeisadefenseforbattery.Defendanthas
burdentoprove.
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TORTS AND DAMAGES
Q:Wheniscontactsaidtobeharmful? 3. the other is conscious of the

confinementorisharmedbyit.
A:Whilethelawvariesbyjurisdiction,contact is
oftendefinedas"harmful"ifitobjectivelyintends D.TRESPASSTOLAND
toinjure,disfigure,impair,orcausepain.
(1)CONCEPT
Q:Whenisanactdeemedtobeoffensive?
Q:Whatistrespasstorealproperty?
A: The act is deemed "offensive" if it would
offend a reasonable persons sense of personal A:Itisatortthatiscommittedwhenaperson
dignity. unlawfullyinvadestherealpropertyofanother.

Q:Inwhatcontextisimminenceunderstoodin Q:Whenmaydamagesbeawardedin
determiningtortliabilityforassault? deprivationofrealproperty?

A: "Imminence" is judged objectively and varies A: Damages may be awarded if the real owner
widelyonthefacts,itgenerallysuggeststhereis was deprived of possession of his property by a
littletonoopportunityforinterveningacts. possessor in bad faith or by a person who does
nothaveanyrightwhatsoeverovertheproperty.
Q:Distinguishapprehensionfromfear.
Note:Damagesmaybeawardedtotherealownerif
A: The state of "apprehension" should be hesufferedsuchdamagesbecausehewasdeprived
differentiated from the general state offear, as of possession of his property by a possessor in bad
apprehension requires only that the person be faith or by a person who does not have any right
aware of the imminence of the harmful or whatsoeverovertheproperty.
offensiveact.
Anybody who builds, plants or sows on the land of
anotherknowingfullwellthatthereisadefectinhis
Q:Whataresomedefensesinassault?
titleisliablefordamages.Theliabilityisinaddition
to the right of the landowner in good faith to

A: Assault can be justified in situations of self appropriate what was built, planted or sown or to
defenseordefenseofathirdpartywheretheact removethesame.
wasdeemedreasonable.Itcanalsobejustifiedin
situations where consent can often be implied Liability for damages under the abovecited
(i.e.sportscompetitions). provisionsoftheRPCandtheNCCrequiresintentor
badfaith.
C.FALSEIMPRISONMENT(ILLEGALDETENTION)
(2)ELEMENTS
Q:Whataretheelementsoffalseimprisonment
asabasisfortortliability? Q:Isintentorbadfaithnecessaryforliabilityto
attach?
A:
1. An act or omission on the part of A:Yes,theRevisedPenalCodeandtheNewCivil
defendant that confines or restrains Coderequiresintentorbadfaith.
plaintiff
2. That plaintiff is confined or restrained Note: Chief Justice Concepcion observed however
toaboundedarea; thattrespassmayevenbecommittedingoodfaith.
3. Intent;and (Republic v. de los Angeles, G.R. L26112, Oct. 4,
4. Causation 1971)

Q: When is an actor liable for false Q:Whatistheextentoftrespasstopersonal
imprisonment? property?

A: Under the law on torts, an actor is liable for A:Inthefieldoftort,trespassextendstoallcases
falseimprisonmentif: where a person is deprived of his personal
1. he acts intending to confine the other propertyevenintheabsenceofcriminalliability.
withinboundariesfixedbytheactor, (Aquino,T.,TortsandDamages,2005,SecondEd.
2. his act directly or indirectly results in P.368)
suchaconfinement,and

517

E.INTERFERENCEWITHPERSONALPROPERTY 1. Prying into the privacy of another's
residence;
(1)TRESPASSTOCHATTELS 2. Meddlingwithordisturbingtheprivate
lifeorfamilyrelationsofanother;
Q:Whatistrespasstochattels? 3. Intriguing to cause another to be
alienatedfromhisfriends;
A:Itiswhereapersontookpossessionofthe 4. Vexing or humiliating another on
propertyofanotherinbadfaith. account of his religious beliefs, lowly
station in life, place of birth, physical
(2)CONVERSION defect, or other personal condition.
(Art.26,NCC)
Q:Whataretheelementsofconversion?
C.INFLICTIONOFEMOTIONALDISTRESS
A:
1. An act by defendant that interferes with Q:Whataretherequisitesforonetobeableto
plaintiff's right of possession in a recover for the intentional infliction of
chattel. emotionaldistress?

2. The interference is so serious that it A:Theplaintiffmustshowthat:
warrantsrequiringdefendanttopaythe
chattel'sfullvalue. 1. The conduct of the defendant was
intentional or in reckless disregard of
Q:Whatmaybeincludedinconversion? theplaintiff;
2. The conduct was extreme and
A:Conversionmayinclude: outrageous;
1. Cases where the defendant deprived 3. There was a causal connection
theplaintiffofpersonalpropertyforthe betweenthedefendantsconductand
purpose of obtaining possession of a theplaintiffsmentaldistress;and
real property, as when a landlord 4. The plaintiffs mental distress was
deprived his tenants of water in order extremeandsevere.
for them to vacate the lot they were
cultivating. Note: Even if there was no intentional infliction of
2. Unjustified deprivation of access to emotionaldistressinonecase,theSCrecognizedthe
property such as unjustified possibilitythat one maybe made liable for thetort
disconnectionofelectricityservice ofintentionalinflictionofemotionaldistress.

2.INTENTIONALNONPHYSICALHARMS Q: What does extreme and outrageous
conductmean?
A.GENERAL
A:Itisconductthatissooutrageousincharacter,
(1)CONCEPT and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded
(2)KINDS as atrocious, and utterly intolerable in civilized
society.
B.VIOLATIONOFPERSONALDIGNITY
Q:Whatdoesemotionaldistressmean?
Q:Whatistherulewithregardtotherightofa
person to his dignity, personality, privacy and A:Itisanyhighlyunpleasantmentalreactionsuch
peaceofmind? as extreme grief, shame, humiliation,
embarrassment, anger, disappointment, worry,
A: Every person shall respect the dignity, nausea, mental suffering and anguish, shock,
personality, privacy and peace of mind of his fright,horror,andchagrin.
neighbors and other persons. The following and
Note: Severe emotional distress in some
similar acts, though they may not constitute a
jurisdictions, refer to any type of severe and
criminal offense, shall produce a cause of action
disabling emotional or mental condition which may
fordamages,preventionandotherrelief: be generally recognized and diagnosed by
professionals trained to do so, including
518
CIVILLAWTEAM:

TORTS AND DAMAGES
posttraumatic stress disorder, neurosis, psychosis, 3. TheRPCmakesacrimethe:

chronicdepression,orphobia. i. violation of secrets by an
officer,
The plaintiff is required to show, among other ii. revelation of trade and
things,thatheorshesufferedemotionaldistressso industrialsecrets,and
severethatnoreasonablepersoncouldbeexpected iii. trespasstodwelling.
toendureit;severityofthedistressisanelementof
thecauseofaction,notsimplyamatterofdamages.
4. Invasion of privacy is likewise an
offenseinspeciallawssuchasthe:
Theplaintiffcannotrecovermerelybecauseofhurt
feelings.Liabilitycannotbeextendedtoeverytrivial
i. antiwiretappinglaw;and
indignity.Theplaintiffmustnecessarilybeexpected ii. secrecy of bank deposits
andrequiredtobehardenedtoacertainamountof act;and
rough language, and to acts that are definitely
inconsiderateandunkind. 5. The Rules of Court provisions on
privilegedcommunication.
Q: Distinguish emotional distress from
defamation. Q: What is the standard to be applied in
determining the existence of a violation of the
A:Anemotionaldistresstortactionispersonalin righttoprivacy?
nature.Itisacivilactionfiledbyanindividualto
assuage the injuries to his emotional tranquility A: The right to privacy is not a guaranty to
duetopersonalattacksonhischaracter. hermitic seclusion. The standard to be applied is
that of a person of ordinary sensibilities. It is
Emotional distress properly belongs to the relativetothecustomsofthetimeandplace,and
reactiveharmprinciplewhiledefamationcallsfor isdeterminedbythenormofanordinaryperson.
theapplicationoftherelationalharmprinciple.
NOTE: The essence of privacy is the right to be let
NOTE:Theprincipleofrelationalharmincludesharm alone.
tosocialrelationshipsinthecommunityintheform
ofdefamationasdistinguishedfromtheprincipleof Q: What is thetwopart test in determining the
reactive harm which includes injuries to individual reasonableness of a persons expectation of
emotionaltranquility. privacy?

Q: What is the so called parasitic damage for A:
emotionaldistress? 1. Whether by his conduct, the individual
hasexhibitedanexpectationofprivacy;
A: These are damages which depend on the and
existenceofanothertort. 2. Whether this expectation is one that
societyrecognizesasreasonable.
D.VIOLATIONOFPRIVACY
Q: What are the four general classes of tort
Q:WhatarethezonesofprivacyundertheNCC, actionsforinvasionofprivacy?
RPC,RulesofCourt,andspeciallaws?
A:
A: 1. appropriation;
1. That every person shall respect the 2. intrusion;
dignity,personality,privacyandpeace 3. publicdisclosureofprivatefacts;and
of mind of his neighbors and other 4. falselightinthepubliceye
persons and any act of a person of
meddling and prying into the privacy (1)APPROPRIATION
of another is punishable as an
actionablewrong; Q:Whatisappropriation?

2. That a public officer or employee or A:Itconsistsofappropriation,forthedefendants
anyprivateindividualshallbeliablefor benefit or advantage, of the plaintiffs name or
damagesforanyviolationoftherights likeness.
and liberties of another person, and
recognizes the privacy of letters and
otherprivatecommunications;
519

Q:Whatdoesthistortprotect? Intrusionandpublicrecords:

A: The tort of commercial appropriation of Generally , there is no intrusion into the right of
likenesshasbeenheldtoprotectvariousaspects privacy of another if the information sought are
of an individuals identity from commercial mattersofpublicrecord.Thisisespeciallytruein
exploitation: case the persons who are invoking the right to
privacy are public officers and the matter
1. name involvedisofpublicconcern.
2. likeness
3. achievements However, if the matter sought to be revealed
4. identifyingcharacteristics doesnotinvolveanythingofpublicconcern,there
5. actualperformances canbeaviolationortherighttoprivacy.
6. fictitious characters created by a
performer (3)PUBLICDISCLOSUREOFPRIVATEFACTS
7. phrases and other things associated
withanindividual. Q:Whatispublicdisclosureofprivatefacts?

(2)INTRUSION A: Consists of a cause of action in publicity, of a
highly objectionable kind, given to private
Q:Whatisintrusion? information about the plaintiff, even though it is
trueandnoactionwouldliefordefamation.
A: Consists in the intrusion upon the plaintiffs
solitudeorseclusion. Q:Whatisviolatedinpublicdisclosureofprivate
Itincludes: facts?
1. pryingintotheprivacyofoneshome;
2. invadinghishome; A:Theinterestsoughttobeprotectedistheright
3. invading ones privacy by looking from to be free from unwarranted publicity, from the
outside; wrongful publicizing of the private affairs and
4. eavesdropping;or activities of an individual which are outside the
5. persistent and unwanted telephone realmoflegitimateconcern.
calls.
Q:Whataretheelementsofpublicdisclosureof
NOTE:Thetortofintrusionuponapersonssolitude privatefacts?
protects a persons sense of locational and
psychologicalprivacy. A:
1. theremustbeapublicdisclosure;
Intrusioninpublicplaces: 2. the facts disclosed must be a private
fact;
Generally, there is no invasion of the right to 3. the matter be one which would be
privacy when a journalist records, photographs, offensive and objectionable to a
or writes about something that occurs in public reasonable person of ordinary
places. sensibilities.

However, while merely watching a person in Q:Whoisapublicfigure?
public places is not a violation, one does not
automatically make public everything that he A: a person who, by his accomplishments, fame
does in public. It should not be tantamount to ormodeofliving,orbyadoptingaprofessionor
harassmentoroverzealousshadowing. callingwhichgivesthepublicalegitimateinterest
in his doings, his affairs, and his character, has
This protection is not limited to public figures. becomeapublicpersonage
Everyoneisprotected.
Q: Is it a tortuous conduct for one to publish
Intrusionandadministrativeinvestigation: factsderivedfromofficialproceedings?

There is no intrusion when an employer A: If the facts published are not declared by law
investigates its employee or when a school tobeconfidential,itisnottortuous.
investigates its student. In the latter case, the
investigation may cover an alleged offense
committedoutsidetheschoolpremises.
520
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TORTS AND DAMAGES
Q: Is a governmental agency or officer tasked RE:Malice:Thepresenceofprobablecausesignifies,

with,andactingin,thedischargeofpublicduties as a legal consequence, the absence of malice.The
vestedwitharighttoprivacy? absenceofmalice,therefore,involvesgoodfaithon
thepartofthedefendant.Thisgoodfaithmayeven
A:No,saidrightbelongsonlytoindividualsacting bebasedonmistakeoflaw.
inaprivatecapacity.
Re: Acquittal: Acquittal presupposes that a criminal
information is filed on court and final judgment is
(4)FALSELIGHTINTHEPUBLICEYE
rendereddismissingthecaseagainsttheaccused.It
is not enough that the plaintiff is discharged on a

Q:Whatisfalselightinthepubliceye? writ of habeas corpus and granted bail. Such
discharge is not considered the termination of the
A:Itisatortcommittedbyputtingapersonina action contemplated to warrant the institution of a
false light before the public. It is a non maliciousprosecutionsuitagainstthoseresponsible
defamatoryfalsehoodinthatafalseimpressionis forthefilingoftheinformationagainsthim.
conveyed.
Nevertheless,itisbelievedthatprioracquittalmay
Q: What is the interest to be protected in this includedismissalbytheprosecutorafterpreliminary
tort? investigation.

A:Theinteresttobeprotectedinthistortisthe Q: What are the elements of malicious
interest of the individual in not being made to prosecution?
appearbeforethepublicinanobjectionablefalse
lightorfalseposition. A:Incriminalcases:

Q: How is false light in the public eye different 1. the fact of the prosecution and the
fromdefamation? further fact that the defendant was
himself the prosecutor, and that the
A:Infalselight,thegravamenoftheclaimisnot action was terminated with an
reputationalharmbutrathertheembarrassment acquittal;
of a person in being made into something he is 2. that in bringing the action, the
not. prosecutor acted without probable
cause;
Publicationindefamationissatisfiedifaletteris 3. the prosecutor was actuated or
sent to a third person; while in false light cases, impelled by legal malice. (Yasona v.
thestatementshouldbeactuallymadepublic. Ramos,G.R.156339,Oct.6,2004)

In defamation, what is published lowers the Note: the term prosecutor includes the
esteeminwhichtheplaintiffisheld.Infalselight complainant who initiated the case; the prosecutor
cases,thedefendantmaystillbeheldliableeven himself; any other public officer authorized to file
if the statements tell something good about the andprosecutethecriminalcase.
plaintiff.
Mere witnesses are not included, but are liable for
falsetestimonyorperjuryfortheirfalsehoods.
E.DISTURBANCEOFPEACEOFMIND

Incivilcases:
SeeEmotionalDistress. 1. the defendant filed a civil action against
theplaintiffpreviously;
F.MALICIOUSPROSECUTION 2. the actionwas dismissed for clear lack of
merit or for being baseless, unfounded,
Q: What is a tort action for malicious andmalicious;
prosecution? 3. the defendant who filed the previous
complaintasplaintiffwasmotivatedbyill
A: It is an action for damages brought by one willorsinisterdesign;
against another whom a a criminal prosecution, 4. the present plaintiff suffered injury or
civil suit, or other legal proceedings has been damage by reason of the previous
instituted maliciously and without probable complaintfiledagainsthim.
cause,aftertheterminationofsuchprosecution,
suitorproceedinginfavorofdefendanttherein.
Note:Maliceandprobablecausemustconcur.
521

Q: When is an action for malicious prosecution phonograph, painting or theatrical or
premature? cinematographicexhibition,oranysimilarmeans.

A:Iftheactionfiledbyapartyisstillpendingtrial, Q:Whatisslander?
thefilingbythedefendantofanactionbasedon
malicious prosecution anchored on the first case A:Anoraldefamation.
is premature. Its dismissal is in order. (Pineda,
2004citingCabacunganv.Corrales,95PHIL919) Q:Whatisslanderbydeed?

Q: Is there liability for malicious prosecution in A: It is a crime committed by any person who
caseasuitisunsuccessful? performs an act that costs dishonor, discredit or
contempt upon the offended party in the
A:None.Themerefilingofasuitdoesnotrender presenceofotherpersonorpersons.
theplaintiffliableformaliciousprosectionshould
he be unsuccessful. Persons should have free Q: Is the imputation of criminal intention
resort to the courts. The law does not impose a libelous?
penaltyontherighttolitigate.(Pineda,2004)
A:No,becauseintenttocommitacrimeisnota
Note:However,therepeatedfilingofacomplaintall violationoflaw.
of which were dismissed, shows malicious
prosecution entitling the injured party to an award (1)DEFENSES
of moral damages. (Pineda, 2004 citing Hawpia v.
CA,20SCRA536) (A)ABSENCEOFELEMENTS

G.DEFAMATION Q: Is the allegation that the offender merely
expresses his opinion or belief a defense in
Q:Whatisdefamationandwhatdoesitcover? defamationcases?

A: Defamation is tarnishing the reputation of Inordertoescapecriminalresponsibility,itisnot
someone;Itisapublicandmaliciousimputation enoughfortheoffendertosaythatheexpresses
of a crime, or of a vice or defect, real or therein no more than his opinion or belief. The
imaginary,oranyact,omission,condition,status, communication must be made in the
or circumstance tending to cause the dishonor, performanceofalegal,moral,orsocialduty.
discredit, or contempt of a natural or juridical
person,ortoblackenthememoryofonewho is Q: What is retraction and what is its effect as
dead. (Art. 353, RPC). It has two regardsliabilityfordefamation?
varieties,slanderandlibel.
A: When a periodical gives currency, whether
Note: Actual damages need not be proved, at least innocently or otherwise, to a false and
wherethepublicationislibelousperse,orwherethe defamatory statement concerning any person, it
amountofdamagesismoreorlessnominal.
isunderbothalegalandmoraldutytocheckthe

propagation of such statement as soon as
Q: What are the elements of defamation as a
practicablebypublishingaretraction.
basisfortortliability?

Retraction may mitigate the damages provided
A:
thatitcontainsanadmissionofthefalsityofthe
1. Defamatorylanguage;
libelous publication and evincea desire to repair
2. oforconcerningtheplaintiff;
thewrongoccasionedthereby.
3. Publication thereof by defendant to a

thirdperson;and
Q: What is the effect if the publication was by
4. Damagetoplaintiff'sreputation.
reasonofanhonestmistake?

Note: Publication is the communication of the
A: It only serves to mitigate liability where the
defamatorymattertosomethirdpersonorpersons.
articleislibelousperse.

Q:Whatislibel?

A: it is a defamation committed by means of

writing, printing, lithography, engraving, radio,
522
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TORTS AND DAMAGES
(B)PRIVILEGE consistentwiththeemployersrighttoprotecthis
interest in seeing to it that his employees are
Q:Ifthedefamatoryimputationsweremadeina performing their jobs with honesty, integrity and
privileged communication, is there liability goodfaith.
therefor?
However, such exercise of the right to terminate
A:None.Anabsolutelyprivilegedcommunication must be consistent with the general principles
is one for which, by reason of the occasion on provided for under articles 19 and 21, NCC. If
which it is made, no remedy is provided for the thereisnoncompliancewithsaidprovisions,the
damagesinacivilactionforslanderorlibel. employer may be held liable for damages. The
right to dismiss an employee should not be
H.FRAUDORMISREPRESENTATION(FORMERLY confused with the manner in which the right is
DECEIT) exercised and the effects flowing therefrom. If
thedismissalisdoneantisociallyoroppressively
Q:Whataretheelementsofmisrepresentation then the employer should be deemed to have
intortscases? violatedarticle1701,NCC(whichprohibitsactsof
oppression by either capital or labor against the
A: other)andarticle21.
1. Affirmative misrepresentation of a
materialfact; An employer may be held liable for damages if
2. Defendant knew that statement being the manner of dismissing the employee is
madewasfalse; contrary to morals, good customs and public
3. Intent; policy. This may be done by false imputation of
4. Causation; misdeedtojustifydismissaloranysimilarmanner
5. Justifiablereliance;and ofdismissalwhichisdoneabusively.
6. Damages
C.INTERFERENCEWITHRELATIONS
I.SEDUCTION
1.GENERAL
Q: When is a defendant liable for damages in
caseofseduction? A.CONCEPT

A:Seduction,byitself,isanactwhichiscontrary B.KINDS
to morals, good customs and public policy. The
defendant is liable if he employed deceit, Q:Whatarethefourkindsofinterference?
enticement, superior power or abuse of
confidence in successfully having sexual A:Interferencewith:
intercoursewithanother.
1. Familyrelations;
Note: There is liability even if there isno breachof 2. Socialrelations;
promisetomarry. 3. Economicrelations;and
4. Politicalrelations.
Q:Whatisincludedinsexualassault?
2.FAMILYRELATIONS
A:Thedefendantwouldbeliableforallformsof
sexual assault. These include rape, acts of A.ALIENATIONOFAFFECTION
lasciviousnessandseduction.
Q:Whatisalienationofaffection?
NOTE: Gender is immaterial in seduction and
sexualassault. A: This consists of depriving one spouse of the
affection,society,companionshipandcomfortof
J.UNJUSTDISMISSAL theother.(Aquino,T.,TortsandDamages,2005,
SecondEd.,p.480)
Q:Whatistheruleondismissalofemployees?
Note: The Family Code imposes on the spouses
A:Itisabasicrulethatanemployerhasarightto the obligation to live together, observe mutual
dismiss an employee in the manner and on the love,respectandfidelity,andrendermutualhelp
grounds provided for under the NCC. If the and support. (Article 68) Interference with such
dismissal is for a valid cause, his dismissal is
523

may result in the tort liability of alienation of even if it results in separation, does not give the
affection. injuredpartyarightofaction.

The gist of the tort is an interference with one In such case, malice must be established and it
spouses mental attitude toward the other and must appear that the defendants acts were the
the conjugal kindness of marital relations controllingcauseofthelossofaffection.
resultinginsomeactualconductwhichmaterially
affectsit. B.LOSSOFCONSORTIUM

Q: In general, what is the scope of the tort Q:Whatislossofconsortium?
alienationofaffections?
A:Aspousehasalegalobligationtolivewithhis
A:Itextendstoallcasesofwrongfulinterference orherspouse.Ifaspousedoesnotperformhisor
inthefamilyaffairsofotherswherebyonespouse her duty to the other, he may be held liable for
isinducedtoleavetheotherspouseortoconduct damages for such omission because the same is
himselforherselfinamannerthatthecomfortof contrarytolaw,moralsandgoodcustoms.
marriedlifeisdestroyed.
Moral damages were awarded because of the
Q: Who may be liable for alienation of wifes refusal to perform her wifely duties, her
affections? denial of consortium and desertion of her
husband.Heractsconstituteawillfulinflictionof
A: The defendant who purposely entices the injury upon her husbands feelings in a manner
spouse of another, to alienate his or her contrarytomorals,goodcustomsorpublicpolicy.
affectionswithhisorherspouse,evenifthereare (Tenchaves v. Escao, G.R. No. L19671, July 26,
no sexual intimacies is liable for damages under 1966)
thisarticle.Likewise,apersonwhopreventedthe
reconciliationofspousesaftertheirseparationis C.CRIMINALCONVERSATION(ADULTERY)
liableforalienationofaffections.
Q:Whenisadulterycommitted?
Note:Itisnotnecessarythatthereisadulteryorthe
spouseisdeprivedofhouseholdservices. A:Adulteryiscommittedbyanymarriedwoman
whoshallhavesexualintercoursewithamannot
Q: What are some cases where there is no tort her husband and by the man who has carnal
liabilityforalienationofaffections? knowledge of her knowing her to be married,
even if the marriage was subsequently declared
A: void.(Art.333,RPC)
1. A woman cannot be made liable for
alienation of the affections of the Note:Concubinageiscommittedbyahusbandwho
husband (of another woman) for being shall:
merely the object of the affections of 1. keepamistressintheconjugaldwelling;
said husband. To be liable, she must 2. have sexual intercourse with her, under
have done some active acts calculated scandalous circumstances, with a woman
to alienate the affections of the nothiswife;or
husband. She must, in a sense, be the 3. cohabit with her in any other place. (Art.
pursuer,notmerelythepursued; 334,RPC)
2. A prostitute is not liable for alienation
Liability for adultery or concubinage based on the
of affections of the husband for having
law on torts: not only moral damages but also for
sexual intimacies with him ona chance
otherappropriatedamages.
occasion.
3. When there is no more affection to Nomoraldamagesisdueincaseofbigamy.
alienate.

Q: May parents be liable for alienation of
affections?

A:Yes.However,parentsarepresumedtoactfor
thebestinterestoftheirchild.Thelawrecognizes
the right of a parent to advise his/her child and
when such advise is given in good faith, the act,
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TORTS AND DAMAGES
3.SOCIALRELATIONS Q:Whatistheextentandnatureoftheliability
oftheintermeddler?
A.MEDDLINGWITHORDISTURBINGFAMILY
RELATIONS A:Hisliabilityissolidaryandcannotbemorethan
the liability that will be incurred by the party in
SeeInterferencewithfamilyrelations. whose behalf he intermeddled. Otherwise, that
willresultininjusticeandunfairness.
B.INTRIGUINGTOCAUSEANOTHERTOBE
ALIENATEDFROMHISFRIENDS Q: Is malice essential to make the intermeddler
liable?
Q:Whomaybeheldliableforthetortintriguing
to cause another to be alienated from his A:
friends? GR:Yes.
XPN: If the intention of the intermeddler is
A: A person who committed affirmative acts honest and laudable such as when the
intendedtoalienatetheexistingfriendshipofone interference is intended to protect the
with his friends is liable for damages. (Pineda, contracting party he is intermeddling for,
2004) fromdangertohislifeorproperty,heshould
not be made liable for damages for the
4.ECONOMICRELATIONS breachofthecontract.

A.INTERFERENCEWITHCONTRACTUAL B.UNFAIRCOMPETITION
RELATIONS
Q:Whatisincludedinunfaircompetition?
Q:Whatisinterferencewithcontract?
A: Art. 28, NCC provides for unfair competition
A: Any third person who induces another to whichincludes:
violatehiscontractshallbeliablefordamagesto 1. Passing off or disparagement of
theothercontractingparties.(Art.1314,NCC) products
2. Interferencewithcontractualrelations
Q:Whyisinterferencewithcontracttortuous? 3. Interference with prospective
advantage
A:Suchinterferenceistortiousbecauseitviolates 4. Fraudulent misappropriation against a
the right of the contracting parties to fulfill the competition
contractandtohaveitfulfilled,toreaptheprofits 5. Monopoliesandpredatorypricing
resulting therefrom, and to compel the
performancebytheotherparty. Q:Whatispredatorypricing?

Q: What are the elements of interference to A: It is a practice of selling below costs in the
contractualrealation? short run in the hope of obtaining monopoly
gainslater,afterdrivingthecompetitionfromthe
A: market.
1. existenceofavalidcontract;
2. knowledge on the part of the third 5.POLITICALRELATIONS
personoftheexistenceofthecontract;
3. interferenceofthethirdpersonwithout A.VIOLATIONOFRIGHTTOSUFFRAGE(NCC,
legaljustificationorexcuse. ART.32)

Q: What is interference with prospective Q: What is the rule in case of violation of the
advantage? righttosuffrage?

A:Ifthereisnocontractyetandthedefendantis A: Under Article 32 NCC, any public officer or
onlybeingsuedforinducinganothernottoenter employee,oranyprivateindividual,whodirectly
into a contract with the plaintiff, the tort orindirectlyobstructs,defeats,violatesorinany
committed is appropriately called interference manner impedes or impairs any of the following
withprospectiveadvantage. rights and liberties of another person shall be
liabletothelatterfordamages:
xxx(5)Freedomofsuffrage;(Art.32,NCC)
525

B.VIOLATIONOFOTHERPOLITICALRIGHTS 2. In determining whether plaintiff
(FREEDOMOFSPEECH,PRESS,ASSEMBLYAND consented, defendant must reasonably
PETITION,ETC.) interpret her overt act and
manifestationsofherfeelings.
SeeViolationofConstitutionalRights
Note: The defendants subjective state is
6.DEFENSES basedontheplaintiffsobjectiveactions.

A.ABSENCEOFELEMENT 3. Plaintiff has burden of proof to show
intent to commit the act, lack of
Q:Whatisthedefenseoninterference? consent,andharm.

A: The defendants are free from liability if they Q: Is consent a defense if the plaintiff or
canprovethatatthetimeofthecommission,the offendedpartyisaminor?
plaintiff knew of the act of interference or
omission. A: No. For one to surrender the right to be free
fromintentionalinterferencebyothers,onemust
B.PRIVILEGE have the mental capacity to consent. Defendant
canbeliabledespitethefactthattheplaintiffwas
Q: What is the defense of privilege in torts subjectively willing and communicated that
cases? willingnesstothedefendant.

A:Tosaythatanactisprivilegedconnotesthat NOTE: In common law countries, most courts have
theactorowesnolegaldutytorefrainfromsuch applied statutory rape statutes in civil cases
contact. regardless of proof that the plaintiff was able to
understand the consequences of her act and
Q: Distinguish consensual and nonconsensual consent.
privilege.
Q: When is consent not necessary in order to
A: Consensual privileges depend on the plaintiff absolve one from the injuries he caused to
agreeing to the defendants otherwise tortious another?
act.Ontheotherhand,nonconsensualprivileges
shield the defendant from liability for otherwise A: Conduct that injures another does not make
tortious conduct even if the plaintiff objects to the actor liable to the other, even though the
thedefendantsconduct. otherhasnotconsentedtoitif:
1. an emergency makes it necessary or
1.CONSENT apparently necessary to act before
there is opportunity to obtain consent
Q:Whenisconsentadefenseintortscasesand or one empowered to consent for him,
whatisitsbasis? and
2. theactorhasnoreasontobelievethat
A:Typically,onecannotholdanotherliableintort theotherwoulddecline.
for actions to which one has consented. This is
frequentlysummarizedbythephrase"volentinon Q: What is the rule if consent is procured by
fitinjuria"(Latin:"toawillingperson,noinjuryis fraudorduress?
done" or "no injury is done to a person who
consents"). It operates when the claimant either A: Consent will not shield the defendant from
expresslyorimplicitlyconsentstotheriskofloss liability if it is procured by means of fraud or
ordamage. duress.

Note: Courts invalidate consent procured by duress
Note: Consent is willingness in fact for the conduct
tooccur. when defendants threatentheplaintiff or plaintiffs
lovedoneswithphysicalharm.

Q:Whataresomerulesindeterminingwhether
consentispresentasadefense?

A:
1. It need not be communicated to the
defendant.
526
CIVILLAWTEAM:

TORTS AND DAMAGES
2.SELFDEFENSEANDDEFENSEOFOTHERS Note: A party claiming selfdefense must prove not

only that he acted honestly in using force, but that
SELFDEFENSE his fears were reasonable under the circumstances,
andthemeansofselfdefensewerereasonable.
Q:Whyisselfdefenseadefenseintortcases?
DEFENSEOFOTHERS
A:Anactorisprivilegedtousereasonableforce,
not intended or likely to cause death or serious Q:Isapersonprotectingatotalstrangerliable?
bodily harm, to defend himself against
unprivileged harmful contract which he A: The selfdefense privilege extends to
reasonably believes that another is about to protectingtotalstrangersaswell.
inflict.
Q:Maytheinterveneruseanymeansoramount
Q: When is an actor privileged to defend offorceindefendingtheother?
himself?
A: No. The force that may be used by an
A:Anactorisprivilegedtodefendhimselfagainst intervener to repel an attack on another is
another by force likely to cause death or serious measured by the force that the other could
bodilyharmwhenhereasonablybelievesthat: lawfullyuse.

1. theotherisabouttoinflictuponhiman Q:Whatistheconsequenceofamistakeonthe
intentionalcontactand partoftheintervener?
2. he is thereby put in peril of death or
seriousbodilyharmwhichcansafelybe A: If the intervener is mistaken, even reasonably
prevented only by immediate use of mistaken, the privilege is unavailable if it would
suchforce. notbeavailabletothepersontobeprotected.

NOTE:Courtrequiresobjectiveandsubjectivebelief NOTE: The interveners mistake need only be
(reasonablepersoncouldhaveseenthesituationas reasonable;thereisnoneedtoshowthatthevictim
dangerous and subject believed that he was in alsohadtheprivilegetodefendhimself.
danger).
3.DEFENSEOFPROPERTY
Q:Whendoestheprivilegeofselfdefenseexist
andwhendoesitnotexist? Q: Up to what extent is an actor privileged to
defendhispropertyfromintrusions?
A: The privilege exists even if the actor believes
hecanavoiddefendinghimselfby: A:Anactorisprivilegedtousereasonableforce,
1. retreatingwithinhisdwellingplace,or not intended or likely to cause death or serious
2. permittingtheothertointrudeuponhis bodily harm, to prevent or terminate anothers
dwellingplace,or intrusionupontheactorslandif:
3. abandoning an attempt to effect a 1. theintrusionisnotprivileged;
lawfularrest. 2. the actor reasonably believes that the
intrusion can be prevented only by the
The privilege does not exist if the actor believes forceused;and
thathecanavoiddefendinghimselfby: 3. the actor has first requested the other
1. retreating in any place other than his to desist or the actor believes such
dwellingplaceor request will be useless or substantial
2. relinquishing the exercise of any right harm will be done before it can be
other than his privilege to prevent made.
intrusionontohisdwellingplace.
Note:Theintentionalinflictionwhichisintendedor
Q: May the actor use any means in order to likelytocausedeathorseriousbodilyharm,forthe
defendhimself? purpose of preventing or terminating the others
intrusion upon the actors possession of land, is
privileged only if the actor reasonably believes that
A:Theactorisnotprivilegedtouseanymeansof
theintruderislikelytocausedeathorseriousbodily
selfdefensewhichisintendedorlikelytocausea
harm.
bodily harm in excess of that which the actor
correctly or reasonably believes to be necessary
forhisprotection.
527

4.NECESSITY 5.AUTHORITYOFLAW

Theownerorlawfulpossessorofathinghasthe C.PRESCRIPTION
righttoexcludeanypersonfromtheenjoyment
and disposal thereof. For this purpose, he may SeeDefenses;Prescription
use such force as may be reasonably necessary
to repel or prevent an actual or threatened D.WAIVER
unlawful physical invasion or usurpation of his
property.(Art.429,NCC) SeePersons:WaiverofRights

Q: Is the owners right provided for in the said E.FORCEMAJEURE
articleanabsoluteright?
Q:Whatarethetwogeneralcausesoffortuitous
A: No. In the following instances, this right may events?
notbeinvokedbytheowner:
A:
1. Onemaysacrificethepersonalproperty 1. Bynature,suchasearthquakes,storms,
ofanothertosavehislifeorthelivesof floods,epidemics,fires,etc.;and
hisfellows; 2. By the act of man, such as an armed
2. One is privileged by necessity to invasion, attack by bandits,
trespass when there is a serious threat governmental prohibitions, robbery,
to life and no other lifesaving option is etc.
available;and
3. The owner of property may not eject a Q: What are the essential characteristics of
trespasser if the trespasser requires fortuitousevent?
entry to protest himself and his
propertyfromharm. A:
1. The cause of the unforeseen and
Note: In these instances, intrusion is said to be unexpectedoccurrence,orofthefailure
privileged. of the debtor to comply with his
obligation,mustbeindependentofthe
Thenecessityprivilegetoenterthelandofanother humanwill;
in order to avoid serious harm is coupled with an 2. It must be impossible to foresee the
obligation on the part of the entrant to pay for event which constitutes the caso
whateverharmhecaused. fortuito,orifitcanbeforeseen,itmust
beimpossibletoavoid;
MISCELLANEOUSPRIVILEGES 3. The occurrence must be such as to
render it impossible for the debtor to
Q: What are the miscellaneous or other fulfillhisobligationinanormalmanner;
privileges in connection with necessity as a and
defense? 4. The obligor must be free from any
participation in the aggravation of the
A: injuryresultingtothecreditor.
1. To at least some extent, teachers and
parentsareexemptfrombatteryclaims Q:Whenisthereliabilityfordamagescausedby
broughtonbehalfofchildrentheyhave fortuitousevents?
physicallydisciplined;
2. Other privileges include those relating A: As an exception to the general rule that a
to the arrest of lawbreakers and the person is not liable if the cause of the damage
prevention of crime, the enforcement was an event which could not be foreseen or
ofmilitaryorders,andtherecaptureof which though foreseen was inevitable
landandpossessions. (fortuitous), if the negligence of the defendant
concurredwiththefortuitouseventorresultedin
Note: The reasonableness of the actors perception
the aggravation of the injury to the plaintiff, he
of the need to use force, as well as the
willbeliableeveniftherewasafortuitousevent.
reasonableness of the harm actually inflicted, are
typicallythetouchstonesuponwhichtheavailability

oftheprivilegeturns. Ifuponthehappeningofafortuitouseventofan
actofGod,thereconcursacorrespondingfraud,
528
CIVILLAWTEAM:

TORTS AND DAMAGES
negligence,delayorviolationorcontraventionof 3. Social Value or Utility of Action Any

the tenor of the obligation as provided for in act subjecting an innocent person to
Article 1170, NCC, which results in loss or unnecessaryriskisanegligentactifthe
damage,theobligorcannotescapeliability. risk outweighs the advantage accruing
to the actor and even to the innocent
personhimself.
VIII.NEGLIGENCE
4. Time of the day May affect the
A.CONCEPT diligence required of the actor (Art.
1173); e.g. a driver is required to
Q:Whatisnegligence? exercisemoreprudencewhendrivingat
night
A:Theomissionofthatdegreeofdiligencewhich
is required by the nature of the obligation and 5. Gravity of the Harm to be Avoided
corresponding to the circumstances of the Eveniftheoddsthataninjurywillresult
persons,ofthetimeandplace.(Art.1173,NCC) are not high, harm may still be
considered foreseeable if the gravity of
Q:Whatisthetestofnegligence? harmtobeavoidedisgreat.
6. Alternative Cause of Action If the
A: The test is: Would a prudent man, in the alternativepresentedtotheactoristoo
position of the tortfeasor, foresee harm to the costly, the harm that may result may
person injured as a reasonable consequence of still be considered unforeseeable to a
the course about to be pursued? If so, the law reasonable man. More so if there is no
imposes a duty on the actor to take precaution alternativethereto.
against its mischievous results, and failure to do
so constitutes negligence. (Picart v. Smith, G.R. 7. Place A man who should occasion to
No.L12219,Mar.15,1918.) discharge a gun on an open and
extensivemarsh,orinaforestwouldbe
Q: What are the degrees of negligence? requiredtouselesscircumspectionand
Distinguish. care, then if he were to do the same
thing in an inhabited town, village or
A: city.
1. Simple negligence want of slight care
anddiligenceonly 8. ViolationofRulesandStatutes
a. Statutes
2. Gross negligence there is a glaringly b. AdministrativeRules
obvious want of diligence and implies c. PrivateRulesofConduct
conscious indifference to
consequences; pursuing a course of 9. PracticeandCustomApracticewhich
conduct which would probably and isdangeroustohumanlifecannotripen
naturallyresulttoinjury;utterdisregard intoacustomwhichwillprotectanyone
oftheconsequences who follows it (Yamada v. Manila
Railroad,G.R.No.10073,Dec.24,1915).

Q:Whatarethecircumstancestobeconsidered Q:Willintoxicationsignifynegligence?
indeterminingwhetheranactisnegligent?
A:
A: GR:Mereintoxicationisnotnegligenceperse
1. Person Exposed to the Risk A higher nor establishes want of ordinary care. But it
degree of diligence is required if the may be one of the circumstances to be
personinvolvedisachild. considered to prove negligence. (Wright v.
ManilaElectricRailroad&LightCo.,GRNo.L
2. EmergencyTheactorconfrontedwith 7760,Oct.1,1914)
an emergency is not to be held up to
the standard of conduct normally XPN: It is presumed that a person driving a
applied to an individual who is in no motorvehicleisnegligentifatthetimeofthe
suchsituation. mishap, he was violating traffic regulations.
(Art.2185)
529

Q:Whatiscontributorynegligence? Q. Does the standard of conduct applied to
adultsapplyequallytochildren?
A: It is conduct on the part of the injured party,
contributing as a legal cause to the harm he has A.
suffered,whichfallsbelowthestandardtowhich GR: The action of a child will not necessarily
heisrequiredtoconformforhisownprotection be judged according to the standard of an
(Valenzuelav.CA,G.R.No.115024,Feb.7,1996). adult.
XPN: If the minor is mature enough to
Q: What is the doctrine of comparative understand and appreciate the nature and
negligence? consequencesofhisactions.Insuchacase,he
shallbeconsideredtohavebeennegligent.
A: The negligence of both the plaintiff and the
defendant are compared for the purpose of Note:R.A.9344(JuvenileJusticeandWelfareActof
reaching an equitable apportionment of their 2006):15yearsofageoryoungerageofabsolute
respective liabilities for the damages caused and irresponsibility.
sufferedbytheplaintiff.(Pineda,p.50,2009ed.)
Note: The relative degree of negligence of the Nevertheless, absence of negligence does not
partiesisconsideredindeterminingwhether,and absolutely excuse the child from liability, as his
properties,ifany,canbeheldsubsidiarilyliable.Nor
to what degree, either should be responsible for
will such absence of negligence excuse the childs
hisnegligence(apportionmentofdamages).
parentsvicariousliability.

Q:Whatisdiligencebeforethefact?
B.GOODFATHEROFAFAMILYORREASONABLY

PRUDENTMAN
A: The conduct that should be examined in

negligencecasesispriorconductorconductprior
Q: What is the concept of a good father of the
totheinjurythatresultedor,inpropercases,the
family(paterfamilias)?
aggravationthereof.

A:TheSupremeCourtdescribedagoodfatherof

afamilybyfirststatingwhoisnot.Heisnotandis

not supposed to be omniscient of the future;

rather, he is one who takes precautions against

anyharmwhenthereissomethingbeforehimto

suggestorwarnhimofthedangerortoforeseeit

(Picartv.Smith,G.R.No.L12406,Mar.15,1918).

Note: A good father of a family is likewise referred

to as the reasonable man, man of ordinary
intelligence and prudence, or ordinary reasonable

prudent man. In English law, he is sometimes
referred to as the man on top of a Clapham
omnibus.(Aquino,2005)

Q:Whatisthetestofnegligence?

A: The test is: Would a prudent man, in the
position of the tortfeasor, foresee harm to the
person injured as a reasonable consequence of
the course about to be pursued? If so, the law
imposes a duty on the actor to take precaution
against its mischievous results, and failure to do
so constitutes negligence. (Picart v. Smith, G.R.
No.L12219,Mar.15,1918.)

530
CIVILLAWTEAM:

TORTS AND DAMAGES
C.STANDARDOFCARE

STANDARDOFCONDUCTorDEGREEOFCAREREQUIRED
InGeneral
If the law or contract does not state the diligence which is to be observed in the performance, that which is
expectedofagoodfatherofafamilyshallberequired(Article1173,2ndparagraph,NCC).
Note:DiligenceofagoodfatherofafamilybonospaterfamiliasAreasonablemanisdeemedtohaveknowledgeofthefactsthat
amanshouldbeexpectedtoknowbasedonordinaryhumanexperience.(PNRv.IAC,GRNo.7054,Jan.22,1993)
PersonswhohavePhysicalDisability
GR:Aweakoraccidentpronepersonmustcomeuptothestandardofareasonableman,otherwise,hewillbe
consideredasnegligent.
XPN:Ifthedefectamountstoarealdisability,thestandardofconductisthatofareasonablepersonunderlike
disability.
ExpertsandProfessionals
GR:Theyshouldexhibitthecaseandskillofonewhoisordinarilyskilledintheparticularfieldthatheisin.

Note:Thisruledoesnotapplysolelyorexclusivelytoprofessionalswhohaveundergoneformaleducation.

XPN:Whentheactivity,byitsverynature,requirestheexerciseofahigherdegreeofdiligence
e.g.Banks;Commoncarriers
InsanePersons
ThesameruleappliesundertheNewCivilCode.Theinsanityofapersondoesnotexcusehimorhisguardianform
liability based on quasidelict. (Arts. 2180 and 2182, NCC). This means that the act or omission of the person
sufferingfrommentaldefectwillbejudgedusingthestandardtestofareasonableman.
Thebasesforholdingapermanentlyinsanepersonliableforhistortsareasfollows:
Whereoneoftwoinnocentpersonmustsufferalossitshouldbebornebytheonewhooccasionedit;
Toinducethoseinterestedintheestateoftheinsaneperson(ifhehasone)torestrainandcontrolhim;and
Thefearthataninsanitydefensewouldleadtofalseclaimsofinsanitytoavoidliability.(Bruenigv.American
FamilyInsuranceCo.,173N.W.2d619[1970]).
Note:UndertheRPC,aninsanepersonisexemptfromcriminalliability.However,byexpressprovisionoflaw,theremaybecivil
liabilityevenwhentheactorisexemptfromcriminalliability.Aninsanepersonisstillliablewithhispropertyfortheconsequences
ofhisacts,thoughtheyperformedunwittingly.(USv.Baggay,Jr.G.R.No.6706,Sept.1,1911)
Employers
ThatdegreeofcareasmandatedbytheLaborCodeorothermandatoryprovisionsforpropermaintenanceofthe
workplaceoradequatefacilitiestoensurethesafetyoftheemployees.
Note:Failureoftheemployertocomplywithmandatoryprovisionsmaybeconsiderednegligenceperse.
Employees
Employeesareboundtoexerciseduecareintheperformanceoftheirfunctionsfortheemployers.Liabilitymaybe
basedonnegligencecommittedwhileintheperformanceofthedutiesoftheemployee(Aranetav.DeJoya,G.R.
No.83491,Aug.27,1990)
Owners,ProprietorsandPossessorsofProperty
GR:Theownerhasnodutytotakereasonablecaretowardsatrespasserforhisprotectionoreventoprotecthim
fromconcealeddanger.
XPN:
1. Visitors
2. ToleratedPossession
3. DoctrineofAttractiveNuisance
4. StateofNecessity
Doctors
IfaGeneralPractitionerOrdinarycareanddiligenceintheapplicationofhisknowledgeandskillinthepracticeof
hisprofession
IfaSpecialistThelegaldutytothepatientisgenerallyconsideredtobethatofanaveragephysician.
Lawyers
An attorney is bound to exercise only a reasonable degree of care and skill, having reference to the business he
undertakestodo(Adarnev.Aldaba,Adm.CaseNo.80,June27,1978).

531

1.NCC,ART.1173 D.UNREASONABLERISKOFHARM

Q: What is the general standard of diligence Q:Indeterminingwhetherapersonhasexposed
providedforundertheNCC? himselftoanunreasonablegreatrisk,whatmust
bepresent?
A:BonusPaterFamiliasorthatofagoodfatherof
afamily. A:Reasonableness,theelementsofwhichareas
follows:
Note: If the law or contract does not state the 3. Magnitudeoftherisk
diligence which is to be observed in the 4. Principalobject
performance, that which is expected of a good 5. Collateralobject
fatherofafamilyshallberequired.(Art.1173(2)) 6. Utilityoftherisk
7. Necessityoftherisk
Q:Whatistheruleincaseoffaultornegligence
ofanobligor? Ifthemagnitudeoftheriskisverygreatandthe
principal object, very valuable, yet the value of
A:Art.1173.Thefaultornegligenceoftheobligor the collateral object and the great utility and
consistsintheomissionofthatdiligencewhichis necessity of the risk counterbalanced those
required by the nature of the obligation and considerations,theriskismadereasonable.
corresponds with the circumstances of the
persons, of the time and of the place. When Note: In the Philippines, the courts do not use any
negligence shows bad faith, the provisions of formulaindeterminingifthedefendantcommitteda
Articles1171and2201,paragraph2,shallapply. negligent act or omission. What appears to be the
normistogivenegligenceacommonsense,intuitive
NOTE:Art.1171.Responsibilityarisingfromfraudis interpretation.
demandable in all obligations. Any waiver of an
actionforfuturefraudisvoid. In the field of negligence, interests are to be
balancedonlyinthesensethatthepurposesofthe
Art. 2201. In contracts and quasicontracts, the actor, the nature of his act and the harm that may
damages for which the obligor who acted in good result from action or inaction are elements to be
faithisliableshallbethosethatarethenaturaland considered.Somemaynotbeconsidereddepending
probable consequences of the breach of the onthecircumstances.
obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the Thefollowingarecircumstancestobeconsidered:
obligationwasconstituted.
1. Time
In case of fraud, bad faith, malice or wanton 2. Place
attitude, the obligor shall be responsible for all 3. Emergency
damageswhichmaybereasonablyattributedtothe 4. Gravityofharmtobeavoided
nonperformanceoftheobligation. 5. Alternativecourseofaction
6. Socialvalueorutilityofactivity
2.EMERGENCYRULE 7. Personexposedtotherisk

Q:Whatistheemergencyrule? E.EVIDENCE

A: One who suddenly finds himself in a place of F.PRESUMPTIONOFNEGLIGENCE
danger, and is required to act without time to
considerthebestmeansthatmaybeadoptedto 1.LEGALPROVISIONS
avoid the impending danger, is not guilty of
negligence,ifhefailstoadoptwhatsubsequently Q: Discuss the provisions relative to
and upon reflection may have been a better presumptionofnegligence.
method, unless the emergency in which he finds
himselfisbroughtaboutbyhisownnegligence. A:Personsaregenerallypresumedtohavetaken
ordinary care of his concerns.There are however
Note:Emergencyruleexemptscommoncarriers. exceptionswhennegligenceispresumed.

1. Article 2184. xxx. It is disputably
presumedthatadriverwasnegligent,if
he had been found guilty of reckless
driving or violating traffick regulations
532
CIVILLAWTEAM:

TORTS AND DAMAGES
atleasttwicewithinthenextpreceding Q:Whataresomecaseswherethedoctrinewas
twomonths.Xxx heldtobeinapplicable?

2. Article 2185. Unless there is proof to A:
the contrary, it is presumed that a 1. Where there is direct proof of absence
persondrivingamotorvehiclehasbeen orpresenceofnegligence;
negligent if at the time of the mishap, 2. Where other causes, including the
hewasviolatinganytrafficregulation. conduct of the plaintiff and third
persons, are not sufficiently eliminated
Note:Proofoftrafficviolationrequired. bytheevidence;
3. Whenoneormorerequisiteisabsent.
3. Article 2188. There is prima facie
presumption of negligence on the part G.DEFENSES
of the defendant if the death or injury
results from his possession of 1.COMPLETE
dangerousweaponsorsubstances,such
as firearms and poison, except when Q:Whyaretheycalledcompletedefenses?
possession or use thereof is
indispensable in his occupation or A: They are called complete defenses because
business. they completely bar recovery as opposed to
partial defenses which only serve to mitigate
Note: Proof of possession of dangerous liability.
weaponsorsubstancesrequired.
a.ABSENCEOFELEMENT

2.RESIPSALOQUITUR (1)DUEDILIGENCE

Q:Whatdoesresipsaloquiturmean? SeeRulesonDegreeorStandardofCare

A: The thing speaks for itself. The fact of the (2)ACTSOFPUBLICOFFICERS
occurrence of an injury, taken with surrounding
circumstances,maypermitaninferenceorraisea b.ACCIDENTORFORTUITOUSEVENT
presumption of negligence, or make out a
plaintiffs prima facie case, and present a SeeForceMajeureorFortuitousEvent
question of fact for defendant to meet with an
explanation. c.DAMNUMABSQUEINJURIA

Note: However, res ipsa loquitur is not a rule of Q:Whatismeantbydamnumabsqueinjuria?
substantivelawand,assuch,doesnotcreatenor
constituteanindependentorseparategroundof A: There is no liability even if there is damage
liability. Instead, it is considered as merely becausetherewasnoinjury.
evidentiaryorinthenatureofaproceduralrule.
Note: There canbe damagewithoutinjury in those
Q:Whataretherequisitesfortheapplicationof instances in which the loss or harm was not the
thedoctrineofresipsaloquitur? resultofaviolationofalegalduty.Insuchcases,the
consequences mustbebornebythe injured person
A: alone.
1. That the accident is of a kind which
ordinarilydoesnotoccurintheabsence Q:Whatisinjury?
ofsomeonesnegligence;
2. Itiscausedbyaninstrumentalitywithin A:itisthelegalinvasionofalegalright.
the exclusive control of the
defendant/s;and Q:Whatisdamage?
3. The possibility of contributing conduct
which would make plaintiff responsible A: it is the loss, hurt or harm which results from
iseliminated. the injury. They are the recompense or
compensationawardedforthedamagesuffered.

533

Q: What is meant by the maxim qui jure suo risks which are usually present in such
utiturnullumdamnumfacit? activities.

A:Onewhoexercisesarightdoesnoinjury. 4. Defendantsnegligence?
A: When the plaintiff is aware of the
d.AUTHORITYOFLAW risk created by the defendants
negligence, yet he voluntarily proceed
e.ASSUMPTIONOFRISK to encounter it, there is implied
assumption of risk on the part of the
Q:Whatismeantbyvolentinonfitinjuria? plaintiff.

A:Toawillingperson,noinjuryisdone. f.LASTCLEARCHANCE

Q: What are the elements of the doctrine of SeeLastClearChance
assumptionofrisk?
g.PRESCRIPTION
A:
1. The plaintiff must know that the risk is Q:Whatistheprescriptiveperiodforquasi
present; delict?
2. He must further understand its nature;
and A:Four(4)yearsreckonedfromthedateofthe
3. His choice to incur it is free and accident.
voluntary.
h.WAIVER
Q:Whatarethetwokindsofassumptionofrisk?
SeePersons:WaiverofRights.
A:
1. Expresswaiveroftherighttorecover; i.DOUBLERECOVERY
2. Impliedassumption
a. DangerousConditions Q:Whatistheruleagainstdoublerecovery?
b. ContractualRelations
c. DangerousActivities A:Theplaintiffcannotrecoverdamagestwicefor
d. Defendantsnegligence the same act or omission of the defendant. (Art.
2177,NCC)
Q:Whatismeantby:
1. Dangerousconditions?
A: A person who, knowing that he is
exposed to a dangerous condition,
voluntarily assumes the risk of such
dangerous condition may not recover
from the defendant who maintained
suchdangerouscondition.

2. Contractualrelations?
A:Theremaybeanimpliedassumption
of risk if the plaintiff entered into
contractual relations with the
defendant. By entering into a
relationship freely and voluntarily
where the negligence of the defendant
isobvious,theplaintiffmaybefoundto
accept and consent to it, and to
undertaketolookoutforhimselfandto
relievethedefendantoftheduty.

3. Dangerousactivities?
A:Apersonwhovoluntarilyparticipates
in dangerous activities assumes the
534
CIVILLAWTEAM:

TORTS AND DAMAGES
IX.SPECIALLIABILITYINPARTICULARACTIVITIES 2. Design defect defects resulting from

designandformulas.
A.GENERAL 3. Presentation defect defects resulting
fromhandling,makingup,presentation
1.CONCEPT orpackingoftheproducts.
4. Absence of Appropriate Warning
B.PRODUCTSLIABILITY defectresultingfromtheinsufficientor
inadequateinformationontheuseand
Q:Whatisproductandserviceliability? hazardsoftheproducts.

A: Product Liability is the law which governs the Q:Whatarethedefensesofamanufacturerand
liabilityofmanufacturersandsellersfordamages supplier?
resulting from defective products. It is meant to
protect the consumers by providing safeguards A:
when they purchase or use consumer products. The manufacturer shall not be liable when it
(Aquino,T.,TortsandDamages,2005,SecondEd.) evidences:
1. thatitdidnotplacetheproductonthe
market;
1.MANUFACTURERSORPROCESSORS 2. that although it did place the product
on the market such product has no
a.ELEMENTS defect;
3. that the consumer or the third party is
b.CONSUMERACT solelyatfault.

Q:Whatistheconsumeract(RA7394)? Thesuppliershallnotbeliablewhenitisproven:
1. that there is no defect in the service
A:ConsumerActprohibitsfraudulentsalesactsor rendered;
practices. Chapter I of Title III expressly provides 2. that the consumer or the third party is
for protection against defective, unfair and solelyatfault.
unconscionable sales acts and practices. The Act
likewise contains provisions imposing warranty Q: What are the remedies of a consumer in the
obligationsonthemanufacturersandsellers.This consumeract?
Act also imposes liability for defective service
independentlyoffault. A: Section 60 of the law expressly provides that
the court may grant injunction restraining the
Q: Who are the persons made liable under the conduct constituting the contravention of illegal
consumeract? sales act and practices and/or actual damages
and such other orders as it thinks fit to redress
A:ThestrictliabilityundertheActisimposedon injurytothepersonaffectedbysuchconduct.
themanufacturer.
NOTE: A manufacturer is any person who

manufactures, assembles or processes consumer
products,exceptthatifthegoodsaremanufactured,
assembled or processed for another person who
attaches his own brand name to the consumer
products, the latter shall be deemed the
manufacturer. In case of imported products, the
manufacturers representatives or, in his absence,
the importer, shall be deemed the manufacturer.
(Art.4,RA7394)
Q:Whatarethekindsofdefectsinproducts?
A:
1. Manufacturing defect defects
resulting from manufacture,
construction,assemblyanderection.
535

C.NUISANCE 2.PUBLICNUISANCEANDPRIVATENUISANCE

1.NUISANCEPERSEANDNUISANCEPER Q:Whataretheremediesagainstpublic
ACCIDENCE nuisances?

Q:Whatarethekindsofnuisance? A:
1. ProsecutionundertheRPCoranylocal
A: ordinance
1. Astothenumberofpersonsaffected: 2. Civilaction
a. Public(orcommon)isonewhich 3. Abatement,withoutjudicialproceeding
affects a community ir
neighborhood or considerable Q:Whomayavailofremedies?
numberofpersons.
b. Private is one which affects an A:
individualorfewpersonsonly. 1. Publicofficers
2. Otherclassification:
a. NuisancePerSethatkindof 2. Privatepersonsifnuisanceisspecially
nuisance which is always a injurioustohimself;theff.steps
nuisance. By its nature, it is mustbemade:
alwaysanuisanceallthetime
under any circumstances i. demandbefirstmadeuponowner
regardless of location or or possessor of the property to
surroundings. abatethenuisance
b. Nuisance Per Accidens that ii. that such demand has been
kind of nuisance by reason of rejected
location, surrounding or in a iii. that the abatement be approved
manner it is conducted or by the district health officer and
managed. executed with the assistance of
c. Temporary that kind which localpolice
if properly attended does not iv. that the value of destruction does
constituteanuisance. notexceedP3,000
d. Permanent that kind which
bynatureofstructurecreates Q:Whatisaprivatenuisance?
apermanentinconvenience.
e. Continuing that kind which A: one that affects an individualor a limited
by its nature will continue to numberofindividualsonly
exist indefinitely unless
abated Q: What are the remedies against private
f. Intermittentthatkindwhich nuisances?
recurs off and on may be
discontinuedanytime. A:
g. Attractive Nuisance one 1. Civilaction
who maintains on his 2. Abatement, without judicial
premises dangerous proceedings
instrumentalities or
appliances of a character Q:Whomayavailofremedies?
likely to attract children in
play,andwhofailstoexercise A:
ordinary care to prevent 1. Publicofficers
children from playing 2. Privatepersonsifnuisanceisspecially
therewith or resorting injurious to himself; the ff.
thereto, is liable to a child of stepsmustbemade:
tender years who is injured
thereby, even if the child is i. demandbefirstmadeuponowner
technicallyatrespasserinthe or possessor of the property
premises. toabatethenuisance
ii. that such demand has been
rejected
536
CIVILLAWTEAM:

TORTS AND DAMAGES
iii. that the abatement be approved 13. The right to take part in a peaceable
by the district health officer and assembly to petition the government
executed with the assistance of forredressofgrievances;
localpolice 14. The right to be free from involuntary
iv. thatthevalueofdestructiondoes servitudeinanyform;
notexceedP3,000 15. The right of the accused against
excessivebail;
3.ATTRACTIVENUISANCE 16. Therightoftheaccusedtobeheardby
himself and counsel, to be informed of
Q:Whatisanattractivenuisance? the nature andcause of the accusation
against him, to have a speedy and
A: A dangerous instrumentality or appliance public trial, to meet the witnesses face
maintained in ones premises which is likely to toface,andtohavecompulsoryprocess
attractchildrenatplay. to secure the attendance of witness in
hisbehalf;
Onewhomaintainsanattractivenuisanceonhis 17. Freedomfrombeingcompelledtobea
estate without exercising due care is liable to a witnessagainstone'sself,orfrombeing
childoftenderyearsevenifatrespasser. forced to confess guilt, or from being
induced by a promise of immunity or
Note: the attractiveness of the premises or of the rewardtomakesuchconfession,except
dangerous instrumentality to children of tender whenthepersonconfessingbecomesa
years is to be considered as an implied invitation, Statewitness;
whichtakesthechildrenwhoaccepteditoutofthe 18. Freedom from excessive fines, or cruel
category of a trespasser and puts them in the and unusual punishment, unless the
category of invitees, towards whom the owner of same is imposed or inflicted in
the premises or instrumentality owes the duty of accordancewithastatutewhichhasnot
ordinarycare
been judicially declared
unconstitutional;and
D.VIOLATIONOFCONSTITUTIONALRIGHTS
19. Freedom of access to the courts. (Art.
32,NCC)
Any public officer or employee, or any private

individual, who directly or indirectly obstructs,
1.VIOLATIONOFCIVILLIBERTIES
defeats, violates or in any manner impedes or

impairsanyofthefollowingrightsandlibertiesof
Q:WhatistherationalefortheinclusionofArt.
another person shall be liable to the latter for
32intheNewCivilCode?
damages:

1. Freedomofreligion;
A: The creation of an absolutely separate and
2. Freedomofspeech;
independent civil action for the violation of civil
3. Freedom to write for the press or to
libertiesisessentialtotheeffectivemaintenance
maintainaperiodicalpublication;
ofdemocracy.
4. Freedom from arbitrary or illegal

detention;
E.VIOLATIONOFRIGHTSCOMMITTEDBYPUBLIC
5. Freedomofsuffrage;
OFFICERS
6. The right against deprivation of

propertywithoutdueprocessoflaw;
Q:Inwhatinstancescanapublicofficerbeliable
7. The right to a just compensation when
fordamages?
privatepropertyistakenforpublicuse;

8. Therighttotheequalprotectionofthe
A: When a member of a city or municipal police
laws;
force refuses or fails to render aid or protection
9. The right to be secure in one's person,
to any person in case of danger to life or
house, papers, and effects against
property, such peace officer shall be primarily
unreasonablesearchesandseizures;
liablefordamages.(Art.34,NCC)
10. The liberty of abode and of changing

thesame;
Anactionmaybebroughtbyanypersonsuffering
11. The privacy of communication and
frommaterialormorallossbecauseapublic
correspondence;
servantrefusesorneglects,withoutjustcauseto
12. The right to become a member of
performhisofficialduty(ART,27NCC).
associations or societies for purposes

notcontrarytolaw;
537

Requisites: b. Proprietorsshallalsoberesponsiblefor
i. defendant is a public officer charged damagescaused:
withtheperformanceofadutyinfavor
oftheplaintiff 1) By the explosion of machinery
ii. he refused or neglected without just which has not been taken care of
causetoperformsuchduty(ministerial) with due diligence, and the
iii. plaintiffsustainedmaterialormoralloss inflammation of explosive
as consequence of such non substances which have not been
performance keptinasafeandadequateplace;
iv. the amount of such damages, if 2) Byexcessivesmoke,whichmaybe
material harmfultopersonsorproperty;
3) Bythefallingoftreessituatedator
Q: What is the intention of making public near highways or lanes, if not
officersliableunderArt34,NCC? causedbyforcemajeure;
4) By emanations from tubes, canals,
A:Art.34isintendedtoaffordaremedyagainst sewers or deposits of infectious
police officers who connive with bad elements, matter, constructed without
areafraidofthemorsimplyindifferenttoduty. precautions suitable to the place.
(Art.2191,NCC)

F.PROVINCES,CITIESANDMUNICIPALITIES I.HEADOFFAMILY

Q: What instance would make cities and SeePersonsMadeResponsibleForOthers;
municipalitiesliablefordamages? Parents

A: Cities and municipalities shall be subsidiarily X.STRICTLIABILITY
liablefortheneglectofdutyofamemberofacity
ormunicipalpoliceforce.(Art.34,NCC) Q:Whenistherestrictliability?

A: There is strict liability if one is made
G.OWNEROFMOTORVEHICLE independent of fault, negligence or intent after
establishing certain facts specified by law. It
Q:Whatistheliabilityoftheownerofavehicle includes liability for conversion and for injuries
incaseofanaccident? caused by animals, ultrahazardous activities and
nuisance.
A:Inmotorvehiclemishaps,theowneris
solidarilyliablewithhisdriver,iftheformer,who A.ANIMALS
wasinthevehicle,couldhave,bytheuseofthe
duediligence,preventedthemisfortune.Itis 1.POSSESSORANDUSEROFANANIMAL
disputablypresumedthatadriverwasnegligent,
ifhehadbeenfoundguiltyorrecklessdrivingor Q:Whoisliablefordamagescausedbyanimals?
violatingtrafficregulationsatleasttwicewithin
thenextprecedingtwomonths.(Art.2184,NCC) A: The possessor or whoever makes use of the
animalisliableindependentoffault.
H.PROPRIETOROF
BUILDINGORSTRUCTUREORTHING Note: The only exception is when the damage is
caused by force majeure or by the person who
Q: What is the rule regarding the liability of sufferedthedamage.
proprietorsofbuildings:
Q: What are the rules on liability of owners for
A: damagecausedbyhisanimals?
a. Theproprietorofabuildingorstructure
isresponsibleforthedamagesresulting A:
from its total or partial collapse, if it 1. Anownerisstrictlyliableforreasonably
should be due to the lack of necessary foreseeabledamagedonebyatrespass
repairs.(Art.2190,NCC) ofhisanimals.
2. An owner is strictly liable to licensees
and invitees for injuries caused by wild
538
CIVILLAWTEAM:

TORTS AND DAMAGES
animals as long as the injured person BOOKIIDAMAGES

didnothingtobringabouttheinjury.
3. An owner is not strictly liable for I.GENERALCONSIDERATIONS
injuries caused by domestic animals
unless he has knowledge of that A.CLASSIFICATION
particular animal's dangerous
propensities that are not common to Q:Whataredamages?
thespecies.
4. Strict liability will generally not be A: The pecuniary compensation, recompense or
imposed in favor of trespassers in the satisfaction for an injury sustained or as
absenceoftheowner'snegligence.An otherwiseexpressedthepecuniaryconsequences
exception is recognized for injuries which the law imposes for the breach of some
inflictedbyviciouswatchdogs. dutyorviolationofsomerights.

Note: A complaint for damages is personal in
B.NUISANCE nature(personalaction)

SeeNuisance. Q:Whatarethekindsofdamages?

1.CLASSES A:MENTAL
1. Moral
SeeNuisance. 2. Exemplary
2.EASEMENTAGAINSTNUISANCE 3. Nominal
4. Temperate
Q:Whatiseasementagainstnuisance? 5. Actual
6. Liquidated
A: Easement against nuisance is established by
Art. 682 683. It is intended to prohibit the
proprietororpossessorofabuildingorlandfrom
committing nuisance therein through noise,
jarring, offensive odor, smoke,heat, dust, water,
glare,andothercauses.(GonzalezDecano,Notes
on Torts & Damages Under the Civil Code of the
Philippines,2010,p166)
C.PRODUCTSLIABILITY

1.CONSUMERACT
SeeManufacturersorProcessors;ConsumerAct.
539

ACTUAL/
MORAL NOMINAL
COMPENSATORY
Accordingtopurpose
Actual or compensatory damages Awarded only to enable the Vindicating or recognizing the
simply make good or replace the injured party to obtain means, injured partys right to a property
losscausedbythewrong. diversion or amusement that will thathasbeenviolatedorinvaded.
alleviate the moral suffering he (Tanv.Bantegui,473SCRA663)
has undergone, by reason of
defendants culpable action.
(Roblezav.CA,174SCRA354)
Accordingtomannerofdetermination
Claimantmustproducecompetent No proof of pecuniary loss is No proof of pecuniary loss is
proof or the best evidence necessary. The assessment is left necessary.Proofthatalegalright
obtainable such as receipts to to the discretion of the court has been violated is what is only
justify an award therefore. Actual according to the circumstances of required. Usually awarded in the
or compensatory damages cannot each case. However, there must absence of proof of actual
be presumed but must be proved be proof that the defendant damages.
with reasonable certainty. (People caused physical suffering etc.
v.Ereno,Feb.22,2000) (Compania Maritima v. Allied Free
Workers Union, G.R. No. L31379,
Aug.29,1988).

GR: Factual basis mustbe alleged.
Aside from the need for the
claimanttosatisfactorilyprovethe
existence of the factual basis of
thedamages,itisalsonecessaryto
prove its causal relation to the
defendants act (Raagas v. Trava,
G.R. No. L20081, Feb. 27,1968;
People v. Manero, G.R. Nos.
8688385,Jan.29,1993).

XPN: Criminal cases. Moral
damages may be awarded to the
victim in criminal proceedings in
such amount as the court deems
just without need for pleading or
proof of the basis thereof (People
v.Paredes,July30,1998).
Special/Ordinary
Ordinary Special Special

Note: Ordinary Damages are those Note: Special Damages are those
generally inherent in a breach of a which exist because of special
typicalcontract circumstances and for which a
debtor in good faith can be held
liable if he had been previously
informedofsuch.circumstances.
540 CIVILLAWTEAM:

TORTS AND DAMAGES
EXEMPLARY/
TEMPERATE LIQUIDATED
CORRECTIVE
Accordingtopurpose
When the court is convinced that Liquidateddamagesarefrequently Exemplary or corrective damages

there has been such a loss, the agreeduponbytheparties,either are intended to serve as a
judge is empowered to calculate by way of penalty or in order to deterrenttoseriouswrongdoings.
moderatedamagesratherthanlet avoid controversy on the amount (Peoplev.Orilla,422SCRA620)
the complainant suffer without ofdamages.
redress. (GSIS v. LabungDeang,
365SCRA341)
Accordingtomannerofdetermination
Mayberecoveredwhenthecourt If intended as a penalty in 1.Thattheclaimantisentitledto

findsthatsomepecuniarylosshas obligations with a penal cause, moral, temperate or
been suffered but its amount proof of actual damages suffered compensatorydamages;and
cannot, from the nature of the by the creditor is not necessary in
case,beprovedwithcertainty.No order that the penalty may be 2. That the crime was committed
proof of pecuniary loss is demanded(Art.1228,NCC). with 1 or more aggravating
necessary. No proof of pecuniary loss is circumstances, or the quasidelict
necessary. was committed with gross
negligence, or in contracts and
quasicontracts the act must be
accompaniedbybadfaithordone
in wanton, fraudulent, oppressive
ormalevolentmanner.

No proof of pecuniary loss is
necessary.
Special/Ordinary
Special Special Special

II.ACTUALANDCOMPENSATORYDAMAGES wrongfulactwhichresultininjury;need
notbespecificallypleadedbecausethe
A.CONCEPT lawitselfimpliesorpresumesthatthey
resultedfromthewrongfulact.
Q:Whatareactualorcompensatorydamages?
2. Special damages damages which are
A: It comprehends not only the value of the loss the natural, but not the necessary and
suffered but also that of the profits which the inevitableresultofthewrongfulact;an
obligee failed to obtain. The amount should be examplewouldbeattorneysfees.
that which would put the plaintiff in the same
position as he would have been if he had not B.REQUISITES
sustained the wrong for which he is now getting
compensationorreparation.Torecoverdamages, 1.ALLEGEDANDPROVEDWITHCERTAINTY
the amount of loss must not only be capable of
proofbutmustactuallybeproven. Q:Isitnecessarythatlossbeproved?

Q:Whatarethekindsofactualorcompensatory A:
damages? GR: Loss must be proved before one can be
entitledtodamages.
A:
1. General damages natural, necessary XPN:Lossneednotbeprovedinthefollowing
andlogicalconsequencesofaparticular cases:
541

1. Liquidated damages previously agreed Q:Whatmustbeconsideredindeterminingthe
upon; amountofdamagesrecoverable?
Note: Liquidated damages take the
place of actual damages except when A: Much is left to the discretion of the court
additionaldamagesareincurred. considering the moral and material damages
2. If damages other than actual are involved. There can be no exact or uniform rule
sought; for measuring the value of a human life. The
3. Forfeiture of bonds in favor of the amount recoverable depends on the particular
government for the purpose of factsandcircumstancesofeachcase.
promotingpublicinterestorpolicy;
4. Lossispresumed. The life expectancy of the deceased or of the
beneficiary,whicheverisshorter,isanimportant
2.NOTSPECULATIVE factor. Other factors that are usually considered
are:
Q: What is the required proof for actual 1. Pecuniarylosstoplaintifforbeneficiary;
damages? 2. Lossofsupport;
3. Lossofservice;
A: It is necessary that the claimant produces 4. Lossofsociety;
competentprooforthebestevidenceobtainable 5. Mentalsufferingofbeneficiaries;and
such as receipts to justify an award therefore. 6. Medicalandfuneralexpenses.
Actual or compensatory damages cannot be
presumed but must be proved with reasonable Thus, life expectancy is, not only relevant, but,
certainty(Peoplev.Ereno,Feb.22,2000) also, an important element in fixing the amount
recoverable, although it is not the sole element
Any person who seeks to be awarded actual or determinativeofsaidamount.
compensatory damages due to acts of another
hastheburdenofprovingsaiddamagesaswellas Q:Isitproperfortheheirstoclaimasdamages
the amount thereof. Actual damages cannot be thefullamountofearningsofthedeceased?
allowed unless supported by evidence on the
record. The court cannot rely on speculations, A: No. Said damages consist, not of the full
conjectures or guesswork as to the fact and amount of his earnings, but of the support they
amount of damages (Banas, Jr. v. CA, Feb. 10, receivedorwouldhavereceivedfromhimhadhe
2000) notdiedinconsequenceofthenegligenceofthe
bus' agent. Stated otherwise, the amount
C.COMPONENTELEMENTS recoverable is not loss of the entire earning, but
rather the loss of that portion of the earnings
1.VALUEOFLOSS;UNREALIZEDPROFIT which the beneficiary would have received. In
otherwords,onlynetearnings,notgrossearning,
Q:Whatdoesactualdamagescover? aretobeconsidered.

A: It comprehends not only the value of the loss In fixing the amount of that support, the
suffered but also that of the profits which the "necessary expenses of his own living" should be
obligeefailedtoobtain. deducted from his earnings. Earning capacity, as
1. Danoemergentelossofwhataperson an element of damages to one's estate for his
alreadypossesses death by wrongful act, is necessarily his net
earningcapacityorhiscapacitytoacquiremoney,
2. Lucro cessante failure to receive as a lessthenecessaryexpenseforhisownliving.(Villa
benefit that would have pertained to ReyTransit,Inc.v.CA,etal.,G.R.No.L25499Feb.
him 18,1970)

Note: Loss or impairment of earning capacity in
casesoftemporaryorpermanentpersonalinjury.

Incaseofbusinessestablishments,itcoversinjuryto
thebusinessstandingorcommercialcredit.

542 CIVILLAWTEAM:

TORTS AND DAMAGES
2.ATTORNEYSFEESANDEXPENSESOF personsorincurexpensestoprotecthis
LITIGATION interest

Q: What are the two concepts of attorneys 3.INTEREST
fees?Distinguishonefromtheother.
Q:Whencaninterestbepartofdamages?
A:
1. Ordinary A: In crimes and quasidelicts, the court may
2. Extraordinary appropriately impose interest on the amount of
the damages adjudicated by the court. The basis
ORDINARY EXTRAORDINARY of interest is the legal rate which is 6% per
Nature annum.
Thereasonable
compensationpaid D.EXTENTORSCOPEOFACTUALDAMAGES
Anindemnityfordamages
toalawyerforthe
orderedbythecourttobe
legalservices 1.INCONTRACTSANDQUASICONTRACTS
paidbythelosingtothe
renderedtoaclient
prevailingpartyinlitigation
whohasengaged Q: What should be the amount of actual
him damages?
Basis
Thefactof A: The amount should be that which would put
employmentofthe Anycasesauthorizedbylaw
the plaintiff in the same position as he would
lawyerbytheclient
havebeenifhehadnotsustainedthewrongfor
Towhompayable
which he is now getting compensation or
Lawyer Client
reparation.
1. Property value at the time of

Q:TowhatdoesArticle2208pertain?
destruction, or market value, plus, in
proper cases, damages for the loss of

A: Article 2208 pertains to extraordinary
use during the period before
attorneys fees. They are actual damages due to
replacement, value of use of premises,
the plaintiff. Plaintiff must allege the basis of his
in case of mere deprivation of
claimforattorneysfeesinthecomplaint.
possession.

Q: Are attorneys fees recoverable as actual
2. Personal injury Medical expenses; P
damages?
75,000bywayofcivilindemnityincase
of rape committed or effectively

A:
qualifiedunderwhichthedeathpenalty
GR:Notrecoverable.
isimposedbylaw,orP50,000inother
XPN:SWISSMUDERC
rapecases.
1. Stipulationbetweenparties

2. Recovery of Wages of household
3. Death Wake and burial expenses, P
helpers,laborersandskilledworkers
50,000 by way of civil indemnity ex
3. ActionsforIndemnityunderworkmen's
delicto which requires no proof other
compensation and employer liability
thanthefactofdeathofthevictimand
laws
theassailantsresponsibilitytherefor.
4. LegalSupportactions

5. Separate civil action to recover civil
Q:Canactualdamagesbemitigated?
liabilityarisingfromcrime

6. Maliciousprosecution
A:Yes,inthefollowingcases:
7. Clearly Unfounded civil action or
1. ForContracts:
proceedingagainstplaintiff
a. Violation of terms of the contract
8. WhenDoublejudicialcostsareawarded
bytheplaintiffhimself;
9. WhenExemplarydamagesareawarded
b. Obtentionorenjoymentofbenefit
10. Defendantactedingross&evidentbad
under the contract by the plaintiff
faithinRefusingtosatisfyplaintiff'sjust
himself;
&demandableclaim
c. Defendant acted upon advice of
11. When defendant's act or omission
counsel in cases where the
Compelled plaintiff to litigate with 3rd
exemplary damages are to be
543

awarded such as under Articles Note: The article only mentioned heir.
2230,2231and2232; Consequently, it cannot speak of
d. Defendant has done his best to deviseesandlegateeswhoarereceiving
lessentheplaintiffsinjuryorloss. supportfromthedeceased.

2. ForQuasicontracts: 3. The spouse, legitimate and illegitimate
a. Incaseswhereexemplarydamages descendants and ascendants of the
are to be awarded such as in deceased may demand moral damages
Article2232; for mental anguish by reason of the
b. Defendant has done his best to deathofthedeceased.
lessentheplaintiffsinjuryorloss.

3. ForQuasidelicts: III.MORALDAMAGES
a. That the loss would have resulted
in any event because of the A.CONCEPT
negligenceoromissionofanother,
and where such negligence or Q:Whyaremoraldamagesawarded?
omission is the immediate and
proximatecauseofthedamageor A: They are awarded to enable the injured party
injury; to obtain means, diversions or amusement that
b. Defendant has done his best to will serve to alleviate the moral suffering he has
lessentheplaintiffsinjuryorloss. undergonebyreasonofthedefendantsculpable
action.
2.INCRIMESANDQUASIDELICTS
Q:Howcantheplaintiffrecovermoraldamages?
Q: What is the amount of damages in cases
where death resulted from a crime or quasi A:
delict? GR:Theplaintiffmustallegeandprove:
1. The factual basis for moral damages
A: Art. 2206 provides that the amount of and
damages for death caused by a crime or quasi 2. The causal relation to the defendants
delict shall be at least 50 thousand pesos, even act
though there may have been mitigating
circumstances. XPN:Moraldamagesmaybeawardedtothe
In addition to the amount to be awarded, the victim in criminal proceedings without the
defendantshallalsobeliableforthefollowing: need for pleading of proof or the basis
thereof.
1. Loss of the earning capacity of the
deceased, and the indemnity shall be B.WHENRECOVERABLE
paid to the heirs of the latter; such
indemnity shall in every case be Q:Whenismoraldamagesrecoverable?
assessed and awarded by the court,
unless the deceased on account of A:Moraldamagesmayberecoveredinthe
permanent physical disability not followingandanalogouscases:
caused by the defendant, had no 1. Acriminaloffenseresultinginphysical
earning capacity at the time of his injuries;
death; 2. Quasidelictscausingphysicalinjuries;
3. Seduction,abduction,rape,orother
2. If the deceased was obliged to give lasciviousacts;
support according to the provisions of 4. Adulteryorconcubinage;
Article291,therecipientwhoisnotan 5. Illegalorarbitrarydetentionorarrest;
heircalledtothedecedent'sinheritance 6. Illegalsearch;
by the law of testate or intestate 7. Libel,slanderoranyotherformof
succession, may demand support from defamation;
the person causing the death, for a 8. Maliciousprosecution;
period not exceeding five years, the 9. ActsmentionedinArticle309;and
exactdurationtobefixedbythecourt;

544 CIVILLAWTEAM:

TORTS AND DAMAGES
10. ActionsreferredtoinArticles21,26, 2.INACTSREFERREDTOINARTS.21,26,27,28,

27,28,29,30,32,34,and35.(Art.2219, 29,32,34&35,NCC
NCC)
Q: What are those tortuous acts referred to in
N534: To award moral damages, a court must be Articles 21, 26, 27, 28. 29, 32, 34 and 35 of the
satisfiedwithproofofthefollowing: Civil Code, wherein the plaintiff may recover
1. an injury whether physical, mental or moraldamages?
psychological;
2. a culpable act or omission factually A:
established; 1. Willful acts contrary to morals, good
3. a wrongful act or omission of the customsorpublicpolicy
defendant as the proximate cause of the
2. Disrespect to the dignity, personality,
injurysustainedbytheclaimant;
privacyandpeaceofmindofneighbors
4. the award of damages predicated on any
ofthecasesstatedinArt.2219.
andotherpersons
3. Refusalorneglectofapublicservantto
Art. 2219, NCC speaks provides for criminal offense perform his official duty without just
resulting from physical injuries and quasidelicts cause
causingphysicalinjuries. 4. Unfair competition in enterprise or in
labor
1.INSEDUCTION,ABDUCTION,RAPEAND 5. Civilactionfordamagesagainstaccused
OTHERLASCIVIOUSACTS acquittedonreasonabledoubt
6. Violationofcivilrights
Q: Is there any instance wherein the plaintiff 7. Civil action for damages against city or
may not prove the factual basis for moral municipalpoliceforce
damages as well as the causal relation to the 8. When the trial court finds no
defendantsact? reasonable ground to believe that a
crime has been committed after a
A:Yes.Incriminalproceedingsforrape. preliminary investigation or when the
prosecutor refuses or fails to institute
Requisites: criminalproceedings.
1. There must be an injury whether
physical, mental or psychological, 3.INCASESOFMALICIOUSPROSECUTION
clearlysustainedbytheclaimant
2. Theremustbeculpableactoromission Q:Whatisanactionformaliciousprosecution?
3. Such act or omission is the proximate
causeoftheinjury A: It has been defined as an action for damages
4. The damage is predicated on the cases brought by or against whom a criminal
citedinArt.2219 prosecution, civil suit, or other legal proceeding
has been instituted maliciously and without
Q:Inrapecases,iscivilindemnitythesamewith probable cause, after the termination of such
moraldamages? prosecution, suit or other proceeding in favor of
the defendant therein. (Diaz v. Davao Light and
A: No, civil indemnity is different from moral PowerCo.,520SCRA510,2007)
damages. It is distinct from and should not be
denominatedasmoraldamageswhicharebased Q: May moral and exemplary damages be
ondifferentjuralfoundationsandassessedbythe granted if a marriage was dissolved on the
court in the exercise of sound discretion (People groundofpsychologicalincapacity?
v.Caldona,G.R.No.126019,Mar.1,2001).
A: By declaring petitioner as psychologically
Whenthefactofrapehasbeenestablished,civil incapacitated, the possibility of awarding moral
indemnity is mandatory. If it is simple rape, civil damages was negated, which should have been
indemnity is P50,000.00. If there is qualifying proved by specific evidence that it was done
circumstanceastojustifytheimpositionofdeath deliberately.Thus,asthegrantofmoraldamages
penalty, it should be no less than P75,000.00 was not proper, it follows that the grant of
(People v. Banago ; People v. Mahinay, G.R. No. exemplary damages cannot stand since the Civil
109613,July17,1995)(Pineda,p.247,2009ed.). Code provides that exemplary damages are
imposed in addition to moral, temperate,
liquidated or compensatory damages. Finally,
545

sincetheawardofmoralandexemplarydamages pecuniary loss has been suffered but its amount
isnolongerjustified,theawardofattorney'sfees cannotbeprovedwithcertainty.
and expenses of litigation is left without basis. In cases where the resulting injury might be
(Buenaventura v. CA, G.R. No. 127358,Mar. 31, continuing and possible future complications
2005) directly arising from the injury while certain to
occur,aredifficulttopredict,temperatedamages
can and should be awarded on top of actual or
IV.NOMINALDAMAGES compensatorydamages.Insuchcasesthereisno
incompatibility between actual and temperate
A.CONCEPT damages

Q:Whatisthepurposeofnominaldamages? Note:Elements:
1. Somepecuniaryloss;
A: In order that a right of the plaintiff which has 2. Loss is incapable of pecuniary
been violated or invaded by the defendant may estimation;
be vindicated or recognized, and not for the 3. The damages awarded are
purpose of indemnifying the plaintiff for any loss reasonable.
sufferedbyhim.

Note:Elements: VI.LIQUIDATEDDAMAGES
1. Plaintiffhasaright;
2. Suchrightisviolated; A.CONCEPT
3. The purpose of awarding damages is to
vindicateorrecognizetherightviolated. Q:Whatareliquidateddamages?
A:Thoseagreeduponbythepartiesinacontract,
B.WHENAWARDED tobepaidincaseofbreachthereof.

Q: In what cases are nominal damages Q: When may liquidated damages be equitably
awarded? reduced?

A: nominal damages are small sums fixed by the A:
court without regard to the extent of the harm 1. Iniquitousorunconscionable
done to the injured party. They are damages in 2. Partialorirregularperformance
name only andare allowed simply in recognition
ofatechnicalinjurybasedonaviolationofalegal B.RULESGOVERNINGINCASEOFBREACHOF
right. CONTRACT

Note:Nominaldamagescannotcoexistwithactual Q: What is the rule governing in case of breach
or compensatory damages because nominal ofcontract?
damages are recoverable when the damages
suffered cannot be proved with reasonable A:Art.2228,NCC,providesthatwhenthebreach
certainty.Thelawpresumesdamagealthoughactual of contract committed by the defendant is not
orcompensatorydamagesarenotproven.Awardof the one contemplated by the parties in agreeing
actual, moral, temperate or moderate damages upon the liquidated damages, the law shall
preclude nominal damages. But it may be awarded determinethemeasureofdamages,andnotthe
togetherwith attorneys fees. (Pineda, pp. 284285,
stipulation.
2009ed)

VII.EXEMPLARYORCORRECTIVEDAMAGES

V.TEMPERATEORMODERATEDAMAGES
A.CONCEPT

A.CONCEPT
Q:Whatisthepurposeofexemplarydamages?

Q:Whataretemperatedamages?
A: Imposed by way of example or correction for

the public good, in addition to the moral,
A:Thosedamages,whicharemorethannominal
temperate,liquidatedorcompensatorydamages;
but less than compensatory, and may be
intended to serve as a deterrent to serious
recovered when the court finds that some
wrongdoings and as a vindication of undue
sufferingsandwantonofinvasionoftherightsof
546 CIVILLAWTEAM:

TORTS AND DAMAGES
an injured or a punishment for those guilty of 3. The act must be accompanied by bad
outrageousconduct. faith or done in wanton, fraudulent,
oppressiveormalevolentmanner
B.WHENRECOVERED

Q: In what cases may exemplary damages be VIII.DAMAGESINCASEOFDEATH
imposedasaccessorydamages?
A.INCRIMESANDQUASIDELICTSCAUSING
A: DEATH
GR:Exemplarydamagescannotberecovered
asamatterofright(Art.2233,NCC) Q: What is the rule with regard to crimes and
XPN: quasidelictscausingdeath?
1. Criminal offense when the crime was
committed with one or more A:Incaseofdeath,theplaintiffisentitledtothe
aggravatingcircumstances(Art.2230) amount that he spent during the wake and
2. Quasidelicts when the defendant funeral of the deceased. However, it has been
actedwithgrossnegligence(Art.2231) ruled that expenses after the burial are not
3. Contracts and Quasicontracts when compensable.
defendantactedinwanton,fraudulent,
reckless, oppressive, or malevolent Note:Theamountofdamagesfordeathcausedbya
manner (Art. 2232) (Pineda, p. 301, crimeorquasidelictshallbeatleastthreethousand
2009ed) pesos,eventhoughtheremayhavebeenmitigating
circumstances.Inaddition:
Q:Whatarethedamagesthatcanberecovered 1. The defendant shall be liable for the loss
incaseofdeath? of the earning capacity of the deceased,
and the indemnity shall be paid to the
3 heirsofthelatter;suchindemnityshallin
A:MEAI
every case be assessed and awarded by
1. Moraldamages
thecourt,unlessthedeceasedonaccount
2. Exemplarydamages of permanent physical disability not
3. Attomey's fees and expenses for caused by the defendant, had no earning
litigation capacityatthetimeofhisdeath;
4. Indemnityfordeath 2. If the deceased was obliged to give
5. Indemnityforlossofearningcapacity support according to the provisions of
6. Interestinpropercases Article 291, the recipient who is not an
heir called to the decedent's inheritance
Q:Whatarethedamagesthatcanberecovered by the law of testate or intestate
incaseofdeath? succession,maydemandsupportfromthe
personcausingthedeath,foraperiodnot
3 exceedingfiveyears,theexactdurationto
A:MEAI
1. Moraldamages befixedbythecourt;
2. Exemplarydamages 3. The spouse, legitimate and illegitimate
3. Attomey's fees and expenses for descendants and ascendants of the
deceasedmaydemandmoraldamagesfor
litigation
mentalanguishbyreasonofthedeathof
4. Indemnityfordeath
thedeceased.(Art.2206,NCC)
5. Indemnityforlossofearningcapacity

6. Interestinpropercases
1.INDEATHCAUSEDBYBREACHOFCONDUCT
BYACOMMONCRIME
C.REQUISITES

Q:Whenistemperatedamagesrecoverable?
A:
1. The claimants right to exemplary
damageshasbeenestablished
2. Their determination depends upon the
amountofcompensatorydamagesthat
maybeawardedtotheclaimant
547

IX.GRADUATIONOFDAMAGES 3.INCONTRACTS,QUASICONTRACTSAND
QUASIDELICTS;NCCART.2215
Q:Whatistheruleingraduationofdamagesin
tortscases? Q: When can the court equitably mitigate the
damages in contract, quasicontracts and quasi
A: Generally, the degree of care required is delicts?
graduated according to the danger a person or
property attendant upon the activity which the A: The court can mitigate the damages in the
actorpursuesortheinstrumentalityheuses.The followinginstancesotherthaninArt.2214:
greaterthedangerthegreaterthedegreeofcare 1. That the plaintiff himself has
required. contravenedthetermsofthecontract;
2. That the plaintiff has fderived some
However, foreseeability is not the same as benefitasaresultofthecontract;
probability. Even if there is lesser degree of 3. In cases whereexemplary damagesare
probability that damage will result, the damage to be awarded, that the defendant
maystillbeconsideredforeseeable. actedupontheadviceofcounsel;
4. Thatthelosswouldhaveresultedinany
NOTE: The test as respects foreseeability is not the event;
balance of probabilities, but the existence, in the 5. That since the filing of the action, the
situation in hand, of some real likelihood of some defendant has done his best to lessen
damage and the likelihood is of such appreciable the plaintiffs loss or injury. (Art. 2215,
weightandmomenttoinduce,orwhichreasonably NCC)
should induce, action to avoid it on the part of a
personorareasonablyprudentmind. 4.LIQUIDATEDDAMAGES

Q: When can liquidated damages be equitably
A.DUTYOFINJUREDPARTY reduced?

1.ART.2203 A: Liquidated damages, whether intended as an
indemnityorapenalty,shallbeequitablyreduced
Q:Whatisthedutyoftheinjuredparty? if they are iniquitous or unconscionable. (Art.
2227,NCC)
A: The injured party is obligated to undertake
measuresthatwillalleviateandnotaggravatehis 5.COMPROMISE
condition after the infliction of the injury or
nuisance. The injured party has the burden of Q:Whatisacompromise?
explainingwhyhedidnotdoso.(Art.2203,NCC)
A: A compromise is a contract whereby the
parties,bymakingreciprocalconcessions,avoida
B.RULES litigation or put an end to one already
commenced.(Art.2028,NCC)
1.INCRIMES
Q: How are damages adjudicated in case of Q:Whatistheessenceofacompromise?
crimes?
A:Incrimes,thedamagestobeadjudicatedmay A:Theelementofreciprocalconcessions.
be respectively increased or lessened according
to the aggravating or mitigating circumstances. Q: What is the rule regarding compromise in
(Art.2204,NCC) caseliabilityhasacivilandcriminalaspect?
2.INQUASIDELICT
A: If a crime has been committed, there can be
Q: When can damages be reduced in quasi compromise on the civil liability, but not, as a
delict? generalrule,onthecriminalliability.

A: The contributory negligence of the plaintiff Note:Inacivilcase,compromisemustbeentered
shall reduce the damages he may recover. (Art. into before or during litigation, never after final
2214,NCC) judgmenthasbeenrendered.

548 CIVILLAWTEAM:

TORTS AND DAMAGES
Compromiseduringlitigationmaybeintheform
ofaconfessionofjudgment.
Q: What is the rule regarding compromise of

criminalliability?
A:
GR:notallowed
XPN: in case of crimes against chastity and

violationsoftheNationalInternalRevenueCode.
X.MISCELLANEOUSRULES
Damages Damages Damages

thatcannot thatmustco thatmust
coexist exist standalone
Nominal Exemplary Nominal
Damages Damages Damages
cannotco mustcoexist
existwith withMoral,
Exemplary Temperate,
Damages Liquidatedor
Compensator
yDamages
549

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EFFECT AND APPLICATION OF LAWS

I.EFFECTANDAPPLICATIONOFLAWS Inasmuch as the law has no specific date for its

which has authority and jurisdiction to conduct

Q: When do judicial decisions form part of the A:Thesearerulesofconduct,legallybindingand

E.g. governed by the laws of the country in

HUMANRELATIONS fulfill that promise thereafter becomes the

beneficiary in the insurance policy of the

Q: What constitute legal capacity of the parties A:Voidable

Note: Absence of the additional requirement of

in the Philippines, Philippine laws shall

A: The issuance of marriage license is suspended B.EXCEPTIONS

nationality principle embodied in Art. 16

physiological characteristics of a woman

Q: When are nonbigamous subsequent marriagewouldhavebeenvoidable.

b. It must be antecedent (existing at IMPOTENCE

which case, the final judgment of nullity or

sexual activity which does not

IV.RIGHTSANDOBLIGATIONSBETWEEN 3. Exercise parental authority over

marriage settlements present property

Q: In cases of alienation, disposition or

2. Those acquired during the marriage by 1. Iffullownershipwasvestedbeforethe

6. Payment of losses and deterioration of 2. Judicialdeclarationofabsence;

The presumption is not rebutted by the mere fact undernormalcircumstances,thesameshouldbe

properties which was contained in the decree.

maintenance; hence, she should not be entitled

salaried employee and Mabel kept house for VI.THEFAMILY

3. Majority of the beneficiaries of legal Q:Whataretheclassificationsoffiliation?

conclusive evidence of the truthfulness of the

provision means that joint adoption by the timeofdeath.

decision based on grounds not alleged in the

matter of support, the losing party is now

Q: What is the rule on the parents duty of

Note: This duty extends to representation in

XPN: A guardian ad litem may be appointed by

becauseleasehasbeenconsideredasanact GR: Parental authority and responsibility are

GR: 4 consecutive years absence of

to pay the expenses made by a third person in

NOTE: Natural fruits are the spontaneous products Withrespecttoanimals,itissufficientthattheyare

Industrial fruits are those produced by lands of any

GoodFaith GoodFaith GoodFaith

1.Acquireimprovementsandpay 1.Rightofretentionfornecessary 1.Collectvalueofmaterials

GoodFaith GoodFaith BadFaith

1.Optionto: 1.Rightofretentionfornecessary 1.Losematerialswithoutrightto

GoodFaith BadFaith BadFaith

BadFaith BadFaith BadFaith

BadFaith GoodFaith GoodFaith

BadFaith BadFaith GoodFaith

BadFaith GoodFaith BadFaith

Q:Whencantheownerofthelandappropriate two more months, a resurvey of the land

A:Onlywhenthebuilder,planter,sowerbelieves A: As to the pending crops planted by Felix in

considerablymorethanthevalueofthehouse.If one of the measures to protect builders in good

2. Suppose X was in good faith but Y knew A:No.SincespousesNuguidoptedtoappropriate

Note:Iftheusufructuaryhasnotchosentoremove A: The rule does not apply to manmade or

Q: What is the effect if all the requisites are 1.Tocompensatehimfor:

A: It becomes of public dominion whether it is ALLUVIUM AVULSION

A:NAPA Soilcannotbe Identifiableand

A: While it is true that a mortgage of land IMMOVABLEBYINCORPORATION

1. Real property by nature if they are

Q:DistinguishPar.3fromPar.4. from the act of the owner in giving by contract a

PAR.3 PAR.4 Q: How is the equipment of a transportation

Q: Are machineries bolted or cemented on real

Note: Where a tenant places the machinery under

Q:Whataremovableproperties? Q: How are properties classified according to